Skill assessing authorities have no role to play in assessing work experience points

Skill assessing authorities can determine that they will not issue a positive skill assessment until a person has achieved a defined period of work experience. But skill assessing authorities have no role to play in the Migration Regulations in relation to work experience.

So often one sees skill assessments from skill assessing authorities, specifying that a person should be assessed as having X years of work experience or indeed nil work experience. They have absolutely no authority to do this. Fortunately this is recognised by the PAM which states:

“10.4 Employment must be skilled

10.4.1 Assessing periods of skilled employment

When assessing periods of skilled employment for the purpose of awarding points, the following must be taken into account:

  • the opinion of the relevant skills assessing authority on the period of skilled employment including the date on which they deemed the applicant skilled; and

  • the Australian and New Zealand Standard Classification of Occupations (ANZSCO) including any pre-requisite qualifications/work experience relevant to the claimed skilled employment; and

  • any other relevant information (such as employment records and references).

If the skills assessing authority’s opinion would result in the applicant being awarded less points than the applicant claimed in their EOI, then decision makers should consider the information in ANZSCO and apply the more beneficial outcome in determining when the applicant was working at a skilled level.

While having regard to the opinion provided by skills assessing authorities, decision makers also need to be satisfied with the bona fides of the supporting documents presented in making their decision to award points.

The regulations require only that an applicant is employed in a nominated skilled occupation for a particular period of time. The provision does not require the applicant to have skills of a particular standard during that period of employment. The decision maker can consider whether the applicant is undertaking at least some of the duties prescribed for the position in ANZSCO, for example, if a client is claiming employment as a carpenter, the tasks they are undertaking are those of a carpenter.”

Taking the carpenter example, the TRA ordinarily requires 3 years work experience before a positive skill assessment is issued for a carpenter. But if a person has a AQF Certificate IV (ANZSCO Skill Level 3) as a carpenter, the person is a carpenter and all work done after attaining the Cert IV is work experience for the purpose of calculating work experience points. Let’s look at Item 6D41 which states:

There is nothing in Item 6D41 which requires reference to a skill assessing authority. To determine if a person has been ‘employed’ in a skilled occupation, one goes to the ANZSCO to determine if the person can call him or herself a ‘carpenter’ while being employed. The skill assessing authority’s role comes from Reg 2.26B which states:

Reg 2.26B    Relevant assessing authorities 

Specifying relevant assessing authorities  

(1)  Subject to subregulation (1A), the Minister may, by an instrument in writing for this subregulation, specify a person or body as the relevant assessing authority for:

(a)  a skilled occupation; and

(b)  one or more countries;

for the purposes of an application for a skills assessment made by a resident of one of those countries. 

As can be seen the “relevant assessing authorities”, do not assess work experience points.

Further reg 2.26B(3) states:

Standards against which skills are assessed

(2)  The standards against which the skills of a person are assessed by a relevant assessing authority for a skilled occupation must be the standards set by the relevant assessing authority for the skilled occupation. 

There is nothing there about having a role in assessing work experience! Fortunately the PAM recognises this and states that if the ANZSCO determines a person is regarding as being a carpenter at an earlier period then the decision maker should “apply the more beneficial outcome in determining when the applicant was working at a skilled level.”

Note the key point in time in determining the employment points is at “the time of the invitation to apply” NOT  at the date of decision. But in this regard have a read of Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 686. That case will be subject of a separate case note in a future blog.

One other definition which is quite useful is the definition of being ‘employed’ for skilled visa purposes which is found in Reg 2.26AC(6):

“employed means engaged in an occupation for remuneration for at least 20 hours a week.” 

However this does NOT extend to other provisions in the Migration regulations and definitely does not apply to the Employer Nomination Scheme visas. Finally as a practice point, if one is advising employers, always ensure that the employer gives the correct title to an occupation. If possible the occupation should be exactly what is set out in the ANZSCO. Good luck with squeezing the most out of an applicant’s work experience. However take care with this provision:

190.214 & 189.224 

(1)  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.

Overcooking the points could therefore have disastrous consequences.

Allegra Boccabella