Are you applying for a Skilled Independent visa (subclass 189), Skilled Nominated visa (subclass 190) or a Skilled Regional (Provisional) visa (subclass 489)? If you are intending to claim points on the points test for work or study in Australia, you have to read this.
Read: Points Test
Please remember that effective 1 July 2018 the minimum points score for the 189, 190 and 489 visas has been increased to 65 points.
Regulation 2.72C and D states that any points related to Australian work or study must have been met whilst the applicant held a substantive visa, bridging visa A or B, that entitled them to work or study in the relevant period for those points to be valid. Any work or study undertaken in Australia when the applicant did not hold a substantive visa or a bridging visa A or B, cannot be counted in the calculation of the General Skilled Migration (GSM) points test. Further to this, the points can only be considered when the applicant had complied with the conditions of that visa.
It is best not to try to claim points where you do not satisfy reg 2.27C or D. If you include periods of work or study where you were in breach of reg 2.27C or D due to working or studying without the appropriate rights or having breached a visa condition is likely to trouble your entire visa application.
On a substantive visa or bridging visa
To gain any of the points for work or study related scoring factors on the GSM points test, you must have undertaken and completed the work and/or study on a substantive visa or on bridging visa A or B
A substantive visa is any visa other than a bridging visa, criminal justice or enforcement visa, which allows the visa holder to remain temporarily in Australia.
Read: The ABC’s of bridging visas
If you are confused about bridging visa B being that it is a visa that allows you to travel outside of Australia, it is included as your work or study would still be considered ongoing as long as you are still enrolled in the course and taking a holiday, or on paid annual leave and on a holiday.
Complied with the conditions of the visa
A further requisite is that for any of the points that you wish to claim, you must also have complied with the conditions of your visa that allowed you to be in Australia to undertake work or study. If there is evidence that you have failed to comply with the conditions of that visa, you will be unable to claim those points. It is always important that on receipt of your visa grant, you check and understand thoroughly what the conditions on your visa are. Failure to comply makes you liable to visa cancellations and would cause problems down the road with any later visa applications.
How it affects claiming work related points
Reg 2.27C Skilled Occupation in Australia
In determining whether an applicant satisfies a criterion that the applicant has been employed in a skilled occupation for a certain period, a period of employment in Australia must not be counted unless the applicant:
(a) held
(i) a substantive visa; or
(ii) a Subclass 010 Bridging A visa; or
(iii) a Subclass 020 Bridging B visa;
authorising him or her to work during that period; and
(b) complied with the conditions of that visa
Unlawful employment is excluded from counting towards gaining points. If you have breached the conditions of your visa by working when you had no work rights, or by working an excess amount (for example working more than 40 hours per fortnight on a Student 500 visa) then you will not be able to use that time to count towards your earning points for skilled employment in Australia on the GSM points test.
Another example would be working for another employer whilst on your Temporary Work (Skilled) 457 visa or your Temporary Skill Shortage (TSS) 482 visa.
Whilst our example relates to a work condition, any condition on your visa that is breached will disable your ability to use a work period during the term of your visa to be counted for your GSM points test. For example, if you are not performing the tasks related to your nominated occupation for your 457 or TSS 482 visa for which you were granted, you would be in breach of condition 8607 and would be unable to claim work points for that period of work in Australia.
Read: Temporary Skill Shortage (TSS) Visa: Condition 8607
Work related scoring factors affected by Reg 2.27C
Skilled employment
Points can be claimed for skilled employment in your nominated skilled occupation or a closely related skilled occupation .
Read: Need More Points? Tips on Claiming Work Experience for Your 189, 190, 489 Visa
In skilled employment for at least one but less than three years in the ten years – 5 points
In skilled employment for at least three but less than five years in the ten years – 10 points
In skilled employment for at least five but less than eight years in the ten years – 15 points
In skilled employment for at least eight and up to ten years in the ten years – 20 points
How it affects claiming study related points
Regulation 2.27D Study in Australia
In determining whether an applicant satisfies a criterion for the grant of a General Skilled Migration visa that the applicant has studied in Australia for a certain period, a period of study cannot be counted unless the applicant:
(a) held
(i) a substantive visa; or
(ii) a Subclass 010 Bridging A visa; or
(iii) a Subclass 020 Bridging B visa;
authorising him or her to study during that period; and
(b) complied with the conditions of that visa
Study periods will only be counted if throughout the entire periods the student held a substantive visa, bridging visa A or B that had study rights If they did not have a visa or visas that allowed them to study for a total period of 2 years and undertook some study without study rights, any study that occured whilst they breached their visa conditions cannot count.
For example, a Working Holiday 417 visa holder takes on a course that was 6 months in length, even though they are only allowed 4 months of study will not be able to use that 6 month course to meet the Australian Study Requirement (ASR) as they would have been in breach of condition 8548.
Whilst our example relates to a study condition, any condition on your visa that is breached will disable your ability to use a study period during the term of your visa to be counted towards the study related scoring factor on the GSM points test. For example, if you are on a Student 500 visa and you engaged in work prior to your course commencing, you will have breached condition 8105 on your visa and be unable to claim either work or study points for your 189, 190 or 489 visa.
Work related scoring factors affected by Reg 2.27D
Qualification
Doctorate from an Australian educational institution or other – 20 points
doctorate of a recognised standard
At least a bachelor degree from an Australian educational institution or- 15 points
other degree of a recognised standard
Diploma or trade qualification completed in Australia – 10 points
Specialist Education Qualification
Post Graduate Degree by Research through a course or courses taken – 5 points
for at least 2 academic years at an Australian educational institution
Australian study requirement
One or more degrees, diplomas or trade qualifications awarded by an Australian – 5 points
educational institution and meet the Australian study requirement
Read: Australian Study Requirement
Other factors
Study in regional Australia or a low population growth – 5 points
metropolitan area (excluding distance education)
Study can only be counted if through the entire relevant period that study occurred in regional Australia, the visa holder held a substantive visa, bridging visa A or B that allowed them to study, and did not breach the conditions of their visa.
Did you break a condition on a visa whilst you were working or studying and are unsure if you are able to claim points when applying for your 189, 190 or 489 visa? Australian Immigration Law Services has a highly specialised team that is experienced in tricky and complicated visa situations. Call +61 2 8054 2537, 0434 890 199 or book online.
Related articles
Read: Skill Assessment: Important Advice On Your Occupation
Read: Need More Points? Bilingual? NAATI May Be Your Answer
Read: Skilled Regional 489 Visa: The Basics And The Second Provisional Stream
Read: Know Your 489 Visa Conditions – They Are An Important Requirement for Your 887 Visa
