Foong (Migration)

The Administrative Appeals Tribunal considered the case of Mr. King Chang Foong, who sought review of a decision not to grant him a Skilled Independent (Permanent) visa (Subclass 189). Mr. Foong arrived in Australia in December 2017 and was residing in Melbourne on a bridging visa at the time of the Tribunal's review. The visa application was based on a points system, with Mr. Foong nominating the occupation of Early Childhood (Pre-Kindergarten) Teacher.

The primary legal issue before the Tribunal was whether Mr. Foong satisfied the points test criterion for the visa. This involved determining if his assessed score met or exceeded both the "qualifying score" and the score specified in his invitation to apply. The Tribunal was required to assess Mr. Foong's attributes against the qualifications and points prescribed in Schedule 6D to the Migration Regulations 1994 and the applicable pass mark.

The Tribunal noted that Mr. Foong had not responded to invitations to provide information or attend a hearing, despite being given extensions. His representative eventually submitted that Mr. Foong had been misadvised and did not have the score stated in his invitation, nor did he meet the criteria for the visa. The Department's assessment indicated a total score of 40 points for Mr. Foong, with specific points awarded for attributes such as partner points, but zero points for English language, overseas and Australian employment experience, Australian professional year, educational qualifications, specialist education qualification, Australian study, credentialed community language, study in a designated regional area, state or territory nomination, and designated regional area nomination or sponsorship. The Tribunal concluded that as Mr. Foong's score of 40 was less than both the qualifying score and the invitation score (stated as 105 in his representative's submission), he did not satisfy the prescribed criterion under clause 189.224 of Schedule 2 to the Migration Regulations 1994.

Consequently, the Tribunal affirmed the decision not to grant Mr. Foong the Subclass 189 Skilled Independent (Permanent) visa.