Chinhema (Migration)

This matter concerned an application for a Skilled Regional Sponsored (Provisional) visa (Subclass 489) by Ms. Chinhema. The Administrative Appeals Tribunal was required to determine whether the applicant satisfied the points test criterion for the visa. The core of the dispute revolved around the applicant's assessed score in relation to the score stated in her invitation to apply and the applicable "qualifying score."

The legal issues before the Tribunal were whether the applicant achieved the required score under the points test, specifically considering the provisions of Subdivision B of Division 3 of Part 2 of the Migration Act 1958 and Schedule 6D to the Regulations. This involved assessing the applicant's attributes against the prescribed points, including age and English language proficiency, and applying the law in force at the time of the delegate's assessment and the Tribunal's assessment, favouring the applicant where more beneficial. The Tribunal also needed to determine if the applicant's nominated occupation, Registered Nurse, qualified as a "skilled occupation" under the relevant legislative instrument.

The Tribunal reasoned that the applicant was entitled to 25 points for age, as she was 37 at the time of invitation. However, regarding English language proficiency, the applicant did not meet the requirements for "proficient English" or "superior English" as defined in the Regulations, having achieved scores below the threshold in an IELTS test. Despite this, the Tribunal concluded that the applicant was entitled to a maximum of 65 points under the points test. As this score was not less than the score stated in the invitation to apply and not less than the qualifying score, the Tribunal found that the applicant satisfied clause 489.224 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for the Skilled Regional Sponsored (Provisional) visa for reconsideration by the Minister, with the direction that the applicant meets the criterion specified in clause 489.224.