Lock (Migration)

This matter concerned an application for a Skilled Independent (Permanent) visa, Subclass 189, brought by an applicant against a decision of the Administrative Appeals Tribunal. The central dispute revolved around whether the applicant had met the points test criterion for the visa.

The Tribunal was required to determine if the applicant's assessed score for the visa met two conditions: firstly, that the score was not less than the score stated in the invitation to apply for the visa, and secondly, that the score was not less than the 'qualifying score'. This involved assessing the applicant's attributes against the points system prescribed in Schedule 6D to the Regulations, considering the relevant legislative instruments in force at the time of the delegate's and the Tribunal's assessments, and applying the more favourable provisions to the applicant. The Tribunal also had to consider whether the applicant's nominated occupation, 'Registered Nurse (nec)', qualified as a 'skilled occupation' under the relevant legislative instrument.

The Tribunal reasoned that the applicant was entitled to 30 points for age, as they were 25 at the time of invitation. Regarding English language proficiency, the Tribunal noted that 20 points were available for superior English and 10 for proficient English, with no points for competent English. Proficient English, as defined in Regulation 1.15D and specified by legislative instrument IMMI 15/005, required an IELTS test result of at least 7.0 in each of the four components. The Tribunal concluded that the applicant was entitled to a maximum of 75 points under the points test.

Consequently, the Tribunal found that the applicant's score was not less than the score stated in the invitation to apply and not less than the qualifying score, thereby satisfying clause 189.224 of Schedule 2 to the Regulations. The Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant meets this specific criterion.