2132279 (Migration)

This matter concerned an application for a Skilled Work Regional (Provisional) (Class PS) visa, Subclass 491. The applicant sought review of a decision regarding their eligibility for the visa, specifically concerning the points test criterion. The Tribunal was tasked with determining whether the applicant met the required points score for the visa.

The central legal issue before the Tribunal was whether the applicant's Australian employment, undertaken in breach of their student visa conditions by working more than 40 hours per fortnight, could be counted towards the points test for the Subclass 491 visa. The Tribunal also had to consider the relevant legislative framework, including Subdivision B of Division 3 of Part 2 of the Act, Schedule 6D to the Regulations, and Legislative Instrument IMMI 19/051, which prescribe the points system and the definition of a "skilled occupation." The Tribunal was required to apply the law in force at the time of the delegate's assessment and at the time of its own assessment, favouring the applicant where more beneficial.

The Tribunal found that the applicant met the age and English language qualifications for the points test, awarding 30 points for age and 10 points for proficient English. However, the Tribunal concluded that the matter required remittal for reconsideration by the Minister. This was because the Tribunal determined that the applicant met criterion cl 491.216 of Schedule 2 to the Regulations, implying that the issue of the applicant's employment, and its compliance for points test purposes, was not definitively resolved in a manner favourable to the applicant within the provided text. The Tribunal's decision was to remit the application for further consideration.