Gofran (Migration) - [2023] AATA 3768

Gofran (Migration) [2023] AATA 3768 (8 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Hasan Abdul Gofran
Mrs Rahana Akthar Pinky
Master Xeviyaan Bin Hasan
REPRESENTATIVE:  Mr Vikas Jain
CASE NUMBER:  2100231
HOME AFFAIRS REFERENCE(S):          BCC2020/2379981
MEMBER:Antonio Dronjic
DATE:8 November 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Work Regional (Provisional) (Class PS) visas.

Statement made on 08 November 2023 at 4:22pm
CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 (Skilled Work Regional (Provisional)) – points test – educational qualifications – degree from home country assessed as comparable to advanced diploma or associate degree – points for degree claimed in expression of interest – not represented by agent and inadvertent error – agent at time of application failed to advise – qualifying score achieved but not score stated in invitation to apply – members of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 93, 94, 96(2), 350
Migration Regulations 1994 (Cth), rr 1.15I, 2.26AC, Schedule 2, cls 491.213, 491.216(1), 491.311, Part 6D.7
CASES
Re Drake and MIEA (No 2) (1979) 2 ALD 634
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 December 2020 to refuse to grant the applicants visas under s 65 of the Migration Act 1958 (Cth) (the Act). 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 first named applicant (the applicant) was invited to apply for the visa on 3 September 2020 and applied for the visa on 28 September 2020. The criteria for the grant of a Subclass 491 - Skilled Work Regional (Provisional) visa are set out in Part 491 - Skilled Work Regional (Provisional) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl 491.216.
The delegate found 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 less than the score stated in the invitation to apply for the visa. The applicant’s invitation score was 70 points. According to the delegate’s assessment of points, at the time of the Department’s decision, the assessed score was 65.
The applicant sought review of the delegate’s decisions on 8 January 2021 and with his application submitted a copy of the primary decision record.
On 3 October 2023, the Tribunal wrote to the applicants advising that it considered the material before it and was unable to make a favourable decision on this material alone and invited the applicants to attend the hearing on 8 November 2023 to give evidence and present arguments.
On 1 November 2023, the applicant’s representative submitted additional documentary evidence and legal submissions in support of the review application. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.
The applicant appeared before the Tribunal on 8 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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’.
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).
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). In the present case, the applicant nominated the occupation of Engineering Technologist (ANZSO 233914).
Does the applicant have the qualifying score applying the law in force at the time of the delegate’s assessment?
Part 6D.1 – Age qualifications
Points are available under this Part if the applicant was aged between 18 and 44 years at the time of invitation to apply for the visa.
At the time of invitation, the applicant was aged not less than 25 years and under 33 years. Therefore, the applicant is entitled to 30 points under this part.
Part 6D.2 – English language qualifications
Points are available under this Part based on the applicant’s level of English language proficiency at the time of invitation to apply for the visa.
The applicant made no claims and provided no evidence that he has proficient or superior English and therefore no points were awarded under this criterion.
Part 6D.3 – Overseas employment experience qualifications
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 a period totalling at least 36, 60, or 96 months in the 10 years immediately before that time.
The applicant made no claims that he was employed in a skilled occupation for at least 36 months in the 10 years immediately before receiving the invitation for this visa application. Accordingly, no points were awarded under this criterion.
Part 6D.4 – Australian employment qualifications
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 a period totalling at least 12, 36, 60 or 96 months in the 10 years immediately before that time.
At the time of invitation to apply for the visa, the applicant made no claims that he was employed in Australia in the nominated occupation or a closely related skilled occupation for a period totalling at least 12, 36, 60 or 96 months in the 10 years immediately before that time. Accordingly, no points were awarded under this criterion.
Part 6D.5 - Aggregating points for employment experience qualifications
Under this part, if an applicant has qualifications mentioned in both Parts 6D.3 and 6D.4 and the combined number of points that would be awarded under those Parts is more than 20 points, 20 points must be given under this Part for the qualifications and no points are to be given under Part 6D.3 or 6D.4.
As the applicant has not provided any evidence, or made any claims, for both Australian and offshore employment experience, he is not entitled to points under this criterion.
Part 6D.6 – Australian professional year qualifications
Five points are available under this part if, at the time of invitation to apply for the visa, the applicant had completed a professional year (that is, a course specified in an instrument) in Australia in the nominated occupation or a closely related skilled occupation for a period totalling at least 12 months in the immediately preceding 48 months.
The applicant made no claims and provided no evidence of completing a professional year. Accordingly, no points were awarded under this criterion
Part 6D.7 – Educational qualifications
An applicant may be entitled to points under this Part if, at the time of invitation to apply for the visa, he or she had met the requirements for the award of a specified Australian qualification or overseas qualification of a recognised standard. In determining whether an overseas qualification is of a ‘recognised standard’ (items 6D71(b), 6D72(b)), regard must be had to the matters set out in reg 2.26AC(5) which include recognition of the qualification by the relevant assessing authority, recognition of the qualification by a specified body, duration of the study and any other relevant matter.
The applicant provided evidence of completing a Bachelor of Electrical and Electronics Engineering studied at American International University Bangladesh between 21 January 2008 and 2 February 2012. Engineers Australia assessed the applicant’s bachelor’s degree as comparable to an advanced diploma or an associate degree on Australian Qualifications Framework (AQF)
As the applicant met the requirements for the award of at least advanced diploma or an associate degree by an Australian educational institution, 10 points were awarded under this criterion.
Part 6D.7A – Specialist educational qualifications
Points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the requirements for the award of a specialist educational qualification, as defined in reg 2.26AC(5A). The applicant must satisfy the Minister that they have met the requirements for the award of a masters degree by research, or a doctoral degree, which included at least 2 academic years of study at an Australian educational institution in a field of education specified in the relevant instrument.
The applicant made no claims and provided no evidence of meeting the specialist education qualification requirement specified under Part 6D.7A before the time of the invitation to apply for this visa. Accordingly, no points were awarded under this criterion.
Part 6D.8 – Australian study qualifications
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 reg 1.15F of the Regulations. To meet the Australian study requirement, the applicant must satisfy the Minister that they have completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a registered course or courses, for which all instruction was in English. The applicant must have undertaken the courses in Australia while holding a visa authorising study, and completed them in a total of at least 16 calendar months as a result of a total of at least 2 academic years study.
Based on the evidence before it, including the award of an Advanced Diploma of Leadership Management by Duke College dated 10 March 2019, the Tribunal is satisfied that the applicant completed one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses that met the requirements of reg 1.15F. Accordingly, 5 points were awarded under this criterion.
Part 6D.9 – Credentialled community language qualifications
Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant had a qualification in a particular language awarded or accredited by a specified body, and at a specified standard for the language.
The applicant submitted evidence of passing a Credentialed Community Language test and obtaining a NAATI certificate on 21 November 2018. Therefore, the applicant is entitled to 5 points under this part.
Part 6D.10 – Study in designated regional area qualification
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 reg 1.15F), the location of the campus(es) at which the study was undertaken and the location in which the applicant lived while undertaking the course of study were in a designated regional area. Distance education does not qualify as study for these purposes.
The applicant made no claims and provided no evidence that he met the study in a designated regional area qualification. Accordingly, no points were awarded under this criterion.
Part 6D.11 – Partner qualifications
Ten points may be awarded under this Part if the applicant does not have a spouse or de facto 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.
The Tribunal acknowledged the applicant’s claim that, in the visa application form, he stated that he was married and provided details of his spouse. He is still married and has a child out of this marriage.
There is no evidence before the Tribunal that the applicant’s wife meets any of the requirements of Schedule 6D (11). Accordingly, the applicant is not entitled to any points under this part.
Part 6D.12 – State or Territory nomination qualifications
Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) visa. The applicant in this case has not been invited to apply for such a visa and is therefore not entitled to any points under this part.
As the applicant was not invited to apply for a Subclass 190 (Skilled – Nominated) visa, no points were awarded under this criterion.
Part 6D.13 – Designated regional area nomination or sponsorship qualifications
Points are available under this Part for applicants who were invited to apply for a Subclass 491 – Skilled Work Regional (Provisional) visa, where the relevant agency has not withdrawn the nomination or if the applicant was sponsored by a family member, the Minister has accepted the sponsorship. The applicant in this case was invited to apply for a Subclass 491 visa.
Based on the evidence before it, the Tribunal is satisfied that the applicant was invited to apply for a Subclass 491 visa and that the nomination of State has not been withdrawn. Accordingly, the applicant is entitled to 15 points under this part.
Conclusion on points
Based on the above assessment, having regard to the legislation in effect at the time of the delegate’s assessment, the number of points to be awarded to the applicant under Schedule 6D is:
6D.1 - Age  30 points
6D.2 - English language  0 points
6D.3 - Overseas employment experience  0 points
6D.4 - Australian employment experience  0 points
6D.5 - Aggregated employment  0 points
6D.6 - Australian professional year  0 points
6D.7 - Educational  10 points
6D.7A – Specialist educational  0 points
6D.8 - Australian study  5 points
6D.9 - Credentialled community language  5 points
6D.10 Study in designated regional area qualification          0 points
6D.11 - Partner qualifications  0 points
6D.12 - State or Territory nomination  0 points
6D.13 - Designated regional area nomination
or sponsorship qualifications   15 points
Total points  65 points
The applicant’s assessed score under the points system is therefore 65 points.
At the time of both the delegate’s assessment and the Tribunal’s assessment the pass mark was 65 points. The applicant has therefore achieved the qualifying score to pass the points test.
Has the applicant achieved the score stated in the invitation to apply for the visa?
It is also a requirement that the applicant’s score is not less than the score stated in the invitation to apply for the visa. The written invitation given to the applicant stated a score of 70 points. Based on the points assessment above, the Tribunal finds that the applicant has not achieved the score stated in the invitation to apply for the visa.
The applicant conceded in his evidence that he claimed 70 points in his expression of interest of 18 June 2020. He further stated that he made an inadvertent error by claiming 15 instead of 10 points for his education under Part 6D.7 of the Schedule.
The Tribunal noted that the skills assessment letter issued by the Engineers Australia on 7 May 2018 clearly state that they assessed the applicant’s bachelor’s degree from Bangladesh as comparable to an advanced diploma or an associate degree on Australian Qualifications Framework (AQF).
The applicant gave evidence that, at the time he submitted his expression of interest, he was not represented by a migration agent and did not understand that he was not entitled to 15 points for his education.
The Tribunal further noted that, in his visa application form, the applicant claimed 15 points under Part 6D.7 of the Schedule. According to the applicant’s oral evidence, the visa application form was prepared by his, then, migration agent and lodged with the Department on 28 September 2020. He stated that he did check the answers provided on the form. The Tribunal noted that on page 2 of the application form, there is a question asking the applicant if he or she wants to ‘make a change to any of the points shown above’. The Tribunal noted that the applicant answered NO to this question.
The applicant stated that his migration agent failed to advice that he was not entitled to 15 points under Part 6D.7 of the Schedule.
In his written submissions, the applicant relies on Departmental policy which specifically references circumstances where inadvertent errors may be made when entering data in SkillSelect and provides that such errors may be considered remedied where the corrected invitation score was high enough such that it would have resulted in an invitation being made in any case.
As regards the application of these policy guidelines, the Tribunal notes that although it may be guided by policy, it is not bound to follow it: see Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. Indeed, in Vishnumolakala v Minister for Immigration [2006] FMCA 1209, Smith FM held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and therefore are incapable of being elevated into legally necessary or relevant considerations.
In the present case, cl.491.216(1) prescribes that:
(1) 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.
For the above reasons, the applicant is entitled to a maximum of 65 points under the points test. As the applicant’s score is less than the score stated in the invitation to apply for the visa, the applicant does not satisfy cl 491.216. As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.

Clause 491.311 inter alia prescribes that the secondary applicant be a member of a family unit of a person who holds a Subclass 491 visa. Based on the evidence before it, the Tribunal is not satisfied that secondary applicants met the primary criteria for a Subclass 491 visa as they were not invited to apply for this via and accordingly do not meet the requirements of cl.491.213. As the primary applicant is not a holder of a Subclass 491 visa, the Tribunal finds that the secondary applicants do not meet the requirements of cl 491.311.
DECISION
The Tribunal affirms the decision not to grant the visas.
Antonio Dronjic
Member

Attachment A: Document List
·Legal submissions from the applicant’s representative Vikas Jain of Wickham Lawyers Pty Ltd dated 1 November 2023.
·Administrative Appeals Tribunal decision record for case Ndhlema Kakunka (Migration) [2023] AATA 2896 dated 28 August 2023.
·A copy of Migration (LIN 19/210: Pool and Pass Marks for General Skilled Migration Visas) Instrument 2019
·A copy of the relevant Department Policy as described in Department’s Procedures Advice Manual - PAM3: Sch2Visa189] Skilled - Independent (Permanent) (Class SI) (Subclass 189) visa
·A copy of the relevant Department Policy as described in Department’s Procedures Advice Manual - PAM3: Sch2Visa190] Skilled - Independent (Permanent) (Subclass 190) visa
·A copy of the relevant Departmental regulations- Migration Regulations - Schedules - Schedule 6D general points test for General Skilled Migration visas mentioned in subregulation 2.26AC(1)
·Email from NSW Regional Migration, business and skilled migration signed by George Veneris dated 1 November 2023.