Dhamija (Migration)

This matter concerned an application for a Skilled Independent (Permanent) visa (Subclass 189) by Mr. Dhamija. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the qualifying score under the points test for the visa. The applicant had nominated the occupation of Registered Nurse (Aged Care).

The primary legal issue before the Tribunal was whether the applicant satisfied the points test criterion, which requires an applicant's score to be not less than the score stated in their invitation to apply and not less than the 'qualifying score'. This involves assessing the applicant's attributes against the criteria prescribed in Schedule 6D to the Regulations and the applicable pass mark, applying whichever legislative instrument is more favourable to the applicant. The Tribunal also considered whether the applicant's nominated occupation was a 'skilled occupation' as defined by the relevant legislative instrument.

The Tribunal noted that the only evidence before it was a copy of the applicant's passport and his Expression of Interest form. The applicant was aged 23 at the time of invitation, entitling him to 15 points for age. However, regarding English language qualifications, the Tribunal found that other than an unverified test reference number for a PTE Academic test, no evidence of the applicant's English proficiency at the time of invitation had been provided. Consequently, the Tribunal concluded that the applicant was entitled to a maximum of 15 points.

As the applicant's assessed score of 15 points was less than the qualifying score, the Tribunal determined that the applicant did not satisfy clause 189.224 of the Migration Regulations 1994, a prescribed criterion for the grant of the visa. Accordingly, the Tribunal affirmed the decision not to grant the applicant the Skilled Independent (Permanent) visa.