VAIDYA (Migration)

[2017] AATA 969

VAIDYA (Migration) [2017] AATA 969 (15 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Krupali Bhushan Vaidya
Mr Bhushan Dilip Vaidya

CASE NUMBER:  1607119

DIBP REFERENCE(S):  BCC2015/1474575

MEMBER:Wan Shum

DATE:15 June 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) visas.

Statement made on 15 June 2017 at 11:30am

CATCHWORDS
Migration – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled - Nominated) – Points test criteria – Skill level – Advertising Manager – Qualifying score achieved – Invitation score not achieved

LEGISLATION
Migration Act 1958, ss 65, 93, 94, 96, 350
Migration Regulations 1994, r 1.15D, r 1.15EA, r 1.15F, r 1.15I, r 2.26AC, Schedule 2, cl 190.214, Schedule 6D

CASES

Seema v MIAC [2012] FCA 257

MIAC v Kamruzzaman (2009) 112 ALD 550

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 12 May 2016 to refuse to grant the applicants Skilled - Nominated (Permanent) (Class SN) Subclass 190 (Skilled - Nominated) visas 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 first named applicant (the applicant) was invited to apply for the visa on 8 May 2015 and applied for the visa on 22 May 2015. The criteria for the grant of a Subclass 190 visa are set out in Part 190 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 Advertising Manager.

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.190.214.

5. The applicants have sought review of that decision and were represented by a registered migration agent.

6. The applicant appeared before the Tribunal on 31 May 2017 to give evidence and present arguments. The representative was also in attendance.

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 65, 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 15/091. In the present case, the applicant nominated the occupation of Advertising Manager which is an occupation specified in the relevant Schedule of IMMI 15/091.

    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 an International English Language Testing System (IELTS) test taken on 7 February 2015. The test report form shows that the applicant obtained 8.5 in listening, 7.5 in reading, 7.0 in writing and 7.5 in speaking.

16. Based on these results, the applicant has proficient English (as defined in r.1.15D) but does not have superior English (as defined in r.1.15EA). 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 in the nominated skilled occupation or a closely related skilled occupation for 5 years in the past 10 years overseas.

19. She provided the following details of employment related to the nominated position:

    Position  Proprietor, Logik Design

    Employer name  Logik Design Studio

    Country  India

    Date from  1 Dec 2008

    Date to  22 May 2014

    Description of duties  1 Providing Advertising & Branding consultancy.

    
    

    2 Generating the leads for potential clients and projects.

    
    

    3 Plan, direct, or coordinate advertising strategies to product collateral, such as posters, Banners, Brochures, Kiosk, Banners, Contests, Coupons, Packaging, Display Stands, Social Media

    …

    Position  Advertising Manager

    Employer name  Manba Finance Ltd

    Country  INDIA

    Date from  07 Sep 2006

    Date to  30 Jun 2008

    Description of duties  1 Plan, direct, or coordinate advertising strategies to product collateral material.

    
    

    2 Plan and prepare advertising and promotional material to increase sales of a two wheeler product and finance services

    
    

    3 Assist with advertising and branding annual budget development

20. The applicant also gave details of having employment as a Graphic Designer and as a Senior Executive for WNS Global Services, but indicated that this employment was not related to the nominated position. Following the hearing, the applicant provided various referral letters from businesses that she claimed to have undertaken freelance graphic design work for in India. She explained that she had not previously provided these letters because they were not directly related to the nominated position of Advertising Manager. She said that they had been obtained for portfolio verification and the Tribunal notes that all letters are dated August and September 2013. The period of work for each business occurred during her self-employment at Logik Design Studio.

21. The delegate assessed her as not being entitled to points under this Part because the period of claimed employment was less than 36 months. The delegate noted that the total period of skilled work claimed was 7 years and two months. However, after referring to the ANZSCO description of advertising manager, and the ‘indicative skill level’ listed, as well as previous work experience, the delegate deducted 5 years from the claimed total.

22. On review, the applicant is seeking for the above claimed employment to be counted in full. The applicant disputes the delegate’s approach of deducting 5 years of work experience. The applicant considered that this was not the correct approach and felt that it was unfair and subjective, stating that referring to ANZSCO was a “choice and very subjectively used in [her] case”. She referred to the assessment made by the AIM, which is the relevant assessing authority for the occupation she nominated, stating that her experience was accepted by AIM and should be counted. The assessment refers to the occupation of Advertising Manager as the occupation assessed and relevantly states that the applicant’s “managerial experience as Proprietor, Logik Design Studio, India (2008/Current) and Advertising manager, Manba Finance Ltd., India (2006/08) shows that they have a record of proven achievement over a period of three years or more in a senior management position such as chief executive, general manager or senior functional manager”. The Tribunal accepts that the applicant was given a positive assessment for the occupation of Advertising Manager.

23. However, as explained to the applicant at the hearing, in considering the period of employment, the Tribunal is required to consider not only the tasks for the occupation of Advertising Manager as set out in ANSZCO but also whether the applicant has the minimum skill level specified in ANZSCO. The Courts have held that the reference to the specific ASCO or ANZSCO Code in relation to each of the named occupations in the relevant instrument for skilled occupations reflects Parliaments intention to import the defining criteria described in the applicable ASCO / ANZSCO classification as the means to assess whether the visa applicant’s nominated occupation qualifies as a ‘skilled occupation’.

24. In particular, 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 is thus required to consider all of the details set out in the ANZSCO classification for the nominated occupation, which includes the ‘skill level’. The assessing authority’s views as to her suitability for the nominated occupation are not binding on the Tribunal in making this determination. It notes that the opinion of AIM includes a statement that the final decision on awarding points is at the discretion of the Immigration department. In any case, the skills assessment is a separate requirement from the determination under this part of the points test as to the total period of overseas employment.

26. The Tribunal has 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 before such employment can be counted. ANZSCO sets out that an Advertising Manager 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. At least five years of relevant experience may substitute for the formal qualification.

27. The evidence presented indicates that the applicant had not completed a bachelor degree prior to her arrival in Australia. Therefore, when determining the total period of overseas employment for the nominated occupation of Advertising Manager, she must have 5 years of relevant experience before the ‘skill level’ in ANZSCO is attained. The applicant has submitted that she had completed a Diploma of Applied Arts in India which is a three year diploma program, unlike Australian diplomas. She has requested that the Tribunal consider ‘deducting’ years from the “five years of relevant experience” referred to in ANZSCO. The Tribunal does not consider that it is appropriate for it to reduce the number of years of relevant experience referred to in the ANZSCO definition in this manner. It notes that the applicant has objected to what she referred to as subjective decision making in her case. In the Tribunal’s view, to arbitrarily reduce (or add) years of work experience based on the qualifications obtained by a visa applicant based on a comparison of years taken to complete the overseas qualification would further reduce the objectiveness of an assessment of employment. It has thus decided not to adopt this approach and will not be reducing the number of years of work experience required because the applicant holds a three year diploma qualification from India. It notes that even though the applicant claims that the duration of the diploma qualification from India is the same as the three year degrees in Australia, the AIM considered her qualifications and assessed them to be “the Australian equivalent qualification at the level of Diploma”.

28. The Tribunal will proceed to consider when she could be said to have had ‘at least five years of relevant experience’. The lead statement for the occupation of Advertising Manager as described in ANZSCO is ‘[p]lans, organises, directs, controls and coordinates the advertising and public relations activities within an organisation’.

29. It was submitted by the applicant at the hearing that previous employment as a Graphic Designer is relevant to her nominated occupation. She had previously indicated on her visa application form that it was not. The applicant said that as a graphic designer she was working under the advertising manager. She was a junior graphic designer from July 2004 to December 2004 and then a graphic designer from January 2005 to March 2005. The total period of employment as a graphic designer is 9 months. Having regard to the description of graphic designer in ANZSCO, it does not appear to the Tribunal to be relevant to the occupation of an Advertising Manager. A graphic designer ‘[p]lans, designs, develops and prepares information for publication and reproduction using text, symbols, pictures, colours and layout to achieve commercial and communication needs with particular emphasis on tailoring the message for the intended audience.’ While it considers that any relevance between these occupations is limited, the total period of the claimed employment is around 9 months.

30. By taking into account the 9 months of employment as a graphic designer, and her employment at Logik Design Studio (5 years, 5 months, 22 days) and Manba Finance (1 year, 9 months, 24 days), the applicant’s overseas work experience was for a period of around 8 years and 1 month. The applicant also provided details of employment from 25 September 2008 to 5 December 2011 at WNS Global Services as a ‘Senior Executive’ on her visa application form. This employment does not appear to have been considered by the AIM. As mentioned above, the applicant indicated that it was not relevant to the nominated skilled occupation in her visa application. In the description of duties, the applicant indicates that she undertook strategy and design for referral programs and conceptualised campaigns. There appears to be some relevance to the occupation. In any case, the majority of that period of employment overlaps with her self-employment at Logik Design Studio, which commenced 1 December 2008. By adding an additional 2 months of employment overseas, the total period would be 8 years and 3 months.

31. As the applicant did not hold the formal qualification referred to in ANZSCO of a bachelor degree of higher, the Tribunal has considered the number of months of overseas employment undertaken after she had five years of relevant work experience. The total number of months of claimed employment is around 39. The applicant had thus been employed outside Australia in her nominated skilled occupation for at least 36 months and is entitled to 5 points under this part.

    Part 6D.4 – Australian employment qualifications

32. 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.

33. The applicant is not claiming to have been employed in Australia as an Advertising manager or in closely related skilled occupation, and did not provide details of any such employment on her visa application form. She confirmed that she is not claiming points for this part at the hearing, and the Tribunal finds that she is not entitled to points under this part.

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

34. 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.

35. 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

36. 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.

37. 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

38. 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.

1. The applicant had provided evidence of being awarded a Diploma of Design in Visual Communication from UTS. On review, she provided evidence of completing a Bachelor of Design in Visual Communication from UTS. The applicant confirmed at the hearing that she had completed a bachelor degree at the end of 2016. However, as she met the requirements for the award of the bachelor degree after the time of invitation to apply for the visa, she cannot be awarded points for that educational qualification.

2. The Tribunal finds that, the time of invitation to apply, the applicant was awarded a diploma by an Australian educational institution; and is therefore entitled to 10 points.

   Part 6D.8 – Australian study qualifications

3. 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.

4. The applicant was not claiming to have undertaken two years of study in Australia at the time of invitation to apply, having only completed a diploma program at that time, and is not entitled to points under this part.

   Part 6D.9 – Credentialled community language qualifications

5. 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.

6. 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

7. 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

8. 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.

9. The applicant had included her husband in her visa application. However, no skilled occupation was nominated nor was there an assessment of his skills. The applicant has not claimed and, is not entitled to points, under this part.

   Part 6D.12 – State or Territory nomination qualifications

10. 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 was invited to apply for such a visa and is therefore entitled to 5 points under this part.

    Part 6D.13 – Designated area sponsorship qualifications

11. 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

12. 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  5 points

    6D.4 - Australian employment experience  0 points

    6D.5 - Aggregated employment  NA

    6D.6 - Australian professional year  0 points

    6D.7 - Educational  10 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  5 points

    6D.13 - Designated area sponsorship  0 points

    Total points  60 points

13. The applicant’s assessed score under the points system is therefore 60 points.

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

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

15. 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 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 not achieved the score stated in the invitation to apply for the visa.

    Conclusion

16. The applicant was of the view that the department had been unfair and subjective in their consideration of her application. From the information before the Tribunal, it appears that a check on employment was undertaken by the department and the applicant was given an opportunity to respond. The Tribunal referred to the outcome of the employment checks at the hearing, and the certification which was made in respect of that document, but noted that information from the employment checks had been set out in the letter to the applicant seeking her comments. The applicant had also referred to the officer who undertook the employment check by name, and that she had been provided with screenshots of the outcome of the check under the Freedom of Information process. In her letter following the hearing, the applicant referred to the department “not sharing all the information of [her] case with the [Tribunal]”, however it is unclear which aspect of her case she felt had not been shared. The applicant stated that she had made the application on the basis of the information available about the Skilled visa believing that she met the requirements, and felt that it was not clear that the total period of overseas work experience would be discounted based on the ANZSCO classification. The Tribunal has considered the matters and concerns raised but is required to apply the law in its determination and is not able to give her the benefit of the doubt as requested. The Tribunal has reassessed her claims and evidence against Schedule 6D and assessed her as being entitled to a maximum of 60 points. However, while it meets the pass mark it is less than the score in the invitation to apply for the visa.

17. As the applicant’s score is less than the score stated in the invitation to apply for the visa, the applicant does not satisfy cl.190.214. As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.

    DECISION

18. The Tribunal affirms the decision not to grant the visas.

    Wan Shum
    Member