SAMUEL (Migration)

[2019] AATA 1079

SAMUEL (Migration) [2019] AATA 1079 (22 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr OLAWALE BAMIDELE SAMUEL

CASE NUMBER:  1726733

HOME AFFAIRS REFERENCE(S):           BCC2017/3231572

MEMBER:Kira Raif

DATE:22 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled Independent (Permanent) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 189 visa:

·cl.189.224 of Schedule 2 to the Regulations.

Statement made on 22 May 2019 at 10:46am

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 Skilled-Independent – points test – Telecommunications Network Engineer – more evidence provided – employment was in nominated occupation or a closely related occupation – achieved requisite score – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 93, 94, 96(2), 350
Migration Regulations 1994, Schedule 2, cl 189.224, rr 1.15F, 1.15I, 2.26AC

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 and Border Protection on 12 October 2017 to refuse to grant the applicant a visa under s.65 of the Migration Act 1958 (the Act). This is a points based visa designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The applicant is a national of Nigeria, born in April 1985. He was invited to apply for the visa on 6 September 2017 and applied for the visa on the same day. The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl.189.224. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 22 May 2019 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. The criteria for the grant of a Subclass 189 - Skilled - Independent visa are set out in Part 189 - Skilled - Independent of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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’.

5. 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).

6. 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).

   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

7. 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.

8. The applicant was born in April 1985 and was invited to make the application in September 2017. The applicant was 32 years of age at the time of invitation. He is entitled to 30 points under this part.

   Part 6D.2 – English language qualifications

9. Points are available under this Part on the basis of the applicant’s level of English language proficiency at the time of invitation to apply for the visa. The applicant provided with his application an IELTS Test Report Form from March 2016 showing he achieved the scores of at least 7 but not the scores of 8 in each of the four test components. The Tribunal finds that the applicant has proficient English. Therefore, the applicant is entitled to 10 points under this part.

   Part 6D.3 – Overseas employment experience qualifications

10. 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.

11. The applicant stated on the application form that he holds a Bachelor in Science, Business or Technology (Electronics and Computer Engineering) from Lagos State University which he completed between September 2003 and March 2010. He also holds a Masters in Science, Business and Technology. The applicant presented evidence of his qualifications.

12. The applicant has nominated the occupation of Telecommunications Network Engineer in his application. The applicant provided evidence of the following employment in his application

    02/08/10 - 29/07/11 (11 months & 27 days)  

    Field Engineer, Netcom Africa

    04/07/11 – 30/12/11 (5 months & 26 days)   

    Field Engineer, WDL Technologies Ltd

    02/01/12 – 01/06/12 (4 months & 30 days)   

    Maritime Telecommunications Engineer, Centre Base International Comm Ltd

    04/06/12 – 31/10/14 (28 months and 27 days)          

    Application Support Officer / Project Manager, First Bank Nigeria Ltd

    03/08/15 – 30/09/16 (13 months & 27 days) 

    Project Manager, WDL Technologies Ltd

13. The delegate formed the view that some of the claimed employment was not considered to be at the skilled level as it was done before the applicant completed his Bachelor of Electronics and Computer Engineering in March 2010. The delegate also noted that the applicant’s payslip and a letter from FirstBank dated 30 November 2016 nominated his job title, which did not match the information declared in the EOI. The delegate formed the view that the employment documents from FirstBank might ‘lack credibility’ or that the applicant’s job duties might not match with is nominated occupation of Telecommunications Network Engineer. No further explanation is offered as to why that employment was found to be problematic. The delegate disregarded the applicant’s employment at First Bank from June 2012 to October 2014 and was not satisfied the applicant completed 5 years of relevant employment. The delegate found that the applicant was employed in his nominated skilled occupation, or a closely related skilled occupation, for at least 3 years in the 10 years before the application was made and awarded the applicant 5 points in this Part.

14. In his submission to the Tribunal of 12 October 2017 the applicant described First Bank and its operations and stated that he was employed as a graduate in its training school First Academy. The applicant presented to the Tribunal copies of various documents he previously submitted to the delegate, including evidence of his employment. The applicant subsequently provided to the Tribunal copies of his payslips and other evidence of employment, including a letter from the bank outlining his duties and responsibilities.

15. The statement from Frist Bank, dated 6 November 2017, indicates that the applicant was employed as a Business Solutions / Application / Product Support Officer from July to October 2014 at the Bank’s E-Business Group. His responsibilities are stated to include

    a.Identifying and analysing problems and need of existing electronic channels and telecommunication systems,

    b.Supporting the team to determine the most appropriate means of reducing, eliminating and avoiding current and future problems and improve communications on electronic platforms and channels

    c.Monitoring of applications, platforms and channel systems

    d.Assess performance levels of system hardware and software to project future needs and developing plans for updating equipment

    e.Enhanced existing systems and providing improved telecommunications.

16. It is stated that from November 2012 to July 2014 the applicant’s role was that of First Contact Officer (which is consistent with his nomination on the submitted payslips). The duties and responsibilities are set out as follows:

    a.Assist all first level troubleshooting of basic networking and communication devices

    b.Ensuring devices like the computer systems and networks devices and electronic wall boards were operational

    c.Assist in re-arranging team clusters and their communication equipment

    d.Attending business and stakeholder meetings

    e.Assist team leaders and supervisors in general reports

    f.Resolving customer’s inquiries, complaints and requests

    g.Responsible for generating and preparing reports on dispute resolutions handled by the team

    h.Supporting training, knowledge transfer and sharing to newer employees

    i.Maintain security of all information entrusted to the staff and complying with principles and policies in the information security.

17. In oral evidence, the applicant described his employment in each of the jobs noted above. The applicant stated that when he was employed at the bank, initially, he joined the graduate program and completed four months of intensive training. He then worked as a First Contact at the call centre where he was responsible for maintaining the communications equipment and was the first point of contact for call centre staff. After a few months he progressed to the E-Commerce department and focussed which handled all of the bank’s electronic business. His role was managing internet projects and electronic business of the bank. The applicant described in some detail the work that he has performed.

18. The Tribunal acknowledges that the evidence of the applicant’s employment, initially submitted with the application, was somewhat inadequate, although the Tribunal also acknowledges the applicant’s evidence that he was never asked for additional information concerning his employment. There is more evidence before the Tribunal. In particular, the Tribunal places weight on the job description issued by the bank, referred to above, which outlines the applicant’s duties and responsibilities. In the Tribunal’s view, these are consistent with the occupation of Telecommunication Network Engineer or a closely related occupation. The Tribunal is satisfied that the applicant’s employment at First Bank was in the nominated occupation or a closely related occupation. The Tribunal is also satisfied – as was the delegate – that the other employment between August 2010 and the time of the invitation, was also in the nominated occupation or a closely related occupation. The Tribunal finds that he applicant’s employment was for a period totalling at least 60 months, and less than 96 months, in the relevant period. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 10 points under this part.

    Part 6D.4 – Australian employment qualifications

19. 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.

20. The applicant does not claim to have completed Australian employment. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this part.

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

21. 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.

22. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 10. As this is not more than 20 points, the applicant is entitled to no points under this part.

    Part 6D.6 – Australian professional year qualifications

23. 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.

24. There is no evidence that the applicant had completed a professional year in Australia in the nominated skilled occupation or a closely related occupation. Therefore, the applicant is entitled to no points under this part.

    Part 6D.7 – Educational qualifications

25. 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.

26. The applicant claims to have completed a Bachelor degree in Science, Business and Technology (Electronics and Computer Engineering) The Tribunal is satisfied this qualification is equivalent to an Australian bachelor degree. The applicant is entitled to 15points under this part.

    Part 6D.7A – Specialist educational qualifications

27. Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the requirements for the award of a specialist educational qualification, as defined in r.2.26AC(5A). The applicant must satisfy the Minister that they have met the requirements for the award of a masters degree by research, or a doctoral degree, which included at least 2 academic years of study at an Australian educational institution in a field of education specified in the relevant instrument.

28. The applicant stated on the application form that he holds a Masters degree but he presented no evidence that he met the requirements for the award of the Masters degree by research. The applicant is entitled to no points under this Part.

    Part 6D.8 – Australian study qualifications

29. 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.

30. The applicant does not claim to have met the Australian study requirement. Therefore, the applicant is entitled to no points under this part.

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

31. 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.

32. As the applicant does not claim to have met the Australian study requirement, the applicant is entitled to no points under this part.

    Part 6D.11 – Partner Skill Qualifications

33. 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 a specified age, have nominated a specified skilled occupation, been assessed as having specified skills, and have competent English.

34. There is no evidence that the applicant’s partner had nominated a skilled occupation or that she has been assessed as having suitable skills for the occupation. Therefore, the applicant is entitled to no points under this part.

    Part 6D.12 – State or Territory nomination qualifications

35. 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

36. 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

37. 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  10 points

    6D.4 - Australian employment experience  0 points

    6D.5 - Aggregated employment  0 points

    6D.6 - Australian professional year  0 points

    6D.7 - Educational  15 points

    6D.7A – Specialist educational  0 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  65 points

38. The applicant’s assessed score under the points system is therefore 65 points.

39. At the time of the delegate’s assessment the pass mark was 60 points: Legislative Instrument IMMI 12/017. The applicant has therefore achieved the qualifying score to pass the points test.

    Has the applicant achieved the score stated in the invitation to apply for the visa?

40. It is also a requirement that the applicant’s score is not less than the score stated in the invitation to apply for the visa. The primary decision record indicates that the written invitation given to the applicant stated a score of 65 points. On the basis of the points assessment above, the Tribunal finds that the applicant has achieved the score stated in the invitation to apply for the visa.

    Conclusion

41. For the above reasons, the applicant is entitled to a maximum of 65 points under the points test. As the applicant’s score is not less than the score stated in the invitation to apply for the visa, and not less than the qualifying score, the applicant satisfies cl.189.224, which is a prescribed criterion for the grant of the visa. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

42. The Tribunal remits the application for a Skilled Independent (Permanent) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 189 visa:

    ·cl.189.224 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member