It is crucial to recognize that when the assessment of your points are made by DIAC you must be granted all the points you claimed on your Expression of Interest (EOI).
You are not able to tell the case officer later, "sorry looks like I made a mistake on my points".
If you have made a mistake and you are granted a lower score than your EOI claims then your file will be rejected. It will not matter if you still reach the current pass mark of 60 points, the fact that you cannot reach you points claimed is grounds for refusal.
An example
Jim lodges has completed his Masters in Accounting in Australia and has continued on to complete the Professional Year Program (PYP). He lodged his EOI claiming he has 65 points. He has claimed 5 points for Australian work Experience as part of his total score.
Jim receives an invitation to apply for the 189 visa and swiftly does so.
About three months later Jim receives a shock in his email account. The case officer notifies him that his application has been refused because the 5 points requested for the Australian Work Experience was not granted
His case officer informed Jim that his duty description at work closely matched the occupation of Bookkeeper not Accountant, even though his title at work was as an Accountant. Since a Bookkeeper is an occupation that only requires a Diploma level education the duties are at a lower level than those of an Accountant (which requires a degree).
Jim writes to the case officer requesting to know why he had been rejected because he could still reach the 60 points?
The case officer highlights this Regulation to explain why he has been rejected;
189.214
(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.
Can be rejected for less but not for more?
To Jim's astonishment his file is rejected because he did not reach the 65 points he claimed on his EOI. At the time Jim lodged his EOI he thought it was better to claim as many points as he thought he may reach because he will get an invitation to apply faster than other people. He was a little unsure about his work experience but thought it would not matter to claim the extra points.
You can see that this strategy has cost Jim dearly. He has lost his DIAC application fee and valuable time. Many of his friends have already been issued invitations to apply for the 189 visa with only 60 points.
It is vital that you only claim points that you know will meet.
It is worthwhile to note that if the case officer grants you more points than claimed a refusal will not occur.
What can Jim do?
Jim can apply for another EOI now and claim the lower points level of 60 points but he has to pay the expensive DIAC fee again when a new invitation is issued to him.
He could appeal the rejection to the MRT but in the end such an appeal would not seem to have high probability of success. It would focus upon his actually duties at work and whether he was actually an Accountant or Bookkeeper.
Jim is better off with a new EOI and then a new 189 application rather than wasting money at the MRT. This option is as long as he has enough time left on his 485 visa. If not then it would be worthwhile to apply to the MRT to keep his bridging visa going while he waits in Australia for another 189 invitation.
"Time of Invitation" Criteria
When this new EOI system started a whole new set of laws came in to suit its design purpose. The fundamental issue to remember now is what is called "time of invitation".
The old concept of "time of application" has largely disappeared for these 189 and 190 GSM visas. It is now crucial that the evidence that existed at the time you were issued an invitation to lodge.
Let me just run through some extracts from Schedule 6D of the Migration Regulations. These laws dictates the manner of how these points are allocated.
Part 6D.1 Points for Age;
"At the time of invitation to apply for the visa, the applicant's age was ..."
Example: 1
If you had received your invitation when you were 32 years and 11 months old but had turned 33 by the time you applied then you would still be eligible for the maximum points for Age (30).
Part 6D.2 Points for English ability;
"At the time of invitation to apply for the visa, the applicant had ..."
Example:
This means the when you lodged your visa application you already had evidence of your English language ability.
Part 6D.3 Points for Australian employment experience;
"At the time of invitation to apply for the visa, the applicant ..."
Example:
When you received your invitation the employment criteria for the points requested must have been met. This means you cannot lodged your EOI without the having met the minimum 12 months of employment experience required.
Part 6D.6 Australian professional year qualifications;
"At the time of invitation to apply for the visa, the applicant had completed'
You cannot be about to complete your PYP, it must be completed before lodging.
Part 6D.7 Educational qualifications;
"At the time of invitation to apply for the visa, the applicant had ..."
You must have completed your qualification. This does not mean you have to wait for the graduation ceremony, you simply have had to receive your final results.
Part 6D.8 Australian study qualifications;
"At the time of invitation to apply for the visa the applicant had met.."
Again proof of graduation is not required, just proof of course completion at the appropriate level(s)
Part 6D.9 Credentialled community language qualifications;
"At the time of invitation to apply for the visa, the applicant had ..."
You must have the appropriate NAATI accreditation when the invitation was issued.
Part 6D.10 Study in regional Australia or a low-population growth metropolitan area qualifications;
"At the time of invitation to apply for the visa ..."
You need to have completed the two year study requirement in the appropriate region before the invitation is issued
Part 6D.11 Partner Skill Qualifications;
Your partner must at time of invitation be under 50 years of age, nominate an occupation from the appropriate skills list, have a skill assessment for that occupation and have the competent English ability.
These are not all of Schedule 6 but the ones of relevance for now.
You should note that in reference to claiming the extra 5 points for state/territory sponsorship, you will not be issued an invitation anyway unless they have chosen you and then informed DIAC.
What about claiming points in the EOI?
You will notice the law stipulates "time of invitation" criteria, not time of registering your EOI.
Many people think that they can lodge an EOI earlier without really meeting the points requirements, as long as they meet those requirements before the invitation is issued.
There are substantial problems with this approach and we will discuss these in the next newsletter.
