Gofran (Migration)

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.