Malara (Migration)

The Administrative Appeals Tribunal considered the case of Malara (Migration), concerning an applicant seeking a Skilled Independent (Permanent) visa (Subclass 189). The central dispute revolved around whether the applicant met the points test criterion for this visa subclass.

The Tribunal was required to determine if the applicant's assessed score met or exceeded the score stated in their invitation to apply and the overall "qualifying score" as prescribed by the relevant legislation. This involved assessing the applicant's eligibility for points based on various attributes, including age, English language proficiency, and nominated skilled occupation, as outlined in Schedule 6D to the Regulations and relevant legislative instruments. The Tribunal also had to consider which version of the points test and pass mark, as in force at the time of the delegate's assessment or the Tribunal's assessment, was more favourable to the applicant.

The Tribunal reasoned that points were awarded for age, with the applicant, born in June 1983, being 34 at the time of invitation, thus qualifying for 25 points. Regarding English language proficiency, the applicant demonstrated competent English through an IELTS test, but did not achieve the score required for proficient or superior English, therefore receiving no points under this category. 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 of 75 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 for the Subclass 189 visa.