Philippe Maxime Jerome Nadaud [2005] MRTA 115 (14 February 2005)

However, the applicant would still have been employed at a lower skill level i.e. an accounts clerk.

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).

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.

1. 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.
2. A Curriculum Vitae attached to the Departmental file, sets out the following information regarding the visa applicant's educational history:

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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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:

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;

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;

Provides advice on family law, company law, partnerships, commercial law and trusts;

1. 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. The Tribunal also notes that it is not required to assess whether the visa applicant satisfies specific Australian registration requirements for the occupation.
2. 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.
3. 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.
4. For the reasons given above, the Tribunal finds that the visa applicant satisfies subclause 138.216(1) and as a result he meets clause 138.216 of Schedule 2 to the Regulations.
5. The Tribunal also finds that the visa applicant continues to meet the employment experience requirements at the time of decision. The Tribunal thus finds that the visa applicant meets clause 138.225A of Schedule 2 to the Regulations.

1. The Tribunal has also considered whether the visa applicant is entitled to a Subclass 139 visa. One of the criteria for Subclass 139 is that the sponsor must reside in a 'designated area' at the time of application and decision. At the time of application, the sponsor lived in Newtown, NSW postcode 2042. The list of designated areas as set out in the Commonwealth Gazette GN 34 of 29 August 2001 does not include this postcode. The sponsor currently resides in Cronulla NSW, postcode 2230. The list of designated areas as set out in the Commonwealth Gazette GN 34 of 29 August 2001 does not include this postcode. The Tribunal notes that there have been no further Gazette Notices issued in respect of designated areas.
2. On the basis of this evidence, the Tribunal finds that the visa applicant does not meet prescribed primary criteria for the grant of a Subclass 139 visa, that is, clauses 139.213 and 139.222.

1. Given the findings made above, the appropriate course is to remit the application for the visa to the Department for it to consider the remaining criteria for the visa.

1. The Tribunal remits the application made by the visa applicant for a Skilled - Australian-sponsored (Migrant) (Class BQ) visa to the Department of Immigration and Multicultural and Indigenous Affairs, for reconsideration with the direction that the visa applicant satisfies the following criteria for the grant of a subclass 138 (Skilled - Australian-sponsored) visa:
   • Clause 138.216 of Schedule 2; and
   • Clause 138.225A of Schedule 2.