Dong (Migration)

This matter concerned an appeal by the applicant, Ms. Dong, against a decision to affirm the refusal of her Skilled (Residence) (Class VB) visa, specifically a Subclass 885 (Skilled - Independent) visa. The core of the dispute revolved around whether Ms. Dong met the "qualifying score" required under the relevant migration regulations, as assessed under Schedules 6B and 6C of the Migration Regulations 1994. The applicant had nominated the occupation of Cook. The decision was made by the Tribunal.

The legal issues before the Tribunal were whether Ms. Dong satisfied clause 885.221 of the Migration Regulations 1994, which mandates a "qualifying score" determined by a points system outlined in Subdivision B of Division 3 of Part 2 of the Act. This involved assessing the applicant against the qualifications and points prescribed in Schedule 6B, and potentially Schedule 6C if applicable, and comparing this to the pass mark in force at the relevant times, applying the more favourable provision. The Tribunal also had to consider the definition of a "skilled occupation" as specified by the Minister in Legislative Instrument IMMI 12/068, which was relevant to the applicant's nominated occupation of Cook.

The Tribunal reasoned that points were available for occupational qualifications if the applicant had a suitable skills assessment for their nominated occupation. Ms. Dong possessed a successful skills assessment for Cook from Trades Recognition Australia, entitling her to 60 points. For age, she was between 18 and under 30 years at the time of application, earning 30 points. Regarding English language proficiency, she demonstrated competent English based on her IELTS results, awarding her 15 points. However, she was not awarded points for specific employment qualifications as she had not claimed or provided evidence of employment in her nominated occupation or a closely related one for the required duration. The Tribunal concluded that the decision under review should be affirmed.