Ritu Devi (Migration)

[2023] AATA 1445

Ritu Devi (Migration) [2023] AATA 1445 (4 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  Ritu Devi
Mr Amanpreet Singh
Miss Ruhanika Kakndey

REPRESENTATIVE:  Miss Vanessa De Pretis (MARN: 1388116)

CASE NUMBER:  2016870

HOME AFFAIRS REFERENCE(S):          BCC2019/929751

MEMBER:Antonio Dronjic

DATE:4 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 190 visa:

·cl 190.214 of Schedule 2 to the Regulations.

Statement made on 04 May 2023 at 4:30pm

CATCHWORDS
MIGRATION – Skilled Nomination (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – points test – relationship status correctly indicated as ‘married’ and no points claimed in application – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 2.26AC, Schedule 2, cl 190.214(1), Part 6D.11

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 November 2020 to refuse to grant the applicants Nominated (Permanent) (Class SN) Subclass 190 (Skilled - Nominated) 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.

2. The first named applicant (the applicant) was invited to apply for the visa on 5 December 2019 and applied for the visa on 16 January 2020. The criteria for the grant of a Subclass 190 -  Skilled - Nominated visa are set out in Part 190 -  Skilled - Nominated 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 190.214(1).

3. 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 not less than the score stated in the invitation to apply for the visa.

4. The delegate noted that in the applicant’s Expression of Interest (EOI) dated 4 October 2019, she stated her relationship status as “Never Married”. Consequently, the system awarded the applicant additional 10 points.

5. The applicants sought review of the delegate’s decisions on 19 November 2020 and with their applications submitted a copy of the primary decision record.

6. On 19 May 2021, the applicants’ 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.

7. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant based on the material before it, pursuant to section 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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’.

9. 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).

10. The Tribunal noted that, according to the relevant legislative instruments, the pass mark remained the same (65 points) at the time of the delegate’s assessment and at the time of the Tribunal’s assessment.

11. 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). The relevant instrument for this purpose is Legislative Instrument LIN 19/210. In the present case, the applicant nominated the occupation of Developer Programmer.

    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

12. 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.

13. At the time of invitation to apply for the visa Mrs Devi was aged 31 years. Therefore, the applicant is entitled to 30 points under this part.

    Part 6D.2 – English language qualifications

14. 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.

15. The applicant made no claims and provided no evidence of having proficient or superior English and therefore no points were awarded under this criterion.

    Part 6D.3 – Overseas employment experience qualifications

16. 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.

17. The applicant made no claims and provided no evidence that she 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

18. 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.

19. The applicant made no claims and provided no evidence that she was employed in a skilled occupation in Australia for at least 12 months in the 10 years immediately before invitation for this visa. Accordingly, no points were awarded under this criterion.

    Part 6D.5 - Aggregating points for employment experience qualifications

20. 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.

21. As the applicant have not provided any evidence, or made any claims, for both Australian and offshore employment experience, she is not entitled to points under this criterion.

    Part 6D.6 – Australian professional year qualifications

22. 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.

23. The applicant submitted Certificate of Attainment as evidence that on 9 November 2018, she completed the ACS Professional Year Program offered by Performance Education, an accredited Professional Year Provider recognised by the Australian Computer Society (ACS).

24. At the time of invitation to apply for the visa, Mrs Devi had completed a professional year (that is, a course specified in an instrument) in Australia in the nominated occupation for at least 12 months in the immediately preceding 48 months. This therefore entitles her to 5 points under this part.

    Part 6D.7 – Educational qualifications

25. 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.

26. The applicant provided evidence of completing a Bachelor of Information Technology (Software Development) with University of South Australia. Accordingly, she met the requirements for the award of at least a bachelor’s degree by an Australian educational institution.

27. Therefore, the applicant is entitled to 15 points under this part.

    Part 6D.7A – Specialist educational qualifications

28. 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.

29. 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

30. 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.

31. The applicant submitted evidence of completing a Bachelor of Information Technology (Software Development) with University of South Australia (CRICOS Course Code: 067897M).

32. Based on the evidence before it, 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

33. 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.

34. The applicant made no claims and provided no evidence that she was the holder of a qualification awarded or accredited by a body specified by the Minister at the specified standard at the time of invitation to apply for the visa. Accordingly, no points were awarded under this criterion.

    Part 6D.10 – Study in designated regional area qualification

35. 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.

36. The applicant submitted evidence of undertaking a Bachelor of Information Technology course at a campus located in Mawson Lakes (a designated regional area) while she lived in that designated regional area.

37. Based on the evidence presented, the Tribunal is satisfied that the applicant met the Australian Study Requirement, as defined in Regulation 1.15F, while living and studying in regional Australia or a low-population growth metropolitan area in accordance with the requirements of the relevant instrument(s) specified for this Part, and that none of the study undertaken constituted distance education. Accordingly, 5 points were awarded under this criterion.

    Part 6D.11 – Partner qualifications

38. 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.

39. The Tribunal is satisfied that the applicant did not claim points in her EOI or visa application under Part 6D.11. As the applicant made no claims and provided no evidence that she meets the partner skill qualifications, no points were awarded under this criterion.

    Part 6D.12 – State or Territory nomination qualifications

40. Points are available under this Part for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) visa, where the relevant agency has not withdrawn the nomination. The applicant in this case was invited to apply for a Subclass 190 visa.

41. The applicant was invited to apply for this subclass 190 visa, and the nomination of South Australia has not been withdrawn.

42. Therefore, the applicant is entitled to 5 points under this part.

    Part 6D.13 – Designated regional area nomination or sponsorship qualifications

43. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 489 (Skilled - Regional) (Provisional) visa or a Subclass 491 (Skilled Work Regional (Provisional)) 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.

    Conclusion on points

44. 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  5 points

    6D.7 - Educational  15 points

    6D.7A – Specialist educational  0 points

    6D.8 - Australian study  5 points

    6D.9 - Credentialled community language  0 points

    6D.10 - Study in designated regional area qualification        5 points

    6D.11 - Partner qualifications  0 points

    6D.12 - State or Territory nomination  5 points

    6D.13 - Designated regional area nomination or
    sponsorship qualifications   0 points

    Total points  65 points

45. 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 (Legislative Instrument LIN 19/210). 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?

46. 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. A copy of the applicant’s invitation to apply was not provided to the Tribunal. It was stated in the primary decision record, that ‘the system’ awarded the applicant additional 10 points as she claimed in her EOI that she did not have a spouse or de facto partner.

47. With her review application, the applicant submitted a copy of her expression of interest (EOI) submitted to the Department on 4 October 2019 (SkillSelect EOI ID E0014589712) in which she claimed the total of 65 points. No points were claimed by the applicant under Part 6D.11 in her EOI.

48. The applicant’s state nomination application lodged on 8 October 2019 had claimed 65 EOI points. Again, no points were claimed by the applicant under Part 6D.11. The South Australian government agency authorised to assess state nomination applications have verified that Mrs Devi’s spouse had been included in her state nomination. Finally, in her visa application, she did not clam points under Part 6D.11

49. It was conceded in the submissions of 11 May 2021, provided by the applicant’s representative that the applicant’s former migration agent mistakenly selected her relationship status as ‘single’ at some point while preparing EOI on SkillSelect. However, it is important to note that no points were claimed by the applicant under Part 6D.11 in her EOI.

50. It was further submitted that:

    This error is ‘solely attributed to Mrs Devi’s former migration agent in the process of completing the details online on SkillSelect, since she had given him clear instructions as to her marital status and reasonably expected he would act in accordance with those instructions’.

    This professionally negligent error thus appears to have been fully corrected in the state nomination application lodged on 8 October 2019. The migration agent also did not make the same mistake with the visa application lodged thereafter.

51. 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.

52. 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.

53. It was further submitted that:

    ‘even if the applicant’s former migration agent correctly declared Mrs Devi’s marriage when the EOI was lodged on 4 October 2019, this would have no made difference to her score due to the fact that the provisions introducing changes in points for partner skills only came into effect on 16 November 2019.4 Effective as of 16 November 2019, the system automatically updated to attribute any additional points (relevantly in this case, 10 points for applicants without a spouse or de facto partner) for all undecided applications and EOIs in SkillSelect’.

1. It is not disputed that the applicant EOI and state nomination had been lodged prior to legislative changes introduced on 16 November 2019. Based on the evidence before it, the Tribunal is satisfied that the invitation score, even without ‘the system awarding the applicant additional 10 points’ was high enough such that it would have resulted in an invitation being made in any case.

2. For the above reasons, the applicant is entitled to a maximum of 65 points under the points test. As the applicant’s score is not less than the score stated in the invitation to apply for the visa, and not less than the qualifying score, the applicant satisfies cl 190.214, which is a prescribed criterion for the grant of the visa. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

   DECISION

3. The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 190 visa:

   ·cl 190.214 of Schedule 2 to the Regulations.

   Antonio Dronjic
   Member

   
   

   Attachment A: Document List

   • Ritu Devi South Australia proof of age card.
   • SkillSelect EOI ID: E0014589712 submitted 4 October 2019.
   • Approval of state nomination from Immigration SA dated 25 November 2020.
   • CIRCOS Bachelor of Information Technology (Software Development) information sheet undated.
   • CIRCOS Bachelor of Information Technology (Software Development) course location undated.
   • Emails between PRA and representative regarding EOI lodgement and additional identity documents dated 8 October 2019.
   • Email from Department of innovation and skills South Australia dated 26 November 2020.
   • Schedule 6D- General points test for general skilled migration visas mentioned in subregulation 2.26AC(1) undated.
   • Migration (LIN 19/210: Pool and Pass Marks for General Skilled Migration Visas) Instrument 2019 dated 29 October 2019.
   • Ritu Devi Student (Class TU) visa grant dated 7 July 2015.
   • Ritu Devi University of South Australia Bachelor of Information Technology (Software Development) certificate dated 20 December 2017.
   • Ritu Devi University of South Australia graduation statement dated 20 December 2017.
   • Ritu Devi University of South Australia academic transcript dated 11 December 2017.
   • Professional year certificate of attainment dated 9 November 2018.
   • ANZ Online saver statement dated 1 September 2015 to 1 March 2016.
   • Rental tenancy agreement dated 17 July 2015.
   • Ritu Devi employment contract dated 1 July 2019 and payslips dated 12 July 2019 to 4 October 2019.
   • Ritu Devi passport issued 22 August 2013.
   • Legal submissions from Vanessa De Prentis from Migration Solutions dated 11 May 2021.