Battan (Migration)

This matter concerned an application for a Skilled Work Regional (Provisional) (Class PS) visa, Subclass 491, by an applicant who nominated the occupation of Café or Restaurant Manager. The decision under review was made by the Administrative Appeals Tribunal, with Member Mary Sheargold presiding. The core of the dispute revolved around whether the applicant met the 'points test' criterion for the visa.

The Tribunal was required to determine if the applicant's assessed score, based on various attributes including age and English language proficiency, met or exceeded the qualifying score and the score stated in the invitation to apply. Specifically, the Tribunal had to consider the points available under Schedule 6D to the Regulations, including qualifications related to age, English language proficiency, Australian employment, educational qualifications, partner qualifications, and designated regional area nomination or sponsorship. The Tribunal also had to apply the law as in force at the time of the delegate's assessment and at the time of the Tribunal's assessment, favouring the applicant where more beneficial.

The Tribunal found that the applicant was entitled to 30 points for age, as they were 29 years old at the time of invitation. However, points for English language proficiency were initially not awarded by the delegate due to concerns about the authenticity of a Cambridge Certificate in Advanced English test taken in Chennai, India, as there was no test day photo. Despite this, the Tribunal concluded that the applicant was entitled to a maximum of 90 points under the points test. As this score met the required thresholds, the Tribunal found that the applicant satisfied clause 491.216 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for the Skilled Work Regional (Provisional) (Class PS) visa for reconsideration by the Minister, with a direction that the applicant meets the points test criterion. The Minister was to consider the remaining criteria for the grant of the visa.