Assessing Periods Of Skilled Employment-Deeming Dates

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Assessing Periods Of Skilled Employment-Deeming Dates

It has long been issues of contention regarding the so-called “deeming date” on some skill assessment outcomes. Now the notion of Deeming Dates maybe blown out of the water.

In the past, maybe more than 15 years ago, skill assessments were determined by the ASCO (yes not ANZSCO then) guidelines. Even the relevancy of the degrees or qualifications did not matter simply because ASCO dis not specify the necessity, just as ANZSCO still doesn’t.

Then we heard the department was not happy the way some skill assessment bodies, (They-Who-Must-Not-Be-Named) was handing out skill assessments. So there was a move away from ASCO towards their own requirements (such as, highly relevant qualifications and work experience requirements).

However there was a move from some assessment bodies to this issue of Deeming Date, a date they thought you were qualified, not what ASCO or the later ANZSCO stated.

We here at AILS have never been happy with Deeming Dates and I have always advised clients that with no other  choice before you, ignore them and fight it out with the department and the courts about when you were qualified and what points should be allocated to you. Obviously most clients did not want to take that path and for good reason so they followed the DOHA’s policy on granting points based upon Deeming Dates.

Now the DOHA has changed their minds.

In the Schedule D policy update from the 16th November 2019 points allocated for skilled employment should be on the basis of the ANZSCO definition, not the skill assessment body. This updated new policy is as follows;

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.

Here is Jesse’s exampleImaginary Jesse

Jesse completed his Diploma of Hospitality Management in Australia in 30th December 2015 and obtained a job as a Restaurant Manager on the 1st January 2016. He stopped working in November 2019.

Jesse applied for a migration skill assessment as a Restaurant Manager in October 2019. ANZSCO states this is a Diploma level occupation. To his surprise however result said he had a deeming date of 1st January 2017 and advised him he was only skilled from this date onwards. Jesse thought he was qualified after he finished his course. Because of this advice from the skill assessment authority, Jesse only claimed 5 points for Australian Work Experience instead of 10. The advice he received indicated he had only two years of skilled employment as a Restaurant Manager not the 3 years he thought he had.

Jesse after reading this article has now gone back into his EOI and claimed 10 points. Similarly if Jesse had only one year of experience in Australia he should be able to claim the 5 points at least.

Our opinion in this office has always been that the DOHA should be granting points for work experience on the ANZSCO requirements, not the skill assessing bodies requirements.

Everybody who has submitted an EOI and claimed points based upon your skill assessment result should have a close look whether you may actually entitled to claim a higher points level.

What will be really interesting is the question, will this expose certain skill assessment authorities to be sued for civil damages? If now the department will not follow a Deeming Date why are the skill assessment bodies advising applicants accordingly? Have they given visa applicants wrong and misleading advised that has caused them to miss out on a visa application? If yes, what damages maybe claimed as a financial loss to miss out on being able to lodge your PR application?

I’m sure the managers of the certain skill assessing authorities maybe feeling pretty nervous after reading this.

Our opinion is that that deeming date was (is) a stupid policy and should never been allowed by DOHA to be used by case officers to decide on a points score. It maybe possible if you have been rejected because a case officer did not allocate you points based upon a Deeming Date, you may have an argument in the courts to overturn that decision.

Are you interested in making sure your points score is right? Speak to us here at Australian Immigration Law Services. Let us help you prepare for the visa application. Call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists.

Karl Konrad