How is skilled employment assessed for a Subclass 189, 190 and 491 skilled visa ?

1. What do the regulations say ?

As per Section 10.4.1 of the Schedule 6D of the Migration Regulations: when assessing periods of skilled employment for the purpose of awarding points, the following must be taken into account:

• the opinion of the relevant skills assessing authority on the period of skilled employment including the date on which they deemed the applicant skilled; and
• the Australian and New Zealand Standard Classification of Occupations (ANZSCO) including any pre-requisite qualifications/work experience relevant to the claimed skilled employment; and
• any other relevant information (such as employment records and references).

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

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

The regulations require only that an applicant is employed in a nominated skilled occupation for a particular period of time. The provision does not require the applicant to have skills of a particular standard during that period of employment.

The decision maker can consider whether the applicant is undertaking at least some of the duties prescribed for the position in ANZSCO, for example, if a client is claiming employment as a carpenter, the tasks they are undertaking are those of a carpenter.

2. What are SkillSelect requirements ?

When you create an Expression of Interest (EOI) in SkillSelect, you will see the following information next to the skilled employment section:

It is clear from above that SkillSelect expects you to claim skilled employment as per the opinion of the skill assessment body. Where the body has not provided an opinion on the skill assessment, the applicant should claim as per any standards prescribed on the skill assessment body's website. If no such standards are prescribed on the skill assessment body website, then relevant experience accumulated after completing the qualifying education can be claimed.

3. Conclusion

The standards described in the regulations as per (1) above seem to offer a more relaxed standard than the standard prescribed in the SkillSelect requirements in section (2) above. But, the regulations are the primary standard.

Therefore we can conclude that, unless explicitly forbidden by the nominating state, you can claim skilled employment deducted by skill assessment body if:

• you have a highly relevant qualification well aligned to your ANZSCO code
• your claimed work experience is at an appropriate skill level and is aligned with your ANZSCO code in terms of tasks and duties
• you have robust documentation to prove the above claims

Overall, claiming as per the years approved in the skill assessment offers a degree of assurance and high certainty that your claimed employment will be accepted by the visa case officer. For most applicants, claiming as per the assessment is the safer and conservative choice.

Finally, based on the above discussion, if you decide to claim the years deducted by the skill assessment body, then it is up to the visa officer to determine if the claimed experience is skilled and in line with your ANZSCO Code, as per the requirements in the regulations in section (1) above. If visa officer is not satisfied, it will likely lead to a refusal of the visa.

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