Migration Regulations 1994 (Cth), ANZSCO 271311 and related ANZSCO occupations
PAM3, Procedural Instructions
General points test, Schedule 6D Migration Regulations 1994
and other matters
Work-in-progress; last updated, September 2025.
Legislation & Statutory Instruments referred to in this page
Migration Act 1958 (Cth): <https://www.legislation.gov.au/C1958A00062/latest/text>.
Migration Regulations 1994 (Cth): <https://www.legislation.gov.au/F1996B03551/latest/text>. For schedules 2 to 13, see Vol 3 <https://www.legislation.gov.au/F1996B03551/latest/text/3>.
Migration (LIN 19/051: Specification of Occupations and Relevant Assessing Authorities) Instrument 2019 (Cth): <https://www.legislation.gov.au/F2019L00278/latest/text>.
Mutual Recognition Act 1992 (Cth): <https://www.legislation.gov.au/C2004A04489/latest/text>.
Mutual Recognition (Queensland) Act 1992 (Qld): <https://www.legislation.qld.gov.au/view/html/inforce/current/act-1992-067>.
Legal Profession Act 2008 (WA): <https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_3558_homepage.html>.
Legal Profession Act 2007 (Qld): <https://www.legislation.qld.gov.au/view/html/inforce/current/act-2007-024>.
Legal Profession Uniform Law Application Act 2022 (WA): <https://www.legislation.wa.gov.au/legislation/statutes.nsf/law_a147341.html>.
[#] Migration Act 1958 (Cth); Migration Regulations 1994 (Cth)
[A] ANZSCO Solicitor 271311 v Barrister 271111 & Skills Assessments
No clear guidance from reported case law regarding the treatment of 'barristers and solicitors' in WA, ACT, SA, Tas & NT.
But see, Law Council of Australia's letter to Australian Statistician, 11 December 2023 <https://lawcouncil.au/publicassets/6cf9c304-b8ad-ee11-948e-005056be13b5/4469%20-%20S%20-%20ANZSCO%20Comprehensive%20Review.pdf>, archived at <https://perma.cc/F775-624X>: " ... The Law Council of Australia welcomes the opportunity to contribute to the consultation by the Australian Bureau of Statistics (ABS) on the Australian and New Zealand Standard Classification of Occupations (ANZSCO) Comprehensive Review. The Law Council acknowledges the contributions of the Law Society of South Australia and the Law Society of the Australian Capital Territory in the preparation of this submission ... The Law Council has reviewed the occupations within the industry-based focus area of ‘Legal services’, 1 and considers that the description of each occupation, including the indicative skill level, remains accurate to a fairly large extent ... Solicitor (271311) 23. The Law Council suggests that the description of ‘Solicitor’ 28 be broadened to reflect that solicitors can plead cases before civil, criminal and industrial courts and other tribunals.29 24. The Law Council also considers it may be appropriate for legal practitioners who are employed in-house to be specifically identified under the broader category of ‘Solicitor’ (Unit Group 2713), to recognise the distinct role of in-house legal practitioners in managing legal risk for their employer". -- cf definition of Barrister in the ANZSCO -- cf, occupational equivalence.
** But see, 'ANZSCO [Preliminary] Proposed Changes - Version 1.0' (Australian Bureau of Statistics, 17 June 2024) <https://consult.abs.gov.au/standards-and-classifications/anzsco-comprehensive-review-round-3/results/legalservices-preliminaryproposedchanges.pdf>, archived at <https://perma.cc/PT9M-5KFW>: "Barrister Main Tasks: • Receives briefs and verbal instructions concerning cases from solicitors, other specialist legal professionals and clients • Provides advice and written opinions on points of law • Confers with clients and witnesses in preparation for court proceedings • Draws up pleadings, affidavits, and other court documents • Researches statutes and previous court decisions relevant to cases • Outlines the facts to the court, calls and questions witnesses, and makes addresses to the court to argue a client's case • May draw up or settle documents ... Solicitor Main Tasks: • Interviews clients to determine the nature of cases and recommends appropriate legal action • Prepares cases by conducting investigations, undertaking research, arranging witness preparation and attendance, and giving notice of court actions • Represents clients in civil, criminal, and industrial courts and tribunals • Prepares and critically reviews legal documents between parties • Prepares wills • Provides advice on family, company, commercial, and property law, as well as partnerships and trusts • May act as trustee or guardian • May act as executor of clients' wills.".
> but see, Occupational Standard Classification for Australia (OSCA): <https://www.abs.gov.au/statistics/classifications/osca-occupation-standard-classification-australia/2024-version-1-0>, from 6 December 2024.
But see: PAM3:
> "The Tribunal notes that this is also appears to be the process contemplated by the Department’s Procedures Advice Manual (PAM3), which provide guidance to Departmental decision-makers: 110 Assessment against the nominated occupation in ANZSCO ... 110.2 For nominations made on or after 1 July 2010 Under regulation 2.72(10)(e)(iv), the qualifications and experience of the person nominated to fill the occupation, should be commensurate with the qualifications and experience specified: for the occupation in the relevant ANZSCO code or if there is no ANZSCO code for the nominated occupation, the occupation in the legislative instrument for the purpose of regulation 2.72(10)(aa). 110.3 Assessment ASCO/ ANZSCO or the instrument should be referred to as the principal source of information on the normal tasks or duties and skill requirements for occupations in Australia. ASCO/ ANZSCO skill level references represent the entry level skills required for a particular occupation. In ANZSCO the skill level is defined at the Unit Group (4 digit level). In some cases, a higher qualification or level of experience will be required to complete the full range of duties competently. When using ANZSCO as a reference, case officers should refer to the indicative skill level specified for the nominated occupation rather than the generic ANZSCO Skill Level. In some occupations (for example teachers, barristers and nurses) formal qualifications are mandatory to undertake the role and the applicant must provide evidence of holding these qualifications with the application. In other occupations, significant experience in performing the tasks of the nominated occupation at a competent level can be considered as equivalent to formal qualifications. In all cases, case officers must be satisfied that the applicant has the skills to be able to perform the nominated occupation. ASCO/ ANZSCO provides guidance as to the level of qualification required and/or the number of years of experience a person should have in order to be able to perform the occupation. However, when making their assessment case officers should be mindful that the qualifications and experience of the applicant must be relevant to the nominated occupation. For example, ANZSCO suggests that an architect should hold a bachelor degree or higher qualification. If an applicant was nominated as an architect and provided evidence of holding a Bachelor of Law degree, it would be inappropriate to grant the visa as completing a Bachelor of Law degree would not have provided the applicant with the skills required to design a building. On the other hand, ANZSCO suggests that a marketing specialist should also hold a bachelor degree or higher qualification. If an applicant was nominated as a marketing specialist and they held a bachelor degree in business or sales for example, these degrees would be relevant to the occupation of marketing specialist so the delegate could be satisfied that the applicant had the requisite skills. If an applicant is unable to demonstrate skills and experience in a range of tasks, officers should consider whether or not the applicant is able to attribute 100% of their skills and experience to one of the sub-set of tasks prescribed. Although it is more favourable from an employer’s perspective, for an applicant to possess a range of skills and experience that covers the breadth of tasks prescribed under the nominated occupation, it should not provide grounds for refusal of the applicant’s application. For example, if an applicant were to nominate an occupation listed under a “not elsewhere classified" heading, it would be unreasonable to consider that the applicant possesses skills and experience in every prescribed task. Officers should also consider that some applicants will be highly skilled yet specialised in a small range of tasks rather than the range of duties. As this program is designed to enable employers to meet skill shortages, this degree of specialisation is acceptable for applicants for the program. ... 111 Requesting applicants to provide evidence of skills, qualifications and employment background If there is insufficient detail provided by the applicant to satisfy officers that the applicant has the necessary skills, qualifications and employment background for the nominated occupation, officers may request the applicant to provide additional information. If officers require further information, they should specify the evidence that the visa applicant is required to provide. Based on the circumstances of the case this may include (but is not limited to): formal qualifications formal and/or on-the-job training work and/or relevant experience employment references a skills assessment for migration purposes - see section 131 Skilled migration skills assessments and ability to meet any relevant Australian registration or licensing requirements - see Qualifications and experience.": 1313376 [2015] MRTA 769, [16] <https://classic.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/MRTA/2015/769.html>.
> PAM3 - THE SUBCLASS 457 CATEGORIES: text <https://legend.online.immi.gov.au/migration/1994-2005/legend_2000_2005_m/legend_2005_m/legend_13_12_2005_m/legend_13_12_2005_mp/Pages/_document00000/_level%20100135/level%20200624.aspx>. -- "... 25.3 Skill threshold The minimum skills threshold - see regulation 1.20G(2) - requires all applicants to have the background and skills to perform the activities for which they have been nominated. Where doubts exist, the applicant can be asked to get a formal qualification assessment. If the applicant clearly does not have the minimum skills to undertake the duties of the approved nomination the visa must be refused. Officers should have regard to all the information provided by the applicant in their visa application in regard to their abilities, including formal qualifications, training, experience, special skills and other personal attributes. In some occupations eg teacher, barrister or nurse, formal qualifications are essential. However, in other occupations, formal qualifications can be considered as one aspect of the applicant's abilities and they may acquire the skill level required through on-the-job training and work experience.".
> "In relation to the requirements of paragraph 457.223(4)(da), the departmental policy guidelines in PAM3[9] provide: 110.2 For nominations made on or after 1 July 2010 Under regulation 2.72(10)(e)(iv), the qualifications and experience of the person nominated to fill the occupation, should be commensurate with the qualifications and experience specified: for the occupation in the relevant ANZSCO code or if there is no ANZSCO code for the nominated occupation, the occupation in the legislative instrument for the purpose of regulation 2.72(10)(aa). 110.3 Assessment ASCO/ ANZSCO or the instrument should be referred to as the principal source of information on the normal tasks or duties and skill requirements for occupations in Australia. ASCO/ ANZSCO skill level references represent the entry level skills required for a particular occupation. In ANZSCO the skill level is defined at the Unit Group (4 digit level). In some cases, a higher qualification or level of experience will be required to complete the full range of duties competently. When using ANZSCO as a reference, case officers should refer to the indicative skill level specified for the nominated occupation rather than the generic ANZSCO Skill Level. In some occupations (for example teachers, barristers and nurses) formal qualifications are mandatory to undertake the role and the applicant must provide evidence of holding these qualifications with the application. In other occupations, significant experience in performing the tasks of the nominated occupation at a competent level can be considered as equivalent to formal qualifications. In all cases, case officers must be satisfied that the applicant has the skills to be able to perform the nominated occupation. ASCO/ ANZSCO provides guidance as to the level of qualification required and/or the number of years of experience a person should have in order to be able to perform the occupation. However, when making their assessment case officers should be mindful that the qualifications and experience of the applicant must be relevant to the nominated occupation. ... [Tribunal emphasis]": 1412055 [2015] MRTA 802, [25] <https://classic.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/MRTA/2015/802.html>.
-> ASCO Dictionary: <https://www.abs.gov.au/ausstats/abs@.nsf/0/5C244FD9D252CFC8CA25697E00184D35>; 1st ed, <https://www.whatjobspay.com.au/doc/ASCO%20Dictionary,%20First%20Edition.pdf>.
> See also, N03/07303 [2005] MRTA 832 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2005/832.html>.
> "In relation to the requirements of paragraph 457.223(4)(da), the departmental policy guidelines in PAM3[34] provide: ... Assessment against the nominated occupation in ANZSCO Under regulation 2.72(10)(e)(iv), for nominations made on or after 1 July 2010, the qualifications and experience of the person nominated to fill the occupation, should be commensurate with the qualifications and experience specified: ... Nominations made before 1 July 2010 are covered by regulation 2.72(10)(d)(iv). When assessing this criterion, ANZSCO should be referred to as the principal source of information on the normal tasks or duties and skill requirements for the nominated occupation. In ANZSCO, skill level references represent the entry level skills required for a particular occupation. The skill level is defined at the Unit Group (4 digit level). In some cases, a higher qualification or level of experience will be required to complete the full range of duties competently. Officers should refer to the indicative skill level specified for the nominated occupation rather than the generic ANZSCO Skill Level. In some occupations (for teachers, barristers and nurses) formal qualifications are mandatory to undertake the role and the applicant must provide evidence of holding these qualifications with the application. In other occupations, significant experience in performing the tasks of the nominated occupation at a competent level can be considered as equivalent to formal qualifications. In all cases, officers must be satisfied that the applicant has the skills to be able to perform the nominated occupation. ANZSCO provides guidance as to the level of qualification required and/or the number of years of experience a person should have in order to be able to perform the occupation. However, when making their assessment officers should be mindful that the qualifications and experience of the applicant must be relevant to the nominated occupation ...": McMichael (Migration) [2017] AATA 390, [46].
[A.1] Skills Assessment - Solicitors and Barristers
VIC, Solicitor"6. Clause 189.212(1) requires that at the time of invitation to apply for the visa, the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation. For visa applications where the invitation to apply was given on or after 28 October 2013, this assessment cannot be one for a Subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, there are additional requirements relating to the currency of the assessment as at the time of invitation to apply for the visa. 7. ‘Relevant assessing authority’ means a person or body specified by the Minister in an instrument under r.2.26B of the Regulations (r.1.03). ‘Skilled occupation’ has the meaning given by r.1.15I of the Regulations (r.1.03). An occupation is a skilled occupation if: it is specified by the Minister in an instrument in writing 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. The relevant instrument for these purposes is Legislative Instrument IMMI 14/048. 8. IMMI 14/048 provides that the relevant assessing authority for the applicant’s nominated skilled occupation of Solicitor is the State Legal Admission Authority (SLAA). According to the Department’s website (http://www.immi.gov.au/Work/Pages/asri/solicitors/aspx) in Victoria this is the Council of Legal Education and Board of Examiners (http://www.lawadmissions.vic.gov.au), whose website provides that: ... 10. The delegate asserted that solicitors are required to provide evidence of admission to the legal profession in the admitting state or territory as the relevant skills assessment. Although the delegate acknowledged that the applicant had completed the necessary legal training to satisfy the skills requirements for admission, the admission had not taken place before 9 January 2015 which was the time of invitation to apply for the visa. 11. Although the delegate did not cite a reference in the Department’s Procedures Advice Manual 3 (PAM3), the Tribunal has had regard to the reference in PAM3 regarding “Suitable skills assessment” for Subclass 189 visas [at 4.1]. Whilst the reference specifically provides that for doctors evidence of full registration is a favourable skills assessment for this criterion, it is silent on the specific requirements for Solicitors. However, the Tribunal considers that even if it were not, to impose such a requirement in policy would be to superimpose a requirement in excess of that prescribed by the relevant regulation, which merely requires that at the time of invitation to apply for the visa the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation. ... 16. On the basis of this evidence, the Tribunal is satisfied that at the time of invitation to apply, the relevant assessing authority, the Council of Legal Education and Board of Examiners, which is the SLAA for Victoria, had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation of Solicitor (ANZSCO 271311).": 1504652 (Migration) [2015] AATA 3572 <https://jade.io/article/604712>.
Qld, Solicitor: Veerabhadra (Migration) [2019] AATA 2665 <https://jade.io/article/664417>.
VIC, Solicitor: "Clause 189.212(1) requires that at the time of invitation to apply for the visa, the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation. For visa applications where the invitation to apply was given on or after 28 October 2013, this assessment cannot be one for a subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, there are additional requirements relating to the currency of the assessment as at the time of invitation to apply for the visa. ‘Relevant assessing authority’ means a person or body specified by the Minister in an instrument under r.2.26B of the Regulations (r.1.03). ‘Skilled occupation’ has the meaning given by r.1.15I of the Regulations (r.1.03). An occupation is a skilled occupation if: it is specified by the Minister in an instrument in writing 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. The relevant instrument for these purposes is Legislative Instrument IMMI 16/060. If the assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification must have been obtained as a result of studying a registered course: cl.189.212(2). ‘Registered course’ is defined to mean a course of education or training provided by an institution, body or person that is registered, under the Education Services for Overseas Students Act 2000, to provide the course to overseas students (r.1.03). The Tribunal is satisfied that IMMI 16/060 lists Solicitor as a skilled occupation for the purposes of this visa subclass, and that the relevant assessing authority is listed as SLAA. According to the Department's website (http://www.immi.gov.au/Work/Pages/asri/solicitors/aspx), in Victoria this is the Council of Legal Education and Board of Examiners (http://www.lawadmissions.vic.gov.au). Having made enquiries of VLAB, the Tribunal is satisfied that the Council of Legal Education and Board of Examiners changed its title to VLAB on 1 July 2015, and that it remains the relevant SLAA for Victorian legal practitioners for the purposes of this visa application. From the material on the Department’s and Tribunal’s files, the Tribunal is satisfied that: the applicant was invited to apply for a subclass 189 visa on 9 March 2016 by the Department; the applicant lodged a subclass 189 visa application online on 28 April 2016 in which she nominated her skilled occupation as Solicitor and indicated that she had a suitable skills assessment for this occupation from the State Legal Admission Authorities (SLAA) dated 16 February 2016; the applicant received a letter issued 16 February 2016 to the applicant by the Victorian Legal Admissions Board (VLAB) confirming that her academic and practical legal training requirements satisfied the skills requirements for admission to the legal profession in Australia, and that she had applied to be admitted to the Supreme Court of Victoria on 22 March 2016. The letter does not state that it was issued for the purposes of a subclass 485 visa application and expresses no validity period; and the applicant provided a copy of this letter to the Department on 12 May 2016. From the material on the Department’s file, it is evident that the letter issued by VLAB on 16 February 2016 was issued on the basis that the applicant had completed a Bachelor of Laws (Graduate Entry) at Victoria University in Melbourne between 24 February 2014 and 22 August 2015 and a Master of Laws degree at the University of Melbourne between 27 February 2012 and 27 February 2013. The Tribunal is satisfied from the Department of Education and Training’s Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) website that these are registered courses. The Tribunal is further satisfied from the Department’s movement records that the applicant held subclass 573 (Higher Education Sector) student visas for the duration of the above courses. The Tribunal has had regard to the reference in the Department’s Procedures Advice Manual (PAM3) regarding “Suitable skills assessment” for subclass 189 visas. Whilst the reference specifically provides that for doctors, evidence of full registration is a favourable skills assessment for this criterion, it is silent on the specific requirements for Solicitors. However, the Tribunal considers that even if it were not, to impose a requirement in policy that applicants must be admitted to practise (as opposed to being eligible to be admitted) would be to superimpose a requirement in excess of that prescribed by the relevant regulation, which merely requires that at the time of invitation to apply for the visa the relevant assessing authority had assessed the applicant's skills as suitable for the applicant's nominated skilled occupation. The Tribunal is satisfied that the VLAB letter of 16 February 2016 is a positive skills assessment for the applicant as a Solicitor (regardless of whether she was not actually admitted to practise by the Supreme Court of Victoria until 22 March 2016). The Tribunal is further satisfied that the VLAB skills assessment was obtained prior to the applicant being invited to apply for the subclass 189 visa on 9 March 2016, and remains valid. ...": 1607515 (Migration) [2016] AATA 4637.
TAS, Solicitor: "Suitable Skills Assessment Clause 189.212(1)(a) requires that at the time of invitation to apply for the visa, the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation. ‘Relevant assessing authority’ means a person or body specified by the Minister in an instrument under r.2.26B of the Regulations (r.1.03). ‘Skilled occupation’ has the meaning given by r.1.15I of the Regulations (r.1.03). An occupation is a skilled occupation if: it is specified by the Minister in an instrument in writing 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. The relevant instrument for these purposes is Legislative Instrument IMMI 14/048. IMMI 14/048 provides that the relevant assessing authority for the applicant’s nominated skilled occupation of Solicitor is the State Legal Admission Authority (SLAA). According to the Department’s website (http://www.immi.gov.au/Work/Pages/asri/solicitors/aspx) in Tasmania this is the Board of Legal Education (info@taslawsociety.asn.au). The delegate noted that the applicant had submitted a letter from the Board of Legal Education Tasmania, dated 31 July 2014, as evidence of her skills assessment for the nominated position of Solicitor. The delegate observed that the letter refers to the fact that the applicant’s admission hearing was scheduled for 22 August 2014. The delegate asserted that for the applicant’s nominated skilled occupation of Solicitor, evidence of admission to practice law in the relevant state or territory is a suitable skills assessment. Although the delegate acknowledged the letter also states that the applicant’s academic and practical legal training qualifications meet the requirements for admission to the legal profession in Tasmania, the delegate considered that this document was not evidence of the applicant’s admission to practice law in Tasmania. On that basis, the delegate concluded that the Board of Legal Education Tasmania letter was not a suitable skills assessment for the purposes of cl.189.212(1). The Tribunal has had regard to the reference in the Department’s Procedures Advice Manual 3 regarding “Suitable skills assessment” for Subclass 189 visas [at 4.1]. Whilst the reference specifically provides that for doctors evidence of full registration is a favourable skills assessment for this criterion, it is silent on the specific requirements for Solicitors. However, the Tribunal considers that even if it were not, to impose such a requirement in policy would be to superimpose a requirement in excess of that prescribed by the relevant regulation, which merely requires that at the time of invitation to apply for the visa the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation. In this instance, the applicant’s letter, dated 31 July 2014, from the Board of Legal Education Tasmania states: ...I confirm that your academic and practical legal training qualifications meet the requirements for admission to the legal profession in Tasmania in accordance with the Legal Profession (Board of Legal Education Rules) 2010... On the basis of this evidence, the Tribunal is satisfied that at the time of invitation to apply, the relevant assessing authority, the Board of Legal Education Tasmania, which is the SLAA for Tasmania, had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation of Solicitor (ANZSCO 271311).": 1418279 [2015] MRTA 187.
NSW, Solicitor: "In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act. The issue in this case is whether the applicant’s skills had been assessed as suitable by the relevant assessing authority. When making the application the applicant had nominated the occupation of Solicitor (ANZSCO 271311). That occupation is a skilled occupation set out in Legislative Instrument IMMI 11/068. The relevant assessing authority is specified as the State Legal Admission Authority . The applicant provided to the Tribunal a copy of the skills assessment advice, issued by the Legal Professional Admission Board on 1 March 2011, indicating that the applicant had been successful in the assessment of her skills by the LPAB for the occupation of a Lawyer / Solicitor. The Tribunal finds on the basis of this evidence that the applicant’s skills have been assessed as suitable by the relevant assessing authority, a State Legal Admission Authority , for the nominated occupation of a Solicitor (ANZSCO 271311). Therefore, the applicant satisfies the requirements of cl.485.221(1). As the assessment advice does not indicate on what basis the assessment was made, the Tribunal cannot find that the skills assessment was made on the basis of a qualification obtained in Australia. The Tribunal makes no findings with respect to cl. 485.221(2).": 1204825 [2012] MRTA 1573.
Queensland & NSW, Solicitor: "Department of Immigration information lists the assessing authorities and address for skilled occupation. At page 10 of the document it states: State Legal Admissions Authority (SLAA) If your nominated occupation is legal practitioner you must first make application for admission as a barrister and/or solicitor to the State Legal Admission Authority in the relevant state or territory in which you intend to settle and practice. When you have been accepted, you do not need any other skills assessment for your skilled, migration application.[1] For NSW it states for: New South Wales -The Professional Services Officer, Legal Practitioners Admission Board.[2] The Tribunal conducted a web search for information on admission requirements for NSW solicitors, which showed the following: NSW applicants (first admission in Australia) Admission First-time admittees should apply for admission to the Supreme Court of NSW via the Legal Profession Admission Board (LPAB), using the forms on their website. For any enquiries call the LPAB on (02) 9392 0300 or email ag_lpab@agd.nsw.gov.au[3] ... On the evidence before the Tribunal, the applicant nominated the occupation of Legal Practitioner - Solicitor which is a skilled occupation specified in IMMI 10/079. For that occupation, the relevant assessing authority specified in IMMI 10/079 is the State Legal Admission Authority (SLAA). The applicant provided a skills assessment for the Queensland Legal Practitioners Admissions Board, which is the State Legal Admission Authority for Queensland dated 9 September 2008. The skills assessment states the applicant is not eligible for admission to the legal profession in Queensland as he needed to complete his practical training and suitability and other associated requirements as well as certain procedural and administrative tasks. In considering the skills assessment from the Queensland State Legal Admission Authority the Tribunal finds the applicants skills were assessed as not suitable. However the applicant has since been admitted to NSW legal profession in April 2010. The applicant has not provided a skills assessment directly from the relevant assessing authority, being the NSW Legal Admission Authority . However, the Tribunal notes from its own research that the State Legal Admission Authority in NSW is the Legal Practitioners Admission Board and to be admitted as a solicitor in NSW, one needs to apply for admission from the Legal Profession Admission Board. The address and contact details for the Legal Practitioners Admission Board and the Legal Profession Admission Board are the same. The Board also confirmed with the Tribunal that “Practitioners” and “Profession” were used interchangeably and they were the one and same Admissions Board The Tribunal accepts that the applicant could not have been admitted to the NSW Supreme Court as a solicitor unless he had satisfied the admission requirements of Legal Profession Admission Board. The Tribunal also notes from the Immigration information sheet about assessing authorities that when one has been admitted to practice “you do not need any other skills assessment for your skilled, migration application.”[4] Therefore the Tribunal finds that at the time of decision, the skills of the applicant have been assessed by the relevant assessing authority as suitable for that occupation. The Tribunal is satisfied that the applicant meets cl.485.221(1). The applicant provided to the Tribunal evidence that he completed the Bachelor of Laws and Bachelor of International Relations at Bond University between January 2005 and 16 August 2008. Electronic records before the Tribunal indicate that during that period the applicant was the holder of a student visa. Therefore, the Tribunal finds that the assessment was made on the basis of a qualification obtained in Australia whilst the applicant was the holder of a student visa. As the applicant’s skills assessment was obtained on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification must be as a result of studying a registered course (cl. 485.221(2)). According to the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and information obtained from CRICOS, Bond University was registered to provide these registered courses at the relevant time. Hence, the Tribunal is satisfied that the applicant meets cl485.221 (2). For the reasons given above, the Tribunal finds that the applicant satisfies cl.485.221.": 0903940 [2011] MRTA 389.
ANZSCO Skill Level
"[30] The nominated occupation is that which has been nominated by the visa applicant’s business sponsor, being the occupation which has been approved under s 140GB of the Act: cl 457.223(4)(a). In the present case, Ms Sharma’s business sponsor nominated an occupation by reference to a six digit “ANZSCO code” as r 2.72(10)(e)(iv) of the Regulations permitted or required. It seems to me that in cases where the nominated occupation has been identified by a six digit ANZSCO code, it is not only permissible for the Tribunal to have regard to information contained in the ANZSCO but necessary that it do so for the purposes of identifying the tasks to be performed by a person in that occupation. [31] The ANZSCO is structured in a way that provides general information in respect of a unit group of occupations (given a four digit code), and more particular information in respect of specific occupations falling within the unit group (each of which is given a six digit code). In the present case, and at the relevant time, the unit group with the code 3322 had just one occupation falling within it, that of “PAINTING TRADES WORKER” (code 332211). [32] The tasks required of that occupation are not disputed. In determining the skills, qualifications and employment background necessary to perform the tasks, it was permissible for the Tribunal to have regard to the information appearing under the heading “Indicative Skill Level”. Importantly however, that part of the ANZSCO does not purport to state what is “necessary” to perform the tasks of the occupation. Rather, the ANZSCO gives an indication that “most” occupations in the unit have “a level of skill commensurate with” the qualifications and experience then listed. The ANZSCO indicates a skill level applicable to the occupation and provides some guidance as to how skills at that level can be attained. [33] It follows that it would constitute an error for the decision-maker to construe or use the ANZSCO as if it laid down an inflexible checklist for the skills, qualifications and employment background necessary to perform the nominated occupation.": Sharma v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1708, [30]-[33].
"[20] The ANZSCO provides as follows in a section entitled ‘Conceptual Basis of the ANZSCO’: SCOPE OF THE CLASSIFICATION The scope of ANZSCO is all occupations and jobs in the Australian and New Zealand labour markets undertaken for pay or profit, including jobs occupied by people working for themselves. ANZSCO is not designed to cover work not undertaken for pay or profit, for example voluntary work. However, this does not preclude ANZSCO from describing such activities. … OVERVIEW OF ANZSCO STRUCTURE The structure of ANZSCO has five hierarchical levels — major group, sub-major group, minor group, unit group and occupation. The categories at the most detailed level of the classification are termed ‘occupations’. These are grouped together to form ‘unit groups’, which in turn are grouped into ‘minor groups’. Minor groups are aggregated to form ‘submajor groups’ which in turn are aggregated at the highest level to form ‘major groups’. … UNDERLYING CONCEPTS As noted in Conceptual model, the framework adopted for ANZSCO is based on the concepts of ‘job’ and ‘occupation’. The concept of ‘occupation’ is based on the concepts of ‘skill level’ and ‘skill specialisation’. Understanding these concepts is fundamental to understanding ANZSCO. These concepts are defined in the following sections. The concept of job A ‘job’ is defined as a set of tasks designed to be performed by one person for an employer (including self-employment) in return for payment or profit. Individual persons are classified by occupation through their relationship to a past, present or future job. Any particular job will typically involve an individual working for a particular employer and undertaking a particular set of tasks. People working for themselves are considered as having a job and belonging to the labour force. The concept of occupation The categories at the most detailed level of the ANZSCO structure are called ‘occupations’. An ‘occupation’ is defined as a set of jobs that require the performance of similar or identical sets of tasks. As it is rare for two actual jobs to have identical sets of tasks, in practical terms, an ‘occupation’ is a set of jobs whose main tasks are characterised by a high degree of similarity. The similarity of tasks is defined in ANZSCO as a function of the level and specialisation of skill required to perform those tasks. Skill is defined as the ability to competently perform the tasks associated with an occupation. It follows that ANZSCO classifies occupations according to two criteria — skill level and skill specialisation. The concept of skill level In ANZSCO, skill level is defined as a function of the range and complexity of the set of tasks performed in a particular occupation. The greater the range and complexity of the set of tasks, the greater the skill level of an occupation. Skill level is measured operationally by: •the level or amount of formal education and training •the amount of previous experience in a related occupation, and •the amount of on-the-job training required to competently perform the set of tasks required for that occupation. In general, the greater the range and complexity of the set of tasks involved, the greater the amount of formal education and training, previous experience and on-the-job training required to competently perform the set of tasks for that occupation. Formal education and training refers to the level and amount of education and training required for competent performance of the tasks required in an occupation. It is measured in terms of educational qualifications as set out in the Australian Qualifications Framework (AQF) and the New Zealand Register of Quality Assured Qualifications (NZ Register). Details of the AQF and the NZ Register, as they were at the time of the development of ANZSCO, can be found at Appendixes B and C, respectively. Previous experience refers to the time spent gaining work experience in related occupations or activities required for the competent performance of the tasks in an occupation. It is measured in months or years. On-the-job training refers to the amount of training required after commencing work in an occupation for competent performance of the tasks in that occupation. It is measured in months or years, and may be undertaken at the same time as formal training.": Dhimal v Minister for Immigration & Border Protection [2016] FCCA 1094, [20].
"[36] In Talha, with respect to the purpose of the ANZSCO Code, the Full Court said this (at [17]–[23]): 17.In view of its central significance in the present case, it is desirable to describe the relevant features of the ANZSCO Code. “ANZSCO” is an acronym for Australian and New Zealand Standard Classification of Occupations, 1st Edition (“the ANZSCO Code”). The ANZSCO Code replaced the previous ASCO directory. All occupations and jobs in the Australian and New Zealand labour markets which are undertaken for pay or profit, including jobs occupied by people working for themselves, are classified in the ANZSCO Code. The introductory section of the ANZSCO Code explains the concept of “a job” as meaning: …a set of tasks designed to be performed by one person for an employer (including self-employment) in return for payment or profit. Individual persons are classified by occupation through their relationship to a past, present or future job. 18.“Occupation” is defined in the ANZSCO Code as “a set of jobs that require the performance of similar or identical sets of tasks”. 19.The introductory section of the ANZSCO Code also explains how occupations are classified. Occupations are classified according to their attributes and are grouped on the basis of their similarity into successively broader categories for statistical and other types of analysis. The occupations are then organised or classified into progressively larger groups on the basis of their similarities in terms of both skill level and skill specialisation. Details of the various hierarchies or groups are provided. “Occupation” is the most detailed level of classification. Occupations are distinguished from other occupations in the same unit group on the basis of detailed skill specialisation. 20.The notes explain that the classification of occupations is done according to two criteria, namely skill level and skill specialisation. “Skill level” is defined as a function of the range and complexity of the set of tasks performed in the particular occupation and is measured operationally by the level or amount of formal education and training, the amount of previous experience in a related occupation, and the amount of on-the-job training which is required competently to perform a set of tasks required for the occupation. Occupations are divided into five different skill levels. The highest skill level is Skill Level 1, which is defined as a level of skill commensurate with a bachelor degree or higher qualification, however, at least five years of relevant experience may substitute for the formal qualification. 21.The concept of “skill specialisation” is defined in the ANZSCO Code as a function of: •field of knowledge required; •tools and equipment used; •materials worked on; and •goods or services produced or provided. 22.It is important to understand the structure of the ANZSCO Code. It is divided into five “hierarchical levels”. Jobs are described at the most detailed level of classification as “occupations”. “Occupations” are then grouped together at a higher level of granularity to form “unit groups”, which in turn are grouped into “minor groups”. Minor groups are then aggregated to form “sub-major groups”, which in turn are aggregated at the highest level of granularity to form “major groups”. Significantly, in many cases, differing tasks are described at various levels of the hierarchy. 23.It should also be noted that the introductory section of the ANZSCO Code contains the following material as to its purposes: This publication is a reference document intended to provide a detailed account of the content and structure of ANZSCO and to assist the interpretation of statistics classified to it. It is not intended as a means of assigning information about particular jobs to ANZSCO classes. Care needs to be taken when assigning information about particular jobs to ANZSCO classes because the same job titles can be used in different industries to describe different occupations (eg business analyst). Additionally, the titles used in ANZSCO are not an exhaustive list of all titles used by people to describe an occupation (eg brickie).": Bhaskar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FEDCFAMC2G 320, [36].
NZ Barrister and Solicitor of the High Court of NZ -- Solicitor ANZSCO: "[48] Immigration New Zealand also appears to have accepted that the appellant was working in an occupation capable of being assessed as skilled, given that it raised no concerns about her position being a substantial match to that of Solicitor under the relevant ANZSCO classification. Her present employer regards her as a responsible and effective employee.": RQ (Skilled Migrant) [2018] NZIPT 204515. -- no opinion expressed as to whether also equivalent to ANZSCO barrister.
LPAB, Qld: "Legislative provisions pursuant to the Legal Profession Act 2004 came into effect in Queensland as from 1 July 2004 resulting in a ‘fused’ legal profession as part of a move away from the traditional English model of a profession divided between ‘barristers’ and ‘solicitors’.... In Queensland, applicants are admitted as a lawyer on an Order made by the Supreme Court which, under the Act and Rules, is the admitting authority. The role of the Board includes making a recommendation to the Supreme Court in respect of each application in the form of a Certificate of Compliance with the Rules. The Board does NOT approve admission to the legal profession nor can it be described as the ‘admitting authority’. It is inappropriate for the Board to pre-empt any decision of the Court in relation to admission to the legal profession ... ": 'Overseas Legal Qualifications' (LPAB) <https://www.qls.com.au/getattachment/05dd6014-4f3c-417f-9498-7d0b15098995/admission-information-overseas-qualifications-september-2023-.pdf>, archived at <https://perma.cc/W62P-FJ9D>.
Barrister, overseas - skills assessment by Qld Bar Association, Board: Ditchburn, Julia Lisa Mandy [2003] MRTA 4563 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2003/4563.html>.
BUT SEE, as of 2019 and modified 2022: Migration (LIN 19/051: Specification of Occupations and Assessing Authorities) Instrument 2019 (Cth) <https://jade.io/article/637334>, which state: "153 barrister 271111 a legal admissions authority of a State or Territory 154 solicitor 271311 a legal admissions authority of a State or Territory".
UWA GDLP, CRICOS: "The Tribunal notes that the delegate for the department was not satisfied that the applicant’s GDLP was an eligible qualification for the Graduate Work Stream. The Tribunal finds that the applicant’s GDLP is a ‘registered course’ for the purpose of r.1.15F and the Education Services for Overseas Students Act 2000 with CRICOS number 013804A": Mavunduse (Migration) [2019] AATA 5078, [13].
?Marketing Solicitor: Staltari, Lorna [2003] MRTA 6689 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2003/6689.html>.
Barristers and Solicitors:
> "There had been a problem in relation to persons who were 'barristers and solicitors' in other States seeking to be admitted in Queensland purely as barristers, without the appropriate experience and without attending the professional requirements and training for barristers under the Barristers Admission Rules 1975 (~ld).~~ Interstate practice is now addressed under the 'travelling' provisions of the 2004 Act ... 77 Re Lavery and the Registrar of the Supreme Court of Queensland (No 2) (1996) 43 ALD 13; see also the decision of the Queensland Supreme Court Queensland Law Society v Sande (No 2) [I9981 1 Qd R 273. 78 Legal Profession Act 2004 (Qld) ss 74-78,230-242.": Michael White, 'The Development of the Divided Legal Profession in Queensland' (2004) 23 University of Queensland Law Journal 296, 307 <https://classic.austlii.edu.au/au/journals/UQLawJl/2004/25.pdf>.
> Re Lavery and Registrar of the Supreme Court of Queensland (No 2) (1996) 43 ALD 13, headnotes: "The tribunal then considered the merits of the decision under review. It examined in detail the provisions of the Legal Practitioners Act (NT) relating to admission to practice as a legal practitioner and the entitlement that flowed from that admission. It then examined the history and effect of the equivalent provisions in the legislation that had dealt with the admission to legal practice of persons in Queensland. It concluded that in the Northern Territory there was only one profession or occupation for which a person may be registered if wishing to practise law. In Queensland there are two such professions and they are distinct. A comparision for the determination of equivalence could not be made between the occupation of legal practitioner in the Northern Territory and the occupation of barrister and solicitor in Queensland because such an occupation did not exist. The decision of the respondent to refuse admission of the applicant as a barrister and solicitor was therefore correct. It was not necessary for the tribunal to express an opinion on the question whether the applicant could seek admission as a solicitor in Queensland.". See also, "(48) It seems to us that it is important to answer this question before we can determine whether or not there is an equivalent occupation in Queensland. Mr Lavery's notice dated 6 September 1995 stated that he was “admitted as a legal practitioner, that is as a barrister and solicitor, of the Supreme Court of the Northern Territory of Australia” (T documents, p 22). On the basis of the Master's Certificate issued on 24 August 1995, we are satisfied that Mr Lavery was admitted as a legal practitioner of the Supreme Court of the Northern Territory on 4 December 1989. Also on the basis of that certificate, we are satisfied that his name remains on the roll of legal practitioners of that court and has never been removed from it. We also find that his right to practise in the Northern Territory has not been cancelled or suspended. (49) What is a “legal practitioner” in the Northern Territory? A legal practitioner is defined in the Legal Practitioners Act (NT) (the LP Act). The general effect of that definition is that a person is a legal practitioner if his or her name is on the Roll of Legal Practitioners of the Supreme Court of the Northern Territory (the NT Roll) (LP Act, s 6 and Legal Practitioners Rules (the LP Rules), r 3). On the NT Roll is entered the name of each person admitted as a legal practitioner of the Supreme Court of the Northern Territory (r 3(1)(a)). (50) A person other than a legal practitioner may not hold him or her self out to be a legal practitioner. Furthermore, he or she may not hold him or her self out as qualified to perform any functions of a legal practitioner. (LP Act, s 131(1)) Certain documents, such as a will or an instrument creating or regulating rights between persons in relation to property or legal proceedings, may not be drawn by a person other than a legal practitioner (LP Act, s 132(1)). (51) The qualifications, requirements and procedures to be followed for admission to practise are regulated by the LP Rules (LP Act, s 11(1)). Part 3 of those rules regulate the admission of legal practitioners. Where admission is sought by a person already admitted in another Australian jurisdiction, no distinction is drawn between those legal practitioners who may have been admitted as barristers, those who may have been admitted as solicitors, those who may have been admitted as barristers, solicitors, proctors and attorneys or those who may have been admitted in some other way as legal practitioners. Provided a person meets the academic and other standard set out in the LP Rules, he or she may be admitted as a legal practitioner. (52) On admission as a legal practitioner, no distinction is to be found in the LP Act or the LP Rules (or, indeed in any Northern Territory legislation that we have searched) between the activities that may be undertaken by a person who wishes to practise his or her profession as if he or she were solely a barrister and those that may be undertaken by a person who wishes to practise his or her profession as a solicitor, proctor or attorney. Although the term “legal practitioner” is not defined in the LP Act in more specific terms than those used in s 6, it is arguable that all such persons come within the term “legal practitioners” and not simply those who may be described as “barristers” or “solicitors” as Mr Lavery sought to do in his notice of 6 September 1995. This is apparent from the history of the development of the legal profession in England. That history, including the separate development of various classes of legal practitioners, is summarised in the opening chapter of Harrison's Law and Conduct of the Legal Profession in Queensland (2nd ed, GN Williams J, 1984). That history is reflected in the legislation of other States, such as South Australia. Section 5 defines a legal practitioner to mean a barrister and solicitor and a solicitor to include a proctor and attorney. What is the occupation (or the occupations if more than one) for which a person practising law may be registered in Queensland? (55) This question is best answered by first looking at the historical development of the legal profession in Queensland. As much of the present State of Queensland originally formed part of the colony of New South Wales (Letters Patent and Commission dated 2 April 1787 and granted to the Governor of New South Wales — Warrant for the Charter of Justice, HRA Series 1V, vol 1, 6–12), it follows that the Australian Courts Act 1828 (9 Geo 4, c 83) applied to Queensland. Section 16 of that Imperial Act provided that the judges of the Supreme Court of New South Wales could make rules regarding “… the admission of attornies, solicitors, and barristers, …” The Barristers Act 1848 (11 Vic. No 57) (the Barristers Act) provided for the creation of a board to approve the admission of those properly qualified for admission as barristers. (56) Following the establishment of Queensland as a colony separate from New South Wales, the matter of admission came to be governed by the Supreme Court Act 1867 (31 Vic No 23) (the 1867 Act). That legislation provided that the Supreme Court of Queensland and its judges would be held to have always had within the colony of Queensland all the powers, authorities and jurisdiction of the Supreme Court of New South Wales and its judges: s 34. (57) Under s 40 of the 1867 Act: Any attorney, solicitor or proctor of good repute in his profession having been three years in actual practice in Great Britain or the colony who shall pass the examination in classics or mathematics prescribed for persons seeking admission to the bar or who shall have a certificate of honour or other academical distinction in classics mathematics or law from any university or college within the British dominions may upon motion in open court be called and admitted a barrister-at-law. Provided that when so called and admitted he shall cease to practise as an attorney solicitor or proctor and shall be struck off the Roll of the Supreme Court … (58) To this point in the history of Queensland, there appears to have been a division between the person wbo was an attorney, solicitor and proctor and the person who was a barrister. Lest we appear to have overlooked the use of the male pronoun in that part of the section which we have quoted, we note that, until the Legal Practitioners Act 1905 (the 1905 Act), a woman could not be admitted as a “… barrister, solicitor, or conveyancer, as the case … [might] be” (s 2). The very language of s 2 of the 1905 Act suggests a division among the classes of legal practitioner to which it referred but we shall return to that later in these reasons. ... (76) It is apparent from this summary of the statutory provisions affecting the legal profession that there is a division between what we will for the moment call the “office” of a barrister and that of a solicitor. The admission (ie the registration) for each is entirely separate from the other. A person may not be “registered” for both at the same time. (77) The functions of the two “offices” are a different matter. In relation to those functions, it can be said that there is a blurring of the line between the two. This is particularly as a result of the right of audience given to solicitors as a result of the 1973 Act (see para 71 above) and in other legislation such as the Justices Act 1886 (s 72), the District Courts Act 1967 (s 52) and the Magistrates Courts Act 1921 (s 18). Despite the blurring, it can be said that the barrister's main function is that of advocacy and, on appropriate instructions, the preparation of work, such as pleadings and affidavits, in connection with litigation. ... May Mr Lavery be registered as a barrister and solicitor in Queensland? (78) This question is best answered by returning to the specific question we must consider in light of the provisions of s 29(1) — are the activities of the occupation of a legal practitioner for which Mr Lavery may be registered in the Northern Territory substantially the same as the activities of an occupation for which Mr Lavery may be registered in Queensland? (79) The Act does not define the meaning of “occupation” but it would seem from the context of the legislation that it should be given its ordinary meaning ie an occupation is: … What a person is (habitually) engaged in, esp to earn a living; a job, a business, a profession; a pursuit, an activity …” (The New Shorter Oxford English Dictionary). (80) In the Northern Territory, there is, generally speaking, only one profession, pursuit or activity (ie occupation) for which a person may be registered if he or she wishes to practise law. We say “generally speaking” for we are aware that a notation may be added against the name of a person on the Roll of Legal Practitioners so that he or she may practise only as a barrister. Whether or not this amounts to “registration” within the meaning of the Act is not something which we must decide. In Queensland, there are clearly two such professions, pursuits or activities (ie occupations) and it is quite clear from the historical context and the current legislative provisions that the two are quite distinct. A person may not be admitted and so on the roll (ie registered) for both at the same time. (81) Nothing in s 29(1) or in the Act generally requires that there may be a comparison between an occupation in the first state and an amalgamation of occupations in the second. Section 29(1) speaks clearly of “an occupation” in the first and “an occupation” in the second [Emphasis added]. That means that the comparison must be between the occupation of a legal practitioner in the Northern Territory and an occupation of a barrister in Queensland. Having done that, the comparison must then be made with the occupation of a solicitor in Queensland. The comparison cannot be made between the occupation of a legal practitioner in the Northern Territory on the one hand and the occupation of a barrister and solicitor in Queensland on the other for such a fused occupation does not exist. (82) Only once the occupations have been identified in this way can there be a comparison of the activities authorised to be carried on under each registration. Once that comparison is made and regard is had to the extensive right of audience given to solicitors in Queensland, it may well be that registration as a legal practitioner in the Northern Territory is equivalent to registration as a solicitor in Queensland. We do not, however, need to decide that point in this case and we do not express any concluded view. ..."
> "(23) The applicant stated that the respondent's approach would mean that people with less qualifications and experience than himself would be entitled to practise as solicitors with unrestricted practising rights in the Australian Capital Territory while he would be denied this right. He submitted that the substantial activities must be looked at and the respondent's contentions raise an artificial barrier which mutual recognition aims at overcoming. The applicant stated that equivalence of occupation should be determined by the substantial activities of the occupations, not by title. ... (28) The tribunal stated at the outset that the only issue which it may consider is the applicant's entitlement to registration under the Mutual Recognition Act 1992. Lockhart J in Sande v Registrar, Supreme Court of Queensland (1994) 33 ALD 713 ; 134 ALR 560 at 565 stated that the Mutual Recognition Act 1992 must be applied in a practical, commonsense manner and regard must be had to the substance of the matter and the substantial equivalence of occupations. Section 17(1) of this Act clearly requires registration for an equivalent occupation. The tribunal accepts that the threshold question is to ask for what occupation is the applicant registered in the first state. This occupation must then be compared to that for which he seeks registration in the second state. In Queensland the applicant is registered for the occupation of barrister. In New South Wales the applicant has been issued with a restricted practising certificate as a solicitor. The applicant is therefore prima facie entitled to a restricted practising certificate as a solicitor in the Australian Capital Territory, which is what he has been granted. He is also entitled to set up practice as a barrister at the independent bar of the Australian Capital Territory. (29) Section 29(1) of the Act states that an occupation for which persons may be registered in the first state is taken to be equivalent to an occupation for which persons may be registered in the second state if the activities authorised to be carried out under each registration are substantially the same. The tribunal is unable to find that the activities authorised to be carried out by a barrister in Queensland are substantially the same as the activities authorised to be carried out by a solicitor in the Australian Capital Territory. The respondent made submissions as to the work he undertook as a barrister in Queensland. He summarised this as being mainly advocacy work, including receiving prepared briefs, arranging appointments with clients to provide legal opinion and advice and undertaking research. He stated that he also undertook duty lawyer work at courts. However, the applicant did not make any submissions as to the activities authorised to be carried out by a solicitor with an unrestricted practising certificate in the Australian Capital Territory. The respondent did not make submissions on the specific activities authorised to be carried out by either of these occupations other than the different categories of admission that exist. The tribunal feels that it cannot be said that the activities authorised to be carried out by the two occupations are substantially similar. To begin with, the legal profession in Queensland is divided, whereas admission to the legal profession in the Australian Capital Territory is as a barrister and solicitor. A solicitor in the Australian Capital Territory may on occasions undertake advocacy work and appear before courts and tribunals, but a barrister is not ordinarily authorised to undertake the substantive work of a solicitor. There is some scope for overlap between the two occupations, however one cannot say that there is substantial equivalence. The applicant contends that the tribunal should adopt the reasoning of Deputy President McMahon in Re Cleary , above, namely that in defining the relevant occupation one should look at the activities of the occupation rather than the legal structure within which the occupation operates. The tribunal adopts this approach, but concludes that the activities authorised to be undertaken by a solicitor in the Australian Capital Territory and a barrister in Queensland are substantially different. ... (31) The applicant's New South Wales registration does not assist him in this matter as he is not fully registered in New South Wales either for the occupation of practising barrister or for the occupation of practising solicitor. The applicant has been registered by the Supreme Court of the Australian Capital Territory as a barrister and solicitor and this is the only step needed for him to practise as a barrister. Equivalence in an occupation for which the applicant is registered has thus been achieved. If he wished to do so he could commence practice as a member of the Independent Bar of Canberra without further qualification or the issue of a certificate. However, to practise as a solicitor in any capacity under the Legal Practitioners Act 1970 (ACT) he would require a practising certificate. He is only entitled to that registration in the Australian Capital Territory if he can rely upon his already being registered for an equivalent occupation in another state. ...": Kozera and Law Society of the ACT (1997) 46 ALD 785 (AATA).
> "... The Mutual Recognition Acts passed by the Australian parliaments in 1992 were part of a national scheme, not limited to lawyers, for the recognition throughout Australia of occupational qualifications. As beneficial as that legislation may have been, it was administratively inconvenient and raised awkward questions about the equivalence of occupations in the context of separate Bars and fused professions. Those problems have been largely circumvented by the statutory introduction of National Practising Certificates, the benefits of which we are as a profession only beginning to harvest. ...": 'Editorial' (2002) 22 Aust Bar Review 89, 90-91.
> ** "[Headnotes] (iii) The onus rests upon a person arguing for equivalence of occupations to show that the activities authorised to be carried out under the respective occupations are substantially the same.": Re Sande and the Supreme Court of Queensland (1995) 38 ALD 639 (AATA).
> "In Western Australia all barristers and solicitors are practically in the one class, without distinction. ... ": Hansard, Legislative Assembly, Western Australia, 14 September 1932, at 604 (Sleeman, Fremantle) <https://www.parliament.wa.gov.au/hansard/daily/lh/1932-09-14/pdf/download>.
> "28) The relevant occupation, for the purposes of the MR Act, in the present case is that of a legal practitioner — more specifically, barrister and solicitor. In the Australian Capital Territory and in Western Australia an individual carrying on that occupation is “subject to more than one system of registration” and “more than one local registration authority” within the meaning of s 18(2) of the MR Act, because in each of those jurisdictions that occupation “involves both the admission as a legal practitioner by a court and the issue of a practising certificate by another body”: see s 18(3) of the MR Act. In each of those jurisdictions admission as a barrister and solicitor is effected by the relevant Supreme Court, whereas practising certificates are issued by another body — in the Australian Capital Territory, by The Law Society of the Australian Capital Territory; in Western Australia, by the respondent. (29) Section 18(2) of the MR Act provides that Pt 3 of that Act applies “in relation to each such system of registration and each such (local registration) authority”. In the present case the applicant was admitted as a barrister and solicitor in the Australian Capital Territory by the Supreme Court of the Australian Capital Territory on 20 December 1996. The applicant was, therefore, entitled, by virtue of s 20(1) of the MR Act, to be admitted as a barrister and solicitor in Western Australia, provided that he had lodged a notice under s 19 of that Act. The applicant was, on 2 May 1997, admitted as a barrister and solicitor in Western Australia by the full court of the Supreme Court of Western Australia. (30) The applicant has not been issued with a practising certificate by The Law Society of the Australian Capital Territory or any other equivalent local registration authority in any state or territory in Australia. Section 20(1) of the MR Act does not, therefore, confer any entitlement upon the applicant to be issued with an annual practice certificate by the respondent. (31) Section 20(2) of the MR Act empowers a local registration authority to grant registration to a person on the ground of that person's entitlement to such registration pursuant to s 20(1), and s 20(5) empowers the authority to impose conditions on such registration. Because the applicant had no entitlement to the issue of an annual practice certificate in Western Australia, it follows that s 20(2) of the MR Act does not confer authority on the respondent to issue such a certificate to the applicant. It necessarily also follows that s 20(5) of the MR Act does not confer authority on the respondent to impose conditions on the issue of such a certificate to the applicant. ...": Mulligan and the Legal Practice Board (1998) 50 ALD 940 (AATA).
> Barrister-sole and Barrister and Solicitor distinguished, WA:
-> "barristers owe duties to the courts, to their clients and to their barrister and solicitor colleagues": Legal Profession Uniform Conduct (Barristers) Rules 2015 (WA) r 4(d) <https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_45729.pdf/$FILE/Legal%20Profession%20Uniform%20Conduct%20(Barristers)%20Rules%202015%20-%20%5B00-a0-01%5D.pdf?OpenElement>.
-> "9. Entitlement to certain titles For the purposes of section 12 of the Uniform Law, a person listed in column 3 of an item in the Table below is entitled to take or use the title specified in column 2 of that item in the circumstances specified in column 4 of that item. Barrister and solicitor, solicitor and barrister, solicitor, attorney, proctor ... When the Australian legal practitioner holds an Australian practising certificate, other than an Australian practising certificate authorising the practitioner to engage in legal practice as or in the manner of a barrister only Barrister ... When the Australian legal practitioner holds an Australian practising certificate granted in a fused jurisdiction, or an Australian practising certificate granted in a non-fused jurisdiction that authorises the practitioner to engage in legal practice as or in the manner of a barrister only": Legal Professional Uniform General Rules 2015 (WA) r 9 <https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_45732.pdf/$FILE/Legal%20Profession%20Uniform%20General%20Rules%202015%20-%20%5B00-a0-01%5D.pdf?OpenElement>.
> *** See, TTMRA decisions, particularly, Little and The Council of the New South Wales Bar Association [2024] AATA 497: "... The Occupation of a Barrister in NSW, Victoria and WA The regulation of the legal profession in New South Wales is governed by uniform legislation and rules which includes the Legal Profession Uniform Law Application Act 2014 No 16 [NSW] (the Application Act), the Legal Profession Uniform Law (NSW) No 16a of 2014 [NSW] (the Uniform Law) and the Legal Profession Uniform Conduct (Barristers) Rules 2015 [NSW] (Bar Rules). Victoria and WA have adopted legislation and rules in the same form as New South Wales. The objects of the Bar Rules include to “act independently”.[67] Rules 11 to 16 of the Bar Rules set out the work of a barrister. The work of a barrister set out in rule 11 includes appearing as an advocate, giving legal advice and such other work as is from time to time commonly carried out by barristers. Rule 13 of the Bar Rules sets out certain conduct that a barrister must not engage in. Rule 12 of the Bar Rules provides: A barrister must be a sole practitioner, and must not: (a) practise in partnership with any person, (b) practise as the employer of any legal practitioner who acts as a legal practitioner in the course of that employment, (c) practise as the employee of any person, (d) be a director of an incorporated legal practice, or (e) practice by or through an unincorporated legal practice. ... The Occupation of a Barrister in the ACT Mr Marcus Hassell is a barrister in the ACT and President of the ACT Bar Council who swore an affidavit on behalf of the ACT Bar Council.[68] Mr Hassell deposed to the regulatory scheme for the regulation of lawyers in the ACT under the Legal Profession Act 2006 (ACT); the Legal Profession (Barristers) Rules 2021 (ACT); and the Legal Profession Regulation 2007 (ACT). In this section of our reasons, we have adopted much of the summary of the regulatory scheme provided by Mr Hassell, noting that his evidence was not challenged in cross examination. [68] Exhibit 18. Section 81 of the ACT Barristers Rules provides as follows: A barrister must be a sole practitioner, and must not practice: (a) in partnership with any person; (b) as the employer of any legal practitioner who acts as a legal practitioner in the course of that employment; or (c) as the employee of any person. The combined effect of the ACT Barristers Rules and the ACT Legal Profession Act includes that:[69] (a) a person who holds a practising certificate as a barrister of any kind must only engage in “barristers work”; (b) any barrister at the “independent bar” in the ACT “must” be a sole practitioner and “must not” practise in partnership with or as the employee of any person, and must not be the “employer” of any other legal practitioner. [69] Ibid, [6]. In the ACT, a legal practitioner cannot be issued with a barrister’s practising certificate which entitles them to practise as an “employed barrister”, except in limited circumstances for those persons who are government lawyers.[70] [70] Ibid, [6(c)]. ... The applicant contends that equivalency could be achieved by imposing a requirement of supervision on him as a barrister in the Australian jurisdictions. The respondents contend that under their respective legislative schemes there is no scope for the imposition of conditions that the applicant conduct his practice as a supervisee or employee of another barrister. It is our view that equivalence cannot be achieved by imposing conditions. It is a fundamental requirement of the legislative schemes regulating barristers that they are independent sole practitioners who do not act under supervision and are prohibited from being an employee.". ---
-> ** this would likely exclude employed 'Barrister and Solicitors' (cf Barrister sole), and those Australian Legal Practitioners under supervision conditions and non-Principal conditions (eg employee), from the definition of 'Barrister' under State law in NSW, Vic, WA and ACT (and likely also Qld).
-> Question, for the purposes of Migration Regulations, whether a person is or is eligible to practice as a Barrister, having regard to the person's academic and practical legal training qualifications, and any further education and vocational training to practice or carry out the occupation of a Barrister (and whether any statutory schemes attenuate the assessment of whether a person may practice in that occupation having regard to their experience and skill).
> Advocates: "... What these considerations, and the other historical matters described above, reveal is that attention must be directed to the nature of the role which an advocate (whether barrister, solicitor or both barrister and solicitor) plays in the judicial system. ...": D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, [21] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
*** WA - admission - TTMRA - admission in WA as 'lawyers' previously known as 'barristers and solicitors': "This leads to another point in relation to the issues identified by the Board. The 'equivalence' in relation to the issue before the Court is not as between 'a barrister in New Zealand' and an 'unrestricted legal practitioner in Western Australia'. It is an equivalence of the occupations in each jurisdiction that is the subject of admission. In that regard, in both New Zealand and Western Australia admission is to the legal profession generally. In New Zealand a person is admitted by the High Court 'as a barrister and solicitor' (and no person may be admitted as a barrister or solicitor only).[13] That is the nature of Mr Chambers' admission (i.e. 'as a barrister and solicitor').[14] Likewise, in this State, persons are admitted to the legal profession as 'lawyers' (although, in the past the nomenclature 'barrister and solicitor' has also been used). Significantly, both forms of admission are general in nature. [13] Lawyers and Conveyancers Act 2006 (NZ), s 48. [14] See [31] above. Registration at the level of the mode of practice (either as 'barrister' or 'barrister and solicitor') in both New Zealand and Western Australia is regulated at the level of practising certificates. As we have said above, that is not an issue before this Court. For these reasons, we are satisfied that the occupation in which Mr Chambers seeks registration is an equivalent occupation to that which he is registered in New Zealand. No discretion under s 22(1)(c) of the Act arises in relation to admission. ...": Re Chambers; Ex parte Chambers [2021] WASC 196, [56]-[59].
> see provisions of the Legal Practitioners Act 1893-2003 (WA) s 3: "“practitioner” shall mean a person admitted and entitled to practise as a barrister and solicitor of the Supreme Court of Western Australia, for the purposes of Part IV includes a person who is entitled by virtue of a law of the Commonwealth to perform in Western Australia the functions of a barrister or solicitor, for the purposes of Part V includes a firm of practitioners of which the person is a member and for the purposes of Part IV and Part VA includes a person who has been a practitioner; ..."
> see also, "10 Although these comments were made with reference to a barrister practising in New South Wales, where the profession is divided into barristers and solicitors, the comments apply in this State to any person who has been admitted as a barrister and solicitor of this Court. In particular, they apply to the conduct of a practitioner in carrying out the work of a solicitor as distinct from a barrister. That was the kind of work being undertaken in the present case.": Re Fatharly and the Legal Practitioners Act 1893 [1999] WASCA 163.
> admission of a Victorian barrister and solicitor: Kahn v Board of Examiners [1939] 62 CLR 422.
> noting the decision in Little [2024] AATA 497 above, query whether admission as a lawyer in the LPUL states would entitle as person to carry out the work of a Barrister, noting the nomenclature in the past was 'barrister and solicitor', and noting that the ANSZCO criteria is predicated on the ability to carry out the occupation, not whether a person is entitled to carry out the occupation of Barrister-?sole.
** SA, admission: "The Legal Practitioners Act 1981 (SA) (the Act) governs the right of a person who satisfies the Supreme Court that she or he has complied with the Rules of the Legal Practitioners Education and Admission Council 2004 (the LPEAC Rules 2004) to be admitted as a barrister and solicitor by the Supreme Court of South Australia.[4] ...": Ejueyitsi v Board of Examiners [2021] SASCA 118, [12].
Barrister, Qld - academic and vocation training requirements when applying for a Barrister's Practicing Certificate (up from Solicitor or as a Australian lawyer): "Once you have successfully completed all of the academic and vocational training pre-requisites (as outlined above) you may apply to the Association for the grant of a practising certificate ...": 'Guide to becoming a barrister in Queensland' (Bar Association of Queensland) <https://qldbar.asn.au/baq/v1/viewDocument?documentId=984>. -- consistent with PAM3 guidance, more vocation training is needed (cf Solicitor and admitted Australian lawyer).
[A.2] Academic and Practical Requirements
JD, Austudy
"26 The status of the JD course for present purposes is complicated by the absence from the determination of any indication as to the meaning of the words, "Masters or Doctoral degree". The reference to a master's degree suggests a degree awarded after a course taught at postgraduate level. The reference to a doctoral degree suggests a degree awarded for postgraduate work, conducted at a higher level than a master's degree course. These views are based partly upon the evidence and partly upon common knowledge. The JD course, as accredited, seems to be a master's level course, leading to the degree of JD, which degree is to be distinguished from other doctoral degrees which permit the holder to use the title "doctor". 27 Whether or not a course is a master's or doctoral degree course is a question of fact. Relevant considerations might include the name of the degree to be awarded after successful completion of the course, the level at which the course is taught and the prerequisites for student admission. Initially, the JD course led to a master's degree, was taught at postgraduate level and was open only to graduates, suggesting that it was a master's degree course. At least, that was an available inference. The applicant argued that the renaming of the degree may have affected the question. However the course remains unchanged, save for the name. The Academic Board and Senate clearly intended that the course, as originally approved, should be taught at a higher level than are undergraduate courses, and therefore lead to a higher degree. The change of name makes it difficult to describe the JD course as a master's degree course, but it remains a course taught at a higher level than an undergraduate course. It seems that the present title of the degree was thought to be more, rather than less prestigious as compared to that of master or bachelor. The question is whether the title of the degree awarded following successful completion of the JD course is ultimately determinative of its status for the purposes of the determination. 28 My examination of the facts of the case should not be taken as indicating any desire to revisit the merits. The only relevant issue is whether the Tribunal erred in law. The so-called errors of law raised in the notice of appeal are that: ® the finding that the JD degree was not an approved course of education or study failed to have sufficient regard to the determination; ® the finding involved an error of law in that it was based upon an erroneous interpretation of the intention and/or application of the relevant provisions of the Social Security Act and the Student Assistance Act; and ® the Tribunal took account of irrelevant considerations, namely the minutes of the relevant Academic Board committee and the opinion of Professor O'Connor. 29 Clearly enough, these so-called grounds are little more than attempts to dress-up factual issues as questions of law. No serious argument was advanced concerning the interpretation of any relevant legislation, nor was there any real suggestion that the Tribunal had failed to give sufficient regard to the determination. As to the third ground, once it is accepted that the Senate was the appropriate accrediting authority, the importance of the recommendations upon which it acted is obvious. The only question of construction concerns the meaning of the expression "Masters or Doctoral degree" in the exclusory clause of the first category. It obviously describes degrees which are postgraduate and undertaken at a higher level than undergraduate degrees. Whilst it is arguable that the focus is on established nomenclature, it is more likely that its focus is on course content and the level at which the course is to be conducted. The second category clearly demonstrates this intention. I prefer to treat the reference to a master's or doctoral degree as describing by example the courses to be excluded from the first category, namely those offered to graduates, taught at a higher level and leading to a "higher" degree. The JD course is such a course. The Tribunal's conclusion was fairly open on the evidence. There is no demonstrated error of law inherent in that conclusion.": Layt v Secretary, Department of Family & Community Services [2003] FCA 317.
PLT
Part of first major qualification in law? - obiter: "31. In Xie v Minister for Immigration & Multicultural Affairs [2000] FCA 230 (9 March 2000) Weinberg J considered the position of an adult child undertaking a second major course of study, and stated: [The delegate's] finding that the applicant did not act out of necessity ("real need") in undertaking a second major course of study was a finding of fact which, it seems to me, was open to her. It was, in any event, a finding of fact which, in my view, is not properly open to challenge before me. It is obvious that a rigid application of a "real need" test when determining dependence in the context of an adult child who is a student is capable of producing various anomalies. In one sense, it is always matter of "choice" as to whether or not a young person who has finished his or her schooling goes on to further studies rather than seeking out such employment as is available. However, the PAM 3 Guidelines contemplate that there may still be "dependence" in such circumstances provided that the young person is working towards his or her first major qualification. The policy underlying the Guidelines is presumably that young persons should be encouraged to continue their studies beyond normal school leaving age but, having acquired a first major qualification, there is no "real need" to pursue any additional qualification thereafter. The distinction between a person who is still working towards a first major qualification and a person who considers it necessary or desirable to pursue a further course of studies is, of course, one grounded in policy, and not in logic. There is nothing in the language of reg 1.03 which provides any direct warrant for such a distinction. The PAM 3 Guideline is difficult to apply in practice, given the myriad of meanings which may attach to the concept of a "first major qualification". Is a professional practice course undertaken by a law graduate as a prerequisite to admission part of that "first major qualification", or is it a second course of study? Is a Diploma of Education undertaken after a Bachelor of Arts degree sufficiently linked to that degree to make it part of a "first major qualification", or is it separate and distinct, transferring the student undertaking that course instantly into non-dependent status? ...": Soni, Vinay [2003] MRTA 179.
> second major qualification?: "38. In Xie v Minister for Immigration & Multicultural Affairs [2000] FCA 230 (9 March 2000) Weinberg J considered the position of an adult child undertaking a second major course of study, and stated: [The delegate's] finding that the applicant did not act out of necessity ("real need") in undertaking a second major course of study was a finding of fact which, it seems to me, was open to her. It was, in any event, a finding of fact which, in my view, is not properly open to challenge before me. It is obvious that a rigid application of a "real need" test when determining dependence in the context of an adult child who is a student is capable of producing various anomalies. In one sense, it is always matter of "choice" as to whether or not a young person who has finished his or her schooling goes on to further studies rather than seeking out such employment as is available. However, the PAM 3 Guidelines contemplate that there may still be "dependence" in such circumstances provided that the young person is working towards his or her first major qualification. The policy underlying the Guidelines is presumably that young persons should be encouraged to continue their studies beyond normal school leaving age but, having acquired a first major qualification, there is no "real need" to pursue any additional qualification thereafter. The distinction between a person who is still working towards a first major qualification and a person who considers it necessary or desirable to pursue a further course of studies is, of course, one grounded in policy, and not in logic. There is nothing in the language of reg 1.03 which provides any direct warrant for such a distinction. The PAM 3 Guideline is difficult to apply in practice, given the myriad of meanings which may attach to the concept of a "first major qualification". Is a professional practice course undertaken by a law graduate as a prerequisite to admission part of that "first major qualification", or is it a second course of study? Is a Diploma of Education undertaken after a Bachelor of Arts degree sufficiently linked to that degree to make it part of a "first major qualification", or is it separate and distinct, transferring the student undertaking that course instantly into non-dependent status? If I were of the view that [the delegate] had rejected the applicant's claim for a Subclass 450 visa automatically, simply because he had enrolled in a second course of study, I would not hesitate to set aside her decision. That would be to elevate a policy which is itself difficult to comprehend into an inflexible and binding vehicle governing the interpretation of reg 1.03. However, I do not interpret her reasons for decision in that way. In my view her approach was neither so simplistic, nor so rigid. The true basis of her decision was that the applicant had made a free and informed choice to remain financially dependent upon his father. That finding of choice led her to conclude that the applicant had failed to demonstrate the necessity implicit in dependence, and led her, therefore, to reject his claim.": Lorenzo, Rosario [2002] MRTA 6871 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2002/6871.html>; see also, Soni, Vinay [2003] MRTA 179.
Duration: "27. On 22 February 2011 the Tribunal wrote to the College of Law seeking information about the duration of the course. The education provider replied on 24 February 2011 stating that the Graduate Diploma of Legal Practice is an intense course undertaking over 30 weeks (including work experience component). It was stated that under the AQF, a Graduate Diploma is expected to be of one year’s duration and because the College’s course is an intensive, non-semesterised course, it can ‘have the appearance’ of being less than a year but the actual work is probably more than most students would undertake in a two semester course. Students are also required to find their own work experience, which may delay completion. While it is possible to complete the course in 7 months, 10 or 11 months reflects the experience of many students and CRICOS students are given 11 months visas to complete the program. It is stated that the program ought to be regarded as the equivalent of a one year course. ... 31. The Tribunal referred to the most recent letter from the College of Law, noting that despite it, it may not be satisfied that the course was a one year course. The applicant’s representative pointed out that the applicant took a year and a half to complete her Masters. ... 47. The CRICOS registration for the course is 30 weeks, not 11 months (http://www. cricos . deewr. gov.au/ Course/CourseDetails.aspx?CourseID=69734). The applicant relies on the letter from the Acting Registrar of the College of Law dated 2 June 2009 which indicates that student visas are issued to students for 11 months as it is accepted that the course component requires that duration to complete. The same information is contained in the correspondence of 23 February 2011 and the applicant’s CoE indicates that the course ran for 11 months (from 3 September 2007 to 3 August 2008). The Tribunal acknowledges these submissions, however, the Tribunal does not accept that the duration of the course can be established by reference to the DIAC’s practice concerning the duration of the student visas issued to College of Law Students. 48. The applicant also relies on the letter from the Registrar of the College of Law dated 3 February 2011 who stated that the course is considered to be a one year full-time course. The correspondence of 23 February 2011 from the Director, Academic Audit and Policy also refers to the course being an intensive one and being regarded as equivalent to a one year course. The Tribunal remains concerned about the suggestion that a shorter but ‘condensed’ course could be regarded to be a course of longer duration merely due to the content of the course. The applicant claims that because the course is an intensive one, requiring longer hours than would normally be expected of a full-time student, the course should be regarded as being a full-year course. The education provider also appears to suggest in its correspondence of 23 February 2011 that the course is an intensive one and the work required is more than most students would undertake in a more traditional structure of a two semester course. Despite that evidence, the Tribunal prefers the objective standard of CRICOS registration. The Graduate Diploma remains registered as a 30 week course, irrespective of the number of contact hours or the education provider’s belief in the complexity of the course. 49. The Tribunal acknowledges the information from the College of Law indicating that students may take longer to find work placement, which is a mandatory part of the course, and that students take up to 10 or 11 months to complete the course. Again, in the Tribunal’s view what is required is reference to objective criteria for the duration of the course and not the time the students may take to complete the course. The objective duration of the course is evidenced through the CRICOS registration, which is 30 weeks. The National Code requires the registration of the course on CRICOS to include the expected duration of the course, and it suggests that the period of normal amount of full-time study is what is registered. The National Code relevantly provides: Course duration 7.1 The registration of a course on CRICOS must include the expected duration of the course. The registered duration cannot exceed the time required for completing the course on the basis of the normal amount of full-time study. Only courses which can be undertaken on a full-time basis can be registered on CRICOS . A course will not be registered on CRICOS unless it meets the relevant Australian Qualifications Framework requirements or those of any other appropriate quality or accreditation framework, if an appropriate framework exists. ... 7.3 The designated authority must take into account the proposed course structure when determining the appropriate duration for registration on CRICOS (that is, the number of compulsory terms or semesters each academic year). The registered duration of the course must include approved holiday periods and any approved periods of work-based training. When the course duration is not specified by the accrediting authority, the designated authority will determine the course duration based on a minimum of 20 scheduled course contact hours per week. 50. Thus, the education provider’s suggestion that the structure of the course, the intensity of the course or the time required to complete the course justify it being treated as a full-year course appears contrary to the requirements of the National Code, as all these matters would have been taken into consideration when registering the course as a 30 week course on CRICOS . The Tribunal prefers the CRICOS registration to the statements from the College of Law about the duration of the course as the CRICOS registration is an objective measure of course duration which is based on a variety of considerations to which the College of Law refers. The Tribunal finds that the Graduate Diploma was registered as a 30 week course and was a 30 week course. The Tribunal is not satisfied that it comprises a full academic year.": 0904275 [2011] MRTA 495 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2011/495.html>.
Collaw Perth, not registered course CRICOS, it could not be used to meet Australian study requirement for 485 visa: "26. The Tribunal raised a concern with the applicant. Relevantly, the applicant was told that the Graduate Diploma of Legal Practice did not appear on the current list of registered courses in the Commonwealth Register of Institutions and Courses for Overseas Students ( CRICOS ) and the website of The College of Law suggested that the course the applicant had undertaken online through the Perth campus was not a ‘registered course’ (at [26]). ... 29. The Tribunal noted that the applicant’s migration agent had advised that he was told by The College of Law that the course was a registered course for the purposes of the Regulations. It was noted that a Student Services Team Leader at the College of Law had stated in an email that “Our courses are registered CRICOS approved program. The college meets all required standards”. Further, the College’s Graduate Diploma document and certificate of completion also stated that the course was “recognised under the Australian Qualification Framework” (at [30]). ... 33. The Tribunal accepted that the applicant had completed the Graduate Diploma of Legal Practice through online full-time study in Perth. The Tribunal accepted that The College of Law was a registered provider on CRICOS for that course. However, that was only the case if the course was offered full-time and face to face at a particular location in another state. However, the College of Law was not a registered provider for any other version of the course (at [36]). 34. As the Graduate Diploma of Legal Practice was the only qualification the applicant had completed in the six months before the application was made, the Tribunal found that it was the only qualification that she relied upon to meet the Australian study requirement (at [37]). The Tribunal accepted that the applicant had completed the Graduate Diploma of Legal Practice . The issue that remained, however, was whether it was “eligible to meet the Australian study requirement” (at [38]). 35. The Tribunal explained that it had outlined the relevant definitions to the applicant at the hearing (at [39]-[40]). There was nothing to indicate that the Graduate Diploma of Legal Practice met the requirements of a trade qualification. It noted that the applicant did not suggest that her qualifications would meet the definition of ‘trade qualification’ and her migration agent agreed that the Graduate Diploma of Legal Practice did not meet the trade qualification definition (at [41]). The Tribunal was not satisfied that the Graduate Diploma of Legal Practice was a trade qualification (at [42]). 36. The Tribunal then considered whether the Graduate Diploma of Legal Practice met the definition of “diploma”. It noted that a diploma must be at the Australian Qualification Framework level 5 (at [43]). It explained that a graduate diploma was an Australian Qualification Framework Level 8 and, therefore, was not a “diploma” as defined by the Regulations. The applicant’s migration agent agreed and, accordingly, the Tribunal found that the Graduate Diploma of Legal Practice was not a “diploma” (at [44]). 37. The Tribunal then noted that the definition of “degree” makes reference to a “postgraduate diploma” but dos not refer to a “graduate diploma” (at [45]). The applicant submitted that “postgraduate” and “graduate” are synonymous. The applicant also submitted that the Graduate Diploma of Legal Practice was an extension of the applicant’s Bachelor’s degree (at [46]). 38. The Tribunal determined that as the Graduate Diploma of Legal Practice was provided by a separate provider to the applicant’s Bachelor’s degree, it was a distinct qualification (at [47]). ... 41. While the Tribunal was satisfied that the Graduate Diploma of Legal Practice fell within the definition of “degree”, it remained the case that, as the applicant had undertaken the course as a full-time online student in Perth, the course was not a “registered course” (at [51]). 42. The Tribunal expressed sympathy for the applicant’s situation. It noted that the applicant had acted entirely in good faith and that the consequences of the refusal were “detrimental”. The Tribunal was of the view that “The College of Law did not appreciate the implications of the different course modalities and locations on CRICOS registration” (noting that the applicant had been advised by The College of Law itself that she had in fact completed a registered course) (at [52]). 43. The Tribunal then explained that the criteria are not discretionary. The Australian study requirement must be met by the applicant and there is no scope on the part of the Tribunal to waive the requirement. The Tribunal explained that the registration of courses was a matter for CRICOS and the reasons why certain courses are defined and registered in a particular manner is not a matter in relation to which the Tribunal has any jurisdiction. The Tribunal noted that while the implications for the applicant were unfortunate, the requirements were clear and while the applicant may have received incorrect, misleading or negligent advice from third parties, this did “not amount to a fraud on the Tribunal” (at [53]). 44. The Tribunal understood the applicant’s frustration at the “incongruous” result arising from her undertaking the Graduate Diploma online in Perth. However, it was noted that the Tribunal did not have the power to change the criteria or designate a course as “registered” when it was not (at [54]). 45. The Tribunal found that the Graduate Diploma of Legal Practice , undertaken by the applicant in Perth, online and on a full-time basis, was not a “registered course” for the purposes of the Australian study requirement (at [55]). ... 56. The Tribunal has found that the Graduate Diploma in Legal Practice is a ‘degree’ as defined by r.2.26AC(6). 57. Having regard to all the evidence and material before it, the Tribunal finds that the applicant has completed 2 qualifications in Australia, a Bachelor of Laws and Graduate Diploma in Legal Practice , which are both ‘degrees’ as defined in r.2.26AC(6). The Tribunal finds that the qualifications were a result of courses that were completed in a total of at least 16 calendar months and as a result of at least 2 academic years (as specified) study. The Tribunal finds on the information before it that all instruction for the courses were conducted in English and that the applicant held a number of student visas which authorise study throughout this period. 58. However, the Tribunal finds that the Graduate Diploma of Legal Practice course undertaken by the applicant at The College of Law online at the Perth campus is not a registered course, being a course of education provided by institutions that are registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students. Accordingly, this course does not meet the requirements of requirement r.1.15F(1)(a). 59. Accordingly, the Tribunal finds that the applicant did not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant does not meet cl.485.221.": Sandhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1299.
> See also, TEQSA FOI log, October 2025 <https://www.teqsa.gov.au/about-us/reporting-and-accountability/freedom-information-and-disclosure-log>, archived at <https://archive.is/IC3pf>.
> CRICOS Register: <https://cricos.education.gov.au/Course/CourseDetails.aspx?CourseId=69734> and <https://cricos.education.gov.au/Course/CourseDetails.aspx?CourseId=95615>.
cf Collaw NSW: 0904275 [2011] MRTA 495, [23].
[A.3] 189 v 190 - General Framework
Closely-related skilled occupation - reference to skilled occupation is a reference to the closely-related occupation that is on the relevant occupation list for the particular visa, and which is closely relevant: Chalise [2016] FCCA 1358, [51]-[52].
> See also, "31. Having regard to ANZSCO, it appears to the Tribunal that her position at Opal Specialist Aged Care aligns to the occupations under Unit Group 4233 ‘Nursing Support and Personal Care Workers’ specifically the occupation of ‘Personal Care Assistant’. The Tribunal notes its view is supported by the Australian College of Nursing (ACN) who defines an assistant in nursing as a “health care worker who supports the delivery of nursing care by assisting people with personal care and activities of daily living. Similar titles may include but are not limited to “Aged Care Worker (ACW), Personal Care Assistant (PCA), Care Support Employee (CSA) and Health Services Assistant”.[1] The Tribunal notes that certain other occupations, such as community worker, are listed in the instrument but in the Short-term Skilled occupation list which means it does not meet the definition of “skilled occupation”. The occupation of assistant in nursing (however titled) are not specified in Schedule 1 of the applicable instrument and are therefore not “skilled occupations” as defined.": Baguio (Migration) [2023] AATA 921.
> "22. The tribunal accepts that the applicant has worked as a registered nurse since September 2013. However, it was pointed out to her that she had not worked in her nominated occupation for 12 months by the time she was invited to apply for the visa in January 2014, and was not entitled to any points on that basis. She conceded she had not worked as a registered nurse for 12 months at the time of the invitation. 23. The tribunal also accepts that she had worked as a personal care assistant since 2010. She was taken through the entirety of Schedule 1 of IMMI 14/049 during the hearing where it was shown to her that that occupation (Personal Care Assistant ANZSCO 423313) did not appear in Schedule 1 and was therefore not a skilled occupation in relation to her. 24. She could not, when shown the Schedule, and the tribunal cannot now, identify another occupation in Schedule 1 of IMMI 14/049 that corresponds to the occupation she describes in her resume as ‘personal care assistant’ which she said involved performing similar duties to that of a nurse, but without administering medication. The tribunal finds that the various occupations she performed from 2010, before working as a registered nurse in September 2013, were those of a Personal Care Assistant ANZSCO 423313. 25. She conceded Personal Care Assistant was not a skilled occupation in relation to her and that she could not rely on her employment as a Personal Care Assistant to qualify for points under this item. This is so, even if Personal Care Assistant is an occupation closely related to Registered Nurses nec.": 1412916 [2014] MRTA 2794 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2014/2794.html>.
> "22. The applicant claims that the occupations are skilled occupations as he needed to have engineering qualifications to teach other students. This does not establish that the applicant was performing a skilled occupation. As stated above, University Lecturer (ANZSCO 2421-11) nor University Tutor (ANZSCO 2421-13) are not skilled occupations as specified by the Minister in an instrument in writing. 23. The representative has referred the Tribunal to Departmental Policy which states that a closely related skilled occupation also included occupations on the Consolidated Skilled Occupation List (CSOL). In this instance, the CSOL in Column A of Schedule 2 to the Instrument includes University Lecturer and University Tutor. The Tribunal does not agree with this interpretation and considers that the Department’s Policy goes beyond the scope of the legislation and is inconsistent with the legislation. Paragraphs 3, 4 and 5 of the Instrument clearly state that the CSOL only applies in relation to a person nominated by a State or Territory government agency; for the purposes of r.5.19(4)(i)(A) and r.186.234(2)(a) (Direct Entry Employer Nomination Scheme). None of those circumstances apply in this case. 24. For these reasons the Tribunal finds that the occupations of University Tutor and University Lecturer are not ‘skilled occupations’ as defined in r.1.15I(1). Therefore it is not necessary for the Tribunal to determine whether they are closely related to the nominated skilled occupation.": 1415235 [2014] MRTA 2906 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2014/2906.html>. -- Chalise MRTA case.
"Closely related":
> occupations in same ANZSCO unit group (PAM3),
> occupations in the same ANZSCO minor group: Anureet [2023] AATA 3790, [38]-[39]; Kumar [2020] AATA 5770, [61]-[62].
> comparison of tasks and duties: Farooq (Migration) [2022] AATA 2930.
> Minor difference in skill level, overlapping duties, Enrolled Nurse vis-a-vis Registered Nurse: "15. The applicant’s full-time experience as an Enrolled Nurse at Top End Medical is expressly within her nominated occupation and the Tribunal accepts five months of experience. 16. The Tribunal has considered whether the applicant’s experience as a Personal Care Assistant, particularly with a Medication Administration endorsement, is a closely related skilled occupation to that of an Enrolled Nurse. The Tribunal has done so considering the tasks enumerated in the ANZSCO, and the applicant’s actual tasks listed in her curriculum vitae. 17. The Tribunal takes note of the supervision and administration of medication, and substantial care planning tasks, undertaken as a Personal Care Assistant. On balance, and despite the minor difference in Skill Level, the Tribunal is satisfied that the applicant’s actual experience of 17 months as a Personal Care Assistant is sufficiently closely related to that of an Enrolled Nurse for the purposes of Part 6D.4. Accordingly, the Tribunal accepts 24 months of Australian employment experience. 18. The Tribunal notes that evidence before it is imprecise as to the exact hours worked by the applicant in her roles as a Personal Care Assistant. However, the Tribunal is satisfied that she was remunerated for a least 20 hours a week for at least 12 months of her Australian employment experience: reg 2.26AC(6). The Tribunal is also satisfied as to the regularity of the applicant’s visa conditions whilst so doing: reg 2.27C.": Rai (Migration) [2022] AATA 101.
> Computer Networks and System Engineer v CS&S Support: not closely related - affirmed: Mohammed v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 514.
> ** "15. In Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; (2014) 227 FCR 525 (“Dhillon”), the Full Court said of the phrase “closely related”: The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26]. 16. What is meant by “closely related” is a matter of fact for the Tribunal to determine. It requires an evaluative task and the Tribunal has a “wide scope” to determine if the relevant qualification is “closely related” to the nominated occupation: Singh v Minister for Immigration & Border Protection [2017] FCA 1108 at [34].": Bhaskar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 320.
Closely related, qualification:
> "28. In Prasad v Minister for Immigration & Citizenship [2012] FCA 591 at [4] Logan J noted that the relevant Department’s “Procedures Advice Manual” provided: The ‘closely related’ requirement is to ensure that applicants have qualifications compatible with their nominated skilled occupation. Under policy, the critical factor in determining whether a qualification is closely related to the nominated skilled occupation is whether the skill set/s underpinning the qualifications/s are complimentary [sic] and can be used in the nominated occupation, in terms of both subject matter and the level at which those skills were obtained. (Emphasis in original.) His Honour said (at [24]): “Closely related” certainly does not require an exact correspondence. As used adverbially, closely imports a meaning of “near” in the present context. “Related” requires a relevant relationship between the nominated course of study and the nominated occupation. The construction promoted by the Minister in his manual, although not in this court on appeal, is a more remote relationship than that specified in the regulation. 29. In Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 at [20] (Allsop CJ, Murphy and Pagone JJ) the Full Court said: The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26].": Singh v Minister for Immigration and Border Protection [2017] FCA 1108.
> "22. The Tribunal considered the applicant’s argument that, by reference to ANZSCO, the occupation of ICT Business Analyst involves more of the management tasks in addition to the tasks related to the ICT. The decision records that the applicant stated that his qualification is compatible with the nominated skilled occupation, and the skills set underpinning the qualifications is complementary and can be used in the nominated occupation. The Tribunal accepted that that was the case, but formed the view that this went no further than establishing the usefulness or the relevance of one to the other. The Tribunal recorded that the legislation requires something more. 23. The Tribunal recorded it needs to be more than complementary or useful, and stated with reference to the Full Court decision in Dhillon that it needs to be closely related. The Tribunal further noted that for a qualification to be closely related to an occupation, the relationship between the skills gained in the qualification and the occupation must be more than merely complementary. It is not sufficient that the qualification has a broader relevance to the occupation. ... 44. The applicant argued before the Tribunal that the occupation of ICT Business Analyst involves more of the management tasks in addition to the tasks related to the ICT. The applicant referred the Tribunal to different subjects which he claimed help him to analyse business and finance needs and explained how the different subjects helped in his current job. The Tribunal noted that the applicant argued that the Bachelor of IT was a theoretical course related to IT but he needed more commercial knowledge which he did not acquire as part of his Bachelor course. The Graduate Diploma was a more analytical and commercial base course that gave him that knowledge. 45. As I indicated at the outset, this review can be disposed of in similar terms to that in Talha. If one looks at the learning outcomes from the individual subjects of the applicant’s Graduate Diploma in Business, it is the case that information in the higher groupings of the ANZSCO Code may be considered specifically relevant to the applicant’s nominated occupation such that the necessary close relationship could be made out. 46. The Tribunal, by failing to apply all of the relevant aspects of the ANZSCO Code, had regard to too narrow a description of the relevant tasks identified in the ANZSCO Code relating to the applicant’s nominated skilled occupation.": Bhaskar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 320.
> "6. The applicant also provided a written submission to the Tribunal. In addressing the issue of whether the applicant’s qualifications were closely related to his nominated skilled occupation, it was noted the term “closely related” is not defined in legislation. It was argued the term requires and calls attention to the connection between two things. It was acknowledged that although the words “closely related” do not require an exact correspondence, the relationship must be more than merely complementary. The Tribunal was referred to the decisions in Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525; [2014] FCAFC 157 at [20] and Talha v Minister for Immigration and Border Protection (2015) 235 FCR 100; [2015] FCAFC 115 at [56], per Griffiths, Mortimer and Beach JJ. ... 26. Clause 485.222 was also required to be met. It relevantly requires that each diploma or trade qualification used to satisfy the Australian study requirement “is closely related to the applicant’s nominated skilled occupation” (emphasis added). 27. In Dhillon, the Full Court of the Federal Court considered the “closely related requirement” in the context of the analogous criteria for a Subclass 886 visa. In that case, the visa applicant relied upon three qualifications to meet the Australian study requirement with the Full Court noting at [19] those qualifications “would not be sufficient” for the visa application “unless they were all closely related... to his nominated skilled occupation of pastry cook” (emphasis added). The Full Court observed at [20] the words “closely related” were not defined in the Regulations or Act “but require, and call attention to, the connection between two things”. The task of evaluating whether a qualification meets the description of being “closely related” to the nominated occupation “does not require the finding of an exact correspondence between the two but does require ‘that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists’”. 28. The Tribunal in Dhillon had informed itself about the nature of the nominated skilled occupation by considering the Australian Standard Classification of Occupations (ASCO) (the predecessor to the ANZSCO Code) and compared that with the course content submitted for the units undertaken by the visa applicant in the courses relied upon. The Full Court approved of that approach. It also held that the Tribunal did not ask itself an incorrect question when it considered the “closely related” requirement required that the relationship between the skills gained in the qualification be more than merely complementary to the occupation or that they could be used in that occupation: at [20]. 29. In Talha, the Full Court of the Federal Court described the relevant features of the ANZSCO Code as follows: ...The ANZSCO Code replaced the previous ASCO directory. All occupations and jobs in the Australian and New Zealand labour markets which are undertaken for pay or profit, including jobs occupied by people working for themselves, are classified in the ANZSCO Code. The introductory section of the ANZSCO Code explains the concept of “a job” as meaning: ...a set of tasks designed to be performed by one person for an employer (including self-employment) in return for payment or profit. Individual persons are classified by occupation through their relationship to a past, present or future job. “Occupation” is defined in the ANZSCO Code as “a set of jobs that require the performance of similar or identical sets of tasks”. The introductory section of the ANZSCO Code also explains how occupations are classified. Occupations are classified according to their attributes and are grouped on the basis of their similarity into successively broader categories for statistical and other types of analysis. The occupations are then organised or classified into progressively larger groups on the basis of their similarities in terms of both skill level and skill specialisation. Details of the various hierarchies or groups are provided. “Occupation” is the most detailed level of classification. Occupations are distinguished from other occupations in the same unit group on the basis of detailed skill specialisation. The notes explain that the classification of occupations is done according to two criteria, namely skill level and skill specialisation. “Skill level” is defined as a function of the range and complexity of the set of tasks performed in the particular occupation and is measured operationally by the level or amount of formal education and training, the amount of previous experience in a related occupation, and the amount of on-the-job training which is required competently to perform a set of tasks required for the occupation. Occupations are divided into five different skill levels. The highest skill level is Skill Level 1, which is defined as a level of skill commensurate with a bachelor degree or higher qualification, however, at least five years of relevant experience may substitute for the formal qualification. The concept of “skill specialisation” is defined in the ANZSCO Code as a function of: field of knowledge required; tools and equipment used; materials worked on; and goods or services produced or provided. It is important to understand the structure of the ANZSCO Code. It is divided into five “hierarchical levels”. Jobs are described at the most detailed level of classification as “occupations”. “Occupations” are then grouped together at a higher level of granularity to form “unit groups”, which in turn are grouped into “minor groups”. Minor groups are then aggregated to form “sub-major groups”, which in turn are aggregated at the highest level of granularity to form “major groups”. Significantly, in many cases, differing tasks are described at various levels of the hierarchy. It should also be noted that the introductory section of the ANZSCO Code contains the following material as to its purposes: “This publication is a reference document intended to provide a detailed account of the content and structure of ANZSCO and to assist the interpretation of statistics classified to it. It is not intended as a means of assigning information about particular jobs to ANZSCO classes. Care needs to be taken when assigning information about particular jobs to ANZSCO classes because the same job titles can be used in different industries to describe different occupations (e.g. business analyst). Additionally, the titles used in ANZSCO are not an exhaustive list of all titles used by people to describe an occupation (e.g. brickie).” 30. The Full Court in Talha held it was “ultimately a matter for the primary decision-maker and, on a statutory review, the Tribunal, to decide whether” a visa applicant’s “studies are ‘closely related’ to [their] nominated skilled occupation”. The Full Court, however, further held the necessary evaluative exercise required that the whole of an applicant’s studies be compared with the whole of the nominated occupation: at [53]. The whole of a nominated occupation may require that regard be had to information in higher groupings which is relevant to particular occupations as set out in the ANZSCO Code: see [55]-[61]. 31. In Singh v Minister for Home Affairs [2020] FCA 203, Derrington J held at [25] that when undertaking the task of comparing a course of study and the nominated occupation for the purpose of identifying whether they are “closely related”: the nature of the nominated occupation is to be determined by reference to the [ANSZCO Code], which needs to read as a whole and with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation.... it is not appropriate to rely upon the applicant’s view or description of what the occupation entails or the applicant’s view of the degree of any relevant connection.": Mansha v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 57.
PAM3, Sch 6: <https://www.homeaffairs.gov.au/foi/files/2020/fa-200601127-document-released.pdf>, archived at <https://web.archive.org/web/20250509064040/https://www.homeaffairs.gov.au/foi/files/2020/fa-200601127-document-released.pdf>.
189, Procedural Instruction, 2017: <https://www.homeaffairs.gov.au/foi/files/2023/fa-230900697-document-released.PDF>, archived at <https://web.archive.org/web/20250824100622/https://www.homeaffairs.gov.au/foi/files/2023/fa-230900697-document-released.PDF>.
[Div1.2/reg1.15F] Reg 1.15F - Australian study requirement, 9 September 2025: text <https://legend.online.immi.gov.au/migration/2021-2024/2025/09-09-2025/policy/Pages/_document00002/_level%20100019/level%20200298.aspx>.
Statistics, Solicitor Occupation - DHA:
> FOI Request FA 22/12/01068 <https://www.homeaffairs.gov.au/foi/files/2023/fa-221201068-document-released.PDF>.
> Freedom of Information Request FA 22/11/00892 <https://www.homeaffairs.gov.au/foi/files/2022/fa-221100892-document-released.PDF>
> FOI Request FA 22-09-01227 <https://www.homeaffairs.gov.au/foi/files/2022/fa-220901227-document-released.PDF>
> FOI Request FA 22/08/00748 <https://www.homeaffairs.gov.au/foi/files/2022/fa-220800748-document-released.PDF>.
SkillSelect API - Expression of Interest (EOI) Statistics: <https://api.dynamic.reports.employment.gov.au/anonap/extensions/hSKLS02_SkillSelect_EOI_Data/hSKLS02_SkillSelect_EOI_Data.html>.
Number of 189 visas granted and refused per occupation, 2012-13 to 31 January 2020: <https://www.homeaffairs.gov.au/foi/files/2020/fa-200100492-document-released.PDF>, archived at <https://web.archive.org/web/20250824050845/https://www.homeaffairs.gov.au/foi/files/2020/fa-200100492-document-released.PDF>. -- includes 271311 Solicitor.
Policy Intent:
> Skilled Independent Visas - Policy intent - SkillSelect Invitation Rounds: "Skilled migrants make a significant positive impact to Australia's economy. The points tested visa programs, subject to planning levels under the permanent Migration program, are effective in securing migrants with the right skills to address shortages and prepare for our future capability needs. Migrants arriving on a Skilled Independent (subclass 189) visa are invited by the Commonwealth, and are the largest per capita contributors to GDP1, with the highest participation rate2 amongst skilled visa programs. ... The points test assesses prospective migrants on a set of human capital characteristics, including education, age, English language ability and work experience. These are indicators of long-term success, labour market adaptability, and lifetime net fiscal contribution and economic impact. The platform where Expressions of Interest (EOls) are submitted, SkillSelect, ranks applicants on their points test score. This ranking is used to guide who the Department issues an invitation to apply for a subclass 189 visa, and the Skilled Work Regional (Provisional) (Family Sponsored) (subclass 491) visa. Occupation has a strong effect on lifetime earnings, and has a strong association with particular skills, capabilities and education levels. A considered approach to occupation-based selection in invitation rounds is required to capitalise on such opportunities. During the pandemic, the Department departed from its established process for managing invitation rounds in order to support economic recovery by targeting high priority occupations in critical sectors (healthcare and teaching). There is now an opportunity to design a new process and prioritisation model that is evidence-based, agile, transparent and accountable. ...": DHA, FOI No. FA 25/07/00572, 1 October 2025 <https://www.homeaffairs.gov.au/foi/files/2025/fa-250700572-document-released.PDF>, archived at <https://web.archive.org/web/20251101054138/https://www.homeaffairs.gov.au/foi/files/2025/fa-250700572-document-released.PDF>.
> "7. The applicant was invited to apply for a Skilled – Independent (points-tested) (Subclass 189) visa (the visa) on 18 April 2018. He lodged the application in response to the invitation on 3 June 2018. As the name suggests, these visas are available to skilled persons who can establish their suitability for particular work in Australia using a points system. Regulation 2.26AC of the Migration Regulations 1994 (Cth) (the Regulations) requires that the applicant must be allocated points having regard to the attributes in sch 6D to the Regulations. Clause 189.224(2) of sch 2 to the Regulations says the applicant must be allocated the minimum number of points specified in the invitation to apply for the visa.": Alsheri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 242.
Invitation Rounds
21 August 2025.
13 November 2025: see -- (Facebook Post, 7 November 2025) <https://www.facebook.com/AusHomeAffairs/posts/pfbid034U4RcdWHZb6niHNKZHj5r2fLPJd97XqoXPynQqzYqRm3ux1gCKdwvRKiuEPF4N35l>, archived at <https://archive.is/Sr95h>; see also, <https://archive.is/Bl8vi>: "Are you a highly skilled worker who wants to live and work permanently in Australia? The next invitation round for the 189 Skilled Independent visa (points tested stream) will be on 13 November. Australia wants a wide range of highly skilled workers – including educators, health workers and medical specialists. Start getting your documents together and submit an expression of interest. Don’t have enough time? There will be more opportunities. We're now planning quarterly 189 invitation rounds. ..."
[B] Employment in the Skilled Occupation - Points Test - Sch 6 Migration Regulations 1994 (Cth)
"[9] 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 (reg 1.15I). ...": Nguyen (Migration) [2024] AATA 3334.
PAM3 - Points Test - Employment
Legendcom, PAM3:
> Closely related occupations: [Sch6D] Schedule 6D general points test for General Skilled Migration visas mentioned in subregulation 2.26AC(1), 9 September 2025: text. <https://legend.online.immi.gov.au/migration/2021-2024/2025/09-09-2025/policy/Pages/_document00003/level%20100252.aspx> -- "... 10.5 Closely related occupations Applicants can claim points for employment in their nominated skilled occupation or a closely related skilled occupation in the 10 years immediately preceding the date of the invitation to apply for the visa. Although skilled employment experience within the 10 years immediately before the time of invitation to apply for the visa, would generally involve work in the applicant’s nominated skilled occupation, it is also policy to award points to applicants if their career has advanced, or the occupation has evolved in the relevant period. In these circumstances, to be awarded points, the claimed employment will need to be in a skilled occupation that is closely related to the applicant’s nominated skilled occupation. Under ANZSCO, occupations are grouped together to form “unit groups”. Generally, all unit groups are at one skill level. Skill level is defined as a function of the range and complexity of the set of tasks performed in a particular occupation, and is generally measured by the required level or amount of formal education and training, previous experience in a related occupation, or on the job training. Under policy, closely related skilled occupations are those occupations that fall within one unit group classified under ANZSCO. For example, if an applicant’s nominated occupation is Accountant (General) (221111) and the applicant has provided evidence of skilled employment in the occupations of Management Accountant (221112) and Taxation Accountant (221113), decision makers should consider these periods of employment as closely related for the purpose of awarding points. For the purpose of awarding points, an applicant’s skilled employment experience can be in their nominated occupation or any closely related skilled occupation that appears on the skilled occupation list/s applicable to the visa subclass for which they have applied, see regulation 1.15I. 10.6 If careers have advanced over the 10 years prior to invitation Career advancement would usually take the form of promotion to a senior role or higher level that relates to a field of expertise and incorporates greater responsibility. For example, it is possible that over a 10-year period an accountant or engineer could advance in their career to a Chief Accountant or Chief Engineer, or a Chief Executive Officer. This type of career advancement may occur outside of the four-digit ANZSCO unit group but can be considered an exception to the policy requirement that closely related occupations be in the same ANZSCO unit group if it follows a well-established path for career advancement. Whilst most occupations within the 10-year period would, in most instances, be covered by the three-digit ANZSCO Minor group code. There may be reasonable instances outside this, for example, a Geologist could transition to a University Lecturer and use their geology experience as a Lecturer. Exceptions would also likely be seen with applicants who claim to be in managerial positions, which would fall within the Major group. ..."
> [Sch6D] General points test for General Skilled Migration visas mentioned in subregulation 2.26AC(1), 18 August 2019 (July 2014): text. <https://legend.online.immi.gov.au/migration/2017-2020/2019/18-08-2019/policy/Pages/_document00003/level%20100252.aspx> -- "... Because the instruction has not been owner-reviewed/updated since July 2014, the instruction is otherwise likely to be incomplete, inaccurate and/or out-of-date. ... [EMPLOYMENT] When can employment be considered skilled For employment to be awarded points under Schedule 6D, it should meet the following standards: had been undertaken at the required standard after the applicant met the entry level requirements as set by the relevant assessing authority for that occupation (that is, completed a sufficient level of study and or amount of on-the-job training and or post-qualification work experience and or registration requirement) and involve duties at the level of depth and complexity expected in Australia. If the relevant assessing authority has not provided an opinion on skilled employment and there are no standards set by the relevant assessing authority available in the public domain, decision makers should refer to guidance in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) when assessing the applicants’ skilled employment claims. When is an applicant skilled An applicant is considered skilled for the purpose of obtaining skilled employment points from the date the relevant assessing authority assessed them as suitable in their nominated skilled occupation: If a skills assessment provides a date at which the assessing authority is of the view that the applicant became suitably skilled for awarding employment points, the department will consider only employment undertaken from that date as meeting the skilled employment experience criteria in Schedule 6D. For example, if an applicant has obtained a skilled employment opinion from Australian Computing Society (ACS), they should record in SkillSelect the periods of employment the ACS has determined are at the skilled level and eligible for being awarded points. The date on which an applicant becomes suitably skilled for employment experience points may be different from the date on which a relevant assessing authority assesses the person as suitable. For example, a relevant assessing authority may issue a suitable skills assessment on the basis of attainment of a tertiary qualification but may require a period of post qualification work experience before considering an applicant as suitably skilled for the purpose of employment points. If the applicant has made claims of skilled employment periods that are not considered by the assessing authority on the skills assessment, the department may refer to publicly available information set by the relevant assessing authority or ANZSCO in order to make a full assessment of the claims. This situation might arise if an applicant is claiming skills over a ten year period but the skills assessment states that it only assesses claims of work experience undertaken in the 5 years immediately prior to skills assessment. ... ... Closely related occupations If occupations have evolved or careers have advanced over the 10 years prior to invitation Applicants can claim points for up to ten years of skilled employment experience in the relevant period. Although skilled employment experience within the 10 years immediately before the time of invitation to apply for the visa may primarily involve work in the applicant’s nominated skilled occupation, it is also policy to award points to applicants if their career has advanced or the occupation has evolved in the relevant period. In these circumstances, to be awarded points, the claimed employment will need to be related to the applicant’s nominated skilled occupation, and at the skill level of the applicant’s nominated occupation. Under policy, closely related occupations are those occupations that fall within one unit group classified under ANZSCO. Under ANZSCO, occupations are grouped together to form “unit groups”. Generally, all unit groups are at one skill level. Skill level is defined as a function of the range and complexity of the set of tasks performed in a particular occupation, and is generally measured by the level or amount of formal education and training, previous experience in a related occupation or on the job training. For example, if an applicant’s nominated occupation is Accountant (General) and the applicant has provided evidence of skilled employment in the occupations of Management Accountant (221112) and Taxation Accountant (221113), decision makers should consider these periods of employment as closely related for the purpose of awarding points. For the purpose of awarding points, an applicant’s skilled employment experience can be in the nominated occupation or any closely related skilled occupation and is not limited to an occupation on the SOL. It can also include occupations on the CSOL. As the points test recognises extensive skilled employment as an important attribute for achieving good labour market outcomes, the policy intention is to ensure an applicant is not disadvantaged by limiting skilled employment experience to an occupation on the SOL. Career advancement would usually take the form of promotion to a senior role or higher level that relates to a field of expertise and incorporates greater responsibility. For example, it is possible that over a 10 year period an accountant or engineer could advance in their career to a chief accountant or chief engineer, or a chief executive officer. This type of career advancement may occur outside of the four digit ANZSCO unit group but can be considered an exception to the policy requirement that closely related occupations be in the same ANZSCO unit group if it follows a well-established path for career advancement."
> [Sch2Visa189] Subclass 189 (Skilled – Independent) visa, 9 September 2025: text. <https://legend.online.immi.gov.au/migration/2021-2024/2025/09-09-2025/policy/Pages/_document00003/level%20100151.aspx>.
> [Sch2Visa190] Subclass 190 (Skilled Nominated) Visa, 9 September 2025: text. <https://legend.online.immi.gov.au/migration/2021-2024/2025/09-09-2025/policy/Pages/_document00003/level%20100152.aspx>.
> [Sch2Visa485] Subclass 485 (Temporary Graduate) visa, 26 February 2021: text. <https://legend.online.immi.gov.au/migration/2017-2020/2020/26-02-2021/policy/Pages/_document00003/level%20100180.aspx> -- "... 3.8.2. ... Note: A Master Degree (Extended) qualification generally has the title “Master of…”. The following exceptions apply: the use of the title “Juris Doctor” is permitted for a Master Degree (Extended) for legal practice; the use of the title “Doctor of ...” is permitted for a Master Degree (Extended) for five professions: medical practice; physiotherapy; dentistry; optometry and veterinary practice. Qualifications in these categories must not be confused with Level 10 of the AQF “Doctoral Degree”."
> [Sch2Visa485] Sch2Visa 485 – Temporary Graduate visa, 1 January 2021: text. <https://legend.online.immi.gov.au/migration/2017-2020/2020/01-01-2021/policy/Pages/_document00003/level%20100180.aspx>. -- "... Professional membership or registration is not a skills assessment Evidence of membership of an Australian professional society - for example, membership of the Australian Institute of Management - is not an assessment by a relevant assessing authority of the skills of an applicant for a nominated occupation and does not satisfy 485.224. However, if the nominated occupation is Solicitor, Barrister or General Medical Practitioner the applicant will only be able to practice in that nominated occupation after they have obtained a provisional registration or State Board registration. Therefore provisional registration for the nominated occupations of Solicitor, Barrister & General Medical Practitioner will be acceptable for the purposes of meeting the skills assessment requirement in 485.224.".
> [Sch2Visa482] Temporary Skill Shortage visa (subclass 482) – visa applications, 1 July 2025: text. <https://legend.online.immi.gov.au/migration/2021-2024/2025/01-07-2025/policy/Pages/_document00003/level%20100179-5.aspx>: "3.4.3.4. Providing evidence of skills, qualifications and employment background As noted above, some TSS visa applicants are required to commence a skills assessment prior to lodging their application as outlined at section 3.2.7 Mandatory skills assessments. Where this applies, evidence of successful completion of such an assessment should be requested where not already provided at time of application. Where a mandatory skills assessment is not required, decision makers need to decide whether: they are satisfied that subclause 482.212(3) is met based on information provided with the visa application – e.g. the visa applicant is a lawyer and has provided academic transcripts from their law degree, evidence of completing required practical professional training, a comprehensive CV, and work references outlining previous work experience; or additional information needs to be requested – e.g. ANZSCO requires the visa applicant to have educational qualifications plus work experience, however, the CV provided does not clearly outline what experience the visa applicant has, and work references would assist the delegate to assess whether subclause 482.212(3) is met; or a discretionary skills assessment should be requested."
> [Sch2Visa457] Temporary Work (Skilled) visa (subclass 457) – visa applications, 17 January 2018: text <https://legend.online.immi.gov.au/migration/2017-2020/2018/17-01-2018/policy/Pages/_document00003/level%20100176.aspx> -- "4.7.6.3. Providing evidence of skills, qualifications and employment background See section 4.7.7 Skills Assessments for advice about requesting and managing skills assessment results. Where a mandatory skills assessment is not required under policy, decision makers need to decide whether: they are satisfied that paragraph 457.223(4)(da) is met based on information provided with the visa application – for example, the visa applicant is a lawyer and has provided transcripts from their law degree as well as evidence of completing required practical professional training, a comprehensive CV and work references outlining previous work experience; or additional information needs to be requested – for example, ANZSCO requires the visa applicant to have education qualifications plus work experience, however, the CV provided does not clearly outline what experience the visa applicant has, and work references would assist the delegate to assess whether paragraph 457.223(4)(da) is met; or a discretionary skills assessment should be requested. Note: as a general principle, discretionary skills assessments should only be requested where considered absolutely necessary in consultation with 457 program management."
> Temporary Skill Shortage visa (subclass 482) – visa applications, 16 November 2019: text <https://legend.online.immi.gov.au/migration/2017-2020/2019/16-11-2019/policy/Pages/_document00003/level%20100179-5.aspx>: "4.3.5.3 Providing evidence of skills, qualifications and employment background As noted above, some TSS visa applicants are required to commence a skills assessment prior to lodging their application as outlined at section 4.2.8 Mandatory skills assessments. Where this applies, evidence of successful completion of such an assessment should be requested where not already provided at time of application. Where a mandatory skills assessment is not required, decision-makers need to decide whether: they are satisfied that sub-clause 482.212(3) is met based on information provided with the visa application – for example, the visa applicant is a lawyer and has provided transcripts from their law degree as well as evidence of completing required practical professional training, a comprehensive CV and work references outlining previous work experience; or additional information needs to be requested – for example, ANZSCO requires the visa applicant to have educational qualifications plus work experience, however, the CV provided does not clearly outline what experience the visa applicant has, and work references would assist the delegate to assess whether sub-clause 482.212(3) is met; or a discretionary skills assessment should be requested - see section 4.3.6 Skills Assessments below. Examples of circumstances in which decision-makers may require further evidence such as formal qualifications, CV, employment references or a skills assessment include: where concerns exist about the validity of the documentary evidence provided; where concerns have been raised about the Registered Training Organisation (RTO) that provided the qualification, including where it is unclear on what basis a qualification awarded through Recognised Prior Learning (RPL) was obtained; if the occupation is not the same as the current one - particularly if it is in a different ANZSCO unit group; and if the visa holder’s qualifications and experience do not appear to correspond with that required. Note: Sub-clause 482.212(3) may be considered met without further investigation if it is necessary for the visa applicant to hold registration, licensing or professional membership to perform the nominated occupation, and they provide evidence of holding this. If a former Temporary Graduate (subclass 485)( or Student (subclass 500) visa holder submits evidence of a successful Job Ready Program Final Assessment in their nominated occupation, decision-makers can consider the skills requirement met without further investigation. Australian Recognised Trades Certificates (ARTC) are issued for a specific purpose and are not acceptable to be used for migration purposes. Sport-related occupations often require high levels of personal commitment, physical fitness, sporting ability and ‘relevant experience’ in the occupation in lieu of formal qualifications. Key factors in determining if a visa applicant has the skills as a sportsperson include: an employment record as an elite full-time professional in the nominated occupation; ‘recent experience’ as a full-time elite player or coach for a substantial period under Australian standards; ‘relevant and recent experience’ that does not include experience as a trainee, apprentice or cadet and/or non-professional experience; and the nominated position does not require the nominee to supplement their sporting activities with ancillary work or income (that is, the nominee would have one position in Australia and would not work for any other employer or in any activity not approved in the nomination application). If the visa applicant has at least 3 years elite-level professional experience (in lieu of formal qualifications) in the nominated occupation, decision-makers may consider the skills requirement met without further enquiry. The elite and professional status of the visa applicant should be demonstrated by past income records. The income must be substantiated against national income levels and be the principal source of income. Visa applicants may also be asked to provide references from the relevant national administrative body of the sport in which the visa applicant is engaged, showing the skill level and income received."
> PAM3 -- Skills Assessment - Legal Practitioners, 1 March 1999: text. <https://legend.online.immi.gov.au/migration/1994-2005/legend_1994_1999_m/legend_1999_m/legend_01_03_1999_m/legend_01_03_1999_mp/Pages/_document00000/_level%20100183/level%20200776.aspx>. -- Superseded.
-> this document refers to Articled Clerks ASCO 2605-91, which is found in the first edition of the ASCO. This occupation class is not found in the ASCO 2nd Ed, nor the ANZSCO.
-> ASCO 1st Ed <https://www.whatjobspay.com.au/doc/ASCO%20Dictionary,%20First%20Edition.pdf>.
-> ASCO 1st ed to ASCO 2nd ed concordances tables -- ABS Cat. no. 1220.0 ANZSCO -- Australian and New Zealand Standard Classification of Occupations, First Edition Revision 1, Correspondence Tables -- ANZSCO First Edition Revision 1 to ASCO Second Edition: <https://www.abs.gov.au/ausstats/abs@.nsf/66f306f503e529a5ca25697e0017661f/3a896b570f4d4057ca25697e0018527b!OpenDocument>. Groups 1-4 <https://www.abs.gov.au/ausstats/abs@.nsf/66f306f503e529a5ca25697e0017661f/A51A8A07B1FE8274CA25697E0018527C?opendocument>: "2605-13 Solicitor -- 2521-13 Solicitor; 2605-91 Articled Clerk -- 2521-79p Legal Professionals nec; 2605-99 Lawyers nec -- 2521-79p Legal Professionals nec".
-> ASCO 2nd Ed -- ANZSCO correspondence / concordance tables: <https://www.abs.gov.au/ausstats/abs@.nsf/Previousproducts/C535B3808974AB51CA2575DF002DA70A?opendocument>. Excel Sheet: <https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.ausstats.abs.gov.au%2Fausstats%2Fsubscriber.nsf%2F0%2FF30E72E1516495BDCA2575DF001C7441%2F%24File%2F12200%2520anzsco%2520first%2520edition%2520revision%25201%2520to%2520asco%2520second%2520edition%2520correspondence%2520tables.xls&wdOrigin=BROWSELINK>,
-> 6 Digit Level (Occupation): Table 1: "271299 Judicial and Other Legal Professionals nec 2521-79 Legal Professionals nec"; Table 2 "2521-79 Legal Professionals nec -- 271299 p Judicial and Other Legal Professionals nec";
-> 4 Digit Level (Unit Group): Table 3: "2712 Judicial and Other Legal Professionals 2521 p Legal Professionals; 2713 Solicitors 2521 p Legal Professionals"; Table 4: "2521 Legal Professionals 2711 Barristers; 2521 Legal Professionals 2712 p Judicial and Other Legal Professionals; 2521 Legal Professionals 2713 Solicitors"
> [Div 2.6] Div 2.6 - Prescribed qualifications - Application of points system, 9 September 2025: text. <https://legend.online.immi.gov.au/migration/2021-2024/2025/09-09-2025/policy/Pages/_document00002/level%20100041.aspx> -- "the definition of employed is particularly relevant to Schedule 6D employment experience factors - see see PAM3: Sch6D - General points test for General Skilled Migration visas mentioned in subregulation 2.26AC(1) - Employment. ["Employment" was deleted from the PAM on 01/07/2014 - LEGEND note]".
> SKILLS, EXPERIENCE AND QUALIFICATIONS, 2000: page 1 text <https://legend.online.immi.gov.au/migration/1994-2005/legend_2000_2005_m/legend_2000_m/legend_13_04_2000_m/legend_13_04_2000_mp/Pages/_document00000/_level%20100203/level%20200942.aspx>, page 2 text <https://legend.online.immi.gov.au/migration/1994-2005/legend_2000_2005_m/legend_2000_m/legend_13_04_2000_m/legend_13_04_2000_mp/Pages/_document00000/_level%20100203/_level%20200942/level%20200943.aspx>. -- "6.3 Full-time students Casual/part-time employment 6.3.1 It is possible for full-time students (e.g. the holder of a Student visa as a student) to meet the ‘employed’ definition (although not necessarily in an occupation that would meet any ‘skilled occupation’ criterion). 6.3.2 It should be noted however, that student visa conditions place strict limits on the number of hours the visa holder is allowed to work. Casual work as a tutor, researcher or lecturer is unlikely to take up a sufficient proportion of a student’s time or cover the full range of duties for that employment to have been at a ‘skilled occupation’ level (which must be at least 20 hours a week - see regulation 2.26A). However, if a student is claiming to have a usual occupation as e.g. a lecturer or tutor, officers should seek further information about the student’s employment. Pre-graduation employment 6.3.3 Part-time work experience undertaken while completing a course of study may be used in establishing whether the person has been employed for the prescribed period but, since the relevant qualification has not been completed, the work experience would generally be at the “semi-skilled” rather than the “skilled” level. 6.3.4 Take for example, a person who works in an accountancy firm during the course of their accountancy degree and, after the degree has been awarded, works as an accountant for two months before applying for a visa. The applicant’s experience as an accountant is not sufficient to satisfy the ‘skilled occupation’ criterion as an accountant. However, the applicant would still have been employed at a lower skill level i.e. an accounts clerk. Postgraduate employment 6.3.5 The question may arise as to whether work experience undertaken during postgraduate study may be regarded as employment for purposes of employment in a skilled occupation. In particular, cases may arise of students with a “recognised” degree undertaking graduate courses that are practically-oriented and require the student to work in a standard work environment on a daily basis. 6.3.6 The critical issues are whether the student was paid and whether the work experience was after completing the relevant qualification and is at the skilled level (as required by the various employment factors) and may best be illustrated by example: An applicant with a recognised degree in physiotherapy and a favourable skills assessment from AECOP is undertaking a graduate course that is practically-oriented. As the applicant has a favourable skills assessment, their graduate course work experience may be regarded as post-qualification skilled employment provided it otherwise meets the 20 hour a week requirement. .... 7.3 Employment in closely-related occupations 7.3.1 Schedule 6A item 6A41 (which applies only to item 6A11 gazetted “60 point” occupations) takes into account the applicant’s employment in their nominated skilled occupation or a closely related skilled occupation. 7.3.2 Under policy, a ‘closely related occupation’ would usually be a job in the same industry and in which the occupant exercises substantially the same skills or requires the same qualifications. This term is, however, relevant only in establishing how much work experience a Schedule 6A applicant has had for Part 4. It cannot be used in assessing the applicant against the Schedule 2 employment experience criterion [136.213 or equivalent]. ... ".
> Skills Assessment - Clerk, 17 March 1995: text <https://legend.online.immi.gov.au/migration/1994-2005/legend_1994_1999_m/legend_1995_m/legend_17_03_1995_m/legend_17_03_1995_mp/Pages/_document00000/_level%20100155/level%20200560.aspx>: "... 3.6 Where it is clear that an applicant is working in a specialised position in an administrative environment in the public or private sector, and has acceptable formal qualifications in a specialised area, the applicant should be assessed on the basis of their specialised skill (ie against the guidelines for that occupation), eg: - a public sector lawyer should be classified as a lawyer not an administrative officer; ..."
General Framework
"17. 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’. 18. 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 (reg 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). 19. 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 (reg 1.15I). The relevant instrument for this purpose is LIN 19/051. ...": Ndhlema Kakunka (Migration) [2023] AATA 2896 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2023/2896.html>.
"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). 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. 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).": CARAMBAS (Migration) [2020] AATA 5094 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2020/5094.html>. See also, SAMUEL (Migration) [2019] AATA 1079 , [4]-[6]; Gofran (Migration) [2023] AATA 3768, [9]-[11]; YANG (Migration) [2017] AATA 387, [6]-[7].
Migration Regulations 1992 (Cth), Schedule 6, 6D42: "… had been employed in Australia in: (a) the applicant's nominated skilled occupation; or (b) a closely related skilled occupation ...".
PAM3, Sch 6D: "[10.4.1] 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. … 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.”
"20. In considering an applicant's usual occupation, the Tribunal refers to relevant information contained in the second edition of the Australian Standard Classification of Occupations (ASCO), which was published by the Australian Bureau of Statistics in 1997. When using that reference material and determining an applicant's usual occupation, the Tribunal is mindful of the decision of the Federal Court of Australia in Zeng Guang Wang v Minister of Immigration and Multicultural Affairs [1998] FCA 30 (30 January 1998). In that case, Wilcox J held that a person's usual occupation and the requirements for that occupation is a question of fact to be determined by the delegate. The decision-maker can gain assistance from ASCO second edition but is not bound by the classifications contained in that material. Finally, when determining an applicant's usual occupation, a decision-maker should consider how the composite of an applicant's work duties, training and previous work experience would be described in Australia.": Gill, Virinder Singh [2002] MRTA 4962 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2002/4962.html>.
> BUT NOTING this was relevant to a different statutory context of assessing usual occupation: "18. In considering an applicant's usual occupation, the Tribunal refers to relevant information contained in the second edition of the Australian Standard Classification of Occupations (ASCO), which was published by the Australian Bureau of Statistics in 1997. When using that reference material and determining an applicant's usual occupation, the Tribunal is mindful of the decision of the Federal Court of Australia in Zeng Guang Wang v Minister of Immigration and Multicultural Affairs [1998] FCA 30 (30 January 1998). In that case, Wilcox J held that a person's usual occupation and the requirements for that occupation is a question of fact to be determined by the delegate. The decision-maker can gain assistance from ASCO second edition but is not bound by the classifications contained in that material. Finally, when determining an applicant's usual occupation, a decision-maker should consider how the composite of an applicant's work duties, training and previous work experience would be described in Australia.": Alcordo, Nelba [2000] MRTA 4804 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2000/4804.html>.
"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. 19. 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: 22. 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. 23. 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. ... ": Lorenzo Boccabella, 'Skilled Visa Paper' (CPE Migration, 7 January 2025) <https://www.cpemigration.com.au/mlp-journal-1/skilled-visa-paper>, archived at <https://archive.is/ndnmW>.
Lecturer of an Occupation
"13 One of the applicant’s referees says, among other things, that ‘She is rich in professional design experience’. That referee appears to be a senior practising architect and a former dean of the applicant’s University’s Architecture Department. 14 Given the applicant has such a background, if one could deduce a purpose for the criteria prescribed which might induce a sense of ambiguity about the relevant phraseology of the relevant criterion, I should readily do so. However, I think that no such purpose can be deduced. 15 The entire structure of the relevant criteria appears to be to minimise qualitative arguments of the kind urged by the applicant. Thus, the entire issue of previous work experience may be avoided by an applicant for the subject visa by resort to an alternative criterion. This is that an applicant has ‘completed a degree, diploma or trade qualification for award by an Australian educational institution as a result of at least 2 years of full-time study at that institution while the applicant was present in Australia’, if that course was completed in the six months immediately before the day when the application was made and instruction for the award of the qualification was conducted in English (see cl 136.213(2)). 16 The only purpose underlying the criteria that one can deduce is that either such an Australian qualification (presumably by reason of what is known to the Minister as the requirements of Australian institutions) suffices to give an applicant sufficient relevant current practical skills or current practical skills must be proven by actual engagement for pay for at least 20 hours per week in the defined occupation. 17 There is no scope, in my opinion, for going outside the ASCO definition of an architect. There is nothing to indicate that what is described by that definition was intended to be merely indicative of persons who have very high levels of architectural training skills and ability and who teach in subjects necessary to qualify people as an architect, when that teaching does not also constitute direct engagement in designing buildings or advising on their procurement or subsidiary tasks thereto, including supervision of building projects. ... 20 The whole notion of visas for skilled immigrants clearly has in mind the benefit of the Australian community at large. The avoidance of difficult and imprecise qualitative judgments in the assessment of immigrant applications must be regarded as being in the interests of the Australian community. ... 22. I cannot leave this case without saying that an unfortunate set of circumstances has been revealed. The applicant appears to be an extremely well-qualified architect, if not falling within the narrow visa criteria, and her husband also appears, from the material before the Court, to be a well-qualified man in his own field. If there is any means by which the Minister might now reconsider this matter outside the narrow confines of the visa criteria in question, this would appear to be an appropriate case for such reconsideration, rather than leaving the applicant to such comfort as she may be able to derive by altering her employment arrangements in China for a year, if she can, and, in any event, undergoing the further trouble and, no doubt, the expense of another formally supported visa application.": Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 843.
Graduate
Graduate Architect for the Occupation of Architect: "“[33] Mr Di Mase also writes that the review applicant was employed as an architectural graduate from 15 June 2008 to 1 July 2013; that is until after the date of application. Further, the Tribunal notes that for the purposes of Part 6B.5, the delegate was satisfied on the information before her that the review applicant had been employed in Australia in her nominated skilled occupation or a closely related skilled occupation for a period totalling at least 12 months in the 48 months before the day on which the application was made. According to IMMI 12/068, the occupation of architect (ANZSCO 212111) is a skilled occupation.”: 1317620 [2014] MRTA 1346.
Graduate Architect, not listed on ANZSCO as its own occupation - employment in Occupation of Architect - subset of the Occupation: "70. The ANZSCO description above states that registration or licensing is required to work as an Architect. As noted previously, Mr Kairouz’s evidence at hearing was that Architects must be registered but Graduate Architects do not have to be registered, even though they mostly carry out the same tasks, albeit generally at different levels of seniority. The Tribunal notes that the ANZSCO online dictionary does not contain a separate entry for the occupation of Graduate Architect. ... 71. The Tribunal was referred by the nominee’s agent to the Department’s Procedures Advice Manual (PAM3) (as it was as at the time the nomination application was lodged), which provides the following guidance in relation to the ‘mandatory licensing’ requirement in relation to subclass 186 visas: 9. EN-186 mandatory registration, licensing or similar 9.1 Mandatory registrations, licensing or similar Clause 186.211 refers: If, in order for a person to work in an occupation where registration, licensing or professional membership is mandatory in the State/Territory in which the position is located, the applicant must hold, or be eligible to hold, the relevant registration, licence or membership, at the time of application. Registration and licensing requirements are generally specified in Commonwealth or State/Territory legislation that would apply to a specific occupation or trade and would be administered by a specific authority specified in the legislation. Visa applicants must provide evidence of registration, licensing or professional membership or eligibility for registration, licensing or professional membership at the time of application. Evidence that predates the date of application but submitted after the application is made may be accepted if submitted before a decision is made on the application. Evidence dated/obtained after the visa application is made does not meet 186.211 requirements. 9.2 Registration/licensing cannot be waived If it applies, the mandatory registration, licensing or membership criterion cannot be waived under any circumstances. 9.3 Definition of ‘mandatory’ Registration, licensing or professional membership: is considered mandatory for visa purposes only if every person working in that occupation is required to have some form of registration, licensing or professional membership is not considered mandatory if a person can perform work in the occupation without registration or similar, even if the work has to be performed under supervision. If, for visa purposes, registration, licensing or professional membership is mandatory (as described above), the registration, licensing or professional membership held must not impose further requirements or limit the ability of the person to perform the full range of tasks and the person must not require further training or on-the-job supervision: an applicant with conditional or provisional registration, licensing or professional membership that requires them to undergo additional safety or occupational training or to work in supervised workshops does not satisfy 186.211 but continuing professional development requirements of fully registered or licensed applicants are acceptable, however, and such applicants satisfy 186.211. Example: The occupation of architect helps explain the above principles. Registration in the occupation of architect is not considered mandatory (for visa purposes) because a person can work without registration, provided they work under the supervision of a registered architect. The important point of difference between this occupation and that of the medical practitioner in the context of 186.211 is that the fact that the person works under supervision is irrelevant, because registration is not mandatory in that occupation. This means that an architect who works under supervision can satisfy 186.211. 9.4 Ascertaining whether registration/licensing is required There is no single definitive source that covers registration, licensing or membership requirements across occupations identified within the ANZSCO framework. This is partly because registration and licensing requirements are generally managed at State/Territory level through industry or occupation specific legislation. The starting point in assessing whether a particular occupation requires licensing, registration or specific membership is the ANZSCO dictionary. The dictionary refers to registration, licensing and professional membership requirements at the Unit Group level for each group of occupations. Information in the dictionary: indicates that registration, licensing or professional membership ‘is’ required, if this is mandatory or where requirements vary across States/Territories, indicates that registration, licensing or professional membership ‘may’ be required or “is silent” if registration, licensing or professional membership is not required at all. If necessary, officers can obtain detailed information about registration, licensing or professional membership through the visa applicant or nominator or directly from the registering authority, keeping in mind that requirements may vary across States/Territories. If uncertain as to the registration or licensing requirements that may apply to a particular occupation or whether such registration or licensing would be considered mandatory, officers are to refer to this instruction’s owner for advice. 72. Although the above guidelines are expressed in relation to the subclass 186 visa requirements, the Tribunal nevertheless considers them relevant to the issue raised by r.2.72(10)(f), which is whether the nominated position is genuine. Although the nominated occupation is Architect, which ANZSCO states requires registration, the nominated position in which the nominee is working is Graduate Architect , for which the Tribunal accepts registration is not required. The Tribunal has reviewed the website of the peak Australian body for the profession, the Australian Institute of Architects, which (amongst other things) offers memberships to registered Architects, Graduates and students: Overview – Australian Institute of Architects (architecture.com.au). 73. In the Tribunal’s view, this, in combination with the fact that there is no separate ANZSCO listing for Graduate Architects , supports a conclusion that Graduate Architects should be considered a subset of the ANZSCO occupational description of Architect, albeit a subset that does not require registration. This accords with the approach taken in the PAM3 extract cited above. While Departmental policy is not legally binding on the Tribunal, the Tribunal nevertheless considers it appropriate to follow it in this case, as it appears to reflect the reality of the profession in Australia. 74. Given the above, the Tribunal is satisfied that the duties of the nominated occupation and position largely and closely correspond with the ANZSCO description for an Architect. ...": Kairouz Architects and Associates Pty Limited (Migration) [2021] AATA 2266 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2021/2266.html>. --- query relevance to Solicitors and articled clerks, law graduates.
When can employment be considered Skilled?
"When can employment be considered skilled For employment to be awarded points under Schedule 6D, it should meet the following standards: - had been undertaken at the required standard after the applicant met the entry level requirements as set by the relevant assessing authority for that occupation (that is, completed a sufficient level of study and or amount of on-the-job training and or post-qualification work experience and or registration requirement) and - involve duties at the level of depth and complexity expected in Australia. If the relevant assessing authority has not provided an opinion on skilled employment and there are no standards set by the relevant assessing authority available in the public domain, decision makers should refer to guidance in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) when assessing the applicants’ skilled employment claims. When is an applicant skilled An applicant is considered skilled for the purpose of obtaining skilled employment points from the date the relevant assessing authority assessed them as suitable in their nominated skilled occupation: If a skills assessment provides a date at which the assessing authority is of the view that the applicant became suitably skilled for awarding employment points, the department will consider only employment undertaken from that date as meeting the skilled employment experience criteria in Schedule 6D. For example, if an applicant has obtained a skilled employment opinion from Australian Computing Society (ACS), they should record in SkillSelect the periods of employment the ACS has determined are at the skilled level and eligible for being awarded points. The date on which an applicant becomes suitably skilled for employment experience points may be different from the date on which a relevant assessing authority assesses the person as suitable. For example, a relevant assessing authority may issue a suitable skills assessment on the basis of attainment of a tertiary qualification but may require a period of post qualification work experience before considering an applicant as suitably skilled for the purpose of employment points. If the applicant has made claims of skilled employment periods that are not considered by the assessing authority on the skills assessment, the department may refer to publicly available information set by the relevant assessing authority or ANZSCO in order to make a full assessment of the claims. This situation might arise if an applicant is claiming skills over a ten year period but the skills assessment states that it only assesses claims of work experience undertaken in the 5 years immediately prior to skills assessment.": [Sch6D] General points test for General Skilled Migration visas mentioned in subregulation 2.26AC(1), 18 August 2019 (July 2014): text. <https://legend.online.immi.gov.au/migration/2017-2020/2019/18-08-2019/policy/Pages/_document00003/level%20100252.aspx> -- note that this section appears in the 2014-2019 version of the PAM3 and does not appear in the current PAM3 for Schedule 6D.
"16 Employment must be skilled 16.1 The human capital model Policy intention under the human capital model is to recognise highly skilled professionals with significant labour market experience and skills in their nominated occupation who can integrate in a highly competitive labour market and contribute to Australia’s demographic and economic future. Policy recognises skilled employment as a major contributing factor to successful labour market integration and better economic outcomes. 16.2 When can employment be considered skilled For employment to be awarded points under Schedule 6D, it must meet three requirements: • it was undertaken after the applicant meets at least the entry level requirements as set by the relevant assessing authority for that occupation (that is, completed a sufficient level of study and or amount of on-the-job training); • it involved duties at the level of depth and complexity expected in Australia, and • it meets the standards of skilled employment set by the relevant assessing authority for that occupation. In cases where the relevant assessing authority does not provide an opinion on skilled employment and there are no standards set by the relevant assessing authority available in public domain, case officers should consider the evidence of employment experience provided by the applicant at the date the applicant completes qualifications and necessary skilled employment as per the Australian and New Zealand Standard Classification of Occupations. 16.3 When is an applicant skilled An applicant is considered skilled and therefore eligible for claiming employment points from the date the relevant assessing authority considers the person to be skilled in the nominated occupation: • If a skills assessment provides a date at which the assessing authority is of the view that the applicant became ‘skilled’, case officers must ensure that any claimed employment experience under Schedule 6D took place from this date and not earlier. • The date on which an applicant becomes ‘skilled’ may be different from the date that an assessing authority finds that the person meets their requirement for a suitable skills assessment. For example, an assessing authority may issue a suitable skills assessment on the basis of attainment of a tertiary qualification but may require a period of post qualification work experience before considering an applicant ‘skilled’ for the purpose of employment points. Trade occupations For trade occupations for which licensing is mandatory to practise in Australia, a suitable skills assessment will either be a Migration Skills Assessment or an Offshore Trade Skills Technical Record (for certain countries and certain occupations). To gain a licence to practise in Australia, applicants have to undergo “gap training” in Australia that provides them with specific Australian knowledge such as Australian requirements, occupational health and safety regulations, codes of practice and other Australian standards. A successful completion of gap training enables an applicant to acquire the relevant Certificate III trade qualification. In these scenarios, applicants should be considered skilled from the date the relevant assessing authority, Trades Recognition Australia or its contracted Registered Training Organisation considers the person skilled and issues a suitable skill assessment, rather the date that the Certificate III trade qualification is issued. This is because applicants will not be able to attain the Certificate III trade qualification until after they have migrated to Australia. Australian medical practitioners Work as a medical practitioner that is undertaken by doctors during their internship year may be counted as skilled employment for the purpose of GSM applications. In addition, work as a medical practitioner that is undertaken by doctors on conditional registration (for example, doctors employed in Australian hospitals or practices on a UC-457 visa or other work visa) may also be counted as skilled work experience for the purpose of GSM applications. This is a deviation from the standard policy of assessing skilled employment. The basis for this is that doctors, unlike most other occupations, undertake an extremely high level of tertiary training before entering their internship. They are generally performing, while on an internship or working, all of the duties that a doctor who has completed their internship would be performing. They are paid at a level equivalent to a skilled worker and are usually working on a full-time basis (that is, at least 20 hours a week). This policy position is consistent with the whole-of-government approach that currently considers doctors to be in shortage across Australia. This exception relates only to the skilled employment factor. The threshold requirement of full registration continues to apply to doctors applying for GSM.": 'Employment' in Sch6D - General points test for General Skilled Migration visas mentioned in subregulation 2.26AC(1), 28 May 2014. text <https://legend.online.immi.gov.au/migration/2006-2016/2014/28-05-2014/legend_current_mp/Pages/_document00003/_level%20100252/level%20201034.aspx> -- note that this section does not appear in the current PAM3 for Schedule 6D.
"22 Employment must be skilled 22.1 Overview For employment to be considered ‘skilled’ it must meet two requirements: • that it was undertaken after the applicant met the entry level requirements for that occupation (that is, completed a sufficient level of study or amount of on-the-job training) and • that it involved duties at the level of depth and complexity expected in Australia. In assessing both factors, case officers should have regard to ANZSCO. For occupations for which ANZSCO does not provide adequate guidance, case officers should consider the requirements set by the relevant assessing authority. 22.2 When is an applicant skilled Skilled on basis of educational qualifications An applicant is taken to be capable of undertaking work at a skilled level only after they have met the entry level requirements for that occupation. If the entry level prescribed for the applicant’s nominated occupation is a certain qualification only work undertaken after the applicant has completed that qualification will be counted as skilled employment. For example to be a Systems Analyst, ANZSCO states that the entry level requirement is a bachelor degree or a higher qualification or at least 5 years relevant experience. If an applicant had worked in a systems analyst role while completing their bachelor degree, only the work undertaken after the academic requirements of the bachelor degree had been met would count as skilled employment - see section 23 Working while studying. 22.3 Skilled after on the job training The three main occupations for which on the job training can be used to obtain a suitable skills assessment are the trades, management positions and IT professionals. As these applicants do not have an identifiable date of registration or completion of their formal studies, the assessing body will normally prescribe a date as of which the applicant is assessed as meeting the Australian standard for the occupation. If this date has not been identified by the assessing authority, a case officer should have regard to ANZSCO in the first instance or where ANZSCO is silent, the guidelines used by the relevant assessing authority, to determine how long a person would need to work in that occupation before they would be considered to meet the Australian entry level requirement. Importance of this date for visa purposes The date an applicant met the Australian entry level requirement for their occupation, as prescribed by the assessing body or determined in accordance with the guidelines above, is the date from which an applicant can acquire skilled work experience in that occupation. Until that time, the applicant is in fact learning the job, albeit while on-the-job. They cannot therefore normally be assessed as performing the job at a skilled level. For example, ANZSCO provides that in relation to Software and Applications Programmers, the entry level requirement is either a bachelor level qualification or 5 years work experience (or relevant vendor certification may substitute for the formal qualification). If an applicant applied for a GSM visa and nominated a suitable occupation from the Unit Group Software and Applications Programmers, but had no formal qualification, the case officer would, on the basis of ANZSCO, only consider work after the applicant had been working in that occupation for 5 years to be at a skilled level. This means only work undertaken after working in that occupation for 5 years would be considered towards meeting the requirements for the award of points for the Overseas employment, Australian employment, Occupation in demand or the Partner skills factors.": 'The Employment Factor' in Sch6C - General points test - Qualifications and points (General Skilled Migration visas), 1 January 2013. text <https://legend.online.immi.gov.au/migration/2006-2016/2013/legend_20130101_m/legend_01_01_2013_mp/Pages/_document00003/_level%20100267/level%20201093.aspx> -- note that this section does not appear in the current PAM3 for Schedule 6D.
See also, CASE LAW below.
Working while studying - periods of employment while studying
"23 Working while studying 23.1 At the skilled level It is possible for student visa holders to meet the definition of employed. However, care should be taken in determining whether this employment was at the skilled level: • applicants must meet the entry level qualification as specified in ANZSCO (for example, a certificate III including at least two years of on-the-job training for a Carpenter, or a bachelor degree for an Accountant), before any work undertaken in that industry is considered to be skilled. Example 1: A person who worked in an architect’s firm for ten months during the course of their undergraduate architecture degree and continued in that role for two months after the degree was completed, has worked at a skilled level for only two months. The applicant’s experience as an architect employed at a skilled level is limited to the two months after obtaining the entry level qualification. By contrast, applicants pursuing advanced studies in Australia may be able to use work undertaken using their lower level qualification gained either in Australia or overseas to obtain additional points related to employment. Example 2: A person enrols in a Masters of Accounting course in Australia. While completing their studies they work in an Accounting firm using the skills they have gained in their overseas bachelor degree. This would be considered ‘skilled’ work. Example 3: A person completes a Certificate III in Cabinet making, before going on to study a Certificate IV in that field. If the person works using the skills gained in their Certificate III while completing their Certificate IV, this would be considered ‘skilled’ work. In all the examples above, the applicant would also need to be: • paid • working at least 20 hours a week • performing tasks that correspond with the ANZSCO descriptor for the occupation in question before they would be considered to have been ‘employed’ in a skilled occupation. 23.2 Postgraduate work placements The question may arise as to whether an applicant would have been ‘employed’ while undertaking work experience as a component of a postgraduate course. In particular, cases may arise where students have completed an undergraduate degree and go on to undertake a graduate course that is practically-oriented and requires the student to work in a standard work environment on a daily basis. The critical issues are: • whether the student was paid • whether the work was undertaken for at least 20 hours a week and • whether the work experience was undertaken after completing the relevant qualification and is at the skilled level (as required by the various employment factors). Example: An applicant with a degree in physiotherapy and a suitable skills assessment from the relevant assessing authority is undertaking a graduate course that is practically oriented. Because the applicant has completed the entry level qualification for their nominated occupation their graduate course work experience would be regarded as skilled, if the applicant was remunerated and working (as opposed to undertaking course work) for the minimum period of 20 hours each week. Medical Practitioners Work as a medical practitioner which is undertaken by doctors during their internship year may be counted as skilled work experience for the purpose of GSM applications. In addition, work as a medical practitioner which is undertaken by doctors on conditional registration (for example doctors employed in Australian hospitals or practices on a 457 visa or other work visa) may also be counted as skilled work experience for the purpose of GSM applications. This is a deviation from the standard policy of assessing skilled work experience on the basis of completing entry level qualifications. The basis for this deviation is that doctors, unlike most other occupations, undertake an extremely high level of tertiary training before entering their internship. They are generally performing all of the duties a doctor who has completed their internship would be performing while on an internship or working. They are paid at a level equivalent to a skilled worker and are usually working on a full-time basis (that is, at least 20 hours per week). This policy position is consistent with the whole-of-government approach which currently considers doctors to be in shortage across Australia. This exception relates only to work experience. The threshold requirement of full registration continues to apply to doctors applying for GSM. Unlawful employment excluded from consideration The effect of regulation 2.27C is that employment in Australia cannot be counted unless the applicant: • held a visa with permission to work during that period and • complied with the conditions of that visa. If an applicant has breached the conditions of their visa, by working when they had no work rights, or by working in excess of the amount of work allowed, that employment cannot be counted under Schedule 6C. For example, a Student visa holder who was subject to a condition that they must not work more than 20 hours a week but who was employed in their nominated occupation for 25 hours a week while their course was in session, could not use that employment to claim points under Schedule 6C.": 'The Employment Factor' in Sch6C - General points test - Qualifications and points (General Skilled Migration visas), 1 January 2013. text <https://legend.online.immi.gov.au/migration/2006-2016/2013/legend_20130101_m/legend_01_01_2013_mp/Pages/_document00003/_level%20100267/level%20201093.aspx> -- note that this section does not appear in the current PAM3 for Schedule 6D.
Employment in the Skill Level / in the Skilled Occupation - Post Degree -- CASE LAW
'More beneficial outcome' - departmental policy in the PAM3: PAM3, Sch 6D, [10.4.1]. The following decisions are an application of that policy, which directs a decision-maker to: "if the skills assessing authority’s opinion would result in an applicant receiving less points than claimed in their expression of interest, 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”: Berinato (Migration) [2023] AATA 554, [43].
Psychologists, entry level requirements, after bachelors in psychology degree: “[15] The delegate found that the only employment which could be considered employment in a ‘skilled occupation’ was that which was undertaken after the applicant met the entry level requirements for the occupation and the duties were at the depth and complexity expected in Australia. He considered the ANZSCO Dictionary definition for Psychologists which states in part as follows: … [16] Taking into account the indicative skill level as set out in ANZSCO the delegate found that only employment undertaken after the applicant completed his Bachelor degree could be considered ‘skilled employment’ at the required level. The delegate found the applicant completed his Bachelor of Psychology on 10 December 2009. He considered the employment undertaken from 10 December 2009 to 21 October 2013 could be considered for the purposes of this qualification which amounted to 3 years, 10 months and 15 days. [17] The Tribunal discussed this issue with the applicant at the hearing, indicating it would also consider the indicative skill level in ANZSCO as the requirement in its consideration of his skilled employment. The applicant acknowledged that he completed his Bachelor degree in December 2009. However he explained that in Chile, for his qualification, he was required to complete an Honours year. He told the Tribunal that the Australian Psychological Society (APS) has indicated to him that his Chilean degree is at the standard of an Australian PhD because he was required to study for 6 years. He said that he completed his Honours year while working as an Intern Psychologist at CEMFA. The applicant indicated that the Australian Health Practitioner Regulation Agency (AHPRA), APS and the Psychologists’ Board all agree that the applicant was in fact working as a psychologist from January 2009 because of the nature of the work he was doing that year. However they have not made written submissions for the applicant on this issue. He said that psychologists in Chile are not registered as required in Australia but they can practice as psychologists after completing 4 years of relevant study. He provided to the Tribunal a reference form his current supervisor, Kate Baggs, Senior Clinical Psychologist & Professional Advisor who confirms that the applicant is a qualified Clinical Psychologist in Chile and he exhibits expertise and maturity in his field. She considers him to have over 5 years’ experience as an Organisational Psychologist and Mental Health Clinician with considerable experience in research in the field of Psychology. She has given the applicant a strong professional reference. [18] The Tribunal has considered all the documentary and oral evidence on this qualification. It finds that the indicative skill level in ANZSCO for a psychologist is at the level of skill commensurate with a bachelor degree or higher qualification. Accordingly it is of the view that only the applicant’s employment after completing his degree is at his nominated occupation level. It accepts the applicant’s claims that he has been told by AHPRA, APS and the Psychologists’ Board that the work he undertook as an intern would be considered employment as a psychologist in Australia. However it notes that, even if it accepts that as an intern the applicant was employed in the occupation of psychologist, he was still only employed in his nominated occupation or a closely related skilled occupation from January 2009 to October 2013. Accordingly he was still only employed outside Australia in his nominated skilled occupation or a closely related skilled occupation for 4 years and 10 months, that is, less than 60 months in the 10 years immediately before the time of invitation to apply for the visa. The Tribunal is not satisfied it can take into account his employment prior to January 2009, before he commenced his internship.[19] On the basis of all the evidence before the Tribunal it finds the applicant had been employed outside Australia in the nominated skilled occupation or a closely related occupation for a period totalling at least 36 months and less than 60 months in the relevant period.”: 1411110 [2014] MRTA 2481.
"22. While there is a discrepancy in dates, the Tribunal accepts that the applicant completed his apprenticeship by July 2005 at the latest. This is relevant because, in considering his claimed employment during that period, the Tribunal is to consider not only the tasks for the occupation of Bricklayer as set out in ANSZCO but also whether the applicant has the minimum skill level specified in ANZSCO. 23. 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] FCA 1562; (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] 24. 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 his nominated, or a closely related, occupation. According to ANZSCO, in Australia, a Bricklayer is ANZSCO Skill Level 3. Under the indicative skill level heading for the unit group, this is AQF Certificate III including at least two years of on-the-job training or AQF Certificate IV. At least three years of relevant experience may substitute for the formal qualifications listed above, in some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification. Registration or licensing may be required.": Roberts (Migration) [2017] AATA 1571 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2017/1571.html>.
> AIN and RN, difference in skill level: Lindog (Migration) [2023] AATA 1820.
"21. 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. 22. 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.": SALVADOR LONGARELA (Migration) [2017] AATA 433 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2017/433.html>.
"15. The delegate found that the entry level requirements prescribed by the ANZSCO for the nominated occupation of Software Engineer is a level of skill commensurate with a Bachelor degree or a higher qualification. The delegate found that only employment undertaken after the completion of a Bachelor degree or higher qualification can be counted as skilled employment . The delegate found that because the applicant was awarded his Bachelor degree on 6 May 2011, only employment after that time can be “counted” as skilled employment . The delegate found, therefore, as the applicant’s claimed period of employment was from July 2011 to May 2013 and July 2013 to August 2014, that he has only been employed at the recognised skilled level for a total of 35 months. Accordingly, the delegate found that the applicant had not been employed at the recognised skilled level in his nominated skilled occupation or a closely related skilled occupation for a period totalling at least 36 months in the 10 years immediately before the invitation to apply for the visa. 16. At the hearing, the Tribunal advised the applicant that its preliminary view is that the delegate has correctly assessed his employment and judicial consideration of this issue, which is binding on the Tribunal, requires that he has the relevant qualification for a particular skill in order for him to have been considered to have been employed in the skilled occupation. ... 18. Having considered this issue, the Tribunal is satisfied that the Federal Court of Australia has found that 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 qualification or experience prescribed for that occupation. In the relevant cases, the Court stated that a decision maker is required, in determining whether a person has been employed in a specific nominated skilled occupation, whether the person possessed the ‘skill level’ nominated in the relevant guide.[1] In this matter the relevant guide is the Australian and New Zealand Classification of Occupations, version 1.2, 2013) which specifies that for the occupation of Software Engineer the entry level requirement is a level of skill commensurate with a Bachelor Degree or Higher. As the applicant completed his Bachelor degree on 6 May 2011, the Tribunal is not satisfied that prior to that time that the applicant was employed in the skilled occupation of Software Engineer. 19. The relevant periods are therefore, from July 2011 to May 2013, when the applicant worked as an Associate Consultant, and July 2013 to August 2014, when worked as a Software Engineering Team Lead (sic). While the Tribunal has some doubts about whether the applicant was employed by Five Point Technology from May 2013 to June 2013, the Tribunal will give the applicant the benefit of the doubt and accepts his evidence in this respect. The Tribunal is satisfied that this equates to a period totalling at least 36 months.": 1516505 (Migration) [2016] AATA 3420 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2016/3420.html>.
Registered Nurse, bachelor of nursing: " 17. Based on the applicant’s work experience, his skills assessment and information contained in ANSZCO the delegate found that the earliest that the applicant could be considered to be have been working at the appropriate skilled level in his nominated skilled occupation or a closely related occupation is 30 August 2012 which was the date when he completed his Bachelor of Nursing degree. The delegate therefore determined that the applicant was employed in his nominated skilled occupation or a closely related skilled occupation for at least 12 months out of the 10 years immediately before the invitation to apply for the visa. 18. The applicant told the Tribunal that at the time he was invited to apply for the visa he had thought that he had worked in his skilled occupation or a closely related occupation for 60 months out of the 10 years immediately before the invitation for the visa, but he recognises that his calculations in this regard were wrong, and he agrees with the delegate’s assessment of this part. 19. Therefore, subject to consideration of Part 6D .5, the applicant is entitled to 5 points under this part.": 1505705 (Migration) [2016] AATA 3189 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2016/3189.html>.
mechanics, motor: "33. While the Tribunal accepts that the duties provided by the applicant have some cross-over with some of the above listed tasks, it does not consider that the applicant’s role with Goodyear & Dunlop/Beaurepaires falls within the skill level or scope of any of them. It considers that it is more accurately aligned with the occupation of Motor Vehicle Parts and Accessories Fitters (ANZSCO Group 8994). As this is not a skilled occupation listed in IMMI 15/091, the Tribunal is unable to take into account for the purposes of this Part. The Tribunal therefore concurs with the delegate’s allocation of 5 points for the applicant’s over 12 but less than 36 months of employment experience as an Industrial Engineer with Weatherfords in the relevant 10 year period prior to being invited to apply for this visa.": 1501073 (Migration) [2015] AATA 3837 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2015/3837.html>.
post degree, nursing: "19. The Tribunal has considered information from ANZSCO regarding the skill level for Unit Group 2544 Registered Nurses which includes the occupation of Registered Nurse nec. It states occupations in the unit group has a level of skill commensurate with a bachelor degree or higher qualification. 20. The applicant provided evidence that he completed his Bachelor of Nursing on 23 December 2011. 21. The Tribunal discussed with the applicant at the hearing the issue of whether it could take into account, for the purposes of assessing this qualification, Australian employment prior to his completion of the Bachelor degree. The applicant indicated he worked as an assistant nurse and an undergraduate nurse and thought he could count this work as, in his view, it is closely related to his nominated occupation. The Tribunal explained that it needs to consider whether the applicant has been employed in a closely related skilled occupation. It explained in considering this issue it takes into account the skill level referred to in ANZSCO. 22.The Tribunal is of the view that it is correct to consider the acquisition of the qualification specified in ANZSCO as a prerequisite level of skill, when deciding at what point in time the applicant’s employment became employment in the nominated skilled occupation or a closely related skilled occupation. This approach is supported by the case law (see Seema v MIBP [2011] FMCA 454 and on appeal [2012] FCA 257). The Tribunal therefore finds that the employment prior to the applicant’s completion of the Bachelor of Nursing was not employment in a closely related skilled occupation. The Tribunal finds the employment that can be included in its assessment of this qualification is the employment after he completed his degree, that is, from January 2012 to the date he was invited to apply for the visa in September 2013.": 1412931 [2014] MRTA 2489 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2014/2489.html>.
Medical practitioners, Pathologist nominated occupation, skill section in ANZSCO: "14. Under ANZSCO, the occupation of Pathologist appears under the Unit Group of ‘Other Medical Practitioners’ which appears under the Minor Group of ‘Medical Practitioners’. [2] According to ANZSCO, the Unit Group of ‘Other Medical Practitioners’ covers ‘Medical Practitioners not elsewhere classified’ and includes a number of specialisations and extends to Medical Registrars training in these specialities. The indicative skill level is given as ‘commensurate with a bachelor degree of higher qualification, two years hospital-based training, and at least five years specialist study and training’. 15. The skill level is relevant as the Tribunal is required to consider not only the tasks as set out in ANSZCO but also whether the person claiming employment in that occupation has the minimum skill level specified in ANZSCO. 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] FCA 1562; (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. [3] 16. The Tribunal has thus proceeded on the basis that it is to consider whether the applicant holds the qualifications or experience prescribed for the nominated skilled occupation, or closely related skilled occupation, and that the skill level section of ANZSCO provides guidance as to what experience qualifies. 17. The evidence before the Tribunal indicates that the applicant did not have five years of specialist study and training in pathology in New Zealand before coming to Australia in September 2012. The Tribunal accepts that she was training in this speciality from December 2007 at Canterbury District Health Board, but finds that she was not working in the nominated skilled occupation of Pathologist during this time as she does not meet the indicative skill level set out in ANZSCO for the unit group under which her nominated occupation appears. ... 21. As explained above, the Tribunal considers that the applicant was “actively participating in or undertaking duties directly connected with the carrying out of the occupation concerned” in New Zealand in a closely related occupation to that of Pathologist for a period of 7 years and 1 month, or 85 months, from 18 November 2003, being 10 years before the time of invitation to apply, to 17 September 2012, when she last worked for Canterbury District Health Board. 22. Accordingly, the applicant had been employed outside Australia in a closely related skilled occupation for a period totalling at least 60 months in the 10 years immediately before the time of invitation to apply for the visa. Subject to consideration of Part 6D.5 , the applicant is entitled to 10 points under this Part. As the period does not total at least 96 months, she is not entitled to the maximum of 15 points. ... 29. After careful consideration of the circumstances of this case, the Tribunal considers that the applicant’s placement at RPAH while on a scholarship meets the definition of ‘employed’. This is because the position of Dermatopathology Fellow was created for the applicant to complete further specialised training in Australia and the evidence is that the scholarship was commensurate with her educational qualifications and experience. The Tribunal thus finds that the applicant was employed from October 2012 by RPAH. However, as the applicant had not completed five years of specialist study and training as a pathologist until December 2012, the period of employment from October 2012 to December 2012 was not employment in her nominated skilled occupation. For similar reasons as set out under Part 6D.3 , the Tribunal finds that she was employed as a general medical practitioner, which it considers is a closely related skilled occupation, for this period. Given these findings, the applicant is entitled to points for work in Australia. As the applicant worked for 40 hours per week at RPAH which is more than the minimum required, it is not necessary to consider whether the casual work undertaken in the same period can be taken into account. 30. The Tribunal finds on the evidence that she was employed in Australia from October 2012 until November 2013, when she was invited to apply for the visa, and that she was therefore employed in her nominated skilled occupation and a closely related skilled occupation for a period totalling at least 12 months on the basis of her placement and employment with RPAH.": 1405456 [2014] MRTA 1637 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2014/1637.html>.
> Sch6B - General Points Test - Qualifications and points (General Skilled Migration visas), sch 6B Migration Regulations, 15 May 2013: text <https://legend.online.immi.gov.au/migration/2006-2016/2013/legend_20130515_m/legend_15_05_2013_mp/Pages/_document00003/_level%20100270/level%20201092.aspx>: "18 The meaning of 'employed' 18.1 Defined in regulation 2.26AA The term employed is defined in regulation 2.26A(7) to mean ‘engaged in an occupation for remuneration for at least 20 hours weekly’. Note: Regulation 2.26A(6) links this definition to Schedule 6B. 18.2 Remuneration For ‘remuneration’ the policy intention is that applicants have been engaged in the occupation on a paid basis, generally at the award or market rate. Mere emotional or psychological satisfaction or the acquisition of useful, but unpaid, professional experience is not considered ‘remuneration’ for General Skilled Migration purposes. A person receiving minimal living allowances or scholarships designed to cover expenses would not generally be considered to be remunerated. This is because no financial benefit is derived. 18.3 Leave periods As work must be for remuneration, only periods of leave on full pay can be counted as time during which an applicant was ‘employed’. That means that periods of extended leave without pay (for example maternity or paternity leave) cannot be counted as a period of employment. 18.4 20 hours a week The regulation 2.26A(7) definition of employed does not require the applicant to have been in full-time work, but instead requires that the applicant has been working and has been paid for working for at least 20 hours a week. 20 hours a week means 20 hours each week - not irregular periods that average out to 20 hours a week over a year. For example student visa conditions place strict limits on how many hours the visa holder is allowed to work - see PAM3: GenGuideG - Student visas - Visa application & related procedures - Student visa conditions. Applicants who have been working in Australia 17 hours a week on a student visa while classes are in session cannot "make up" the extra 3 hours a week by working longer hours during holiday periods. Case officers should be fair and reasonable when applying this rule in relation to applicants employed on a casual basis who, because of illness or other compelling and compassionate reasons, may have fallen short of the 20 hour benchmark for one or more weeks over the relevant period. If doubts arise, applicants should be asked to provide detailed evidence of their terms of employment and payment details. 18.5 Employment must be skilled For employment to be considered ‘skilled’ it must meet two requirements: • that it was undertaken after the applicant met the entry level requirements for that occupation (that is, completed a sufficient level of study or amount of on-the-job training) and • that it involved duties at the level of depth and complexity expected in Australia. In assessing both factors, case officers should have regard to ANZSCO. For occupations for which ANZSCO does not provide adequate guidance, case officers should consider the requirements set by the relevant assessing authority. 18.6 When is an applicant skilled Skilled on basis of educational qualifications An applicant is taken to be capable of undertaking work at a skilled level only after they have met the entry level requirements for that occupation. If the entry level prescribed for the applicant’s nominated occupation is a certain qualification only work undertaken after the applicant has completed that qualification will be counted as skilled employment. For example to be a Systems Analyst, ANZSCO states that the entry level requirement is a bachelor's degree or a higher qualification or at least 5 years relevant experience. If an applicant had worked in a systems analyst role while completing their bachelor's degree, only the work undertaken after the academic requirements of the bachelor's degree had been met would count as skilled employment - see section 18.8 Working while studying. Skilled after on the job training The three main occupations for which on the job training can be used to obtain a suitable skills assessment are the trades, management positions and IT professionals. As these applicants do not have an identifiable date of registration or completion of their formal studies, the assessing body will normally prescribe a date as of which the applicant is assessed as meeting the Australian standard for the occupation. If this date has not been identified by the assessing authority, a case officer should have regard to ANZSCO in the first instance or where ANZSCO is silent, the guidelines used by the relevant assessing authority, to determine how long a person would need to work in that occupation before they would be considered to meet the Australian entry level requirement. 18.7 Importance of this date for visa purposes The date an applicant met the Australian entry level requirement for their occupation, as prescribed by the assessing body or determined in accordance with the guidelines above, is the date from which an applicant can acquire skilled work experience in that occupation. Until that time, the applicant is in fact learning the job, albeit while on-the-job. They cannot therefore normally be assessed as performing the job at a skilled level. For example, ANZSCO provides that in relation to Software and Applications Programmers, the entry level requirement is either a bachelor level qualification or 5 years work experience (or relevant vendor certification may substitute for the formal qualification). If an applicant applied for a GSM visa and nominated a suitable occupation from the Unit Group Software and Applications Programmers, but had no formal qualification, the case officer would, on the basis of ANZSCO, only consider work after the applicant had been working in that occupation for 5 years to be at a skilled level. This means only work undertaken after working in that occupation for 5 years would be considered towards meeting the requirements for the award of points for the Specific employment, Australian employment, Occupation in demand or the Partner skills factors. ..." -- this is the former points test PAM.
> * “29. The delegate noted the work references provided by the applicant’s employer which confirmed that she had been employed by his company as a casual employee for 20 hours per week from 13 June 2008 as an 'Interior Design Student'. He further advised that as of 6 January 2010 she was employed fulltime as a Graduate Architect. The delegate concluded, after comparing the applicant's duty statement as a Graduate Architect with the ASCO definition for an Interior Designer, (the applicant’s nominated skilled occupation), that the occupations were not closely related. Accordingly no points were awarded in respect of the applicant’s fulltime position. In addition, as she did not complete her qualification for her nominated occupation, that is, her Bachelor of Design, until 30 November 2009, the delegate calculated her period of skilled employment to be less than 12 months – that is, as from 30 November 2009 to 6 January 2010. Consequently the delegate awarded no points under Part 6B.5. … 34. The Tribunal therefore finds, on the basis that the applicant completed her Bachelor of Design on 30 November 2009 and, having regard to Federal Court authority on this issue and the evidence available to it, that the applicant’s employment from 13 June 2008 to her graduation on 30 November 2009 cannot be regarded as employment in her nominated skilled (or closely related) occupation for the purposes of Part 6B.5. 35. Therefore, for the purposes of assessing whether the applicant was employed in her nominated skilled occupation or a closely related skilled occupation for a period totalling at least 12 months in the 48 months before the day on which the application was made, the only potentially relevant employment is that between 1 December 2009 and 24 May 2010, the day before her application date of 25 May 2010. 36. On the basis of the evidence discussed above, the Tribunal is satisfied that for the period of 1 December 2009 to 5 January 2010, prior to her commencing fulltime employment as a Graduate Architect, the applicant was employed in her nominated skilled occupation of Interior Designer. …”: 1302640 [2014] MRTA 682 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2014/682.html>.
Accounting clerk and Accountant: "40. Further supporting the Tribunal’s finding and having regard to all of the details set out in the ANZSCO classification of Accountant, the Tribunal is satisfied that the applicant’s qualifications of a Masters of Financial Analysis, a Masters of Professional Accounting and her completion of an Accounting Professional Year together qualify and equip her to undertake the tasks, duties and responsibilities outlined by Mr Ratcliff in his letter dated 20 June 2014 and that of an Accountant. The skill level for the occupation of Accounting Clerk is AQF Certificate II or III. The Tribunal does not consider that this occupation accurately reflects the applicant's circumstances. This determination is in accord with the judicial authority of Seema v MIAC[3] [2012] FCA 257; (2012) 203 FCR 537 at [44]- [46].which holds that the decision maker is required to determine whether the applicant possessed the ‘skill level’ nominated by [the then ASCO] classification system for that occupation. 41. Having regard to the totality of evidence before it, the Tribunal is satisfied, on balance, that the applicant was employed to fulfill the duties and tasks of an Accountant at Victoria University for a period totalling at least 12 months and less than 36 months in the relevant period.": 1405686 [2014] MRTA 1638 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2014/1638.html>.
Accountant, post degree: "22. According to ANZSCO, the skill level for an Accountant is a bachelor degree or higher qualification. While the applicant advised that she had started to study towards an Accounting degree through the University of South Africa, she did not complete that study. The applicant did not attain a bachelor degree in Accounting until December 2012, at the University of the Sunshine Coast. 23. Given the above, the tribunal does not consider that the applicant had the “skill level” for an Accountant prior to December 2012. Therefore, any employment prior to that time is not in the occupation of ‘Accountant’. 24. The tribunal thus finds that the applicant was not employed in the nominated skilled occupation or a closely related skilled occupation outside Australia.": 1411950 [2015] MRTA 357 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2015/357.html>.
Software Engineer: "14. The delegate found that the entry level requirements prescribed by the Australian and New Zealand Classification of Occupations for the nominated occupation of Software Engineer (261313) is a level of skill commensurate with a Bachelor degree or a higher qualification. The delegate found that only employment undertaken after the completion of a Bachelor degree or higher qualification can be counted as skilled employment . The delegate found that because the applicant was awarded her Bachelor Degree on 1 December 2011, only employment after that time can be “counted” as skilled employment . The delegate found, therefore, as the applicant’s claimed period of employment was from 19 March 2012 to 1 February 2013, that she has only been employed at the recognised skilled level for a total of 320 days (10 months and 14 days). Accordingly, the delegate found that the applicant had not been employed at the recognised skilled level in her nominated skilled occupation or a closely related skilled occupation for a period totalling at least 12 months in the 10 years immediately before the invitation to apply for the visa. 15. At the Tribunal hearing, this issue was discussed with the applicant. The applicant confirmed that between August 2011 and March 2012 she had ceased working for MacromatiX because she wished to concentrate on her studies. The applicant stated that she had not realised that she was required to have completed her degree before her work experience could be taken into account. The Tribunal advised the applicant that its preliminary view is that the delegate has correctly assessed her employment and judicial consideration of this issue, which is binding on the Tribunal, requires that she has the relevant qualification for a particular skill in order for her to have been considered to have been employed in the skilled occupation. ... 17. The relevant period is therefore, from 19 March 2012, when the applicant recommenced her employment at MacromatiX, after ceasing her employment in August 2011 in her nominated skilled occupation, and the date of the invitation to apply for the visa which was 4 February 2013. The Tribunal is not satisfied that this equates to a period totalling at least 12 months. The Tribunal finds, therefore, that the applicant was not employed in her nominated skilled occupation or a closely related skilled occupation for a period totalling at least 12 months, 36 months, 60 months, or 96 months in the 10 years immediately before the date of the invitation to apply for the visa. Therefore, the Tribunal finds the applicant is not entitled to points under this Part (items 6D41, 6D42, 6D43 and 6D44).": 1312629 [2013] MRTA 3265 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2013/3265.html>.
Advertising Manager, no bachelors degree, so require 5 years relevant experience: "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’. ... [Seema FCA] ... 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”. ... 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.": VAIDYA (Migration) [2017] AATA 969 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2017/969.html>.
*** skill section of the ANZSCO description: "18. Having considered this issue, the Tribunal is satisfied that the Federal Court of Australia has found that 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 qualification or experience prescribed for that occupation. In the relevant cases, the Court stated that a decision maker is required, in determining whether a person has been employed in a specific nominated skilled occupation, whether the person possessed the ‘skill level’ nominated in the relevant guide.[1] In this matter the relevant guide is the Australian and New Zealand Standard Classification of Occupations, which specifies that for the occupation of Registered Nurse (Mental Health) the entry level requirement is a level of skill commensurate with a Bachelor Degree or Higher. As the applicant completed her qualification in September 2012, the Tribunal is not satisfied that prior to that time that the applicant was employed in the skilled occupation of Registered Nurse (Mental Health).": 1600949 (Migration) [2016] AATA 4077 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2016/4077.html>.
> *** "62. Federal Magistrate Burnett found that the Tribunal had committed a jurisdictional error by focusing on Mr Hossain’s tasks rather than his skills. Clause 138.216 does not specify whether, in considering whether an applicant’s occupation is a skilled one, a decision-maker is to give primary weight to the applicant’s skills, or to the tasks actually undertaken. The ASCO classifications for Bank Worker and Credit and Loans Officer contain two types of information about those occupations: “Skill Level” and “Tasks Include”. The ASCO classification for Business and Information Professionals contains information about “Skill Level” and “Occupations in this group include”, but not about tasks. 63. However, “skills” is to some extent a misnomer. 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. 64. 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. 65. Although the Tribunal did not expressly analyse the application in terms of the “skills” criterion, it is clear from a consideration of the Tribunal’s reasons that it accepted that Mr Hossain had the relevant qualifications based on his certificates and on the VETASSESS assessment. The Tribunal, in substance, assessed and determined the particular question of “skills” for the purposes of the ASCO classifications, in reaching its decision on the facts. It was necessary for the Tribunal also to consider the “tasks” section of the classifications, and this examination is set out in some detail (p 10).": Minister for Immigration and Citizenship v Kamruzzaman [2009] FCA 1562 <https://jade.io/article/122604>.
> Roberts (Migration) [2017] AATA 1571, [23] <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2017/1571.html>.
> Lindog (Migration) [2023] AATA 1820, [22].
> Vaidya (Migration) [2017] AATA 969, [24].
> Salvador Longarela (Migration) [2017] AATA 433, [20].
> "29. It has been held that it is at least open, as a matter of law, to a decision maker applying the ASCO code when determining whether someone has a skilled occupation, to consider both the tasks listed for that occupation, and also the extent to which another classification in ASCO appears more suited to the tasks performed by the visa applicant (see Minister for Immigration & Citizenship v Kamruzzaman [2009] FCA 1562 at [64] and [69]). Some occupations might need close examination of skills or tasks rather than lead statements, when the classification is made. However, in my opinion, an application of the ASCO classifications does not, in all cases, require the focusing of the assessment upon the ‘tasks’ parts of the definition. In the present case, the ‘lead statements’ provided an equally relevant, and clearer, distinction between the two occupations addressed by the delegate and the Tribunal.": Shukla v MIAC [2010] FMCA 625 <https://jade.io/article/201252>.
??former policy on career advancement pathway, see (but caution): "31. The applicant gave evidence that she worked closely with the registered nurses and performed many duties as an assistant. Under Policy, closely related occupations are those that fall within one-unit group as classified under ANZSCO. For example, if an applicant’s nominated occupation is Accountant (General), employment as a Management Accountant or Taxation Accountant may be regarded as closely related to that occupation. However, as the evaluation requires consideration of all the tasks involved in the applicant’s actual occupation, it should not be assumed that a particular occupation is not closely related to the nominated occupation just because it does not fall within the same unit group. Employment outside the unit group may also be regarded as ‘closely related’ to the nominated occupation where, for example, it represents career advancement, or where the occupation has evolved in the relevant period. In relation to this, Policy relating to Schedule 6D states: ... Although skilled employment experience within the 10 years immediately before the time of invitation to apply for the visa may primarily involve work in the applicant’s nominated skilled occupation, it is also policy to award points to applicants if their career has advanced or the occupation has evolved in the relevant period. In these circumstances, to be awarded points , the claimed employment will need to be in a skilled occupation that is closely related to the applicant’s nominated skilled occupation. ...Career advancement would usually take the form of promotion to a senior role or higher level that relates to a field of expertise and incorporates greater responsibility. For example, it is possible that over a 10 year period an accountant or engineer could advance in their career to a chief accountant or chief engineer, or a chief executive officer. This type of career advancement may occur outside of the four digit ANZSCO unit group but can be considered an exception to the policy requirement that closely related occupations be in the same ANZSCO unit group if it follows a well-established path for career advancement. This Policy appears to be broadly consistent with the concept of ‘closely related’ as explained in the case law. While parts of the former policy were not consistent with the terms of the legislation in so far as it suggested that the closely related skilled occupation was not limited to occupations on the SOL, the revised policy from 18 October 2019 makes clear that occupations must be from the relevant SOL. 32. The Tribunal has carefully considered all the evidence provided including ANZSCO, the applicant’s oral evidence of her tasks and skills set. The Tribunal on the evidence provided and after considering the relevant law is unable to conclude that the occupation of Lifestyle Carer is closely related to that of a Registered Nurse (Critical Care and Emergency).": Flores (Migration) [2021] AATA 4115 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2021/4115.html>.
** NZ, law graduate - skilled employment - post Law Degree: "[57] In submissions to the Board, counsel for the appellant noted the "same job, different levels" observation of the Ministry of Education representative, and drew an analogy with the comparison between a recent law graduate , and one with five years' post-qualification experience or a partnership in a law firm. [58] Clearly, counsel argued, a recent graduate from law school would not be in a position to do the same job as someone with several years' post-qualification experience and/or a senior position in a law firm. However, that fact would not prevent the position of an entry-level law graduate being described as skilled employment. The Board agrees with that assessment, but respectfully disagrees with the accuracy of the analogy. The difference in that example is one of experience and, hopefully, wisdom and insight into the requirements of law and the legal profession. However, the common entry point is that all people entering the law profession must have a law degree. [59] Here, Early Childhood Educators can be employed on the basis of a one-year qualification; an Early Childhood Teacher must have a three-year qualification. The holder of either of those qualifications can achieve entry into the early childhood education profession, but the qualifications are markedly different and the tasks executed equally different. A more accurate analogy would be between a legal executive with a legal executive qualification and a lawyer with a law degree. It may well be that a legal executive with ten years' experience, at the outset, would know more than a recent law graduate newly employed by a law firm. However, that would not enable the legal executive to gain admission to the profession, to practice as a lawyer, or, critically, to be regarded as having the same skill set as the recent graduate. [60] The danger in such comparative exercises is of getting caught up in the significance of the qualification in and of itself, as opposed to as an indicator of the level of expertise a particular position requires. ...": Residence Appeal No: 15648 [2007] NZRRB 400 <https://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZRRB/2007/400.html>.
NZ, cautionary: "[34] Paragraph SM7.10.1.a states that an applicant’s employment will be assessed as skilled if, among other things, there is a substantial match between it and the ANZSCO description, including core tasks, for an occupation on the List of Skilled Occupations: SM7.10.1 Assessment of whether employment is skilled An offer of employment or current employment in New Zealand will be assessed as skilled if it meets the requirements of (a), (b) or (c) below. a. The occupation is included in part A of the List of Skilled Occupations held at Appendix 6 and the principal applicant can demonstrate that their offer of employment or current employment substantially matches the description for that occupation (including core tasks) as set out in the ANZSCO and: ... Effective 14/05/2013 Substantial match [35] The occupation of Contract Administrator is included in Part A of the List of Skilled Occupations at Appendix 6 of instructions. [36] A substantial match is a question of fact and degree in the context of the applicant’s employment: see Residence Appeal No 16270 (20 November 2009) at [48]. It should be determined on a holistic basis, taking into account not only the list of tasks but also the specific characteristics of an applicant’s employment: see Residence Appeal No 16221 (29 September 2009) at [47]. ... [44] Counsel argues that the requirement for an applicant to demonstrate a substantial match between their employment and an ANZSCO occupation could be satisfied by the provision of a job description that substantially matched the description, including core tasks, for the occupation. The Tribunal does not accept counsel’s argument. Whether an applicant’s current employment is a substantial match to the description, including core tasks, for an occupation is dependent on what an applicant actually does, not what their job description says they do. An applicant may provide their job description in support of their application; however, the onus remains on the applicant to provide evidence to show that their job description is an accurate description of what they actually do. ...": CZ (Skilled Migrant) [2015] NZIPT 202587 <https://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZIPT/2015/202587.html>.
NZ, cautionary: "[33] An appellant’s employment will be assessed as skilled if the employment is a substantial match for a relevant ANZSCO occupation as set out in SM6.10.5 of instructions: SM6.10.5 Skilled employment in an occupation included in the ANZSCO Current employment in New Zealand or an offer of employment in New Zealand will be assessed as skilled if: the occupation is described in the ANZSCO as: (i) a skill level 1, 2 or 3 occupation and the remuneration for that employment is $24.29 per hour or above (or the equivalent annual salary); or (ii) a skill level 4 or 5 occupation and the remuneration for that employment is $36.44 per hour or above (or the equivalent annual salary); and he principal applicant can demonstrate that their employment substantially matches the description for that occupation as set out in the ANZSCO (see SM6.10.5.1); and ... Effective 21/05/2018 [34] An assessment of a substantial match required Immigration New Zealand to determine whether the appellant’s employment was substantially consistent with the description and core tasks of the relevant ANZSCO occupation: SM6.10.5.1 Assessment of ‘substantial match’ For the purpose of SM6.10.5 (b) above, assessment of ‘substantial match’ involves a determination of whether the applicant’s employment is substantially consistent with the ANZSCO ‘Occupation’ (6-digit) level description for that occupation and with the tasks listed at the ANZSCO ‘Unit Group’ (4-digit) level description for that occupational group, excluding any tasks which are not relevant to the ‘Occupation’ description. To be considered a substantial match to an occupation, the tasks that are relevant to the applicant’s employment role must comprise most of that role. ... Note: Determining whether an applicant’s employment substantially matches an ANZSCO occupation description may require consideration of the scope and scale of the employer’s organisation and operation (the size of the operation, the number of staff and managers, and whether management functions are centralised at a head office or undertaken by other managers). ... [37] As this Tribunal has consistently held, a substantial match should be determined on a holistic basis, taking into account the core tasks and the specific characteristics of the appellant’s particular employment; see Residence Appeal No 16221 (29 September 2009) at [47]. A substantial match is a question of fact and degree in the context of the appellant’s employment; see Residence Appeal No 16270 (20 November 2009) at [48].": NK (Skilled Migrant) [2020] NZIPT 205807 <https://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZIPT/2020/205807.html>.
NZ, cautionary Regulatory requirements, conflict between ANZSCO and regulatory regime: "[34] SM7.10.1.a of instructions provides as follows: SM7.10.1 Assessment of whether employment is skilled An offer of employment or current employment in New Zealand will be assessed as skilled if it meets the requirements of (a), (b) or (c) below. The occupation is included in part A of the List of Skilled Occupations held at Appendix 6 and the principal applicant can demonstrate that their offer of employment or current employment substantially matches the description for that occupation (including core tasks) as set out in the ANZSCO and: the applicant holds a relevant recognised qualification which is at, or above, the qualification level on the NZQF (see SM14.5) that corresponds to the indicative skill level described for that occupation in the ANZSCO; or the applicant has the relevant recognised work experience that the ANZSCO indicates may substitute the required qualification; or ... ... [42] The appellant’s New Zealand employment involved filling and labelling prescriptions under the supervision of a pharmacist and thus appeared to satisfy the ANZSCO description and core tasks of a Pharmacy Technician (SM7.10.1.a). Arguably, her bachelor degree or, alternatively, her more than three years’ work experience as a pharmacist, satisfied the requirements of either SM7.10.1.a.i or SM7.10.1.a.ii. Further, she did not require registration or licensing to undertake her employment (SM19.5, effective 2 December 2013). [43] The difficulty facing Immigration New Zealand and the appellant concerned the conflict between the occupation of Pharmacy Technician in the ANZSCO and the New Zealand regulatory regime for persons dispensing prescription medicines. Immigration New Zealand’s approach was simply that the ANZSCO had to be understood in the context of the New Zealand regulatory regime and, for the same public policy reasons that underpin the approach to occupational registration in the instructions (SM19.1, effective 29 November 2010), it was appropriate that that meaning be taken into account in assessing the nature of the appellant’s employment and, consequently, her eligibility for residence. Without holding a National Certificate in Pharmacy (Technician), the appellant could not, in New Zealand, be employed as a Pharmacy Technician, only as a pharmacy technician student or a pharmacy graduate. The Tribunal is satisfied that Immigration New Zealand’s conclusion that the appellant was not employed as a Pharmacy Technician was correct. [44] This is the same approach taken in the new immigration instructions at SM6.10.20.c (effective 28 August 2017) and Immigration New Zealand’s Advice to Staff of 12 May 2017: “People Applying for work visas under Essential Skills (ES), or residence under the Skilled Migrant Category (SMC), as Pharmacy Technicians” and Advice to Staff of 29 September 2017: “Reminder that applicants applying to work as Pharmacy Technicians must hold the National Certificate in Pharmacy”. [45] While the appellant had a bachelor’s degree in pharmacy and substantial work experience as a pharmacist in South Africa, this did not necessarily mean that she met the specific requirements for a pharmacy technician in New Zealand, addressed in the National Certificate in Pharmacy (Technician) course, nor did it necessarily mean that she met the vocational requirements for a pharmacy technician in New Zealand. [46] The Tribunal considers that it was unfortunate that Immigration New Zealand incorrectly indicated to the appellant that her residence application was likely to be successful when its initial assessment was always subject to a second-person “quality” check. However, the fact that it later changed its position does not amount to an error requiring that a residence visa be granted to the appellant.": ZF (Skilled Migrant) [2018] NZIPT 204737 <https://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZIPT/2018/204737.html>.
Skill Level - Opinion Expressed by Skill Assessment Authority -- periods of employment -- CASE LAW
Eg, "17. The applicant’s Australian Computer Society (ACS) skills assessment dated 16 December 2014 stated in part: Your skills have been assessed to be suitable for migration under 261112 (Systems Analyst) of the ANZSCO Code. Your qualification has been assessed as follows: Your Bachelor of Computer Science from Universidade Estadual Paulista completed July 2010 has been assessed as comparable to an AQF Bachelor Degree with a major in computing. The following employment after July 2010 is considered to equate to work at an appropriately skilled level and relevant to 261112 (Systems Analyst) of the ANZSCO Code. Dates: 05/07 - 12/12 (5yrs 7mths) Position: System Analyst Employer: Sprint-Nextel Country: BRAZIL ... 19. I find the applicant was skilled from July 2010 and she had been employed in Brazil in her nominated skilled occupation of System Analyst, only from the time she completed her Bachelor of Computer Science in July 2010. I find that the applicant entered Australia on 31 January 2012 and the representative submits that effectively her overseas employment ceased on that date. I find, therefore, that the applicant had been employed by IBM in the skilled occupation of System Analyst, only from July 2010 to January 2012, which was a period of about 19 months. I find she had not been employed in the nominated skilled occupation or a closely related occupation, for a period totalling at least 36 months.": Rodrigues (Migration) [2019] AATA 290 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2019/290.html>.
cf -- post training:"15. The applicant provided a skills assessment from the Australian Computer Society (ACS) dated 4 April 2014 which indicates that his employment after November 2007 is considered to equate to work at an appropriately skilled level and relevant to the occupation Software Engineer ANZSCO 261313. The delegate decided that only employment from that date could be considered with respect to this qualification. The Tribunal discussed this issue with the applicant. It noted ACS appears to be considering his employment only after two years of relevant work experience. It also noted the information from ANZSCO for Unit Group 2613 Software and Applications Programmers which includes the occupation of Software Engineer. It states occupations in the unit group 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. The applicant acknowledged that ACS has only considered his employment after the required two years’ relevant experience. The Tribunal explained that it is guided by ACS as to the employment it can take into account for the purposes of assessing this qualification. 16. Having considered the ACS skills assessment and its decision to only consider employment after November 2007 as work at the appropriate skill level, the Tribunal finds, for the purposes of assessing this qualification, the applicant has been employed outside Australia in the nominated skilled occupation or a closely related occupation in the period December 2007 to September 2012. This period of employment is at least 36 months and less than 60 months in the relevant period.": 1413417 [2014] MRTA 2490 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2014/2490.html>. -- this decision appears to be aberrant vis-a-vis cases above on employment in skill level.
"15. The Tribunal gives weight to the skills assessment from AIMS dated 27 March 2014 stating that the applicant’s work experience totalling 5 years and 5 months between 5 February 2007 and 30 June 2012, equates to work at a skilled level of a Medical Scientist. The Tribunal accepts that the duties undertaken by the applicant during the course of her employment closely matched the duties of a Medical Laboratory Scientist as set out in ANZSCO 234611. The Tribunal is satisfied, based on this skills assessment and the other evidence before it, that the applicant had been employed outside Australia in the nominated skilled occupation of Medical Laboratory Scientist, for at least 60 months and less than 96 months in the 10 years immediately before the invitation to apply for the visa. The Tribunal is satisfied that the relevant employment meets the requirements of r.2.26AC(6).": 1413566 [2014] MRTA 2797 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2014/2797.html>.
"12. 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. The applicant claimed 104 months of skilled employment . Based on the skills assessment letter from the Australian Computer Society of 8 June 2011, the Delegate accepted evidence of applicant’s overseas employment of 85 months. 13. With his review application, the applicant submitted revised ACS skills assessment dated 18 September 2014. The ACS considered that the applicant worked from June 2004, at an appropriately skilled level that was relevant to nominated occupation for the total duration of 104 months. 14. Based on the evidence before it, the Tribunal is satisfied that the applicant has been able to establish 104 months of requisite professional employment in the nominated occupational closely related occupations in the 10 year period between 30 June 2004 and 30 June 2014. 15. The Tribunal is further satisfied on the evidence that the relevant employment demonstrated by the applicant in each of the employment episodes meets the remuneration and minimum hour requirements in r.2.26AC(6).": 1415594 [2015] MRTA 377 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2015/377.html>.
"13. The applicant provided evidence that she was employed as a Registered Nurse at the Henan Province Hospital of TCM between 1 September 2011 and 1 May 2015. Ashe also provided an Australian Nursing and Midwifery Accreditation Council (ANMAC) skills assessment dated 10 October 2019 stated that he skills has been assessed as suitable for migration for the nominated occupation. This was in part based on evidence of her previous work experience. On the available evidence the Tribunal is satisfied that the applicant was employed outside Australia in the nominated skilled occupation for the period totalling at least 36 months and less than 60 months in the relevant period, and subject to consideration of Part 6D.5 , the applicant is entitled to 5 points under this part.": XIN (Migration) [2020] AATA 3354.
"22. The applicant submits that his first year of employment cannot be considered as a qualifying experience because he has not learned anything in that year but was in fact teaching his colleagues. The Tribunal does not consider it is necessary to assess the nature of the applicant’s employment to assess whether it should be considered as his qualifying experience. The Tribunal relies on the advice from VETASSESS that the period between May 2016 and May 2017 was qualifying experience necessary for the applicant to obtain the positive skills assessment. 23.Having regard to the VETASSESS advice, the Tribunal finds that the applicant completed the requirements for the entry to his nominated occupation in May 2017 and any work experience prior to that date was not in the nominated skilled occupation or a closely related one. The Tribunal finds that the applicant’s experience, for the purpose of points allocation, commenced in May 2017. As the applicant had not been employed for at least 12 months in Australia, the Tribunal finds that, subject to consideration of Part 6D.5 , the applicant is entitled to no points under this part.": Ogunlola (Migration) [2019] AATA 5075 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2019/5075.html>.
BUT NOTE, departmental policy: "42. The Tribunal for its part has considered all the information. The Tribunal finds it is satisfied having regard cumulatively to the evidence of the employment history, including the written descriptions in the employer references, the oral evidence and explanations provided at the hearing, and the ANZSCO guide, that they should carry significant weight alongside the formal VETASSESS report. 43. Department Policy provides that if the skills assessing authority’s opinion would result in an applicant receiving less points than claimed in their expression of interest, 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”. In addition to the skills assessment from VETASSESS, policy considers that decision-makers also need to be satisfied in relation to the bona fides of supporting documents presented and if they carry significant weight in relation to the decision-maker’s assessment. 44. The Tribunal finds in this instance that there is no issue concerning the ‘bona fides’ of any of the supporting information. Furthermore, taking into account the concerns raised above about the VETASSESS assessment and the claimed lack of adequate reasoning attached to the assessment, the Tribunal prefers to give more weight to the ANZSCO analysis, in line with policy considerations, and by reference to the tasks being performed in the various roles as described by the applicant, and which descriptions the Tribunal accepts. 45. Based on these findings, the Tribunal is satisfied that the applicant has established a period of prior overseas employment for a period from October 2012 until September 2017 (inclusive), totalling at least 60 months, but less than 96 months, in the relevant period prior to lodgement of the application. If the period of employment with GECPN Investment Holdings were included, the total monthly calculation would be 63 months, even though the applicant has not pressed that part of the application and claim. 46. The Tribunal finds accordingly that the applicant is entitled in accordance with Schedule 6D32 for a period totalling at least 60 months, and less than 96 months, in the relevant period (10 points ).": Berinato (Migration) [2023] AATA 554 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2023/554.html>.
"... [33] ... [Vetassess email] According to the migration regulations (as interpreted in the Procedures Advice Manual 6 D General Points test for General Skilled Migration Visas mentioned in subregulation 2.26AC) “an applicant is considered skilled for the purpose of obtaining skilled employment points from the date the relevant assessing authority assessed them as suitable in their nominated skilled occupation”. Therefore, the addition of the Date Deemed Skilled on our assessment letters is in line with migration legislation and does not change the criteria for awarding points. It aims to offer a more streamlined application process and to provide clearer guidance to migration officers deciding on points allocation. As before, VETASSESS offers advice on qualifications and employment for Point Test purposes but does not actually award any points. This remains at the discretion of DIBP officers. For any migration advice including points test related information, you may choose to contact DIBP or a MARA registered agent. ... [42] The Tribunal for its part has considered all the information. The Tribunal finds it is satisfied having regard cumulatively to the evidence of the employment history, including the written descriptions in the employer references, the oral evidence and explanations provided at the hearing, and the ANZSCO guide, that they should carry significant weight alongside the formal VETASSESS report. [43] Department Policy provides that if the skills assessing authority’s opinion would result in an applicant receiving less points than claimed in their expression of interest, 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”. In addition to the skills assessment from VETASSESS, policy considers that decision-makers also need to be satisfied in relation to the bona fides of supporting documents presented and if they carry significant weight in relation to the decision-maker’s assessment. [44] The Tribunal finds in this instance that there is no issue concerning the ‘bona fides’ of any of the supporting information. Furthermore, taking into account the concerns raised above about the VETASSESS assessment and the claimed lack of adequate reasoning attached to the assessment, the Tribunal prefers to give more weight to the ANZSCO analysis, in line with policy considerations, and by reference to the tasks being performed in the various roles as described by the applicant, and which descriptions the Tribunal accepts.": Berinato (Migration) [2023] AATA 554.
"Required" - in the context of Schedule 6 / 6D
*** "We now turn to the question of the Australian entry requirements for this occupation. An issue which immediately arises is the meaning of the word 'required' in paragraph b(i) of 6102 and 6104. This issue, though referred to in passing in Kumar v The Immigration Review Tribunal [1992] FCA 319; (36 FCR 544), did not loom large in the argument in that case. His Honour, Wilcox J, commented in passing: Counsel for both parties agreed that the word 'required' does not refer to a requirement of the law, but rather to a requirement in fact, or actual practice. Thus, the relevant occupation is one for which it is, in practice, necessary to have a degree or trade certificate. In our view it is consistent with the above approach to say that the word 'required' in Schedule 6 does not imply a strict requirement such as that no person would gain entry into the occupation without the qualification. The word simply sets the general skill level of the occupation in question. It indicates the qualifications which you would expect someone performing that work in Australia to have. We say this for one reason that to make the word 'required' mandatory in a strange sense would work against a basic point of Schedule 6. For this Schedule goes on to provide for an alternative to qualifications which an applicant could satisfy by having experience which is assessed to be equivalent to Australian standards. For another reason, the practice of this Tribunal of using the skill levels for occupations in the ASCO dictionary as a guide (sometimes as an authoritative guide) has implied the giving of a less than mandatory sense to the word 'required'. While in practice people wishing to enter a particular occupation will generally have and need the requisite qualifications, there will be some occupations which people may enter by another route. Some people, for instance, will gain entry into occupations such as illustrator, minister of religion, personnel officer, painter, sculptor and even lawyer without having the qualifications set out in ASCO as being the requisite skill level. In our view the question that we must ask ourselves when applying item 6102 or 6104 is what is the present requisite skill level for the occupation of arts administrator? The ASCO dictionary does not provide guidance for this specific occupation. Some very general guidance can be found in ASCO under the heading 'Para-Professionals' (ASCO 3999-99). This residual grouping covers para professionals not elsewhere classified. The skill level prescribed is a two to four year degree, diploma or certificate.": Omega Nuval IRT Reference: N94/01333 #number 6362 [1996] IRTA 6362 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/IRTA/1996/6362.html>.
> cf if the word "required" was in the Regulations, eg: "The Tribunal finds that "requires" as it appears in regulation 146(1) is taken to mean a minimum entry requirement to the particular occupation: see Kumar v. Immigration Review Tribunal [1992] FCA 319; (1992) 36 FCR 544. The Principal's qualification, whilst relevant to the occupation, does not meet Australian standards for the occupation. The Tribunal finds as a matter of fact that the occupation in Australia requires legal qualifications and admission as a legal practitioner . The Principal has been assessed as not being entitled to admission as a legal practitioner in New South Wales. ...": Applicant: Ms Birgit Christina Onken Principal: Mr Bernhard Josef Kneis IRT Reference: N93/00710 #number 3874 [1994] IRTA 3874 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/IRTA/1994/3874.html>.
> "Required" in the context of Schedule 6D (Points Test), see: skill section of the ANZSCO description above. -- reference to the 'skill level' section of the classification to which the applicant’s position is being compared. -- skill level section.
Hours of Work
Reg 2.27C.
"23. ‘Employed’ is defined to mean engaged in an occupation for remuneration for at least 20 hours a week: subregulation 2.26AC(6).": Chinhema (Migration) [2017] AATA 1034 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2017/1034.html>.
'Technically employed' is not the test. - question is whether engaged in an occupation for remuneration: "14. The Tribunal said that meant the applicant was not entitled to an allocation of points under pt 6D.3 in respect of the time he was “technically being employed by the Ministry of Health” after he arrived in Australia. The Tribunal accepted the applicant was entitled to an allocation of points in respect of other attributes, but denying the applicant points in respect of his experience with the Ministry of Health in Saudi Arabia while living in Australia left him short of the total number of points required in the invitation to apply for the visa. ... 18. The Tribunal does not directly quote the text of either of these provisions in its reasons for decision. Therein lies the problem, Ms McNeil argues on behalf of the applicant: the Tribunal instead refers (at [24]) to the applicant “technically being employed” by the Ministry for Health but then finds the applicant’s work whilst in Australia does not amount to “employment overseas”. Ms McNeil says that form of words does not accurately capture the statutory test. Indeed, the finding that the applicant was still “technically ... employed” invites confusion about the question the Tribunal was asking itself. ... 26. That said, I am satisfied the Tribunal’s statement of reasons falls short in this case. It is not clear the Tribunal asked itself the correct question. That question would be formulated with express reference to the text of the enactment. To be clear, the Tribunal should have squarely addressed whether the applicant was employed in the relevant sense, which required an exploration of whether he was “engaged in an occupation ... for remuneration” over the appropriate timeframe. If the Tribunal had approached the case in that way, the factual findings may have been different; they would almost certainly be more detailed. In the circumstances, I am satisfied the failure to articulate the question correctly amounts to a material jurisdictional error.": Alsheri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 242; see also, Alsheri (Migration) [2025] ARTA 2321.
Casual work - two shifts a day - full time work: Singh (Migration) [2023] AATA 3050, [25].
cf "22. The applicant’s employment contract and payslip are definitive and contemporaneous evidence of the applicants basis for employment and indicate she did not work at least 20 hours per week in the nominated occupation. Ms Daniels letter gives an approximation of the applicant’s hours worked without any basis for how the approximation was reached. The Tribunal attaches more weight to the applicant’s employment contract and payslip than to the letters provided by Ms Daniels.": Burchiella (Migration) [2024] AATA 1599 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2024/1599.html>.
Student visa - breach of conditions: "43. Additionally, Department records show that the applicant held a Higher Education Sector (TU573) visa from 6 April 2015 to 30 August 2019 in which he was subject to condition 8105 Work Limitation, which stipulates relevant to this matter, the holder must not engage in work in Australia for more than 40 hours a fortnight during any fortnight when the holder’s course of study or training is in session. 44. The delegate found that the payslips provided by Hibiscus Tavern show that the applicant was consistently employed for more than 40 hours a fortnight between 6 August 2018 to 30 August 2019 and therefore found that this period of employment was in breach of the applicant’s visa condition 8105. Accordingly, the delegate found that this period could not be counted under the Australian employment qualification as per reg 2.27C. 45. The delegate concluded that based on the available evidence that the applicant was employed in the nominated skilled occupation, or a closely related skilled occupation, for at least 36 months in the 10 years immediately before the invitation to apply for the visa and awarded 10 points under this qualification. 46. The Tribunal has considered the information before it and finds that the evidence as provided by the applicant to the Department, supports the delegate’s findings as to the applicant’s employment with Hibiscus Tavern during the period 6 August 2018 to 30 August 2019. In the absence of evidence to support otherwise, the Tribunal finds this period of employment is excluded from consideration.": Pagtalunan (Migration) [2023] AATA 3701 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2023/3701.html>. -- certificate student at the time.
> BUT, doctoral degree students, at the relevant times: "6. Condition 8105 , as it applies in this case is extracted in the attachment to this decision. It requires that the visa holder must not engage in any work in Australia before the course of study commences. In addition, once the course of study has commenced, the visa holder must not engage in work for more than 40 hours a fortnight except in certain circumstances involving specified course-related work and masters or doctoral degree courses. 7. The concepts of ‘fortnight’ and ‘work’ are both defined in the Regulations. ‘Fortnight’ for these purposes, means the period of 14 days commencing on a Monday: 8105 (3). ‘Work’ is defined to mean ‘an activity that, in Australia, normally attracts remuneration’: r.1.03.": TAN (Migration) [2019] AATA 1384 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2019/1384.html>.
> From 1 July 2023: Sch 8, 8105(1) and (2A) Migration Regulations 1994 (Cth): 48 hours per fortnight: "8105 (1A) Subject to subclause (1B), the holder must not engage in any work in Australia before the holder’s course of study commences. (1B) Subclause (1A) does not apply to the holder if: (a) at the time of applying for the visa, the holder held a substantive visa or a bridging visa (the previous visa); and (b) the holder was permitted to work in Australia during the period that the previous visa was in effect. (1) Subject to subclause (2), the holder must not engage in work in Australia for more than 40 hours a fortnight during any fortnight when the holder’s course of study or training is in session. (2) Subclause (1) does not apply: (a) to work that was specified as a requirement of the course when the course particulars were entered in the Commonwealth Register of Institutions and Courses for Overseas Students; and (b) in relation to a student visa granted in relation to a masters degree by research or doctoral degree if the holder has commenced the masters degree by research or doctoral degree. (2A) If the visa held is a Subclass 500 (Student) visa, or a bridging visa granted on the basis of a valid application for a Subclass 500 (Student) visa, this clause applies as if the reference in subclause (1) to 40 hours were instead a reference to 48 hours.:" --- SEE: Migration Amendment (Extension of Subclass 485 (Temporary Graduate) Visa and Increase in Subclass 500 (Student) Visa Work Hours) Regulations 2023 (Cth).
-> "... Subclass 500 (Student) visa The amendments to visa conditions 8104 and 8105 relate to the amount of work overseas students, and their accompanying family members, are permitted to undertake while holding a Subclass 500 (Student) visa or an associated bridging visa. Visa condition 8104 is a mandatory visa condition for applicants for Subclass 500 (Student) visas who satisfy the secondary criteria for the grant of the visa (i.e. members of the family unit of the primary visa holder). The effect of the amendment is that the family member must not engage in work for more than 48 hours per fortnight while the holder is in Australia (new subclause 8104(3A) and existing subclause 8104(1)). There is no change to the restrictions that apply to family members before the primary visa holder's course of study commences (subclauses 8104(2), 8104(2A), and 8104(2B)), and no change to the rules applying to the family members of certain masters and doctoral students (subclause 8104(3)). Visa condition 8105 is a mandatory visa condition for applicants for Subclass 500 (Student) visas who satisfy the primary criteria for the grant of the visa (i.e. because they are enrolled in a course of study in Australia). The effect of the amendment (new subclause 8105(2A) and existing subclause 8105(1)) is that the visa holder may work for up to 48 hours per fortnight during any fortnight when the holder's course of study or training is in session. There is no change to the rules that apply to work before the holder's course of study commences (subclauses 8105(1A) and 8105(1B)), and no change to the rules affecting certain masters and doctoral students (subclause 8105(2)). The background to these changes is that the Government has relaxed enforcement of work limitations for Student visa holders, and this relaxation will end on 30 June 2023. The relaxation of enforcement of Student visa work limitations was progressively introduced during the COVID-19 pandemic. Initially introduced for supermarket workers on 13 March 2020; then for aged care workers on 18 March 2020; and further expansions until the relaxation was applied to all Student visa holders in January 2022. This was done to allow primary and secondary Student visa holders to work over their normal limit of 40 hours per fortnight to address workforce shortages. At the Jobs and Skills Summit in September 2022, the Government announced that the relaxed enforcement will continue until 30 June 2023. After 30 June 2023, work hours for international students would be capped again. The number of hours would be subject to consultation with peak bodies across industry and education sectors, with a view to striking the right balance between work and study. In the 28 October 2022 report to the Ministers for Home Affairs and Education, the Working Group recommended increasing the cap to 48 hours per fortnight. This recommendation was supported by the Government. In an announcement on 21 February 2023, the Government clarified that the cap on work hours would again be enforced from 1 July 2023, however the period of work allowed per fortnight would be increased from 40 hours to 48 hours. The Government considers 48 hours a fortnight as an appropriate balance between work and study, acknowledging that study is the primary purpose of the Student visa. The Government also announced that Student visa holders already working in the aged care sector on 9 May 2023 can continue to work unrestricted hours in the aged care sector until 31 December 2023. This is being implemented by not enforcing the condition for those who fall within this category.": F2023L00821 Explanatory Statement <https://classic.austlii.edu.au/au/legis/cth/num_reg_es/maos485gvaiis500vwhr20232023008211257.html>.
> "work means an activity that, in Australia, normally attracts remuneration. ": Migration Regulations 1994 (Cth), reg 1.23.
Doctoral and Masters Research Students - Holders
> PAM3: Visa 500 - Student, 2020 <https://www.homeaffairs.gov.au/foi/files/2020/fa-190900112-r1-document-1-released.PDF>, archived at <https://web.archive.org/web/20250824050620/https://www.homeaffairs.gov.au/foi/files/2020/fa-190900112-r1-document-1-released.PDF>: "4.7.3.4. Condition 8105 work limitation (primary visa holders) About 8105 Condition 8105 restricts students to 40 hours work per fortnight while their course is in session. They are not permitted to work until their course has commenced. When their course is not in session they may work unlimited hours. Students who have commenced a masters by research or a doctorate course may work unlimited hours after commencing their postgraduate research course. Condition 8105 - working between course sessions Condition 8105 states that holders are also not permitted to work more than 40 hours a fortnight while their course of study or training in which they are enrolled is ‘in session’, with the exception of those who have commenced a masters degree by research or doctoral degree. However, this work limitation does not include work that is a registered component of the student’s course of study or training for the award to be obtained.".
> PAM - Sch2Visa500 - Student, 18 November 2017: text <https://legend.online.immi.gov.au/migration/2017-2020/2017/18-11-2017/legend_current_mp/Pages/_document00003/level%20100183.aspx> --- "Condition 8105 work limitation (primary visa holders) About 8105 Condition 8105 restricts students to 40 hours work per fortnight while their course is in session. They are not permitted to work until their course has commenced. When their course is not in session they may work unlimited hours. Students who have commenced a masters by research or a doctorate course may work unlimited hours after commencing their postgraduate research course. Condition 8105 - working between course sessions Condition 8015 states that holders are also not permitted to work more than 40 hours a fortnight while their course of study or training in which they are enrolled is ‘in session’, with the exception of those who have commenced a masters degree by research or doctoral degree. However, this work limitation does not include work that is a registered component of the student’s course of study or training for the award to be obtained."
-> See also, PAM, [Sch2Visa500] Visa 500 - Student, 7 November 2025: text <https://legend.online.immi.gov.au/migration/2021-2024/2025/07-11-2025/policy/Pages/_document00003/level%20100190.aspx>. -- 7 Nov 2025 updated PAM.
> "Item 41 - Paragraph 8105(2)(b) of Schedule 8 This item amends paragraph 8105(2)(b) of Schedule 8 (Visa conditions) to the Migration Regulations by omitting the words "Subclass 574 (Postgraduate Research Sector) visa" and substituting "student visa granted in relation to a masters degree by research or doctoral degree". Clause 8105 specifies a condition 8105 which must be imposed on a Subclass 500 (Student) visa granted to an applicant who satisfies the primary criteria (see paragraph 500.611(1)(a), inserted by item 32 of this Schedule, above). The effect of the condition is that the visa holder is restricted to working for no more than 40 hours per fortnight, unless the visa holder is studying certain postgraduate courses. This amendment removes a reference to a Subclass 574 visa, which is repealed by item 32 of this Schedule, above, and substitutes a reference to a student visa granted in relation to certain postgraduate courses. The effect of the amendment is to continue the application of the condition, as the term student visa includes a Subclass 500 (Student) visa.": Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 (F2016L00523) Explanatory Statement <https://austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/num_reg_es/mla2016mn1r2016201600523537.html>.
> "65. The Tribunal also put to the applicant information that condition 8105 on his Student visa restricted the number of hours he could work to 48 hours a fortnight and he had worked in excess of that. A closer scrutiny of condition 8105 indicates that this restriction does not apply to Student visas granted in relation to Master’s degrees by research or doctoral degrees if the holder has commenced the Master’s degree by research or doctoral degree. ... 84. In oral submissions to the Tribunal, the applicant’s legal representative submitted that the applicant had difficulty recalling dates and time frames and this should not reflect on his credibility. His evidence was credible. He acknowledged incidents that would affect his credibility such as not attending Church physically and this was a sign of his integrity and honesty. He has come from a Muslim family, has converted to Christianity and his family are aware of that. DFAT also stated that the risk is higher for converts particular from Islamic families and can be subject to violence. There are high levels of corruption in the Police. They are prepared to turn a blind eye when violence occurs. That would leave the applicant at risk. His ability to self-identify and self-determination is an innate quality and should not be something that he has to modify his behaviour to hide. In this day, social media is reckless. It could lead to him being identified by people who are aware in his family. This could lead to his location being given away. Condition 8105 currently allows for a student studying a Ph D by research to work more than 48 hours a fortnight. He could not guarantee that this was the case in 2016.": 2101204 (Refugee) [2024] AATA 3910.
> "[ft nt 3] In accordance with cl. 010.611(4)(a)(i) of Schedule 2 to the Regulations, when a Bridging Visa Class A is granted to the holder of a student visa at the time of application for the bridging visa, the same conditions which applied to the student visa apply to the bridging visa. granted to a person who is the holder of a student visa at the time of application for the bridging visa, the same conditions which applied to the student visa apply to the bridging visa. The Department’s records show that the only additional specific conditions imposed upon the applicant’s Subclass 010 visa were condition 8105 prohibiting work of more than 40 hours per fortnight when the applicant’s course was in session (applicable only if doing a course other than a masters by research or a doctorate course).": Ramos (Migration) [2018] AATA 3546, footnote 3.
> "6. Did the applicant comply with condition 8105 ? Condition 8105 , as it applies in this case before the tribunal, requires that the visa holder must not engage in any work in Australia before the course of study commences. Once the course of study has commenced, the visa holder must not engage in work for more than 40 hours a fortnight, excluding certain work that is specified as a course requirement. This 40-hour restriction does not apply to section 574 visa holders who have commenced a master’s degree by research or a doctoral degree, which is not the case here.": Lissy (Migration) [2019] AATA 1987.
> "11. If the visa holder has engaged in work within the meaning of r.1.03, condition 8105 requires that it not be for more than 40 hours a fortnight ‘during any fortnight when the holder’s course of study or training is in session’. ‘Fortnight’ in Condition 8105 means the period of 14 days commencing on a Monday: 8105 (3). 12. However, the 40 hours a fortnight limitation in condition 8105 (1) does not apply to work that was specified as a requirement of the course when the course particulars were entered in the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), or in relation to a Subclass 574 (Postgraduate Research Sector) visa if the holder has commenced the masters degree by research or doctoral degree: 8105 (2).": 1220121 [2013] MRTA 1458 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2013/1458.html>.
> "9. Condition 8105 , as it applies in this case is extracted in the attachment to this decision. It requires that the visa holder must not engage in any work in Australia before the course of study commences. Once the course of study has commenced, the visa holder must not engage in work for more than 40 hours a fortnight (excluding certain work that is specified as a course requirement). This 40 hour restriction does not apply to Subclass 574 visa holders who have commenced a masters degree by research, or a doctoral degree.": 1311060 [2013] MRTA 2938 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2013/2938.html>.
> "15. Condition 8105 , as it applies in this case is extracted in the attachment to this decision. It requires that the visa holder must not engage in any work in Australia before the course of study commences. Once the course of study has commenced, the visa holder must not engage in work for more than 40 hours a fortnight (excluding certain work that is specified as a course requirement). This 40 hour restriction does not apply to Subclass 574 visa holders who have commenced a masters degree by research, or a doctoral degree.": 1305000 [2014] MRTA 227 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2014/227.html>.
> "11. However, the work limitation in condition 8105 (1) does not apply to work that was specified as a requirement of the course when the course particulars were entered in the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), or in relation to a Subclass 574 (Postgraduate Research Sector) visa if the holder has commenced the masters degree by research or doctoral degree: 8105 (2).": 1206690 [2013] MRTA 228 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2013/228.html>.
> "11. Condition 8105 , as it applies in this case is extracted in the attachment to this decision. It requires that the visa holder must not engage in any work in Australia before the course of study commences. Once the course of study has commenced, the visa holder must not engage in work for more than 40 hours a fortnight (excluding certain work that is specified as a course requirement). This 40 hour restriction does not apply to Subclass 574 visa holders who have commenced a masters degree by research, or a doctoral degree.": 1313287 [2013] MRTA 2681 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2013/2681.html>.
> "8. Condition 8105 , as it applies in this case is extracted in the attachment to this decision. It requires that the visa holder must not engage in any work in Australia before the course of study commences. Once the course of study has commenced, the visa holder must not engage in work for more than 40 hours a fortnight (excluding certain work that is specified as a course requirement). This 40 hour restriction does not apply to Subclass 574 visa holders who have commenced a masters degree by research, or a doctoral degree.": Cheema (Migration) [2019] AATA 1354.
> "8. Condition 8105 , as it applies in this case is extracted in the attachment to this decision. It requires that the visa holder must not engage in any work in Australia before the course of study commences. Once the course of study has commenced, the visa holder must not engage in work for more than 40 hours a fortnight (excluding certain work that is specified as a course requirement). This 40 hour restriction does not apply to Subclass 574 visa holders who have commenced a masters degree by research, or a doctoral degree.": 1511402 (Migration) [2016] AATA 4068.
Mixture of part time and full time work: Takkar (Migration) [2023] AATA 3770, [27].
Job Titles
"16. As an assistant manager, the Principal can at best be described as being in middle management. The Principal himself in the original application stated that his present occupation is that of "tourism and travel consultant" and that his main duties in that capacity are to "offer tourism and travel services". He likewise stated this to be the type of work he intends to pursue in Australia. The term "travel agent" (or "travel consultant") is a generic one which denotes the type of work carried out by the person concerned. It does not in my view connote any level or hierarchy in management. For example, the proprietor or general manager of a travel agency can still be accurately described as a travel agent, just as the senior partner of a law firm is still a lawyer . The fact that the Principal in this instance, as the result of his years of experience in the industry, has rose to the rank of assistant manager does not detract from the fact that he is still a travel agent.": DANDAPANI NATARAJAN IRT Reference No. N92/00281 #NUMBER 1057 Number of pages - 4 Concessional Family Visa [1992] IRTA 2435 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/IRTA/1992/2435.htm>. Similarly [1992] IRTA 1057.
Job Descriptions
NZ: "[44] Counsel argues that the requirement for an applicant to demonstrate a substantial match between their employment and an ANZSCO occupation could be satisfied by the provision of a job description that substantially matched the description, including core tasks, for the occupation. The Tribunal does not accept counsel’s argument. Whether an applicant’s current employment is a substantial match to the description, including core tasks, for an occupation is dependent on what an applicant actually does, not what their job description says they do. An applicant may provide their job description in support of their application; however, the onus remains on the applicant to provide evidence to show that their job description is an accurate description of what they actually do.": CZ (Skilled Migrant) [2015] NZIPT 202587 <https://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZIPT/2015/202587.html>.
OVERLAPS - in skills and tasks in Occupations in different Major Groups and Sub-Major Groups - Overlap - key to look at duties, tasks and skill level - and match, cover, commonalities
Query whether the following are sch 6D points test cases or skills assessment
consideration and finding of performance of most of the duties of nominated occupation: Farooq (Migration) [2022] AATA 2930 -- Accountant (ANZSCO 22111) / Accounting Clerk (ANZSCO 551111) – duties found to be same as Accountant: "... 20. Although the delegate was satisfied that the applicant worked for Veolia during the relevant period, the delegate was not satisfied that the tasks listed in the statement of service were consistent with those of the nominated occupation of Accountant (General) (ANZSCO 221111).and that they were more consistent with those of an Accounting Clerk (ANZSCO 551111). ... 26. The Tribunal has taken into consideration the tasks listed under the Unit Group 2211 Accountants in ANZSCO and that in relation to the occupation Accountant (General) ANZSCO states that an occupant in the position: ‘provides services relating to compliance based financial reporting, auditing, insolvency and accounting information systems; and advises on associated record-keeping requirements.’ On the evidence set out above the Tribunal is satisfied that the applicant during both periods of employment with Veolia performed most of the duties of the nominated occupation Accountant (General). The Tribunal is also satisfied that the applicant worked in the nominated occupation during both periods of employment for a total of 21 months. ..." <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2022/2930.html>.
Rakhra, Arvinder Jit [2001] MRTA 56 -- corporate legal officer / legal consultancy; law clerk (ANZSCO 599214) - Solicitor (ANZSCO 271311).
'more than a narrow matching process', skill level: "41. The Tribunal has had regard to the tasks of the position as outlined in ANZSCO . The Tribunal is mindful, however, that in considering the nominated occupation, the description of the occupation in ANZSCO is a guide only, and the Tribunal should not place absolute reliance on that tool. The determination of each application requires more than a narrow matching process between an applicant's tasks and the ANZSCO occupational definition. In relation to earlier versions of cl.457.223(4)(d) and (e), the Court in Joshi v MIMIA held the sensible and correct approach requires the ascertainment of the attributes and skills of an applicant and how those attributes and skills are being applied in the nominated occupation: Joshi v MIMIA [2005] FMCA 1116. ... 55. The visa applicant claims the Department verified that she provided advice on production design; followed up quotations; and liaised with the production department regarding product processing. She also claims to have set up orders with suppliers, and followed up production by suppliers. She provided correspondence and documentation in support of these claims. The review applicant also gave evidence about the contact that the visa applicant had with suppliers and her duties in assessing the needs of the production department, contacting suppliers, keeping track of warehouse stock and coordinating deliveries. As noted, the Tribunal has found that the applicant has not given a truthful account of her employment history. The applicant is now claiming that she was a supply chain manager for 5 years but during this entire period she was also a marketing manager, first for her former employer and then for the employer for whom she had been recruited to work as the supply chain manager. However, if, as the applicant claims, she was simultaneously a marketing manager and a supply chain manager, even if she worked long hours, the Tribunal does not accept that the visa applicant has sufficient relevant experience to have developed the skills necessary to perform the duties of a supply and distribution manager, which is a higher skill level 1 occupation in the ANZSCO descriptor. 56. The review applicant and visa applicant also claim that the occupations of Marketing Manager and Supply and Distribution Manager are closely related and so she was able to perform both jobs concurrently and the workplaces were close by. However, even if the workplaces were close by, the Tribunal does not accept this argument. The occupations fall into different unit groups in ANZSCO and the Tribunal is of the view that these occupations require different skills. The Tribunal accepts that the review applicant values the work which he believes the visa applicant would be able to perform. The Tribunal also accepts an applicant might not have performed all the duties of the nominated occupation but the Tribunal is of the view that an applicant must demonstrate that she has the skills and employment background necessary to perform the nominated occupation which in this case is Supply and Distribution Manager. However, for the reasons above, the Tribunal is not satisfied that the visa applicant has the skills, qualifications and employment background necessary to perform the nominated occupation of supply and distribution manager.": 1416896 [2015] MRTA 478 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2015/478.html>.
lead statements, distinguish:
> "29. It has been held that it is at least open, as a matter of law, to a decision maker applying the ASCO code when determining whether someone has a skilled occupation, to consider both the tasks listed for that occupation, and also the extent to which another classification in ASCO appears more suited to the tasks performed by the visa applicant (see Minister for Immigration & Citizenship v Kamruzzaman [2009] FCA 1562 at [64] and [69]). Some occupations might need close examination of skills or tasks rather than lead statements, when the classification is made. However, in my opinion, an application of the ASCO classifications does not, in all cases, require the focusing of the assessment upon the ‘tasks’ parts of the definition. In the present case, the ‘lead statements’ provided an equally relevant, and clearer, distinction between the two occupations addressed by the delegate and the Tribunal.": Shukla v MIAC [2010] FMCA 625 <https://jade.io/article/201252>;
> "72. Aside from ‘School Principal’ there is also ‘Faculty Head’ and ‘Regional Education Manager’, both of which the Tribunal also does not consider are the appropriate occupations having regard to their lead statements in ASCO . The Tribunal considers that the visa applicant’s responsibilities, as set out in the letters provided from Dr Leong and the chairman, match the following tasks set out under the unit group of Education Managers: coordinating the administrative and financial affairs of an educational institution; liaising with parents; identifying and addressing present and future needs for staff development and student development in non-academic areas and also supervising staff of the schools. The Tribunal thus finds that the position of CEO of SBK appears to be in the occupation of Education Manager nec.": 1205435 [2013] MRTA 730 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2013/730.html>.
on balance, having regard to work duties, match(ness): "During that period, the visa applicant was employed at the same job as discussed above which was stated to be an ‘Office Manager’ for ‘Singer’. As already stated, the Tribunal finds that her work duties in that occupation, on balance, substantially match those of a ‘Personal Assistant’, an occupation which is not shown on the relevant Skilled Occupation List. Accordingly, the Tribunal finds that the visa applicant does not satisfy subclause 138.216(1)(a) as she has not worked in a skilled occupation for the specified period.": Jayawardena, Shiromi Kumudini [2004] MRTA 7089 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2004/7089.html>.
consideration of substantial match: "... The visa applicant described two projects she had been involved in since December 2003 namely "the program of tax investigation of the building and real estate industry" and "the project of tax investigation of medical enterprises". The Tribunal considers that both these projects involved merely a more specific tax inspection of two particular industries rather than involving the visa applicant as a project administrator. After considering all the evidence submitted, the Tribunal finds that the duties of the visa applicant in her position, on balance, substantially match those of a ‘Tax Inspector’.": V05/06375 [2006] MRTA 523 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2006/523.html>.
consideration of close alignment / close match, having regard to tasks, skill level, and most appropriate description: "19. The delegate stated that the nomination of a business activity was not approved because the review applicant did not satisfy subregulation 1.20G(2). The delegate noted that information from the Australian Bureau of Statistics indicated that the average weekly earnings for ASCO code 1112, which includes the occupation of General Manager, was approximately $1489.10. The delegate found that the tasks described did not exactly match any occupation listed in the Australian Standard Classification of Occupations ( ASCO ) Second Edition, and that the occupations which most closely aligned with the job described were General Manager ( ASCO code 1112-11) and Shop Manager (ASCO code 3311-11). 20. As a result of taking into account the salary level of the position and the skills required, the delegate found that Shop Manager ( ASCO Code of 3311-11) was more appropriate description of the nominated position (D1, f.45). However, this occupation was not an occupation specified in Gazette Notice SGN 263 of 1 July 2001 for the purposes of subregulation 1.20G(2) and therefore the nomination of a business activity was not approved (D1, f. 44-47). ... 101. In relation to the tasks, duties and responsibilities assigned to the nominated position, the Tribunal observes that there is some potential overlap with the tasks of the nominated position and some of the tasks set out in ASCO for a General Manager. For example, ASCO states that a General Manager may undertake responsibility for some or all of accounting, sales, marketing, personnel and other specialist operations in smaller establishments and there is some evidence before the Tribunal that the nominated position has elements of these responsibilities. The Tribunal considers that there are also elements of planning, performance evaluation, target setting, liaison with suppliers and the like taking place within the nominated position at the review applicant. However, it would be unusual not to see some of these elements present in most, if not, all small businesses. Nonetheless, it cannot be said that the nominated position is involved in reviewing the reports and recommendations of subordinate staff; the evidence before the Tribunal is that the visa applicant’s spouse is primarily responsible for the store cash register and that the only part-time employee works at the direction of the visa applicant and does not appear to have any considered reporting or recommendatory role within the review applicant. There are presently no senior staff positions awaiting selection or approval by the nominated position; the foreshadowed positions of accounts clerk, sales trainee and production assistant would not normally be understood as “senior staff positions”. The evidence largely indicates that any reports, budgets and forecasts prepared by the visa applicant in the nominated position are either for internal purposes or to comply with Australian taxation requirements rather than being presented to external governing bodies. Similarly, whilst the visa applicant may be involved in liaising with a group of suppliers of grocery products for the business, there is little objective evidence of the extent to which the nominated position involves representing the review applicant in negotiations, at conventions and seminars and between areas of responsibility and with other organisations. The Tribunal does not consider the single flyer that has been submitted to it in relation to the review applicant’s participation at a Korean food festival sufficient, of itself, to demonstrate that such representational and negotiating functions are an inherent part of the nominated position. 102. The Tribunal considers that the presence of an element of overlap between the nominated position and the ASCO guidelines in relation to the tasks and responsibilities of a General Manager does not mean that the nominated position necessarily falls within this particular ASCO classification. Whilst there is no requirement that the nominated position reflect every possible task set out in ASCO for a General Manager, there should be a reasonable level of correlation between the tasks of the nominated position and those set out in ASCO if the nominated position is to come within this particular occupational classification. In other words and by analogy, the presence of strands of certain tasks or responsibilities within the nominated position does not necessarily mean when looked at as a whole that it follows that the nominated position, on a reasonable assessment, reflects the tapestry that is the ASCO classification of General Manager. Therefore, based on the evidence before it, the Tribunal finds that the activities actually proposed for the position, or undertaken by the visa applicant as the present incumbent, do not correspond with those for a General Manager. ... 109. As a result, whilst there may be some overlap with the tasks and responsibilities of the nominated position and those set out in ASCO for a Retail Buyer, the Tribunal is not satisfied on the basis of the evidence before it, that there is a sufficient degree of similarity between the activities actually proposed for the nominated position, or undertaken by the visa applicant, and those of a Retail Buyer. Therefore, on balance, the Tribunal finds that the duties and responsibilities of the nominated position do not correspond with those of a Retail Buyer. ... 114. Accordingly, although there may be some points where there appears to be an element of similarity or overlap with the tasks and responsibilities of the nominated position and those set out in ASCO for a Sales and Marketing Manager, the Tribunal is not satisfied on the basis of the evidence before it, that there is a sufficient degree of similarity between the activities actually proposed for the nominated position and those of a Sales and Marketing Manager. Therefore, on balance, the Tribunal finds that the duties and responsibilities of the nominated position do not correspond with those of a Sales and Marketing Manager. ... 119. Consequently, whilst the nominated position may have a general responsibility to ensure that customers are satisfied with their purchases from the review applicant, the Tribunal is not satisfied that the evidence establishes a degree of similarity between the duties and tasks of the nominated position and those set out in ASCO for a Customer Service Manager. Accordingly, on balance, the Tribunal finds that the duties and responsibilities of the nominated position do not correspond with those of a Customer Service Manager. ... 123. As a result, having considered in detail the tasks attributed to the nominated position, including where appropriate the tasks carried out by the present incumbent who is also the visa applicant, and having considered the alternatives put forward by the review applicant, the Tribunal finds that “the tasks of the nominated activity” are compatible or consistent and therefore correspond with those of a Shop Manager as described in ASCO 3311-11. On this basis, the Tribunal finds that the nominated position is Shop Manager ( ASCO 3311-11). 124. In considering whether the “the tasks of the nominated activity” “correspond to the tasks of an occupation specified in a Gazette Notice” the Tribunal refers to Gazette Notice No. SGN 263 of 1 July 2001, in which the Minister specified the occupations for the purpose of subregulation 1.20G(2). The position of Shop Manager ( ASCO 3311-11) is not listed in the gazette notice. Therefore, the Tribunal finds that the review applicant does not meet the requirement of subregulation 1.20G(2) that the tasks of the nominated activity must correspond to the tasks of an occupation specified in a Gazette Notice for this subregulation.": N04/05834 [2005] MRTA 705 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2005/705.html>.
tasks, not the job title: "46. In addition, the Tribunal notes that in Parekh v Minister for Immigration and Citizenship [2007] FMCA 633 (7 March 2007) Smith FM stated that the ASCO system provides a consistent and authoritative source of definitional rules and descriptions for classifying occupations and that where the relevant instrument specifies particular occupations according to their ASCO codes, then ASCO should be consulted. This conclusion was reinforced by the decision in Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 843 where the Court found that the fact that a highly qualified university lecturer did not meet the criteria for an architect (a skilled occupation on the skilled occupation list) according to the ASCO definition, meant that he was therefore not employed in a skilled occupation. 47. PAM3 provides the following guidance on the assessment of eligible occupations for the purpose of subregulation 1.20G(2): 75.3 Assessing a case for match to ASCO Delegates are required to determine whether or not the tasks nominated by the employer match the tasks of an occupation listed in the legislative instrument. While in some cases the title of the nominated occupation will provide a good indication that there is likely to be a match , it is the tasks and not the job title, which must be the determinative factor. Officers should refer to ASCO , to compare the duty statement provided with the nomination against the task descriptions provided in the “occupation” level of ASCO . The ASCO task descriptions specify a generally representative list of the primary tasks usually performed in the occupation. 75.4 Cases where a match is found in an occupation not listed on the legislative instrument Where the tasks of the nominated occupation clearly correspond to an occupation that is not listed on the legislative instrument, officers should check whether the business has become a party to a labour agreement that allows the activity to be nominated. If so, the application can be taken to have been made under 1.20G(1)(a) and where other requisite criteria are met, can be approved In all other cases, the application must be refused. 75.5 “Part-compliance” with ASCO If the nominated position would involve only some of the tasks of an occupation in the legislative instrument, delegates should check to see if another occupation more accurately captures the tasks of the role. Where a match is made to an occupation not in the legislative instrument, the nomination must be refused. To be considered a match , a significant majority of tasks of the nomination need to be consistent with a significant majority of tasks normally attributed to a particular occupation (as per the ASCO description). 75.6 Cases where doubts are raised about the claimed tasks Where an officer has doubts that the claimed tasks are the actual tasks that would be performed, they may request additional information from the client to further substantiate the role (eg a position described as manager but is more likely to actually be a supervisor or clerk). Additional documentation that could be requested includes: • duty statements that have or will be provided to the occupant of the position describing the role organisational charts that outline the relationship between different persons working in the business job advertisements that outline the role • details about what the occupant of the position would do on a typical day • details of the level of skills, qualifications and experience that would be required by the occupant of the position, as these factors can be an indicator as to the tasks and level of responsibility associated with the occupation. 48. Accordingly, the Tribunal observes that what is at issue is not the title of the nominated position, but the duties of the nominated position, which the Tribunal must consider, using ASCO as a guide. In approaching subregulation 1.20G(2) the decision before the Tribunal concerns the assessment of the nominated position, not an incumbent who may currently hold the position. The assessment is firstly about identifying “the tasks of the nominated activity” and secondly, about whether they “correspond to the tasks of an occupation specified in a Gazette Notice for this subregulation” This assessment is separate from the skills and other attributes of the person whom the employer proposes to employ in the nominated position. ... The Job Title for the Nominated Position: ... Qualification/Skill Level: ... The Nature of the Tasks, Duties and Responsibilities assigned to the Nominated Position: ...": 0803180 [2009] MRTA 1490 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2009/1490.html>.
> PAM3 -- ASSESSMENT AGAINST 1.20G - STANDARD NOMINATIONS, 1 July 2009: text <https://legend.online.immi.gov.au/migration/2006-2016/legend_2009_m/legend_01_07_2009_m/legend_01_07_2009_mp/Pages/_document00004/_level%20100024/_level%20200261/level%20300699.aspx>.
consistency with nature of activity, skills: "24. The Tribunal accepts that the review applicant’s description of the activity to be performed does not match in every detail the tasks set out by ASCO for the position of Agricultural Technical Officer (Code 3112-17), although there is a significant degree of overlap . On this issue the judgement of McInnis FM in Joshi v MIMIA & Anor [2005] FMCA 1116, in which a decision by the Tribunal (differently constituted) in a similar case was set aside, is relevant: The Tribunal simply relied on the ASCO classification [specified in the Department’s notification of its business nomination approval] without making any attempt to properly consider whether or not the applicant had personal attributes in an employment background that were relevant to and consistent with the nature of the activity to be performed and whether the applicant demonstrated that he has the skills necessary to perform the activity consistent with subclauses 457.233(4)(d) and (e). The Tribunal is not bound by the delegate’s insertion in the business nomination approval of a specific occupation. Consideration must be given to all the material provided by both the applicant and the sponsoring employer. That letter does not prevent a delegate and/or on review the MRT from properly applying the criteria under subclauses 457.223(4)(d) and (e). 25. This judgement, while relating to the Regulations as in force before 14 September 2009, remains relevant to cl.457.223(4)(e) as now in force. Given: the fact that the Department has approved the review applicant’s application for an approved business nomination of an occupation the tasks of which were described in some detail in the application; the extent of overlap between the tasks involved in the nominated activity as described by the review applicant and the tasks specified by ASCO for the position Agricultural Technical Officer; and based on the evidence that the visa applicant has the skills necessary to perform the nominated occupation, the Tribunal is satisfied that the visa applicant meets the requirements of cl.457.223(4)(e) of the Regulations.": 0900613 [2010] MRTA 1316 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2010/1316.html>; See also, 071940751 [2008] MRTA 1364; 071671471 [2008] MRTA 904; 071940751 [2008] MRTA 1364.
consideration of whether 'more in line': "48. In the ordinary case, policy is a relevant factor for the Tribunal to take into account.[1] However, the Tribunal must not determine an issue simply by resolving whether or not it conforms to policy. The Tribunal is not entitled “to abdicate its function of determining a correct or preferable decision in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be”.[2] The application of policy assumes that, in the absence of any reason to the contrary, its standards and values are an appropriate guide in the particular case.[3] But where the policy is more narrow or restrictive than the legislation it will not be a lawful policy and reliance on it is likely to result in a jurisdictional error.[4] ... 51. The Tribunal further acknowledges that there is a degree of overlap between the some of the duties of a Residential Care Officer as set out in ANZSCO , and the duties of a Disabled or Aged Carer, as also set out in ANZSCO . In particular, the nominated position is described in KPO2 as providing direct support and assistance to residents for their living and domestic needs, including in laundry, bed making, clothes washing, dusting, food preparation and house cleaning duties, which fairly closely matches 6 of the 9 tasks listed for an Aged or Disabled Carer (‘accompanying aged and disabled people during daily activities,’ ‘assisting clients with their mobility,’ ‘preparing food for clients,’ ‘performing housekeeping tasks such as vacuuming and cleaning,’ and ‘assisting in personal hygiene and dressing’). However, the Tribunal notes that for a Disabled or Aged Carer, these tasks are stated to be carried out for aged and disabled persons in their own homes. In contrast, the tasks of a Residential Care Officer are stated to be provided to people in residential care, not in their own homes. The Tribunal is satisfied, from the position description and additional information provided by the applicant, that the nominated position relates to residential group home care, and not to care for people in their own homes. This is more in line with the ANZSCO description of a Residential Care Officer.": NULSEN HAVEN ASSOCIATION (INCORPORATED) (Migration) [2019] AATA 3015 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2019/3015.html>.
consideration of factors: "38. In considering whether I accept that the role requires the appointment of someone with at least Diploma level qualification, I have considered the correspondence of the nominated role with the occupational descriptors in ANZSCO . In doing so, I have used ANZSCO as a guide only to the skill level of the nominated position. 39. I accept that the nominated role includes some of the tasks included in the ANZSCO description of the occupation of Agricultural Technician ANZSCO 311111. While no included tasks are referred to at an occupational level in the ANZSCO , the Unit Group of Agricultural Technicians ( ANZSCO 3111) does detail included tasks. I accept that the nominated position includes some but not all of the included tasks. I accept that it includes at least: identifying pathogenic micro-organisms and insects, parasites and fungi harmful to crops and assisting in devising methods of control (monitoring of crops and produce and devising and implementing controls); analysing produce to set and maintain standards of quality (monitoring of crops and produce); advise on farming techniques and management; examining soil characteristics to determine its most effective use and identifying nutrient deficiencies (soil monitoring and developing nutrient plans); assisting in controlled breeding experiments (manual pollination to create hybrid papaya); and collecting and collating data for research (detailed reporting). While I raised with the applicant at the hearing my preliminary view that the nominated role appeared to coincide with the Primary Products Inspector ANZSCO description, I accept that the tasks coincide better with the Agricultural Technician tasks. 40. As I raised with the applicant at the hearing, however, I consider that the nominated role does not closely match the overall descriptor in the Minor Group 311 Agricultural, Medical and Science Technicians, of which the Agricultural Technician is a member. I note that the overall tasks listed for that group refer to scientific sample testing and analysis, presenting results in graphic form by preparing maps, charts, sketches, diagrams and reports, and the maintenance and calibration of scientific equipment, which suggest that the occupations within that classification have a particularly rigorous scientific focus. In addition, I consider that the nominated role does not closely match the overall descriptor for the Unit Group 3111 Agricultural Technician, which states that: “Agricultural Technicians perform tests and experiments, and provide technical support to assist Agricultural Scientists in areas such as research, production, servicing and marketing”(my emphasis). I do not accept that the nominated role primarily involves providing technical support to assist Agricultural Scientists. While the role involves occasionally collecting soil and interpreting and implementing their advice, as well as the ongoing reporting in relation to crop conditions, these tasks do not fit easily within the description of ‘providing technical support’ to ‘scientists’. 41. There appears to be no other occupational classification in ANZSCO which covers the range of tasks involved in the nominated role in the context in which they are performed. The skill level of the role clearly falls between the dictionary classifications of Crop Farmer, Fruit and Nut Grower ( ANZSCO 121213, Skill level 1) and Crop Farm Worker, Fruit of Nut farm worker ( ANZSCO 841211, Skill level 5). I note that the major ANZSCO subgroup 36 of ‘Skilled Animal and Horticultural Workers’ which includes several occupations at skill level 3, does not appear to include any occupations found in the agricultural sector at all other than ‘shearers’ and some animal attendants and trainers. 42. Having considered the available occupational descriptors, despite the fact that the role appears not to fit well with the overall description in the relevant group classification, I accept that Agricultural Technician provides the best occupational match for the nominated position as a guide to the skill level of the nominated role. I accept there is an analytical and technical focus to the position, which includes the aspects of the role involved in soil testing and nutrient planning, and in particular the monitoring, categorisation and reporting of pest, insect and fungal incursions. I accept that the nominated role is at a comparable skill level to the Agricultural Technician classification, which is ANZSCO Skill Level 2, or requiring skill commensurate with an AQF Diploma or higher qualification. While the nominated role is not an exact match for the classification, it appears to be the best available in relation to the skill level. 43. I accept that the duties associated with the role are skilled and specialised. I accept that the role requires technical, diagnosis, categorisation, analytical, management and reporting skills, which may be acquired through the study of a formal qualification. 44. In assessing the skill level of the nominated role, I have considered the salary offered with the role. In refusing the application, the delegate suggested that the market rate for the occupation was of $45,000 to $60,000, although no source was provided for that information. The salary offered at that time was $37,000. Documentation recently provided to the tribunal, in the form of a revised offer letter, notes that the salary now offered with the role is $54,000. I note that the average full time earnings for Agricultural Technicians, as indicated on the JobOutlook website (maintained by Commonwealth Department of Employment), are $950 a week or approximately $49,570 per annum[1]. I consider that this evidence supports a finding that the skill level of the role is as claimed. I note that the salary now offered also appears to fall within the range quoted by the delegate. 45. Having considered all the evidence before me, I accept the applicant’s claim that work to be performed in the nominated position Agricultural Technician requires the employment of someone with at least a relevant formal Diploma level qualification.": 1216079 [2014] MRTA 2366 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2014/2366.html>.
Time of Assessment - Time of Invitation
"31. The applicant referred to her continued employment as a registered nurse since the invitation and application were made, which the Tribunal accepts on the evidence provided. While that employment would no doubt reflect that the applicant has the skills and experience for the occupation of Registered Nurse (medical), the Tribunal is unable to count this period of employment for the purposes of this Part as the relevant point in time for calculating the total length of employment in Australia in the nominated skilled occupation or a closely related occupation was at the time of invitation. The Tribunal has no power or discretion to take into account employment after the period of time of invitation ceased. On the evidence before it, the Tribunal finds that the applicant was employed as a Registered Nurse by Montefiore Jewish Home Randwick from 6 January 2020 until the time of invitation to apply for the visa which was from 13 March 2020 for 60 days. This period of work was for less than 12 months.": Baguio (Migration) [2023] AATA 921 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2023/921.html>.
No discretionary factors, compassionate, compelling factors, for waiving requirements
"60. The Tribunal acknowledges that the applicant is an experienced Registered Nurse working in Aged Care and highly valued by his employer of more than 5 years. The Tribunal also notes that the secondary applicant holds an overseas nursing qualification; has applied for Nurses’ registration; and is currently working as an Assistant in Nursing at the Fiona Stanley Hospital in Western Australia. The applicants have lived in Australia for over 7 years and would like to continue helping the Australian community in the healthcare sector. Regrettably, as discussed during the hearing, the Tribunal does not have any discretion to waive the requirements of cl. 189 .224 (or cl. 189 .311), as the criteria contains no discretionary factors, such as compassionate and/or compelling factors, for waiving its requirements.": Agharanya (Migration) [2022] AATA 5030 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2022/5030.html>.
"35. The applicant said that he had already spent $7,000 in relation to the application. He did not have any savings left. He said that had he known that he had to comply absolutely with condition 8539, he would have waited until he had two years of residence and he would have applied for another visa. The Tribunal does not have a discretion in relation to compliance with condition 8539 in relation to the awarding of points under this part of Schedule 6D .": 1414919 [2015] MRTA 707 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2015/707.html>.
"24. The applicant provided evidence of additional work experience in Australia obtained after the time he was invited to apply for a Subclass 190 visa. The Tribunal explained that any Australian work experience obtained after he was invited to apply for this visa could not be considered for the purposes of the points test.": Khan (Migration) [2023] AATA 243.
'Qualification' - appears to not be confined to educational qualifications, but is dependent on statutory context
"72 The appellants submitted that the word "qualification" in sub-paragraph 6104(d) was used in its narrow sense as meaning qualification in the nature of a degree, diploma, fellowship, or membership granted by some recognised body. 73 The appellants contended that the combination of "qualification" and "experience" in sub-paragraph 6104(d) did "... not seek to encompass the entirety of matters that may be required before a licence or registration is granted." There might, so it was put, be other matters beyond qualifications and experience that must be considered by the relevant authority before it granted the licence or approves registration. I interpolate here to say that I accept that proposition, but the sub-paragraph still requires the applicant to have the qualifications or experience (or both) required for the purpose of holding the relevant licence or registration. 74 Then it was said to follow from the proposition referred to immediately above that sub-paragraph 6104(d) was not "talking about an immediate right or entitlement to be licensed". It was said to travel no further than imposing a requirement that the applicant has the required qualification or the required experience. In their written submissions the appellants conceded that the first appellant had not completed a course of study or instruction approved in accordance with s 183CC(5) of the Customs Act, but contended that such qualification was not "required for the purpose of holding" the licence, because it was open for the appellant to obtain a licence without that or any other qualification. The appellant submitted that the point of the further study was to obtain a licence without the need for, and in place of, a qualification. 75 The appellants conceded that the first appellant could not have obtained a licence at the time when he applied for a visa and that there were a number of impediments in his way. However, so it was put, it was not necessary that he obtain a "qualification", nor did he lack the necessary experience. At the conclusion of the further study, so the appellants contended, the first appellant would not have completed a course of study approved under s 183CC(5), nor would he have obtained a "qualification". 76 I do not think that there is any need, in relation to Ground 4, to consider the matter of experience. It is sufficient, in my view, for the purposes of dealing with this ground to concentrate on the argument based upon whether the further requirements identified by the Tribunal amounted to a requirement to obtain further qualifications. 77 In my view, neither the Tribunal nor the primary judge erred in law. It was open to the Tribunal on the evidence before it to conclude that the appellant had to obtain a further qualification for the purpose of holding the relevant licence. The evidence was that he had to complete certain technical subjects nominated by the Kangan Institute in Victoria and to attempt (and presumably pass) the national examination conducted by the Customs Brokers Council of Australia. As I understand the appellant's point, it is that passing such examinations did not amount to the obtaining of a qualification in the narrow sense discussed in R v Refshauge (1976) 11 ALR 471. 78 In Refshauge the respondent had declined to recognise the prosecutor as a specialist surgeon because he did not hold any higher degree in surgery and was not a Fellow of any of the Colleges of Surgery. It is quite clear, in my view, that the High Court when it rejected the wider meaning of the word "qualifications" and referred to degrees, diplomas and the like was not concerned with the distinction between passing particular examinations and qualifying for particular diplomas or certificates. It was concerned with the difference between what it termed "mere academic qualifications" and the wider sense of the word "qualification", i.e. suitability for a profession. 79 In my view, there was ample evidence for the Tribunal to find that the requirement of further study (a semester on Mr Mack's evidence) or two sets of examinations (on the Council's evidence) meant that the first appellant did not have the qualifications required for the purpose of holding a Customs Brokers licence, or, more accurately, a Customs Agents licence. 80 I acknowledge that the word "qualifications" may vary in meaning according to the particular statutory context. I regard the statutory context of Refshauge as being sufficiently similar to the present matter as to warrant direct application of what the High Court held, but I would extend the meaning of an academic qualification to include the passing of particular examinations. 81 The Tribunal's finding amounts, in my opinion, to a finding that the CEO would, after obtaining and considering the advice of the Committee, be likely, on the balance of probabilities, to approve [under s 183CC(5) of the Customs Act] a course or courses of study or instruction of the type identified by the Customs Brokers Council of Australia as being one that, when added to his Chinese diploma, would fit him to be a customs agent. In those circumstances, the first appellant would not be taken to be qualified to be a customs agent, in terms of s 183CC(2) until he had completed such a course of study or instruction - see s 183CC(2)(a). 82 If I am wrong in that analysis then I think that the particular statutory context would support the wider concept of "qualifications" advanced by the respondent. As the respondent pointed out, there is no specific definition of "qualifications" in either the Act or the Migration Regulations. However, s 93(1) of the Act provides that the Minister shall make an assessment by giving a person the prescribed number of points for each "prescribed qualification" that is satisfied. Regulation 2.26(1)(a) provides that for the purposes of s 93(1) "each qualification specified in column 2" of items in Parts 1-7 of Schedule 6 is prescribed as a "qualification" in relation to the grant of a Sub-Class 105 Skilled Australian Linked visa. Every item in Schedule 6 is thus generally referred to as a "qualification". Those items relate to employment, age, language, relationship, citizenship, settlement of sponsor, and location of sponsor. Each of the headings to the various parts of Schedule 6 is also specifically described as a "qualification". Another indication that the concept of "qualification" is not to be used in a narrow sense is that the definitions of "associate diploma", "certificate or advanced certificate", and "degree" in Regulation 2.26(5) all prescribe, amongst other things, a formal education qualification. As the respondent submitted (and I agree), the addition of the words "formal education", would have been unnecessary if "qualification" were used in the narrow sense contended for by the appellants. See also Estate Agents Board v Nakic [1983] VicRp 115; [1983] 2 VR 570 at 577 (Full Court). 83 On such a wider construction, the further study which the first appellant would have to undergo, would quite clearly amount to a "qualification". In my view Grounds 2, 3 and 4 of the appeal have not been made out. As I have mentioned, the appellants abandoned Ground 5.": Chen v Minister for Immigration & Multicultural Affairs (includes corrigenda dated 9 February 2001) [2000] FCA 1901 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2000/1901.html>.
[B.1] Points Test - Sch 6 Migration Regulations 1994 (Cth) - Other Matters
Regulations - Div 2.6
2.26AC Prescribed qualifications and number of points for Subclass 189, 190, 489 and 491 visas
2.26B Relevant assessing authorities
2.27C Skilled occupation in Australia
2.27D Study in Australia
2.28 Notice of putting application aside
[Div 2.6] Div 2.6 - Prescribed qualifications - Application of points system, 15 September 2025: text <https://legend.online.immi.gov.au/migration/2021-2024/2025/15-09-2025/policy/Pages/_document00002/level%20100041.aspx>. NOTE: Employment points is assessed in r 2.26AC. Skill Assessments is assessed under r 2.26B.
Partner Qualifications
Time of Assessment - ?relationship status at the time of invitation: "Part 6D .11 – Partner qualifications 67. Ten points may be awarded under this Part if the applicant does not have a spouse or de factor partner , or the applicant has a spouse or de facto partner who is an Australian citizen or permanent resident. Five points may be awarded under this Part if the applicant has a spouse or de facto partner who is an applicant for the same subclass and is not an Australian citizen or permanent resident and at the time the applicant was invited to apply for the visa, the spouse or de facto partner had competent English. Ten 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 and at the time the applicant was invited to apply for the visa, the spouse or de facto partner was under a specified age, nominated a specified skilled occupation, had been assessed as having suitable skills, and had competent English. 68. The applicant stated that he had divorced his partner and that the divorce with formally certified by the Federal Circuit Court of Australia on 14 January 2021. 69. On the basis of the evidence the Tribunal is satisfied that the applicant did not claim points for a partner relationship under Part 6D .11 before the time of the invitation to apply for this visa. 70. Accordingly, no points were awarded under this criterion. 71. Therefore, the applicant is entitled to no points under this part.": Vekariya (Migration) [2022] AATA 1954.
Separated on final basis - finding that applicant does not have spouse, despite absence of a formal divorce - turns on evidence: "36. Having regard to that evidence, the Tribunal is satisfied, on balance, that the applicant is no longer in a spousal relationship with the second named applicant. There is no evidence that they share the household or have any joint financial arrangements. There is no evidence that they continue to represent themselves to others as being in a relationship, plan or undertake joint social activities. There is no evidence that they maintain a mutual commitment to the relationship. The Tribunal finds, in such circumstances, that at the time of this decision, the applicant does not have a spouse, despite the absence of a formal divorce. 37. The Tribunal is mindful that should further information come to light in the future which would suggest that the applicant and her husband do maintain a spousal relationship, consideration may be given to the cancellation of the applicant’s visa. However, at present, the Tribunal is satisfied on the basis of provided evidence that the applicant does not have a spouse or de facto partner . Therefore, the applicant is entitled to 10 points under this part.": Lopez (Migration) [2020] AATA 4502.
Separated - despite any evidence: "34. Ten points may be awarded under this Part if the applicant does not have a spouse or de factor partner, or the applicant has a spouse or de facto partner who is an Australian citizen or permanent resident. Five points may be awarded under this Part if the applicant has a spouse or de facto partner who is an applicant for the same subclass and is not an Australian citizen or permanent resident and at the time the applicant was invited to apply for the visa, the spouse or de facto partner had competent English. Ten 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 and at the time the applicant was invited to apply for the visa, the spouse or de facto partner was under a specified age, nominated a specified skilled occupation, had been assessed as having suitable skills, and had competent English. 35. In her application, the applicant gave her relationship status as ‘ Separated ’. This did not trouble the delegate and, in the absence of any evidence of a spouse or de facto partner, the applicant is entitled to 10 points under this part.": Rai (Migration) [2022] AATA 101.
PAM - time of assessment is at decision maker's time of assessment: "17. Partner qualifications 17.1 Background Changes to the partner skills criterion came into effect on 16 November 2019 to recognise the human capital contribution that the skilled partner of an applicant can contribute. This recognition builds on a recommendation of the Productivity Commission in its 2016 Report Migrant Intake into Australia. The award of points for single applicants will ensure a single person with identical skills to a primary applicant who has a skilled spouse or de facto partner will not be displaced in the points test. This measure is based on a recommendation from Migrant Intake into Australia. The points for partners with competent English recognises the link between good English language skills and successful entry into the Australian labour market. 17.2 Assessing the partner relationship and partner points When assessing applicant’s eligibility for partner points decision makers need to assess the relevant criteria against the relevant Item of Part 6D.11 of the regulations. The skills assessment and English language requirements for the relevant items in Part 6D.11 must be satisfied at time of invitation. In assessing whether an applicant is single or has a spouse (as defined in section 5F of the Act) or a de facto partner (as defined in section 5CB of the Act); and the citizenship or permanent residence status of any partner The relevant time of the relationship status is the date of the points test assessment by the decision maker. This means that if the applicant’s relationship status or the residence status of their partner changes after the date of invitation or the date of application, the award of partner points under Part 6D.11 may also change. 17.3 Skilled partners Under Item 6D111 of Part 6D.11 of the regulations, 10 points may only be awarded if the spouse (as defined in section 5F of the Act) or de facto partner (as defined in section 5CB of the Act) of the primary applicant: is an applicant for the same subclass of visa as the primary applicant; and is not an Australian permanent resident or an Australian citizen; and was under 45 at the time the primary applicant was invited to apply for the visa unless transitional arrangements apply – see below; and at the time of invitation to apply for the visa, nominated a skilled occupation, being an occupation specified under regulation 1.15I(1)(a) at th at time; and at the time of invitation to apply for the visa, had been assessed by the relevant assessing authority for their nominated skilled occupation as having suitable skills for the occupation and the assessment was not for a Subclass 485 (Temporary Graduate) visa. See paragraph 6D111 of Schedule 6D of the regulations; and at the time of invitation to apply for the visa had competent English. 17.4 Transitional Arrangements for the Partner age criterion If the applicant was invited to apply for a GSM points-tested visa prior to 1 July 2018 then the relevant age requirement is that their partner was under 50 years of age at time of invitation. Refer to Part 71 – Amendments made by the Home Affairs Legislation Amendment (2018 Measures No.1) regulations 2018 in Schedule 13 – Transitional arrangements of the regulations. 17.5. Single applicants Under Item 6D.112 of Part 6D.11 of the regulations, 10 points may be awarded if: the applicant does not have a spouse or de facto partner; (see paragraph 6D112(a)); or The applicant has a spouse or de facto partner who is an Australian permanent resident or an Australian citizen (see paragraph 6D112(b)). In order to determine whether an applicant has a spouse or de factor partner, decision makers must check a visa applicant’s visa application history, (if applicable), and the documentation used to support those applications, to ensure accurate information is provided in relation to their marital status and whether or not they are in a de facto relationship. In accordance with section 57 of the Act, inconsistent information regarding the marital /de facto relationship status of the applicant should be provided to the applicant for comment and if there has been a change in relationship status, evidence should be requested to support this change. This is to ensure applicants who are married or in a de facto relationship are not able to be awarded points under 6D112 on the basis of claiming to be without a spouse or de facto partner. 17.6 Australian citizen or permanent resident partners Under Item 6D112 of Part 6D.11 of the regulations, 10 points may be awarded if the applicant has a spouse or de facto partner who is an Australian permanent resident or an Australian citizen. Evidence should be provided to support this claim, such as an Australian passport, Australian birth certificate or visa grant notice. Decision makers must verify claims of Australian permanent residence in Departmental systems. 17.7 Partners with Competent English Under Item 6D.113 of Part 6D.11 of the regulations, 5 points may be awarded if the applicant has a spouse or de facto partner who: Is an applicant for the same visa subclass as the applicant (see paragraph 6D113(a)); and is not an Australian permanent resident or an Australian citizen (see paragraph 6D113(b)); and at the time of invitation to apply for the visa, hadcompetent English (see paragraph 6D113(C)). 17.8 Partner’s nominated skill occupation and skills assessment For the purpose of awarding partner points, the nominated occupation of the partner (that is, spouse or de facto partner) must be on the Occupation List(s) applicable to the point-tested visa that the primary applicant has applied for. A suitable skills assessment required for paragraph 6D111 must have been obtained at time of invitation but is not subject to the time periods prescribed in Schedule 2 and which apply to the primary applicant. This means that a suitable skills assessment obtained more than three years prior to the date of invitation can be accepted for this criterion.": [Sch6D] Schedule 6D general points test for General Skilled Migration visas mentioned in subregulation 2.26AC(1), 15 September 2025: text <https://legend.online.immi.gov.au/migration/2021-2024/2025/15-09-2025/policy/Pages/_document00003/level%20100252.aspx>.
English Language
PAM: "... 9.4 When the criteria must be met The English language definitions in regulations 1.15D and 1.15EA require the applicant to have undertaken their language test, in which they achieved the specified score, in the 3 years immediately before the day on which the invitation was issued to the applicant. To ensure this requirement is assessed objectively, applicants must sit an accepted English language test (as specified in the instrument) to demonstrate their English language proficiency. There are no exceptions to this requirement. Legislative instrument (IMMI 15/005) Language Tests Score and Passports 2015 (regulations 1.15B, 1.15C, 1.15D and 1.15EA) specifies proficient and superior English, including the accepted English Language tests and required scores. For policy and procedure on assessing English language, including approved English Language test providers, refer to English proficiency and assessment.": [Sch6D] Schedule 6D general points test for General Skilled Migration visas mentioned in subregulation 2.26AC(1), 15 September 2025: text <https://legend.online.immi.gov.au/migration/2021-2024/2025/15-09-2025/policy/Pages/_document00003/level%20100252.aspx>; 19 September 2025: text <https://legend.online.immi.gov.au/migration/2021-2024/2025/19-09-2025/policy/Pages/_document00003/level%20100252.aspx>.
Australian Study Requirement
PAM: "14. Australian study requirement 14.1 Australian study Applicants are eligible for 5 points under Part 6D.8 of the regulations if they have met the Australian study requirement factor. In assessing this requirement, decision makers should refer to regulation 1.15F Australian study requirement and the Div1.2/reg1.15F - Australian study requirement. Paragraph 6D81 does not require the eligible Australian study being claimed to be relevant to the applicant’s nominated occupation. Nor is it relevant when the study was completed, provided the applicant met the requirement at the time of invitation. Consistent with regulation 2.27D, study undertaken in Australia for the purposes of meeting the Australian study requirement and being awarded points under Part 6D.8 of the regulations will only be considered if, throughout the relevant period, the applicant held a substantive visa or an applicable bridging visa that allowed them to study, and they complied with the conditions of that visa.": [Sch6D] Schedule 6D general points test for General Skilled Migration visas mentioned in subregulation 2.26AC(1), 15 September 2025: text <https://legend.online.immi.gov.au/migration/2021-2024/2025/15-09-2025/policy/Pages/_document00003/level%20100252.aspx>.
Age
PAM: "8. Age 8.1 Why there is an age factor The age factor reflects the level of benefit to the Australian work force and economy expected of persons entering Australia under this stream of the migration program. The points awarded for age reflect the applicant’s potential contribution to the Australian economy in their lifetime. This reflects the focus of the points test on labour market contribution and the balance between the future contribution to the economy of points-tested migrants and the average welfare and health costs as they age. Australian Bureau of Statistics data and departmental research indicates that highly skilled migrants who come to Australia between the ages of 25 and 32 add the most benefit to the Australian economy in terms of lifetime earnings. 8.2 Age as at time of invitation Points are awarded under the Part 6D.1 of the regulations based on the primary applicant’s age at the time of invitation.": [Sch6D] Schedule 6D general points test for General Skilled Migration visas mentioned in subregulation 2.26AC(1), 15 September 2025: text <https://legend.online.immi.gov.au/migration/2021-2024/2025/15-09-2025/policy/Pages/_document00003/level%20100252.aspx>.
Study in Designated Regional Area - Meets also Australian Study Requirement
"16. Study in designated regional area 16.1 Study in a designated regional area The points awarded under Part 6D.10 of the regulations recognise the important contribution students living and studying in a designated regional area make to regional Australia. Applicants are eligible for 5 points if they satisfied each of the four requirements of item 6D101 at time of invitation: they met the Australian study requirement; (paragraph 6D101(a)) refer to Div1.2/reg1.15F - Australian study requirement; and the location of the campus or campuses at which that study was undertaken was at an Australian educational institution in a designated regional area or LPGMA (paragraph 6D101(b)); and while the applicant undertook the course of study,, the applicant lived in a designated regional area (this requirement relates to the whole course not just the period used to satisfy the Australian study requirement) (paragraph 6D101(c)); and none of the study undertaken constituted distance education (Paragraph 6D101(d)). Note: Australian study requirement is defined in regulation 1.03 as having the meaning given by regulation 1.15F. Designated regional area is defined in regulation 1.03 as a part of Australia specified in an Instrument under regulation 1.15M. Regulation 1.15M provides that the Minister may, by legislative instrument, specify a part of Australia to be a designated regional area. The definition of designated regional area may change over time. In this circumstance, a designated regional area is defined at the time of the points assessment. Consistent with regulation 2.27D, study undertaken in Australia will be considered towards meeting the requirements of Part 6D.10 only if, throughout the relevant period, the applicant held a substantive visa or Subclass 010 (Bridging A) or Subclass 020 (Bridging B) visa that allowed them to study, and they did not breach the conditions of that visa. When assessing whether an applicant satisfies 6D101 it is not relevant: when the study was completed (provided it was completed prior to the date of invitation to apply for the visa); or whether the study is related to the applicant’s nominated skilled occupation. The intention of this requirement is that a visa holder both studies and resides in a designated regional area for the duration of the course of study. Travel to an area outside a designated regional area for study/work or recreational purposes is permitted and includes: travel overnight for business reasons a brief holiday or to undertake training for work. For example, it would be consistent for a visa applicant to have studied and had a residence in Orange, New South Wales, but who stays with friends in Sydney on some weekends. It would not be consistent with the requirement if the same visa applicant established a residence in Sydney and stayed in the metropolitan area when they did not need to attend classes in orange. 16.2 Designated Regional Area The postcodes that constitute regional Australia and the eligible campuses that fall within those postcodes are specified in an instrument (LIN 19/217: Regional Areas Instrument 2019) for the purposes of paragraph 6D101 of Part 6D.10 of the regulations. This instrument applies to any relevant application that did not have an assessed score prior to 16 November 2019 when the current instrument came into effect. 16.3 Distance education is not included Paragraph 6D101(d) precludes points being awarded for any study undertaken while enrolled at an educational institution in a designated regional area as a distance education student. 16.4 Location of campus and where applicant lives To assess whether the applicant lived in an eligible area(s) and studied at an eligible campus(es) for the award of points, decision makers should refer to relevant instrument (LIN 19/217: Regional Areas Instrument 2019). Note that all of South Australia, Tasmania, the Northern Territory and the Australian Capital Territory are designated regional areas for the purposes of Part 6D.10 (Study in designated regional area qualifications). 16.5 Time in Australia spent outside a designated regional area Under policy, it is consistent with the intention of the requirement to study in a designated regional area that a visa holder who continues to be enrolled to study, in a designated regional area and continues to reside in a designated regional area, might travel to an area outside a designated regional area for work or recreational purposes such as: for once-off business reasons a brief holiday or to undertake training for work. For example, it would be consistent with the requirement to study in a designated regional area if a visa holder studied and had a residence in Orange, New South Wales, and stayed with friends in Sydney one weekend a month. It would not be consistent with the condition if the same visa holder established a residence in Sydney and stayed in the metropolitan area every weekend. 16.6 Evidence To confirm that the study component for this factor was completed in a designated regional area, decision makers should refer to the academic transcript or letter of course completion. To confirm the residence component, applicants should provide supporting documentation with their application such as, but not limited to, copies of rental agreements, telephone bills, or electricity/water/gas bills.": [Sch6D] Schedule 6D general points test for General Skilled Migration visas mentioned in subregulation 2.26AC(1), 15 September 2025: text <https://legend.online.immi.gov.au/migration/2021-2024/2025/15-09-2025/policy/Pages/_document00003/level%20100252.aspx>.
Perth, University of Western Australia, Juris Doctor: "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), and that study was undertaken, and the applicant lived, in a designated regional area. Distance education does not qualify as study for these purposes. 44. As noted above the applicant satisfied the Australian study requirement while a student at the main campus of the University of Western Australia which is located in postcode 6009. 45. The delegate awarded no points for this part because, at the time of the primary decision, the postcode 6009 was not specified in the relevant instrument as a designated regional area. 46. However, with effect from 8 November 2019, legislative instrument LIN 19/217 (Regional Areas) specified the Western Australian postcode group 6000 to 6038 to be designated Australian regional areas. 47. In a submission to the Tribunal the applicant confirmed the information in her application form that she lived in Perth for the duration of her studies. Further CROICOS confirms that these courses were not distance education. 48. Therefore, the applicant is entitled to 5 points under this part.": Low (Migration) [2020] AATA 4061.
Perth, Curtin University:
> "38. The Tribunal has found the applicant met the Australian study requirement. Designated regional areas for the purpose of this Part are set out in LIN 19/217, where any postcode set out in Column 3 of the table in section 6 of that instrument is said to be a designated regional area. The applicant lived in South Perth , postcode 6151, and studied at Curtin University in Perth at postcode 6102. Both of these postcodes are encompassed in the list of postcodes from 6090 to 6182 appearing in Column 3 of the table in section 6. 39. Therefore, the applicant is entitled to 5 points under this part.": Cui (Migration) [2023] AATA 1530.
> "46. The applicant undertook study at Curtin University in Western Australia, a campus in a designated regional area (Bentley, Western Australia 6102), and also lived in a designated regional area (Cockburn, Western Australia 6164) while undertaking the study. The study undertaken was not by way of distance education. 47. Therefore, the applicant is entitled to 5 points under this part.": Agharanya (Migration) [2022] AATA 5030.
Perth, Stott's College: "45. The applicant’s Australian study requirements were met at Stott’s College located in Perth 6004 and the applicant resided in postcode 6164 during her study. There is no evidence to suggest the study was undertaken by distance education. The relevant instrument LIN 20/292 specifies these postcodes to be designated regional areas. 46. Therefore, the applicant is entitled to 5 points under this part.": Burchiella (Migration) [2024] AATA 1599.
Perth, University of Notre Dame: "48. The applicant satisfied the Australian study requirement while a student at the University of Notre Dame of Australia located in Freemantle, Western Australia in the postcode 6160. 49. Documents received on 6 October 2020 record that the applicant studied in Perth and confirms the applicant’s addresses, while undertaking her nursing degree, were: 3/18 Wyong Road, Bentley, Western Australia, 6102; and 2 Park Road, Nedlands, Western Australia, 6009. 49. The delegate awarded no points for this part because, at the time of the primary decision, postcodes 6009, 6012 and 6160 were not specified in the relevant instrument as a designated regional area. 50. However, with effect from 8 November 2019, legislative instrument LIN 19/217 (Regional Areas) specified the Western Australian postcode group 6000 to 6038 and 6090 to 6182 as designated Australian regional areas. 51. As the applicant studied and lived in a designated regional area and her studies were not conducted via distance education, she is now entitled to points under part 6D.10. 52. Therefore, the applicant is entitled to 5 points under this part.": Lock (Migration) [2020] AATA 4598.
Gold Coast, Southern Cross University: "45. 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 has provided evidence of having completed study at Southern Cross University’s Gold Coast campus which has postcode 4225 and that she lived in this postcode from 3 July 2016 to 30 June 2019. The Tribunal finds that she has studied and lived in regional Australia or a low population growth area and is entitled to 5 points under this part.": Baguio (Migration) [2023] AATA 921.
Adelaide: "46. 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 designated regional area. Distance education does not qualify as study for these purposes. 47. All postcodes within South Australia are considered ‘regional and low population growth metropolitan areas’ for the purpose of this criterion and as the applicant’s study was completed in Adelaide , the Tribunal considers the applicant meets satisfies this criterion. 48. Therefore, the applicant is entitled to 5 points under this part.": Abhishek (Migration) [2020] AATA 4597.
Palmerston, NT, Charles Darwin University: "65. The applicant claims he be awarded 5 points for having studied in a designated regional area. In support of his claim the applicant provided the Department copies of award certificates, academic transcripts and completion letters, issued by Charles Darwin University, Palmerston Campus. In support of his residential address, whilst undertaking the studies, the applicant has provided bank statements. 66. The Tribunal is satisfied on the evidence before it, that the applicant met the Australian study requirement as defined in reg 1.15F, while living and studying in a designated regional area and that none of the study undertaken was distance education. 67. Accordingly, as the study in a designated regional area qualification had been met at the time of invitation, the applicant is entitled to 5 points under this Part, both at the time of the delegate’s assessment and as at the time of this decision.": Pagtalunan (Migration) [2023] AATA 3701.
Townsville, James Cook University: "53. The applicant has provided evidence that he completed his PhD at James Cook University, Townsville , postcode 4814. Having regard to the relevant instrument, Migration (LIN 19/217: Regional Areas) Instrument 2019, the Tribunal is satisfied the postcode is specified in the applicant undertook study in a designated regional area. 54. The Tribunal is also satisfied the applicant has provided a tenancy agreement and bank statements indicating that he resided at Kirwan, postcode 4817 while undertaking the study. This is also a postcode specified in the instrument. Accordingly the Tribunal is satisfied the applicant lived whilst undertaking the study in a designated regional area. 55. There is no evidence to suggest that the study undertaken was distance education. 56. Therefore, the applicant is entitled to 5 points under this part.": Malara (Migration) [2019] AATA 5914.
State or Territory Nomination or Sponsorship
"18. State or Territory Nomination Under Part 6D.12 of the regulations, 5 points may be awarded to an applicant for a SN-190 visa who is nominated by a State or Territory government agency provided the nomination is not withdrawn prior to the giving of an assessed score. 18.1 If a nomination is withdrawn Because a points assessment is a decision for the purposes of the Act and the regulations, once a points assessment has been made it cannot be revisited or revoked even if a nomination is withdrawn. However, in such cases the applicant may no longer satisfy Schedule 2 criteria relating to the nomination requirement. 19. Designated regional area nomination or sponsorship Under Part 6D.13 of the regulations, 15 points may be awarded to an applicant who has been invited to apply for a Subclass 489 (Skilled Regional (Provisional)) visa or Subclass 491 (Skilled Work Regional (Provisional)) visa, and who: is nominated by a State or Territory government agency and the nomination is not withdrawn prior to the giving of an assessed score; or is sponsored by a family member and the sponsorship has been accepted by the Minister. 19.1 If a nomination/sponsorship is withdrawn Because a points assessment is a decision for the purposes of the Act and the regulations, once a points assessment has been made it cannot be revisited or revoked even if a nomination/sponsorship is withdrawn. However, in such cases the applicant may no longer satisfy Schedule 2 criteria relating to the nomination or sponsorship requirement.": [Sch6D] Schedule 6D general points test for General Skilled Migration visas mentioned in subregulation 2.26AC(1), 15 September 2025 <https://legend.online.immi.gov.au/migration/2021-2024/2025/15-09-2025/policy/Pages/_document00003/level%20100252.aspx>.
"11 Nomination/sponsorship To assess whether the SP-489 primary applicant satisfies 489.225, evidence is required of: the nomination – a State/Territory invitation to apply for a Class SP visa is sufficient evidence of a nomination – see section 12 Nomination or the sponsorship – see section 13 Sponsorship. 12 Nomination The relevant State/Territory government agency nominates an applicant directly from SkillSelect. The invitation to apply is evidence of State/Territory nomination. Nomination is only possible against the numbers of applicants identified by occupation in the annual State Migration Plan. Nominations are counted whether or not they result in visa grants. If a State/Territory government agency is unable to nominate an applicant, the threshold for nominations for that applicant’s occupation may have been reached. It will be taken that a State/Territory agency continues to support the SP-489 applicant unless the department is notified, in writing, by the relevant State/Territory agency that the nomination has been withdrawn. If a nomination is withdrawn before a decision is made in relation to the application, the SP-489 primary applicant cannot satisfy the requirements of 489.225(2). 13 Sponsorship 13.1 Evidence of sponsorship At time of invitation, the intending migrant must declare that they are sponsored by an eligible relative. There is no requirement that the sponsor declared at time of invitation be the same person who later provides the sponsorship for the SP-489 application. However, the sponsor must still meet the requirement of being an eligible relative living in a designated area. Although, as a Schedule 1 item 1230(4)(5)(b) and (6) for their application to be valid, the applicant is required to identify their sponsorship, the s65 delegate’s acceptance of the sponsorship is a Schedule 2 criterion (489.225(3)), once details of the sponsor have been provided. A signed declaration is to be given to the department as evidence that the sponsor acknowledges their sponsorship obligation. A completed sponsorship statutory declaration is available as a pro forma on the department’s website at http://www.immi.gov.au/skills/skillselect/index/visas/subclass-489/. 13.2 Who is an eligible sponsor To be eligible to sponsor an SP-489 applicant, all requirements set out in 489.225(3) must be satisfied. The sponsor: must be at least 18 years old must be an Australian citizen, Australian permanent resident or eligible New Zealand citizen must be usually resident in a designated area of Australia must be an eligible relative - see section 13.4 Eligible relatives and each family unit member who is an SP-489 secondary applicant must be sponsored by that person. In considering whether the sponsor is usually resident in a designated area (489.225(3)(c)), officers should consider the sponsor’ actual physical residence, that is, where they eat and sleep and have their usual abode, noting, however, that a person may ‘reside’ in more than one place. Officers should look for evidence such as: the person’s physical presence in a designated area the length of that residence whether that residence has been lawful or unlawful where they eat and sleep and have a settled home the person’s intention to make or not make their usual home in a designated area. A sponsor who has been living in a designated area on a temporary visa but has only recent acquired permanent residence, they may still satisfy the requirement that they are usually resident in a designated area. 13.3 There must be a relationship to SP-489 primary applicant The sponsor must be directly related to either the primary applicant or the primary applicant’s partner (489.225(3)(d)). If the sponsor is directly related to the primary applicant’s partner, 489.225(3)(d) is met only if that partner is also an SP-489 applicant. 13.4 Eligible relatives Clauses 489.225(3)(d)(i) to (vii) set out the range of allowable relationships between the sponsor and the SP-489 (primary or secondary) applicant. In establishing whether an allowable relationship exists between the primary applicant (or primary applicant’s partner, as a secondary applicant) and the sponsor, see: the relevant PAM instructions listed in PAM3: Act - Act-defined terms - s5G - Relationships and family members and for adoptive relationships, PAM3: Div1.2/reg1.04 - Adoption. For related policy and procedure on sponsorship, see PAM3: Div1.4 - Form 40 sponsors and sponsorship. 13.5 Relationship must be ongoing at time of decision If: the relationship between the applicant and their sponsor ceases through family breakdown or death, before the SP-489 application is decided and no details of an alternative eligible sponsor are provided the sponsorship should not be accepted and the SP-489 visa should be refused. This is because the settlement support a sponsor undertakes to provide could no longer be relied upon. Similarly, if the SP-489 application is sponsored by a relative of the primary applicant’s partner and the partner relationship ceases between the time of application and the time of decision, the SP-489 primary applicant can no longer seek to rely on that sponsorship. For example, if the primary applicant and their partner separate while the SP-489 application is being processed: the partner will no longer satisfy the requirements of 489.311 and the primary applicant will no longer satisfy 489.225(3)(d). 13.6 Acceptance of a sponsorship In addition to considering whether the sponsor satisfies the requirements of 489.225(3), officers need to be satisfied that the sponsor understands and, in completing the formal declaration and providing it with their application, has undertaken to accept, their obligations under regulation 1.20(2). For policy and procedure on sponsors and sponsorships, see PAM3: Div1.4 - Form 40 sponsors and sponsorship.": [Sch2Visa489] Sch2Visa489 - Skilled - Regional (Provisional), 5 July 2021: text <https://legend.online.immi.gov.au/migration/2017-2020/2020/05-07-2021/policy/Pages/_document00003/level%20100182.aspx>.
"5.1.15 Applicant must be nominated by a State or Territory government agency Item 5 of the table in subitem 1138(4) of Schedule 1 to the Regulations requires the applicant to be nominated by a State or Territory government agency. A State or Territory government agency nominates an applicant directly from SkillSelect. The invitation to apply for the Subclass 190 visa is evidence of a State or Territory government agency’s nomination, provided the State or Territory government agency has not notified the Department that this nomination has been withdrawn. ... 6.6. Nomination 6.6.1 State or Territory government agency nomination Departmental officers can be satisfied that a State or Territory government agency continues to nominate the applicant under clause 190.215 unless the Department is notified, in writing, by the relevant State or Territory government agency that the nomination has been withdrawn. If a nomination is withdrawn after visa application but before a decision is made in relation to the application, the visa application must be refused as the applicant cannot satisfy the requirements of clause 190.215.": [Sch2Visa190] Subclass 190 (Skilled Nominated) Visa, 15 September 2025: text <https://legend.online.immi.gov.au/migration/2021-2024/2025/15-09-2025/policy/Pages/_document00003/level%20100152.aspx>.
"6.1.11 Applicant’s nomination by a State or Territory government agency has not been withdrawn A State or Territory government agency nominates an applicant directly from SkillSelect. The invitation to apply for the Subclass 491 visa is evidence of a State or Territory government agency’s nomination, provided it has not been withdrawn and on this basis the applicant meets the requirement of paragraph (a) of item 5 of the table at subitem 1241(4). ... 7.5.1 State or Territory government agency nomination Departmental officers can be satisfied that a State or Territory government agency continues to nominate the applicant under subclause 491.217(1) unless the Department is notified, in writing, by the relevant State or Territory government agency that the nomination has been withdrawn. If a nomination is withdrawn after visa application but before a decision is made in relation to the application, the visa application must be refused as the applicant cannot satisfy the requirements of subclause 491.217(1). ...": [Sch2Visa491] Skilled Work Regional (Provisional) visa – Subclass 491, 15 September 2025: text <https://legend.online.immi.gov.au/migration/2021-2024/2025/15-09-2025/policy/Pages/_document00003/level%20100183.aspx>.
Withdrawal of nomination, 188 visa Business Investor: Sato v Minister for Immigration and Citizenship [2025] FedCFamC2G 1273.
PIC 4020 - Incoming Passenger Cards - Occupation Claimed not matching Department Records
other occupation listed on incoming passenger cards - whether claimed employment genuine: "10. The issue in this review is whether the visa applicant meets PIC 4020(1) as required by cl 491.211 for the grant of the visa. Broadly speaking, this requires that there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1). ... Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular? 12. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274. 13. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly. 14. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42. ... 20. In July 2020, the Department sought to verify the applicant’s claims of employment with Ampex and Concierge. The information gathered by the Department during the verification checks raised concerns about the genuineness of the applicant’s claimed employment. On 11 November 2020, the Department wrote to the applicant and invited her to comment on the following adverse information: the applicant never claimed her occupation as Finance Manager on any of her incoming passenger cards. the websites for Ampex and Concierge contained evidence of plagiarism and some of the links did not work. Internet checks revealed limited evidence of either employer. Phone calls were made to neighbouring businesses and the tenancy agents for the claimed employment addresses, and none had heard of Ampex or Concierge. Ampex or Concierge were not listed on the applicant’s income tax disclosure report for the 2019/2020 financial year. The interview conducted with the applicant on 29 July 2020 raised the following concerns; the applicant was unable to name the street address of her current employer (Ampex) or name any of the surrounding businesses, she was unsure if her salary was or was not inclusive of tax, she could not recall the month she commenced at Concierge and claimed to be undertaking a full time professional year (5 days a week) at the same time as travelling one and a half to two hours each way to Maroochydore to work for 20 hours a week with Concierge. 21. The applicant responded to the adverse information by way of a submission from her representative together with the following supporting documents; letter from ARC confirming the applicant’s completion of the Accounting Professional Year program, including an internship with Global Green Tag, a forwarded email from “GM; Sai; Ampex Chartered Accounts”, a forwarded email from Alpeshkumar Patel, Director of Concierge, and a forwarded email from the applicant addressing the concerns raised by the delegate. By reference to information contained in the enclosed documents, the representative provided detailed submissions to each of the above particulars as follows: Incoming passenger cards: the applicant was working as a casual Assistant Nurse and decided to indicate that occupation on the incoming passenger card instead of Finance Manager. As the applicant was in flight and thought if someone needed medical assistance that she might be able help them. ... 36. Information on the Department’s file indicated that the applicant travelled to Australia on several occasions and did not declare on her incoming passenger cards that her occupation was Accountant or Finance Manager. Relevantly, on 5 January 2019 the applicant declared that she was an assistant nurse, and on 8 January 2020 she declared her occupation as customer service. In responding to this information, the applicant said in January 2019 she was also working casually as an AIN so decided to declare that occupation. On the second occasion (in January 2020) she did not take it seriously and just put customer service, it was her mistake. ... 53. The Tribunal also considers that if the applicant was working as a full time Finance Manager with Ampex since September 2019, then she would have declared this as her occupation (and not ‘customer service’) on her incoming passenger card when she returned to Australia on 8 January 2020. The Tribunal has considered the applicant’s explanation that she did not take it seriously, and just put ‘customer service’, but is not satisfied that this adequately explains why she would not indicate the occupation in which she claims to have worked full time in the preceding four months. The Tribunal has formed the view that the reason the applicant did not indicate her occupation as Finance Manager in January 2020 was because she had not been employed in that occupation and was likely working in a customer service role for one of the employers that she declared on her 2019/2020 tax return. The fact that the applicant had not declared her occupation as Finance Manager on the incoming passenger card strongly suggests that the applicant had not been employed in that occupation with Ampex as she has claimed. 54. On 5 January 2019 the applicant declared her occupation as Assistant Nurse (and not Accountant) in the incoming passenger card. The applicant explained that it was because she was also working as an AIN at the time. The Tribunal accepts that the applicant was working as an AIN in January 2019, this appears to be supported by information contained in her 2018/2019 tax return and her oral evidence that she commenced working as an AIN in about May 2018. However, this does not assist the applicant in establishing that she was also working as an Accountant for Concierge at the time. The Tribunal has also had regard to the representative’s submission that the applicant indicated her occupation as an AIN instead of a Finance Manager because she was in flight and thought someone may need assistance. The Tribunal notes, however, that the applicant indicated her occupation as AIN when she entered Australia in January 2019, which was some eight months prior to her claimed employment as a Finance Manager. The Tribunal considers the representative’s submission regarding this concern to be of limited assistance. ...": KAUR (Migration) [2024] AATA 501.
Prior employment not reported - claimed employment did not match department records on history of employment: "7. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.189.211 for the grant of the visa. Relevant to this case, this requires that there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020 (1). ... 9. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020 (5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020 (5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274. 10. The requirement in PIC 4020 (1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020 (3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly. 11. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42. ... 12. The applicant nominated the occupation of Biomedical Engineer (233913) in his Skilled – Independent (Subclass 189) visa application. The applicant indicated in the application form that he had been employed for a period of at least three years in the last 10 years in the nominated or closely related occupation . In providing details, he claimed to have been employed at Insomet in Ecuador from 12 January 2010 to 1 February 2013 in the position of Supervisor. On the basis of this employment, the applicant claimed points towards the required pass mark. 13. In support of his claimed overseas employment, the applicant provided an employment reference, dated 17 May 2017, signed by Jaime Enrique Sanchez Cardenas, General Manager, Insomet Cia Ltda. 14. On 26 February 2018, the Department wrote to the applicant and invited him to comment on information which raised concerns about whether the applicant meets the requirements in PIC 4020 . The delegate set out the relevant information as follows: Departmental records show that on 04 August 2015, the applicant applied for a temporary post-study work stream (Subclass 485) visa. In this application, the applicant submitted a Form 80 and a Form 1221. On the Form 80— Personal particulars for assessment including character assessment, at Part F — Employment — question 20, the applicant declared the following employment: August 2006 to December 2011 — unemployed as Bachelor student. July 2010 to May 2013 — employed at Tecnico Salesiano High School as a Teacher/ Researcher. July 2013 to July 2015 — unemployed as Masters student. August 2015 to present — employed at Life Healthcare Distributor Pty Ltd as Associate Territory Manager. On the Form 1221 — Additional personal particulars information, at Part E — Employment status in the last 10 years — question 25, the applicant stated his employment as: August 2006 to December 2011 — unemployed as Bachelor student. July 2010 to May 2013 — employed at Tecnico Salesiano High School as a Teacher/ Researcher / Education (teaching math, electronics and physics). July 2013 to July 2015 — unemployed as a Masters student. August 2015 to present — employed at Life Healthcare Distribution Pty Ltd as an Associate Territory Manager/Clinical support and applications. 15. The delegate also noted that on his first arrival into Australia, on 21 June 2013, the applicant indicated on his incoming passenger card that his usual occupation is ‘Teacher’. ... 18. The delegate was concerned that the applicant may not have been able to demonstrate that he meets the criteria in Schedule 6D (points test) and that he may have provided information that is false or misleading in a material particular, relevant to satisfying the requirements in cl.189.224, which requires the applicant to have the qualifying score. ... 23. In seeking to explain the response on the incoming passenger card that his usual occupation was ‘Teacher’, it was submitted that the applicant wrongly interpreted the term ‘usual’ employment as his ‘last’ employment and that he had made an honest and reasonable mistake as his last role was as a teacher on a permanent basis. It was submitted that the error was due to language difficulties and translation, and that his usual occupation was that of an ‘electrical engineer’ given his employment with Insomet on a casual basis. ... 87. The Tribunal has formed the view that the applicant has contrived evidence in support of his claimed employment in a closely related occupation at Insomet, together with the assistance of his father, who used his senior position at Insomet to provide reference letters on the company’s letterhead, and with the assistance of two of the company’s employees. 88. The Tribunal has had regard to the extracts from the handwritten log books detailing the vehicles that entered and left the Insomet factory on the given days and the registration documents for the vehicle the applicant claimed to have been using at the time he used to work at Insomet. The Tribunal gives limited weight to these documents, firstly, because they do not overcome the concerns raised above about the applicant not previously declaring that employment and the inconsistencies in the evidence regarding that employment, and secondly, because the dates on those documents are limited to a few days in January 2010, a day in June 2011 and a day in January 2013, there were a number of undated records. Furthermore, given the concerns the Tribunal has with the credibility and reliability of the evidence received from the applicant’s father and the employees at Insomet, the Tribunal has little confidence in the reliability of these records. 89. Having carefully considered the evidence before it, the Tribunal is not satisfied that the applicant was employed in a closely related occupation to his nominated occupation for a period of three years as he has claimed in his visa application. It follows, and the Tribunal finds, that the information provided in the Subclass 189 visa application form and associated documents regarding the employment at Insomet is false and misleading in a material particular. 90. The Tribunal considers that the information provided to the Department and to the Tribunal regarding the applicant’s employment at Insomet was false and misleading at the time it was given because the Tribunal does not accept that the applicant genuinely worked at Insomet as claimed. 91. The Tribunal further considers that the applicant intentionally and purposely included the claimed employment at Insomet in his visa application as he sought to rely on that employment to claim points for overseas employment towards the qualifying score. Whether the applicant did or did not require the additional points for overseas work experience to meet the points test at the time of the application and whether the employment could or could not count as it predated the skills assessment qualification date is, in the Tribunal’s view, irrelevant because PIC 4020 (5)(b) applies whether or not the decision is made on the basis of that information. The Tribunal is satisfied on the evidence before it that the applicant intentionally provided the false information about having been employed in a closely related occupation at Insomet to enhance his visa application. The false or misleading information was relied upon by the applicant to claim points as provided for in Schedule 6D and is therefore relevant to the requirement in cl.189.224. 92. Given the above considerations, the Tribunal finds that the information given about the applicant’s claimed employment at Insomet in relation to his application is false or misleading in a material particular because it was false or misleading at the time it was provided and is relevant to one of the criteria the Minister may consider when making a decision on the Subclass 189 visa application, whether or not a decision is made because of that information. ... 102. The Tribunal accepts that the applicant has resided in Australia for five years, during which he studied and worked. However, the Tribunal considers that these circumstances affect the interests of the applicant and not the interests of Australia or an Australian citizen, permanent resident or eligible New Zealander. 103. In relation to the applicant’s claim that he made an honest mistake in his applications due to his lack of English proficiency, the Tribunal has not accepted, for the reasons discussed in some detail above, that the applicant made an honest mistake in his previous applications. 104. The Tribunal is not satisfied that there are compelling circumstances that affect the interests of Australia or that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa. Therefore the requirements of PIC 4020 (1) should not be waived. 105. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.189.211.
Character Tests and Security Assessments
Regulation 2.03AA – Criteria applicable to character tests and security assessments, 15 September 2025: text <https://legend.online.immi.gov.au/migration/2021-2024/2025/15-09-2025/policy/Pages/_document00001/_level%20100004/level%20300260.aspx>.
Section 501: The character test, visa refusal and visa cancellation, 15 September 2025: text <https://legend.online.immi.gov.au/migration/2021-2024/2025/15-09-2025/policy/Pages/_document00001/_level%20100004/level%20100235.aspx>.
[B.2] Employment in the Skilled Occupation - Points Test - Sch 6 Migration Regulations 1994 (Cth) - Solicitor (ANZSCO 271311):
The Crux of the Matter: Defining and Evidencing "Skilled Employment"
An onshore Solicitor or overseas-qualified Solicitor seeking to migrate to Australia under the GSM visas schemes face a complex challenge that extends beyond a mere visa application. The process requires navigating two parallel, yet fundamentally distinct, regulatory frameworks: the system governing professional admission to the legal profession, and the criteria governing skilled migration. The former is designed to protect the public by ensuring professional competence and ethical standards, while the latter is an economic instrument designed to meet Australian labour market needs. The core of the applicant's challenge lies at the intersection of these two systems, where the definition of "skill" and the valuation of professional experience can diverge significantly.
The central challenge for a solicitor applicant is to prove that a given period of employment meets the legislative requirement of being "skilled." This involves more than simply demonstrating they were employed in a law firm; it requires proving that their duties and responsibilities were commensurate with the professional standing of an admitted solicitor as defined by the ANZSCO framework. While not settled, the MRTA (a predecessor to the AATA and ARTA) has in one decision been open to making a finding that a person had been employed, in substance, in work consistent with that of the Solicitor occupation for immigration purposes -- see [B.A] below.
The Post-Qualification Paradigm and the "Deeming Date"
A foundational principle in Australian skilled migration is that employment can only be considered "skilled" for points purposes after an applicant has met the minimum qualifications required for that occupation. The standard approach in Australian skilled migration is that employment can only be counted for points from the date an applicant is "deemed skilled". For most professions, this date is determined by a formal skills assessing authority.
For a solicitor, this is inextricably linked to their admission to practice. The date of admission functions as an effective "deeming date"—the point from which the Department presumes the applicant is qualified to work at a skilled level. For solicitors, the Department of Home Affairs accepts "admission to practice law in the relevant state or territory" as a suitable skills assessment. Consequently, the date of an applicant's first admission to practice may effectively become their "deeming date." (but no case law confirms this view). The default departmental position may be that any work performed before this date was not at the required skill level, as the individual was not yet legally qualified to practice as a solicitor (but no PAM3 exists to confirm). This view may be reinforced by professional bodies in other contexts; for instance, for Specialist Accreditation in NSW, the "practice of law" explicitly excludes pre-admission experience. -- "“Practice of law” does not include pre-admission experience.": <https://www.lawsociety.com.au/sites/default/files/2024-12/2025%20Specialist%20Accreditation%20-%20Guide%20to%20Application%20%26%20Assessment%20-%20FINAL.pdf>. It may be the case that only employment experience gained after this date can be counted towards points for skilled employment. Experience prior to admission, such as work as a paralegal or trainee, is not automatically considered to be at the required skill level. While the official date you are deemed skilled may be your date of admission to legal practice, it is possible to claim skilled employment points for work performed before this date. However, the burden of proof is on you to provide comprehensive evidence that your duties and responsibilities in that pre-admission role were at the skill level expected of a qualified solicitor. -- see eg, [B.C], [B.B] below.
This paradigm (if so) creates a significant hurdle for claiming points for experience gained in roles such as a paralegal, articled clerk, or trainee solicitor, even if the work was complex and demanding. The Department's default position is that such roles are preparatory and supervised, and by definition, do not require the full suite of skills or the level of professional autonomy and responsibility of an admitted solicitor. The Law Council of Australia has been critical of this "deeming" practice by assessing authorities more broadly, arguing that it can produce anomalous results by ignoring valuable experience that predates the formal recognition of an applicant's skills. While solicitors do not use a typical SAA, the principle is directly analogous to the Department's treatment of the admission date. -- see [B.J] below.
New Zealand Experience (noting its different statutory criteria but reliance on and interpretation of the ANZSCO)
The search for tribunal or court decisions that directly address the specific question of whether pre-admission work experience for solicitors—or indeed for any other regulated profession—can be counted as "skilled work experience" in the context of a Skilled Migrant Category application does not yield much relevant case law. There is no indication of a case that turns on the interpretation of "skilled experience" for a professional awaiting local registration, but SEE [B.L] below.
Based on a strict, literal interpretation of INZ's governing instructions, the combination of the "substantially matched" ANZSCO requirement and the non-negotiable rule on occupational registration in NZ creates a formidable barrier. For INZ's purposes, the occupational title "Solicitor" is inextricably linked to the legal authority to practise law in New Zealand. Without that authority, which is conferred only through High Court admission and the issuance of a practising certificate, any prior experience, regardless of its quality, duration, or relevance in another jurisdiction, is arguably not experience as a solicitor in the context of a New Zealand job offer. The applicant may have been a highly skilled and experienced solicitor in their home country, but for the purposes of their New Zealand visa application, their status is that of an "unregistered legal professional." This interpretation effectively resets their professional clock to zero from an immigration perspective, until the moment they are fully licensed to practise in New Zealand.
In the absence of direct precedent for solicitors, a legal argument could be constructed by reasoning from analogy, examining how the NZIPT has treated the concept of "skilled work experience" in other regulated professions like medicine, engineering, or teaching. The core of such an analysis would be to determine whether the Tribunal consistently defers to the requirement of local registration as the definitive and non-negotiable marker of "skill," or whether it has shown a willingness to adopt a more substantive approach that looks at the underlying skills and competencies of the applicant, irrespective of their local licensing status.
Analogy with Medical Practitioners in the Sch 6D PAM3
The formal visa criteria published by the Department of Home Affairs—such as the points test, age limits, and basic English requirements—represent only the visible tip of the iceberg. The true, determinative requirements are the detailed, rigorous, and non-negotiable academic and professional standards set by Australia's legal admitting authorities. These can be understood as the "shadow criteria" of the migration process.
A prospective applicant might review the Home Affairs website and see a straightforward requirement for a "suitable skills assessment". They then discover this means "admission to practice" , which may still sound like a single, discrete step. However, to achieve that single step, they must successfully navigate an entirely separate and complex regulatory ecosystem governed by state-based bodies and the LACC Uniform Principles. This separate system imposes its own demanding requirements regarding specific academic subjects, competency-based practical training, and an exceptionally high standard of English proficiency. These are not explicitly listed in the Migration Regulations, yet they are absolute prerequisites to meeting the regulations.
Consequently, the success or failure of a skilled visa application for a solicitor is effectively predetermined by the outcome of a process that occurs entirely outside the migration framework. These "shadow criteria" of the legal profession are far more challenging and ultimately more determinative than the points test or other standard migration requirements. For legal practitioners advising clients in this area, a failure to look beyond the Migration Act and Regulations to provide deep, expert guidance on this parallel journey through the legal admissions process constitutes a critical professional oversight.
In this regard, there may be an argument that Solicitors should be viewed as equally favourably as Medical Practitioners with regards to pre-admission or pre-registration (Intern) work experience for the purposes of Sch 6D criteria and points test.
Interpreting Departmental Policy (PAM3): The Hierarchy of Evidence
Guidance on how departmental decision-makers should navigate this complex assessment is found in internal policy documents, specifically the Procedural Advice Manual (PAM3). These documents, available through Freedom of Information requests, reveal a multi-faceted assessment process that goes beyond a simple reliance on the date of admission. According to this policy, in assessing periods of skilled employment, a decision-maker should take into account: - The opinion of the relevant skills assessing authority, which for a solicitor is the evidence and date of their admission to practice; - The Australian and New Zealand Standard Classification of Occupations (ANZSCO) definition for Solicitor (271311), including its descriptions of tasks, duties, and prerequisite qualifications; - Any other relevant information provided by the applicant, such as detailed employment records, position descriptions, and references.
Most significantly, the policy contains a crucial directive to decision-makers: "If the skills assessing authority's opinion would result in the applicant being awarded fewer points than they claimed... 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". The inclusion of this "more beneficial outcome" directive is a formal acknowledgement by the Department that a rigid adherence to a "deeming date" may not reflect the reality of an applicant's career progression and could be legally vulnerable to challenge. It is a procedural safeguard designed to prevent appealable errors by instructing case officers to conduct a more holistic assessment. This policy creates a direct causal link between the quality of an applicant's evidence and their chance of success. It provides the legal "door" for an applicant to argue that their pre-admission experience was indeed at a skilled level, but it is the applicant's evidence that serves as the "key" to opening it.
While the admission date is the standard benchmark, it is not an absolute rule. Departmental policy directs decision-makers to consider other factors, including the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and detailed evidence of employment. The policy explicitly states that if relying solely on the admission date (if "deemed date") would result in an applicant receiving fewer points than they claimed, the decision-maker should consider all the information and "apply the more beneficial outcome in determining when the applicant was working at a skilled level"
Evidentiary Burdens on the Solicitor Applicant
The onus of proof rests squarely on the applicant to substantiate their claims. To successfully claim points, particularly for pre-admission experience, the evidence must be comprehensive and persuasive. It must go beyond simply proving employment and focus on demonstrating the skill level of the duties performed. The evidence must be meticulously mapped to the tasks defined for a Solicitor in ANZSCO, which include providing legal advice, preparing legal documents, representing clients, and analyzing the probable outcomes of cases. The following table outlines the key evidentiary requirements.
Duration of Employment
Signed employment contracts with clear start/end dates; Official letters of offer and termination; Detailed employment reference letters confirming dates of service.
Remuneration (min. 20 hrs/wk)
Official, sequential payslips showing gross pay and hours worked; Official government tax records (e.g., ATO income statements); Bank statements showing regular salary deposits; Employment contracts specifying salary and hours.
Skill Level (Congruent with ANZSCO 271311)
A detailed employment reference letter on official letterhead, signed by a direct supervisor, specifying duties and responsibilities that are explicitly mapped to the ANZSCO tasks for a Solicitor; Official position descriptions; Redacted work samples (e.g., legal advice, submissions, contracts) with client-confidential information removed; Evidence of managing client files or having carriage of matters.
This transforms the application process from a box-ticking exercise into the preparation of a persuasive legal submission, where the quality and specificity of the evidence are determinative.
The single most important document is often the employment reference letter. A generic, one-paragraph letter is insufficient. The reference should be a detailed, multi-page document, ideally written with the ANZSCO task list for a Solicitor at hand. It must explicitly demonstrate how the applicant's day-to-day duties fulfilled the requirements of the occupation at a skilled level. It should detail the complexity of the work, the level of autonomy, and the nature of the responsibilities held. For pre-admission work, the letter must be particularly persuasive in arguing that the applicant was operating at a level far exceeding that of a typical trainee or paralegal.
If the Department issues a Request for Further Information (RFI) questioning a period of claimed employment, the response should not be a simple provision of more documents. It should be treated as a formal legal submission. The response should directly address the case officer's concerns, provide further targeted evidence, and, where appropriate, make submissions that refer to the Department's own policies, such as the "more beneficial outcome" directive in PAM3. Should the application be refused on the basis of insufficient employment points, an applicant has the right to seek merits review at the AAT. The grounds for review would focus on arguing that the decision-maker erred in their assessment of the evidence. This could include arguments that the decision-maker placed undue weight on the date of admission, failed to properly consider the evidence of the applicant's actual duties against the ANZSCO standard, or failed to correctly apply departmental policy. A successful application for points as a solicitor is therefore a continuous strategic exercise, from the initial EOI to the final decision, grounded in a thorough understanding of the law, policy, and the higher burden of proof required.
Over-claiming points in an EOI can have severe consequences. If an applicant is invited to apply based on a points score that they subsequently cannot substantiate, the visa application will be refused. More seriously, this can lead to a finding under Public Interest Criterion (PIC) 4020, which relates to providing false or misleading information or bogus documents. A PIC 4020 finding can result in a three-year ban on applying for most Australian visas, making it a critical risk to manage.
Analysis of Adjudicative Principles and Precedents
As will be addressed below, while the provided materials do not contain specific judicial or administrative tribunal decisions, the content of the Department's internal policies provides a clear window into the established legal principles that govern these assessments. Departmental policies like PAM3 are not created in a vacuum; they are living documents, shaped and refined over time by the outcomes of merits review and judicial challenges. They are designed to ensure decision-making is consistent, lawful, and capable of withstanding external scrutiny. Therefore, an analysis of the policy is effectively an analysis of the settled principles derived from the case law that shaped it.
The Status of Pre-Admission Experience
The most common point of legal contention for solicitor applicants is the classification of work experience gained prior to their formal admission to practice.
The likely argument for refusal from the Department would be grounded in the definition of the occupation. It would contend that roles such as paralegal or trainee are, by their nature, supervised and preparatory. They do not involve the level of professional autonomy, ultimate responsibility for advice, or the full spectrum of duties of an admitted solicitor as defined by ANZSCO. The absence of admission is presented as prima facie evidence that the required skill level was not met. -- However, note that Solicitors on restricted practice are also supervised - permitted only to engage in supervised legal practice.
Conversely, the applicant's argument for acceptance would rely heavily on the "more beneficial outcome" policy (PAM3, Sch 6D, para 10.4 <https://www.homeaffairs.gov.au/foi/files/2020/fa-200601127-document-released.pdf>). The legal principle advanced would be one of substance over form. The applicant would need to argue that, in their specific circumstances, their duties and responsibilities in a pre-admission role were functionally indistinguishable from those of a junior solicitor. This argument is intensely fact-dependent and requires overwhelming evidence. For example, a senior paralegal in a specialized area who was drafting complex advice for partner review, managing client relationships directly, and having day-to-day carriage of files with minimal supervision could mount a compelling case that their work was, in substance, at the skilled level of a solicitor.
In the case of Law Graduates -- see [B.C], [B.D] and [B.L] (NZ) below.
In the case of Trainee Attorney, Bar Trainee -- see [B.B] below.
Deeming Date
In relation to the Deeming Date, ie, date deemed skilled, see Employment in the Skill Level / in the Skilled Occupation - Post Degree in [B] Employment in the Skilled Occupation - Points Test - Sch 6 Migration Regulations 1994 (Cth) above. -- especially in relation to interpretation of the ANZSCO skill level and in relation to registered occupations such as Registered Nurses. See particularly, NZ law graduate, Residence Appeal No: 15648 [2007] NZRRB 400 <https://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZRRB/2007/400.html>.
"Closely Related" Occupations in the Legal Field -- but note Chalise FCCA above.
The provision allowing points for "closely related" occupations also gives rise to adjudicative questions. The legal test applied by a decision-maker would involve a direct comparison of the lead statements, task descriptions, and skill level specifications in ANZSCO for the nominated occupation (Solicitor) and the claimed "closely related" occupation.
For instance, an applicant who worked as a Barrister (ANZSCO 271211) would likely succeed, as the core legal skills and knowledge base show significant overlap. However, a claim for a more distinct role, such as a policy advisor in a government department, would require a much more detailed submission demonstrating how the specific duties of that role align with the core competencies of a solicitor, such as statutory interpretation, legal analysis, and drafting of complex documents. The success of such a claim depends on the ability to draw a clear and evidence-based line between the two occupational descriptions in ANZSCO.
The "Deeming Date" Anomaly and Merits Review
The tension between a rigid "deeming date" and a more holistic assessment of skill is a central theme in administrative law. If the Department were to refuse points for a period of employment solely because it occurred before the date of admission, while ignoring compelling evidence that the work was performed at the required skill level, its decision would be vulnerable on appeal.
Such a decision could constitute a jurisdictional error on the grounds of failure to take into account a relevant consideration—namely, the substantive evidence of the applicant's actual duties and experience. This provides a clear pathway for an applicant to seek merits review at the Administrative Appeals Tribunal (AAT). The AAT is empowered to stand in the shoes of the original decision-maker, re-examine all the facts, and arrive at the correct and preferable decision. The very existence of the "more beneficial outcome" policy within PAM3 is the Department's internal mechanism to mitigate the risk of its decisions being overturned on precisely these grounds. It reflects an administrative law landscape where advocacy and legal challenges have successfully established that a purely formulaic approach is insufficient.
The entire adjudicative process operates on the "balance of probabilities," and the onus of proof remains entirely on the applicant. The Department is not required to make beneficial assumptions; it must be persuaded by the evidence provided. The "more beneficial outcome" policy does not shift this onus, but it does create a mandatory obligation for the decision-maker to genuinely engage with and consider a well-evidenced argument, rather than dismissing it on procedural grounds alone.
PAM3 - 2003
"49. PAM 3 states that the minimum Australian eligibility requirements for Solicitors are: A bachelor degree in Law from a higher education institution and either a prescribed professional practical training course or service as an articled clerk in a law office. In most jurisdictions, but not in all, there is a one year period after admission to practise during which the lawyer must practise in the employment of another lawyer before he/she is entitled to practise on his/her own. 50. According to PAM 3, applicants whose qualifications meet the admission requirements of the State and Territory admissions authorities hold acceptable qualifications for migration purposes. Applicants whose qualifications are subject to the prescribed Examinations in certain subjects such as Australian Constitutional Law, taxation and Revenue Law or Legal Ethics, which can be completed in one year (full-time study) or two years (part-time study) can be considered to meet the minimum standards for migration purposes, however, they would need to undertake further study as required, and may need to meet any additional requirements stipulated by the State and Territory admission boards.": Nallanathan, Shanmugarajah [2003] MRTA 7037 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2003/7037.html>.
"3. The Migration Act 1958 (the Act) and the various regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA or the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy. ... 14. In practice, the Tribunal generally follows government policy in relying on evidence of the tasks or duties undertaken by a person and equating these with occupation definitions in the Australian Standard Classification of Occupations 1997, second edition, Australian Bureau of Statistics, Canberra (ASCO). However, the Tribunal is not bound by the classifications contained in ASCO. 15. Other than for some occupations which are explicitly recognised by Gazette notices under the regulations (`priority occupations ', `professional-equivalent occupations ' and `technical-equivalent occupations '), the entry requirements or skill level for the occupation or occupations in Australia have to be determined by the Tribunal. The Tribunal generally follows government policy in using the Procedures Advice Manual 3 (PAM 3) and ASCO as guides to the entry requirements or skill level for occupations in Australia. 16. Depending on the entry requirements or skill level, the qualifications and experience of the person have to be assessed by the `relevant Australian authority' to determine if the qualifications and experience of the person meet the Australian standards for the occupation , either 3 years prior to the lodgement of the visa application or at the date of assessment, or whether the qualifications and experience can be updated to Australian standards by way of training lasting not more than 6 months. Regulation 2.26 of the Migration Regulations defines `relevant Australian authority' as follows: "relevant Australian authority" means: (a) NOOSR, or any body authorised in writing by NOOSR to assess educational qualifications or work experience; or (b) the Department of Employment, Workplace Relations and Small Business; or (c) if the circumstances of a case preclude an authority referred to in paragraph (a) or (b) from making an assessment, the Minister; 17. NOOSR is the National Office of Overseas Skills Recognition, a part of the Department of Education, Training and Youth Affairs. 18. The Tribunal then awards points in accordance with regulation 2.26 and Part 1 of Schedule 6 to the Regulations based on the assessment of the visa applicant's skills and/or qualifications. The Tribunal may need to determine whether the qualifications and experience meet any Australian occupational licensing or registration requirements. 19. Points are then awarded for the remainder of the qualifications contained in Schedule 6 to the Regulations and in accordance with regulation 2.26.": Wong, Mei Mei [2002] MRTA 2897 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2002/2897.html>; Wong, Loke Cheong [2004] MRTA 963 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2004/963.html>.
"It is common ground that save for occupations which specifically prescribe the recognition of experience as a relevant consideration NOOSR does not generally take into account experience per se when assessing whether an applicant's qualification and/or experience meets Australian standards for the occupation concerned. In such instances, given that the legislative requirements found in the relevant provisions of Part 1 of Schedule 6 to the Regulations prescribe that an applicant's work experience is a relevant consideration, the Tribunal steps into the shoes of the Minister and, under paragraph (c) of the definition of 'relevant Australian authority' as set out above, undertakes the assessment.": Applicant: Yu Jie An Principal: Shu Qing Shao IRT Reference: N96/01323 #number 11066 [1998] IRTA 11066 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/IRTA/1998/11066.html>.
Drake
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake (No 2)), Brennan J, in a decision of the Administrative Appeals Tribunal when his Honour was President of that tribunal, set out at 645 what he regarded as appropriate practice on the part of a tribunal in relation to the review of a ministerial discretion subject to a Ministerial policy: "When the tribunal is reviewing the exercise of a discretionary power reposed in a minister, and the minister has adopted a general policy to guide him in the exercise of the power, the tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny. The general practice of the tribunal will not preclude the tribunal from making appropriate observations on ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the minister the political responsibility for broad policy, to permit the tribunal to function as an adjudicative tribunal rather than as a political policy–maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power. The general practice will require the tribunal to determine whether the policy is lawful, not in order to supervise the exercise by the minister of his discretion, but in order to determine whether the policy is appropriate for application by the tribunal in making its own decision on review."
El Ess v Minister for Immigration (2004) 142 FCR 43; [2004] FCA 1038, Gray J stated at [45]: "In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations … PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision–maker, they cannot be relevant considerations, in the sense of considerations that the decision–maker is bound by legislation to take into account … A failure to apply the guidelines may have significance in establishing some error on the part of a decision–maker, but it is not of itself a jurisdictional error."
Criticisms
Tribunal inconsistency, lack of guidance in Departmental Manuals, year 2000: " ... The IRT (and now the MRT) have jurisdiction to review decisions in relation to the allocation of points under the General Points Test for migration.63 An assessment under the points test requires the decisionmaker to allocate points to the visa applicant64 in accordance with criteria set out in the Migration Regulations under the headings of employnlent qualification, age, language skill, relationship to the applicant's sponsor, citizenship of the applicant's sponsor and the settlement status of the sponsor. By far the most contentious aspect of this assessment is the allocation of points for employment qualification. In determining the allocation of points for employment qualification the decisionmaker is required first to determine the applicant's "usual occupation"65 and then to determine the "minimum entry requirements" for that occupation in Australia. Having done this, the applicant's personal qualifications and experience must then be assessed to determine whether they meet the Australian standards for that occupation. This final assessment must, in most instances, be made by a third party, namely the "relevant Australian authority"66 who has expertise in the assessment of that particular occupation. Where that authority is unable to make a determination, the decisionmaker has a discretion to stand in the shoes of the Minister and substitute his or her own assessment and allocate points for employment accordingly. The Department of Immigration and Multicultural Affairs has issued guidelines for the assessment of certain occupations which are contained in the Department's policy manual. 67 This is an area of decision-making which lends itself to the development of expertise by the exercise of administrative review. It is highly specialised and suited to an investigative style of decision-making where the nuances of culturally specific occupations and reliance upon skills developed outside of formal education can be thoroughly canvassed. A reading of IRT decisions in relation to review of the assessment of points under the General Points Test reveals that the IRT has been consistently inconsistent in its treatment of various aspects of this test. For example the IRT in its decisions has ... proceeded in some cases to make its own, differing, occupational assessments in the face of expert evidence to the contrary;7! and adopted different approaches to the steps to be followed in assessing whether an applicant meets the regulatory test. ... The Department has in large part ignored, or been highly critical of, decisions of the Tribunal in relation to employment assessment under the General Points test. Despite cases where the Tribunal has presented an alternative assessment, the Department's policy manuals do not reflect these decisions ...": Gabriel Fleming, 'Administrative Review and the "Normative" Goal - Is Anybody Out There?' (2000) 28 Federal Law Review 62, 74-77 <https://classic.austlii.edu.au/au/journals/FedLawRw/2000/3.pdf>.
disjunct between skills assessment criteria, points for work experience, and occupational licensing - see part 16: Australian Government, Review of the Migration System (Final Report, 2023) <https://www.homeaffairs.gov.au/reports-and-pubs/files/review-migration-system-final-report.pdf>, archived at <https://web.archive.org/web/20250722023322/https://www.homeaffairs.gov.au/reports-and-pubs/files/review-migration-system-final-report.pdf>.
[B.A] Non-admitted Corporate Legal Officer - finding that Applicant practiced law in India - Assessed to be undertaking duties of a Solicitor - finding that usual occupation was that of a Solicitor - finding that Applicant's usual occupation was Solicitor, limited only for purposes of the Migration Act 1958, not confer right to practice in Australia
"3. The Migration Act 1958 (the Act) and the various Regulations made under it, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual (PAM) 3 and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy. ... 22. Under regulation 105.222 the visa applicant must achieve the qualifying score in the general points test under Schedule 6. The Tribunal is required to award points for each of the following qualifications: Employment, Age, Language Skill, Relationship, Citizenship, Settlement of Sponsor and Location of Sponsor. In order to award points for the Employment Qualification, the Tribunal must first determine the visa applicant's usual occupation, then establish whether he has the qualifications and/or experience equivalent to the Australian standards for that occupation. 23. Usual Occupation: The term usual occupation is defined in regulation 2.26(5) as an occupation that the applicant has engaged in for gain or reward for a continuous period of at least 6 months during the period of 2 years immediately preceding the relevant application for a visa. In this case, the relevant two-year period extends from 18 June 1994 17 June 1996 (D1 f.1-10 and 91). 24. The Tribunal has considered the evidence provided by the visa applicant, his clients, the review applicant and the former migration agent regarding the visa applicant's employment (D1 f.7, 42-56, 71, 74-78 and T1, f.67-73). The Tribunal also takes into account information contained in the Australian Standard Classification of Occupations Dictionary 2nd Edition (ASCO) (T1 f.24) which states that a Solicitor (ASCO code 2521-13): Provides legal advice, prepares and drafts legal documents and conducts negotiations on behalf of his clients on matters associated with the law. The individual tasks in that occupation are stated to be: * interviews clients to determine the nature of problems and recommends or undertakes appropriate legal action * prepares cases for court by conducting investigations, undertaking research, arranging witness preparation and attendance, and giving notice of court actions * represents clients in court * manages conveyancing and other property matters by preparing contracts of sale, mortgage documents, lease documents and other documents relating to the purchase of land or buildings * prepares and critically reviews contracts between parties * prepares wills * provides advice on family law, company law, partnerships, commercial law and trusts * may act as trustee or guardian * may act as executor of client's wills. 25. The Tribunal notes that the visa applicant's work duties consist of providing legal advice to clients and drafting various types of legal documents (D1 f.56 and T1 f.67-72). The visa applicant has stated that he handles various types of cases at the District and Sessional Court level (D1 f.7) and Hotel Rashik has confirmed that he prepares cases for court and provides legal advice in court cases (D1 f.67). On that basis and on the basis that he has never been in the employ of his corporate clients, the Tribunal is satisfied that he practices law in India, but should not be assessed as Corporate Legal Officer (as submitted by the visa applicant and his former migration agent). The Tribunal considers that the visa applicant's primary role and his individual tasks in his legal consultancy business match those of Solicitor. The Tribunal is also satisfied that his previous work history and his legal qualifications are consistent with that occupational classification (D1 f.23-31). Accordingly, the Tribunal finds that the visa applicant's usual occupation is Solicitor (ASCO code 2521-13). In making this finding the Tribunal notes that a person who practises Australian law in Victoria must hold a Practising Certificate under the Legal Practice Act (1996) Vic. (see section 314) and may hold the title "solicitor", "barrister" or "lawyer". A foreign practitioner who is registered by a foreign registration authority to engage in legal practice outside Australia may apply or registration as a foreign legal practitioner for the purpose of engaging in the practice of foreign law (see sections 63J, 63O and 63U). 26. Given that the visa applicant cannot practice law in Victoria either as a solicitor or as a foreign legal practitioner without meeting the requirements of the Legal Practice Board, the Tribunal also considered whether he could be considered as being a Law Clerk (ASCO code 5991-13). Whilst the duties stated for this occupation cover many of the tasks performed by the visa applicant, the Skill Level (AQF Certificate III) would only entitle him to 25 points, leaving him no better off than before. The Tribunal also considered him in the context of various corporate advisory occupations in ASCO Sub-Major Group 32 (none of which were applicable) and in Unit Group 2294 which included the occupation of Management Consultant (ASCO code: 2294-11). Whilst some of the tasks for this occupation had a slight commonality with some of his work duties, the strong management emphasis in the occupation stands sufficiently apart from his work duties in the 2 year period before the application for it not to be his usual occupation. Accordingly the Tribunal has found that his usual occupation is Solicitor (ASCO code 2521-13), however the Tribunal notes that this finding is made for the purposes of the Migration Act 1958 and does not confer on the visa applicant any right to use that title. 27. Employment Qualification: The visa applicant has provided evidence that in 1989 he was awarded a Bachelor of Laws degree from Himachal Pradesh University (D1 f.30-31). According to the Country Education Profiles for India, that qualification is equivalent to an Australian (RATE) Diploma (T1 f.32-34). DIMA's Procedures Advice Manual (PAM) 3 contains guidelines which state that the minimum Australian eligibility requirements that an applicant must satisfy for entry to the occupation of Solicitor is: A Bachelor degree in Law from a higher education institution, and either a prescribed professional practical training course or service as an articled clerk in a law office.... In all States and Territories in Australia, in order to practise law registration is legally required by way of admission to the State/Territories Supreme Courts. Barristers and solicitors admission boards assess the entitlements of a person to apply to the court for admission. According to those guidelines, the Council of Legal Education is the relevant authority for assessing whether an applicant's qualifications meet the admission requirements in the State of Victoria. 28. The Tribunal takes into account an assessment by the Council of Legal Education on 1 December 1998 that the visa applicant needed to complete further requirements before being eligible for admission to practice as a Barrister and Solicitor in Victoria (D1 f.85-85). These include: * completion of a course of study involving 11 legal subjects; * undertaking supervised practice as a Law Clerk for a period of six months or further specified practical training; and * satisfying the Board of Examiners that he was entitled to practice as a legal practitioner outside of Australia. 29. As the visa applicant does not meet the Australian standards for his usual occupation, the Tribunal finds that he is only entitled to 25 points for the Employment Qualification under Item 6107 of Part 1 of Schedule 6. 30. Age Qualification: The visa applicant was 31 years of age when he lodged his migration application (D1 f.9-10). Therefore, at the time of the primary assessment, the Tribunal finds that he is entitled to 25 points for the Age Qualification pursuant to Item 6202 of Part 2 of Schedule 6.": Rakhra, Arvinder Jit [2001] MRTA 56 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2001/56.html>, archived at <https://archive.is/73Bsx>.
> different statutory criteria evaluated - here required determination of what the applicant's usual occupation was. Sch 6D of the Migration Act requires determination of whether an applicant was employed in his nominated skilled occupation. PAM3, 6D, 10.4.1: 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. " PAM3 <https://www.homeaffairs.gov.au/foi/files/2020/fa-200601127-document-released.pdf>.
> but see: Greek law graduate, work as 'lawyers assistant' - "The evidence does not suggest that he had been working as a solicitor during the relevant period": "The skill/employment qualification is assessed in accordance with the provisions of Part 1 of Schedule 6 to the Regulations where there is no provision for a score of 45 points . In order to attain the score of 50 points and above, the respective requirements specified under items 6101 to 6105 of Schedule 6 must be satisfied. Item 6101 provides for a score of 80 points and relates to 'priority occupation[s]' so specified by Gazette Notice (see regulation 2.26(5) of the Regulations). There is no Gazette Notice in relation to such occupations. One of the criteria common to both items 6102 and 6103, which respectively entitles an applicant to 70 and 60 points , specifies that an applicant's occupation is to be one entry to which, in Australia, a degree or trade certificate is required. Likewise one of the requirements common to both items 6104 and 6105, which provide respectively for a score of 55 and 50 points , specifies an associate diploma or a diploma as an educational entry requirement. That stated it means that in order to score the 50 points he require to reach the pass mark of 50 points , the Principal must have a 'usual occupation', a term which will be discussed later, which requires at least an associate diploma as an educational entry requirement. According to the information provided under the original application, the Principal had completed a total of twelve years of primary and secondary education between 1962 and 1974. He then embarked on the study of law which took him twelve years to complete. His brother told the Tribunal that the reason for the extended period of study was probably the constant changes which took place in the educational system in Macedonia although he conceded that he could not say for sure. In 1986 the Principal graduated as a lawyer from the University of Bitola. He migrated to Australia the following year and stayed for about twenty months before returning to Macedonia to get married. The Applicant told the Tribunal that his brother had tried to renew the return resident visa under which he had departed Australia but was apparently told that he could only do that in Australia. For reasons not readily apparent he allowed his return resident visa to lapse and in 1992 he lodged a fresh application for permanent residence of Australia. That application was unsuccessful as was a subsequent appeal to the MIRO. According to information provided under the original application the Principal was employed as a 'secretary' at a school between November 1991 and July 1992. For the next six months or so he was unemployed. During the period between January 1993 and May 1995 he worked as a 'lawyer's assistant'. It was the Applicant's evidence that since May 1995 his brother has not been able to secure permanent employment and has been working as a 'freelance' or casual 'lawyer's assistant'. The Applicant also told the Tribunal that his brother's wife is not in paid employment. Under the provisions of Part 1 of Schedule 6 to the Regulations, it is necessary firstly to ascertain an applicant's, or in this instance the Principal's, 'usual occupation'. This term is defined in clause 2.26(5) of the Regulations as 'an occupation that [an] applicant has engaged in for gain or reward for a continuous period of at least 6 months during the period of 2 years immediately preceding the relevant application for a visa'. At the request of the Tribunal the Principal provided the following statement of his duties as a 'lawyer's assistant' during the two years prior to lodgement of the original application: 1. Preparation of accusations, such were accusations for marriage divorce, support accusation, accusations for debt payment, compensation accusations, accusation for establishment of the right of property based on inheritance, accusation for realization of the sales contract for chattel and so on. 2. Preparation of applications for issue of documents by the state authorities for the needs of the parties. 3. Preparations of complaints - accusations against verdicts, the parties may bring complaints against the court verdicts in due time against the verdicts. - complaints against decision - against the decisions made by the court of original jurisdiction - complaints are allowed against the decision to the court of the second degree in cases when is allowed by a law. Preparations of sale contracts of real estate, such as: for house sales, lands, for sales of motor vehicles. - preparation of contracts for a gift. - preparation of contracts for a life support. - preparation of testaments and etc. On the evidence the Tribunal finds that Principal's 'usual occupation' is that of a law clerk . The evidence does not suggest that he had been working as a solicitor during the relevant period. The Applicant's migration agent has contended that the Principal may be assessed as an office manager or an administrative assistant. The Tribunal is unable to agree with that contention because there is nothing in the evidence which would lend it support. To pursue that argument seems to me to be embarking on a 'fishing' expedition. The Tribunal's enquiries indicate that the occupation of a law clerk is not one which in Australia requires any qualification and certainly not an associate diploma or diploma, and neither has it been contended otherwise. For reasons indicated earlier the Principal must have a 'usual occupation' which requires at least an associate diploma as an educational entry requirement in order to reach the pass mark. As the Tribunal has found that this is not the case, it is not necessary to proceed any further with the points test assessment. The Tribunal finds that the Principal is unable to reach the qualifying score under an assessment carried out pursuant to Subdivision B of Division 2, Part 2 of the Act.": Applicant: Dimitar Nojkovski IRT Reference: W98/00202 #number 12275 [1998] IRTA 12275 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/IRTA/1998/12275.html>.
[B.B] Paris Bar Trainee - Pre-Admission Experience - Practical Experience for Admission to Paris Bar assessed to be employed at the professional level in the occupation of Solicitor - experience counted towards employment in Solicitor occupation; Applicant had been admitted to Paris Bar at the time of the Application
"14. The findings of the Tribunal are based on the material contained in the Tribunal file N03/06495 and the Departmental file OSF2002/154787. The material attached to these files reveals the following information. 15. The application that is the basis for this review was lodged on 19 February 2002. The visa applicant was sponsored by his brother Mr. Philippe Maxime Jerome Nadaud. Evidence of the relationship between the visa applicant and the sponsor has been provided in the form of an English translation of the visa applicant and sponsor’s birth certificates. Certified copies of these documents have also been provided in the original language (French). 16. In the Application for Migration (form 47SK), the visa applicant indicated at question 53 of the form that his nominated occupation was ‘Counsel/Consultant’. The visa applicant did not record an ASCO code for the nominated occupation. The Tribunal notes that the visa application was accompanied by a skills assessment letter from VETASSESS dated 25 October 2001. The letter states that the visa applicant’s Diplome d’Etudes Juridiques Appliquees Mention Droit-Allemand (Niveau Maitrise) awarded in 1997 by the University of Paris X, Nanterre, France, meets the requirements for the nominated occupation of ‘Careers Counsellor’ and is assessed as suitable for migration purposes. The educational requirement for the occupation of Careers Counsellor (ASCO code 2513-17) is stated to be an Australian degree or a qualification assessed as comparable to the educational level of an Australian degree. 17. According to the Decision Record, the delegate found that the visa applicant nominated ‘Personnel Officer (ASCO code 2291-11)’ as his skilled occupation in the application for migration. It is not clear how this conclusion was reached as there appears to be no reference to this occupation by the visa applicant in his application for migration. 18. On the basis of the available information, including the letter from VETASSESS dated 25 October 2001, and, the visa applicant’s own declaration in the application for migration that his nominated occupation is ‘Counsel/ Consultant’, the Tribunal is satisfied that the visa applicant intended to record Careers Counsellor (ASCO code 2513-17) at question 53 of form 47SK as his nominated skilled occupation. 19. The basis for the refusal of the visa in this matter was that the delegate found that the visa applicant failed to meet clause 138.216 for a Subclass 138 visa. This clause relates to a required period of work experience in a skilled occupation. According to the Decision Record, the delegate found that the visa applicant did not have sufficient work experience in a skilled occupation to meet the requirements of subclause 138.216(1). The delegate found that the visa applicant was not eligible for a waiver of the mandatory work experience threshold requirement as he had not completed an Australian qualification in the six months prior to the application, after at least one year of full time study in Australia. The delegate also found that the visa applicant did not meet the requirements for a Subclass 139 visa as his sponsor did not reside in a designated area. The delegate proceeded to refuse to grant a visa to the visa applicant on 20 June 2003. 20. On 11 September 2003, the review applicant applied to the Tribunal for a review of the decision taken by the Department to refuse to grant the visa applicant a Skilled – Australian-sponsored (Migrant) (Class BQ) visa. The application for review was accompanied by a letter addressed to the Tribunal from the visa applicant, dated 1 August 2003, and titled ‘Formal Demand of Review’. In summary, the visa applicant claims that his employment as legal consultant at MasterCard International in Purchase, New York, USA, was not taken into consideration by the Delegate. The visa applicant submits that during the relevant period he has a total of 26.5 months work experience in a skilled occupation, which is sufficient to meet the requirements of subclause 138.216(1). The visa applicant correctly notes that the work experience does not have to be employment in the same skilled occupation as that nominated in the application for migration. 21. In his letter of 1 August 2003, the visa applicant lists his employment as follows: Dates of Employment Employer Job Title 1/05/99 to15/09/99 (4.5 months) MasterCard Legal 11/10/99 to 24/11/99 (1.5 months) GCTHV Production Assistant 1/2/00 to 28/7/00 (6 months) Clifford Chance Legal 1/9/00 to 30/11/00 (3 months) Freshfields Legal 3/4/01 to 19/2/02 (10.5 months) White and Case Legal 31. The visa applicant also provided two copies of his Curriculum Vitae to the Department in support of his application. These documents are similar in terms of content but differ in layout. One copy however, contains slightly more detail regarding the visa applicant’s employment history. It relevantly states as follows: ... At question 54 of the Application for Migration (form 47SK), the visa applicant listed his employment history as follows: Employer and City Occupation/position From – To White & Case LLP – Paris Legal Adviser April 01 – Jan 02 SCP de Mahenge – Freshfields Trainee – Legal Adviser Sept – Nov 2000 Clifford Chance – Paris Trainee – Legal Adviser Feb – July 2000 Gaumont Columbia TriStar- Assistant – Production Oct – Nov 1999 Home Video Production MasterCard International – NY Trainee – Legal Adviser May – Sept 1999 ... 31. The visa applicant also provided two copies of his Curriculum Vitae to the Department in support of his application. These documents are similar in terms of content but differ in layout. One copy however, contains slightly more detail regarding the visa applicant’s employment history. It relevantly states as follows: March 2001 White & Case LLP, Paris Office Current position Second year post-admission lawyer, corporate division and German legal desk Sale and/or purchase of corporate targets, implementation of acquisition vehicles and structures, various corporate actions on behalf of clients. Responsible for dealing with German and French legal issues and in charge of other legal Eastern European prospects, negotiation, business development. Sept. to Nov. 2000 Freshfields Brückhaus Deringer, Paris Office, France Corporate and M&A Department, LBO operations and contracts issues Feb. to July 2000 Clifford Chance Pünder Roger & Wells, Paris Office, France Corporate Department, IPO of EADS, due diligence report and draft of Public Offering prospectus, sale of real property assets, draft of sale and warranty agreements, attention to corporate and commercial matters, draft of legal notes. Oct. to Nov. 1999 Gaumont Columbia TriStar Home Video, France Marketing, Creation and Product Development for DVD’s, market research. May to Sept. 1999 MasterCard International, Purchase, New York, USA Legal Department, cooperation with EuroCard, follow up of European Competition Law issues, lobbying and attention to corporate matters. 32. The evidence in support of the above employment can be summarised as follows. 33. Certified copies of payslips attached to both the Departmental and Tribunal file show that the visa applicant worked for MasterCard’s company headquarters in Purchase, New York, U.S.A., from early May 1999 until 15 September 1999. Other documentation from MasterCard, including a statement from the Chief Administrative Officer dated 22 December 2004, confirms the visa applicant’s employment with the company in this period. 34. In terms of the nature of his work, the visa applicant has submitted to the Tribunal, a certified copy of a letter from the Director, Human Resources of MasterCard International, dated 6 July 1999, which indicates that the visa applicant was undertaking an internship at the company. The letter is addressed to the Council on International Educational Exchange in Paris and has been provided in support of an extension of the internship period. The letter indicates that the visa applicant will continue to work a 40 hour week. The letter also states in part as follows: ... 35. The Tribunal held a hearing on 8 December 2004 at which the review applicant and the visa applicant provided oral evidence. The visa applicant gave further details of his tasks and responsibilities during his employment at MasterCard International. He explained that the company designated his employment as an internship in order to facilitate his visa for the USA. He stated that he worked at the company to gain international experience and that he undertook a full range of duties as a lawyer in the company’s legal department. The visa applicant had completed his studies and the arrangement with the French exchange organisation facilitated his employment in the USA. 36. The visa applicant gave evidence that he worked in the legal department and reported to the head of that department. His duties included legal research and analysis, particularly in the field of competition law, in relation to a significant case brought by merchants against MasterCard/Eurocard before European and US competition authorities. His work involved providing analysis of European competition law, drafting legal memoranda, contact with Visa and preparation of material for a common defence. He was also involved in legal work associated with mergers and acquisitions, for example, the merger of a compensation institution in Quebec with the Delaware incorporated company in the USA. His duties also included providing advice on legal issues arising from subsidiaries of MasterCard International in Quebec and the Caribbean, following up other corporate legal maters and providing general legal advice in relation to matters raised by customers. The statement from MasterCard’s Chief Administrative Officer confirms that the visa applicant was employed as a ‘French legal practitioner’ in the legal department of MasterCard International. 37. In support of employment at Gaumont Columbia TriStar Home Video, the visa applicant submitted to the Department a document titled ‘Work Certificate’ which is signed by the Pay-roll manager and dated 24 November 1999. The letter certifies that the visa applicant was employed as a ‘production assistant’ from 11 October 1999 to 24 November 1999. The document has been provided in French and is accompanied by an English translation. Also provided were certified copies of monthly pay slips to cover this period. 38. In support of employment at Clifford Chance, the visa applicant provided the Department with a letter titled ‘Statement of Position’, dated 28 July 2000 and signed by the Chief Executive Officer of the company, which certifies that the visa applicant has performed a short term contract from 1 February 2000 to 28 July 2000. Certified copies of monthly pay slips, which cover the full period, are attached to this letter. 39. A document titled ‘Internship Agreement’ attached to the Departmental file indicates that the visa applicant undertook an internship at Huyges De Mahenge Corporation in Paris from 1 September 2000 to 30 November 2000 as part of his mandatory professional training. The document has been provided in French and is accompanied by a partial English translation. Certified copies of monthly pay slips, which cover the full period, were also supplied to the Department. 40. In support of employment at White & Case, the visa applicant provided the Department with a letter dated 10 September 2002, signed by a Partner in Charge of Administration in the Paris Office of the firm, which indicates that the visa applicant has been employed as an attorney from 3 April 2001 until at least the date of the letter. The letter states the visa applicant’s annual remuneration, and, indicates that he is a permanent, full-time employee working in the Mergers & Acquisitions/ Corporate Department. A further letter submitted to the Tribunal, dated 1 August 2003, confirms the visa applicant continued employment with the firm. Certified copies of monthly pay slips, which are in French, have also been supplied to the Tribunal. 41. The visa applicant has also provided substantial further written information regarding his employment in France in the relevant period, and has explained that his official ‘trainee attorney’ or internship status during his employment in France in 2000 was as a result of registering for admission to the Paris Bar, which process was highly regulated under French law. The visa applicant provided written evidence to support his claim that in France, in order to work as an ‘attorney at law’ and thus plead a case before a court, the visa applicant needed to successfully pass the Bar examination and complete the compulsory 1 year training requirement. This process did not affect the visa applicant’s ability to perform the full range of tasks as a solicitor, and in France he was entitled to be employed at that level at least from the point of passing the Bar examinations in December 1999. 42. In order to find that the visa applicant was employed in a skilled occupation for the purposes of clause 138.216, the Tribunal must be satisfied that the visa applicant was employed as defined by the Regulations. For the purposes of Part 138, the term ‘employed’ has the meaning given in subregulation 2.26A(7) (see clause 138.111; Interpretation). The definition of ‘employed’ reads as follows: ... 43. The Procedural Advice Manual (PAM 3) provides the following guidance at Section 17 in relation to employment in a skilled occupation: The regulation 2.26A definition of employed does not distinguish between full-time, part-time or casual-employment. It simply requires the applicant to have been employed (for remuneration) at least 20 hours a week. Rather, it is for all applicants to demonstrate that, regardless of whether full-time, part-time or casual, they have been employed (for at least 20 hours a week) at a skilled level i.e. regularly and competently perform all the duties of the occupation at a suitable level of depth and complexity. Generally, in order to satisfy this, applicant should show that their involvement in duties associated with these occupations as their major or primary activity. 44. Based on the pay slips and other evidence attached to the Departmental and Tribunal files, the Tribunal finds that the visa applicant was engaged in an occupation for remuneration at what appears to be a commercial rate whilst working for all five employers referred to above. Thus, the Tribunal is satisfied that the visa applicant was employed, as the term is defined in subregulation 2.26A(7), in each period of employment during the relevant period. 45. However, this in itself is not sufficient for the Tribunal to find that the visa applicant meets the requirements of subclause 138.216(1). The Tribunal must next consider whether the periods of employment during the relevant period was employment in a skilled occupation. That is, employment in an occupation or occupations which appear on the relevant Skilled Occupation List specified by Gazette Notice. 46. The date on which the visa applicant became qualified to work in his occupation is relevant to a consideration of this matter, as this will indicate whether the visa applicant was working at a ‘semi-skilled’ level (i.e. pre-qualification) or a ‘skilled’ level (i.e. post-qualification) during the relevant period. PAM 3 provides the following guidance in relation to pre-graduation employment and post-graduate employment. Pre-graduation employment Part-time work experience undertaken while completing a course of study may be used in establishing whether the person has been employed for the prescribed period but, since the relevant qualification has not been completed, the work experience would generally be at the “semi-skilled” rather than the “skilled” level. Example: A person who works in an accountancy firm during the course of their accountancy degree and, after the degree has been awarded, works as an accountant for two months before applying for a visa. The applicant’s experience as an accountant is not sufficient to satisfy the ‘skilled occupation’ criterion as an accountant. However, the applicant would still have been employed at a lower skill level i.e. an accounts clerk. Postgraduate employment The question may arise as to whether work experience undertaken during postgraduate study may be regarded as employment for purposes of employment in a skilled occupation. In particular, cases may arise of students with a “recognised” degree undertaking graduate courses that are practically-oriented and require the student to work in a standard work environment on a daily basis. The critical issues are whether the student was paid and whether the work experience was after completing the relevant qualification and is at the skilled level (as required by the various employment factors). Example: An applicant with a recognised degree in physiotherapy and a favourable skills assessment from AECOP is undertaking a graduate course that is practically-oriented. Because the applicant has a favourable skills assessment, their graduate course work experience may be regarded as post-qualification skilled employment provided it otherwise meets the 20 hour a week requirement. 47. Having considered the above information, the Tribunal finds that the visa applicant’s educational background is relevant to determining whether the visa applicant was employed in a skilled occupation or occupations during the relevant period. 48. A Curriculum Vitae attached to the Departmental file, sets out the following information regarding the visa applicant’s educational history: 1999/2000 Bar Exam of Paris, France Paris Bar Entrance Exam successfully passed, registration at the French Bar School of Paris and Graduation from the Bar School of Paris as of December 2000. The Bar School provides 20 hours of weekly legal education complemented by two internships within a Firm and a Court. 1997/1998 DESS of European Competition Law, University of Paris, France The DESS is a postgraduate program and a highly selective degree complemented by an internship in a law firm. The courses covered European Commercial and Competition Law, included an intensive study of German Corporate Law. 1996/1997 Magister Legum of Business Law, University of Potsdam, Germany The Magister Legum is an exchange postgraduate program that comprises 20 hours of weekly Courses in German Law. The program is completed with a research paper. I chose the following chosen topic: The manager in the German Limited Liability Company. 1992/1996 Maîtrise of Business Law, University of Paris, France A four-year law degree equivalent to the Juris Doctor. The Maîtrise Degree corresponds to a complete legal education in several areas of private and public law, as well as European and International Law. French-German Legal Institute, University of Regensburg, Germany A four-year Law Program corresponding to a German legal Education, sponsored by the French and German governments by means of a scholarship. 49. The visa applicant provided the Department with a certified copy of his undergraduate degree from the University of Paris which was conferred on 12 December 1997. According to an English translation of the qualification, the visa applicant passed the Diplome D’Etudes Juridiques Appliquee Mention Droit Allemand (Niveau Maitrise), German Legal Expert (4th year), during the first academic session 1997. The NOOSR Country Education Profile – France states that a Maîtrise is assessed as comparable to the educational level of an Australian Bachelor degree. 50. The visa applicant also submitted to the Department a certified copy of a German Magister legum, LL.M. An English translation of the document indicates that the visa applicant was awarded a Master of Law with high honors by the University of Potsdam on 9 December 1997. The NOOSR Country Education Profile – Germany is not clear on the comparability of this qualification to an Australian qualification. 51. Also provided to the Department was a certified copy of a Diplome D’Etudes Superieures Specialisees. According to an English translation of the document, the visa applicant was awarded this qualification by the University of Paris X during the academic year of 1997-1998. The certificate was issued on 7 January 1999 and states that the area of specialisation was ‘European Legal Expert’. The NOOSR Profile for France states that the DESS is assessed as comparable to the educational level of an Australian Postgraduate Diploma. 52. The visa applicant has provided evidence that he passed the passed the Paris Bar Entrance Examination in December 1999 and satisfied requirements for admission to the Paris Bar in December 2000. 53. The occupation of Solicitor appears in ASCO unit group 2521 (ASCO code 2521-13). According to ASCO a Solicitor provides legal advice, prepares and drafts legal documents and conducts negotiations on behalf of clients on matters associated with the law. The tasks of a Solicitor include: ... 54. It is important for the Tribunal to look beyond the actual title of positions that the visa applicant has held in the relevant period and to assess the nature and range of tasks performed, in order to determine whether the visa applicant has had employment experience in a particular occupation. 55. The Tribunal also notes that it is not required to assess whether the visa applicant satisfies specific Australian registration requirements for the occupation. Having regard to all the evidence, the Tribunal is satisfied that the visa applicant was employed at the professional level in the occupation of solicitor in his position at MasterCard International. The Tribunal is satisfied that he performed tasks in the range and at the skill level of tasks described in the ASCO classification of Solicitor . The Tribunal is also satisfied that the visa applicant performed tasks and undertook the range of duties at the skill level of a solicitor , as the occupation is described in ASCO, in his employment at Clifford Chance, Freshfields, and White & Case in the relevant period. The Tribunal finds that the actual titles or designations of the various positions he held are not determinative in this case. In making these findings the Tribunal has also taken into account the evidence that the visa applicant has completed qualifications in law that are the equivalent of an Australian Bachelor degree in 1996, and continued to undertake further study in law at the post graduate level after that time. 56. The occupation of Solicitor (ASCO code 2521-13) is included on the Gazette Notice specifying skilled occupations in force at the time of application for the visa (GN 31 of 8 August 2001). For the sake of completeness the Tribunal notes that this occupation is also included on the current Gazette Notice (GN 36 of 8 September 2004). Taking into account all the periods of employment in the occupation of solicitor in the relevant period, in the 5 companies listed above, the Tribunal finds that the visa applicant was employed in a skilled occupation for 24 months out of the 36 months immediately before the day on which the application was made.": Philippe Maxime Jerome Nadaud [2005] MRTA 115 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2005/115.html>, archived at <https://archive.is/XsJ4S>.
[B.C] Employment as a Law Graduate then Solicitor - both counted towards Australian Employment Qualifications - post UWA JD work:
"2. The applicant was invited to apply for the visa on 11 July 2018 and applied for the visa on 28 July 2018. 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 delegate refused to grant the visa because the applicant did not satisfy the ‘ points test’ criterion in cl.189.224. ... 8. 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 18/051. In the present case, the applicant nominated the occupation of ‘ Solicitor ’. ... 18. 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. 19. It is without contention that the applicant was employed as a law graduate with JGC Oceania Pty Ltd for the period April 2017 to December 2017 and as a Solicitor for the period from December 2017. For this reason, the applicant is entitled to points under part 6D41 for Australian employment experience for a period totalling at least 12 months and less than 36 months immediately before the day on which the application was made. 20. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 5 points under this part.": Low (Migration) [2020] AATA 4061 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2020/4061.html>, archived at <https://archive.md/bCNmB>.
[B.D] Tasks of a Law Clerk, Legal Officer (non-admitted)
"In written submissions, the appellant submitted that the reasons for judgment in Cornall v. Nagle led to the conclusion that a law clerk (such as himself) was not permitted to perform anything other than ministerial tasks for his employing solicitor . His Honour made it clear, at pp.198-200, that it was permissible (under the 1958 Act) for a solicitor to delegate some of his work to an unqualified person in the nature of a law clerk . After discussing Law Society of the United Kingdom v. Waterlow Brothers & Layton (1883) 8 App. Cas. 407, his Honour said at p.198: "The point of Waterlow was a qualification on [the] general rule; for it does not follow that whenever an Act or Rules of Court require that some particular thing be done by a party or its solicitor , that thing must be done, if not by the party himself, then by his solicitor personally. Obviously, a great many things in the day to day conduct of legal practice may be attended to by the solicitor 's servants or agents." I do not read his Honour's judgment as proposing any departure from what has become accepted as the area of permissible delegation by an employing solicitor to a law clerk : see and cf. Way v. Bishop [1928] 1 Ch. 647, at p. 658 per Lawrence L.J. and p. 660 per Russell L.J. and Ex parte Maxwell; Re a Bill of Costs (1955) 72 WN (NSW) 333, at p.335 per Roper, C.J. Further, I do not think that the terms of ss.314, 316, 321, 323 and 324 of the 1996 Act bear the meaning for which the appellant has contended. The appellant has submitted: "[T]he natural or ordinary meaning of the words "engage in legal practice" is to engage in work of lawyers such as the conduct of litigation, the giving of legal advice and the drafting of legal instruments, irrespective of whether it be exclusively done by them. If parts of that work are done by other professions, vocations and businesses, then the effect is to prohibit those others from doing that work unless, in addition to such other qualifications they may have, they are also qualified legal practitioners." As I have endeavoured to show, a person who gives advice touching legal matters or who prepares documents having legal effect does not act as a solicitor (or legal practitioner) by reason of those acts alone. Some aspects of litigation too can be conducted by a law clerk (providing it can be said that the clerk acts on behalf of his employing solicitor ). In limiting his focus simply to the activities of conducting litigation, giving advice and drafting legal instruments, the appellant fails to describe sufficiently fully what is signified by the expression "engaging in legal practice'. One may need to examine who performs these activities, as well as how, when and where they perform them.": Phillip Antony Samson Felman v Law Institute of Victoria (1997) 159 ALR 363; [1997] VSC 62.
'Engage in Legal Practice'
practice of law by law clerks in the employ of a Solicitor, LPA: "823 The LPA does not define the expression "engage in legal practice." In Felman v Law Institute of Victoria[123], it was noted that the explanatory memorandum to the Legal Practice Bill (which became the LPA) contained the following passage: "The concept of 'engaging in legal practice' is used throughout the Bill. This concept is the same as 'acting or practising as a legal practitioner' and other similar phrases used in other jurisdictions and is intended to invoke the common law learning on what defines the practice of a lawyer."[124] 824 The meaning of the expression "acting as a solicitor " was considered by Cussen J in Re Sanderson; ex parte the Law Institute of Victoria[125]. His Honour held that: "If a person does a thing usually done by a solicitor , and does it in such a way as to lead to the reasonable inference that he is a solicitor – if he combines professing to be a solicitor with the action usually taken by a solicitor – I think he then does act as a solicitor ."[126] 825 In Cornall v Nagle[127] JD Phillips J, as his Honour then was, was dealing with an application to have the defendant punished for alleged disobedience of an earlier order by the Court, made under s.90(7) of the Legal Profession Practice Act 1958 ("the LPPA"). Having reviewed the earlier decisions, his Honour said: "Based upon the foregoing, I conclude that a person who is neither admitted to practise nor enrolled as a barrister and solicitor may "act or practise as a solicitor " in any of the following ways: (1) by doing something which, though not required to be done exclusively by a solicitor , is usually done by a solicitor and by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor . This is the test in Sanderson. (2) by doing something that is positively proscribed by the Act or by Rules of Court unless done by a duly qualified legal practitioner. Examples of such prohibitions in a statute are ss.93 and 111 of the LPPA. (3) by doing something which, in order that the public may be adequately protected, is required to be done only by those who have the necessary training and expertise in the law. For present purposes, it is unnecessary to go beyond the example of the giving of legal advice as part of a course of conduct and for reward. While in the first of these three, the conduct is forbidden in circumstances only where the inference is justified that the actor is a solicitor , it is surely otherwise in the other two cases. If something be the exclusive province of a duly qualified lawyer, then it is the doing of the act by someone not so qualified that will constitute the offence and, in such circumstances, it can scarcely matter that the actor states plainly that he is not a qualified lawyer ..."[128] 826 The question facing the Court of Appeal in Felman[129] was the status, after the enactment of the LPA, of proceedings commenced under the LPPA to restrain the defendant from practising as a solicitor . One of the arguments advanced by the defendant was that there was an inconsistency within the meaning of s.109 of the Commonwealth Constitution between, on the one hand, Part VIIA of the Income Tax Assessment Act 1936 (Cth), Part XI of the Customs Act 1901 (Cth) and Part 3 of the Migration Act 1958 (Cth) and, on the other, the LPPA and the LPA. That involved the Court of Appeal considering the meaning of the expression "to act or practise as a solicitor " in s.90(7) of the LPPA and the expression "engage in legal practice" in s.314 of the LPA. In the principal judgment, Kenny JA (with whom Winneke P and Brooking JA agreed) referred to passages from the judgment of JD Phillips in Cornall v Nagle and said: "It is clear ... that his Honour was not saying that any person who, in the lawful pursuit of an occupation other than law, gives advice (for reward) on matters lying within his or her area of occupational expertise necessarily acts as a solicitor or a legal practitioner simply because the advice involves the expression of an opinion about the requirements of relevant legislation, statutory rules or the like. A person who, in his or her capacity as a tax agent, customs agent or migration agent, proffers advice which touches such matters, does so on account of his or her knowledge of and experience in the fields of taxation, customs, or migration (as the case may be). In this regard, he or she is in no different a position from anyone else who, in the pursuit of an occupation, advises upon a matter within and by virtue of his or her expertise, as, for example, an architect who advises upon the legal ramifications of his proposed design. Pursuing Phillips J's approach, the giving of advice in the course of carrying on an occupation other than a solicitor ’s (or legal practitioner’s) would not fall within either limb 1 or limb 3 of his Honour’s test. (Limb 2 is not presently material.) The advice would not, in the circumstances, be given in such a way as to justify the inference that it was given by a solicitor , as required by limb 1, and it could not be said that, in order to protect the public, it had to be given by a lawyer, as required by limb 3. For much the same reasons, the preparation, as an accepted part of an occupation, of a document giving rise to legal rights and obligations would not fall within either limb. In any event, where a statute has (as in Pt VIIA of the Income Tax Assessment Act 1936 (Cth), Pt XI of the Customs Act 1901 (Cth) and Pt 3 of the Migration Act 1958 (Cth)) permitted the carrying on of an occupation by non-lawyers which involves the provision of advice or documents of this kind, there is no basis for saying that the protection of the public requires that the occupation be carried on by lawyers. This is so because Parliament has made a contrary determination. ... As I have endeavoured to show, a person who gives advice touching legal matters or who prepares documents having legal effect does not act as a solicitor (or legal practitioner) by reason of those acts alone. Some aspects of litigation too can be conducted by a law clerk (providing it can be said that the clerk acts on behalf of his employing solicitor ). In limiting his focus simply to the activities of conducting litigation, giving advice and drafting legal instruments, the appellant fails to describe sufficiently fully what is signified by the expression 'engaging in legal practice.' One may need to examine who performs these activities, as well as how, when and where they perform them. ... In my opinion, the expression to 'engage in legal practice' in s. 314 and elsewhere signifies 'to carry on or exercise the profession of law.' Reference to the definitions of 'engage' and 'practice' in the Oxford English Dictionary supports the view that this is the ordinary and natural meaning of the expression. The carrying on of the profession of law is done by none other than a 'legal practitioner.' Accordingly, in my view the expression 'engage in legal practice' means 'engage in legal practice as a legal practitioner', the italicised words being implicit in the notion of legal practice. This construction is supported by the fact that the expression 'engage in legal practice' was evidently intended to cover both sides of the profession, namely, barristers and solicitors (collectively legal practitioners): see s.8, Sch.2 cll.15 and 17 of the 1996 Act." Her Honour then noted the part of the explanatory memorandum to the Legal Practice Bill which I have already quoted. 827 Thus, in Felman the Court of Appeal concluded that the expression "engage in legal practice" in s.314 of the LPA signified conduct which was done in carrying on the profession of law "as a legal practitioner." Accordingly, a person who, in the lawful pursuit of an occupation other than law, gives advice for reward on matters lying within his or her occupational expertise involving the expression of an opinion about requirements of relevant legislation, statutory rules and the like, does not necessarily act as a solicitor or engage in legal practice.": Orrong Strategies Pty Ltd v Village Roadshow Ltd [2007] VSC 1.
"17. Before turning to address the grounds, it is important to note that the appellant does not challenge the finding below as to what it means, as a matter of law, to “engage in legal practice”. Relevantly, Martin SJA found, by reference to authority, that to “engage in legal practice” means to carry on or exercise the profession of law, which includes doing things usually done by a legal practitioner, such as advising parties to litigation in respect of matters of law and procedure, assisting parties to litigation in the preparation of cases for litigation, drafting court documents or legal correspondence on behalf of parties to litigation and purporting to act as a party’s agent in relation to litigation. His Honour also found that, whilst carrying on or exercising the profession of law is to be distinguished from the “business” of law, indicia of carrying on a business are relevant to the assessment of the activities of a person in this context. Importantly in the present case, Martin SJA also endorsed the view that the relevant inquiry is not informed by subjective considerations (that is, whether the person intended to breach the unauthorised practice proscription, or, one might add, whether the person told their clients they were not a legal practitioner) – the inquiry is an objective one. I agree with the principles as articulated by Martin SJA in the decision below.": Raghoobar v Legal Services Commissioner [2023] QCA 191.
"433. However, I note that provisions of the kind relied upon by the plaintiffs under the LPA and Uniform Law have not been readily construed as preventing a solicitor from delegating “purely ministerial” tasks to unqualified persons: e.g. Cornall v Nagle [1995] 2 VR 188 (Cornall) at 199 per J D Phillips J, citing Associated Securities Ltd v Aziz [1974] VR 699 at 709 per Pape J.": Adelaide Concrete Cutting & Drilling Pty Ltd v Marino (No 2) [2024] NSWSC 499.
Malaysia: "Legal Profession Act 1976s 37(2)(a)–(e). See Bank Bumiputra (M) Bhd v Mohd Ibrahim bin Salleh[2000] 5 MLJ 778; and see Darshan Singh Khaira v Majlis Peguam Malaysia [2021] 5 MLJ 921, FC, where the appellant was bankrupt and thus was an unauthorised person. The Federal Court affirmed the decision of the Court of Appeal that when legal advice was given in return for reward or payment of fees, as in the instant case, it would amount to ‘practising law’. In the appeal to the Federal Court, the appellant had argued that ‘practising law’ was an act that was ‘systematic, regular and continuous’ and could not include an isolated act of giving legal advice, more so when the giver of the advice did not personally receive any reward for doing so. The Federal Court unanimously held that even a single or isolated act could amount to acting as an advocate and solicitor. It was not so much whether it was a single or isolated act of giving of advice but rather whether the impugned act or acts were what a lawyer usually did in carrying out his functions and duties as an advocate and solicitor. Although the appellant was an ‘unauthorised person’ as he was suspended from practising law on account of his bankruptcy, he not only had actively advised a litigant (‘Zulkefli’) on the procedures applicable in the Court of Appeal (‘COA’) but also prepared the documents for the appellant to file in the COA. The said advice and documents were directly relevant to Zulkefli’s rights and were tailored to meet his particular needs. In drafting and preparing the documents needed for Zulkefli’s appeal, the appellant provided a service which went beyond mechanical or clerical tasks and was of a kind required to be performed by a solicitor as a layman’s knowledge in such matters would be wholly inadequate. By actively advising Zulkefli on his appeal and preparing the necessary documentation, the appellant was plainly doing something which was usually done by a solicitor and he did it in such a way as to justify the reasonable inference that the person doing it was a solicitor. The legal advice and the documents prepared required the expertise of a legally-trained mind. In short, the appellant did what a lawyer would do when a client came for advice. It was intended that Zulkefli would act on the legal advice given. There existed quite plainly a relationship of confidence and trust between the appellant and Zulkefli which was an essential of legal practice. It was not a case where some legal advice was given casually or informally and, importantly, was lacking the necessary setting and status of a solicitor dealing with a client. The courts below were therefore justified in concluding that the appellant was practising law at the material time and that his conduct violated the Legal Profession Act 1976 as he was a bankrupt who had not obtained the consent of the Bar Council to practise law. The appellant’s argument that in order to constitute ‘practising law’ the giving of legal advice must be coupled with the receiving of fees or reward was not an acceptable proposition of law. Payment or receipt of fees or reward was not a pre-requisite to a finding that a person had engaged in legal practice. It would not make any difference if the appellant was not paid for the work done. As it turned out, however, the services provided by the appellant were not without payment. The payment was made to the firm of M/s Darshan Singh & Co by Zulkefli. Hence, the appellant’s arguments in this context had no merit.": '[360.047] Unauthorised person cannot act as advocate and solicitor' in Halsbury's Laws of Malaysia (LexisNexis) Vol 12.
Law Graduate - PLT - Work Experience not Employment unless there is an agreement between the host and WE student constituting a contract of employment
"[42] In Western Australia, the process for admission to practice as a lawyer is for the person to have completed an approved training course and obtaining a Bachelor of Laws in the first instance. Having done so, the law graduate is required to complete a Practice Legal Training (PLT) programme. ... [53] In my view, Ms Cossich wanted the Court “to call a spade a spade” and not to tolerate the employer “calling a spade a shovel”. In this application, I am being required to make the same distinction. [54] In contrast, the Employer relied upon paragraph [78] of Vice President Lawler’s Decision in University of New South Wales (Professional Staff) Enterprise Agreement 2010 [2010] FWAA 9588 as follows: “As a matter of general law, mere “work experience” does not involve a contract of employment. That is, as a matter of general law, a full-time student who performs a period of “work experience” will not be an employee of the host employer unless there is there an agreement between the host employer and the student that constitutes a contract of employment. There can be no contract of employment unless there is the “mutuality of obligation” that is essential to existence of a contract of employment, including, relevantly, an obligation on the student to perform work during the period of work experience. The approach of the High Court in Deitrich v Dare would suggest that, absent an express agreement to contrary, there is no contract of employment involved in period of “work experience”, even where some (modest) payment is agreed. Obviously, that position is subject to legislation regulating periods of “work experience” by full-time students. I can find no Federal or NSW legislation that would render a full-time student at UNSW performing “work experience” during the long semester break an employee.” [55] I respectfully adopt the statement of His Honour and agree with the Employer that Dietrich v Dare referred to in Vice President Lawler’s Decision is the primary case law which distinguishes between work experience and a contract of employment. [56] For completeness, the Applicant has provided correspondence dated 13 June 2013 from The College of Law confirming that he had satisfactorily completed the Work Experience Component of the Professional Program. ... [57] Having considered the circumstances of Mr Upton’s arrangement with the Employer both prior to and during the period 4 February to 24 February 2013, I am satisfied that it was a voluntary placement in accordance with the meaning in the FW Act and undertaken to complete his practical legal training for admission to practice as a lawyer. [58] Notwithstanding the various indices referred to by both parties as to the ordinary meaning of “employee”, the FW Act excludes a person who is undertaking a vocational placement. As I have found that Mr Upton was undertaking a vocational placement, he is excluded, by the statute, from the definition of “employee”. [59] As Mr Upton was not an employee during the period 4-24 February 2013, that period cannot be included for the purposes of meeting the minimum period of employment. The only period which can be considered for the purposes of meeting the minimum period of employment is from 25 February to 15 August 2013. This period is less than six (6) months. [60] Mr Upton has not met the minimum period of employment required to be protected from unfair dismissal. Accordingly, this application must be dismissed. An order to this effect will be issued conjointly with this Decision and Reasons for Decision.": Upton v Geraldton Resource Centre [2013] FWC 7827 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2013/7827.html>.
Law Graduates - ?Provision of Legal Services
*** Role in firm: "Law graduates 171. Given that PwC Australia’s model for the provision of legal services relies in part on an analogy with work done by law graduates in a traditional law firm or legal practice within an accounting (or professional services) firm (see [51] above), it is relevant to make some observations about the way in which such work may be characterised for the purposes of legal professional privilege. 172. It is not uncommon in traditional law firms, and, I assume, legal practices within accounting (or professional services) firms, for law graduates (previously known as articled clerks) to prepare draft letters of advice or memoranda of advice under the direction and supervision of a legally qualified partner or employee solicitor. The partner or solicitor then substantively reviews the advice, makes whatever changes he or she considers appropriate, and sends the letter or memorandum to the client under his or her own name (or the law firm’s name). In such a scenario, although most or even all of the drafting has been carried out by the law graduate , the letter or memorandum may be treated as the legal work of the partner or solicitor (and hence capable of attracting legal professional privilege) in circumstances where the law graduate ’s work was carried out under the supervision and direction of the lawyer, the lawyer substantively reviewed the draft, and the lawyer adopted the work as his or her own by sending it out under his or her name. See generally Kiefel v State of Victoria [2012] FCA 622 at [16]- [18] per Gordon J; Glengallan Investments Pty Ltd v Arthur Andersen [2001] QCA 115; [2002] 1 Qd R 233 at [19] per Williams JA, with whom McPherson JA and Ambrose J agreed. In considering whether these elements are present, it is relevant to consider the expertise of the lawyer in relation to the relevant legal work; the lawyer must have sufficient knowledge and experience to be able to substantively review the law graduate ’s work. 173. Importantly, in the scenario described above, the role of the lawyer in the preparation and finalisation of the advice is substantive; the lawyer is not merely a conduit through which advice is provided by the law graduate to the client.": Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2022/278.html>, archived at <https://archive.is/My9CR>.
> "16. Legal professional privilege covers communications between a client and his or her legal adviser. It has been recognised that, in some circumstances, “legal adviser” may include a paralegal, articled clerk or other law clerk in the employ of a qualified legal practitioner: see for example, in the statutory setting, the definition of “lawyer” in s 117(1) of the Evidence Act 1995 (Cth). In Phipson on Evidence (15th ed, 2000) at [20-14] the proposition is stated thus: Where there are unqualified staff involved in the giving of advice in a department supervised by qualified lawyers, it may be possible to claim privilege. The problem may arise in law firms, where there are paralegals or other unqualified persons giving advice under supervision. ... If the person who gives the advice is a paralegal and is working supervised by a solicitor under law society rules, then the advice is in truth the advice of the firm (and not the advice of the paralegal) and will be privileged.": Kiefel v State of Victoria (Department of Education & Early Childhood Development) [2012] FCA 622.
*** Legal Work by law clerk, done under supervision and control of a practitioner and the practitioner settled the document or adopted it as their own, Western Australia: "First, legal work or contentious business which falls within s76(l) of the Legal Practitioner's Act may only be performed by a practitioner. The nature of such work is clearly defined and, having regard to s77(1) should be confined to the specific matters stated. Secondly, s76(l) should be construed as being consistent with the long standing practice under which a practitioner's law clerk has been given a right of audience in chambers. Where a law clerk has appeared in accordance with that practice a practitioner is entitled to remuneration in respect of the appearance of the clerk at a rate which reflects the fact that the appearance was by the clerk rather than the practitioner. Thirdly, where the practitioner has been assisted by a law clerk in the carrying out of contentious business not falling within the prohibitions in s76(1) and which falls within s77(1), such as the preparation of a writ of summons with a statement of claim endorsed, the practitioner is entitled to remuneration which would include a charge for the work done by the law clerk under his supervision and control. Where the Scale provides for a fixed fee the practitioner would be entitled to that fee, although the work was partly or wholly carried out by the law clerk, provided the work was done under the supervision and control of the practitioner and provided the practitioner had settled or adopted the document as his or her own. Where the Scale fee incorporated a variable element it would be proper to allow the remuneration of the practitioner to include a suitable charge for work done by a law clerk at a reasonable hourly rate appropriate to the experience and standing of the clerk and the nature of the work involved. Naturally, on taxation the Taxing Officer would be concerned to ensure that the resultant fee was reasonable in the circumstances, given that costs unreasonably or unnecessarily incurred should not be allowed: cf O66 rl(2). ... A similar provision was enacted in Western Australia by s3 of the Ordinance for the Further Regulation of Practitioners in the Civil Court 1855 (18 Vic No 9) which limited the preparation of deeds and other documents to duly certified persons and also contained a virtually identical exception for persons solely employed to engross such documents. S1 of the Ordinance made provision for the Commissioner of the Civil Court to certify the fitness and capacity of a person to act as "an attorney or practitioner of the said Court and a conveyancer". This provision clearly contemplated that a paid law clerk employed by a solicitor could engross a deed or a document relating to any proceedings in law or in equity, provided it was drawn or prepared by the clerk by himself or herself and for his or her own account. In my view it also contemplated that such a clerk could draw such a deed provided he or she did so as an employee of a solicitor and not on his or leer own account. It follows that such a clerk could also draft such a deed to be settled by a solicitor. It was always contemplated that any such work by a clerk would be supervised by his employer: cf Hopkinson v Smith [1822] 1 Bing 13; 190 ER 6. The work of solicitors and attorneys had been regulated by statute in England from at least 1729: Plucknett, A Concise History of the Common Law (4th Ed 1948) 215. The many provisions subsequently enacted were consolidated by the Attorneys and Solicitors Act 1843 (6 & 7 Vic c 73). S2 of that Act contained a precursor of s76 of the Legal Practitioners Act which prohibited persons, other than those duly admitted as an attorney or solicitor from suing out any writ or process or commencing, carrying oil, or defending any action, suit or other proceeding in any court, or act in any cause, matter or suit civil or criminal. A person who was not admitted as an attorney or a solicitor who did any of these things was liable to be punished for contempt by the relevant court: s35. The 1843 Act contained detailed provisions concerning clerkship. In order to be admitted as an attorney or solicitor it was necessary to be employed as a clerk under articles for five years of which one year could be spent with a London Agent or a barrister or special pleader: s3 and s6. No attorney or solicitor was entitled to have more than two articled clerks at any one time: s4. Any such clerk was required during the whole time of service under articles to "be actually employed by such attorney or solicitor in the proper business, practice or employment of an attorney and solicitor, save only and except in the cases above mentioned". In other words, articled clerks could do legal work other than those things which only an attorney or solicitor could do as provided in s2 of the Act. Thus they could draft letters, pleadings and other documents and do other work associated with litigious work. ... The "legal business" or legal work referred to in s77(1) is non-curial, in the sense that it is performed out of court and does not involve legal work of the kind dealt with by s76, except to the extent of the overlap identified by Burt CJ and explained by Wickham J. It does not include clerical, administrative or menial work which can be performed by persons other than certificated practitioners, including law clerks: Barristers Board v Central Tar Services (1985) 16 ATR 115 at 117 per Franklyn J. These activities do not involve "the practice of the law". This includes the giving of advice and the performance of services affecting, legal rights: Barristers Board v Palm Management Pty Ltd [1984] WAR 101. The effect of s77(2) is to exempt the paid and articled clerks of the practitioner from the prohibition in s77(1). The employment of law clerks by practitioners is recognised in s16 of the Legal Practitioners Act which provides for the admission to practice of a person who has completed a term of ten years as a clerk in the office of a practitioner and has been employed as a managing clerk for at least five of such ten years. This provision was introduced by an amendment to the Act in 1909 by the Legal Practitioners Act Amendment Act 1909. All of these provisions recognise the historical fact that legal practitioners in Western Australia, as in England, employed law clerks, including managing clerks, in addition to articled clerks, to perform legal work. It was the accumulation of experience in legal work, supplemented by passing such examinations as specified by the Board, which qualified a managing clerk for admission as a practitioner. It is a notorious fact that for many years law clerks and managing clerks have been given a right of audience in chambers applications in the Supreme Court. The right to so appear is technically one to appear as a representative of the solicitor principal. This reflected the position in England where law clerks (now called legal executives) and managing clerks were and are entitled to represent their principals before a Judge or Master in chambers: Vimbos v Meadowcraft (1902) 46 SJ 2. This right of audience can be reconciled with the provisions of s76(1) of the Legal Practitioners Act by distinguishing between proceedings in court and proceedings in chambers. The relevant prohibition was that no person other than a certificated practitioner "shall ... appear in any action, suit or other proceedings in any court whatever of civil or criminal jurisdiction in Western Australia." If the word "court" was read as meaning "open court", it would not include chambers. Today, of course, chambers are held in an open courtroom but the distinction between proceedings in court and in chambers is maintained. The holding of chambers is a relatively recent development. Until approximately 15 years ago chambers were held in the individual Judge's or Master's actual private chambers. For example, O55 r38 of the Rules of the Supreme Court 1909 (as they stood in 1967) provided for lists of the matters appointed for each day to be "made out and affixed outside the doors of the Chambers of the respective Judges". O53 r14 provided for any application in chambers to be adjourned "from Chambers into Court or from Court into Chambers". ... In all of these areas it appears to have been accepted that a practitioner whose clerk represented him in chambers, or whose clerk attended at trial, would be entitled to remuneration in respect of the work done. Where he was represented by a clerk in clambers, the practitioner would be entitled to charge for the work done but at a rate which reflected the status of the representation. If, however, a clerk drafted a pleading which the practitioner settled and signed, he or she would be entitled to charge the scale fee for the work involved. The entitlement of the practitioner to employ a clerk to undertake legal work carried with it an obligation of supervision in order to ensure that the client received an appropriate standard of advice and service. The same authorities which recognise that it is appropriate for practitioners to employ clerks and charge for their services also stress the need for supervision: see, for example, Hopkinson v Smith, above; Taylor v Glassbrook [1822] 3 Stark 75; 171 ER 122; Ex Parte Dale [1882] 3 NSWLR 83; Ex Parte Card; Re Rowlings & Levien (1889) 5 WN (NSW) 107; Whyte v Nutting [1897] 2 IR 241; Ex Parte Maxwell; Re a Bill of Costs (1955) 72 WN (NSW) 233; Re a Solicitor's Clerk [1956] 2 All ER 242 at 244 per Goddard LCJ; and Law Society of NSW v Foreman (1991) 24 NSWLR 238 at 250 per Mahoney JA. In Re a Solicitor's Clerk, above, it was acknowledged that failure to adequately supervise the work of a clerk would constitute professional misconduct under the Solicitors Act 1941 (Eng). In that case, a clerk, without the knowledge of his solicitor, prepared and filed a misleading affidavit. Lord Goddard said at 244 that the preparation and filing of the affidavit: "... must be regarded as the act of the solicitor who was the solicitor on the record. It is not disputed that for any consequences which might result and cause damage to ally person the solicitor would be responsible, for he was the solicitor on the record and it matters not whether he prepared and filed the affidavit personally or by the land of his clerk." In Law Society of NSW v Foreman, above, it was held that the failure by a solicitor to supervise the activities of all unqualified clerk in his employ, in circumstances in which he failed to understand the nature and extent of the obligation to supervise the clerk, could constitute professional misconduct on the part of the solicitor. It was also held that the nature and extent of the obligation to supervise will depend upon the particular circumstances in which the solicitor's practice is conducted. Mahoney JA said at 249: "It is not necessary or desirable that the court attempt to formulate in detail the principles on which such obligations rest or the application of them, in general terms, to the practice of law. The kinds of practices now carried on vary considerably and the managerial and other structures within legal practices vary and will, no doubt, vary further to meet the needs of a changing profession. What will be proper in one kind of practice may not be proper in another. It is therefore proper to confine what is said in this case to the responsibilities of a sole practitioner in respect of a non-qualified person who has been given the duty of conducting matters involving the application of the law and requiring the observance of proper standards of conduct." Mahoney JA also said at 250: "What will be required for the discharge of a solicitor's responsibilities in a case such as the present must, even within such confines, be affected by the circumstances of the case. It will, for example, be affected by the solicitor's knowledge on a continuing basis of the competence and integrity of the clerk. It will be affected also by the nature of the transactions taking place or apt to take place within the clerk's scope of activities. But, without seeking to be definitive or exhaustive, it will be of assistance to see as involved in the conduct of a solicitor's practice, inter alia, five things: (1) a knowledge of the law to be applied; (2) the proper application of the law to the individual transactions carried out by the clerk; (3) the efficient and effective processing of those transactions from their commencement to the completion of them; (4) the observance of the statutory and other requirements in respect of the dealing with moneys received into the practice; and (5) the observance of the general obligations of those involved in the conduct of a legal practice, relating to, for example, conflict of interest, the conduct of fiduciaries, and the general ethics and etiquette of lawyers and those associated with them." As is clear from the above passages in the judgment of Mahoney JA the remarks made concerning the scope of the duty of supervision in that case are to be read as applicable to the particular circumstances of the case. Those included the fact that there was a one man practice in which a very senior and experienced clerk had played a prominent part. The activities in which the clerk was involved included the acceptance of money from clients of the firm for the purpose of investment, including investment by way of loans to be secured by mortgages over land. In fact there were several instances in which the loans were inadequately secured and in which there was intermingling of the clerk's personal business affairs with those of clients of the practice. The solicitor was alerted to facts which should lave put him on enquiry, but failed to take any steps. In general, he left the conduct of the relevant matters to the clerk without any appropriate supervision. He took no steps to see that the moneys lent were properly secured. As he explained in relation to one case, he "just assumed in the normal course of business that it would be properly secured. I had no reason to believe otherwise." ... In my opinion, the level of supervision required will vary according to the level of competence and experience of the clerk, but it must remain supervision and not amount to complete delegation. In my view, where a number of clerks are employed there must be a designated solicitor who is responsible for the supervision of their work. There should also be an alternate in the absence of the designated solicitor. The supervising solicitor should settle and sign all the clerk's letters (except perhaps formal letters). He should settle and sign all court documents drafted by the clerk. There should be in place a system by which each file relating to a matter of which the clerk has the conduct is reviewed by the solicitor at appropriate periodic intervals. Where the clerk is involved in proofing witnesses and the discovery and inspection of documents there is a need for the work to be carried out under the direction of and specifically reviewed by the supervising solicitor. So-called "general supervision" which relies on the clerk bringing any difficulty to the attention of the solicitor would not be sufficient. What else may be required may depend upon the particular circumstances. ... In my view, it follows from all the above that where the contentious business is of the kind that falls within s76(1) such work can only be performed by a practitioner. Where the practitioner is assisted in such work, as where a writ of summons incorporating a statement of claim has been drafted by a law clerk, the solicitor will be entitled to charge the fixed fee in the relevant item for that work, provided the work has been done under his control and supervision and he has settled or adopted the work as his own. In such a case it is not necessary and nor is it desirable that any separate charge be made for the work of a law clerk, although the extent to which a law clerk was involved may have an impact on the quantum of the amount allowed to the practitioner on taxation. In respect of work which is not within the scope of the prohibition in s76(1) but which is contentious business within the scope of the overlap in s77(1) of the Act, the exemption in s77(2) has the effect that paid and articled clerks may perform such work. In my opinion, the practitioner will be entitled to be remunerated for the work so done, to the extent that the work is properly supervised and controlled by the practitioner. It is in this general area that the courts have recognised, either expressly or by necessary implication, that practitioners are entitled to be remunerated for work done by clerks employed by them: Hopkinson v Smith, above, Taylor v Glassbrook, above; Ex parte Cotton (1846) 9 Beav 107; 50 ER 283; London Scottish Benefit Society v Chorley, above; Alliance Contracting Co v Russell [1897] 23 VLR 160 at 161 per Hodges J; In re F S Harney (No 2) (1911) 13 WAR 103; Ex parte Maxwell; Re a Bill of Costs (1955) 72 WN (NSW) 333; R v Stafford Stone & Eccleshall Magistrates Court; Ex parte Robinson, above; D'Allessandro & D'Angelo v Burgess, unreported; Sup Ct of WA; Library No 920256; 6 May 1992 (Anderson J); AWA Ltd v Daniels , unreported; Sup Ct of NSW; No 50271/92; 8 October 1991 and 19 April 1993 (Rogers CJ CD); and Foreman v E & L Metcalfe Pty Ltd, unreported; Dist Ct of WA; No 7045 of 1991; 14 February 1994 (Barlow DCJ) at 14. The critical question then becomes how the practitioner can charge for work done by law clerks in relation to contentious business not covered by s76(1) but within s77(1). Counsel for the practitioner and counsel for the Law Society both submitted that in this area it would be proper to allow a reasonable hourly rate to be charged for the clerk's work, appropriate to the experience and standing of the clerk and the nature of the work. Again it was conceded that such a charge could only be made where there was appropriate supervision. Counsel for the SGIC as intervener submitted that even where s77(2) applied to allow the paid clerks to perform the work, that would not entitle the practitioner to charge for the work because the Act only makes provision for legal work performed by certificated practitioners to be charged for. It was contended that Registrar Powell was correct when he concluded that the hourly fee charged by the practitioner for supervision was intended to cover all of his or her overheads, including, office and clerical staff which in turn included his paid or articled clerks. In my opinion, the method of charging is largely dictated by the requirement that only a practitioner can be remunerated for legal work. As has already been seen, where the practitioner settles or adopts the work of his or her clerk the practitioner is entitled to be remunerated for it. In my opinion, the same approach applies here. There could be in the remuneration charged by the practitioner an appropriate allowance made for a clerk. Where the fee is calculated as an hourly rate, it could include a suitable or appropriate hourly rate for the assistance of a clerk as well as the direct charge made by the practitioner in respect of the practitioner's own time spent on supervision. The hourly rate should cover the cost of the employment of the clerk, inclusive of overheads and a reasonable margin for profit. Care would also need to be taken to avoid any "double dipping" in respect of overheads or any other aspect of the charge. In any taxation it would be necessary for the taxing Officer to bear in mind the comments made by Gleeson CJ in New South Wales Crime Commission v Fleming, (1991) 24 NSWLR 116. Although the comments were made with respect to solicitors they would apply equally to law clerks whose work was charged at an hourly rate. In that case a question arose whether an order under the s10 and s17 of the Drug Trafficking (Civil Proceedings) Act 1990 (NSW) approving as reasonable a provision for solicitors costs "for preparation instructing (and) acting" was correct as a matter of principle. The Chief Justice said at 126: "I understand it to have been conceded on this appeal, and in any event it is the case, that a bare order providing for solicitor's costs 'for preparation instructing (and) acting' at an hourly rate of $200, or any other single fixed hourly rate is unsustainable. To take a simple example of the problem involved, according to the terms of the order the hourly rate specified would apply to the time spent by a junior solicitor travelling to and from a gaol to interview a prisoner and obtain instructions, or sitting in a barrister's waiting room waiting for the commencement of a conference. The order pays no regard to the kind of activity involved in "preparation' or 'acting', or the seniority of the particular solicitor doing the work. If, for example, the preparation involved looking up a point of law, a solicitor who knew where to look would be paid less than a solicitor who was less knowledgeable or efficient. An inexperienced solicitor might well charge much more than an experienced solicitor. It is true, as noted earlier, that it would still be open to a taxing officer to treat particular time as having been spent unnecessarily, and therefore not reasonably chargeable to the client, assuming of course that the officer had the requisite information. Even so, to allow a simple, flat, hourly rate as the basis of charging for anything, of whatever character, done by any solicitor of whatever seniority and experience in relation to the matter, is difficult to justify. The subject has recently been considered, in a somewhat different context, by Rogers CJ Comm Div in Singleton v Macquarie Broadcasting Holdings (1991) 24 NSWLR 103." It is important to stress that if a charge were made for the work done by a law clerk the remuneration would remain that of the practitioner. ... by virtue of the exemption contained in s77(2) of the Legal Practitioners' Act in respect of the paid and articled clerks employed by a practitioner and which allows the practitioner to be remunerated for legal work carried out by a practitioner, whether the work is carried out by the practitioner or by his paid or articled clerks on his behalf and under his supervision and control. These provisions do have a tendency, when properly applied, to reduce the costs of litigation, which is clearly in the public interest. It would be ironic if, as it appears to be, on the face of it, in the present case, that the use of law clerks increased the cost of litigation. The work done in the present case appears to have included both legal work and clerical or administrative work, all of which has been charged at the same or similar hourly rates. It is important to ensure that no separate charge if made by a practitioner for work of a purely clerical or administrative character should form part of his or her overheads distinct from purely legal work involved in contentious business. In addition, the system under which any hourly rate is charged needs to be carefully scrutinised. It is always possible that the charges may have been inflated by the practice, which appears to have applied in this case, of dividing each hour into ten units of six minutes and charging for a full unit even if the time required was only a one minute telephone call. If hourly rates are to be allowed on taxation there must be a record of the actual time spent, so that clients are not charged for notional time and that the amounts which they are required to pay inflated as a result. ... My conclusions are as follows. First, legal work or contentious business which falls within s76(1) of the Legal Practitioner's Act may only be performed by a practitioner. The nature of such work is clearly defined and, having regard to s77(1) should be confined to the specific matters stated. Secondly, s76(1) should be construed as being consistent with the long standing practice under which a practitioner's law clerk has been given a right of audience in chambers. Where a law clerk has appeared in accordance with that practice a practitioner is entitled to remuneration in respect of the appearance of the clerk at a rate which reflects the fact that the appearance was by the clerk rather than the practitioner. Thirdly, where the practitioner has been assisted by a law clerk in the carrying out of contentions business not falling within the prohibitions in s76(1) and which falls within s77(1), such as the preparation of a writ of summons with a statement of claim endorsed, the practitioner is entitled to remuneration which would include a charge for the work done by the law clerk under his supervision and control. Where the Scale provides for a fixed fee the practitioner would be entitled to that fee, although the work was partly or wholly carried out by the law clerk, provided the work was done under the supervision and control of the practitioner and provided the practitioner had settled or adopted the document as his or her own. Where the Scale fee incorporated a variable element it would be proper to allow the remuneration of the practitioner to include a suitable charge for work done by a law clerk at a reasonable hourly rate appropriate to the experience and standing of the clerk and the nature of the work involved. Naturally, on taxation the Taxing Officer would be concerned to ensure that the resultant fee was reasonable in the circumstances, given that costs unreasonably or unnecessarily incurred should not be allowed: cf O66 r1(2). The hourly rate for the work of the clerk included in the practitioner's remuneration should cover the cost of the employment of the clerk, inclusive of overheads and a reasonable margin for profit. The hourly rate would be charged in addition to the charge made by the practitioner in respect of his or her own time spent on supervision. The remuneration remains that of the practitioner. Fourthly, the practitioner would not be entitled to include in his remuneration any charge at such an hourly rate for merely clerical, secretarial or administrative work carried out by a law clerk. Such work should not be the subject of any separate charge where carried out by a law clerk any more than it should where performed by a practitioner. All of such work is of a kind which should be reflected in the component for overheads in the professional charges made by the practitioner for contentious business as being legal work properly so-called. Fifthly, work done by a law clerk could not be charged for by a practitioner where the Scale specifically referred to the work being done by solicitor or counsel, or where the Rules of the Supreme Court or any relevant practice direction required the attendance of a practitioner.": D'Alessandro & D'Angelo v Bouloudas (1994) 10 WAR 191; BC9406781.
>> "21 Within the items relating to getting up, there were a number of charges for work carried out by an articled clerk . Some of that work was carried out while the Legal Practitioners Act 1893 (WA) was in force. Because the practitioner was put to strict proof of his bill, he would only have been entitled to charge for that work if he proved that it was carried out under his supervision. 22 The authority for that proposition is contained in the judgment of the Chief Justice in D'Alessandro & D'Angelo v Bouloudas (1994) 10 WAR 191: in particular at 220 under the heading of Conclusions. 23 The taxing officer said, in par 29 of his reasons: When asked to show any evidence of supervision of the clerical work counsel for the practitioner was unable to do so. The fact the time is claimed for work done by a solicitor and a clerk in some instances on the same day and in others within a few days is not evidence of supervision of the clerk by the solicitor nor is it enough of a basis on which to draw any inference about supervision. I accept that articled clerks are in a special category in that they are obliged to be supervised by their principals but I do not accept that an obligation to supervise is evidence that supervision took place nor do I accept that traditional notice of the fact that articled clerks are supervised by their principals arises to prove actual supervision by the principal in this case. Section 124(2) of the Legal Practice Act does not remove the obligation of the principal to supervise the work of an articled clerk but as was submitted by counsel for the party charged 'only removes an articled clear from the prohibition against practice of law whilst an uncertificated legal practitioner. ... 28. That is clearly not the position as the taxing officer saw it: and in my view he did not err in principle. That is to say, I respectfully agree with the taxing officer that s 124(2) does not relieve the practitioner of the obligation to prove that the work carried out by the articled clerk was supervised . I therefore see no error in principle in the way in which the taxing officer dealt with item 12 of the bill.": CHALLEN -v- PAUL O'HALLORAN & ASSOCIATES [2008] WASC 169.
>> See also, Double Bay Law Pty Ltd t/a & Legal v Council of the Law Society of NSW [2013] NSWADT 182, para 53, distinction between charging fees on own account and on firm's account.
Articled clerk, do legal work, other than those things which only a solicitor could do, Western Australia: "The work of solicitors and attorneys had been regulated by statute in England from at least 1729: Plucknett, A Concise History of the Common Law (4th Ed 1948) 215. The many provisions subsequently enacted were consolidated by the Attorneys and Solicitors Act 1843 (6 & 7 Vic c 73). S2 of that Act contained a precursor of s76 of the Legal Practitioners Act which prohibited persons, other than those duly admitted as an attorney or solicitor from suing out any writ or process or commencing, carrying oil, or defending any action, suit or other proceeding in any court, or act in any cause, matter or suit civil or criminal. A person who was not admitted as an attorney or a solicitor who did any of these things was liable to be punished for contempt by the relevant court: s35. The 1843 Act contained detailed provisions concerning clerkship. In order to be admitted as an attorney or solicitor it was necessary to be employed as a clerk under articles for five years of which one year could be spent with a London Agent or a barrister or special pleader: s3 and s6. No attorney or solicitor was entitled to have more than two articled clerks at any one time: s4. Any such clerk was required during the whole time of service under articles to "be actually employed by such attorney or solicitor in the proper business, practice or employment of an attorney and solicitor, save only and except in the cases above mentioned". In other words, articled clerks could do legal work other than those things which only an attorney or solicitor could do as provided in s2 of the Act. Thus they could draft letters, pleadings and other documents and do other work associated with litigious work. ...": D'Alessandro & D'Angelo v Bouloudas (1994) 10 WAR 191; BC9406781.
Role in firm, articled clerk:
> "74. Brennan CJ noted in Propend Finance that it is common in the age of the photocopier and laser printer that multiple copies of a document might come into existence: at 507. In a large organisation, copies of documents being forwarded to lawyers for the purposes of advice might be made widely available to corporate officers with an interest in the questions being put to the lawyers. The reasoning of Franki J in Brambles suggests the courts need to take a reasonably flexible approach when dealing with the reality of how organisations function. As a practical matter, the process of seeking advice is not necessarily a linear one that proceeds from a single officer of the client to a single officer of the law firm. The process of advice seeking might require the input of many people on the client’s side. Many copies and drafts and other internal communications might be generated in the course of what could be a lengthy, almost bureaucratic process. Once the request for advice is received by the lawyer, the process of giving advice might involve input from a great number of lawyers - from the hapless articled clerk who is commissioned to undertake a narrowly defined research task without any sense of the larger issues, to the senior lawyer who has contact with the client and an overview of the file but who mostly orchestrates the work of others. Documents stored on databases might be accessed and copied many, many times in the course of this process. Questions of privilege must be decided with this reality in mind.": Haneef and Australian Federal Police and Anor [2010] AATA 514 .
> "56. The process of giving or receiving legal advice in a government agency can be bureaucratic. Input may be sought from different lawyers of varying degrees of seniority and with different areas of responsibility. Deputy President McCabe (then Senior Member McCabe) discussed the need for “a reasonably flexible approach when dealing with the reality of how agencies function” in Haneef and Australian Federal Police and Anor [2010] AATA 514 (Haneef) at [74]. The Deputy President continued: As a practical matter, the process of seeking advice is not necessarily a linear one that proceeds from a single officer of the client to a single officer of the law firm. The process of advice seeking might require the input of many people on the client’s side. Many copies and drafts and other internal communications might be generated in the course of what could be a lengthy, almost bureaucratic process. Once the request for advice is received by the lawyer, the process of giving advice might involve input from a great number of lawyers – from the hapless articled clerk who is commissioned to undertake a narrowly defined research task without any sense of the larger issues, to the senior lawyer who has contact with the client and an overview of the file but who mostly orchestrates the work of others. Documents stored on databases might be accessed and copied many, many times in the course of this process. Questions of privilege must be decided with this reality in mind.": Shord and Commissioner of Taxation (Freedom of information) [2022] AATA 1536.
> UK trainee solicitor, giving supervised legal advice: "76. In Privilege, fourth edition, in the discussion of Dadourian, at paragraph 1-309 there is the observation: “Of course there will be lawyers employed in private practice and inhouse who will not have a practising certificate, for example a trainee solicitor, and yet their advice, so long as given under the supervision of a solicitors, will attract privilege.”": Trentside Manor Care Ltd and Others v Raphael [2022] EAT 37.
*** Western Australia, Legal Profession Act 2008 (WA) 2008- 1 July 2022, s 12(3): "(2) (2) A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner ... (3) Subsection (2) does not apply to engaging in legal practice of the following kinds — (a) legal practice engaged in under the authority of a law of this jurisdiction or of the Commonwealth; (b) legal practice engaged in by an incorporated legal practice in accordance with Part 7 Division 2; (c) the practice of foreign law by an Australian-registered foreign lawyer in accordance with Part 8; (d) appearing or defending in person in a court; (e) drawing or preparing a transfer under the Transfer of Land Act 1893; (f) a public officer doing legal work in the course of his or her duties; (g) a person doing legal work under the supervision of an Australian legal practitioner, as a paid employee of a law practice or in the course of approved legal training; (h) legal practice of a kind prescribed by the regulations". <https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_45330.pdf/$FILE/Legal%20Profession%20Act%202008%20-%20%5B02-c0-00%5D.pdf?OpenElement>.
> s 37 Interpretation Act 1984 (WA): "General savings on repeal (1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears — ... (b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment; (c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal; (d) affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal;"
> Accrued rights: "[39] ... This concept finds its way into the law, both in the common law and under section 8(c) of the Acts Interpretation Act 1901. The latter provides that "where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not ... affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed". This gives a person affected by the repeal a right to be considered "as if the repealing Act had not been passed". This was discussed in detail in Yao's case where the majority of the Full Court held that "the word "right" does not stand alone. It must have "accrued".": Farr, C'Yan-Ally [2003] MRTA 870.
> *** Legal Professional Uniform Law (NSW); Legal Professional Uniform Law (Vic); Legal Professional Uniform Law (WA) post 1 July 2022: see 'Legal Practice Matrix' (Law Society of New South Wales, June 2023) <https://www.lawsociety.com.au/sites/default/files/2023-06/Law%20Society%20-%20Legal%20Practice%20Matrix_March%202023.pdf>, archived at <https://web.archive.org/web/20250420232408/https://www.lawsociety.com.au/sites/default/files/2023-06/Law%20Society%20-%20Legal%20Practice%20Matrix_March%202023.pdf> -- draft legal correspondence, provide legal advice settled and approved the principal, and draft court documents subject to settling and approval.
> "The Law Society then sets out which types of legal work a specific type of legal practitioner can engage in within the jurisdiction of NSW, depending on their legal qualifications and practising entitlements. In terms of drafting legal correspondence, a law graduate can if approved by a principal, an employee is permitted to, but if that employee is required to be supervised by the principal, that needs to be provided. Legal correspondence can also be actioned by principals, corporate or government practitioners, as can an admitted Australian lawyer without a practising certificate, an Australian-registered foreign lawyer, a consultant or a contractor, as well as a retired lawyer. Certifying documents, witnessing an affidavit and the provision of legal advice can be performed by all aforementioned legal professionals except in terms a law graduate, an admitted Australian lawyer without a current practising certificate or retired lawyers. All practitioners are permitted to engage in drafting court documents, and that includes law graduates. However, law graduates are barred from appearing in directions hearings, which are preliminary hearings that occur pretrial, as well as being prohibited from acting as the lawyer on the record, or the legal professional registered as acting on behalf of a client in a case, and graduates can’t sign a costs bill, which is a receipt that lists the court costs of the prevailing party in a case, of which the losing party has been ordered to pay.": 'Categories of Practising Law in New South Wales: The Legal Practice Matrix' (NSW Courts, 8 April 2024) <https://nswcourts.com.au/articles/categories-of-practising-law-in-new-south-wales-the-legal-practice-matrix/>, archived at <https://web.archive.org/web/20250418132554/https://nswcourts.com.au/articles/categories-of-practising-law-in-new-south-wales-the-legal-practice-matrix/>.
> "graduate solicitor" -- see caution in Shane Budden, 'The graduate – what should you call yourself?' (Proctor, 3 January 2024) <https://www.qlsproctor.com.au/2024/01/the-graduate-what-should-you-call-yourself/>, archived at <https://web.archive.org/web/20250420163551/https://www.qlsproctor.com.au/2024/01/the-graduate-what-should-you-call-yourself/>.
> see also: 'Ethics & Standards Quarterly: dos and don’ts for graduates' (LSJ Online, 24 February 2023) <https://lsj.com.au/articles/ethics-standards-quarterly-dos-and-donts-for-graduates/>.
Graduate: "65. Mr Todd’s evidence in his affidavit was that HWL was a graduate on rotation to the RDR section. Mr Todd also attested that graduates placed in RDR would carry out legal work under the supervision of a lawyer in connection with an RDR dispute (R2/[17]).": Shord and Commissioner of Taxation (Freedom of information) [2022] AATA 1536.
NZ, Role in Firm: "[14] The affidavit sets out a summary of the work carried out by Hesketh Henry between October 2019 and 19 November 2020 as follows: (a) reviewing the statement of claim and several amended statements of claim; (b) drafting various joint memoranda of counsel; (c) drafting an interlocutory application and accompanying affidavit to strike out the plaintiffs’ statement of claim; (d) drafting and filing amended strike out applications; (e) reviewing the plaintiffs’ notices of opposition to the strike out applications; (f) reviewing the plaintiffs’ discovery application; (g) drafting a notice of opposition to the plaintiffs’ discovery application; (h) correspondence with the plaintiffs’ solicitors JC Legal; (i) drafting the applicants’/defendants’ synopsis of submissions; (j) preparing the synopsis bundle; (k) preparation for and attendance at the hearing of the strike out application; and (l) reporting to their clients throughout. ... [18] My calculation of likely scale costs in this case amounts to approximately $19,598.00. This figure is more than two-thirds of the $25,626.35 in costs claimed on behalf of the defendants. This cross-check supports a finding that the costs claimed have been reasonably incurred. [19] Helpfully, the affidavit filed does break down the work completed between the various levels of solicitor. This break down indicates that nearly 60 per cent of the work was completed at the solicitor (one year PQE) or law graduate level. [20] Following the release of my decision, the solicitors for the defendants wrote to the solicitors for the plaintiffs and demanded payment of their costs based on my order awarding costs on an indemnity basis.": Mao v Best Capital Limited [2021] NZHC 2685.
"[36] Further, Ms Fifita’s assessment does not take into account Mr Gill’s prospects of advancement, through the benefit of practical experience, to a position requiring more complex skills. It would be rare for newly acquired academic qualifications to lead directly to employment requiring the graduate to be responsible for tasks involving all the newly acquired knowledge. A graduate first needs experience beginning with an entry-level position in a work environment to which the qualification is broadly applicable. An example is a law graduate starting work at a law firm. The graduate’s duties will initially be very limited, their responsibility small. But their exposure to a range of work, to lawyers with more senior positions, and to clients, will be their pathway to advancement. Ms Fifita’s conclusion that Mr Gill’s duties might, in some respects, be at a more basic level than that at which his qualifications indicate he can operate, should not be used to deny him the visa applied for unless, viewed holistically and looking to the future, there is no upward path into the broad areas studied by Mr Gill.": JPH Investments Ltd v Chief Executive of the Ministry of Business, Innovation and Employment [2018] NZHC 1707.
Research and drafting advice: "16. JR commenced an unpaid work experience position as a law graduate at Lawson Legal in about March 2011. At that time the firm had no office support staff. There were no employed solicitors or other legal staff at the firm. 17. JR remained in the work experience position until about December 2011, when she commenced a full-time position as an employed solicitor at the firm after she was admitted to legal practice. 18. JR ceased employment at the firm in about mid-June 2012. ... 23. At the practitioner's instruction, on about 23 and 24 July 2011, JR researched and drafted a written opinion (First Opinion) addressing, inter alia, the possible charges under Florida law CL would face if he was extradited to the United States.[14] The nature and extent of the practitioner's contribution to the final form of the First Opinion is in issue. 24. On or about 24 July 2011 CL terminated the retainer with the practitioner. ... 29. At the practitioner's instruction, on about 26 and 27 July 2011, JR researched and drafted a written opinion addressing, inter alia, the relevant procedure under the Extradition Act and bail pending extradition (Second Opinion).[18] The nature and extent of the practitioner's contribution to the final form of the Second Opinion is in issue. ... 35. At the practitioner's instruction, and in the absence of any time records of the practitioner's and JR's work for the legal services, on 4 and 5 August 2011, JR prepared, based on her best recollection and a review of relevant documents on her computer, a schedule of the work undertaken on the matter by her alone and by her in company with the practitioner (Timesheet), which she then emailed to the practitioner on 5 August 2011.[22] ... 62. We also find that the practitioner lied in his evidence at the end of the passage of cross-examination set out at [53] above, where he said that he did the work described in the final bullet point under 'Detail' for 20 July 2011 in the itemised accounts ('Compile Opinion' in the First Itemised Account and 'Compile above research and construct opinion' in the Second Itemised Account). For the reasons given earlier, we accept JR's evidence that she compiled the First Opinion / compiled her research and constructed the First Opinion. Indeed, as we said earlier, it is agreed between the parties in their closing submissions – and we found at [20] above – that, at the practitioner's instruction, on about 23 and 24 July 2011, JR 'researched and drafted' the First Opinion.[84] Drafting the First Opinion involved 'compiling' it or 'compiling' (JR's) research and 'constructing' it.[85] : LPCC and Lawson [2021] WASAT 152.
NZ, delegated work to obtain charging orders, supervised legal practice, research and preparation of responses to Court: "[37] At some stage, Mr DW employed a law clerk, Mr FU.20 Mr DW delegated the work to obtain a charging order over the property to Mr FU. Mr DW maintained a supervisory role in respect of the work undertaken by Mr FU and remained involved personally where necessary.21 [38] Delegation of work to an employed clerk, supervised by a principal of a law firm, is a common and logical use of the clerk’s expertise. It is not indicative of a “loss of interest” in a matter, as described by Ms CX. [39] Mr EV had entered into a relationship property agreement with his wife on 10 June 2016 which needed to be addressed before the charging order could be obtained.22 [40] The charging order was granted by the Court on [date redacted]. ... [42] The next step, was to obtain an order for sale of the property. This necessitated removal of the charging order into the High Court. Mr DW himself reported to Ms CX.23 [43] Mr FU liaised closely with the case officer at the High Court but it was not until a sale order had been obtained that court staff formed the view that a sale order could not issue at the same time as the attachment order was in place. Mr FU objected to this decision in a comprehensive email to the Court.24 There is no direct indication that Mr DW was involved in compiling this response, but it is likely that his input was required. [44] It was a logical use of the firm’s resources to have Mr FU attend to the research and preparation of the response to the Court. This is a task which a law clerk (a law graduate ) is well suited to attending to. This left Mr DW free to attend to matters that required his presence in court, or other matters which required his personal attention. ...": CX v DW [2021] NZLCRO 112 <https://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZLCRO/2021/112.html>.
Canada, articling student (?law graduate), articles of clerkship: "2. The circumstances of the articling law student are unique. As has been pointed out in the decision of the majority, the articling law student is a graduate of an accredited Canadian law school who has been given student membership status under section 28(d) of The Law Society Act. He is entitled to exercise his legal competence in a specified range of circumstances — as set forth in the notice to the profession dated June 22, 1971. A student may represent clients under the general supervision and control of the principal and his services may be billed for under the Legal Aid Act. There is no doubt that the articling student can "practise" within these parameters and can act on behalf of clients under the general guidance and supervision of the principal. It is not the kind of supervision normally found in an industrial environment, nor should it be. In fact, it more closely resembles the kind of supervision that might be given a junior lawyer who recently became associated with a large established firm. There too, a junior solicitor will usually be acting on behalf of firm clients rather than his own — at least in the initial stages of his practice. Therefore, while I recognize that the definition of entitled to practise with all rights and privileges would describe the practise of a solicitor, it does not persuade me that an articling student is not entitled to practise his professional skills as those terms are used within The Labour Relations Act. 3. There is no doubt that the situation of the articling student involves both employment and educational aspects. He undergoes a period of "on the job training" as part of an established educational program and thus occupies a middle position in the transition from student to full professional status. Nevertheless, both he and his principal are engaged in serving the needs of clients and it is unlikely that a client would expect his relationship or contact with an articling student to be different from the relationship which he has with the principal or another member of the firm who is a fully qualified lawyer. One would expect the same application of professional skills to the legal problem, the same assumption of professional responsibilities, and the same solicitor-client privilege (which as a matter of law appears to apply to a client's relationship with an articling student). The client is entitled to expect the same professional and ethical standards as would apply to a barrister and solicitor, and within the range of areas in which a student is entitled to practise, the client is entitled to a reasonable standard of professional competence. In this sense, the student members of the profession are both entitled to practise law, and employed in a professional capacity; and, accordingly, they do not fall within the scope of the exclusion set out in section 1(3)(a) of The Labour Relations Act. 4. The majority has examined the statutory framework governing the legal profession and has correctly concluded that articling students do not enjoy full membership status, nor are they entitled to practise as a barrister or solicitor until their training is completed and they have been formally "called" to the Bar and enrolled as a solicitor of the Supreme Court of Ontario. While I agree with this conclusion, I do not agree that it disposes of the question before us. I would ascribe a broader meaning to section l(3)(a) than the narrow technical definition preferred by the majority. Webster's Seventh New Collegiate Dictionary defines professional in part as' being "characterized by or conforming to the technical or ethical standards of a profession". The American Heritage Dictionary definition refers to "one who has an assured competence in a particular field or occupation". As I have already indicated, the general perception of the client is that the articling student is associated with his principal in the practise of law and engaged in a professional capacity in respect of those tasks which he is allowed to perform. 5. In reaching its conclusion, the majority has relied almost exclusively on criteria derived from the statutory framework governing the profession. In my view this approach is too narrow and ignores the unusual character of the employment relationship of articling students. Articling students are normally employed for a maximum period of twelve months and will never be employed again in that capacity. Moreover, their concerns are quite different from those of legal secretaries, title searchers, law clerks, etc. even where their job functions may on occasion be similar to these "paralegal personnel". Because of the short tenure of the students' employment and their special relationship with their principal, they have a different community of interest from that of other employees; yet, at the same time, it is difficult to envisage them participating in any collective bargaining unit when the entire membership of that unit would turn over every twelve months. These obvious structural impediments to the creation of a collective bargaining relationship reinforce my view as to the intended scope of section 1(3)(a) of the Act. 6. In summary, therefore, I would find that articling students-at-law are members of the legal profession as broadly defined; are entitled to practise in Ontario and in that practice are employed in a professional capacity, and subject to the ethical and professional standards of all members of the profession. Accordingly, I would find that they are intended to be excluded from the Act by virtue of section 1(3)(a).": Association of Commercial and Technical Employees, Local 1704 v. Parkdale Community Legal Services, 1977 CanLII 997 (ON LRB); [1977] OLRB Rep Oct 661 <https://www.canlii.org/en/on/onlrb/doc/1977/1977canlii997/1977canlii997.html> (R Redford).
Canada, articling student, role in firm: "[37] The type of work an articled student at HS&C was expected to do was reasonably consistent from the time Mr. Murphy was a student through Mr. Gichuru’s time at the firm and thereafter, and was essentially as Mr. Smith had discussed with Mr. Gichuru on January 24. On the criminal side, there were dates to be fixed and other attendances in Provincial Courts in the lower Mainland and Fraser Valley, as well as providing support generally to Mr. Smith when and where he needed it. This could include anything from quickly researching a point of law during a break in a hearing, to being available to meet with a client or potential client at odd hours of the day or night. On the civil side, there were medical and clinical records and reports to read and interpret for personal injury files. Mr. Murphy, for example, described this as a significant part of that side of the practice. The articled student was also expected to do legal research and to have carriage of some small claims court files. The articled student also did all of the court filings at the New Westminster Registry. ... [48] According to Mr. Murphy and Ms. Barkwell-Blake, after Mr. Gichuru started his articles, Mr. Smith asked each of them to give Mr. Gichuru work. Mr. Smith confirmed this in his evidence. In a firm with two lawyers working full-time, and one part-time, a single articled student should expect to receive and do work for everyone, and the fact that Mr. Smith asked his associates to give work to Mr. Gichuru is unremarkable and entirely predictable. Being given work is an opportunity for the student to gain experience. According to Mr. Murphy and Ms. Barkwell-Blake, each of them gave Mr. Gichuru work to do, at least at the beginning. [49] As Mr. Murphy explained, a significant part of the personal injury practice was reading and interpreting medical and clinical records, and articled students were expected to assist in this work as an aspect of making the files profitable. ... [164] Mr. Gichuru was hired to work at HS&C as an articled student. He was not hired in some other capacity, although Mr. Smith agreed that Mr. Gichuru could begin work in February 2002, even though Mr. Gichuru’s application for admission to the articling program had not yet been approved. Both sides refer to the Articles Agreement and the employment agreement as separate agreements, and they are. However, Mr. Gichuru’s obligations as an articled student overlap his obligations as an employee. Whatever work he was doing as an articled student, he was also doing as an employee of the firm. For example, as an articled student, Mr. Gichuru was obligated “to observe strictly all confidences of the principal or of others in the principal’s firm.” He owed the same obligation in his capacity as an employee in HS&C. This is a necessary aspect of accepting a position in a law firm. As an articled student, Mr. Gichuru was obligated to accept assignments, direction and supervision from Mr. Smith. When Mr. Smith decided that he wanted Mr. Gichuru to do work for other lawyers in the office, Mr. Gichuru was obliged to accept and do those assignments, in addition to whatever he was doing specifically for Mr. Smith. Mr. Gichuru’s obligations as an employee were the same. ...": Gichuru v Smith, 2013 BCSC 895 (CanLII) <https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc895/2013bcsc895.html>.
Canada, doing legal research: "[22] In his decision, the Assessment Officer recognized that “research” was not specifically listed in the 2017 Retainer Agreement as a task that would be delegated to an articling student, however, it was historically an item one would expect a student to be doing for a firm. It would be difficult to hold this as a finding of fact that is clearly in error. I note research would properly fall under the “other similar task” category with which the articling student could be tasked. Further, “research” was not listed in the 2017 Retainer Agreement as type of work that the lawyers would provide, which was particularized as interviews, telephone calls, receipt and preparation of correspondence and documents, court appearances, negotiations or meetings, or any other necessary services performed on behalf of the client.": Leia v Styles, 2023 ABKB 213 <https://www.canlii.org/en/ab/abkb/doc/2023/2023abkb213/2023abkb213.html>.
articling student, Canada, provide supervised legal advice: "[67] I do not accept Crown counsel’s submission. Although the analysis in each case will depend on the facts, I am satisfied that the position of an articled student is not analogous to that of a foreign lawyer. Foreign lawyers are unfamiliar with Canadian law and thus unable to advise clients with respect to its content. The same cannot be said of articled students. [68] In my view, an articling student will generally be able to provide legal advice for purposes of s. 10(b) of the Charter. This is so because an articling student acts under the direction and supervision of his or her principal in providing advice to a detained client. The student’s principal meets the definition of “counsel” in s. 2 of the Criminal Code. In many cases, the two operate together as a fully qualified Canadian legal team.": R v Bhandher, 2010 BCSC 1239 <https://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc1239/2010bcsc1239.html>.
articling student, work under supervision, taxation of costs, Canada: "17 The next issue was secretarial time. The amount actually billed by the law firm to the client for secretarial time of $28 which is very minor, however, it does raise the issue of whether same is recoverable under the Legal Profession Act. It may well be that the law firm and Hoy have a contract for the provision of non-legal services upon which the law firm can sue for payment. However, the Legal Profession Act is a summary proceeding by which lawyers, and those who are permitted to do legal work under their direction, i.e. articled students only, can obtain a speedy determination of fees owed. The case on point is La Liberte v. Warren, a decision of Registrar Tweedale, as he then was, Vancouver Registry No. J850076, July 8, 1985. Registrar Tweedale held: " Process of taxation pursuant to the Act calls for determination of the reasonableness of the lawyer's bill to his client for certain legal work. The legal work is carried out by a lawyer or articled student who is entitled to do certain work under the lawyer's supervision. In order to determine the reasonableness of the lawyer's bill, all factors essential to justice and fairplay must be taken into account. Those factors, commonly called the Yule principles do not extend and cannot apply to work carried out by someone other than a lawyer or articled student. If the taxation process is to be extended to include secretary/legal assistant work, then the legislature must clearly provide for this by an amendment to the Act."": McKitrick v. Hoy, 1995 CanLII 1506 (BC SC) <https://www.canlii.org/en/bc/bcsc/doc/1995/1995canlii1506/1995canlii1506.html>.
Canada, articled clerks: "55 Certain conclusions may be drawn from the above sections of the Legal Profession Act; 1) an articled clerk is not deemed to be a solicitor or barrister, and 2) an articled clerk is not an agent for his or her principal or his or her principal's clients; i.e., an articled clerk is permitted to perform some of the functions of a barrister or solicitor but only when those functions are performed under the direction and supervision of a barrister or solicitor in good standing. In contrast an agent is one who is authorized by another to act for him and one who is entrusted with another's business.": Wawanesa Mutual Insurance Co. v. Mann, [2001] P.E.I.J. No. 67; 2001 PESCTD 59. Lexis. DesRoches J.
legal work v administrative work, Canada: "[25] Last, I consider the 31.7 hours spent by a non-lawyer, referred to in the bill of costs as a “clerk”. Is it reasonable to require that fees for non-lawyer employees, other than articling students, be paid by an opposing party? [26] It is important to distinguish between two types of tasks that non-lawyer employees of a law firm typically carry out. The two types of tasks are “law-related tasks” and “administrative tasks”: Fettes v. Wojcik, 2017 ONCJ 13, at para. 43 and footnote 6; MacKenzie v. 1785863 Ontario Ltd., 2018 ONSC 4992, at paras. 23-24; and W. v. F., 2024 ONSC 2170, at para. 27. [27] Regardless of the scale upon which costs are payable, a party ordered to pay costs is not obliged to pay fees for work done by a law clerk, which is effectively administrative work that an assistant is capable of performing: Mackenzie, at para. 24.“: Obita v. Algonquin College, 2025 ONSC 1980 <https://www.canlii.org/en/on/onsc/doc/2025/2025onsc1980/2025onsc1980.html>.
cf UK, Pupillage: "24. The defendants' argument on consideration is, we think, much stronger, for while chambers undertake to provide a closely prescribed curriculum of education and training the pupil no longer pays any fee and does not in our view undertake to do anything beyond that which is conducive to his or her education and training. In working on the pupil master's papers (making factual summaries, or drafting chronologies, or writing advices or preparing pleadings) the pupil will be seeking to acquire, under the tutelage of the pupil master, the skills of a professional adviser, pleader and advocate, even though the pupil-master will often benefit from the pupil's work and from discussion with him. If the pupil carries out legal research or keeps a note in court, he is again learning and applying professional skills necessary for practice. If the pupil produces any work of real value, whether to the pupil master or any other member of the Bar, the beneficiary is under a professional duty to remunerate the pupil. While any pupil of ordinary common sense would, if asked, carry out mundane tasks (such as photocopying authorities or making a cup of tea) which do not in any way promote his professional development there is in our view no obligation or duty on the pupil to do anything for the pupil-master which is not conducive to his own professional development.": Edmonds v Lawson [2000] All ER (D) 312; [2000] EWCA Civ 69.
cf pupillage in Malaysia: "Purpose of pupillage [35] The Malaysian Bar through its Practical Guide to Pupillage and Admission as an Advocates & Solicitor in Malaysia states that the objective of the pupillage is to allow the pupil to gain some acquaintance with the work of an advocate and solicitor before commencing practice. [36] This is because law graduates only acquired basic knowledge of substantive and adjectival law while a competent advocate and solicitor has a practical working knowledge of those parts of the law particularly in searching for information in order to answer questions posed by the clients. The substantial part of an advocate and solicitor also involves the drafting and advocacy skills which requires the full and exact knowledge of the law. [37] Though the pupillage period is insufficient to cover all the skills, however, this period can allow a pupil to acquire some experience of the law in action, the relationship between the advocate and solicitor and his client as well as the relationship with other advocates and solicitors. [38] The purpose of pupillage can also be seen in the case of Edmonds (Claimant) v. Lawson QC and others (Defendants) [2000] IRLR 18 - High Court, Queen’s Bench Division (Edmonds) where it was held that: “The purpose of pupillage is training. It is for a fixed term, the pupil master is required to teach his pupil, and successful completion of pupillage entitles the pupil to a full practising certificate.” ...": Re Mohd Mustaqim bin Muradi [2023] MLJU 3202.
Hong Kong - handling conveyances: "23. Frank Chu is a solicitor who was admitted to practise on 15 November 1997.At the material time he was working as a trainee solicitor with Messrs. Peter C. Wong, Chow & Chow. On 25 November 1997 he had completed his training contract but was waiting to get admitted. 24. He gave evidence that as of 25 October1997 he had handled about 200 conveyancing transactions as a trainee solicitor for his firm. His principal was Ms Anna Chow, the senior partner of the firm which had mainly a conveyancing and commercial practice. He gave evidence that the San Po Kong Plaza wherethe property was situated was a newly developed building and that the property was just one unit of about 300 units that his firm was handling at the time. His firm was one of the solicitors firms representing the property developer. As there were a large numberof transactions that his firm was involved in he said that it was impossible for him to remember the particular transaction concerning the property and the Guarantee. His firm was handling about 300 units in the San Po Kong Plaza.": Nan Fung Finance Ltd v Chan Chun Huen & Ors [2004] HKCU 1264.
Hong Kong, trainee solicitor, handling court actions under supervision: "[6] ... The first respondent’s firm took over the action on 12 May 1995, the first respondent being the partner in charge of the action. The second respondent joined the first respondent’s firm as a trainee solicitor in July 1995 and was assigned to handle this action under the supervision of the first respondent. The second respondent was admitted as a solicitor in August 1997. ... 13. The Tribunal’s approach appeared to be that those statements were insufficient inasmuch as they did not categorically state that the second defendant had no discretion in the conduct of the matter and that that fact had to be elicited by the Chairman of the Tribunal in oral examination. In my view, the Tribunal’s reasoning is unsustainable. In ordinary language, to supervise someone is to oversee and/or direct and/or exercise control over the actions or work of that person. It is implicit that the supervisor would bear overall responsibility; it is incumbent on him to ensure that the person under his supervision executes or performs the work or tasks properly. When it is borne in mind that during the period of 31/2 years from July 1995 to October 1998 in question, for the first two years, ie from July 1995 to August 1997, the second respondent was but a trainee solicitor and for the year or so following, a freshly qualified solicitor, the notion that he would be at liberty to exercise his discretion in the conduct of the matter is, frankly, absurd. Moreover, the Law Society plainly had the means at its disposal to ascertain the status of the second respondent from inception had it wished to do so. In my view, for all these reasons, the final costs order so far as it concerned the costs of the second respondent cannot stand and must be set aside.": Solicitors A and B v Law Society of Hong Kong [2005] 2 HKC 573.
Hong Kong, trainee solicitor, litigation matters and IPO: "[11] The plaintiff was employed by the defendant, a firm of solicitors in Hong Kong, as a trainee solicitor for about eight months in 2016. In this action, the plaintiff contends that the defendant committed various breaches of the employment contract and are also liable to her for various wrongful conduct in the course of her employment and for some time afterwards. ... [20] As part of the background information, during her employment with the defendant, the plaintiff mainly worked with, and under the supervision of two solicitors, Mr Alan Woo and Mr Charles Sin. She worked on litigation matters and IPO projects.": Au Kar Man v Woo Kwok Yin T/A K Y Woo & Co & Anor [2018] HKCU 3753.
Hong Kong, trainee solicitor, litigation: "[4] In November 1995, the second respondent joined the firm as a trainee solicitor and handled the litigation as an assistant to and under the supervision of his principal, the first respondent. After his admission as a solicitor on 20 December 1997, the second respondent was employed as an assistant solicitor in the firm. The second respondent’s involvement in the litigation was for the period from November 1995 to April 1998.": The Law Society of Hong Kong v A Solicitor [2009] HKCU 244.
UK trainee solicitor, provision of legal services under supervision: "[60] Where the conduct of any part of a case is lawfully entrusted to an unqualified person (such as a trainee solicitor) employed in the solicitors office fees for the work done are recoverable under a legal aid certificate. Entrusting the conduct of any part of the case to such a person is ordinarily a matter for the professional judgment of the solicitors concerned subject to the actual orimplied consent of the client. Where the employee is qualified to perform the task, capable of performing it and supervised in its execution the solicitor does not cease to represent the client by virtue of such delegation. On this analysis the Applicant at all material times acted for a person receiving legal aid within the meaning of art 13(1) [see para 18 above] and was therefore entitled to be paid for so acting out of the legal aid fund notwithstanding that Ms Muldoon was entrusted to conduct part of the case – including representation before the Tribunal. ... [62] The degree of supervision required will be fact and case specific depending inter alia on the particular skills and the experience of the employee. Ultimately that is a matter for the professional judgment of the solicitor concerned who remains professionally responsible for the conduct of the case. It is common knowledge that there are many unqualified staff who do a range of tasks of varying degrees of importance and complexity under the supervision of a solicitor. It is not disputed that such work is ordinarily remunerable and recoverable by the solicitor under a legal aid certificate. Representation in the courts is not delegable because as unqualified staff trainee solicitors have no rights of audience. In the context of this case where Ms Muldoon was a qualified person within the meaning of the 1999 Act to provide immigration advice and services including representation before the Tribunal I see no reason why delegation should not extend to provide that service provided the client was aware the person was a trainee solicitor, agreed to that delegation and was aware of his right to insist on a qualified solicitor. There are of course professional risks which may be assumed by adopting that course in the event that something goes wrong. On the other hand suppose a trainee solicitor has specific expertise in the complex field that is immigration law and practice (perhaps equal to or even surpassing that of the solicitor). Why should the solicitor be prevented in the interests of his client and in the discharge of his professional judgment from utilising such a resource? A solicitor with a paying client could make such an arrangement under the existing caselaw. Why should a legally aided client be denied a similar advantage, especially when the plain intention of the 1981 Order [see art 15A set out at para 21 above] was that the fact that “the services of . . . solicitor are given by way of legal aid does not affect the relationship between or rights of counsel, solicitor and client or any privilege arising out of such a relationship”.": Re Drinan [2012] NIQB 76.
> on appeal: "[34] There was no dispute between the parties that in respect of the work carried out in the office Ms Muldoon was at all material times under the supervision of the Respondent and we are prepared to accept that delegation of that work in those circumstances was permissible. There is, however, no evidence of any direct supervision of the conduct of the hearing. Ms Muldoon conducted the hearing entirely on her own. The client did not receive representation by a solicitor but rather was represented by a non-legally qualified person. Payment for such services does not fall within the legal aid scheme.": Re Drinan's Application for Judicial Review [2014] NICA 7.
> See also, "... It is, of course, very difficult for an inexperienced trainee solicitor to take over an active caseload with almost no supervision. ...": Daley v Solomon trading as Livingstone Solomon [1995] Lexis Citation 4649 (CA).
Drafting at the direction of higher-ups: "15. Ben Hamilton, who gave evidence, confirmed that he had prepared both the letter and the proposed deed. He had prepared both from Hall & Wilcox’s precedents. He was an articled clerk at the time. He was unable to say who had asked him to prepare these documents or from whom he had obtained the information needed to do so, but assumed that, because he was an articled clerk at the time, he had received the instructions and the information from somebody else above him in the hierarchy at Hall & Wilcox.": Re Cleeve Group Pty Ltd [2022] VSC 342.
drafting pleadings, subject to settling: "[46] Mr Scott was not involved in arranging any of these commercial lending transactions. However, he was involved in reviewing a loan agreement, and in settling pleadings in respect of recovery of a commercial loan advanced by Eastloch to Juhasz. The draft pleading had been prepared by Cian Horner, an articled clerk. Mr Scott was his master. Mr Horner recalled he had been requested to draft documents in respect of the Juhasz file. He gave those documents to Mr Scott for review. Mr Scott reviewed the documents “carefully”.9 Mr Scott’s process was to ask questions and look at the file independently. Mr Scott never read the file “cover to cover” in Mr Horner’s presence.10 ... [50] Mr Scott accepted he had been requested to review a loan agreement involving Eastloch. He did not recall the circumstances. Mr Scott also accepted that on one occasion he had settled a proposed pleading in respect of one lending transaction involving Eastloch. Mr Scott did not recall reviewing the entire file, and considered it unlikely he did so, as it would not have been necessary in order to settle the pleading. He would have discussed the contents of the file with Mr Horner, so as to satisfy himself that the pleading was true and correct. ... [55] In Mr Dawson’s opinion, when Mr Scott was asked to review the loan agreement in Juhasz, he ought to have been placed on alert as to the need for further information. Similarly, when Mr Scott was asked to settle the pleadings in the Juhasz matter, he would have been required to look at the file closely, as the pleadings had been settled by an articled clerk. Mr Dawson accepted it may not be necessary for a partner to physically go through the file. It may be sufficient for the partner to have the file and to ask questions of the person who had drafted the initial documentation. However, if a non-legal person had prepared the legal document, there would be a higher level of care required in the settling of that documentation.": IPG Finance Aust P/L and Ors v Crouch and Lyndon and Anor [2012] QSC 312.
Inspection and discovery, delegated by: Clear Communications Ltd v Telecom Corporation of New Zealand HC Auckland CL51/96 [1999] NZHC 1217.
Representation in FWC: Hayes v Murdoch University [2017] FWC 2174, [2].
providing supervised legal advice: "[68] ... [19] As is supported by the authorities and texts to which I have referred, the privilege does extend to a situation where a non-qualified person, such as an articled clerk, is giving advice subject to the supervision of a practitioner. Such cases do not assist the appellant here. It may well be that if a lawyer had been struck off the roll of practitioners, and the client reasonably believed he was dealing with a practitioner, the privilege would attach. (cf Calley v Richards [1854] EngR 734; (1854) 19 Beav 401 , 52 ER 406.)": Re PHILIP MORRIS LIMITED and PRIME MINISTER [2011] AATA 556.
ABS: "260. In his first report dated 2 April 2013 Mr Beaumont noted that the plaintiff had completed a Bachelor of Laws with one Distinction in the Law of Contract II, five Credits, eight Pass grades and two Fail grades. He also completed a Bachelor of Arts where he achieved one High Distinction, one Distinction, two Credits and a pass grade. He withdrew from two subjects prior to completing them resulting in Fail grades. Referring to the 2009 Australian Bureau of Statistics publication, Legal Services Australia, he noted that at the time this publication was prepared there were 99,696 people “engaged in providing legal services” in Australia, of whom 85% worked in private organisations. Of the 84,921 who worked in legal practices, 34,587 were practising solicitors, 687 were patent attorneys and 14,100 were employed as law graduates or paralegals. The report identified 4514 people working in “government solicitor and public prosecutor” organisations, with 2455 of those being practising barristers and solicitors. Mr Beaumont stated that the presence of the Commonwealth Government in the ACT creates a unique employment market for lawyers in Canberra. Whilst the private sector accounts for 85% of firms nationally, in Canberra approximately 76% of employment opportunities are in the public sector. By reference to a number of reports, which I shall not refer to here, Mr Beaumont estimated that the number of government lawyers probably lies between 2300 and 5300 depending upon one’s definition of “legal services”. On the other hand, by reference to the number of practising certificates issued by the ACT Law Society in 2011, he was able to say that there were some 1518 lawyers practising in the ACT at that time.": Ackland v Stewart, Vickery and Stewart [2014] ACTSC 18.
Review of degree-qualified professional classifications [2025] FWCFB 156 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWCFB/2025/156.html>: "... MA000116 Legal Services Award 2020 Level 5 — Law Graduate [clause A.6.1]."
Modern award: "[42] In effect the Applicants argument was that the approach of the respective AIRC and FWA Full Benches has been to draw the line for the purposes of modern award coverage, not at the level of skill and experience of a lawyer, but whether they have been admitted to practice or not. 47 In response the Respondent argues that the AIRC and FWA through the award modernisation process drew the line in terms of regulation of the legal profession at law graduates because they are paid at a level similar to clerks and it was determined warranted award protection. 48": Oliver v Queensland Rail Limited [2013] FWC 2583 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2013/2583.html>.
Award:
> "25. However, the determination of the appropriate classification under the Award, given the unique circumstances, was not immediately apparent. In my substantive decision I described the classification structure of the Award thus at [36]: “In context, it can be said that the classification structure of the Award contemplates, on the one hand, a clerical and administrative stream for employees employed by employers. In this stream progression is provided from Level 1 to Level 5. The structure also caters for Law graduates who are undertaking, what has hitherto been known as clerkship, but described in this Award as training for the purpose of admission into practice. The Law Graduate is classified as Level 5 but receives a higher rate of pay than Level 5 - Legal, Clerical and Administrative employee. The highest rate of pay under the Award paid to a classification is Level 6 – Law Clerk.”": Finberg v Efron [2016] FCCA 1184.
> "35. Clause 3 – Definitions and Interpretation of the Award, at 3.1 contains the following relevant definitions: law clerk means a clerk who is engaged for the major part of their time in interviewing clients, preparing documents and general work assisting a barrister or solicitor in their practice, but will not include account clerks, law graduates , titles office clerks, receptionists and employees principally engaged in word processing, computer use, filing, machine operation, switchboard, delivery of documents or duties of a routine nature law graduate means a lawyer not admitted to practice but who is undertaking a period of training within a law firm with the view to being admitted to practice legal clerical and administrative employee means an employee in the clerical and administrative stream legal services industry means employers engaged in the business of providing legal and legal support services. 36. In context, it can be said that the classification structure of the Award contemplates, on the one hand, a clerical and administrative stream for employees employed by employers. In this stream progression is provided from Level 1 to Level 5. The structure also caters for Law graduates who are undertaking, what has hitherto been known as clerkship, but described in this Award as training for the purpose of admission into practice. The Law Graduate is classified as Level 5 but receives a higher rate of pay than Level 5 - Legal, Clerical and Administrative employee. The highest rate of pay under the Award paid to a classification is Level 6 – Law Clerk. ... B.6 Level 5— Law graduate B.6.1 Characteristics This position requires the completion of a course of study which is recognised as an academic qualification for admission and a formal offer by the employer to the law graduate , the acceptance of that offer and registration and approval of all documentation required by the relevant governing bodies.": Finberg v Efron [2015] FCCA 2470.
Representation in Tribunals in certain circumstances: "47. The authorised person category under s.15(1)(b) of the TA Act is therefore exclusive of a person in the legal practitioner category. However, as is evident from the Explanatory Memorandum,[83] a person who is legally qualified, but does not fall within the legal practitioner category, can be authorised by the Deputy Commissioner by instrument in writing to appear. Examples of such a person might include a foreign lawyer not yet admitted in a State or Territory, or a law graduate who has chosen not to be admitted.": Deputy Commissioner of Taxation v Debaugy [2012] FMCA 451 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FMCA/2012/451.html>.
Representation in FWC as paid agent: Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2022] FWC 1449 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2022/1449.html>.
undertake paralegal duties: "82. Ms J is a law graduate and is engaged by the wife’s solicitors from time to time to undertake paralegal duties. She, too, was in attendance at the Dandenong Registry with the wife’s solicitor on 25 January 2007 for a Court event. The husband and the son were pointed out to Ms J and she set out her observations thereafter.": Sladin & Scabel (No 2) [2007] FamCA 1079.
Appearance in Magistrates Court, WA: "55. The person assisting the appellant was a law graduate and was not admitted. It follows she could not have had a practising certificate. She was therefore not a legal practitioner. Consequently, there is no basis for the appellant's assertion that the respondent was 'represented' by a legal practitioner. 56. A law graduate could only appear as an agent who was not a legal practitioner with the leave of the court (to be exercised having regard to s 30(6) - s 30(8) of the MCCP Act). The learned magistrate granted leave for the law graduate to be present but did not grant leave for her to advocate on behalf of the respondent. It follows that she was not given leave to represent the respondent and there could be no contravention of s 30. 57. I observe that it would have been open to the learned magistrate to grant leave to the law graduate to represent the respondent, but in fact he did not do so.": HOLLIS -v- PITT [2022] WADC 38.
Discovery: "171. As to giving discovery, Mr Johnson estimated that DDH would produce about 60,000 documents of which about 20,000 would need to be reviewed by lawyers at JWS. Mr Johnson said that, to the extent possible, the review function would be undertaken by Law Graduates . However, more senior lawyers would be involved in managing the review process and undertaking discovery-related tasks such as managing the database, reviewing significant documents, and preparing the discovery list and verifying affidavit. 172. Mr Johnson made clear that, in providing his estimate for this work stream, he has taken into account DDH’s prior involvement in the ASIC investigation, and its compliance with ASIC’s requests for documentation which, he said, has achieved efficiencies in the discovery process. He also said, however, that substantial work was and is still required in order for DDH to comply with its discovery obligations. This is because a number of categories of documents required to be discovered are broader in scope than ASIC’s requests for documents in the course of the investigation. Mr Johnson said that searches have revealed approximately 18,000 newly-identified documents that are relevant to discovery. He also made clear that the team within JWS responsible for reviewing discovery documents, the documents produced under subpoena by ASIC, and the documents to be produced by SFP’s liquidators, does not have a pre-existing background in this matter. Mr Johnson said that, apart from some limited involvement by him, DDH was principally advised during the ASIC investigation by a Brisbane-based partner at JWS who has now left the firm. 173. As to reviewing the documents produced by ASIC, Mr Johnson said that Law Graduates have conducted a targeted review for the purpose of assembling the documents into bundles according to issues. He said that a more general review will need to be done, most likely by the Law Graduates because of their familiarity with this material. The documents include transcripts of interviews and examinations conducted by ASIC, which will need to be summarised for the purpose of making their contents more readily available to counsel.": Petersen Superannuation Fund Pty Ltd v Bank of Queensland Limited [2017] FCA 699.
Having carriage of certain matters: "22 Mr Malcolm Johns received the fax. He drew it to the attention of Ms Stacey Pell, a law graduate (although not yet a solicitor), she having the carriage of the matter. Mr Johns had already discussed the matter with Ms Pell before 10.00 am. He told her that she should provide the particulars. Ms Pell assured Mr Johns that a draft was in fact in progress.": Symonds v Vass and Ors [2003] NSWSC 170.
Entrusted with litigious business, supervised: "53 I cannot emphasise too strongly that the Court relies for the efficient conduct of its business on the professional competence of legal practitioners. It is essential that articled clerks who are entrusted with litigious business should be supervised in a proper manner. The Judges and Masters of this Court should not be expected to enquire into matters which appear to have been conducted regularly to ensure that is in fact the case. The Court is entitled to assume also that legal practitioners will observe the proper courtesies in their dealings with each other.": Daws v Duncan [2001] WASC 161.
Representation in VCAT: "22. I was informed that Mr Olley was a law graduate who was yet to be admitted to practice, which meant that he was not a legal practitioner. I was also unclear as to whether Mr Olley was appearing on behalf of both respondents or just Honda Australia.23. After drawing the parties’ attention to s 62 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’), and the definition of who may be a ‘professional advocate’ under that section, and upon giving the parties a short adjournment to consider the matters I raised, Mr Olley: (a) indicated that he had instructions to act for both respondents; (b) sought leave to represent both respondents; and (c) confirmed that Northern Honda wholly adopted Honda Australia’s position. 24. As Mr Singh consented to Mr Olley representing the respondent, I granted leave and told the parties that my orders would reflect this.": Singh v Honda Australia Pty Ltd (Civil Claims) [2024] VCAT 799.
?Requires good grades: "93. The respondent submits that disclosing the fact a student has failed an examination could reasonably be expected to affect his or her reputation or ability to gain employment in the future. The respondent has made this submission in light of the student’s s54 consultation responses. 94. The applicant argues that employers typically ask law graduates for their academic marks in recruitment processes, so it was difficult to see how disclosure would present a detriment to professional interests. Employment prospects comprise only one element of what could be considered to be professional interests. The applicant also argues that if a law graduate has a reputation that is inconsistent with his or her academic performance, then it is a false reputation which is not a ‘legitimate professional interest.’ I am not persuaded by either argument because they ignore a range of possibilities such as the student later resitting the exam and achieving a far better result and that a poor result in one exam does not necessarily reflect the student’s overall result or capabilities. 95. The applicant argues that disclosure of the examination scripts without the students’ names makes it a remote possibility that the students’ identities will be matched to the results. I agree that the possibility is low but in an era of digital innovation, the possibility is a real one. Both this and the applicant’s submission that employers look to the academic record of a law graduate as a part of recruitment processes, show that the respondent’s expectation of the detriment occurring is reasonable.": McKean v Attorney-General & Justice [2015] NSWCATAD 176.
cf FWC: "[167] Only on day one of an employee being employed as a Maintenance Associate is their metamorphosis from a caterpillar to a butterfly complete. Until that very day, they are not entitled to say that they are a butterfly (when they are a caterpillar). Similarly, recent law graduates are not entitled to say they are a solicitor until such time as they are admitted to a relevant court and hold a valid practising certificate. They simply cannot call themself a solicitor until these events occur. Likewise, an apprentice cannot declare to the world that they are a qualified tradesperson; they are not until such time as the apprenticeship is complete.": "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v OS ACPM Pty Ltd T/A BHP Operations Services [2021] FWC 3605 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2021/3605.html>.
Comparison with Junior Lawyers / Junior Solicitors
"57. The reasonableness of the fees and expenses of Mr Singer and Ms Kaswati are considered in the First Mossman Report and the Second Mossman Report. Ms Mossman was of the view that Mr Singer and Ms Kaswati played a pivotal role in the litigation by providing an important point of contact with the Group Members, and that it would have been difficult for solicitors in Australia to undertake much of the work that was undertaken by Mr Singer and Ms Kaswati. Having considered documentation relating to the work undertaken and expenses incurred by Mr Singer and Ms Kaswati, Ms Mossman considered that a reasonable hourly rate for their services was $200 per hour, which was above the scale rate for a clerk or paralegal and at the bottom end of the range for a law graduate or articled clerk. Although neither Mr Singer and Ms Kaswati are legally qualified, Ms Mossman considered that many of the tasks undertaken by them over the relevant period “would usually fall within the ambit of what it considered to be legal work, with much of it being generally undertaken at either junior solicitor or paralegal level” (such as taking instructions, explaining the process, assisting with the preparation of evidence, and arranging conferences and meetings). Ms Mossman ultimately concluded that a reasonable amount for the work undertaken by Mr Singer and Ms Kaswati in the proceeding is $1,726,021.16, which was a reduction of the amount claimed by them of $2,404,501.25.": Yasmin v Commonwealth of Australia (No 2) [2025] FCA 123
"132. Mr Flanagan was called by Ms Finch. He is, and was at the relevant time, the principle partner of ATB. The firm practises predominantly in the area of personal injury, although also works in other areas of law, including employment law and commercial law. ... 136. 136 Mr Flanagan said, in a gruelling mediation it was not necessary for the file operator to be present all the time. The instructor’s role is quite minimal in the court room or mediation scenario. Trainee lawyers or junior lawyers are regularly sent.[123] With experience, invariably, defendants like to resolve areas not specifically the subject of litigation in order to attempt to close as many doors as possible.[124] He deferred to the opinion of Mr Staindl in that regard.": Finch v Arnold Thomas & Becker Pty Ltd [2018] VCC 54.
"22. It is apparent from the table included in Mr Kucharski’s affidavit that the bulk of the work was done by Mr Kucharski, a more junior lawyer and a law graduate , with some supervision by a partner. Having regard to the extent of the evidence filed and the fact that the defendants took the responsibility of preparing court books, it does not strike me as unreasonable that two lawyers and a law graduate would be involved in the day-to-day preparation of the case for hearing. I would only make two adjustments to the professional solicitors’ costs claimed by defendants. First, it is apparent from the table that some limited work was done by other lawyers, law graduates or paralegals, some of whom are not identified. Without an explanation of why it was necessary for those persons to be involved, I would not allow anything in respect of those costs.": James v Australian and New Zealand Banking Group Limited [2016] NSWSC 833.
NZ: "[19] Helpfully, the affidavit filed does break down the work completed between the various levels of solicitor. This break down indicates that nearly 60 per cent of the work was completed at the solicitor (one year PQE) or law graduate level.": Mao v Best Capital Limited [2021] NZHC 2685.
Delegation to junior lawyers and law graduates: "52 In relation to the Lenders’ lay evidence workstream, Mr De La Rue opined that the estimate of hours for senior practitioners in the Fourth Shepherd affidavit was exaggerated and disproportionate to hours that could be allocated to lawyers and law graduates under the supervision of senior colleagues. He also opined that the estimate of hours for barristers in this workstream was exaggerated and, in his view, could not be justified. Mr De La Rue concluded that having regard to these matters and based on his experience, this workstream should be discounted by at least 50% prior to the overall discount being applied.": Jabiru Satellite Limited (In liq) (recs & mgrs apptd) & Anor vs Societe Generale & Ors (Top up security) [2024] VSC 411.
"73 Mr Sheavyn gave evidence that most of the work on the matter was performed by an articled clerk, supervised by a senior practitioner. ...": Cebas Pty Ltd v Cgu Insurance Ltd [2006] WADC 175.
Example, Job Descriptions
'Avant Law graduate program' (Avant) <https://avant.org.au/avant-law-graduate-program>, archived at <https://archive.is/dD3M1>.
[B.D.A] Employment before LLB graduation not employment in occupation of Solicitor, but Law Clerk or Administrative Clerk/Employee
Compare these case law with [B.D] re skill level.
Employment - Articled Clerk - Awarded LLB after Visa Application - finding that her usual occupation was Articled Clerk: "16. The visa applicant supplied a reference that states she was employed with a legal firm for 12 months prior to the visa application (D1, f.29), however a job description and list of duties she carried out in her role with the firm during this period has not been supplied. The visa applicant stated at the interview with the delegate that she prepares cases for appearance in Court and has on occasion presented cases herself (D1, f.26), however a letter from the Bangladesh Bar Council indicates that at the time of application she was legally required to `attend courts along with [her] senior to conduct cases' (D1, f.31). 17. The delegate found that the visa applicant had a usual occupation of `Article Clerk' (sic) (D1, f.52). The duties the visa applicant claims to have undertaken during her employment with the legal firm equate with those of a Solicitor as listed in ASCO II (Code 2521-13). However at the time of application she was required to be supervised by an Advocate (D1, f.31), therefore her position is best described as an Articled Clerk as listed in PAM 3. PAM 3 states that `Articled Clerks perform legal and clerical duties under supervision to gain experience required for admission as a practising lawyer'. 18. The requirement for a Solicitor , and other Legal Professionals, as listed in ASCO II `is a bachelor degree or higher qualification. Registration or licensing is required'. The visa applicant has supplied copies of her educational qualifications. She was awarded a Bachelor of Laws with Honours on 14 November 1994 (D1, f.47), and provided evidence of further qualifications, however these were achieved after her visa application and therefore cannot be considered in assessing her usual occupation at the time of the visa application. She has also supplied evidence that she had completed 6 months training with an Advocate at the time of application (D1, f.29). The Tribunal accepts that her usual occupation is Articled Clerk.": Mustafa, Qumrunnessa Poppy [2000] MRTA 3533 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2000/3533.html>.
Skill level, administrative tasks: "50. While the detailed tasks of a law clerk described in ASCO are described to suit those in a conveyancer’s or litigator’s practice, it is clearly includes assisting a lawyer in the practice of other areas of the law. The visa applicant is clearly assisting her employer, who was acknowledged as a lawyer, deal with migration matters. The documentation provided to the Tribunal by the review applicant shows that she was involved in the process of visa applications and obtaining necessary documentation. She also undertook administrative tasks, most closely aligned to the tasks of a personal assistant None of these occupations are included in the relevant Skilled Occupation List.": 071593601 [2008] MRTA 1057.
law practice manager - Legal secretary, NZ: "[16] Immigration New Zealand regarded the appellant’s duties and responsibilities as accounts related, and clerical in nature. It considered that his position appeared to substantially match an alternative ANZSCO occupation of Legal Secretary (521212), responsible for performing secretarial, clerical and other administrative tasks in support of managers, legal professionals and other professionals. Immigration New Zealand recorded that the occupation of Legal Secretary is in Part C of Appendix 6 – List of Skilled Occupations and that in order for the appellant to meet instructions requirements in this respect, he would need to have at least three years’ relevant experience, and either earn an annual salary of $45,000 (based on a 40 hour week), or have a relevant National Certificate at Level 4 or higher. As the appellant did not hold the prerequisite work experience, he could not satisfy the instructions requirements.": WL (Skilled Migrant) [2013] NZIPT 201808 <https://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZIPT/2013/201808.html>.
Fair Work case, clerk employed while completing law degree - skill level: "15. The applicant approached the respondent with a view to gaining an opportunity to gain experience in a law firm.[2] The respondent states that he was prepared to provide this experience to the applicant. Although not expressly said, it is apparent that neither the applicant nor the respondent expected that the applicant’s employment would be ongoing. I am satisfied that the intention of both parties was that the employment with Efron and Associates would provide the applicant with useful experience in a law firm whilst he completed his Law Degree . At the time the applicant commenced his employment with the respondent he was enrolled in his final years of study for a Bachelor of Laws and Bachelor of Arts. 16. There is no dispute that the applicant was given a range of administrative tasks and tasks which required legal knowledge and the application of legal skills. The dispute between the parties is around the extent of the legal tasks performed by the applicant and the complexity and level of skills exercised by the applicant in undertaking the administrative and legal tasks. ... 19. There is no dispute that in relation to duties involving legal matters the applicant was generally under the direct supervision of a senior solicitor employed by the respondent, as well as the respondent. In relation to administrative tasks, he worked under the general supervision of administrative employees. The applicant agreed that the legal documents he drafted were settled by senior solicitors in the firm. Likewise, correspondence was also settled by both senior solicitors and administrative staff. The applicant agreed that the legal work he undertook: such as a memorandum on discrimination law, was basic legal work. ... 22. Having heard the evidence, I have formed the view that whilst the applicant may well have prepared memoranda reflecting legal research and briefs for Counsel, this occurred on limited occasions, was under the supervision of a senior solicitor and involved the exercise of basic legal skills. This is unsurprising given that the applicant had yet to complete a law degree . I have also formed a view that duties such as attending settlements unsupervised and assisting Counsel in trials were one-off incidents and again involved the applicant exercising only limited legal skills. The applicant himself was prepared to concede that the legal work he engaged in was limited and of a basic nature. His evidence stands in contrast to the description of his duties contained in his affidavits and certainly in the submissions made on his behalf. 23. I have also formed a view that Mr Efron has been at pains to convey to the Court a view that the applicant’s work was less than standard. It seems to me that, given the applicant was still to complete a law degree , the work that he engaged in could not have been expected to be a quality commensurate with that of solicitor or indeed graduate. 24. I am satisfied that the applicant, whilst employed with the respondent, engaged in a range of legal work. This included attending to the files of clients, drafting Court documents, inspecting files, preparing Court books, attending Court hearings and typing transcripts from audio files. I am also satisfied that the applicant did engage in legal research, draft memoranda, did attend one property settlement unsupervised and was required to assist Counsel in a trial in Adelaide. I am satisfied that the bulk of his legal duties required the exercise of basic legal skills and that at all times he was under the supervision of senior solicitors at the firm. On the evidence, the supervision was at times direct and very occasionally the applicant was unsupervised. I am also satisfied that the applicant undertook various administrative duties under the general supervision of administrative staff at the firm. 25. The applicant submits that the proper classification during the period of his employment was Level 5 - Legal, Clerical and Administrative employee, Schedule B to the award. 26. The respondent submits that the proper classification during the period of the applicant’s employment was either Level 2 - Legal, Clerical or Administrative employee or Level 3 - Legal, Clerical and Administrative employee, Schedule B to the Award. ... 42. The applicant was employed neither as a clerical and administrative employee nor graduate law clerk. He was employed for the purpose of acquiring experience in a law firm. No doubt, this meant providing him with a range of tasks across the clerical and administrative stream together with experience in the firm’s legal work. The applicant had not yet acquired a tertiary qualification and there is no dispute that he engaged in his tasks generally under supervision from senior solicitors and clerical and administrative employees. 43. I am satisfied that the applicant had very limited experience when he commenced employment with the respondent. This finding flows as a matter of logic from the undisputed evidence about the basis upon which the applicant was employed by the respondent. He may have employed a range of legal functions some of which, if he was under only routine supervision, required the exercise of legal skills that could not be said to be basic. However, when he exercised more complex skills such as the preparation of memoranda and briefs to Counsel and the initiating of Court documents, the evidence is that the applicant was under direct supervision by either Mr Efron or a senior solicitor. The applicant may have assisted Counsel at one trial but on his own evidence his assistance was limited. The applicant did not supervise others. 44. I am not satisfied that the applicant should be classified as a Level 5 - Clerical and Administrative employee merely because he was in the process of acquiring a law degree . His administrative tasks certainly did not involve the tasks or functions specified for employees as Core skills at Level 5. ... 46. Having regard to the totality of the applicant’s work and the circumstances under which he performed at work, I find that the applicant was employed under Level 4 - Legal, Clerical and Administrative employee, Schedule B to the Award. Although the applicant was not unsupervised, the legal skills he exercised best fall within the scope of this level. He was clearly able to initiate research and engage in some tasks such as preparing Court books and maintaining files in a reasonably independent way.": Finberg v Efron [2015] FCCA 2470 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2015/2470.html>.
Education level, skill level: "10. This qualification is assessed in accordance with the provisions of regulation 146. According to the original application, the Principal had completed six years each of primary and secondary education. Between 1961 and 1965, he attended the University of Cairo at Khartoum and graduated with the degree of Licentiate of Laws. Following the completion of his studies, the Principal practised law in Sudan. In 1971, he was appointed a Second Class Magistrate and in the following year, a First Class Magistrate with the Sudan Government Judiciary. He returned to private practise in 1976 and in 1977, he moved to Saudi Arabia where he worked for various organisations as a legal advisor. Since 1981, he has been working for the International Airports Authority, Ministry of Defence and Aviation. As its legal advisor, the Principal provided advice primarily on construction, management operations and maintenance contracts. As well, he translates various documents from English to Arabic and vice versa. 11. Having carefully considered the Principal's curriculum vitae submitted at the request of the Tribunal as well as the various documents being examples of the type of translation work he does, the Tribunal finds that the Principal has two usual occupations within the meaning of regulation 146, namely those of legal advisor and translator. The provisions of subregualtion 146(2) defined "usual occupation" as "an occupation that the (Principal) has engaged in for gain or reward for a continuous period of at least 6 months during the period of 2 years immediately preceding the relevant application for a visa". 12. According to the Australian Standard Classification of Occupations (ASCO) directory Occupation Definitions published by the Australian Bureau of Statistics in 1990 classification 2605-99 , the educational entry requirement for the occupation of legal advisor or corporate legal officer in Australia is a "4-6 year degree". On 8 October 1991, the National Office of Overseas Skills Recognition (NOOSR), being a "relevant Australian authority" for the purposes of assessments carried out under the provisions of regulation 146, assessed the Principal as not meeting the "the minimum academic level for entry to the occupation". instead, he was assessed as meeting the skill level of a legal clerk.": YOUSIF TOBIA BOCTOR IRT Reference No. W92/00311 #NUMBER 1458 Number of pages - 7 Concessional Family Visa [1992] IRTA 2858 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/IRTA/1992/2858.html>. Similarly, [1992] IRTA 1458.
"I have considered the migration representative's submission that the applicant be referred to "the Law Council of Australia or the Law Society" for assessment . However, given that the applicants clearly a legal clerk who has only completed secondary school level of education and is not an articled clerk or lawyer , it is inappropriate to refer him to admissions authorities in Australia such as the Legal Practitioners Admission Board in NSW. According to the ASCO Dictionary which, despite the migration representative's claim, provides the most consistent and authoritative method of classifying occupations in Australia and which, because of the recent Federal Court decision re Rahman, takes precedence over the Department's Procedures Advice Manual (PAM) in this case, the occupation of Law Clerk does not require post-secondary qualifications in Australia.": Yuen Yee Chan Mak, Visa Applicants: Wing Kay Mak, Wai Han Ng, Hay Man Mak IRT Reference: N97/01239 #number 12086 [1998] IRTA 12086 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/IRTA/1998/12086.html>.
managing clerks, education level - highly skilled - different statutory context: "It is true that he needs a recognised degree for membership of professional associations in this country but it is possible to practice in many highly skilled positions without the need for a professional endorsement. Examples of this are manifold. A law student who has read law at a university and who has failed final examinations and has left university and has worked in a lawyer 's office for more than 3 years is prima facie highly skilled despite the absence of a qualification. Such a person could perform highly skilled work in the lawyer 's office under the supervision of a qualified lawyer . Such people used to be known as managing clerks and their skills applied over many many years often equated to those under whom they worked. They would not be lawyers but nevertheless they would be highly skilled. Unfortunately, these submissions misconceive or misconstrue the Regulations. To fully understand the criterion of 'highly skilled' in the Regulations, consideration must be given to all relevant parts of both part 121 of the second Schedule and of regulation 7.10, and not to selected parts of them.": Cremona Brothers Pty Ltd Principal: Jin Huang IRT Reference: N94/00767 #number 6112 [1995] IRTA 6112 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/IRTA/1995/6112.html>.
Application made prior to LLB graduation - law clerk - received LLB and GDLP after application: "32. The visa applicant completed the law component in November 1998, and was awarded a Bachelor of Law degree on 28 May 1999. She lodged her application after she completed the commerce degree, but before she completed the Law degree. 33. In the application form the visa applicant stated her usual occupation as `law clerk'. She stated that she was employed in this occupation from May 1997 up to the date of primary application on 10 November 1998. The visa applicant's employer, Robert Yip & Co., provided a reference dated 2 November 1998 stating that the visa applicant had been employed as a part-time law clerk since 9 May 1997 working one to two days per week during University semesters, and three to four days per week during holidays. The letter described the visa applicant's duties as Drafting letters and documents, telephone contact with clients and other solicitors, preparation of Contracts for sale, arranging exchange in conveyancing matters, preparation of applications for probate, arranging property settlements, entering data in computer and general registration work. ... 39. On 13 January 2000, she was awarded a Graduate Diploma in Legal Practice from the College of Law and has been admitted by the Legal Practitioners Admission Board as a Legal Practitioner of the Supreme Court of New South Wales. 40. The review applicant submitted that on the basis of this information the Tribunal should assess the visa applicant against the `usual occupation' of legal practitioner . She stated that her sister had worked as a full-time legal officer for Robert Yip & Co. since March 1999, and that she had been offered employment as a solicitor by two law firms. ... 49. The Tribunal has compared the list of duties performed by the visa applicant with those of law clerk as set out in ASCO at group 5991-11 and finds that the visa applicant was performing the range of duties of a law clerk for six months before she lodged her application. 50. The review applicant has submitted that the visa applicant be assessed as a legal practitioner but the fact that the visa applicant is now a fully qualified legal practitioner and employed as such is not relevant to this application. The Tribunal may only consider the period of two years before the visa applicant lodged the application. 51. The minimum entry requirement for the occupation of law clerk is set out in ASCO as being an AQF III certificate or higher qualification or three years relevant experience. According to the policy guidelines in PAM3 the occupation of law clerk is one that can be assessed by referring to the ASCO requirements. This is because NOOSR and DIMA have agreed that a number of occupations can be assessed in this way. In effect NOOSR has precluded itself from making the assessment in respect of the listed occupations leaving the Tribunal as the assessing body as per sub-paragraph (c) of regulation 2.26(5). Accordingly the Tribunal will make the assessment using the ASCO guidelines. 52. The visa applicant did not have three years experience when she lodged her application, but she completed her first degree in Commerce (as part of her five year combined degree), in November 1997. She continued to work in the occupation of law clerk until she lodged the application in November 1998 and thereafter until she was admitted as a legal practitioner in February 2000. The Tribunal is satisfied that the visa applicant meets the entry requirements for the occupation of law clerk.": Lam, Rowena Suk [2000] MRTA 2583 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2000/2583.html>.
Review of degree-qualified professional classifications [2025] FWCFB 156 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWCFB/2025/156.html>: "... MA000116 Legal Services Award 2020 Level 5 — Law Graduate [clause A.6.1]."
[B.E] Legal Officer - non-admitted, no opinion on whether co-extensive with role of Solicitor
"Reassessment of the visa applicant's total points score at the time of the primary assessment Part 1 - Employment Qualification 45. The Tribunal's first task is to determine the usual occupation or occupations of the visa applicant. 46. As the visa applicant lodged the visa application on 7 October 1996, the usual occupation of the visa applicant is the occupation that he has engaged in continuously for gain or reward for at least 6 months from 7 October 1994 until the date of application. 47. The visa applicant stated his usual occupation to be that of solicitor/legal advisor/ contract manager. The visa applicant stated that he was employed from February 1992 until the date of application by GEC Alsthom as a Legal Advisor. A reference provided by Alstom Gas Turbines Ltd, a division of GEC Alsthom, stated the visa applicant was employed as a Legal Adviser with Alstom Gas Turbines from February 1992 to May 1995. The duties performed by the visa applicant in this position included: § negotiation of power station turnkey supply contracts for Asia, South East Asia, Europe and UK with involvement in related project financing, taxation, bonding and export credit finance; § preparation and negotiation of national and international tenders and contracts for sale, maintenance and repair for private companies, public utilities and the Ministry of Defence; § advice on sale of business both of share and assets; § contract interpretation and advice on EU project funding, foreign laws (France, Thailand, India, Spain, Argentina, Italy) UK laws (competition, employment, health and safety and environmental), arbitration and other matters; preparation of consortium agreements in respect of tenders and performance of contracts, co-operation agreement for EU funding for the development of a biomass energy plant in Italy; § preparation and negotiation of a bespoke software development agreement, software licence agreements, research and development agreements and advice on intellectual property matters; § dealing with insurance claims including credit insurance cover and negotiation with private insurers in a default situation; § property work including business leases; pursuit and defence of claims, instructing and manager external lawyers. 48. GEC Alsthom provided a further reference dated 23 June 1998 confirming that the visa applicant was employed as an international legal adviser at GEC Alsthom Central Energetiques SA in France from 29 May 1995 to 31 December 1997. 49. On the visa application form the visa applicant indicated that he completed 12 years' primary and secondary school in 1973. The visa applicant has provided evidence that he attended Havering Technical College for 3 years and obtained 7 `O' level and 3 `A' Level qualifications. The visa applicant has provided evidence that he attended Portsmouth Polytechnic for 4 years and obtained a Bachelor of Arts (Hons) degree in French Studies. The visa applicant stated that he attended Birmingham Polytechnic for 1 year and has provided evidence that he successfully completed the Law Society Common Professional Examination in 1982. The Law Society's certificate confirms that this examination represents the academic stage of training for meeting the Law Society qualifying regulations. The visa applicant stated that he also attended Chester College of Law for 1 year and undertook the Law Society Solicitors Final Examination in 1983. The stated language of instruction for all qualifications was English. 50. The evidence indicates that in 1983 the visa applicant only obtained two passes in the subjects of his Solicitors' Final Examination. In 1986, however, he obtained passes in all subjects of the Final Examination. The Tribunal has evidence that in 1988 the visa applicant was admitted as a solicitor of the Supreme Court, and in 1989 he was admitted as a member of the Law Society. 51. The visa applicant's bachelor degree is described in the NOOSR Country Education Profile - United Kingdom. The Profile states that a bachelor degree from the University of Portsmouth (formerly Portsmouth Polytechnic) is assessed as comparable to the educational level of an Australian Bachelor degree. 52. The occupation of legal officer appears in ASCO unit group 2521 (ASCO code 2521-79). According to ASCO, a legal officer is a legal professional not elsewhere classified. ASCO broadly describes the duties of legal professionals as providing legal advice, preparing and drafting legal documents, conducting negotiations on behalf of clients and pleading cases before civil, criminal and industrial courts and other Tribunals. The skill level required of this occupation is a bachelor degree or higher qualification. ASCO states that registration or licensing is required. 53. .The duties and responsibilities of the visa applicant in his position at GEC Alsthom focussed on the preparation and negotiation of contracts in relation to a number of projects, and providing advice in relation to contracts and tenders. Although the visa applicant's duties did not include representing clients in court, they clearly involved providing legal advice in relation to the company's core and related activities. On the basis of the evidence before it the Tribunal finds that the visa applicant's usual occupation is Legal Officer (2nd edition ASCO 2521-79). 54. The Procedures Advice Manual 3 (PAM) states that the Minister using the PAM guidelines is the relevant Australian authority to assess the occupation of legal officer. PAM states that legal officers perform work on behalf of employers in business or government organisations. They provide legal advice, draft proposed regulations or amendments to legislation, maintain contracts with law firms, and prepare cases. 55. The PAM guidelines in Schedule 6, Skills Assessment-Legal Practitioners, states the following in relation to registration and licensing requirements. Registration/Licensing 2.2 In all States and Territories in Australia, in order to practise law registration is legally required by way of admission to the State/Territories Supreme Courts. Barristers and solicitors admission boards assess the entitlements of a person to apply to the court for admission. 2.3 Note: Corporate Legal Officers/Legal Officers (as described in paragraph 1.3 above), while requiring legal qualifications, do not, in most cases, need to be registered as they would not, generally, be practising law. 56. In the visa applicant's case the delegate found that the visa applicant's usual occupation was legal officer, and requested the visa applicant to provided evidence of assessment by the relevant State admissions board. Although the visa applicant obtained an assessment from the WA Legal Practice Board dated 8 September 1998, and replies from other State boards about the assessment process, he did not submit an assessment from the NSW board, the authority in the State of his intended residence. 57. The Tribunal finds that the PAM guidelines clearly intend to recognise a group of legal professionals, in particular Corporate Legal Officers and Legal Officers, who would in most cases not need to be registered, as they would not generally be practising law. The PAM guidelines, do not, however, provide any clear guidance on how applicants with a usual occupation of Corporate Legal Officer should be assessed. In the Tribunal's view, the fact that the guidelines continue to require applicants to be assessed by State admissions boards, does not properly take account of the group of legal professionals who do not require to be admitted by a State legal practice board. 58. It is the Tribunal's view that if the PAM 3 guidelines envisage a group of legal professionals who do not require registration to be able to undertake their profession in Australia, it makes little sense to require the visa applicant to undertake an assessment by the relevant State admissions board. The Tribunal therefore finds that in this case the only relevant consideration for the Tribunal is whether the visa applicant meets the entry requirement for his usual occupation of a bachelor degree or higher. 59. The Tribunal finds that the visa applicant's Bachelor of Arts (Hons) degree from the Portsmouth Polytechnic is equivalent to an Australian bachelor degree. The Tribunal also finds that the visa applicant's subsequent completion of studies in law at the Birmingham Polytechnic in 1982 (constituting the academic component of meeting the qualifying regulations of the Law Society), taken together with his bachelor degree, provide the visa applicant with qualifications at the bachelor degree level that are relevant to his usual occupation of legal officer. 60. In order to be awarded 70 points for employment, the visa applicant must satisfy item 6102. The visa applicant must satisfy paragraph 6102(c)(i), (ii) or (iii). The relevant date is 7 October 1993. The evidence indicates that the visa applicant completed his Bachelor of Arts degree in1981, and the academic component of his training for Law Society membership in 1982. The Tribunal therefore finds that the visa applicant satisfies paragraph 6102(c). 61. The visa applicant must satisfy paragraph 6102(e). The relevant date is 6 October 1993. The applicant has provided evidence that he was employed by Alstom Gas Turbines Limited/GEC Alsthom from 3 February 1992 to 5 May 1995 as a legal advisor, and by GEC Alsthom Energetiques as a legal adviser from 29 May 1995 to the date of application. Therefore the visa applicant satisfies paragraph 6102(e). 62. The visa applicant must also satisfy paragraph 6102(f). The relevant period is 6 October 1993 to 6 October 1996. The evidence indicates that during this period the visa applicant was employed by divisions of GEC Alsthom, and that his duties were related to the provision of legal advice. The Tribunal therefore finds that the visa applicant satisfies paragraph 6102(f). 63. Accordingly, the Tribunal finds that the visa applicant satisfies the requirements of item 6102 and is entitled to 70 points for the employment qualification. 64. Having examined the evidence before it in relation to the points that should be awarded to the visa applicant for the remaining factors on the Points test, the Tribunal makes the following findings.": Facey, Julian Andrew [2002] MRTA 2411 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2002/2411.html>.
[B.E.A] Legal Adviser - Non-admitted - Delegate assessed as employment in occupation of Legal Practitioner - Tribunal assessed it as Legal Professional
"11. In the migration application the visa applicant described her usual occupation as Legal Advisor (D1, f.10). She stated that she had worked for S.C. Habitat Proiect S.A. Iasi since November 1996 and that her duties involved conducting cases before civil and commercial courts on behalf of companies and individuals. Her application contained statements from her employer confirming her work history (D1, f.17-20). She also provided a Certificate of Diploma showing that in 1998 she was awarded a Bachelor of Science qualification in Judicial Law from Lucian Blaga University of Sibiu, following her graduation from Mihail Kogalniceanu University of Iasi (D1, f.15-16). Her application did not include any documents confirming her relationship to the secondary visa applicant and the review applicant. 12. On 1 December 1998, the Overseas Post subsequently invited the visa applicant to have her qualifications and experience for the occupation of Legal Professional assessed by the Council of Legal Education (D1, f.22). That authority subsequently informed her of the relevant criteria that needed to be met before she could practice law in Victoria (D1, f.25-28). She was also invited to submit relevant documents to the Council of Legal Education prior to 2 June 1999 so that her application for a skills assessment could be considered. There is no evidence on the departmental file to indicate whether or not she subsequently provided the relevant documents to that authority. 13. On 25 February 1999 the visa applicant undertook an International English Language Testing System (IELTS) test and scored 5.0 for listening, 4.5 for reading, 5 for writing, 6 for speaking and an overall band of 5.0 (D1, f.30) 14. On 14 February 2001, the delegate assessed the visa applicant's usual occupation as Legal Practitioner (D1, f.34-35). As that occupation was included on the Occupations Requiring English (ORE) list, she was required to have vocational English (under subclauses 105.224(1) and 106.223(4)). Having regard to the results of the visa applicant's IELTS test, the delegate found that she did not have the required standard of English proficiency. Accordingly the delegate found that she was not entitled to grant of either a subclass 105 or subclass 106 visa. A letter was sent to the visa applicant on 14 February 2001 informing her of the reason why her application for a Class AJ visa had been refused (D1, f.36-37). ... 26. Having regard to the evidence provided by the visa applicant and her employers, the Tribunal finds that her work duties as Jurist/Legal Advisor substantially match those of Legal Professional contained under the Australian Standard Classification of Occupations Dictionary 2nd Edition (ASCO) unit group code of 2521. The Tribunal also finds that her previous legal training is also consistent with that classification. Accordingly the Tribunal finds that her usual occupation is Legal Professional (ASCO unit group code 2521) (T1. f. 27-30).": Moss, Gabi Maricica [2003] MRTA 101 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2003/101.html>.
[B.F] Solicitors - overseas qualified and admitted
Usual occupation - twenty years standing as lawyer: "17. According to the evidence provided under the primary application, the Applicant is a lawyer of some twenty years standing. It is not disputed that this is his usual occupation. On the evidence the Tribunal finds that the Applicant's is a barrister and solicitor. Guided by ASCO 2 classifications 2521-11 and 2521-13 the Tribunal finds that the minimum educational requirement for both those occupations is a bachelor degree. ... 20. In a letter dated 19 January 1999 Legal Practice Board of Western Australia found that to qualify for admission the Applicant is required to complete Constitutional Law, Property, Equity and Trusts at the University of Western Australia (UWA) or at Murdoch University before admission. The letter further stated that the Applicant would be required to complete twelve months pre-admission employment which may be done concurrently with the studies he is required to undertake. 21. Guided by the relevant PAM 3 guidelines, paragraph 5.3, the Tribunal finds that the Applicant meets the provisions of item 6102 of Schedule 6 to the Regulations and is entitled to 70 points as he had obtained his qualification, and was employed continuously as a barrister and solicitor, more than three years prior to lodging the primary application.": Livanos, Ourania [2002] MRTA 5536.
Usual occupation - foreign lawyer - determined Solicitor: "10. In the application for migration the visa applicant described his usual occupation as Advocate, and stated that he had been self-employed in this occupation with his own law firm from April 1990 to February 1996. His duties included representing clients on civil, criminal and labour issues at district and sub-courts and active involvement in political and social activities. He also participated on a part-time basis in commodity trading and managed the family farm. The visa applicant provided documentary evidence of his employment, including a certificate of admission to The Bar Council of Tamil Nadu, a letter from the Panruti Bar Association stating that he is a practising lawyer and member, an income certificate from his accountant showing his income from his legal practice and agricultural property and a property certificate from his accountant detailing his land ownership (D1, f 4-7). ... 13. The delegate determined that the visa applicant's usual occupation was Legal Practitioner. Based on the assessment by the Legal Practitioners Admission Board, the delegate found that his qualifications were not recognised for migration purposes and he was entitled to 25 points for the Employment Qualification. The visa applicant received a total points score of 90, below the pass mark of 115. The application was rejected on the grounds that the visa applicant failed to meet the qualifying score under clause 105.222. This is the criterion in dispute. It was also found that the visa applicant did not meet the criteria for a subclass 106 visa. The decision to refuse the application for a Class AJ visa was made on 19 February 1999 and, on the same day, a letter was sent to the visa applicant informing him of that decision (D1, f 51-54). ... 21. When using that reference material and determining an applicant's usual occupation, the Tribunal is mindful of the decision of the Federal Court of Australia in Zeng Guang Wang v Minister of Immigration and Multicultural Affairs [1998] FCA 30 (30 January 1998). In that case, Wilcox J indicated that a person's usual occupation and the requirements for that occupation is a question of fact to be determined by the delegate. The decision-maker can gain assistance from ASCO second edition but is not bound by the classifications contained in that material. Finally, when determining an applicant's usual occupation, a decision-maker should consider how the composite of an applicant's work duties, training and previous work experience would be described in Australia. 22. The Tribunal has taken into account the available evidence regarding the visa applicant's qualifications and work experience. The Tribunal notes that during the two-year period prior to lodgement of the migration application, the visa applicant worked as an Advocate within his own law firm. He also was involved in commodity trading and running the family farm. The Tribunal considers that the visa applicant's primary duties and responsibilities closely match those of the classification Solicitor (ASCO Code 2521-13). The Tribunal has not considered the duties performed by the visa applicant while employed as an Assistant Manager, as they were performed after the date of application, and are therefore not relevant to determining the visa applicant's usual occupation as defined under regulation 2.26(5). Accordingly, the Tribunal finds that the visa applicant has the usual occupation of Solicitor (ASCO Code 2521-13). 23. The Tribunal is required to award points to the visa applicant under the Employment Qualifications of Schedule 6, having regard to whether or not he has satisfied the Australian standards for his occupation of Solicitor. 24. Under regulation 2.26(5) the relevant Australian authority for determining whether a visa applicant meets the Australian entry standards for the occupation of Solicitor is the Tribunal as delegate of the Minister, using the guidelines in PAM. According to PAM, if a visa applicant must complete certain law subjects in order to meet State or Territory admission requirements, and these subjects can be completed in one year of full-time study, or the equivalent in part-time study, this is acceptable for migration purposes. The Tribunal has considered the assessment made by the Legal Practitioners Admission Board (NSW), who found that the visa applicant would be required to undertake subjects which "may be completed in five to six semesters of study". This is not acceptable for migration purposes and the Tribunal finds that he does not meet the Australian standards for his occupation. As such, he is entitled to 25 points for the Employment Qualification, pursuant to subitem 6107(b) of Schedule 6.": Ramachandran, Devanathan [2002] MRTA 158.
incomplete studies: "30. Under clause 105.222, the visa applicant must achieve the qualifying score in the General Points Test under Schedule 6. The Tribunal is required to award points for each of the following qualifications: Employment, Age, Language Skill, Relationship, Citizenship, Settlement of Sponsor and Location of Sponsor. In order to award points for the Employment Qualification, the Tribunal must first determine the visa applicant's usual occupation, then establish whether he or she has the qualifications and/or experience equivalent to the Australian standards for this occupation. 31. As discussed, the visa applicant has the usual occupation of Legal Officer (Legal Professionals not elsewhere classified) (ASCO Code 2521-79). Under regulation 2.26(5) the relevant Australian authority for determining whether a visa applicant meets the Australian entry standards for the occupation of Legal Officer is the Tribunal as delegate of the Minister, using the guidelines in PAM. According to PAM, if a visa applicant must complete certain law subjects in order to meet State or Territory admission requirements, and these subjects can be completed in one year of full-time study, or the equivalent in part-time study, this is acceptable for migration purposes. The Tribunal has considered the assessment made by the Council of Legal Education (Vic), who found that the visa applicant would be required to undertake subjects "in the areas of Criminal Law and Procedure, Torts, Contracts, Property, Equity (including Trusts), Company Law, Administrative Law, Federal and State Constitutional Law, Civil Procedure, Evidence and Professional Conduct". As this would involve more than one-year of study, this is not acceptable for migration purposes and the Tribunal finds that she does not meet the Australian standards for her occupation. As such, she is entitled to 25 points for the Employment Qualification, pursuant to subitem 6107(b) of Schedule 6.": Jan, Munsif [2002] MRTA 7099 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2002/7099.html>.
"45. Between November 1977 and October 1980, the primary visa applicant studied at the Sri Lanka Law College. The qualification obtained is not stated in the Application for Migration and the primary visa applicant has not provided a copy. However, a certificate dated 2 October 1981 certifies that the primary visa applicant was admitted and enrolled as an Attorney at law of the Supreme Court of the Democratic Socialist Republic of Sri Lanka. This is not described in the NOOSR Country Education Profile - Sri Lanka, but it does state "students who wish to become practising lawyers must study at the Law College of Sri Lanka, an autonomous institution which has an independent entrance examination in additional to the Sri Lankan GCE `A' Level." It does not set out how many years of study are required and whether it is equivalent to an Australian degree. 46. Having considered the information before it regarding the primary visa applicant's work experience and educational qualifications, the Tribunal is satisfied that the primary visa applicant's usual occupation is that of a Solicitor.": Nallanathan, Shanmugarajah [2003] MRTA 7037 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2003/7037.html>.
Sri Lanka Attorney-at-Law: Sarojini Ranaweera [2004] MRTA 7639 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2004/7639.html>.
Sri Lanka in-house lawyer - admitted: "15. The review applicant gave sworn oral evidence at a hearing before the Tribunal on 21 February 2001. At the hearing the Tribunal noted that the matter was scandalously stale, the original visa application having been made in August 1989. The reasons for delay were not obvious since the file of the Department had been destroyed. Also because of destruction of the file, the evidence before the Tribunal was incomplete. The Tribunal noted that, importantly, thanks to the review applicant , it now had before it a copy of the letter of 31 May 1994 from the Council of Legal Education in Victoria, which indicated that the qualifications of the visa applicant were sufficient, subject to compliance with expressed conditions, to justify her admission to practise as a Barrister and Solicitor in Victoria. It was not clear to the Tribunal whether this letter had been before the delegate when he made his assessment on 22 October 1996 and there was no record of what "further documents requested by the Council of Legal Education", referred to in his decision, had been expected by the delegate to be forwarded to the Council. 16. The review applicant told the Tribunal that the visa applicant had graduated in law, had served articles, had been admitted to practise law and had entered employment as an in-house lawyer with Air Lanka, all before he had left Sri Lanka and come to Australia in 1985. She had remained in employment as a lawyer from that time to the present, including in the 2 years prior to making her application for a visa on 25 August 1989. The review applicant said that he had lived in Melbourne from 1985 until 1992 except for 6 months in the Northern Territory in 1991. He was living in Victoria at the time he sponsored the visa applicant and Victoria was the jurisdiction of the visa applicant's intended residence when she applied to the Council for assessment of her qualifications. He noted that the visa applicant was now married. ... 22. The Tribunal found it unnecessary, and considers that it would have been vexatious and unfair in the circumstances of this case, to put the review applicant and visa applicant to the trouble of reinstating original documentation destroyed by the Department. Taking all of the available evidence into account, the Tribunal finds that the visa applicant has the usual occupation of Lawyer (ASCO 2605) and that her qualifications and experience in this occupation have been assessed and accepted by the relevant Council in her intended state of residence. The Tribunal, as the relevant Australian authority, is satisfied that the visa applicant is provisionally acceptable for registration to practise law in Victoria. The Tribunal finds that her skill level is acceptable for visa purposes in accordance with subregulation 2.26(5) and guidelines in PAM 3. She achieves 70 points for Skill under item 6102 of part 1 of Schedule 6 to the Regulations.": Nadaraja, Arjuna Hilarian [2001] MRTA 655 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2001/655.html>.
HK, UK admitted Solicitor: Leung Wing Seungvisa Applicant: Leung Wai Kuen IRT Reference: N94/01254 #number 6327 [1995] IRTA 6327 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/IRTA/1995/6327.html>.
[B.G] Sri Lanka - Employment by Barrister - "Prosecution and defence in courts of law and attending deeds as notary public"
"39. The Tribunal's first task is to determine the usual occupation or occupations of the primary visa applicant. 40. As the primary visa applicant lodged the visa application on 3 May 1995, his usual occupation is the occupation that he was engaged in continuously for gain or reward for at least 6 months from 3 May 1993 until at least the date of application for the visa. 41. In the `Application for Migration' (form 47) the primary visa applicant stated that his usual occupation was that of an `Attorney at Law & Notary Public'. At question 34 of form 47, he has described his main tasks or duties performed in his usual occupation as follows: Prosecution and defence in courts of law and attending deeds as notary public. 42. The primary visa applicant has stated that he was employed by S. Muthukrishnan a Barrister at Law between October 1981 and December 1982. From October 1981 until at least the date of application for the visa, the primary visa applicant stated that he had been self employed in his profession. He stated that he employed two people. Evidence to support his employment and self-employment have not been provided. 43. The Tribunal notes that the primary visa applicant's rank/profession is stated in his passport, his marriage certificate and his children's birth certificates as `Attorney at Law'. 44. In terms of educational background, the primary visa applicant has completed 7 years of primary schooling and 8 years of secondary schooling in Sri Lanka. He sat the General Certificate of Education in 1975 and obtained an Ordinary Pass in 4 subjects of the `A' level. The NOOSR Country Education Profile - Sri Lanka provides the following guidance in relation to secondary education. A Sri Lankan General Certificate of Education with `A' level passes in a minimum of four subjects could be regarded as comparable to the educational level of an Australian Year 12 award for general employment purposes. 45. Between November 1977 and October 1980, the primary visa applicant studied at the Sri Lanka Law College. The qualification obtained is not stated in the Application for Migration and the primary visa applicant has not provided a copy. However, a certificate dated 2 October 1981 certifies that the primary visa applicant was admitted and enrolled as an Attorney at law of the Supreme Court of the Democratic Socialist Republic of Sri Lanka. This is not described in the NOOSR Country Education Profile - Sri Lanka, but it does state "students who wish to become practising lawyers must study at the Law College of Sri Lanka, an autonomous institution which has an independent entrance examination in additional to the Sri Lankan GCE `A' Level." It does not set out how many years of study are required and whether it is equivalent to an Australian degree. 46. Having considered the information before it regarding the primary visa applicant's work experience and educational qualifications, the Tribunal is satisfied that the primary visa applicant's usual occupation is that of a Solicitor.": Nallanathan, Shanmugarajah [2003] MRTA 7037 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2003/7037.html>.
[B.H] Attorney- at-Law, Belgrade - Finding that work duties, responsibilities, match those of Barrister and of Solicitor in the ASCO
"11. In the application for migration the visa applicant described her usual occupation as Lawyer (D1, f.4). She stated that she had been self-employed in that profession since November 1994 and had previously been employed as a solicitor by other enterprises since April 1982. She also stated that her duties consisted of representing clients before courts and other organisations; negotiating jobs; property relations; and jobs involving real estate sales. Her application included statements from Joint Fund for Business Premises of Municipalities and City in Belgrade (D1, f.45-46) and the Institute for Construction of Belgrade City (D1, f.39-40) confirming her work duties and employment history. She also provided documents showing her qualifications, including evidence that in 1979 she was awarded a Diploma (Bachelor Degree in the Faculty of Law) from the University of Belgrade (D1, f.41-42) and in 1994 she was inscribed into the Attorneys-at-Law Register of the Bar Association of Belgrade (D1, f.37-38 & 43-44). ... 15. The delegate classified the visa applicant's usual occupation as Lawyer (D1, f.59-60). The delegate indicated that she had been informed by the Council of Legal Education, Victoria that applicants who obtained their degree qualification in Yugoslavia were required to complete further legal studies before being able to practice law in Australia. Accordingly, the delegate found that the visa applicant had not met the Australian standard for her usual occupation. The visa applicant was awarded 25 points for the Employment Qualification and 65 points for all qualifications under Schedule 6. As that score was below the pool mark of 110 points and the pass mark of 115 points, the delegate found that the visa applicant had not achieved the qualifying score under clause 105.222. The visa applicant was also unable to reach the qualifying score on the basis of a combined points assessment with her spouse under regulation 2.27. This is because the delegate found that the secondary visa applicant had not reached the Australian standard for his usual occupation of Finance Manager. This is the criterion in dispute. The visa applicant does not appear to have been assessed against the criteria for a subclass 106 visa. A letter was sent to the visa applicant on 6 October 1999 informing her of the refusal of her application for a Class AJ visa (D1, f.61-62). ... 25. Based on the evidence, the Tribunal is satisfied that the visa applicant's work duties, and responsibilities match those of Barrister and Solicitor contained in the Australian Standard Classification of Occupations Dictionary 2nd Edition (ASCO) under the respective codes of 2521-11 and 2521-13 ) (T1, f.40-41). Her prior qualifications and work experience are also consistent with that occupational classification. Therefore the Tribunal finds that the visa applicant's usual occupation is Barrister and Solicitor (ASCO codes 25211 and 2521-13 ). ... [finding about Australian Standards] ...": Dimovski, Radojka [2003] MRTA 98 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2003/98.html>.
[B.I] Contracts Adviser - Legal Professional
"11. In the visa application, the primary visa applicant described his `usual occupation' as a Lawyer . The primary visa applicant stated that he had been employed with Industrial and Commercial Ventures Ltd, UK since February 1993. The primary visa applicant described his duties as: I have been in charge of providing legal advises and other legal services to the client (the employer to which I've been bound by relationship of employment). In particular, I was assisting my employer on legal matters relating to Russian as well as EC (International) laws, especially as far as matters of intellectual property rights, public procurement and tax were concerned. Besides, I was broadly handling Law of Contracts (in terms of the 1980 convention on Contract for [...] Sale of Goods), Property Law including protection of householders and shareholders together with related court (administration, judiciary) procedure. Finally I've been in a number of occasions representing clients in court proceedings. 12. The primary visa applicant provided evidence that he obtained a Diploma with Honours in Law from Kaliningrad State University on 23 June 1983 and a Masters of Law in International and European Legal Studies from the University of Durham on 14 December 1996. 13. When conducting the primary assessment the delegate determined that the primary visa applicant's `usual occupation' was Legal Professional (second edition ASCO code 2521-79). In accordance with PAM 3 guidelines, and an assessment by a Legal Practitioners Registration Board, the delegate found that the primary visa applicant had failed to meet the Australian standards for his usual occupation . It was determined that he was entitled to 25 points for the employment qualification in accordance with item 6107 of Part 1 of Schedule 6 to the Regulations.": Feklistova, Oksana [2003] MRTA 6489 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2003/6489.html>.
[B.J] Law Council of Australia - Commentary
"[49] It will be a criterion for a visa in the GSM program that the SAA had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation. 26 Further, a person invited to apply for a GSM visa will be required to accrue a number of ‘points’. 27 Points are allocated under Schedule 6D to the Migration Regulations by reference to a number of different kinds of qualifications, including by the number of years that they have been employed in their ‘nominated skilled occupation’ or ‘closely related skilled occupation’. 28 This can result in both delegates of the Immigration Minister and SAA making assessments based on a person’s employment in their nominated or closely related skilled occupation. As demonstrated below, this can produce anomalous results. [50] Members of the profession have provided numerous examples of a lack of alignment between skills assessment requirements and the statutory criteria. This can increase the cost and time taken to obtain a skilled visa, and disincentivise applicants from applying for an Australian skilled visa. These examples are set out in response to Question 5. ... ": 'Draft Best Practice Principles and Standards for Skilled Migration Assessing Authorities' (Law Council of Australia, 9 November 2023) <https://lawcouncil.au/publicassets/df551ca7-c188-ee11-948d-005056be13b5/4453%20-%20S%20-%20Best%20Practice%20Principles%20and%20Standards%20for%20Assessing%20Authorities.pdf>.
[B.K] Australian-registered Foreign Lawyer
"22. Ms Liu has provided the Tribunal with a detailed curriculum vitae confirming both her undergraduate and postgraduate studies in law in China (as well as business administration in USA) and her admission to both the Shandong Lawyers Association and Bar Association of the People’s Republic of China. She also provided her Certificate of Registration of Foreign Lawyer for the 2016- 2017 Practising Year issued by the Victorian Legal Services Board. The Certificate notes that Ms Liu is authorised to practice the law of China in Victoria. The Tribunal discussed with Mr Liu and Ms Liu the appropriateness of lodging a new nomination for the nominated occupation of Solicitor ANZSCO 271311. In brief, ANZSCO states that solicitors provide legal advice, prepare and draft legal documents, and conduct negotiations on behalf of clients on matters associated with the law. In Ms Liu’s case, and consistent with the Certificate of Registration of Foreign Lawyer for the 2016-2017 Practising Year issued by the Victorian Legal Services Board, this would enable her to provide legal advice, prepare and draft legal documents, and conduct negotiations on behalf of clients on matters associated with Chinese law. 23. The Tribunal are discussed with the parties the limitations on the scope of practice by Australian-registered foreign lawyers. The permissible services have been determined by the Law Council of Australia and adopted by Victoria and New South Wales. The legal services that may be provided by foreign registered lawyers in Victoria include: - doing work, or transacting business, concerning the law of a foreign country where the lawyer is registered by the foreign registration authority for the country; - legal services in relation to arbitration proceedings or conciliation, mediation and other forms of consensual dispute resolution; and, - legal services (including appearances) in relation to proceedings before bodies other than courts, being proceedings in which the body concerned is not required to apply the rules of evidence and in which knowledge of the foreign law of the country in which the foreign lawyer is entitled to practice is considered by the Victorian Legal Services Board to be essential.[5] 24. The Tribunal also discussed with Ms Liu and Mr Liu provisions which preclude Australian-registered foreign lawyers from practising Australian law in Australia. It is noted that provisions relating to trust money and trust accounts apply to Australian-registered foreign lawyers in the same way as they apply to Australian legal practitioners. The Tribunal also notes Australian-registered foreign lawyers are subject to complaint and disciplinary procedures in Chapter 5 of the Uniform Law as set out in Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (Vic) and, accordingly, are subject to the same professional, ethical and practice standards as those which apply to Australian legal practitioners practising Australian law. 25. Both Ms Liu and Mr Liu confirmed that, when Shandong Law lodged its nomination application in respect of the position of Human Resource Manager for nominee Ms Liu in late 2015, no immigration advice from an immigration lawyer/registered migration agent had been taken and, furthermore, they did not then fully appreciate the nature of the legal services that can be provided by an Australian-registered foreign lawyer. They were both aware that Mr Liu could not represent clients in a court and would need to refer such matters to a local law firm or brief a barrister. Shandong Law intends to lodge a new nomination application with the Department nominating the position of Solicitor ANZSCO 271311 in respect of Ms Liu. ...": 1607794 (Migration) [2016] AATA 4531 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2016/4531.html>.
[B.L] NZ - Unpaid Intern - Post LLB but prior to admission - unpaid is not "work" - but see opinion expressed on experience - ANZSCO:
"[4] The appellant first came to New Zealand in 2010 in order to study and was awarded a Bachelor of Laws in January 2015. She was granted a practising certificate as a barrister and solicitor of the High Court of New Zealand in July 2016. From 14 August 2015 to 31 December 2015 (elsewhere claimed, without evidence, to be until February 2016), she worked as an unpaid intern at ABC lawyers . At the time, she held a graduate job search work visa. She recommenced work with ABC lawyers on 9 March 2016 and worked there (on a paid basis) until 15 February 2017. ... [8] The appellant’s former counsel responded on 12 June 2017 accepting that, because the appellant had not been in her current employment for 12 months or more, she could claim only 50 points for skilled employment, not 60. Instead, counsel sought 10 points for the appellant’s two years’ relevant work experience, requesting that her unpaid work experience at ABC lawyers be taken into account to reach that total. Counsel noted that the unpaid work was relevant to her qualification and current employment, and enabled her to gain specialist, technical or management skills and experience. She also had the legal right to undertake the work at the time. ... [16] On 7 September 2017, Immigration New Zealand declined the appellant’s application. In essence, Immigration New Zealand determined that, while gain or reward did not “have to be proportional to the duration of work”, the evidence provided (of ABC lawyers purchasing food for the appellant, giving her gift vouchers, stationery and some transport) was insufficient to satisfy Immigration New Zealand that the appellant had received gain or reward for her work at ABC lawyers . Without 10 points for over two years’ work experience, or 5 points for recognised work experience in New Zealand, the appellant had a total of 150 points which did not meet the selection criteria of 160 points. ... [34] At the time the appellant’s application was declined (7 September 2017), the appellant had provided evidence that she had worked: as an unpaid intern at a law firm in Z country (30 days); as an unpaid intern at ABC lawyers from 14 August 2015 to 31 December 2015 (four months, nine days); as a paid solicitor for the same firm from 9 March 2016 to 15 February 2017 (11 months, 6 days); and as a solicitor for DEF lawyers from 20 February 2017 (6 months, 18 days). This meant that on the date her application was declined, she had a total of 17 months, 24 days’ recognised (paid) work experience. Even adding in her unpaid work (one month plus four months, seven days), she had a total of 23 months, one month short of two years. [35] This means that, even if her voluntary work could constitute recognised work experience (which the Tribunal confirms it does not), the appellant would not have met the minimum requirement of two years’ recognised work experience and was therefore not entitled to 10 further points. [36] The Tribunal finds that Immigration New Zealand’s decision not to award points for two years’ work experience was correct. ... [48] Immigration New Zealand also appears to have accepted that the appellant was working in an occupation capable of being assessed as skilled, given that it raised no concerns about her position being a substantial match to that of Solicitor under the relevant ANZSCO classification. Her present employer regards her as a responsible and effective employee. [49] It is to the appellant’s credit that she has studied for and been awarded a Bachelor of Laws degree in this country. Like many other graduates, she had difficulty finding employment and, unfortunately, got off to an uncertain start with having to work in a voluntary capacity at ABC lawyers . As observed above, however, while the appellant believes that she was treated unfairly by her first employer, she would not have had sufficient recognised work experience to meet the instructions even if her unpaid work there was taken into account. ...": RQ (Skilled Migrant) [2018] NZIPT 204515 <https://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZIPT/2018/204515.html>.
"[57] In submissions to the Board, counsel for the appellant noted the "same job, different levels" observation of the Ministry of Education representative, and drew an analogy with the comparison between a recent law graduate , and one with five years' post-qualification experience or a partnership in a law firm. [58] Clearly, counsel argued, a recent graduate from law school would not be in a position to do the same job as someone with several years' post-qualification experience and/or a senior position in a law firm. However, that fact would not prevent the position of an entry-level law graduate being described as skilled employment. The Board agrees with that assessment, but respectfully disagrees with the accuracy of the analogy. The difference in that example is one of experience and, hopefully, wisdom and insight into the requirements of law and the legal profession. However, the common entry point is that all people entering the law profession must have a law degree. [59] Here, Early Childhood Educators can be employed on the basis of a one-year qualification; an Early Childhood Teacher must have a three-year qualification. The holder of either of those qualifications can achieve entry into the early childhood education profession, but the qualifications are markedly different and the tasks executed equally different. A more accurate analogy would be between a legal executive with a legal executive qualification and a lawyer with a law degree. It may well be that a legal executive with ten years' experience, at the outset, would know more than a recent law graduate newly employed by a law firm. However, that would not enable the legal executive to gain admission to the profession, to practice as a lawyer, or, critically, to be regarded as having the same skill set as the recent graduate. [60] The danger in such comparative exercises is of getting caught up in the significance of the qualification in and of itself, as opposed to as an indicator of the level of expertise a particular position requires. ...": Residence Appeal No: 15648 [2007] NZRRB 400 <https://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZRRB/2007/400.html>.
[B.M] Law Graduate - Paid Agent of a Law Firm - FWC
"[86] As may be seen from the outlines of submissions in the decision, Mr Patial contended that the costs application was not available in circumstances where Ms Christie was not a solicitor and nor, he submitted, was she a paid agent. Mr Patial submitted that Ms Christie was not a paid agent or a lawyer because she was a law graduate , working as an employee of the law firm Employsure and was covered by the Legal Services Award. In those circumstances, the effect of Mr Patial’s submissions around such matters was that there was no proper basis upon which Kailash’s costs application could proceed to the extent it referred to the costs of the work performed by Ms Christie, as identified in the schedule of costs in relation to the costs application. As to these submissions, Kailash referred to the interaction of s.596 of the Act and reg.3.08(3), i.e., if the Commission considers it appropriate, a charge in Schedule 3.1 that is applicable to a solicitor is applicable to a person who: (a) is not a solicitor; but (b) is mentioned in s.596 of the Act. [87] Ms Christie is a law graduate but was not admitted as a solicitor around the time relevant to the work undertaken for Kailash in relation to Mr Patial’s application for an unfair dismissal remedy. There is no issue that Ms Christie was not a solicitor, i.e., she was not, within the meaning defined in s.12 of the Act, a person who was admitted to the legal profession by a Supreme Court of a State or Territory. For the avoidance of doubt, given Mr Patial’s submissions that Ms Christie intentionally misled the Commission by suggesting she was a lawyer/solicitor, she did nothing of the sort. Indeed, I sought clarification from Ms Christie around the outset of the first listing on whether she was a lawyer/solicitor; she confirmed to me she was not a solicitor, or at least not yet. As an aside, Mr Patial later submitted, and in a somewhat contradictory way, that Ms Christie (also) intentionally misled the Commission by stating that she was a paid agent. [88] In the work Ms Christie undertook for Kailash and billed to it (or was billable to it) for her services as an employee of Employsure, Ms Christie was a paid agent for the purposes of the Act and the Regulations. I reject Mr Patial’s submissions to the contrary; there is nothing in Mr Patial’s submissions that would lead me to the view that the costs application could not proceed because of Ms Christie’s involvement in the work undertaken. Self-evidently, the work undertaken by Ms Christie/Employsure for Kailash was not being undertaken for free. It was work which was chargeable to Kailash by her employer, Employsure, and, thereby, Ms Christie was paid agent for the purposes of the Act and the Regulations.": Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2022] FWC 1449 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2022/1449.html>.
[C] Skills Assessment - Solicitor -
For the vast majority of skilled occupations, the skills assessment is a procedural step wherein an accredited body evaluates an applicant's qualifications and work experience against the standards defined by ANZSCO. For the occupation of Solicitor, however, this process is fundamentally different. It is not merely a procedural hurdle but a transformative journey that requires the applicant to navigate the complex and demanding regulatory framework of the Australian legal profession itself. This section provides an exhaustive analysis of this unique "skills assessment," which is inextricably linked with the formal process of admission to legal practice in an Australian state or territory. It details the governing principles, the multi-stage pathway, and the significant practical barriers that applicants must overcome.
The Unique Nature of the Solicitor Skills Assessment
The Department of Home Affairs' policy is unequivocal: for the occupation of Solicitor (ANZSCO 271311), a "suitable skills assessment" is constituted by "evidence of admission to practice as a lawyer in the relevant State/Territory". The acceptable evidence is typically an Australian legal Admission Certificate issued by a Supreme Court or a current Practising Certificate issued by a state or territory law society or regulatory authority.
This approach fundamentally distinguishes the solicitor pathway from nearly all other professions. Occupations such as accountants, engineers, or IT professionals have their skills assessed by designated independent authorities like CPA Australia, Engineers Australia, or the Australian Computer Society, respectively. These bodies have established criteria to assess the equivalence of foreign degrees and the relevance of work experience. In stark contrast, the "assessing authorities" for solicitors are the very bodies that regulate entry into the legal profession in each Australian jurisdiction, such as the Legal Profession Admission Board (LPAB) in New South Wales or the Victorian Legal Admissions Board (VLAB).
The mandatory nature of this assessment for points-tested visas (subclasses 189, 190, 491) and for the Direct Entry stream of employer-sponsored visas (subclass 186) is absolute. Critically, for points-tested visas, the regulations require that the applicant must have obtained this positive skills assessment by the time they are invited to apply for the visa. This "time of invitation" requirement is a rigid and unforgiving rule, the breach of which is a common cause of visa refusal with no scope for remedial action after the fact.
The "Shadow Criteria"
The formal visa criteria published by the Department of Home Affairs—such as the points test, age limits, and basic English requirements—represent only the visible tip of the iceberg. The true, determinative requirements are the detailed, rigorous, and non-negotiable academic and professional standards set by Australia's legal admitting authorities. These can be understood as the "shadow criteria" of the migration process.
A prospective applicant might review the Home Affairs website and see a straightforward requirement for a "suitable skills assessment". They then discover this means "admission to practice" , which may still sound like a single, discrete step. However, to achieve that single step, they must successfully navigate an entirely separate and complex regulatory ecosystem governed by state-based bodies and the LACC Uniform Principles. This separate system imposes its own demanding requirements regarding specific academic subjects, competency-based practical training, and an exceptionally high standard of English proficiency. These are not explicitly listed in the Migration Regulations, yet they are absolute prerequisites to meeting the regulations.
Consequently, the success or failure of a skilled visa application for a solicitor is effectively predetermined by the outcome of a process that occurs entirely outside the migration framework. These "shadow criteria" of the legal profession are far more challenging and ultimately more determinative than the points test or other standard migration requirements. For legal practitioners advising clients in this area, a failure to look beyond the Migration Act and Regulations to provide deep, expert guidance on this parallel journey through the legal admissions process constitutes a critical professional oversight.
[C.1] prior to admission (and prior to invitation)
"[13] The Tribunal has had regard to the reference in the Department’s Procedures Advice Manual (PAM3) regarding “Suitable skills assessment” for subclass 189 visas. Whilst the reference specifically provides that for doctors, evidence of full registration is a favourable skills assessment for this criterion, it is silent on the specific requirements for Solicitors . However, the Tribunal considers that even if it were not, to impose a requirement in policy that applicants must be admitted to practise (as opposed to being eligible to be admitted) would be to superimpose a requirement in excess of that prescribed by the relevant regulation, which merely requires that at the time of invitation to apply for the visa the relevant assessing authority had assessed the applicant's skills as suitable for the applicant's nominated skilled occupation. [14] The Tribunal is satisfied that the VLAB letter of 16 February 2016 is a positive skills assessment for the applicant as a Solicitor (regardless of whether she was not actually admitted to practise by the Supreme Court of Victoria until 22 March 2016). The Tribunal is further satisfied that the VLAB skills assessment was obtained prior to the applicant being invited to apply for the subclass 189 visa on 9 March 2016, and remains valid. [15] On the basis of these findings, the Tribunal finds that the applicant satisfies cl. 189 .212.": 1607515 (Migration) [2016] AATA 4637 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2016/4637.html>.
"[10] The delegate asserted that solicitors are required to provide evidence of admission to the legal profession in the admitting state or territory as the relevant skills assessment. Although the delegate acknowledged that the applicant had completed the necessary legal training to satisfy the skills requirements for admission, the admission had not taken place before 9 January 2015 which was the time of invitation to apply for the visa. [11] Although the delegate did not cite a reference in the Department’s Procedures Advice Manual 3 (PAM3), the Tribunal has had regard to the reference in PAM3 regarding “Suitable skills assessment” for Subclass 189 visas [at 4.1]. Whilst the reference specifically provides that for doctors evidence of full registration is a favourable skills assessment for this criterion, it is silent on the specific requirements for Solicitors . However, the Tribunal considers that even if it were not, to impose such a requirement in policy would be to superimpose a requirement in excess of that prescribed by the relevant regulation, which merely requires that at the time of invitation to apply for the visa the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation . ... [15] Taking into account all these circumstances, the Tribunal is satisfied, based on the evidence before it, that the letter to the applicant from the Council of Legal Education and Board of Examiners on 3 April 2012 indicated that the relevant assessing authority had assessed her skills as suitable for her nominated occupation provisional on her completion of addition study requirements. She completed those study requirements and provided evidence of having completed those study requirements with her application on 9 January 2015. Therefore the provisional requirement contained in her skills assessment was met at the time she was invited to apply for the visa. [16] On the basis of this evidence, the Tribunal is satisfied that at the time of invitation to apply, the relevant assessing authority, the Council of Legal Education and Board of Examiners, which is the SLAA for Victoria, had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation of Solicitor (ANZSCO 271311). [17] Accordingly, the Tribunal finds that the applicant satisfies cl. 189 .212(1)(a).": 1504652 (Migration) [2015] AATA 3572 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2015/3572.html>.
[C.2] ?Prior to Invitation
"23. Clause 489.222(1)(a) requires that at the time of invitation to apply for the visa, the relevant assessing authority had (the Tribunal’s emphasis) assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation. The Regulation uses the pluperfect tense indicating that the assessment had already taken place. The Tribunal finds that the relevant assessing authority had not assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation at the time of the invitation to apply for the visa. The Tribunal finds that a later skills assessment will not satisfy the requirements.": 1410670 [2014] MRTA 2287 -- but see Thapa 2021.
Timing:
> "11. In Thapa v MICMSMA [2021] FCCA 686 the Court considered the interpretation of cl 189.222 , which like cl.491.214, requires that the applicant had a relevant skills assessment, ‘at the time of the invitation to apply for the visa’. The Court held that the relevant point in time for which the requirement in cl 189.222 must be met is not the date of the invitation but rather, the period within which the invitation was valid or open (being the period between the date of the invitation and the expiration of the invitation). This interpretation appears equally applicable to the requirement in cl 491.214.": De Guzman (Migration) [2022] AATA 5097.
> "31. The Tribunal has considered the recent case of Thapa v MICMSMA [2021] FCCA 686, in which the Court considered the interpretation of cl. 189.222 , which, like cl.491.214, requires that the applicant had a relevant skills assessment ‘at the time of the invitation to apply for the visa.’ The Court held that the relevant point in time at which the requirement in cl. 189.222 must be met is not the date of the invitation but rather, the period within which the invitation was valid or open (being the period between the date of the invitation and the expiry of the invitation). This interpretation appears equally applicable to the requirements of cl.491.214. However, in this case, that period ran between 26 May 2021 and 26 July 2021; during this period, the first skills assessment was more than 3 years old, and the second skills assessment had not been issued. Therefore, Thapa’s case does not assist the applicant.": Chowdhury (Migration) [2024] AATA 1011.
"8. Mr Wedingco has always been a qualified chef by occupation, and had a valid skills assessment both prior to the date of application for the visa, and also again on a date very shortly after the date of his visa application, but here suffers from the technical misfortune of his having not been the holder of a valid skills assessment in the interregnum between the expiration of the currency of the prior skills assessment on 5 June 2018, and the issuing of the current skills assessment on 24 April 2019. Unfortunately, the visa application was one submitted during that interregnum, such that - in what may be seen as a “triumph of form over substance” Mr Wedingco cannot meet the requirements specified in clause 186.234(1)": Wedingco (Migration) [2023] AATA 3137.
[C.3] Procedural Instructions - Skills Assessment
Procedural Instructions, 189: "7.2.4 ... For solicitors and barristers, the Department accepts evidence of the applicant’s: admission to the relevant State or Territory Legal Admissions Authority; or admission to the Supreme Court of a state or territory as a suitable skills assessment. Evidence of admission to the Supreme Court of a state or territory demonstrates that an applicant has been deemed as suitable to practise as a solicitor or barrister in that jurisdiction. Applicants must continue to be on the roll at time of invitation.".
Procedural Instructions, 190: "6.3.4. ... For solicitors and barristers, the Department accepts evidence of the applicant’s: admission to the relevant State or Territory Legal Admissions Authority; or admission to the Supreme Court of a State or Territory as a suitable skills assessment. Evidence of admission to the Supreme Court of a State or Territory demonstrates that an applicant has been deemed as suitable to practise as a solicitor or barrister in that jurisdiction. Therefore, evidence of admission to the Supreme Court can be accepted as evidence of a suitable skills assessment for the occupations of solicitor and barrister. Applicants must continue to be on the roll and eligible to practise as a solicitor or barrister."
The Migration (LIN 19/051: Specification of Occupations and Assessing Authorities) Instrument 2019 specifies “a legal admissions authority of a State or Territory” as the relevant assessing authority for the Occupation of Solicitor ANZSCO 271311.
The Department of Home Affairs website -- “For solicitors, evidence of admission to practice as a lawyer in the relevant State/Territory is a suitable skills assessment. This could be your Australian legal Admission Certificate or Practising Certificate from the relevant legal admission authority for your State/Territory.”: 'Skills Assessment’ (Department of Home Affairs) <https://immi.homeaffairs.gov.au/visas/working-in-australia/skills-assessment>, archived at <https://perma.cc/GH88-FFAR>.
[C.4] How and When was Qualification Obtained (where skill assessments assessed on the basis of a qualification obtained in Australia while on a student visa) - eg, Sch 2, 189.222(2)
Procedural Instructions / PAM3
Procedural Instructions, 189 visa, 19 September 2025 <https://legend.online.immi.gov.au/migration/2021-2024/2025/19-09-2025/policy/Pages/_document00003/level%20100151.aspx>: "7.2.1. ... If the skills assessment was made on the basis of a qualification obtained in Australia while the applicant held a Student visa, the qualification must have been obtained as a result of studying a registered course (See subclause 189.222(2)). As each relevant assessing authority is responsible for setting its own standards, intending Subclass 189 applicants should, before submitting a SkillSelect EOI, directly contact the assessing body relevant to their chosen occupation for advice as to the information they will need to provide for, and fees associated with, obtaining a skills assessment. ... 7.2.7 ... For subclause 189.222(2), if the skills assessment was made on the basis of a qualification obtained in Australia while the applicant held a Student visa, the qualification must have been obtained as a result of studying a registered course. ‘Registered course’ is defined in regulation 1.03 This means that where the applicant undertook study in Australia as the holder of a student visa the course they studied, and relied on to obtain their skills assessment, must have been a registered course. This requirement is intended to enforce the intention of the Education Services for Overseas Students Act 2000 (ESOS Act) to prohibit education providers offering non-registered courses to overseas students studying in Australia."
Procedural instructions, 190 visa, 19 September 2025 <https://legend.online.immi.gov.au/migration/2021-2024/2025/19-09-2025/policy/Pages/_document00003/level%20100152.aspx>: "6.3.7... For subclause 190.212(2), if the skills assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification must have been obtained as a result of studying a registered course. ‘Registered course’ is defined in regulation 1.03 of Part 1 of the Regulations (See Attachment A – Definitions). This requires: - the applicant to have been legally permitted to study in Australia (through holding a student visa); and - that the course they studied was a registered course meaning it was provided by an institution, body or person that is registered under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000 (ESOS Act) to provide the course to overseas students. This requirement is reflects the intention of the ESOS Act to prohibit education providers offering non-registered courses to overseas students studying in Australia."
[Sch2Visa189] Skilled - Independent (Permanent) (Class SI) (Subclass 189) visa, 11 December 2020: text <https://legend.online.immi.gov.au/migration/2017-2020/2020/11-12-2020/policy/Pages/_document00003/level%20100151.aspx>: "7.3.1. ... If the skills assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification must have been obtained as a result of studying a registered course. If the skills assessment is for a trade occupation issued by Trades Recognition Australia for applicants who study in Australia and apply for their visa after January 2011, the assessment should specify whether the applicant has come through the Job Ready Program. The criteria against which an assessing authority assesses an applicant’s skills is determined by the assessing authority in accordance with relevant professional standards."
PAM - Sch2 Visa 189 - Skilled - Independent (Permanent), 24 March 2016: text <https://legend.online.immi.gov.au/migration/2006-2016/2016/24-03-2016/legend_current_mp/Pages/_document00003/level%20100151.aspx>: "If the skills assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification must have been obtained as a result of studying a registered course. This criterion requires: - that the intending migrant was legally able to study in Australia, through holding a student visa and -that the course they studied was a registered course. It supports the intention of the ESOS Act to prohibit education providers offering non-registered courses to overseas students studying in Australia."; see also, Schedule 2 criteria- The SI-189 main applicant, 6 October 2014 <https://legend.online.immi.gov.au/migration/2006-2016/2014/06-10-2014/legend_current_mp/Pages/_document00003/_level%20100151/level%20200652.aspx>.
"For 489.222(2), if the skills assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification must have been obtained as a result of studying a registered course (see section 1.3 Key defined terms). This requires: - the applicant to have been legally permitted to study in Australia (through holding a student visa) and - that the course they studied to have been a registered course. This requirement is intended to enforce the intention of the Education Services for Overseas Students Act (ESOS Act) to prohibit education providers offering non-registered courses to overseas students studying in Australia.": [Sch2Visa489] Sch2Visa489 - Skilled - Regional (Provisional), 19 September 2025 <https://legend.online.immi.gov.au/migration/2021-2024/2025/19-09-2025/policy/Pages/_document00003/level%20100182.aspx> text.
Case Law
Sch 2, subclass 189: "3. 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). The delegate refused to grant the visa because the applicant did not satisfy cl.189.212, which requires that, at the time of the invitation to apply for the visa, the relevant assessing authority for the applicant’s nominated occupation had assessed the applicant’s skills as suitable for that occupation, and that any such assessment was not for the purposes of a subclass 485 (Skilled Graduate Temporary) visa. In addition, if the assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa , the qualification had to be obtained as a result of studying a registered course. The delegate noted that the applicant had been requested to provide a skills assessment but had provided one from CPA Australia dated 22 February 2011 that indicated that he had been assessed as not being academically suitable for migration as an Accountant (General) for the purposes of a subclass 485 visa application. The delegate therefore found the applicant could not satisfy the criteria for the grant of a subclass 189 visa. ... The Tribunal is satisfied, from the information provided to it and to the Department, and from the Department’s records, that: - the applicant’s nominated skilled occupation is Accountant (General); - at the time of the invitation to him to apply for the visa on 4 November 2013, the applicant had been issued with a skills assessment by CPA Australia on 27 December 2012 in which his skills were found to be suitable for the occupation of Accountant (General) on the basis his Bachelor of Business and Commerce from Monash University in Australia; - the above skills assessment is not stated to be for the purposes of a subclass 485 visa application; - the applicant completed his Bachelor of Business and Commerce at Monash University in Australia between 26 February 2007 and 6 December 2010, during which time the Department’s electronic records indicate that he held subclass 573 (Higher Education Sector) student visas; and - according to the website of the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), the Bachelor of Business and Commerce at Monash University was a registered course at the relevant time.": 1410132 [2014] MRTA 2009 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2014/2009.html>.
** Ministerial delegate's statutory construction - Education Qualification, with a finding that skills assessment was based on that: "17. ... With respect to subclause 491.214(2), if a skills assessment was made on the basis of a qualification obtained in Australia while the applicant held a Student visa , the course must be a registered course. Departmental records shows that you held a Student visa (subclass 572) from 5 May 2016 to 30 June 2017 and in your visa application you declared you undertook the study for your Diploma of Hospitality Management at FMEDGE from 26 May 2017 to 30 May 2017. The s57 notice proceeds directly to the consideration of whether the applicant satisfies elements of the subclause 491.214(2) without first addressing in detail the primary qualifying phase and whether it applies to the circumstances of the applicant. Accordingly, we now provide further detailed submission in support of this clear position that 491.214(2) is not applicable to the circumstances of the applicant. For thoroughness we dissect the elements of 491.214 (2) and apply same in relation to the circumstance of the applicant. For thoroughness we dissect the elements of 491.214 (2) and apply same in relation to the circumstance of the applicant. If While simple it is important to establish that the presence of the proceeding clause to ‘if’ makes it clear that an applicant must meet such circumstances in order for the balance of the clause requirements to apply. 'the assessment' As 491.214 (2) is a sub-regulation to the overall clause the establishment of ‘the assessment’ as prescribed in (1) is a vital consideration. In this ‘the assessment’ is one which must have been: Attained prior to date of invitation to apply for the subclass 491 visa; and Supplied by the relevant assessment authority in this case (VETASSESS); and For the applicants nominated skilled occupation in this case (Café or restaurant manager); and a positive skills assessment confirming the applicant has skills suitable for the occupation; and a full migration skills assessment and not skills assessment for purpose of subclass 485 graduate visa; and be attained within the set validity period. Noting the above, key points relating to the application of 491.214 (2) are that ‘the assessment’ must be through VETASSESS, in the occupation Café or Restaurant Manager and that the body being VETASSESS must have confirmed the applicant’s skills as suitable. It is acknowledged in s57 notice that there is no contention relating to the applicant satisfying 491.214 (1). Accordingly, it is confirmed that ‘the assessment’ attained by the applicant for the purpose of 491.214 (2) is that prescribed by 491.214(1) being ‘positive migration skills assessment through VETASSESS in the nominated occupation of café or restaurant manager’. 'was made' Simple yet pivotal in considering the overarching application of the legislative clause, ‘was made’ relates to the attainment of the decision from VETASSESS to approve the applicant’s skills as suitable for the nominated occupation. Combined ‘the assessment was made’ indicates the attainment of decision/conclusion that the applicant’s skills assessment was suitable for the nominated occupation. This is distinctively different to method of conducting skills assessment in general. 'on the basis of' In the context of reaching a particular outcome, in this case for a positive skills assessment, the ‘basis’ is ‘the justification for or reasoning behind’ reaching a decision that the applicant’s skills were suitable to the nominated occupation. 'a qualification' In context of the legalisation qualification is intended to be an educational qualification. In addition, ‘a’ is singular, indicating a sole factor of consideration and justification. Combined ‘on the basis of a qualification’ means positive skills assessment attained solely on holding ‘a qualification’. Combined, the qualifying component as to the application of 491.214 (2) is the phase: ‘If the assessment was made on the basis of a qualification...’ At the time the applicant applied to VETASSESS for a migration skills assessment in the nominated occupation the requirements were clear and are listed in the skills assessment decision record provided with the visa application. In this decision record VETASSESS clearly states: A positive assessment of both qualifications and employment is required for a positive Skills Assessment Outcome. The clarity of this requirement cannot be understated in terms of applying the relevant regulation to the applicant. To clarify it is certainly possible for a prospective migrant to apply to VETASSESS for a migration skills assessment in the designated occupation. In such application a person can submit ‘a qualification’ as the basis of their skills. Subsequently VETASSESS can conduct an assessment of the documents supplied by such applicant however in the absence of supplying documents to support the years of employment history in the nominated occupation, VETASSESS can reach no conclusion other than to deem the applicant’s skills as being unsuitable for the nominated occupation. Accordingly, it is not possible to attain a positive migration skills assessment from VETASSESS in the occupation of café or restaurant manager ‘on the basis of a qualification’. The above is further supported when review of the original introduction of the clause in question to the skilled migration program is made. The clause in question was originally introduced 1 July 2006 and was applied to the suite of general skilled migration visa subclass at the time. The primary subclass being skilled independent subclass 136. The explanatory statement to instrument (F2006L01876) which introduced the clause outlined the basis for this clause as follows: Item [19] – Schedule 2, clause 136.222 ... The purpose of this amendment is to ensure that where an applicant seeks to satisfy the primary criteria for the grant of a Subclass 136 visa on the basis of an Australian qualification obtained while the applicant was the holder of a student visa, the qualification must have been obtained as a result of studying a full time course that is registered on the Commonwealth Register of Institutions and Courses for Overseas Students. ...’ ... 22. The Tribunal is satisfied that the skills assessment was based on both the applicant’s experience and qualification. His qualification is the Diploma of Hospitality Management. 23. The Tribunal is satisfied and at the time of the assessment the applicant held a student visa and the certificate of completion of the course, was made by FMEDGE on 30 May 2017. FMEDGE is and Australian educational institution. 24, The Tribunal is satisfied that the assessment was made on the basis of a certificate/qualification from FMEDGE on 30 May 2017, when the applicant held a student visa. 25. The Tribunal undertook a CRICOS search of both the educational institution FMEDGE and the course Diploma of Hospitality Management. The Tribunal is satisfied that this course undertaken by the applicant while studying FMEDGE is not a registered course within CRICOS. ...:": Perez (Migration) [2023] AATA 2800 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2023/2800.html>.
>> but see comments by the FCA on "qualification" in Chen v Minister for Immigration & Multicultural Affairs (includes corrigenda dated 9 February 2001) [2000] FCA 1901 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2000/1901.html> above.
>> but see also, "18. The term "qualification" is not defined in the MRA. It does appear in s 4(1), which defines "occupation" to mean an occupation, trade, profession or calling that may be carried on by registered persons, where registration is dependent on "the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper)". 19. The VBA submits that the definition of "occupation" should not be taken to control that of "qualification". The text of s 17(2)(b) suggests "qualification" has a narrower meaning than is given in s 4(1). It cannot have the same meaning as in the definition of "occupation" because the latter includes "experience" as a qualification, whereas s 17(2)(b) treats "experience" as different from a qualification in its reference to "qualification or experience". This would suggest that "qualification" is intended to refer merely to an academic or other educational or technical qualification, as was held in Re Director-General of Health (Cth); Ex parte Thomson[16]. 20. The context provided by Pt 3 also indicates a narrow meaning of "qualification" in s 17(2)(b) which does not extend to character, the VBA submits. The same phrase is used in s 20(4), which provides that continuation of registration is subject to the laws of the second State, which are described in the same way as in s 17(2). Such laws must not be based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation. If "qualification or experience" is construed to extend to character requirements, it would produce the absurd and unintended consequence that a person's registration in the second State could never be revoked on the basis that the person ceased to be of good character, the VBA contends. A harmonious reading of ss 17(2) and 20(4) requires a conclusion that s 17(2)(b) does not encompass requirements as to character. 21. The text of s 17(2)(b) does not support the VBA's submission. If only the words "qualification or experience" appeared there, there might be something to be said for the view that "qualification" is intended to refer to some technical qualification. The relevant provisions in Thomson required regard to be had to the "qualifications, experience and standing" of a medical practitioner in determining whether he or she be recognised as a specialist. But s 17(2)(b) contains a further description. It refers to a qualification or experience "relating to fitness to carry on the occupation". Not only do these words suggest a broader meaning than that a qualification be of an educational or technical kind, they clearly encompass the subject matter of s 170(1)(c) of the Building Act, namely whether a person is of good character and therefore fit to carry on the occupation. The evident purpose of the enquiry under the Building Act is to determine whether the person has that inherent characteristic or quality. 22. So understood, the meaning of "qualification" in s 17(2)(b) is consistent with that appearing in the definition of "occupation". Indeed, were the text of s 17(2)(b) itself not so clear, one would wonder why the definition of "occupation" in s 4(1) would not be useful as an aid to construction. It may not itself provide a definition of "qualification" but it gives examples of what may be taken to fall within that description and "character or being fit or proper" are included amongst them in addition to "education" and "experience". This is understandable since these characteristics would generally be understood to be requirements of most occupations, unless the context suggested otherwise such as in Thomson. The examples given in s 4(1) should be taken to indicate that the term "qualification" when it is used in the MRA is to have a broader meaning than as relates to education. 23. A construction of s 17(2)(b) which excludes a law which allows a local registration body to determine the question of the fitness of a person to carry on an occupation as a prerequisite to registration is consistent with the scheme of the MRA and the mutual recognition principle on which it is founded. 24. The mutual recognition principle accepts that registration for an occupation in the first State is sufficient for registration in the second State, without any further requirements of the laws of the second State being fulfilled. Were it otherwise, the primary purpose of the MRA would be substantially undermined. 25. This understanding of the operation of the mutual recognition principle is confirmed by s 20(1), which speaks of an entitlement to be registered in the second State on notification of registration in the first State, and of the law of the second State being taken to accept that as a sufficient ground for registration. A State Act such as the Building Act is, by s 20(1), to be understood to so provide. ... 27. This is not to say that the local registration authority of the second State is unable to make any enquiries. By s 19(2)(h) a person is required to consent to that taking place and to exchanges of information between the authorities of any States. But these enquiries can only be directed to the exercise of the powers given by the MRA to the local registration authority of the second State other than that to grant registration. They are the powers to postpone or refuse registration[19] or to condition it[20]. The powers to postpone or refuse registration are limited to the circumstances outlined above. ... 46. In Re Petroulias the applicant for admission as a legal practitioner did not make the declaration required by s 19(2)(d) of the MRA, that he was not the subject of any investigation in another State which might lead to disciplinary proceedings. He could not do so because he was in fact the subject of such an investigation, but he made no mention of it. De Jersey CJ held that because the applicant did not accurately verify the statutory declaration his notice did not meet the requirements of s 19. The entitlement to registration did not therefore crystallise. Davies JA preferred to view the applicant's silence as materially false and misleading for the purposes of the postponement or refusal powers (ss 22 and 23 of the MRA). 47. In Re Petroulias the Court of Appeal of Queensland also expressed the view that the court retained its inherent jurisdiction respecting the admission of lawyers regardless of the MRA. This is a view that has been adopted by other courts. The correctness of it does not arise for consideration on this appeal. A view about the co-existence of a superior court's inherent jurisdiction and the MRA does not avail the VBA's argument for a more general discretion. ... 55. Insight into the basic design which the MRA adopts in the implementation of the national mutual recognition scheme to promote the goal of freedom of movement of goods and service providers in a national market in Australia is provided by the long title to the MRA[40]. The long title describes it as an "Act to provide for the recognition within each State and Territory of the Commonwealth of regulatory standards adopted elsewhere in Australia regarding goods and occupations". The description provides the greatest illumination when it is read together with the MRA's definitions of "goods" and of "occupation": "goods" encompass "goods of any kind"[41], and "occupation" encompasses "an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper)"[42]. ... 78. Sections 17(2)(b) and 20(4)(b) as so interpreted combine to ensure that a law of the second State which regulates the manner of carrying on an occupation in the second State has no application to the continuance of a person's registration under s 20(2) of the MRA in the second State if, and to the extent that, the law requires or allows discontinuance of registration in the second State to be based on the registrant possessing or not possessing some experience or qualification of which training and education, as well as character and being fit or proper, are each examples. 79. The result is that questions as to the continuing qualification of a person to engage in an occupation for which the person has been registered in the second State – including questions as to the person's continuing good character or continuing fitness or propriety to engage in the occupation – are questions which the local registration authority of the second State has no authority to decide. Questions of that nature must be left by the local registration authority of the second State to be answered by the local registration authority of the first State. 80. The result accords with the generality of the already quoted explanation in the Minister's second reading speech that "[l]ocal registration authorities will be required to accept the judgment of their interstate counterparts of a person's educational qualifications, experience, character or fitness to practise".": Victorian Building Authority v Andriotis [2019] HCA 22. -- what MR Act registration entails in assessment.
> Recognition of minimum standards achieved for admission: "12. 12. Reference was made to the Mutual Recognition Act 1992 (Cth). The purpose of that Act as it applies to the legal profession is to promote a national market in legal services and to that end the Mutual Recognition Act facilitates through a simple system of registration (and not formal admission ) the recognition by one State or Territory of the right to practise as a legal practitioner gained in any State or Territory. To that extent the Mutual Recognition Act may be considered to contribute towards the development of a national legal profession. It is true that the spirit and intendment of the Mutual Recognition Act means that a court or other admitting authority in Australia should not favour an approach to recognition of qualifications for admission which discriminates against an applicant who has obtained proper qualifications elsewhere in Australia. However, there is a correlative responsibility cast upon this Court to act in the awareness that as a result of granting applications such as the present too readily, it might become the weakest point of entry into the legal profession in Australia. The Court should therefore not see in the fact (if it is a fact) that the applicant's qualifications are not sufficient for his admission anywhere else in Australia as contributing to any special circumstances which are relied upon in order to justify the exercise of the discretion to regard the applicant as one who has the practical training required in the Territory to entitle him to apply for admission as a barrister and solicitor of the Territory.": Re the Application of William Dudley Kavanagh To Be Admitted As A Barrister and Solicitor of the Supreme Court of the Australian Capital Territory and Re the Legal Practitioners ACT [1995] ACTSC 12.
-> cf "It was clearly necessary that uniform or harmonious rules and standards for admission apply in every jurisdiction in Australia, if the creation of a national legal profession, now an accepted objective, was to be brought about; such uniformity was a corollary of the application by all States and Territories (except Western Australia) of the Mutual Recognition Act 1992 (C'th). This need was much the same as the earlier need to bring the various State railways to a standard gauge, thereby breaking down unnecessary barriers to interstate trade and commerce in Australia. Amongst the necessary common admission standards are those which the requirements for practical legal training should meet. Those common standards have not yet been developed by the Consultative Committee; hence the present generality of r11(1)(a).": Nelson, Application to practice as Legal Practitioner [1994] NTSC 86; 98 NTR 17; 116 FLR 104.
-> MR Act admission requires exercise of LP Act: "40. The same view of the Supreme Court’s inherent jurisdiction was taken by the Full Court of the Supreme Court of Western Australia in Re Tkacz [2006] WASC 315, 206 FLR 171. At [46] – [57] (183-6) the court referred to authorities on the supervisory jurisdiction of the Supreme Court with respect to legal practitioners generally, including Re Davis [1947] HCA 53; (1947) 75 CLR 409 and Re Petroulias. Their Honours examined relevant provisions of the Mutual Recognition Act at [62] – [69] (186-8). They observed at [64] that the provision in s 20(1) that a person is “entitled to be registered” in the circumstances set out in the subsection was a reference to the “sufficiency of the qualifications or experience necessary to secure registration,” noting that by subs (2) the grant of registration remained a matter for the discretion of the local registration authority. Their Honours concluded at [66] (187) that the “long-standing capacity of the superior courts to determine that only the persons with the requisite personal qualities of character be admitted to, or remain on, the Roll ... remains unaffected by the mutual recognition legislation.” The “established and long recognised power of the Court to determine whether a person should be admitted to its Roll” was held to apply equally to applicants for admission under the mutual recognition legislation as it does to applicants under the provisions of the relevant West Australian legislation, the Legal Practice Act 2003: [69] (188).": Comeskey v The New South Wales Bar Association [2015] NSWSC 824.
> "44 Application of mutual recognition principle (1) The mutual recognition principle and the provisions of this Act may be taken into consideration in proceedings of any kind and for any purpose. (2) Nothing in this Act prevents a person from relying on the mutual recognition principle in relation to more than 2 States. Note: The mutual recognition principle applies in relation to goods (see section 8), occupations that are equivalent (see section 16) and activities covered by occupations (see section 42A).": Mutual Recognition Act 1992 (Cth) s 44.
> "Admission in one State entitles a person to mutual recognition in another pursuant to the Mutual Recognition Act 1992 (Cth) and its State and Territory counterpart legislation.": LAW SOCIETY OF SOUTH AUSTRALIA v BETRO (No 2) [2025] SASCFC 3, [125] (n 61) <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SASCFC/2025/3.html>.
> ** 'qualification obtained in Australia' - whether for Barristers, Solicitors, and Medical Practitioners - PAM3 / Procedural Instructions where admission and full medical registration by AHPRA is suitable skills assessment - whether 'qualification obtained in Australia' extends to 'admission' in Australia or 'AHPRA registration' cf educational qualifications - and if so, whether foreign practitioners on student visas prejudiced by reason of admission under the Mutual Recognition Act 1992 (Cth) or Trans-Tasman Mutual Recognition Act 1997 (Cth) or APHRA Competent Authority pathway, by reason of the 'qualification' being obtained solely as a result of occupational registration in Australia or overseas (and on no other grounds, eg, study).
"obtained" - "obtain" - means to obtain a (educational) qualification, even where obtained wholly by Recognised Prior Learning or recognition: "17. IMMI 12/096 is the relevant instrument for these purposes, and the Tribunal is satisfied that it contains the applicant’s nominated occupation of Cook (ANZSCO 351411). However, the available evidence indicates that the applicant did obtain her necessary qualification for this occupation (her Certificate IV in Commercial Cookery) in Australia (albeit by RPL, discussed below). ... 23. As noted above, the delegate did not accept that this qualification met the requirements in ANZSCO as Departmental policy (as set out in Procedures Advice Manual 3 (PAM3)) as it stood at that time (June 2019) provided that a qualification obtained by RPL could not substitute for all of the course content in a credit transfer arrangement but could only apply to a small number of completed assessment items; and that where a decision maker was not satisfied the qualification genuinely reflected an appropriate level of assessment as evidence for skills acquired during a formal course of learning, then they could form the view that cl.187.234(c) was not met. In this case, the delegate placed adverse weight on the fact that the RTO letter did not specify which of the listed assessment tools had been used in the applicant’s case. 24. The Tribunal notes that this appears to have been removed from the current policy document used by the Department for cl.187.234(c) (as at 22 May 2022). 25. The Tribunal further notes that the plain wording of cl.187.234(c) requires only that the applicant obtained the necessary qualification in Australia, and had the qualification listed in ANZSCO as necessary to perform the tasks of the nominated occupation. PAM3 as it stood previously arguably asks the decision maker to go behind the qualification itself and question the basis upon which it was issued, and the Tribunal considers that this goes beyond the requirements of the legislation. In the Tribunal’s view, this is supported by the fact that the current version of PAM3 on cl.187.234(c) no longer contains a prohibition on considering qualifications obtained solely or partly through RPL. Accordingly, the Tribunal finds that the applicant obtained a Certificate IV in Commercial Cookery in Australia in 2015, which is one of the qualifications listed in ANZSCO as required for the occupation of Cook in Australia.": Gautam (Migration) [2022] AATA 2195.
> "50. Recognised Prior Learning ( RPL ) is a well-established method by which a student can obtain from a provider a credit (or credits) for a subject (or subjects) previously undertaken by that student, either at that or some other provider, in respect of which he or she has been assessed as competent. A Transcript of Results issued by the second provider will usually record that a credit for a subject was obtained in this way to inform the reader that no formal assessment process was carried out by that provider in that subject.": Ghimire (Migration) [2023] AATA 3244.
> see also, "5. The delegate refused to grant the visa because the delegate found that the applicant did not meet cl 187.234 of Schedule 2 to the Regulations, which requires that the applicant either had a skills assessment for his occupation, if it were an occupation specified by the Minister, or has the qualifications listed in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary for the nominated occupation, or is exempt from these requirements. The delegate found that the applicant was not exempt, did not have a specified occupation and therefore had to have the qualifications listed in ANZSCO for a Chef. While the applicant held a Certificate III and Certificate IV in Commercial Cookery, the delegate noted that they were obtained by Recognition of Prior Learning ( RPL ). The delegate applied Departmental policy, as set out in the Department’s Procedures Advice Manual (PAM3), to exclude these qualifications as PAM3 indicated that qualifications obtained entirely by RPL were not acceptable for the purposes of cl.187.234. The delegate considered the applicant’s prior work experience as a Cook and/or Chef, but found that most of it was unverified and was also largely undertaken while the applicant held a student visa restricting his work rights to 20 hours per week. The delegate was therefore not satisfied that the applicant had work experience at the required skilled level of at least 3 years, as also required. The delegate found that the applicant did not meet the requirements for a subclass 187 visa in the Direct Entry and had not made claims against any other stream. ... 42. As noted above, the delegate did not accept that this qualification met the requirements in ANZSCO as Departmental policy (as set out in Procedures Advice Manual 3 (PAM3)) as it stood at that time (March 2019) provided that a qualification obtained by RPL could not substitute for all of the course content in a credit transfer arrangement but could only apply to a small number of completed assessment items; and that where a decision maker was not satisfied the qualification genuinely reflected an appropriate level of assessment as evidence for skills acquired during a formal course of learning, then they could form the view that cl.187.234(c) was not met. 43. The Tribunal notes that this appears to have been removed from the current policy document used by the Department for cl.187.234(c) (as at January 2023). The Tribunal further notes that the plain wording of cl.187.234(c) requires only that the applicant obtained the necessary qualification in Australia, and had the qualification listed in ANZSCO as necessary to perform the tasks of the nominated occupation. PAM3 as it stood previously arguably asks the decision maker to go behind the qualification itself and question the basis upon which it was issued, and the Tribunal considers that this goes beyond the requirements of the legislation. In the Tribunal’s view, this is supported by the fact that the current version of PAM3 on cl.187.234(c) no longer contains a prohibition on considering qualifications obtained solely or partly through RPL . 44. However, the Tribunal finds that the applicant’s Certificate III and Certificate IV in Commercial Cookery are not qualifications listed in ANZSCO as required for the occupation of Chef in Australia. Rather, a Diploma or higher qualification is required and there is no evidence that the applicant has a qualification of this kind, whether obtained in Australia or overseas, by study or RPL . Therefore, the Tribunal finds that the applicant does not have the formal qualification(s) listed in ANZSCO for the occupation of Chef in Australia.": Kandel (Migration) [2023] AATA 105.
> "32. The plain wording of cl 187.234(c) of the Regulations applicable in this case requires that, in circumstances where an applicant has obtained the qualification in Australia, they must also have had the qualification listed in ANZSCO as necessary to perform the tasks of that occupation. In the opinion of the Tribunal, PAM 3 as at the time of the delegate’s decision, enabled a decision maker to go behind the qualification itself and question the basis on which it had been obtained. Consistent with the decision of the Tribunal (differently constituted) in Gautam [2022] AATA 2195, the Tribunal is of the view that the policy relied upon by the delegate goes beyond the requirements of the legislation. In the view of the Tribunal, this is supported by the fact that the current version of policy in relation to cl 187.234(c) of Schedule 2 to the Regulations no longer contains the text italicised above at para [30] prohibiting consideration of qualifications obtained solely or partly through RPL.": Rashed (Migration) [2022] AATA 3668.
> Matusiewicz (Migration) [2022] AATA 3603, [24].
Provider and course registered on the CRICOS register: "15. On the evidence before the Tribunal, the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa . The information before the Tribunal is that SELC Career College is registered under the ESOS Act, and the Tribunal finds that the qualification was obtained as a result of studying a registered course. As the qualification was obtained as a result of studying a registered course, the applicant satisfies the requirements of cl.485.224(2).": Santos (Migration) [2017] AATA 1377.
Solicitor occupation - in this case, Tribunal did not comment on PLT course, only LLB and LLM: "9. If the assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa , the qualification must have been obtained as a result of studying a registered course: cl.189.212(2). ‘Registered course’ is defined to mean a course of education or training provided by an institution, body or person that is registered, under the Education Services for Overseas Students Act 2000, to provide the course to overseas students (r.1.03). 10. The Tribunal is satisfied that IMMI 16/060 lists Solicitor as a skilled occupation for the purposes of this visa subclass, and that the relevant assessing authority is listed as SLAA. According to the Department's website (http://www.immi.gov.au/Work/Pages/asri/solicitors/aspx), in Victoria this is the Council of Legal Education and Board of Examiners (http://www.lawadmissions.vic.gov.au). Having made enquiries of VLAB, the Tribunal is satisfied that the Council of Legal Education and Board of Examiners changed its title to VLAB on 1 July 2015, and that it remains the relevant SLAA for Victorian legal practitioners for the purposes of this visa application. 11. From the material on the Department’s and Tribunal’s files, the Tribunal is satisfied that: - the applicant was invited to apply for a subclass 189 visa on 9 March 2016 by the Department; - the applicant lodged a subclass 189 visa application online on 28 April 2016 in which she nominated her skilled occupation as Solicitor and indicated that she had a suitable skills assessment for this occupation from the State Legal Admission Authorities (SLAA) dated 16 February 2016; - the applicant received a letter issued 16 February 2016 to the applicant by the Victorian Legal Admissions Board (VLAB) confirming that her academic and practical legal training requirements satisfied the skills requirements for admission to the legal profession in Australia, and that she had applied to be admitted to the Supreme Court of Victoria on 22 March 2016. The letter does not state that it was issued for the purposes of a subclass 485 visa application and expresses no validity period; and - the applicant provided a copy of this letter to the Department on 12 May 2016. 12. From the material on the Department’s file, it is evident that the letter issued by VLAB on 16 February 2016 was issued on the basis that the applicant had completed a Bachelor of Laws (Graduate Entry) at Victoria University in Melbourne between 24 February 2014 and 22 August 2015 and a Master of Laws degree at the University of Melbourne between 27 February 2012 and 27 February 2013. The Tribunal is satisfied from the Department of Education and Training’s Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) website that these are registered courses. The Tribunal is further satisfied from the Department’s movement records that the applicant held subclass 573 (Higher Education Sector) student visas for the duration of the above courses. 13. The Tribunal has had regard to the reference in the Department’s Procedures Advice Manual (PAM3) regarding “Suitable skills assessment” for subclass 189 visas. Whilst the reference specifically provides that for doctors, evidence of full registration is a favourable skills assessment for this criterion, it is silent on the specific requirements for Solicitors. However, the Tribunal considers that even if it were not, to impose a requirement in policy that applicants must be admitted to practise (as opposed to being eligible to be admitted) would be to superimpose a requirement in excess of that prescribed by the relevant regulation, which merely requires that at the time of invitation to apply for the visa the relevant assessing authority had assessed the applicant's skills as suitable for the applicant's nominated skilled occupation. 14. The Tribunal is satisfied that the VLAB letter of 16 February 2016 is a positive skills assessment for the applicant as a Solicitor (regardless of whether she was not actually admitted to practise by the Supreme Court of Victoria until 22 March 2016). The Tribunal is further satisfied that the VLAB skills assessment was obtained prior to the applicant being invited to apply for the subclass 189 visa on 9 March 2016, and remains valid. ...": 1607515 (Migration) [2016] AATA 4637.
"Basis" - Not explicit stated in skills assessment, inferred:
> "20.Although not explicitly stated, it appears that the skills assessment issued to the applicant was based on the fact that she completed a Diploma of Early Childhood Education and Care at the Central Institute of Technology in Western Australia between 3 February 2014 and 4 December 2015. The Tribunal is satisfied from the Department’s records that the applicant held a subclass 572 (Vocational Education and Training Sector) student visa throughout this period.": 1609140 (Migration) [2016] AATA 4762.
> "21. If the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa , the qualification must have been obtained as a result of studying a registered course (cl.485.224(2)). ‘Registered course’ is defined to mean a ‘course of education or training provided by an institution, body or person that is registered, under section 9 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students’ (r.1.03). 22. It is not entirely clear to the Tribunal whether the applicant’s most recent skills assessment from TRA was obtained as a result of his having studied a registered course in Australia, as it appears (from the applicant’s evidence at hearing) that his second skills assessment may have been successful as a result of his longer amount of employment experience as a welder since his first skills assessment application. 23. However, the Tribunal has nevertheless assessed him against cl.485.224(2) as it appears that his second skills assessment may have been partially based on his Australian qualification. On the evidence before the Tribunal, it finds that the applicant completed a Diploma of Engineering (Advanced Trade) (incorporating a Certificate IV in Engineering) at Kangan Institute of TAFE between 18 July 2011 and 14 June 2013. The Tribunal is satisfied from the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) that this is a registered course. It is further satisfied from the Department’s movement records that the applicant held a student visa (or visas) throughout the period of his studies. Accordingly, the Tribunal finds that the applicant satisfies the requirements of cl.485.224(2).": 1417182 [2015] MRTA 493 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2015/493.html>.
Multiple registered courses: Jolly (Migration) [2019] AATA 1148, [18]; 1420977 [2015] MRTA 398, [17].
PRISMS search: Gadsby (Migration) [2019] AATA 5088, [19].
Clause is engaged where qualification obtained throughout a period where applicant held a student visa interspersed with bridging visas (or another visa):
> "17. On the evidence before the Tribunal, the applicant’s skills were assessed partially on the basis of a qualification obtained in Australia, being the Master of Business Administration at Federation University of Australia. The course study dates provided by the applicant on the visa application form were that the course commenced on 1 January 2014 to 3 March 2017, although the eCOE indicates that the course commenced in March 2015 and the academic transcript appears to reflect that the applicant commenced study in 2015. The academic transcript gives the course completion date of 4 November 2016 with the award being conferred on 7 February 2017. It appears that the applicant undertook the course from March 2015 to November 2016. As to the visa held while completing this study, based on the information before the Tribunal the applicant has held successive student visas since 23 September 2011 with short gaps where she held a Bridging Visa. Therefore, it is necessary for the Tribunal to consider whether the qualification was obtained as a result of studying a registered course (cl 485.224(2)). The Federation University of Australia is registered to provide the course to overseas students, and the Tribunal finds that the qualification was obtained as a result of studying a registered course.": Guzman Mahecha (Migration) [2021] AATA 2567.
> Kim (Migration) [2019] AATA 1429, [22] -- 572 visa and 500 visa.
Clause not applicable where:
> relevant educational qualification obtained overseas: "11. The Tribunal finds on the basis of the skills assessment that the applicant’s skills have been assessed by the relevant assessing authority, the CPAA, as suitable for the nominated skilled occupation of External Auditor and that the applicant therefore satisfies the requirements of cl.190.212(1) of Schedule 2 to the Regulations. ... 12. If the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa , the qualification must have been obtained as a result of studying a registered course (cl.190.212(2)). 13. The skills assessment indicates that the applicant’s skills were assessed on the basis of a qualification obtained overseas. On the evidence before the Tribunal, the applicant’s skills were not assessed on the basis of a qualification obtained in Australia while the applicant held a student visa . Accordingly cl.190.212(2) is not applicable in this case.": 1418857 [2015] MRTA 393 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2015/393.html>.
> skill assessment based on overseas qualification: "15. As discussed above, the applicant’s skills assessment was based on his studies in Brazil and not on any studies or qualifications obtained in Australia. Accordingly, cl 485.224(2) does not apply in the applicant’s circumstances. Therefore, it follows that the applicant meets the requirements of cl 485.224.": Shimoyama (Migration) [2024] AATA 1663.
> relevant qualification from India: "18. If the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa , the qualification must have been obtained as a result of studying a registered course (cl.485.224(2)). ‘Registered course’ is defined to mean a ‘course of education or training provided by an institution, body or person that is registered, under section 9 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students’ (r.1.03). 19. Information in the skills assessment document provided by Engineers Australia to the applicant indicates that the applicant’s skills were assessed on the basis of a Competency Demonstration Report (CDR) that he provided and his qualifications from Jawaharlal Nehru technological University Hyderabad which he had completed in May 2010. On this basis the Tribunal finds that his skills were not assessed on the basis of a qualification obtained in Australia (although information on file indicates that he has also undertaken further study in Australia). 20. Therefore on the evidence before the Tribunal, the applicant’s skills were not assessed on the basis of a qualification obtained in Australia and therefore the requirements of cl.485.224(2) do not apply.": 1406888 [2014] MRTA 1416 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2014/1416.html>.
> study done on bridging visa: "25. The applicant’s skills were assessed by TRA based on his Certificate III in Light Vehicle Mechanical Technology that he obtained from Central Australia College. Course completion documents for this course that were provided by the applicant to the Tribunal indicate that he undertook this course in Australia from 12 September 2022 to 26 March 2023. As the applicant confirmed at the hearing, and as verified by Department movement records, during this period of study he was in Australia on a bridging visa, not a student visa. Accordingly, in these circumstances, cl 485.224(2) does not apply.": Ramdhonee (Migration) [2024] AATA 231.
** Clause not engaged where applicant does not rely on Australian qualifications to obtain skills assessment - previous recognition as Chartered Engineer in Mechanical Engineering - Chartered Engineer status obtained by Mutual Recognition Agreement between EA and Engineers Canada: "13. The applicant’s argument was that Engineers Australia had previously assessed him in 2012 for the purposes of recognising him as a Chartered Engineer (in the field of Mechanical Engineering), as a result of which he was issued with a membership card by Engineers Australia in October 2012 stating that he was a Chartered Engineer, whose college was Mechanical Engineering. The card number was the skills assessment reference he put in his visa application form. He submitted that this assessment should be taken to be a skills assessment for the purposes of his subclass 189 visa application, as it was at least as rigorous an assessment as the one Engineers Australia undertook when it issued him a skills assessment on 4 December 2014. 14. The Tribunal indicated to the applicant that it intended to formally request Engineers Australia to clarify whether the earlier assessment to recognise the applicant as a Chartered Engineer could be regarded as a skills assessment for the occupation for the purposes of a subclass 189 migration application. Following the hearing, the Tribunal wrote to Engineers Australia giving the background to the applicant’s case and seeking the following information: clarification of the process by which the applicant was issued with the membership card 4215447 recognising that he was a Chartered Engineer in the area of Mechanical Engineering – in particular, the date and details of the assessment that was undertaken; and whether Engineers Australia would regard the assessment as equivalent, or superior to, the assessment process undertaken in November – December 2014 to assess his skills as suitable for the occupation of Mechanical Engineer. 15. On 10 June 2015, the Tribunal received a response from the Lead Migration Skills Assessor of Engineers Australia, as follows: ... In response to your enquiry we can advise: [the applicant] was elected as a Chartered Professional Engineer which includes membership of the Mechanical College on 6 November 2012 through the Mutual Recognition Agreement signed between Engineers Australia and Engineers Canada (please see the attached for more details). [The applicant] made a request to this office on 21 November 2014 to seek a MSA [Migration Skills Assessment] letter. Considering his Chartered Professional Engineer status, full membership of the Mechanical College and after examining his membership file, we found all his information meet our MSA guidelines and a positive MSA outcome letter was thus granted on 4 December 2014. Our MSA process adopts the same engineering competency standards as Engineers Australia membership’s Stage 1 competency. To be recognised as a Chartered Professional Engineer, the candidate must meet the Stage 1 competency standard plus the candidate must be able to demonstrate an additional 16 engineering elements in four units and attend a technical interview ... 17. The Tribunal has considered the information provided by Engineers Australia carefully. It notes that neither the Act nor Regulations define ‘skills assessment’ or ‘suitable skills assessment’ because the legislation in this area specifically confers the responsibility (and the standards for) skills assessments on the relevant assessing authority. 18. In the particular circumstances of this case, the Tribunal is satisfied that Engineers Australia has confirmed that the skills assessment it undertook in late 2012 to recognise the applicant as a Chartered Engineer in the field of Mechanical Engineering in Australia is a skills assessment equivalent to (and in fact more rigorous than) the one it issued to him on 4 December 2014 recognising his skills as suitable for the occupation of Mechanical Engineer. It is satisfied that the relevant assessing authority, Engineers Australia, assessed the applicant’s skills as suitable for his nominated occupation of Mechanical Engineering on 6 November 2012. The Tribunal is therefore satisfied that cl.189.212(1)(a) is met. 19. Furthermore, the Tribunal is satisfied that the skills assessment of 6 November 2012 was not issued for the purposes of a subclass 485 visa application, that it was not made on the basis of qualification obtained by the applicant in Australia, that there was no period of validity expressed in this assessment and that this assessment was issued to the applicant less than 3 years before he was invited to apply for the subclass 189 visa on 29 August 2014. 20. The Tribunal is therefore satisfied that cl.189.212(1)(b) and (d) are satisfied, and that cl.189.212(1)(c) does not apply in this case. 21. As the applicant was not relying upon Australian qualifications in order to obtain his skills assessment, the Tribunal is satisfied that cl.189.212(2) does not apply in this case.": 1500897 [2015] MRTA 850 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2015/850.html>.
Suitable skills assessments, suitability for an occupation, by Mutual Recognition Act 1992 and trade's assessment: "Previous decisions of the Tribunal indicate that 'Australian standards' for a particular occupation being assessed, not defined in the Regulations, should be the minimum entry requirements of any registration/licensing body of any particular State or Territory in Australia: Re Tesler (IRT Decision 25 June 1991). In the instant case the principal has been awarded a trade certificate by the relevant State authority. This qualification in turn is recognised nationally pursuant to the Mutual Recognition Act 1992 . DIR have chosen to disregard this fact and have upheld their view that difference requirements are placed on tradespersons seeking migration to Australia and tradespersons seeking recognition in Australia. However, the test of tradesperson status prescribed by the Regulations is a single test. To impose additional criteria, namely specified periods of work experience is not sanctioned by the legislation. While DIR is 'the relevant Australian authority' and the Tribunal should be wary of substituting its decision for that of DIR, the question of what constitutes Australian standards for the grant of a 'trade certificate' is a question of fact to be determined by the Tribunal. Whether an application meets such standards is thus a matter for the 'relevant Australian authority' to assess. ... Under the circumstances, DIR is precluded as the 'relevant Australian authority' for the non-TRRA trade of tradesman painter. Accordingly, the Tribunal is the 'relevant Australian authority' for the trade of tradesman painter, also known as vehicle painter. Having regard to the trade's assessment undertaken by the State Training Board, and by virtue of the Mutual Recognition Act 1992 , the Tribunal finds that the principal satisfies Australian occupational standards as a tradesman painter and is entitled to 60 points for the employment qualification pursuant to item 6102 of Part 1 of Schedule 6 to the Regulations. ...": Applicant: Kim Lorraine Bell Principal: Jamie Percival Sparrow IRT Reference: V96/01286 #number 9592 [1997] IRTA 9592 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/IRTA/1997/9592.html>. -- Tribunal standing in the shoes of the delegate.
> See also, Visa Applicant: Nicolino Di Sipioreview Applicant: Maria Castrenze IRT Reference: V97/01233 #number 10954 [1997] IRTA 10954 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/IRTA/1997/10954.html>.
Trans-Tasman Mutual Recognition Act 1997 (Cth) - skills assessment - nurses: "35. A hearing was held on 1 October 2002 and oral evidence was given by the review applicant and the spouse of the primary visa applicant. The spouse stated that at the time of the visa application she was working for Our Lady of Fatima College as an instructor. She started working in 1981 at the Armed Forces Medical Center, and from May 1986 was a military nurse. In 1992 she left the military services and was employed by Our Lady of Fatima College. After 1992 she was involved in training of students in the clinical area. She was responsible for groups of 6 to 12 senior graduating students, and supervised and assisted them in all aspects of patient care with patients at the Armed Forces Medical Center. She worked at least 50 hours a week, between 7am to 6pm Monday to Saturday. She was responsible for all learning of the students, and was responsible as the registered nurse for patient care. She is still studying for the Master of Arts in Nursing. She has not undertaken an IELTS test since the test in August 1999. She went to New Zealand and did a competency assessment there, and was registered on 7 November 2001. She applied for NSW registration and was registered in List A under the Trans-Tasman Mutual Recognition Act . The review applicant provided a certificate of registration of the primary visa applicant's spouse as a comprehensive nurse in New Zealand and her practising certificate. 36. On 16 October 2002 the review applicant provided a statement by the spouse of her duties at Our Lady of Fatima College, a transcript of her Bachelor of Science in Nursing degree and her graduate studies at Manila Central University, and a copy of her registration by the Nurses Registration Board of NSW. 37. On 1 October 2002 the Australian Nursing Council Inc (ANCI) advised the Tribunal that nurses who hold current New Zealand or Australian registration are required to have a modified assessment, and that in order for a nurse to register in New Zealand she would have had to have passed either the OET or IELTS Academic test at the required level. On 26 November 2002 the Tribunal advised the review applicant that the spouse would be required to undergo a modified form of assessment by ANCI, and requested that the spouse complete and return to the Tribunal the relevant application documents. The review applicant provided the relevant documents and the application fee on 21 January 2003. On 6 February 2003 the ANCI advised that it had completed the modified assessment and that the spouse met the Australian standard on the date she gained New Zealand registration, 7 November 2001. ... ": Armstrong, Erlinda [2003] MRTA 1007 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2003/1007.html>.
Evidenced by COE: Lee (Migration) [2022] AATA 305, [15]; Wangdi (Migration) [2022] AATA 2411, [15].
CRICOS website search: 1504322 (Migration) [2015] AATA 3306, [20]; Antonsen (Migration) [2018] AATA 5906, [21].
Matter of fact, whether skills assessment took place - go behind?
"68. Mr Kennett relied on what was relevantly said in Kim per Branson J (no merits review available as to whether or not a skills assessment took place) to argue that the matters set out in Sch.1 (going to validity of the application) are matters which are quickly and objectively verifiable without going behind the material that has been supplied by the applicant.": Octavia v Minister for Immigration [2011] FMCA 16.
"25. The Tribunal noted that it is not able to go behind TRA’s assessment or question their processes. It is only required to assess whether or not the applicant has a valid skills assessment .": 1114313 [2012] MRTA 2607 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2012/2607.html>.
"37. The Tribunal notes the submissions (and supporting documents) from the applicant’s representative in writing and at the hearing questioning the revocation process. However, the Tribunal is unable to go behind the skills assessment process and question the outcome. It is only required to assess whether a valid skills assessment exists or not.": 1109238 [2013] MRTA 8 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2013/8.html>.
"14. In his written and oral submissions to the Tribunal the applicant claims that he genuinely worked for over 900 hours at Ezy Graphics during the relevant period. He has provided additional documents to support his contention in this regard, including timesheets and statements from co-workers. He stated that he feels a victim of the TRA revocation process, noting that at first they were satisfied with the documents that he had provided and he received a successful skills assessment . The applicant believes that as a result of Departmental investigations into Ezy Graphics, TRA revoked all skills assessments linked to that employer. The applicant said if he was asked to provide more documents to support his work experience claims in 2007 he may have had a better chance of doing so. He also stated that the revocation letter from TRA does not state specifically why they revoked his skills assessment. 15. The Tribunal has had regards to the applicant’s submissions and acknowledges his attempts to try and resolve this matter through TRA, but to no avail. However, as explained to the applicant at the hearing, the Tribunal cannot go behind the TRA revocation decision.": 1401075 [2014] MRTA 2604 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2014/2604.html>.
"18. In relation to the skills assessment the applicant stated that the Department decided that the duties of the position Research Fellow was in the occupation of Research and Development Manager. He stated that he had been working in that role for the last 5 years and could not understand why he received a negative outcome from Vetassess. The applicant stated that he believes some error may have occurred with his application though he was not sure whether the error was made by Vetassess, the Department or the University of Wollongong. The Tribunal explained to the applicant that his position with the University of Wollongong appears to have been assessed by the Department in the occupation Research and Development Manager and that this was done for the purposes of the 457 visa. The Tribunal noted that it was assessing this application against the requirements of the Subclass 186 visa and that it was bound by the regulations for that visa class. Whether the Department had made an error in assessing the applicant’s occupation under the 457 visa programme, is not relevant to the issue in this review. The applicant stated that he was nominated by the Department in the occupation of Research and Development Manager and his skills assessment should have been approved. He stated that the Department put him in a difficult situation and should have assessed him as a Research Fellow. The Tribunal notes that it is unable to go behind the decision of Vetassess or the Department’s decision regarding the applicant’s nominated occupation under the 457 visa programme.": HAIDAR (Migration) [2018] AATA 99.
PIC 4020: "73. In oral submissions it was explained that the Applicant’s contention was not that the Tribunal could not go behind a skills assessment , in the sense of examining the basis on which the skills assessment came about or the circumstances in which it occurred. It was acknowledged that this was clear from the notion of a bogus document and that it would have been open to the Tribunal to look at the circumstances in which the skills assessment came about and to have considered, in particular, whether this was because of information that was false or misleading in a material particular. It was submitted however that the Tribunal had in fact assessed the Applicant’s skills as those of a kitchen hand and had found on that basis that he had breached PIC 4020, rather than having regard to whether the employment reference which he provided was false or misleading in a material particular. The Applicant submitted that there was a limit on the Tribunal’s jurisdiction and that it was not entitled to make its own assessment of the Applicant’s skills. 74. As the First Respondent submitted, the Applicant’s contention mischaracterises the findings of the Tribunal. The Applicant was required to obtain a skills assessment from the relevant assessing authority for the nominated occupation. The Tribunal proceeded on the basis that this was a requirement, albeit that it did not apply the correct criterion in this respect. Reading its decision as a whole, it appears that the Tribunal did not doubt that the Applicant satisfied the requirement that he obtain a skills assessment from TRA, the relevant assessing authority. Although the Tribunal’s final reference to cl.485.224(1) is confusing, it acknowledged that the Applicant had provided a positive skills assessment to TRA. It correctly saw that the issue was whether any information relied on by the Applicant was false or misleading in a material particular. 75. PIC 4020 entitled the Tribunal to scrutinise the information provided to the Minister, an officer or a relevant assessing authority in order to consider whether there was “no evidence” the Applicant had given information that was false or misleading in a material particular. The Tribunal’s finding that the information given or caused to be given to the Minister or an officer by the Applicant was false and misleading was within its jurisdiction. ... 77. In this respect, the Tribunal was not purporting to exercise the function which the Migration Regulations delegated to TRA (see Islam v Minister for Immigration & Anor [2010] FMCA 379 at [21] and [32]). I am not satisfied that in this part its decision it was purporting to find that the Applicant did not satisfy the criterion that required a skills assessment or that a person who did the duties attested to in the reference was not a cook. Rather, the Tribunal found that while the reference the Applicant provided suggested that he worked as a cook, in fact he did not perform such duties and hence did not work as a cook, but rather worked as a kitchen hand. For that reason it concluded that the reference was false and misleading.": Singh v Minister for Immigration & Anor [2015] FCCA 1939.
Finding of what Qualification formed the Basis of a skills assessment, or not
"A copy of the applicant’s passport, provided to the Tribunal, confirms that the applicant was the holder of a Student visa while undertaking studies at the City College. Information before the Tribunal indicates that at the time when the applicant’s qualification was issued, the City College was not registered on the CRICOS as required by the ESOS Act . Accordingly, the Tribunal finds that the course undertaken by the applicant at the City College was not a ‘registered course ’ as defined at r. 1.03 of the Regulations. As this qualification formed the basis of the skills assessment, the Tribunal is not satisfied that the applicant meets cl. 880.230(2). The applicant provided to the Tribunal a copy of a Certificate III in Food Processing issued by the Metro College of Technology. The certificate was issued in July 2007 when the applicant was no longer the holder of a Student visa. However, the applicant stated in oral evidence that he only relied on his qualifications from the City College for the purpose of the TRA assessment and not on any other qualifications. The Tribunal finds that the skills assessment by the TRA was made on the basis of the qualification obtained from the Metro College of Technology. This qualification does not assist the applicant.": 071162870 [2007] MRTA 416.
"The Tribunal finds that the applicant obtained a positive skills assessment from TRA in respect of her nominated skilled occupation. The Tribunal is satisfied that the applicant submitted a Certificate III in Food Processing (Retail Baking) – Cake and Pastry awarded by the City College of Professional Development on 22 June 2005 to TRA for that assessment. The Tribunal is satisfied this qualification formed the basis of TRA's decision to issue the applicant with a favourable Skills Assessment in respect of the occupation of Pastry Cook, ASCO Code 4512-13 on 29 August 2005. The Tribunal finds that at the time the above mentioned qualification was awarded in June 2005, the City College of Professional Development was not registered within the meaning of regulation 1.03. The Tribunal also finds on the basis of evidence on the Departmental file that the applicant obtained her qualifications from the City College in Australia on 22 June 2005, while she was the holder of a student visa. The Tribunal therefore finds that the applicant’s qualification of Certificate III Food Processing (Retail Baking) – Cake and Pastry awarded by City College of Professional Development in June 2005, which was the basis of TRA’s skills assessment of 29 August 2005, and which was obtained in Australia while she was the holder of a student visa, was not obtained as a result of a full time study of a registered course. The Tribunal therefore finds that the applicant does not satisfy subclause 880.230(2) and therefore thus does not satisfy clause 880.230. The Tribunal has considered whether the applicant’s second Certificate III obtained at Metro College in February 2007 would enable her to meet subclause 880.230(2). The Tribunal accepts that the course at Metro College was a registered course. The Tribunal has found, however, that it was the applicant’s qualifications obtained from the City College of Professional Development which formed the basis of the favourable skills assessment by TRA dated 29 August 2005. This course was not a registered course. The relevant assessing authority did not use the qualifications the applicant obtained from Metro College to form the basis of its skills assessment . At the date of the skills assessment on 29 August 2005, the applicant had not commenced the Metro College course. Further, when the applicant obtained the Metro College qualifications she held a Bridging A visa, not a student visa. The Tribunal therefore finds that the applicant is unable to meet clause 880.230 on the basis of the qualifications she obtained at Metro College.": 071189825 [2007] MRTA 769.
Work experience alone not possible to satisfy skills assessnment: "27. A critical issue in this case is whether the TRA assessment was made ‘on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa’ If so, the Tribunal must be satisfied, additionally, that the qualification was obtained as a result of full time study of a registered course: cl.880.230(2). If not, the applicant meets cl.880.230 on the basis of the TRA assessment alone (unless there is evidence of false or misleading information). 28. The Tribunal must determine when the applicant ‘obtained’ the qualification and whether he did so while he was the holder of a student visa. In this case, the qualification was obtained on 26 May 2009 (the date on which the certificate was issued), and/or by the VETASSESS competency assessment, which was held from 10 March 2009 to 25 May 2009 [20]. As the applicant was the holder of a bridging visa in May 2009, cl.880.230(2) does not apply, and he meets cl.880.230 on the basis of the TRA assessment alone (unless there is evidence of false or misleading information). 29. In most cases, a qualification is obtained through a relevant course of study. The learning, its assessment and the grant of the qualification are part of a continuum. However, this case differs: (a) there is no evidence of a course of study, (b) the relevant learning appears to have been done through work experience and training, and (c) the competency assessment of that learning, which formed the basis for obtaining the qualification, was undertaken some time later by a separate body. 30. The Tribunal considers the plain language of cl.880.230 supports the view that the qualification was obtained when the applicant undertook the prerequisite assessment in March-May 2009 (presumably because his untested work experience or training alone could not form the basis for the grant of the qualification), or when the Certificate III was issued, namely on 26 May 2009. 31. The Tribunal therefore finds that the relevant assessing authority, the TRA, has assessed the applicant’s skills as suitable for his nominated skilled occupation, Baker [4512-11]. For the reasons given above, the Tribunal finds that the assessment was made on the basis of a qualification obtained in Australia while the applicant was the holder of a Bridging visa, and not a Student visa. No evidence has become available that the information given or used as part of the assessment of the applicant’s skills is false or misleading in a material particular.": 0807841 [2009] MRTA 1975.
Skills assessment on the basis of a Certificate from relevant assessment authority
Australian Recognised Trade Certificate, TTMRA, consider the effect if the PAM provided that the Department deems the certificate as suitable skills assessment: "17. On 1 November 2012, the applicant's agent provided to the Tribunal a brief written submission in which she acknowledged that the late provision of a skills assessment would not meet the relevant skills assessment criterion for the visa, because it is a time of application criterion. However, she submitted that the Recognised Trade Certificate from TRA was sufficient for meeting this criterion. She also submitted that, as a New Zealand passport holder, the applicant's skills are recognised by the mutual agreement between Australia and New Zealand. ... 18. The issue in this case is whether, at the time of the application, the visa applicant’s skills had been assessed by the relevant assessing authority as suitable for his nominated occupation. 19. The applicant had nominated the occupation of a ‘Metal Fabricator – Boilermaker/Supervisor’ when making the application. The relevant assessing authority identified in IMMI 12/068 is TRA. Does the applicant's Recognised Trade Certificate meet cl.175.212 or 176.212? 20. As noted above, at the time of application, the applicant provided to the Department a Recognised Trade Certificate issued by TRA. The first issue that arises is whether this certificate is sufficient to meet the requirements of cl.175.212 or 176.212. 21. The Tribunal is mindful that the Regulations do not prescribe that a skills assessment must be in any particular form. The Tribunal is also mindful that the applicant's Recognised Trade Certificate was issued by TRA, which is the relevant assessing authority identified in IMMI 12/068. The Tribunal has also taken into consideration the submissions made on behalf of the applicant, to the effect that there is mutual recognition of skills between Australia and New Zealand and the process and necessary documentation for obtaining a Recognised Trade Certificate was the same, or substantially similar, to that required to obtain a regular skills assessment . 22. However, the Tribunal notes that, both now and at the time of application, TRA has in place a separate process in respect of providing skills assessments to enable visa applicants to meet the requirements of cl.175.212 or 176.212 (and other like provisions).[1] By contrast, the TRA website provides the following information in relation to Recognised Trade Certificates: The Australian Recognised Trade Certificate (ARTC) is for Australian residence with trade skills in an electrical or metal trade who have gained these skills outside an Australian apprenticeship and seek to have the skills recognised in Australia. An ARTC is not considered a suitable assessment for migration purposes.[2] [original emphasis] 23. Whilst not determinative, this information indicates that, by issuing the Recognised Trade Certificate to the applicant in this matter, TRA did not assess, or purport to assess, his skills as suitable for his nominated application for the purposes of cl.175.212 or 176.212. 24. Furthermore, the Tribunal considers that, on its face, the applicant's Recognised Trade Certificate does not purport, or appear, to be a relevant skills assessment. 25. Viewing the above matters together, the Tribunal finds that the applicant’s Recognised Trade Certificate was not sufficient to meet the requirements of cl.175.212 or 176.212. ...": 1206085 [2012] MRTA 3581.
?Skills assessment on the basis of the Mutual Recognition Act 1992 (Cth)
Sch2 Visa 457 - Business Long Stay, 15 May 2009, text <https://legend.online.immi.gov.au/migration/2006-2016/legend_2009_m/legend_15_05_2009_m/legend_15_05_2009_mp/Pages/_document00004/_level%20100163/_level%20200807/level%20301171.aspx>: "... 30 SKILLS ASSESSMENT 30.1 Requirements For 457.223(4)(e), the visa applicant should demonstrate that they have the skills necessary to perform the activity to which they have been nominated. The formal skills assessment and qualifications recognition process undertaken for skilled migration applications is not normally required for 457 visa applicants. If the decision maker considers that the applicant does not have the qualifications or the skills to fill the nominated position and the visa applicant queries the decision maker’s assessment, the applicant may be invited to submit a formal assessment from the relevant assessing authority. Officers may also ask the visa applicant to undertake a formal skills assessment if there are bona fides concerns or it is unclear whether the applicant has suitable skills for the position. In such cases, officers should first seek more detailed information on the applicant’s qualifications and work history from the applicant or from the overseas post, see section 34 Overseas referral. ... 30.10 Occupations requiring supervised practice in Australia Certain nominated activities require registration or licensing to practice in that profession in Australia. Where it is possible to obtain registration without a period of supervised practice in Australia, under mutual recognition for example, the applicant should provide evidence of registration/licensing prior to grant. ...".
Sch2 Visa 457 - Business (Long Stay), 8 May 2010, text <https://legend.online.immi.gov.au/migration/2006-2016/2010/legend_20100508_m/legend_08_05_2010_mp/Pages/_document00002/_level%20100165/level%20200855.aspx>: "... 60.3 Occupations requiring supervised practice in Australia Certain nominated occupations require registration or licensing to practice in that profession in Australia. If it is possible to obtain registration without a period of supervised practice in Australia - under mutual recognition for example - the applicant should provide evidence of registration/licensing before visa grant. If the applicant would need to perform a period of supervised practice before being eligible for registration/licensing or requires pre-registration testing, a 457 visa is not appropriate and the applicant should be advised to consider a more appropriate visa.".
SKILLS ASSESSMENT - OPTOMETRIST, 28 January 2002, text <https://legend.online.immi.gov.au/migration/1994-2005/legend_2000_2005_m/legend_2002_m/legend_28_01_2002_m/legend_28_01_2002_mp/Pages/_document00000/_level%20100218/level%20201131.aspx>: "... 2 MINIMUM AUSTRALIAN ELIGIBILITY REQUIREMENTS 2.1 Education 2.1.1 A degree of Bachelor in Optometry or its equivalent from a government-accredited tertiary educational institution. 2.2 Registration 2.2.1 Registration is required in all Australian States/Territories. Registration requirements may vary. 2.2.2 A pass in the Competency Examination conducted by the Optometry Council of Australia and New Zealand is acceptable for registration purposes in all State/Territories. 2.2.3 A pass in the NSW Board of Optometrical Registration examination is accepted for registration in NSW. 2.2.4 Note: All applicants should be informed that a person registered as an optometrist in any State/Territory is automatically eligible under the Mutual Recognition Act 1992 for registration in all other States/Territories. ...".
Nurses - Page 13 of 23 PAM SUBJECT - ASSESSMENT OF SKILLS AND QUALIFICATIONS, 1 September 1994, text <https://legend.online.immi.gov.au/migration/1994-2005/legend_1994_1999_m/legend_1994_m/01-09-1994/legend_01_09_1994_mp/Pages/_document00001/_level%20100159/_level%20200407/level%20200419.aspx>: "... 3. Registration/Enrolment 3.1 Before nurses can practice, they must be registered under the laws of the State or Territory in which they intend to reside and practise. Registration/enrolment is compulsory in all States and Territories but requirements and fees vary. 3.2 Registers are maintained for registered and enrolled nurses in all States and Territories of Australia. Registration as a mental retardation nurse is only available in the Northern Territory, South Australia, Tasmania and Victoria. Registratioin as a general nurse is a pre-requisite for registration as a midwife or entry into a midwifery program in Australia. 3.3 Under new legislation introduced in 1992, the Commonwealth and State ministers agreed to the automatic recognition of certain categories of registration across state boundaries. In jurisdiction participating under the "mutual recognition" legislation, a nurse who has FULL or UNCONDITIONAL REGISTRATION in one State or Territory will be eligible for registration 3.4 The new registration procedures are expected to provide for two major categories of registration: * registration without conditions (fully portable registration) * registration with conditions (portability subject to the ability of the second state to apply the conditions). All applicants for registration within either of these two categories of registration may have to meet other statutory requirements of the Nursing Board or Council of the relevant State or Territory in which they wish to practise.".
*** SKILLS ASSESSMENT - NURSE, 7 June 2002, text <https://legend.online.immi.gov.au/migration/1994-2005/legend_2000_2005_m/legend_2002_m/legend_07_06_2002_m/legend_07_06_2002_mp/Pages/_document00000/_level%20100217/level%20201137.aspx>: " ... 2.3 Mutual recognition 2.3.1 Mutual Recognition Legislation between States and Territories provides for recognition of certain categories of occupations under this legislation. This means that an enrolled or registered nurse who has registration in one State or Territory may apply for registration with the nurse regulatory authority of the second State or Territory and be eligible for registration provided there is a similar registration category. It is important to note, however, that overseas nurses holding current Australian registration must have their skills assessed by ANCI before their skills will be recognised for the awarding of points under Schedule 6 (see section 6 below). 2.3.2 Mutual recognition provides for two major categories of registration: . registration without conditions (fully portable registration) . registration with conditions (portability subject to the ability of the second State to apply similar conditions). 2.3.3 All applicants for registration within either of these two categories of registration may have to meet other statutory requirements of the nursing board or council of the relevant State/Territory in which they wish to practise.
Skills assessment on the basis of current identified Australian occupational licence - TRA
"30. The Tribunal had regard to the TRA website and its guidelines for the subclass 457 skills assessment program. The information on the TRA website is consistent with submissions of the applicants’ agent and indicate that the TRA will do a subclass 457 skills assessment for the occupation of Motor Mechanic (General) for a person who holds a passport from India (as is the case with the applicant). However, there are 2 skills assessment pathways. Pathway 1 is for persons who do not hold an Australian qualification in their trade. These skills assessments are conducted against the requirements of the relevant training package. Pathway 2 is for persons who hold relevant Australian VET qualifications or a current identified Australian occupational licence . The TRA guidelines note that, in addition to formal qualification(s), applicants must be able to demonstrate work experience consisting of at least 3 years of full-time employment in a directly related occupation, including 12 months of full-time paid employment in the nominated occupation in the 3 years prior to lodging the application. The Tribunal accepts that the applicant is not eligible to undertake a subclass 457 TRA skills assessment due to the above TRA prerequisite requirements that he must meet before TRA will undertake an assessment under pathway 1 or pathway 2.": Ahmed (Migration) [2017] AATA 2062.
> 'Pathway 2 (TRA) <https://www.tradesrecognitionaustralia.gov.au/pathway-2>, archived at <https://archive.is/JX8n9>.
Enrolment in a non-CRICOS course - ?permitted in situations of concurrent enrolments
Condition 8202: "39. I am ready to accept that s.23 may assist the construction of condition 8202 in some situations. However, I do not consider that it assists the present question of construction. I cannot read condition 8202(2) as intending to place more onerous obligations on a student with concurrent enrolments than it would place on a student enrolled in only one course from time to time. I consider that it is a condition intended to operate equally on all student visas, so that every student is required to show in relation to any period of his visa that he is enrolled in at least one registered course whose provider has records and will certify in terms of condition 8202(3)(a) and (b). The simple language is open to such a construction, and this appears clearly preferable. 40. On this reading, the singular reference in condition 8202(2) to "is enrolled in a registered course" is significant, and has the meaning of "is enrolled in at least one registered course", thereby allowing for the possibility of multiple enrolments. Reading condition 8202(3) as a consecutive provision, its reference to "whose education provider" and "the course" readily read as a reference to the provider and course for any one such course. If the student so "meets" the requirements in relation to one such course, it is irrelevant that he may not "meet" them in relation to another course in relation to the same period. 41. I have considered whether the context, operation and intent of the condition would support the construction adopted by the Tribunal in this case and supported by the Minister, but I do not consider that it does. In my opinion, the simple language produces the simple and easiest construction, both in terms of a student attempting to satisfy his visa conditions and an administrator addressing from time to time whether there is non-compliance (c.f. Islam v Minister for Immigration & Anor [2006] FMCA 1229 at [23]). ...": Yang v Minister for Immigration & Anor [2007] FMCA 38.
Condition 8202 -- Direction 61: Guidelines for considering cancellation of student visas for non-compliance with student visa condition 8202 (or for the review of such cancellation decisions) and for considering revocation of automatic cancellation of student visas (or for the review of decisions not to revoke such cancellations), 19 September 2025: text <https://legend.online.immi.gov.au/migration/2021-2024/2025/19-09-2025/acts/Pages/_document00011/_level%20200227/level%20300058-3.aspx>.
'If an overseas student is already studying 20 hours/week, are they allowed to study another course in their own time?' (ASQA) <https://www.asqa.gov.au/faqs/if-overseas-student-already-studying-20-hoursweek-are-they-allowed-study-another-course-their>, archived at <https://archive.is/UlBUp>: "An overseas student in Australia on a student visa is permitted to undertake additional study (that is, a course of education or training) at the same time as the principal course for which they hold a student visa. However, any course undertaken by a student visa holder must be registered on CRICOS. Only a CRICOS registered provider can deliver courses to overseas students on student visas. A student on a student visa who is seeking to undertake additional study should be aware of the requirements of their student visa and the need to: - remain enrolled in a registered course; - achieve satisfactory course attendance, and - progress in their principal course of study."
"[2] Not all courses studied by foreign students in Australia before the amendment had registration under the ESOS Act, since their student visas required this of only one of their courses studied at any one time (see Yang v Minister for Immigration & Anor [2007] FMCA 38 ; (2007) 207 FLR 106 at [40]). It therefore might appear unfair to apply the new regulation to qualifications which had been gained before the commencement of the amending regulation on 1 July 2006, and a fortiori to apply it when deciding visa applications which had been made before that date. ... ": Quarm v Minister for Immigration [2008] FMCA 287.
Transition - Migration Regs amended to include requirement for registered course: "[3] The Applicant, who is a national of the Republic of Korea, first arrived in Australia on 6th March 1996. She made several visits to Australia on Tourist visas between 1996 and 1999. On 18th August 1999 she was granted the first of a series of Student visas. She was granted a Subclass 573 (Higher Education Sector) visa on 14th November 2001. Her last student visa, a Subclass 572 (Vocational Education and Training Sector) visa, was granted on 10th May 2005 and ceased on 12th June 2006. She has held a Bridging A visa since then. ... [11] The Tribunal also found that the Applicant obtained her qualifications from City College on 22nd June 2005 while she was the holder of a student visa. Thus, the Tribunal found that the Applicants’ qualification of Certificate III Food processing (Retail Baking) was not obtained as a result of full time study of a registered course. The Tribunal found that the Applicant did not satisfy subclause 880.230(2). [12] The Tribunal made this comment: The Tribunal accepts that the applicant feels that her situation is unfair, and that she may have been misled by the Department. However, the Tribunal is bound to apply the legislation.4 [13] The Tribunal found that the Applicant did not meet clause 880.230, which was a key criterion for the grant of the visa. Accordingly, the Tribunal affirmed the delegate’s decision not to grant the Applicant a Skilled — Independent Student (Residence) (Class DD) visa.": Kim v Minister for Immigration and Anor [2008] FMCA 1395.
Registered Course requirement - Australian Study Requirement - applicable where qualification obtained is by Recognised Prior Learning and no Study undertaken - Skills Assessment based on RPL qualification - pending 189 visa application
"4. The delegate found that the first named applicant’s nominated occupation was Motor Mechanic, and that he had undertaken the following Australian qualifications: an Advanced Diploma of Business at the Technical College of Western Australia (WA) (from 5 September 2011 to 2 September 2012), and a Diploma of Business at the College of Innovation and Industry Skills in WA (from 30 June 2009 to 8 June 2010). The delegate noted that the first named applicant stated that he had also completed a Certificate III in Automotive Mechanical Technology at Polytechnic West in WA (1 February 2011 to 15 September 2011) but that the Provider Registration and International Student Management System (PRISMS) did not contain a reference to this course as one that he had completed (although it listed him as having completed a Certificate III in Horticulture (Landscape) which he had not listed in his visa application). Nor was the Certificate III in Automotive Mechanical Technology a registered course on CRICOS (the Commonwealth Register of Institutions and Courses for Overseas Students). 5. The delegate found that the Advanced Diploma of Business and Diploma of Business courses completed by the first named applicant were not closely related to his nominated occupation of Motor Mechanic, even though it was acknowledged that they might have some relevance to a business the first named applicant had subsequently established. While the delegate accepted that the first named applicant’s Certificate III in Automotive Mechanical Technology was closely related to his nominated occupation, the delegate found that it was not registered on CRICOS and did not have a duration of at least 2 academic years (defined as at least 92 weeks) and thus did not meet r.1.15F(a), (b) and (c). Therefore, as the first named applicant had not met the Australian study requirement in the 6 month period immediately before making the visa application, he did not meet cl.485.213(a) and thus failed to satisfy cl.485.213 as a whole and had to be refused a visa. The delegate also refused a visa to the second named applicant (the spouse of the first named applicant) on the grounds that she did not meet the secondary visa criteria to be a member of the family unit of a person who held a subclass 485 visa and there was no evidence to indicate that she met the primary visa criteria in her own right. ... 10. In summary, the first named applicant gave the Tribunal a detailed history of the courses he had undertaken in Australia and the reasons that he undertook them. He told the Tribunal that he got caught in a miscommunication between the Department of Immigration and his education providers about whether he had to be enrolled in the Certificate III in Automotive Mechanical Technology at Polytechnic West, and believed that, as an international student, he should not have been allowed to undertake this course which was not registered on PRISMS. Even though it was not a registered course, it was still recognised by Trades Recognition Australia (TRA) for the purposes of TRA issuing him with a skills assessment for the occupation of Motor Mechanic. 11. The first named applicant said that he had been working in the family motor mechanic business in India for 13 years before deciding to come to Australia and undertake further study. It was always his ultimate intention to establish his own business as a Motor Mechanic. For this reason, he undertook a Diploma of Business initially (30 June 2009 to 8 June 2010), although he initially applied to study a Certificate III in Horticulture (Landscape) on the advice of an education agent, who advised that there were no suitable Automotive courses that he could apply for in order to be granted his initial student visa. While undertaking the Diploma of Business, the first named applicant was advised that he could complete a Certificate III in Automotive Mechanical Technology via recognition of prior learning ( RPL ) based on his Indian work experience and training. At the time, he was also working as a mechanic (within the limitations of his student visa) for Suzuki Shop/Daihatsu Dismantlers. It took some time for the first named applicant to be able to get various documents for the assessment from India, but he was recognised as having a Certificate III in Automotive Technology in late 2011 via RPL . The first named applicant reiterated that he was not aware, and not advised, that this Certificate III was not registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and so would not be able to be counted in relation to the Australian study requirement. ... 21. Also as discussed at hearing, the Tribunal finds that the first named applicant’s Certificate III in Automotive Mechanical Technology at Polytechnic West cannot be counted for these purposes, as it was not a registered course and thus does not satisfy r.1.15(1)(a). The Tribunal notes the applicant’s explanation for how he came to complete this course without realising it was not registered, but regardless of the explanation, the course does not meet the requirements of r.1.15(1)(a) and the Tribunal is unable to take it into account for the purposes of assessing the Australian study requirement. ... 25. The Tribunal notes Mr McAuley’s submission - consistent with the first named applicant’s oral evidence at hearing - in relation to the Business and Automotive Mechanical Technical courses undertaken by the first named applicant as follows (ff 88 to 90 of DIBP file): ... in the meantime, he had approached Polytechnic West in February 2011 to enquire about enrolling in the Certificate III in Automotive Mechanical Technical RPL (Recognition of Prior Learning) course. He told them that he was enrolled in a Certificate III in Horticulture, held a subclass 572 student visa and was not a permanent resident. He was advised that, as this was a secondary course (in that he was enrolled in the Certificate III in Horticulture (Landscape) at that time), he did not require a separate CoE for the Certificate III in Automotive Mechanical Technical RPL . He now believes he should not have been accepted into this course as it was only open to Australian permanent residents or citizens. However, he paid $5,622 and was assessed via RPL as having skills equivalent to a Certificate III in Automotive Mechanical Technical; ...": 1314921 [2014] MRTA 2588 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2014/2588.html>.
"20. On the basis of information in the applicant’s completion letter, KOI’s advice of 31 August 2017 and the CRICOS records the Tribunal is satisfied that on 6 March 2017 the applicant completed a Master of Professional Accounting (Standard) which she had undertaken in the period March 2016 to March 2017. This qualification is of a kind specified by the Minister in an instrument in writing. The Tribunal finds that the applicant was awarded RPLs by KOI for subjects she completed at CDU. It finds she completed part of a Master of Professional Accounting (Professional Practice) at CDU in the period March 2015 to November 2015. That course and the Master of Professional Accounting (Standard) at KOI both meet the requirements of cl.485.231(1). Both CDU and KOI are CRICOS registered institutes which offer courses at degree level and above, and so cl.485.231(2) is met.": Tamrakar Joshi (Migration) [2017] AATA 1579.
CRICOS registered course qualification obtained partially by RPL credits from study done previously in non-CRICOS registered course - Tribunal accepted in this instance
"15. On 23 August 2006 the Department informed the applicant that at the time he obtained his Certificate III in Electrotechnology Data Communications at City College of Professional Development, that education provider was not registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). Given the operation of cl.880.230 as amended and applying from 1 July 2006, the applicant was further informed that his skills assessment did not meet the requirements of this clause. ... 18. On 14 August 2007, the applicant’s representative provided the Tribunal with details of the completion by the applicant of a further Certificate III in Electrotechnology Data Communications which was obtained at Box Hill Institute of TAFE in May 2007. The documents provided by the education provider indicated that the applicant studied on a full time basis for this course over a 3 week period. 19. On 14 November 2007 the Tribunal wrote to the applicant pursuant to section 359A of the Act, informing him that the skills assessment he had provided with his application was made on the basis of his study at an unregistered course at City College of Professional Development and therefore appeared not to meet the requirements of cl.880.230. The Tribunal also sought an explanation as to why the applicant had studied at Box Hill Institute of TAFE for only 3 weeks given that the duration of that course was listed by CRICOS as being for 52 weeks. 20. In a response dated 10 December 2007, the applicant’s representative stated that Box Hill Institute of TAFE had approved the applicant for Recognised Prior Learning because of his previous studies at City College, which was the reason why he had managed to complete the course after only 3 weeks of full time study. The representative also stated that he had contacted Trades Recognition Australia (TRA) on 16 November 2007 as to whether the applicant can reapply for assessment with his new qualifications and had been informed by TRA that once an applicant had been successfully assessed by TRA in a specific occupation they could not be reassessed for that same occupation. They would only consider a new assessment for a different nominated occupation which had not previously been successfully assessed by TRA. The representative submitted that on this basis the applicant was unable to comply with the new cl.880.230 of the Regulations as TRA would not provide him with a reassessment of his qualifications based on his study for those qualifications in a registered course. A copy of email correspondence between the representative and TRA was also provided to the Tribunal. ... 21. The applicant appeared before the Tribunal on 11 January 2008 to give evidence and present arguments. At this hearing, the applicant indicated that when he commenced his studies at City College he had no idea that the course was not registered by CRICOS. He indicated that after he finished his Bachelor of Business course at UTS in 2005, he had commenced and completed a Diploma of Ministry at Hillsong International Leadership College in Sydney. He stated that he had been given special dispensation by Box Hill Institute of TAFE for his prior learning at City College which enabled him to complete his course in a much shorter period of time. 22. At the hearing, the representative stated that he had applied to TRA for a further assessment of the new qualifications and was awaiting the outcome of that application He indicated that he would wait and see if TRA would accept and assess this application but if they rejected it then he and the applicant would have to consider taking court action to compel the TRA to consider reassessment in the case of the applicant and other applicants who were similarly affected. The Tribunal indicated that it would grant the applicant some time after the hearing to allow for TRA to process this new application. ... 25. Based on the skills assessment received from Trades Recognition Australia dated 18 April 2008, the Tribunal accepts that the skills of the first named applicant have been assessed by a relevant skills assessing authority, being TRA as specified in Legislative Instrument IMMI07/078, and that the assessment was based on a qualification obtained in Australia whilst the first named applicant was the holder of a student visa. The Tribunal also finds that this qualification was obtained as a result of studying full time in a registered course being the course at Box Hill Institute of TAFE referred to above. 26. Accordingly, the Tribunal finds that the first named applicant meets the requirements of cl.880.230 for the grant of a Skilled — Independent Overseas Student (Residence) (Class DD) visa.": 071088723 [2008] MRTA 345 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2008/345.html>.
Skills Assessment - 'a legal admissions authority of a State or Territory' - IMM LIN 19/051 - ?multiple Skills Assessing Authorities
"However as the original application was lodged on 13 February 1990, Mrs Tesler accrued a right to have her employment qualifications assessed under the procedures applicable prior to 15 April 1991. That is, she was entitled to any points accrued under the previous legislation see Re Maceda IRT Decision No Q90/00005 delivered 25 July 1990. There is also no requirement in the Regulations that a person's qualifications and experience must be assessed according to the rules applying in the particular state where the sponsor resides or where the person intends to live. Mrs Tesler was therefore entitled to be assessed by the "relevant Australian authority" in states where non-government schools decide what qualifications they accept for employment. In other words, according to the minimum entry requirements for employment purposes. In this case, according to the NOOSR publications mentioned above, those states appear to be New South Wales and Western Australia together with the two Territories. However given Ada Tesler's ethnocultural background which would have given her the option of seeking employment in Jewish day schools, coupled with the comparatively large Jewish population in New South Wales compared to Western Australia or the Territories, the Tribunal commenced its enquiries in New South Wales.": Applicant: Petr Tesler Principal: Yefim Tesler IRT Reference: V91/00244 #number 186 [1991] IRTA 186 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/IRTA/1991/753.html>; See also, similarly, Applicant: Petr Tesler Principal: Yefim Tesler IRT Reference: V91/00244 #number 186 [1991] IRTA 186 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/IRTA/1991/186.html>.
> This appears to be the case for Migration Regulations 1994 (Cth) r 2.26b <https://classic.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/s2.26b.html> and LIN 19/051.
> But, cf, for other visas (not 189/190): "27. Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application. 28. In this instance, the relevant State or Territory is New South Wales, the relevant occupation is Café or Restaurant Manager, and the date of application is 23 October 2019. 29. The Tribunal is satisfied that it is not mandatory for the nominee to hold a licence for the position of Café or Restaurant Manager. 30. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.": M&SA Trading Pty Ltd (Migration) [2023] AATA 4276.
MR Act - see also, above, Applicant: Kim Lorraine Bell Principal: Jamie Percival Sparrow IRT Reference: V96/01286 #number 9592 [1997] IRTA 9592 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/IRTA/1997/9592.html>. -- Tribunal standing in the shoes of the delegate.
MR Act, see also, "As discussed with you the trade of waiting was abolished in the early part of 1996, however NSW continued on with the trade until the middle of this year (1997). During the time the apprenticeship in waiting has been in Australia all state capitals would have used a common curriculum and would have included the following modules: Silver service technique, Gueridon service, Cocktail making, Professional waiting, Basic cookery and Accounting studies. Furthermore the Mutual Recognition Act 1992 provides for recognition within each Australian State and Territory of regulatory standards adopted elsewhere in Australia regarding goods and occupations (see Re Sparrow, (IRT Decision 9592,27 May 1997)). The Tribunal is the 'relevant Australian authority' pursuant to Regulation 2.26 for tradesperson waiters as NOOSR has precluded itself by imposing additional criteria in the Regulations not sanctioned by the legislation. In Victoria, William Angliss Institute of TAFE has been delegated by the State Training Board to assess applicants seeking tradesperson accreditation in a range of food and hospitality trades, including waiters. The Tribunal finds that one of the visa applicant's usual occupations is that of Formal Service Waiter, an occupation which requires a two year apprenticeship in Victoria and New South Wales. Although this trade has been deleted as a recognised vocation in both Victoria and, more recently, New South Wales, at date of primary assessment this trade was recognised in New South Wales. The visa applicant therefore meets the occupational standards for this occupation in New South Wales at the relevant date. Having regard to the trade's assessment undertaken by William Angliss Institute of TAFE and by virtue of the Mutual Recognition Act 1992 , the Tribunal finds that the visa applicant satisfies Australian occupational standards as a formal service waiter and is entitled to 70 points for the employment qualification pursuant to item 6102 of Part 1 of Schedule 6 to the Regulations.": Visa Applicant: Nicolino Di Sipioreview Applicant: Maria Castrenze IRT Reference: V97/01233 #number 10954 [1997] IRTA 10954 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/IRTA/1997/10954.html>.
"Admission in one State entitles a person to mutual recognition in another pursuant to the Mutual Recognition Act 1992 (Cth) and its State and Territory counterpart legislation.": LAW SOCIETY OF SOUTH AUSTRALIA v BETRO (No 2) [2025] SASCFC 3, [125] (n 61) <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SASCFC/2025/3.html>.
?Re-do qualification in CRICOS registered course; seek re-assessment of skills in the same nominated skilled occupation
"6. The Applicant applied to the Migration Review Tribunal on 20th February 2007, seeking a review of the delegate’s decision. The Tribunal wrote to the Applicant on 24th October 2007, inviting her to comment on or respond to information that the Tribunal considered would, subject to any comments or response that she made, be the reason or a part of the reason, for affirming the decision under review. The information concerned the fact at the time the Applicant’s qualification was awarded, 22nd June 2005, the City College of Professional Development was not registered. Accordingly, the qualifications that were the basis of the assessment by Trades Recognition Australia were therefore not obtained as a result of a full time study of a registered course. The Tribunal invited the Applicant to comment or respond by 21st November 2007. 7. The Applicant’s migration agent replied on 27th October 2007, saying: As you may be aware, all applicants who lodged applications for subclass 880 before 1st July 2006 based on non-CRICOS course that they undertook received letters from DIAC in August 2006. In the latter, DIAC suggested that applicants caught by the retroactive regulations undertake the same course at CRICOS education providers and bring the skill assessments’ results to the department to satisfy the new requirement in the Regulations.[3]": Kim v Minister for Immigration [2008] FMCA 1395 <https://jade.io/article/84443>.
unless invited by the department to submit a skill assessment (in another occupation): "22. On 21 August 2006, the delegate wrote to the applicant informing her that at the time when her Certificate III qualification was issued, City College was not registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) as required by the Education Services to Overseas Students Act 2000 ( ESOS Act ). The applicant was referred to clause 880.230 introduced on 1 July 2006 and was given an option of submitting a new skills assessment or withdrawing the application. 23. On 24 October 2006, the applicant provided to the Department a copy of a Certificate III in Hospitality (Commercial Cookery) awarded by Carrick Institute of Education (Carrick) on 30 August 2006. Also provided was a letter from Carrick stating that the applicant had successfully completed the course which commenced on 12 July 2004 and was completed on 8 July 2005. The course was full time and instruction was given in English. The applicant also provided a letter from TRA dated 15 September 2006 which stated that the applicant had been designated for migration purposes as a Trades and Related Workers nec (code 4512-11). 24. On 14 December 2006, the delegate refused to grant the visa to the applicant. The delegate found that the Certificate III in Food Processing (Retail Baking) awarded by City College was provided with the visa application and to the TRA for the purpose of the skills assessment for the nominated occupation and formed the basis of the TRA’s decision to issue a skills assessment for the nominated occupation. The delegate found that at the time this qualification was issued, City College was not registered on CRICOS as required by the ESOS Act . The delegate found that the applicant did not have a skills assessment made on the basis of qualifications obtained in Australia as a result of full-time study in a registered course and therefore the applicant did not meet clause 880.230. The delegate referred to the second TRA skills assessment dated 15 September 2006, and found that it was not for the skilled occupation nominated by the applicant in their visa application and, therefore the applicant did not meet clause 880.221. ... 26. On 4 April 2007, the Tribunal sent the applicant a letter inviting the applicant to provide comments on information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. The information and its relevancy, as set out in the letter, is as follows: ... This information is relevant to your review as the Education Services to Overseas Students Act 2000 requires any education provider to be registered on CRICOS to legally provide training and education to overseas students. If the Tribunal finds that City College was not registered on CRICOS it may also find that the TRA skill assessment was not made on the basis of qualifications obtained in Australia as a result of full time study of a registered course . If the Tribunal makes these findings it may also find that you do not meet relevant criteria for the grant of a subclass 880 visa, particularly clause, 880.230. ... This information is relevant to your review as the second skill assessment was not for the occupation nominated in your subclass 880 visa application. If the Tribunal makes this finding it may also find that a relevant assessing authority has not assessed your skills as suitable for you nominated skilled occupation. If the Tribunal makes these findings it may also find that you do not meet relevant criteria for the grant of a subclass 880 visa, particularly clause, 880.230. However, you may wish to seek a further assessment from TRA in relation to the qualification awarded to you by Carrick but for the occupation of Tradespersons and Related Workers nec (ASCO code 4512-13). ... 27. On 4 April 2007, the applicant’s representative responded to the Tribunal’s letter of 4 April 2007 It was submitted that at the time the application there was no requirement that an applicant’s course was a CRICOS registered course. The representative referred to the Department’s letter of 21 August 2006 and stated that in response a second skill assessment was provided to the Department and was as a Tradespersons and Related Workers nec (ASCO code 4513-11). The representative submitted that the second skill assessment was based on the applicant’s Commercial Cookery course taken at Carrick and which was a registered course . The representative stated that the delegate found that the second skill assessment was not for the nominated skilled occupation despite referring to regulation 2.27B(4) and submitted that under regulation the first skill assessment had been substituted by the second skill assessment . The representative also submitted that as the Department submitted an invitation and the applicant performed in response to that invitation the Department is estopped from withdrawing its invitation. ... 41. Clause 880.230 also provides that if the assessment mentioned in subclause (1) is made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification was obtained as a result of full-time study in a registered course . The applicant provided 2 skills assessments . The first skills assessment was based on a Certificate III in Food Processing (Retail Baking) – Cake and Pastry awarded by City College on 22 June 2005and was for full time study stated by City College to be for 1 year however, the course dates were from 1 February 2005 to 22 June 2005 which is only 4 months. TRA, on the basis of this education qualification, designated the applicant’s skilled occupation as Trades and Related Workers nec (code 4512-13). During the period of the course dates that applicant held a student visa. The second skills assessment was based on a Certificate II in Hospitality (Commercial Cookery) awarded by Carrick on 30 August 2006 and was for full time study from 12 July 2004 to 8 July 2005. TRA, on the basis of this education qualification, designated the applicant’s skilled occupation as Trades and Related Workers nec (code 4512-11). During the period of the course dates that applicant held student visas. 42. On the evidence the Tribunal finds that the relevant assessing authority, TRA had assessed the skills of the applicant (the first skills assessment ) as suitable for her nominated skilled occupation on the basis of the qualification obtained from City College. Information before the Tribunal indicates that at the time when the applicant’s qualification was issued, City College was not registered on the CRICOS as required by the ESOS Act . 43. The Tribunal also finds that the second skills assessment was made by a relevant assessing authority, TRA and was based on the qualification from Carrick and was a registered course . The Tribunal notes that due to changes in TRA’s assessment criteria the applicant is unable to have her education qualification assessed against her nominated skilled occupation. 44. The Tribunal further notes that both Trades and Related Workers nec (code 4512-13) and Trades and Related Workers nec (code 4512-11) are specified in the relevant Gazette Notice as skilled occupations and that 60 points are available for this occupation. In the relevant Gazette Notice the descriptions of both are very close: Trades and Related Workers nec (code 4512-13) is described as a Pastrycook; and Trades and Related Workers nec (code 4512-11) is described as a Baker. 45. As noted above, the Tribunal has received advice concerning the Departmental policy and application of clause 880.230 with respect to students whose circumstances are not dissimilar to those of the applicant. As this information emerged following the delegate’s decision on this application and has not been considered by the delegate, the Tribunal considers it appropriate that the matter be remitted to the Department to enable the consideration of the issue. 46. The representative submitted that the Department had invited another skill assessment pursuant to regulation 2.27B. However, the occupation, Trades and Related Workers nec (code 4512-11), Baker does not require licensing or registration under a law of the Commonwealth, or of a State or Territory, for the purpose of regulation 2.27B(1)(d)(ii). 47. The representative also submitted that the applicant could change her nominated skilled occupation, however, in light of the Tribunal’s findings and the above comments the Tribunal will not consider this submission further. 48. When applying for the visa, the applicant provided evidence that she has undertaken an IELTS test on 11 February 2006 and, therefore, the Tribunal finds that the visa applicant had undertaken an IELTS test and that the test was conducted during the processing of the application. 49. The test results indicate that the applicant has achieved the score of at least 5 for each of the 4 test components and the Tribunal finds accordingly. Therefore, the Tribunal also finds that the applicant has ‘vocational English’ as defined in regulation 1.15B(3) and meets the criteria in clause 880.223.": 061049879 [2008] MRTA 143 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2008/143.html>.
Possible to seek re-assessment of skills from skill assessment authority?
?Possible: "35. Although there is no legislative restriction upon acquiring a second skills assessment , there is no current skills assessment before the Tribunal assessing the applicant as suitable other than that of the 8 January 2007 assessment. The Tribunal has had regard to the TRA assessment of 15 December 2009 and the adviser’s submission that it has been affected by errors and is the subject of review. The Tribunal considers that the applicant has been provided with enough opportunities to present her case and is not prepared to delay any further and in any event, considers that clause 880.230 necessarily covers each and every relevant assessing authority’s assessment.": 0900645 [2010] MRTA 151 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2010/151.html>.
TRA refused, but said possible to obtain one from another occupation: "20. ... The representative also stated that he had contacted Trades Recognition Australia (TRA) on 16 November 2007 as to whether the applicant can reapply for assessment with his new qualifications and had been informed by TRA that once an applicant had been successfully assessed by TRA in a specific occupation they could not be reassessed for that same occupation. They would only consider a new assessment for a different nominated occupation which had not previously been successfully assessed by TRA. The representative submitted that on this basis the applicant was unable to comply with the new cl.880.230 of the Regulations as TRA would not provide him with a reassessment of his qualifications based on his study for those qualifications in a registered course. A copy of email correspondence between the representative and TRA was also provided to the Tribunal.": 071088723 [2008] MRTA 345 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2008/345.html>.
Yes, ?depends on whether new assessment is wholly (or partially) based on qualification from non-CRICOS course: "21. If the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa , the qualification must have been obtained as a result of studying a registered course (cl.485.224(2)). ‘Registered course’ is defined to mean a ‘course of education or training provided by an institution, body or person that is registered, under section 9 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students’ (r.1.03). 22. It is not entirely clear to the Tribunal whether the applicant’s most recent skills assessment from TRA was obtained as a result of his having studied a registered course in Australia, as it appears (from the applicant’s evidence at hearing) that his second skills assessment may have been successful as a result of his longer amount of employment experience as a welder since his first skills assessment application. 23. However, the Tribunal has nevertheless assessed him against cl.485.224(2) as it appears that his second skills assessment may have been partially based on his Australian qualification. On the evidence before the Tribunal, it finds that the applicant completed a Diploma of Engineering (Advanced Trade) (incorporating a Certificate IV in Engineering) at Kangan Institute of TAFE between 18 July 2011 and 14 June 2013. The Tribunal is satisfied from the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) that this is a registered course. It is further satisfied from the Department’s movement records that the applicant held a student visa (or visas) throughout the period of his studies. Accordingly, the Tribunal finds that the applicant satisfies the requirements of cl.485.224(2).": 1417182 [2015] MRTA 493 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2015/493.html>.
Thapa (Migration) [2022] AATA 4610, [9].
Yes, but for certain visas, the skill assessment re-done has to relate to circumstances before or within an invitation to apply:
> "24. There is no evidence before the Tribunal to suggest that the skills assessment had actually been requested at the time of the visa application, and the Tribunal finds that it had not. However, it is clear that as a result of the second skills assessment requested after the visa application was lodged, and that a favourable assessment indicated that the applicant was suitable for migration to Australia as a cook. 25. The Court in Berenguel distinguished between time of application criteria which expressly require that the application must be accompanied by evidence of a thing having been done, in respect of which a failure to have provided that evidence with the application is fatal to the satisfaction of the criterion, and those time of application criteria which simply require that a thing has been done or a requirement met, in which case it may be done or met at any time up until the decision is made, including the decision on review. In the view of the Tribunal, clause 485.214 is an example of the latter. ...": 0904072 [2010] MRTA 1532 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2010/1532.html>.
> "12. In this case the period of the invitation was 21 May 2020 until 20 July 2020. The second skills assessment commenced 5 June 2020 which was within the period of the invitation. On the evidence before it, the Tribunal finds that at the time of the invitation to apply for the visa the relevant assessing authority for the applicant’s nominated skilled occupation had assessed his skills as suitable for that occupation. The applicant meets cl 491.214(a).": De Guzman (Migration) [2022] AATA 5097.
[D] Assessment of Applicant's Engagement in Work - Analysis of Award under the Fair Work Act - PhD Student, Lab Work, Supervision
"[27] The representative noted that the Professional Employees Modern Award is a national award for professional scientists and under this award, effective from 1 July 2014, the annual wage for an Entry Level Scientist with a 3 year degree was $44,554 and the annual wage for scientist with a 4 or 5 year degree, for example a Masters, was $45,696. She noted that the applicant’s scholarship was $56,653 per annum, plus costs. He was also entitled to 4 weeks paid recreation leave per year and paid sick leave of up to 10 days within the tenure of the scholarship, an additional period of sick leave of up to 3 months for medically substantiated periods of illness and paid maternity leave of a maximum of 12 weeks. She explained that the PhD is not just a course of study; it is a program of supervised original research. While supervised, PhD candidates nevertheless conduct research just as any other scientific research scientist. ... [29] The representative noted that according to the Professional Employees Award, a professional scientist is a person qualified to carry out professional scientific duties. The award defines the professional scientific duties as duties carried out by a person in any employment for which academic qualifications are required. To be accepted in the PhD program candidates are required to hold at least a bachelor degree and must demonstrate the capacity to undertake research at doctoral level. ... [31] The representative noted that the applicant’s scholarship contract is very similar to an employment contract, with similar entitlements under the Fair Work Act. The tasks and duties of a PhD candidate are almost identical to the tasks and duties of a scientist employed elsewhere in a professional capacity. She submitted that the applicant’s PhD candidature at James Cook University meets the definition of employed as set out in r.2.26AC(6), that is, engaged in an occupation for remuneration for at least 20 hours per week. [32] The Tribunal has considered the representative’s submissions and the delegate’s view regarding the applicant’s engagement at James Cook University while undertaking his PhD . The Tribunal finds it highly persuasive that Vetassess considers his engagement to be employment. It also finds his annual award of $56,653, and entitlement to paid recreation leave and sick leave and the requirement to attend full-time indicative of an employment arrangement. Having regard to the terms of agreement with the University it finds the requirement that he undertake research under the supervision of a senior researcher and publish scientific articles while engaged at James Cook University to be indicative of employment. The Tribunal is also persuaded by the submission that aspects of the scholarship contract are very similar to an employment contract, with similar entitlements under the Fair Work Act. [33] The Tribunal accepts that the Department’s policy suggests that a person receiving minimal living allowances or scholarships to cover living expenses would not be considered to be ‘remunerated’. However to the extent such an interpretation requires financial benefit, the Tribunal is of the view it may go beyond the ordinary meaning of remuneration. In any event, it appears the applicant’s entitlements under the agreement with James Cook University, in addition to living expenses, included tuition and leave entitlements and other scholarships are not minimal when compared to the annual wage for an Entry Level Scientist. The Tribunal is of the view the entitlements arising from the applicant’s agreement with James Cook University were ‘remuneration’. [34] On this basis the Tribunal finds the applicant was engaged in a skilled occupation during a specific period which totalled 36 months, as he was actively participating in or undertaking duties directly connected with carrying out the occupation concerned. The occupation of research scientist was the applicant’s nominated skilled occupation or a closely related skilled occupation. On the basis of Vetassess’ findings the Tribunal is satisfied the applicant held the qualification and/or experience nominated by the ANZSCO classification system for the occupation. Accordingly the Tribunal is satisfied the applicant was employed in Australia in the nominated skilled occupation or a closely related occupation from July 2014 to December 2017, for a period totalling at least 36 months in the 10 years immediately before the invitation to apply for the visa.": Malara (Migration) [2019] AATA 5914 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2019/5914.html>.
[E] Qualification: Skills Assessment and Employment Experience - ?Conflation
"33. The representative made the following submissions by email dated 1 December 2016. In any event, experience aside, the applicant is the holder of AQF Certificates III and IV in Commercial Cookery issued on 20 April and 21 July 2016 respectively through a Recognition of Prior Learning assessment process via a nationally accredited Registered Training Organisation (Silk Education and Training). This qualification issued in Australia evidences independently that the visa applicant possesses the qualification skill level prescribed for visa grant pursuant to cl 457.233(4)(da) of the Migration Regulation 1994 (Cth . it is submitted that according to ANZSCO Guidelines for this occupation an applicant meets the skill entry level for a Cook if the applicant has 3 year experience or a Certificate III and 2 years on the job training or a Certificate IV. It is possible to be granted a Certificate IV without any cooking experience as this qualification - while substantially a supervisory qualification - meets the ANSZCO Guidelines for the skill entry for a Cook. It would be a jurisdictional error to conflate the 3 discrete pathways in the determination of whether the applicant satisfies cl 457.233(4)(da) of the Migration Regulation 1994 (Cth). It is further submitted that SILK Education holds CRICOS registration permitting it to award qualifications through RPL and subject to compliance by the Australian Skills Qualifications Authority. To the best of my knowledge there is no evidence that the qualification was issued contrary to ASQA protocols and standards. There is no evidence that the authority granted to SILK Education to award this qualification has been revoked. Finally there is no evidence that this qualification was acquired in breach of any law or regulation administrated by ASQA or that the qualifications have been cancelled since they were issued. 34. After having regard to the Department’s policy and ANZSCO Code, the Tribunal is satisfied that, as at the date of decision, that the combination of the applicant’s work experience at Tiamo restaurant in Melbourne, along with the formal qualification of Certificates III and IV in Commercial Cookery awarded by SILK Education that the applicant has the skills , qualifications and employment background necessary to perform the tasks of the nominated occupation. In reaching this conclusion the Tribunal considered that the work experience gathered by the applicant since the visa application was lodged and the recently acquired qualifications obtained in 2016 demonstrate that the applicant has the skills , qualifications and employment background necessary to perform the tasks of the nominated occupation of the cook. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).": 1513011 (Migration) [2016] AATA 4817 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2016/4817.html>.
"10 The Tribunal acknowledged that Mr Mack "had an impressive curriculum vitae and experience in the area of licensed customs broker's work and requirements in Australia". The tenor of the Tribunal's reasons indicated that it accepted Mr Mack's evidence. 11 The report by Mr Mack implied, and the Tribunal accepted, that the "usual occupation" of the first appellant in China is an occupation for which, in Australia, a "diploma" is required. 12 It follows that to that point the requirements of sub-items 6104(a) and (b)(i) had been met. With regard to sub-item 6104(c), the Tribunal did not determine the meaning of the term "the Australian standards" against which the Tribunal, as "the relevant Australian authority", had to assess the equivalence of the educational qualifications or work experience of the first appellant, as required by sub-items 6104(c)(i), (ii) or (iii). The Tribunal appeared to accept that for the purpose of sub-item 6104(c)(i), and the application before it, "the Australian standards" meant the diploma to which sub-item 6104(b)(i) referred. 13 In a paragraph in its reasons that appears to conflate the alternative requirements of sub-item 6104(c), the Tribunal stated as follows: "Given the findings of the Customs Brokers of Australia and the evidence and material before it, the Tribunal finds on balance that the Visa Applicant's qualifications and experience meet the Australian standards or requirements for his `usual occupation' as a `customs broker - supervisor' that requires a skill level or qualification at Diploma level in Australia." 14 The "findings of the Customs Brokers of Australia" to which the Tribunal refers, appear to be the following statements made by the Customs Brokers Council of Australia ("Council") in a letter to the second appellant: "In considering the academic standing of [the first appellant] in relation to the qualifications acceptable to the National Customs Agents Licensing Advisory Committee for the granting of a customs brokers licence, it would appear that his general subjects are at least equivalent to the academic level that is generally required. In addition, the Diploma and considerable experience in a working position as a customs broker appear equivalent to that of an Australian licensed customs broker. However, because of the nature of the Australian context in which the technical expertise has to be applied it would be necessary for [the first appellant] to enrol in the customs Diploma Course in Victoria to gain cross-credits and Recognition of Prior Learning for those subjects which have been completed at a higher level should [the first appellant] wish to practice [sic] in Australia. Although [the first appellant's] actual skills may be of a higher order, to be able to put the working experience into the Australian context and due to the lack of knowledge and application of specific Australian legislation, a need would exist to complete the technical subjects nominated by the Kangan Institute, Victoria prior to attempting the National Examination (conducted by the CBCA) and applying for a customs brokers licence." 15 Mr Mack gave clear evidence that the first appellant had obtained a diploma that was equivalent to the diploma required in Australia for the usual occupation of the first appellant and it was not in issue that the first appellant had obtained that diploma more than three years before the application for a visa was made. 16 The Tribunal accepted that evidence. Therefore, it may be concluded that in the paragraph set out above the Tribunal recorded that it was satisfied that the first appellant's application met the requirements of sub-item 6104(c)(i). 17 It was not in issue that the first appellant had been employed in his usual occupation at least three years before the date of the application and that in that period of three years he had "worked" continuously in that occupation. Therefore, although there was no finding thereon, the Tribunal was obliged to find that the first appellant met the requirements of sub-items 6104(e) and (f). 18 The only question remaining was whether the first appellant satisfied the requirements of sub-item 6104(d).": Chen v Minister for Immigration & Multicultural Affairs (includes corrigenda dated 9 February 2001) [2000] FCA 1901.
"28. The delegate found that the applicant did not meet the two year study requirement in cl. 485.213 because the delegate disregarded the Diploma of Accounting as irrelevant and found that the Certificate III course, undertaken by the applicant at SICB, was not of 92 weeks duration and was not completed as a result of a total of at least 2 academic years study. The Tribunal respectfully disagrees with that approach. Nothing in r. 1.15F, which defines the two year study requirement, limits consideration to the courses that are relevant to the ‘assessed position’ or the nominated occupation. This requirement is concerned with the nature and duration of the study undertaken by the applicant and not with its relevance. The requirement for the course to be closely related to the nominated skilled occupation is a separate and distinct requirement contained in cl. 485.213(b) and is not part of the two year study requirement to which cl. 485.213(a) refers. To conflate the two requirements is to adopt an erroneous approach that is not authorised by the legislation. Thus, the Tribunal has considered both qualifications held by the applicant, the Diploma of Accounting and the Certificate III in Hospitality, in determining whether the applicant meets the two year study requirement in cl. 485.213(a).": 0807255 [2010] MRTA 16 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2010/16.html>.
Barristers: "In relation to the requirements of paragraph 457.223(4)(da), the departmental policy guidelines in PAM3[34] provide: ... Assessment against the nominated occupation in ANZSCO Under regulation 2.72(10)(e)(iv), for nominations made on or after 1 July 2010, the qualifications and experience of the person nominated to fill the occupation, should be commensurate with the qualifications and experience specified: ... Nominations made before 1 July 2010 are covered by regulation 2.72(10)(d)(iv). When assessing this criterion, ANZSCO should be referred to as the principal source of information on the normal tasks or duties and skill requirements for the nominated occupation. In ANZSCO, skill level references represent the entry level skills required for a particular occupation. The skill level is defined at the Unit Group (4 digit level). In some cases, a higher qualification or level of experience will be required to complete the full range of duties competently. Officers should refer to the indicative skill level specified for the nominated occupation rather than the generic ANZSCO Skill Level. In some occupations (for teachers, barristers and nurses) formal qualifications are mandatory to undertake the role and the applicant must provide evidence of holding these qualifications with the application. In other occupations, significant experience in performing the tasks of the nominated occupation at a competent level can be considered as equivalent to formal qualifications. In all cases, officers must be satisfied that the applicant has the skills to be able to perform the nominated occupation. ANZSCO provides guidance as to the level of qualification required and/or the number of years of experience a person should have in order to be able to perform the occupation. However, when making their assessment officers should be mindful that the qualifications and experience of the applicant must be relevant to the nominated occupation ...": McMichael (Migration) [2017] AATA 390, [46].
"The Tribunal notes that this is also appears to be the process contemplated by the Department’s Procedures Advice Manual (PAM3), which provide guidance to Departmental decision-makers: 110 Assessment against the nominated occupation in ANZSCO ... 110.2 For nominations made on or after 1 July 2010 Under regulation 2.72(10)(e)(iv), the qualifications and experience of the person nominated to fill the occupation, should be commensurate with the qualifications and experience specified: for the occupation in the relevant ANZSCO code or if there is no ANZSCO code for the nominated occupation, the occupation in the legislative instrument for the purpose of regulation 2.72(10)(aa). 110.3 Assessment ASCO/ ANZSCO or the instrument should be referred to as the principal source of information on the normal tasks or duties and skill requirements for occupations in Australia. ASCO/ ANZSCO skill level references represent the entry level skills required for a particular occupation. In ANZSCO the skill level is defined at the Unit Group (4 digit level). In some cases, a higher qualification or level of experience will be required to complete the full range of duties competently. When using ANZSCO as a reference, case officers should refer to the indicative skill level specified for the nominated occupation rather than the generic ANZSCO Skill Level. In some occupations (for example teachers, barristers and nurses) formal qualifications are mandatory to undertake the role and the applicant must provide evidence of holding these qualifications with the application. In other occupations, significant experience in performing the tasks of the nominated occupation at a competent level can be considered as equivalent to formal qualifications. In all cases, case officers must be satisfied that the applicant has the skills to be able to perform the nominated occupation. ASCO/ ANZSCO provides guidance as to the level of qualification required and/or the number of years of experience a person should have in order to be able to perform the occupation. However, when making their assessment case officers should be mindful that the qualifications and experience of the applicant must be relevant to the nominated occupation. For example, ANZSCO suggests that an architect should hold a bachelor degree or higher qualification. If an applicant was nominated as an architect and provided evidence of holding a Bachelor of Law degree, it would be inappropriate to grant the visa as completing a Bachelor of Law degree would not have provided the applicant with the skills required to design a building. On the other hand, ANZSCO suggests that a marketing specialist should also hold a bachelor degree or higher qualification. If an applicant was nominated as a marketing specialist and they held a bachelor degree in business or sales for example, these degrees would be relevant to the occupation of marketing specialist so the delegate could be satisfied that the applicant had the requisite skills. If an applicant is unable to demonstrate skills and experience in a range of tasks, officers should consider whether or not the applicant is able to attribute 100% of their skills and experience to one of the sub-set of tasks prescribed. Although it is more favourable from an employer’s perspective, for an applicant to possess a range of skills and experience that covers the breadth of tasks prescribed under the nominated occupation, it should not provide grounds for refusal of the applicant’s application. For example, if an applicant were to nominate an occupation listed under a “not elsewhere classified" heading, it would be unreasonable to consider that the applicant possesses skills and experience in every prescribed task. Officers should also consider that some applicants will be highly skilled yet specialised in a small range of tasks rather than the range of duties. As this program is designed to enable employers to meet skill shortages, this degree of specialisation is acceptable for applicants for the program. ... 111 Requesting applicants to provide evidence of skills, qualifications and employment background If there is insufficient detail provided by the applicant to satisfy officers that the applicant has the necessary skills, qualifications and employment background for the nominated occupation, officers may request the applicant to provide additional information. If officers require further information, they should specify the evidence that the visa applicant is required to provide. Based on the circumstances of the case this may include (but is not limited to): formal qualifications formal and/or on-the-job training work and/or relevant experience employment references a skills assessment for migration purposes - see section 131 Skilled migration skills assessments and ability to meet any relevant Australian registration or licensing requirements - see Qualifications and experience. If there are doubts about the genuineness of this information, officers may consider referral to an overseas post to verify the claims made. See section 137 Referring cases overseas. ... 116 May be required Clause 457.223(4)(e) provides that officers may require the applicant to demonstrate that they have the skills and experience that are necessary to perform the nominated occupation. If an applicant is required to demonstrate these skills and experience, officers are to specify the manner in which this is to occur. It is departmental policy that, if TRA supports the provision of a 457 skills assessment for the nominated occupation and passport country of the visa applicant, the applicant will be required to demonstrate that they meet 457.223(4)(e) by providing evidence of having completed a TRA 457 skills assessment. It is also departmental policy that all applicants nominated in the occupations of Program and Project Administrator (ANZSCO 511112) and Specialist Managers nec (ANZSCO 139999) will be required to demonstrate that they meet 457.223(4)(e) by providing evidence of having completed a skills assessment for migration purposes conducted by VETASSESS (Skills Recognition – General Occupations) - a VETASSESS 485 skills assessment is not acceptable for this purpose. For further advice on assessing a visa applicants’ skills, see Skills assessments. 17. While Departmental policy is not binding on the Tribunal, the Tribunal considers it appropriate to apply it if it is relevant to the criterion (or criteria) in dispute and does not impose a stricter test than the text of the relevant legislation itself. ... ": 1313376 [2015] MRTA 769, [16] <https://classic.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/MRTA/2015/769.html>.
[F] Evidence, Submissions
Evidence from Employer: “[28] At the hearing, the applicant said that he worked as a video journalist in the media group at Griffith University and created news stories and updates on local news. The applicant claimed that he was involved in recording seminars, editing videos, camera operations and researching for lecturers. The Tribunal requested additional evidence from his employer and was provided with an employment reference letter dated 16 July 2014 from Mr Sean Moyles, Audio Visual Infrastructure Specialist, from the Audio Visual Development Team at Griffith University. The letter advises that the applicant was employed full-time in the capacity of Audio Visual Coordinator from 2 April 2009 to 28 October 2012. The description of the role appears broadly consistent with the tasks set out under ANZSCO for the unit group of Journalists and other writers, although other duties such as studio maintenance, equipment and asset arrangements, audiovisual bookings, client training appear to be less relevant. [29] Having regard to this additional information from the employer, the Tribunal accepts that the applicant was employed in Australia in the nominated skilled occupation or a closely related occupation for a period of over 12 months in the 48 months immediately before the visa application was made. Therefore, the applicant is entitled to 10 points under this part.”: 1409676 [2014] MRTA 1648.
Statement of Duties / Statement of Service
> Accountant / Accounting Clerk – duties found to be same as Accountant: "[18] The Tribunal will consider the applicant’s employment with Veolia. Provided to the Department was an employment agreement between the applicant and Veolia which indicated that his employment was on a permanent full time basis in the position of assistant accountant on a salary of $53,000 plus the superannuation guarantee was to commence on 3 April 2017. The Commonwealth Bank statements for the applicant’s account for the period 22 August 2018 to 21 April 2019 indicate that the applicant was paid regular salary payments by Veolia during both periods of his employment with Veolia. … [20] Although the delegate was satisfied that the applicant worked for Veolia during the relevant period, the delegate was not satisfied that the tasks listed in the statement of service were consistent with those of the nominated occupation of Accountant (General) (ANZSCO 221111).and that they were more consistent with those of an Accounting Clerk (ANZSCO 551111). [21] The Tribunal has been provided with a confirmation of employment letter dated 20 September 2017 by Mr Steve Moore, General Manager Finance and Administration VIC/TAS Waste / Water (the confirmation of employment letter). In relation to the applicant’s first period of employment with Veolia the letter stated that the applicant was employed as a full time temporary accountant from August 2016 to December 2016 which was managed through Randstad. The letter further stated that the applicant started to work as a permanent employee with Veolia in April 2017 on a minimum of 38 hours. [22] The confirmation of employment letter then stated that some of the responsibilities the applicant undertook during both periods of employment included the following: Assist in budgeting and forecasting Commercial analysis & reporting Accounting Month-End General ledger maintenance Examining operating costs and income & expenditure of various 'waste' divisions Preparing performance to budget report reports for divisional supervisors and managers Profit and Loss and Balance Sheet reconciliations Reconciliation between financial reporting systems Preparation and submission of tax credits for the ATO Assistance in the audit function Liaising with external business partners to ease decision making for managers Liaising with suppliers and internal management Investigating invoices and liaising with accounts payable team Training finance and non-finance employees on ERP (SAP) and internal controls Ad hoc analysis where required [23] Also provided to the Tribunal was a letter dated 20 July 2022 from Mr Richard Hesketh Head of Workplace Relations at Veolia (the second confirmation of employment letter). The letter stated that Mr Hesketh has been in the position of Head of Workplace Relations with Veolia since July 2018. Mr Hesketh confirmed that he is aware that the applicant worked with Veolia during the 2 employment periods for 38 hours a week. Further, Mr Hesketh confirmed that he had reviewed the confirmation of employment letter from Mr Moore and confirm that the contents of the letter and the duties listed are correct. He also stated that Mr Moore ceased to work for Veolia in October 2017, but the applicant continues his work as an accountant with Veolia until 26 October 2018. Mr Hesketh then stated that he can confirm that the applicant performed the duties as listed in ANZSCO 22111 Accountant 221111 up until he resigned in October 2018. [24] Also provided to the Tribunal were a number of references in relation to the applicant’s work as an Accountant at Veolia and with his other employers. The reference dated 27 August 2019 from Ms Lisa Thomson who was the Human Resources Advisor at Veolia from 2017 to 2018 (the 2019 reference) also listed the duties carried out by the applicant during both periods of employment. The reference also stated that the duties of the applicant were in line with the usual complexities of an Accountant. The 2019 work reference further stated that due to the scale of Veolia most accounting roles were referred to as: Assistant Accountants, Finance Managers or Commercial Managers, however, the titles did not reflect the individual duties. All incumbents including the applicant, were required to be tertiary qualified, hold professional memberships and be willing to undertake post tertiary study. The reference also stated that the clerical roles were all entitled: Accounts Payable Officer, Accounts Receivable Officer and Billing Officer. [25] The duties listed in the 2019 work reference as being undertaken by the applicant are as follows: Month-End Accounting Processes Preparing, reviewing and entering accrual and journals for the weekly and month end processes Monthly, Quarterly and Annual Reporting Preparing and submitting Fuel Tax Credits (FTC) as per ATO requirements Assist the senior managers in Budgeting and Forecasting for the Victorian Business Reconciliation of the balance sheet GLs Taking up monthly accruals for the Victorian 'Waste' business division Journaling costs intra-company, between different business divisions (within the 'Waste' business) Liaising with Internal and External Stakeholders Assisting in Internal and External Audit processes Provide training to staff on computer-based Accounting Systems such as SAP R3 and SAP S4 HANA. Monthly Invoicing function, investigate and approve charges billed and pass for payment to accounts payable and clerks through SAP in National Office. Actively work with business units to improve business processes and performance; travelling to Operational sites to work closely with frontline management Challenge business practices. Develop new systems and processes; train and empower managers and their teams. [26] The Tribunal has taken into consideration the tasks listed under the Unit Group 2211 Accountants in ANZSCO and that in relation to the occupation Accountant (General) ANZSCO states that an occupant in the position: ‘provides services relating to compliance based financial reporting, auditing, insolvency and accounting information systems; and advises on associated record-keeping requirements.’ On the evidence set out above the Tribunal is satisfied that the applicant during both periods of employment with Veolia performed most of the duties of the nominated occupation Accountant (General). The Tribunal is also satisfied that the applicant worked in the nominated occupation during both periods of employment for a total of 21 months. [27] On the above the Tribunal is satisfied that the applicant had been employed in Australia in the nominated skilled occupation for at least 12 months but less than 36 months in the relevant period.”: Farooq (Migration) [2022] AATA 2930.
Confirmation of Employment Letter: Anureet [2023] AATA 3790.
CV, employment letters, see above: Philippe Maxime Jerome Nadaud [2005] MRTA 115 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2005/115.html>.
457 visa - PAM3: "13. In relation to the requirements of paragraph 457.223(4)(da), the departmental policy guidelines in PAM3[17] provide: ... they are satisfied that paragraph 457.223(4)(da) is met based on information provided with the visa application – for example, the visa applicant is a lawyer and has provided transcripts from their law degree as well as evidence of completing required practical professional training, a comprehensive CV and work references outlining previous work experience; or ...": Yap (Migration) [2017] AATA 1575 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2017/1575.html>.
> See also, GILL (Migration) [2017] AATA 2019, [19] <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2017/2019.html>.
delegate found documents provided not "sufficiently articulated", Cash payment employment, work statements, notarised affidavit, no suggestion of incorrect information or bogus documents, decision made without hearing: Kamatham Sandeep Kumar (Migration) [2023] AATA 106 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2023/106.html>.
Employment certificate, UAE: Alsheri (Migration) [2020] AATA 4508 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2020/4508.html>.
written statement from former employer, copies of payslips, PAYG statement: Battan (Migration) [2024] AATA 1626, [21].
reference letter and contracts of employment: Harrison (Migration) [2024] AATA 577, [30].
Letter from employer, one statement from applicant: 1509907 (Migration) [2016] AATA 3050 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2016/3050.html>.
Payslips, shift worker, casual basis, hours adjusted: DY (Migration) [2018] AATA 1988 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2018/1988.html>.
Payslips, husband's business: Bhoji (Migration) [2023] AATA 1008, [21] <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2023/1008.html>.
"very detailed evidence", "description of material engineering work persuasive": Rafique (Migration) [2017] AATA 861 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2017/861.html>.
Certification of service letter, payslip summary, payment/tax withheld, resume: Musngi (Migration) [2022] AATA 1265 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2022/1265.html>.
Cash payments - no bank account statements, provided PAYG, work reference, ATO, stat decs from others: Abhishek (Migration) [2020] AATA 4597, [27].
Relevance and credibility: "51. The tribunal has considered all of the information provided in the work references; and not simply the titles of each job which appears in each reference. In this way, the tribunal seeks to gain a fuller appreciation of all the information in the work reference; without needing to or wishes to go behind what is written on the face of the references themselves, and without questioning the veracity of the information presented. 52. On the face of each reference itself, it is clear that the role being performed is not the nominated occupation and is not a closely related skilled occupation. Only time spent working in the nominated occupation or a closely related skilled occupation is relevant to Part 6D.3 and other parts of Schedule 6D . The instances of claimed work experience, on the face of the references themselves, are not relevant to the points test, and therefore not relevant to any visa criteria the Minister may consider. 53. It is true that the tribunal has had to embark on an exercise of characterisation to conclude that the information is not relevant to visa criteria. The tribunal considers that that characterisation is necessary to properly appreciate the nature of the information in the work references. An appreciation of the information is necessary to decide its relevance to visa criteria. 54. In this context, to properly appreciate the information both ANZSCO and the skilled occupation instrument need to be consulted. In the tribunal’s view, information is not relevant to the points test just because the information must be appreciated within the structure of ANZSCO, the skilled occupation list and the points test. One cannot decide if information is relevant to criteria, unless one has a thorough appreciation of the information (that is all of the information in the work reference and not just the job title) and of the criteria (including the requirements of the points test, the list of specified skilled occupations, and the definitions of occupations in ANZSCO). 55. The tribunal emphasises that in this process it has not evaluated the credibility of the information in question, nor rejected or accepted any part of the information. The tribunal has only taken and examined all of the information on the face of the relevant documents, to assess if the information is relevant to visa criteria. 56. In this case, it is clear on the face of the information itself, without looking behind the information and without using extraneous information, that the information in all three work references is not relevant to the points test and it is not relevant to visa criteria in any other way.": 1411516 (Migration) [2015] AATA 3006 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2015/3006.html>.
opinion in skill assessment, work references: 1506435 (Migration) [2015] AATA 3788, [21] <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2015/3788.html>.
India, accountant's information: Harmandeep Singh (Migration) [2023] AATA 738, [20].
India, self declarations, declarations from others, sales slips, other circumstantial evidence: Inderjeet Singh (Migration) [2023] AATA 1863.
Employment letters confirming employment as [position]: Kippen (Migration) [2023] AATA 693.
Reference letters and employment contract: Harrison (Migration) [2024] AATA 577, [30].
Employer refusing to provide information, citing company policy: "19. Having examined the evidence of the applicant’s employment in its totality, the Tribunal considers that the applicant has now demonstrated to the requisite degree his claimed employment in the nominated occupation of Clinical Psychologist or in a closely related occupation. In making this finding, the Tribunal observes that the applicant has not been able to obtain a reference of employment from employer 5 (Terros) that specifically identifies the applicant’s job title. However, having regard to the specificity of the applicant’s other employment evidence; regard to a note on the Terros Verification of Employment letter dated 5 August 2014 indicating that “company policy prohibits any further information to be disclosed”, and regard to publicly available information concerning the nature of the services provided by this employer at http://www.terros.org/services, the Tribunal considers it reasonable to accept the applicant’s role with Terros was that of Group Therapist as he has consistently claimed.": 1407666 [2015] MRTA 178 <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/MRTA/2015/178.html>.
cf, no evidence whatsoevr provided - decision affirmed to refuse visa: Grewal (Migration) [2023] AATA 1054.
cf, without evidebce to confirm the work experience: Dhamija (Migration) [2023] AATA 745, [19]-[20].
cf, no claim and provided no evidence of: Vekariya (Migration) [2022] AATA 1954, [34].
cf, dearth of independent documentary evidence in relation to the first named applicant’s employment: 1403195 [2014] MRTA 1776, [14].
[G] Delay in Processing - Visa Decisions - Administrative and Judicial Reviews
Lorenzo Boccabella, The Court have said on numerous times that visa decisions must be made in reasonable time' (CPE Migration, 3 March 2025) <https://www.cpemigration.com.au/blogs/the-court-have-said-on-numerous-times-that-visa-decisions-must-be-made-in-reasonable-time>, archived at <https://archive.is/26TOo>.
> "So, what to do when there’s an unreasonable delay in Immigration or a tribunal making a decision. One option is to write to the global feedback unit1 drawing attention to what the court authorities say about a delay. Ultimately if there is no response, one can bring court action to force a decision by way of mandamus. One cannot get an injunction to force Immigration to make a positive decision but one can get an injunction to force Immigration to make the decision, ‘within a reasonable time”. ... Regrettably, in many areas of migration law including before the review tribunals, decisions can be left in the queue for years. A well crafted letter or submission could be used to stir a dormant case into action. ... See https://immi.homeaffairs.gov.au/form-listing/Pages/Registered-migration-agents-enquiry-and-feedback.aspx ...".
AFX17 v Minister for Home Affairs [2020] FCA 807, [44]-[60] <https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0807>.
[H] Immigration New Zealand - Operations Manual
<https://www.immigration.govt.nz/opsmanual/#35439.htm>. -- Instructions.
[I] Ministerial Intervention
Request directly, personally:
> "18. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister, using the letter he has already prepared that clearly articulates his case.": Gulab (Migration) [2023] AATA 4172.
> "55. It is anticipated that [the applicant], his close and extended family members in Australia as well as members of the community may wish to lodge documentation in support of this referral. The Tribunal notes [the applicant] acknowledged at the hearing that it is up to him - ideally with professional advice from an immigration lawyer/registered migration agent or a community organisation such as [Charity] or the [Community group] - to collate appropriate robust evidence in support of this referral to the Ministerial intervention .": 2101274 (Migration) [2021] AATA 383.
Request the Tribunal to make referral to the Minister, referral on Tribunal's recommendation:
> "57. The Tribunal has considered the applicant’s case and the Ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s Guidelines on Ministerial Powers (s345, s351, s391, s417, s454 and s501J)’. For the reasons outlined above, the Tribunal refers this case to the Department for the Minister’s attention. The Tribunal respectfully recommends that the Minister exercises the powers pursuant to s.351 of the Act with regard to the applicant.": Fry (Migration) [2018] AATA 5828.
> "28. Having regard to the evidence, the Tribunal accepts that Ms Prudenciado’s circumstances are capable of meeting the criteria extracted above for referral to the Minister, namely, there would be exceptional economic and other benefits from allowing Ms Prudenciado and her family who are already in Australia to remain here. As such, the Tribunal considers that Ms Prudenciado’s situation may involve exceptional circumstances and the Tribunal therefore considers it appropriate to request that this case be brought to the attention of the Minister in order for him to consider whether to exercise his discretionary intervention powers under s.351 of the Act.": Prudenciado (Migration) [2018] AATA 1046.
> "44. The Tribunal therefore finds that the applicant does not satisfy cl.491.214 and it must affirm the decision under review to refuse to grant him a subclass 491 visa. The Tribunal must also affirm the decisions to refuse to grant subclass 491 visas to the second and third named applicants (the applicant’s wife and daughter) as it finds that they are unable to satisfy the secondary visa criteria in cl.491.311 requiring them to be members of the family unit of a person who holds a subclass 491 visa, and there is no evidence that they meet the primary visa criteria in their own right. 45. The Tribunal acknowledges that the applicants have elected not to request the Tribunal to refer their case for Ministerial intervention pursuant to s.351 of the Act, but notes that it remains open to them to make such a request directly if they wish to do so in future.": Chowdhury (Migration) [2024] AATA 1011.
Unfair or unreasonable application of relevant legislation, ministerial intervention: "108. Having regard to the circumstances of the applicant as outlined above, the Tribunal considers that the application of the relevant legislation leads to unfair or unreasonable results in the applicants’ case. Accordingly, the Tribunal considers it appropriate to refer this matter for Ministerial consideration pursuant to s.351 of the Act. 109. The Tribunal therefore considers it appropriate to request that this case be brought to the attention of the Minister in order for him to exercise his discretionary intervention powers under s.351 of the Act.": Ndhlema Kakunka (Migration) [2023] AATA 2896.
'New Ministerial Instructions and Minister’s Personal Procedural Decisions' (DHA, 19 September 2025) <https://www.homeaffairs.gov.au/news-media/archive/article?itemId=1348>.
'Ministerial Intervention – sections 351 and 501J' (DHA) <https://immi.homeaffairs.gov.au/what-we-do/status-resolution-service/ministerial-intervention>.
Positive PPD, 4 September 2025: <https://immi.homeaffairs.gov.au/refugee-and-humanitarian/Pages/Ref-and-hum-program/documents/positive-personal-procedural-decision-351-501J.pdf>.
Ministerial Instructions, s 351 and 501J, 17 September 2025 <https://legend.online.immi.gov.au/migration/2021-2024/2025/19-09-2025/policy/Documents/Ministerial%20Instructions%20-%20requests%20for%20use%20of%20the%20Minister%27s%20intervention%20powers%20under%20sections%20351%20and%20501J%20of%20the%20Migration%20Act%201958.pdf>, archived at <https://perma.cc/BQR5-XF46>.
[J] Procedures, Processes
Invitation to comment or provide information -- s 56, 57, 58: 'Notification requirements', 19 September 2025: text, html <https://legend.online.immi.gov.au/migration/2021-2024/2025/19-09-2025/policy/Pages/_document00001/_level%20100005/level%20200060.aspx>: "3.2.4.1. Overview of s56 and s57 invitations Prior to making a decision on a visa application, a delegate may invite an applicant to: give additional information under s56, or comment on 'relevant information' under s57. A delegate may (but is not obliged to) invite an applicant to give additional information under s56. Although a delegate is not obliged to invite an applicant to give additional information under s56, they must exercise their discretion, to exercise or not exercise the power, reasonably. For further guidance on exercising the s56 discretion reasonably, refer to GenGuideA - All visas - Visa application procedures. Under s57, a delegate must invite an applicant to comment on 'relevant' information that the delegate considers: would be the reason, or a part of the reason, for refusing to grant the visa (or prior to 14 October 2024, would be the reason or part of the reason for deciding that the applicant is an excluded fast track review applicant), and is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member, and was not given by the applicant for the purposes of the application, and is not non-disclosable information (see s5(1) definition and GenGuideA - All visas - Visa application procedures - Communication of minister with applicant). Where a delegate issues a s56 letter, as a matter of policy, they should not send a s57 invitation before one of the following events occurs: the applicant provides the information requested in the s56 letter the applicant tells the Minister that they do not wish to give the requested information or does not have it, or the time in which the information may be given ends. Officers must, as a matter of procedure, use ECS generated templates. Therefore, officers should not combine s56 requests for further information and s57 invitations to comment into one letter, and s57 letters should not be sent before the prescribed period for a s56 request is resolved. The applicant's response (if any) to a s56 or s57 invitation must be considered by the delegate. This consideration should be reflected in the decision record. The officer may refuse to grant the visa once the timeframe for response provided in the s56 or s57 invitation ends (assuming the criteria for the grant of the visa are not met). In other words, the officer is not required to issue a further s56 or s57 invitation for the same information if the information the applicant was invited to give or comment on is not provided by the applicant in the timeframe. The officer may refuse to grant the visa prior to the timeframe for response ending only if one of the following occurs: all information requested in the letter is given, or the applicant tells the department they do not wish to give the information or do not have it. Where the applicant: only provides some of the information they were invited to give chooses not to give the information and does not communicate this to the department, or may not be able to give the information and does not communicate this to the department, the officer must not make a decision until the timeframe in which the information or comments must be given ends. This procedural instruction contains guidance on the notification requirements for s56 and s57 invitations. For guidance on the exercise of s56 and s57, see: GenGuideA - All visas - Visa application procedures - Communication of Minister with applicant – Information contained in applications GenGuideA – The Code of procedure – Procedural fairness. If the delegate is considering refusing the visa on character grounds under s501 of the Act, any additional information should be sought, or adverse information put, in the form of a notice of intention to consider refusal (NOICR), rather than an invitation under s56 or s57. For further guidance, see Notice of intention to consider refusal on character grounds (NOICR) – s501(1). An invitation given under s56 or s57 must set out the method by which the additional information or comments are to be given and the period within which the response must be given. The available methods are in writing, at interview (which includes an interview conducted by video conference) or by telephone. The period for response is the period prescribed in reg 2.15 or, if no period is prescribed in reg 2.15, a reasonable period. The relevant subregulation in reg 2.15 which applies depends on the method by which the additional information or comments are to be given (that is, in writing, at interview or by telephone): the 'prescribed periods' for responding otherwise than at interview (including 'in writing') are in reg 2.15(1), and the 'prescribed periods' for response at interview are in reg 2.15(3). For example: If an applicant in Australia (who is not in immigration detention) is invited in writing to respond to a s57 invitation, and the invitation requires the response to be given in writing, the 'prescribed period' for response is generally 28 days after they are deemed to have received the notification. If an applicant in Australia (who is not in immigration detention) is invited in writing to respond to a s57 invitation, and the invitation requires the response to be provided at an interview, the notice must specify a time and place for interview within 28 days after the applicant is deemed to have received the notice. Regulation 2.15(1) prescribes different periods for response 'otherwise than at interview' depending on the method the invitation was given (at interview, in a telephone conversation or in writing). For example: If an applicant in Australia (who is not in immigration detention) is invited in writing to respond to a s57 invitation, and the invitation requires the response to be given in writing, the 'prescribed period' for response is generally 28 days after they are deemed to have received the notification. If an applicant in Australia (who is not in immigration detention) is invited at an interview to respond to a s57 invitation, and the invitation requires the response to be provided in writing, the 'prescribed period' for response is generally 7 days after the invitation is given. For further information, see reg 2.15, Prescribed period (for responses to be provided otherwise than at interview) - s58(2), reg 2.15(1) and Reasonable period (for responses to be provided otherwise than at interview) – s58(2), reg 2.15(2). The period to respond to an invitation commences when the applicant is notified of the invitation. For guidance on determining when the applicant is taken to have been notified of the invitation, see Deemed receipt – s494C and reg 2.55. The prescribed periods in reg 2.15 refer to 'days', which means calendar days. For further guidance, see Calculating time periods. When notifying of an invitation to comment or give further information, officers should: use approved templates (where notifying in writing) – see Use of Standard Templates, and update departmental systems and ensure the notice is appropriately recorded – see Recordkeeping. ..."
AAT, Migration and Refugee Division Procedural Law Guide, 17 December 2021:
> Chapters 1-6: <https://web.archive.org/web/20220322022520/https://www.aat.gov.au/AAT/media/AAT/Files/Documents/RELEASED-Procedural-Law-Guide_Chapters-1-6.pdf>.
> Chapters 7-11: <https://web.archive.org/web/20220322022601/https://www.aat.gov.au/AAT/media/AAT/Files/Documents/RELEASED-Procedural-Law-Guide_Chapters-7-11.pdf>.
> see also, other versions indexed at <https://www.art.gov.au/about-us/accountability-and-reporting/former-administrative-appeals-tribunal/aat-freedom-information-disclosure-log>.
> Former AAT Disclosure Log: <http://www.aat.gov.au/about-the-aat/access-to-information/freedom-of-information/foi-disclosure-log>.
AAT, Migration and Refugee Division Procedural Law Guide, 14 November 2022: <https://web.archive.org/web/20230322125244/http://www.aat.gov.au/about-the-aat/access-to-information/freedom-of-information/foi-disclosure-log> -- see FOI 2022/0254.
> Part 1: Pre-hearing: <https://web.archive.org/web/20231111161232/http://www.aat.gov.au/AAT/media/AAT/Files/Documents/RELEASED-PLG-Part-1.pdf>.
> Part 2: Conduct of Review: <https://web.archive.org/web/20231101211328/http://www.aat.gov.au/AAT/media/AAT/Files/Documents/RELEASED-PLG-Part-2.pdf>.
> Part 3: The Hearing: <https://web.archive.org/web/20231111161241/http://www.aat.gov.au/AAT/media/AAT/Files/Documents/RELEASED-PLG-Part-3.pdf>.
> Part 4: Post Hearing and Decision: <https://web.archive.org/web/20231111161246/http://www.aat.gov.au/AAT/media/AAT/Files/Documents/RELEASED-PLG-Part-4.pdf>.
> Part 5: Miscellaneous: <https://web.archive.org/web/20231101211328/http://www.aat.gov.au/AAT/media/AAT/Files/Documents/RELEASED-PLG-Part-5.pdf>.
> Commentary: Skilled Visas: <https://web.archive.org/web/20231101211328/http://www.aat.gov.au/AAT/media/AAT/Files/Documents/RELEASED-Skilled.pdf>.
> Commentary: Procedural: <https://web.archive.org/web/20231101211328/http://www.aat.gov.au/AAT/media/AAT/Files/Documents/RELEASED-Procedural.pdf>.
> Commentary: Character (non-MRD): <https://web.archive.org/web/20231111161314/http://www.aat.gov.au/AAT/media/AAT/Files/Documents/RELEASED-Non-MRD.pdf>.
> Commentary: Family: <https://web.archive.org/web/20230322125244/http://www.aat.gov.au/AAT/media/AAT/Files/Documents/RELEASED-Family.pdf>.
ARTA, Handbook of ART Legal Procedure (HALP), 7 April 2025 -- FOI 2025/1610, 28 August 2025 <https://www.art.gov.au/about-us/access-information/freedom-information#section-0-6>:
> Chapter 1: Starting a Review: <https://www.art.gov.au/sites/default/files/2025-10/Handbook_ART_Legal_Procedure_Chapter_1.pdf>, archived at <https://web.archive.org/web/20251029042800/https://www.art.gov.au/sites/default/files/2025-10/Handbook_ART_Legal_Procedure_Chapter_1.pdf>.
> Chapter 2: Conduct of a Review: <https://www.art.gov.au/sites/default/files/2025-10/Handbook_ART_Legal_Procedure_Chapter_2.pdf>, archived at <https://web.archive.org/web/20251029052031/https://www.art.gov.au/sites/default/files/2025-10/Handbook_ART_Legal_Procedure_Chapter_2.pdf>.
> Chapter 2, Part 2: Part 5 Migration Act: <https://www.art.gov.au/sites/default/files/2025-10/Handbook_ART_Legal_Procedure_Chapter_2_Part_2.pdf>, archived at <https://web.archive.org/web/20251029042939/https://www.art.gov.au/sites/default/files/2025-10/Handbook_ART_Legal_Procedure_Chapter_2_Part_2.pdf>.
> Chapter 3: Procedural Fairness: <https://www.art.gov.au/sites/default/files/2025-10/Handbook_ART_Legal_Procedure_Chapter_3.pdf>, archived at <https://web.archive.org/web/20251029042914/https://www.art.gov.au/sites/default/files/2025-10/Handbook_ART_Legal_Procedure_Chapter_3.pdf>.
> Chapter 4: Decisions: <https://www.art.gov.au/sites/default/files/2025-10/Handbook_ART_Legal_Procedure_Chapter_4.pdf>, archived at <https://web.archive.org/web/20251029043354/https://www.art.gov.au/sites/default/files/2025-10/Handbook_ART_Legal_Procedure_Chapter_4.pdf>.
> Chapter 5: Restrictions on Disclosing and Publishing Information: <https://www.art.gov.au/sites/default/files/2025-10/Handbook_ART_Legal_Procedure_Chapter_5.pdf>, archived at <https://perma.cc/6DWP-PTJ4>.
> Chapter 6: Constitution and Reconstitution: <https://www.art.gov.au/sites/default/files/2025-10/Handbook_ART_Legal_Procedure_Chapter_6.pdf>, archived at <https://web.archive.org/web/20251029044109/https://www.art.gov.au/sites/default/files/2025-10/Handbook_ART_Legal_Procedure_Chapter_6.pdf>.
[K] Regional Visas
'Policy Advice Record: Compliance with regional visa conditions by subclass 489, 491, or 494 holders ...' (Department of Home Affairs, May 2024): <https://www.homeaffairs.gov.au/foi/files/2025/fa-250901008-document-released.PDF>, archived at <https://web.archive.org/web/20251101015102/https://www.homeaffairs.gov.au/foi/files/2025/fa-250901008-document-released.PDF>.
Rush Rush - Paula Abdul
© Jing Zhi Wong, 2023-2025