Some Practice Points


Overcooking the points

A client claims high points for work experience, in his or her expression of interest. The client is invited to apply, but Immigration trims the points down by 5 in assessing the visa application. This brings the applicant’s points down from 65 to 60. Immigration will want an explanation but generally if it is a question of genuine disagreement and interpretation then it will have no consequence on the visa application.  However if the applicant has been positively misleading then the applicant runs the risk of falling foul of Public Interest Criteria 4020 (the fraud provision).

Note that specifically for the skilled visa regime:

“employed means engaged in an occupation for remuneration for at least 20 hours a week.”[12]

Note the points test states:

Part 6D.3—Overseas employment experience qualifications


ItemAt the time of invitation to apply for the visa, the applicant …Number of points

6D31had been employed outside Australia in:


(a) the applicant’s nominated skilled occupation; or

(b) a closely related skilled occupation;

for a period totalling at least 36 months in the 10 years immediately before that time

56D32had been employed outside Australia in:


(a) the applicant’s nominated skilled occupation; or

(b) a closely related skilled occupation;

for a period totalling at least 60 months in the 10 years immediately before that time

106D33had been employed outside Australia in:


(a) the applicant’s nominated skilled occupation; or

(b) a closely related skilled occupation;

for a period totalling at least 96 months in the 10 years immediately before that time



These terms raise controversy. The important thing to note about a person being employed in a skilled occupation is that it is not necessary that the person be doing the skilled tasks for the whole time.  An example is an old Federal Court decision of Singh & Salindera v MIEA [1993] FCA 451; (1993) 44 FCR 495 (10.9.993).  The reasoning below is not about skilled visas as such but is about whether a position to be filled was ‘a position in respect of a highly skilled occupation’. Here an Indian dancer was employed full time but the time spent in performance at a theme park was about two or three short performances daily. The court held nevertheless that the position was for a highly skilled person even though the skill was used for a short part of the day.  Here is the court’s reasoning:

It is not necessary to show that the person will exercise the high skill associated with the formal training and experience during the whole working day. There are many occupations in which a highly skilled person spends a good deal of time doing routine work that a lesser skilled person could carry out equally well; but where it is essential to have a particular form of training in order to meet the exigencies of the job as they occur from time to time, perhaps only for a relatively small portion of the time. If it is necessary for the person to have the requisite skills in order to occupy the position, this is enough to satisfy the regulation. It is not necessary to show that the skills are called upon for a major proportion of the working day.

  1. Provided that it is found that the position is one where the necessary skill is required, it does not matter that a particular employee may have proved competent to do other work not requiring the specified high skill and may spend a good deal of his/her time on that work. The regulation is intended to look at the matter from the employer’s point of view. It envisages an employer who has a vacancy for a position requiring the possession of a particular skill. The questions then are whether or not the particular applicant was employed in that position because of his/her high skill; and, if so, whether he/she uses the skill in that position. If the answers to these questions are in the affirmative, it does not matter that the skill is only used during part of the working day.

This reasoning is apt for the definition of ‘employed’.


Reithmuller FM in De Ronde v MIMA [2004] FMCA 519 considered employed was ‘actively participating in or undertaking duties directly connected with the carrying out of the occupation concerned’

Attempts at fudging the employment history often comes to grief, see 0802933 Mrs Mi Ae Jeon [2010] MRTA 6 (4 January 2010).  See also 0909362 [2010] MRTA 2185 (5 October 2010) about a secondary school teacher failing in an attempt to pass off working as a teacher in an English language school as work as a secondary school teacher.  The term ‘closely related skilled occupation’ did not come to the rescue because the closely related occupation had to be a job on the skilled occupation list. In that case the teacher was just a private teacher in a language school and not a secondary or primary school teacher.  The writer’s opinion is that the  decision was quite harsh and perhaps ought to have been taken on appeal to court.

In Croney 071908806 [2008] MRTA 834 (8.9.08) it was established that the applicant was a cook but that her recent work experience was in a pizza shop hence the delegate found she was employed as a Fast Food Cook (ASCO 9932-11) which was not a skilled occupation rather than as Cook ASCO Code 4513-11 which is a skilled occupation.  Nevertheless the MRT reviewed the evidence and found for the applicant:

  1. As it is, the Tribunal considers that the.. visa applicant has submitted comprehensive evidence that she meets the ASCO Code requirements for Cook, particularly given her extensive experience as Chef for various hotels in England. While past experience cannot be taken into account in determining whether between 29 March 2006 and 29 March 2007, the first named visa applicant meets the legislative requirements, the Tribunal contends that the past experience cannot be completely overlooked in terms of demonstrating that her skills are commensurate with the ASCO Code as it is clear that the first named visa applicant is not embellishing claims about her current capacities and those at the time of application in terms of Cook.
  2. The delegate found “from the work reference you have provided, and information regarding the nature of the business sourced from the Internet, that the duties you performed in your position with Perfect Pizza most equate to a Fast Food Cook (ASCO 9932-11)”. The Tribunal concedes that on the basis of the initial reference by the Proprietor of Perfect Pizza, it is not unreasonable that the delegate may have come to the conclusion that the first named visa applicant’s occupation was in the preparation of Fast Food. A second more comprehensive reference has now been submitted which identifies in more detail and particularity the specific duties of the first named visa applicant at Perfect Pizza. This reference letter dated 14 November 2007, clearly shows that the first named visa applicant’s duties were varied, including supervising junior staff and the preparation of other food items apart from pizzas. While the Tribunal appreciates, the delegate’s concern, the Tribunal is satisfied that the duties performed by the first named visa applicant at Perfect Pizza were more in the way of general food preparation consistent with the occupation of Cook. The Tribunal finds, therefore, that the detail set out in this reference letter dated 14 November 2007, shows that the applicant was at Perfect Pizza undertaking the following tasks as required by ASCO Code 4513-11: examines food to ensure quality; regulates temperatures of ovens, grills and other cooking equipment; prepares and cooks food seasons food during cooking; portions food, places it in dishes, adds gravies or sauces, and garnishes; stores food in temperature controlled facilities; may plan menus and estimate food requirements; may prepare food to meet special dietary requirements; may train other kitchen staff and apprentices.
Barbara Davidson