Lindog (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Skilled Independent (Permanent) visa (Subclass 189). The applicant's nominated occupation was Registered Nurse (not elsewhere classified). The central dispute revolved around whether the applicant met the points test criteria for this visa subclass.

The primary legal issue before the Tribunal was to determine if the applicant's assessed score met or exceeded the qualifying score required for the visa, as well as the score stated in their invitation to apply. This involved assessing the applicant against the qualifications and points prescribed in Schedule 6D to the Regulations, and considering the pass mark in force at the relevant times, applying whichever was more favourable. A further issue was whether the applicant's nominated occupation qualified as a 'skilled occupation' under the relevant legislative instrument.

The Tribunal reasoned that the points test is a statutory scheme where applicants are awarded points for specific attributes, as detailed in Schedule 6D. The applicant's eligibility for points was assessed based on age and English language proficiency at the time of invitation. While the applicant was awarded 30 points for age, the Tribunal found that the evidence provided for English language proficiency, specifically the OET and PTE Academic test results, did not demonstrate the required level of "superior English" or "proficient English" as defined by the regulations at the time of invitation. Consequently, the applicant did not achieve the necessary points for English language proficiency.

As the applicant's total score, even with the points awarded for age, was less than the score stated in their invitation to apply, they failed to satisfy 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.