1605187 (Migration)

This matter concerned an appeal by Mr Chhetri against a decision of the Minister regarding his application for a Skilled Independent (Permanent) visa (Subclass 189). The Administrative Appeals Tribunal was required to determine whether Mr Chhetri satisfied the points test criterion for the visa.

The primary legal issue before the Tribunal was whether Mr Chhetri met the qualifying score under the points test, applying the law in force at the time of the delegate's assessment. This involved assessing the points awarded for various criteria, including age, education, Australian study, and crucially, English language proficiency.

The Tribunal found that Mr Chhetri was entitled to 50 points for age, education, and Australian study, consistent with the delegate's assessment. However, the Tribunal disagreed with the delegate's assessment of zero points for English language. Applying the relevant regulations and Ministerial instrument (IMMI 15/005), which required an IELTS score of at least 7 in each component for proficient English, the Tribunal noted Mr Chhetri's IELTS results from 26 May 2015. These results demonstrated a score of 8.0 for listening, 8.0 for reading, 7.5 for writing, and 7.0 for speaking. Consequently, Mr Chhetri was awarded 10 points for English language proficiency.

Based on this revised assessment, Mr Chhetri's total score was 60 points, which was the qualifying score at the time of the delegate's assessment. The Tribunal concluded that Mr Chhetri satisfied clause 189.214 of Schedule 2 to the Regulations. The Tribunal remitted the application to the Minister for reconsideration, with the direction that Mr Chhetri met the criterion for a Subclass 189 visa.