DY (Migration)

The Administrative Appeals Tribunal considered an application for a Skilled Independent (Permanent) visa (Subclass 189) made by the first named applicant, with the second, third, and fourth named applicants being secondary applicants. The core dispute concerned whether the primary applicant met the points test criterion for the visa, specifically whether their assessed point score was not less than the score stated in the invitation to apply and not less than the qualifying score.

The Tribunal was required to determine if the applicant satisfied the points test criterion under Subdivision B of Division 3 of Part 2 of the Migration Act 1958 (Cth) and Schedule 6D to the Migration Regulations 1994 (Cth). This involved assessing the applicant's nominated occupation of Registered Nurse against Legislative Instrument IMMI16/059 and calculating their points score based on attributes prescribed in Schedule 6D, considering the pass mark in force at relevant times. The Tribunal also had to consider the applicant's claims regarding work hours and pay slips, particularly in light of their visa status and shift work arrangements.

The Tribunal reasoned that while it lacked jurisdiction over the secondary applicants, it could assess the primary applicant's eligibility. The applicant provided timesheets and pay records from several hospitals and a nursing agency, explaining that due to their visa status, they were limited to working 20 hours per week. Despite being a shift worker, the applicant claimed consistent work for 12 months prior to their invitation to apply. The Tribunal concluded that the applicant was entitled to a maximum of 60 points under the points test, satisfying the criterion that their score was not less than the score stated in the invitation and not less than the qualifying score.

Consequently, the Tribunal remitted the application of the first named applicant for a Skilled Independent (Permanent) visa for reconsideration by the Minister, with a direction that the applicant meets the criterion specified in clause 189.214 of Schedule 2 to the Regulations. The Tribunal reiterated that it had no jurisdiction concerning the secondary applicants.