Burchiella (Migration)

The Administrative Appeals Tribunal considered an appeal by an applicant for a Skilled Nominated (Permanent) visa (Class SN), subclass 190, who had been nominated as a Community Worker. The core dispute concerned whether the applicant had met the points test requirements for the visa, specifically whether their assessed score was sufficient and met the threshold stated in their invitation to apply.

The Tribunal was required to determine if the applicant satisfied the points test criterion, which mandates that an applicant's assessed score must be not less than the score stated in the invitation to apply and not less than the qualifying score. This involved assessing the applicant's qualifications and points against Schedule 6D to the Regulations and the relevant legislative instruments in force at the time of the delegate's assessment and the Tribunal's assessment, applying whichever was more favourable. The Tribunal also had to consider whether the nominated occupation, Community Worker (ANZSCO 411711), was a 'skilled occupation' as defined by the relevant legislative instrument.

The Tribunal reasoned that points are awarded based on various attributes, including age and English language proficiency. The applicant, aged 26 at the time of invitation, was awarded 30 points for age. For English language proficiency, the applicant provided evidence of a Pearson Test of English Academic (PTE) score demonstrating a "Proficient" level across all components, satisfying this criterion. However, the Tribunal found that the applicant's total assessed score was 75 points. Crucially, this score was less than the score stated in the invitation to apply for the visa.

Consequently, the Tribunal concluded that the applicant did not satisfy clause 190.214 of the relevant regulations, which is a prescribed criterion for the grant of the visa. Therefore, the Tribunal affirmed the decision not to grant the applicant the Skilled Nominated (Permanent) visa.