Detail Question Of The Week

With my EOI I have claimed to many points in my sc 189 visa application - what can I do now?

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Question asked

I have submitted my 189 application wherein I've claimed 70 points. however, there was a mistake in my EOI. I am eligible only for 65 points. Since the application has been lodged, is there anything that can be done to prevent visa refusal? Also, I am currently on 457 visas in Australia and this visa will expire in April 2018.

I've applied for developer programmer role.

Any help is greatly appreciated.


Answer provided by our agents

Dear A.,

In the context of the points test, the visa applicant must meet both of the following requirements:

> The assessed score must meet the pass mark applicable to the visa for which s/he was invited to apply - which you do.
> The assessed score must be at least equal to the score stated in the invitation to apply for the visas - which is the issue for you because according to your re-calculation the assessed score will not be "at least equal", it will be less.

Department of Immigration policy advises that ” … because invitations are ranked and issued on the basis of the declared skills and attributes and nominated occupations included in the intending migrant’s EOI, and to preserve the integrity of the invitation process, applicants must demonstrate that the indicative score on which they were invited to apply is at least equal to their assessed score against points test factors. If the indicative score is less than the assessed score, (the) visa criteria cannot be satisfied.”

In other words, if an applicant for a skilled visa claims points to which s/he is not entitled the application criteria are not met, and the visa application must be refused.

However, Department of Immigration policy does though contain the following commentary in the context of “inadvertent errors”:
-The department has become aware of cases where persons have made inadvertent errors when entering data in Skill Select resulting in the person being given a higher invitation score than they should otherwise have.
To address this issue, consideration can be given to correcting an applicant’s invitation score if the department identifies that an applicant has made an inadvertent error in their EOI and their corrected invitation score would have been high enough such that it would have resulted in an invitation being made in the initial or subsequent Skill Select invitation rounds.

For example, if:
> an affected applicant’s invitation score was 75, and
> the lowest invitation scores for the relevant period were 75, 70 and 65 respectively,

the applicant’s corrected invitation score must be no less than 65 before the Department would seek to correct the invitation score.
Officers must first seek the permission of the affected applicant before correcting the applicant’s invitation score.

Since contacting you by phone in order to determine the lowest invitation scores for your round of offer, 65 points did in fact result in invitations to apply for your nominated occupation. So what that means is that you have some standing if you were to make submissions to the Department for them to still consider your visa application due to the fact you made an "inadvertent error" and that you would have still received an invitation to apply even with 65 points. However, you really would need to engage a professional to address this policy consideration on your behalf, and even then a positive outcome is not assured.

The other option you have in the meantime is to make a reassessment of your eligible work experience and see whether the ACS have miscalculated any periods, as this will still be considered by the department provided it is after your ACS "date deemed skilled for claiming employment". Going deeper again, you even have the right to Review the ACS Skills Assessment outcome in the event you failed/forgot to submit relevant employment evidence for times when you were working while studying, which could actually result in your "date deemed skilled" being pushed back, thus opening up a further period of employment experience being eligible for points. You have the opportunity to do this in a Review Application, however there will be fees involved and I also suggest that you contact the Department through your ImmiAccount Portal to request that they don't make a decision in the meantime.

The third option you have is explaining to the Department of your inadvertent error, mention that you would like to withdraw the application, and see what your chances are for being refunded of your application fees. There may be grounds, there may not. It is not something I am familiar with under these circumstances, however I have been successful in obtaining refunds for clients in the past. So, it could be something you could look into / discuss with the Department. In the event you did withdraw your application, I'm quite confident you would receive another opportunity to submit a 189 application before the expiry of your 457 in March 2018 based on the current climate of offers, ceilings and current score pro-rata (that is, the 65 points required for your nominated occupation); however, like everything, it isn't guaranteed.

I hope this has been informative and I will make further contact with you by email and by phone in order to work out what exactly we can work on together to find success considering the nature of your current circumstances.

Migration Agent