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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 3768
Decision Date: 8 November 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Gofran, who sought review of a decision not to grant a Skilled Work Regional (Provisional) (Class PS) visa, subclass 491. The applicant claimed points for a degree obtained in their home country, which was assessed by the Department as comparable to an advanced diploma or associate degree, rather than a higher qualification that would have awarded more points. The applicant argued that this was an inadvertent error, as they had not been represented by an agent at the time of their Expression of Interest and their agent at the time of application had failed to advise them correctly.

The central legal issue before the Tribunal was whether the applicant met the points test criterion for the visa. This involved determining if the applicant's assessed score was not less than the score stated in the invitation to apply and not less than the qualifying score. The Tribunal was required to assess the applicant against the qualifications and points prescribed in Schedule 6D to the Migration Regulations, and the applicable pass mark in force at the relevant times, applying whichever was more favourable to the applicant. The Tribunal also considered whether the secondary applicants met the criteria for a subclass 491 visa as members of the family unit.

The Tribunal reasoned that the applicant's degree from their home country was assessed as comparable to an advanced diploma or associate degree, which did not attract the points claimed in the Expression of Interest. While the applicant's age qualified them for 30 points, no points were awarded for English language proficiency due to a lack of claims or evidence. The Tribunal noted that the applicant did not achieve the qualifying score required for the visa. Furthermore, the Tribunal found that the secondary applicants did not meet the primary criteria for a subclass 491 visa as they were not invited to apply and therefore did not satisfy the requirements of clause 491.213. Consequently, as the primary applicant was not a holder of a subclass 491 visa, the secondary applicants could not meet the requirements of clause 491.311.

The Tribunal affirmed the decision not to grant the visas.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 DronjicMemberAttachment 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.

Ratio Decidendi

Legal Principle Established

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