Kamatham Sandeep Kumar (Migration)

The Administrative Appeals Tribunal considered the case of Kamatham Sandeep Kumar, who sought a Skilled Independent (Permanent) visa (Subclass 189). The dispute centred on whether Mr. Kumar met the points test requirements for the visa, as his initial assessment by the Department resulted in a score of 65 points, falling short of the required 75 points. The Tribunal reviewed electronic information from the Department and Tribunal files, along with recent submissions from the applicant, including additional documentation and statements from work supervisors.

The primary legal issue before the Tribunal was to determine if Mr. Kumar satisfied the points test criterion, specifically whether his assessed score met or exceeded the qualifying score of 75 points, which was also the score stated in his invitation to apply. This involved assessing the points available for various attributes, including age, English language proficiency, and overseas employment experience in his nominated occupation of Software Engineer (ANZSCO 261313). The Tribunal was required to apply the law and regulations in force at the time of the delegate's assessment and at the time of its own assessment, applying whichever was more favourable to the applicant.

The Tribunal noted that the applicant was 34 years old at the time of invitation, entitling him to 25 points for age. While the delegate had assessed the applicant's score at 65 points, the Tribunal considered additional information provided by the applicant, including statements from work supervisors, regarding his overseas employment experience. Despite the limited documentation and cash salary payments, the Tribunal found no suggestion of incorrect information or bogus documents. Crucially, the Tribunal concluded that the decision had been made without a necessary hearing and that the secondary applicants were members of the family unit. Consequently, the Tribunal remitted the applications for reconsideration, directing that the first applicant met criterion cl 189.224 and the secondary applicants met criterion cl 189.311 of Schedule 2 to the Regulations.