SALVADOR LONGARELA (Migration)

[2017] AATA 433

SALVADOR LONGARELA (Migration) [2017] AATA 433 (23 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Maria Belen SALVADOR LONGARELA

CASE NUMBER:  1603748

DIBP REFERENCE(S):  BCC2016/221049

MEMBER:Wan Shum

DATE:23 March 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

Statement made on 23 March 2017 at 4:17pm

CATCHWORDS

Migration – Skilled Independent (Permanent) visa – Subclass 189 – Points test – Industrial Engineer – Qualifying score 60 not attained

LEGISLATION

Migration Act 1958, ss 65, 93, 94, 96(2), 350

Migration Regulations 1994, Schedule 2, Schedule 6D, r.2.26AC, r 1.15, r 2.26AC(5), IMMI 16/060, IMMI 12/017

CASES

MIAC v Kamruzzaman (2009) 112 ALD 550
Seema v MIAC [2012] FCA 257

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 March 2016 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) Subclass 189 (Skilled - Independent) visa under s.65 of the Migration Act 1958 (the Act). This is a points based visa designed for skilled applicants who submitted an expression of interest and received an invitation to apply for the visa.

2. The applicant was invited to apply for the visa on 8 January 2016 and applied for the visa on 15 January 2016. The criteria for the grant of a Subclass 189 visa are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. It requires nomination of a skilled occupation and satisfaction of the ‘points test’, which essentially enables assessment of the applicant’s suitability for employment in that occupation in Australia. The applicant is claiming to have the necessary skills for the occupation of Industrial Engineer.

4. Following an assessment of the evidence provided, the delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl.189.214.

5. The applicant has sought review of that decision.

6. The applicant appeared before the Tribunal on 22 March 2017 to give evidence and present arguments.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant satisfies the points test criterion which requires that the applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act:

   ·is not less than the score stated in the invitation to apply for the visa and

   ·is not less than the ‘qualifying score’.

9. Subdivision B of Division 3 of Part 2 of the Act provides for a points system under which an applicant is given an assessed score based on a prescribed number of points for particular attributes. The qualifications and points applicable to this case are prescribed in Schedule 6D to the Regulations (r.2.26AC). An applicant achieves the qualifying score if their assessed score is more than or equal to the applicable pass mark (s.94 of the Act), which is set by the Minister from time to time under s.96(2). The Tribunal must consider the applicant against the qualifications and points prescribed in Schedule 6D, and the pass mark as in force at the time of the delegate’s assessment and as in force at the time of this assessment, and apply whichever is more favourable to the applicant (ss.93 and 350 of the Act).

10. The qualifying score at the time of the delegate’s assessment, and at the time of this assessment, is 60. The score in the invitation to apply for the visa was 60, based on the information provided in the expression of interest.

11. Some elements of the points test relate to the nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the relevant instrument as a skilled occupation; and, if a number of points are specified in the instrument as being available - for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (r.1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 16/060. In the present case, the applicant nominated the occupation of Industrial Engineer which is an occupation specified in the relevant Schedule of the IMMI 16/060.

    Does the applicant have the qualifying score applying the law in force at the time of the delegate’s assessment?

    Part 6D.1 – Age qualifications

12. Points are available under this Part if the applicant was aged between 18 and 44 years at the time of invitation to apply for the visa.

13. At the time of invitation the applicant was aged 30. Therefore, the applicant is entitled to 30 points under this Part.

    Part 6D.2 – English language qualifications

14. For points under this Part, the applicant needed to provide evidence that, at the time of the invitation to apply for the visa, she had ‘superior English’ (as defined in r.1.15EA) or ‘proficient English’ (as defined in r.1.15D).

15. The applicant submitted the result of a Pearson Test of English (PTE) Academic test taken on 15 October 2015. The PTE Academic test taker score report indicates that the applicant obtained 71 in listening, 66 in reading, 72 in speaking and 72 in writing.

16. Based on these results, the applicant has superior English (as defined in r.1.15EA) but does not have proficient English (as defined in r.1.15F). She is therefore entitled to 10 points under this Part.

    Part 6D.3 – Overseas employment experience qualifications

17. Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed outside Australia in the applicant’s nominated skilled occupation or a closely related skilled occupation for at least 36, 60, or 96 months in the 10 years immediately before that time.

18. On her visa application form, the applicant claimed to have been employed for less than 3 years in the past 10 years overseas.

19. She provided the following details:

    Position  SAP CRM Business Analyst

    Employer name  Deloitte

    Country  Argentina

    Date from  20 Sep 2011

    Date to  21 Jul 2012

    Description of duties  Process analysis, Design of Orders Documents, Product configuration, Solution design, Testing, End users training in SAP CRM implementation Projects

    …

    Position  Training Analyst

    Employer name  Techint

    Country  Argentina

    Date from  30 Jul 2012

    Date to  04 Aug 2013

    Description of duties  Creating reports and key performance indicators in training hours and cost at global scale.

    
    

    Optimization of the time of reporting, simplification of the SAP management and adaptation of the report of hours and cost

20. The delegate assessed her as not being entitled to points under this Part because the period of claimed employment was less than 36 months.

21. On review, the applicant is seeking for the entirety of her overseas work experience to be counted. She referred to having worked for 3 years at Deloitte from August 2010 to July 2012 and then at a construction and engineering company, Techint, from July 2012 to August 2013. She claims that her duties matched that of an Industrial Engineer.

22. The applicant explained that she had not claimed it before because her degree was not issued until 20 September 2011. However, she had commenced working with Deloitte in August 2010. She said she did not receive her degree until a year later because she was sent to work on a project in Columbia and could not do her final work before but that her last exam “General and Labour-related Legislation” was taken on 12 July 2010. The applicant provided a detailed statement setting out her involvement in the project in Columbia, setting out her tasks and responsibilities over the 8 month period. At the hearing, she explained that this document was presented to Engineers Australia when she applied for her skills assessment. By reference to her testamur, she confirmed at the hearing that her final work was submitted on 20 September 2011. The Tribunal also notes that a subject entitled ‘Supervised Professional practice’ was not completed until 19 July 2011, which the applicant acknowledged, indicating that it was possible her work at Deloitte was considered for that subject.

23. In considering whether the employment prior to obtaining her qualification can be counted, the Tribunal is to consider not only the tasks for the occupation of Industrial Engineer as set out in ANSZCO but also whether the applicant has the minimum skill level specified in ANZSCO.

24. This is because the Federal Court in Seema v MIAC [2012] FCA 257, when considering employment in Australia for an earlier version of the points test, Schedule 6B, found that only employment undertaken after the applicant had attained the necessary skill level qualified as employment in a ‘skilled occupation’ for the purposes of the points test. Whilst the Tribunal is considering overseas employment, a similarly worded requirement existed in an earlier version of the offshore skilled visa (Subclass 138) and was considered by the Federal Court in MIAC v Kamruzzaman (2009) 112 ALD 550, where Greenwood J at [63]-[64] found:

    The skills section of the classifications does not specify a set of skills applicants must possess in order to be able to undertake the occupation.  Instead, it contains information as to the qualifications required for entry to that occupation.  The introductory notes to the Second Edition of the ASCO classification system confirm that the criteria used to measure skill level are formal education and/or training, and previous experience.

    In order to determine whether an applicant’s employment fits into a particular ASCO classification, a decision-maker is required to consider all of the details set out in that classification.  However, in making such a decision, the skills that are to be considered are those set out in the “Skill Level” section of the classification to which the applicant’s position is being compared.  That is, the decision requires a consideration of whether the applicant holds the qualifications or experience prescribed for that occupation. [1]

    [1] ASCO is the earlier version of ANZSCO, but only classified occupations and jobs in Australia.

25. The Tribunal has thus proceeded on the basis that the applicant was required to hold the qualification or the necessary experience set out under the skill level section of ANZSCO for her nominated, or a closely related, occupation. ANZSCO sets out that an Industrial Engineer would have a level of skill commensurate with a bachelor degree or higher qualification and in some instances relevant experience and/or on the job training may be required in addition to the formal qualification.

26. The evidence presented indicates that the applicant did not complete her Industrial Engineering degree until 20 September 2011. The Tribunal does not consider on the evidence presented that she had a level of skill commensurate to a bachelor degree of higher qualification prior to that date. As such, her employment prior to that date cannot be counted for the purposes of this part. The applicant’s overseas work experience was for a period of 22 months from September 2011 till August 2013

27. Therefore, the applicant is not entitled to points under this part.

    Part 6D.4 – Australian employment qualifications

28. Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed in Australia in the nominated occupation or a closely related skilled occupation for at least 12, 36, 60 or 96 months in the 10 years immediately before that time.

29. The applicant sought to claim 5 points for having been employed for at least 12 months in the past 10 years. She provided details on her visa application form of having been employed by Apple in Australia in the position of ‘Expert’ from 2 December 2013 to 20 February 2015 and from 2 May 2015 to 2 November 2015. She gave the following description of duties: constantly providing technology solution and being a leader in product knowledge; connecting business professionals and entrepreneurs with the tools they need in order to put Apple solutions to work in their businesses.

30. She claimed that the employment was closely related to the nominated position, and provided a reference letter dated 29 February 2016 from a Store leader with Apple Retail, Sydney. The letter confirmed her dates of employment and stated that “as an Expert [the applicant] was responsible for selling Apple products, building customer loyalty, showcasing Apple technology and providing the greatest customer experience at the highest level”.

31. A second letter dated 26 October 2015 from Employee Relations confirmed that the applicant had been employed by Apple Pty Ltd and stated that her key responsibilities were to: constantly provide technology solutions and being a leader in product knowledge; as new products and initiatives emerge, being the first to learn, share and inspire our team members through approachability and action; always meeting, and at time exceeding, her established performance goals; connecting business professional and entrepreneurs with the tools they need in order to put Apple solutions to work in their businesses; helping businesses learn about Apple products and explore various possibilities. At the hearing she said that her role involved assisting business customers by assessing their needs. She said she might spend about an hour with a customer, understanding what their employees need and discussing for example whether they would be best with a tablet or laptop computer. She uses what she has learned from her degree to advise and help them with their daily work. The applicant considered that her position at Apple was different to that of the typical retail salesperson who only needs to know what a product does, whereas she needs to know about different industries in which the customer operates.

32. The Tribunal accepts that the applicant has used her knowledge to give advice about suitable products to potential customers of Apple, and that she wants to grow inside the company and to move into corporate unit/department to further develop. The Tribunal accepts that, as part of her role she is considering a business’s needs, so that she can provide solutions to business customers. It notes that when she undertakes these tasks she is focused on recommending Apple products and/or services. The customers are already interested in Apple products and have physically attended the Apple retail store. In the Tribunal’s view, the duties described above align more closely with the tasks undertaken by ICT sales assistant, which is a separate occupation described in ANZSCO under Unit Group 6212 ICT Sales Assistants. An ICT sales assistant is a person who “sells computing and telecommunications related goods and services in retail and wholesale establishments”. The tasks of an ICT sales assistant include: determining customer requirements and advising on product range; and demonstrating and explaining to customers the establishment’s goods and services. The skill level is an AQF Certificate I or compulsory secondary education. This is one of the lowest skill levels used in ANZSCO.

33. According to ANZSCO, the work of an Industrial Engineer is at the highest skill level, and involves recommending improvements in the efficiency of operations after investigating and reviewing the utilisation of personnel, facilities, equipment and materials. The Tribunal considers that this would involve more detailed analysis of a business’s operations over a period of time, and may involve discussions with other personnel or employees of the business, which the applicant claimed was part of her role on the bank project in Chile with Deloitte. While the Tribunal accepts that the applicant undertakes an assessment of the potential Apple customer’s requirements and recommends products, the applicant’s evidence was that this would occur over a one hour discussion at the Apple retail store does not, in the Tribunal’s view, match the tasks of an Industrial Engineer. The Tribunal considers these duties match the tasks of an ICT sales assistant. It has taken into account that the applicant genuinely believed her position at Apple is closely related to that of an Industrial Engineering, but does not consider that the position the applicant has been employed in with Apple does match the occupation of Industrial engineer. Nor does the Tribunal consider that an ICT Sales Assistants occupation is a closely related occupation to the occupation of Industrial engineer. It does not consider that the Apple ‘Expert’ position is closely related to that occupation.

34. The applicant is therefore not entitled to points under this part.

    Part 6D.5 - Aggregating points for employment experience qualifications

35. Under this part, if an applicant has qualifications mentioned in both Parts 6D.3 and 6D.4 and the combined number of points that would be awarded under those Parts is more than 20 points, 20 points must be given under this Part for the qualifications and no points are to be given under Part 6D.3 or 6D.4.

36. The applicant does not have qualifications in both Parts 6D.3 and 6D.4 and is not entitled to points under this part.

    Part 6D.6 – Australian professional year qualifications

37. Five points are available under this part if, at the time of invitation to apply for the visa, the applicant had completed a professional year (that is, a course specified in an instrument) in Australia in the nominated occupation or a closely related skilled occupation for at least 12 months in the immediately preceding 48 months. The relevant instrument (IMMI 12/029) specifies that the Professional Year Program provided by the Institute of Chartered Accountants in Australia, the Certified Practising Accountants Australia and the Institute of Public Accounting which is available to accounting graduates is one such course.

38. The applicant indicated that she did not complete a professional year. Therefore, she is not entitled to points under this Part.

    Part 6D.7 – Educational qualifications

39. An applicant may be entitled to points under this Part if, at the time of invitation to apply for the visa, he or she had met the requirements for the award of a specified Australian qualification or overseas qualification of a recognised standard. In determining whether an overseas qualification is of a ‘recognised standard’ (items 6D71(b), 6D72(b)), regard must be had to the matters set out in r.2.26AC(5) which include recognition of the qualification by the relevant assessing authority, recognition of the qualification by a specified body, duration of the study and any other relevant matter.

40. The applicant has provided evidence of being awarded a Bachelor of Industrial Engineering by the Pontificia Universidad Catolica Argentina Santa Maria de Los Buenos Aires. This degree was conferred on 14 November 2011. The transcript provided states that the applicant “enter[ed] the University on April 1^st 2004 - has passed all the subjects corresponding to the curriculum of the career of Industrial Engineering and she was granted the degree on September 20th 2011”.

41. This qualification was recognised by Engineers Australia, the relevant assessing authority for the applicant’s nominated skilled occupation, as being suitable for the occupation of Industrial Engineer as at 15 October 2015.

42. The Tribunal finds that the applicant was awarded a bachelor degree by an overseas educational institution that is of a recognised standard; and is therefore entitled to 15 points.

    Part 6D.8 – Australian study qualifications

43. Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement, as defined in r.1.15F of the Regulations. To meet the study requirement, the applicant must satisfy the Minister that they have completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a registered course or courses, for which all instruction was in English. The applicant must have undertaken the courses in Australia while holding a visa authorising study, and completed them in a total of at least 16 calendar months as a result of a total of at least 2 academic years study.

1. The applicant is not claiming to have undertaken relevant study in Australia and is not entitled to points under this part.

   Part 6D.9 – Credentialled community language qualifications

2. Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant had a qualification in a particular language awarded or accredited by a specified body, and at a specified standard for the language.

3. The applicant is not claiming, and she is not entitled to, points under this Part.

   Part 6D.10 – Study in regional Australia or a low-population growth metropolitan area qualifications

4. Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement (as defined in r.1.15F), and that study was undertaken, and the applicant lived, in a specified area of Australia. Distance education does not qualify as study for these purposes. The applicant is not claiming to have undertaken study in regional Australia or a low population growth area and is not entitled to points under this part.

   Part 6D.11 – Partner Skill Qualifications

5. Five points may be awarded under this Part if the applicant has a spouse or de facto partner who is also an applicant for the same visa subclass and is not an Australian citizen or permanent resident. At the time the applicant was invited to apply for the visa, the spouse / partner must have been under 50 years of age, have nominated a specified skilled occupation, been assessed as having specified skills, and have competent English.

6. The applicant has not claimed and, is not entitled to points, under this part.

   Part 6D.12 – State or Territory nomination qualifications

7. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) visa. The applicant in this case has not been invited to apply for such a visa and is therefore not entitled to any points under this part.

   Part 6D.13 – Designated area sponsorship qualifications

8. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 489 (Skilled - Regional) (Provisional) visa. The applicant in this case has not been invited to apply for such a visa and is therefore not entitled to any points under this part.

   Conclusion on points

9. Based on the above assessment, having regard to the legislation in effect at the time of the delegate’s assessment, the number of points to be awarded to the applicant under Schedule 6D is:

   6D.1 - Age  30 points

   6D.2 - English language  10 points

   6D.3 - Overseas employment experience  0 points

   6D.4 - Australian employment experience  0 points

   6D.5 - Aggregated employment  NA

   6D.6 - Australian professional year  0 points

   6D.7 - Educational  15 points

   6D.8 - Australian study  0 points

   6D.9 - Credentialled community language  0 points

   6D.10 - Study in regional / low-population area  0 points

   6D.11 - Partner skill  0 points

   6D.12 - State or Territory nomination  0 points

   6D.13 - Designated area sponsorship  0 points

   Total points  55 points

10. The applicant’s assessed score under the points system is therefore 55 points.

11. At the time of the delegate’s assessment the pass mark was 60 points: Legislative Instrument IMMI 12/017. The applicant has not achieved the qualifying score to pass the points test.

    Has the applicant achieved the qualifying score applying the law in force at time of Tribunal’s assessment?

12. The only change to the Regulations at the time of the Tribunal’s decision was the addition of Part 6D.7A (Specialist educational qualifications) which was added to the regulations with effect from 10 September 2016. However, the applicant had not undertaken study in Australia for a masters degree by research or a doctoral degree. She is therefore not entitled to points under this Part. The pass mark at the time of the Tribunal’s assessment remains at 60 points: Legislative Instrument IMMI 12/017. Therefore, the applicant has not achieved the qualifying score to pass the points test applying the law in force at time of this assessment.

13. For the above reasons, the applicant is entitled to a maximum of 55 points under the points test. As the applicant’s score is less than the qualifying score, the applicant does not satisfy cl.189.214. As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.

    DECISION

14. The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

    Wan Shum
    Member