Maliakkal (Migration)

This matter concerned an application for a Skilled Independent (Permanent) (Class SI) visa, subclass 189, by an applicant who nominated the occupation of Registered Nurses (Child and Family Health). The dispute centred on whether the applicant met the points test criterion, specifically whether their assessed score was not less than the score stated in the invitation to apply and not less than the qualifying score. The decision was made by the Tribunal.

The Tribunal was required to determine if the applicant satisfied the points test criterion as set out in Subdivision B of Division 3 of Part 2 of the Act, read in conjunction with Schedule 6D to the Regulations and Legislative Instrument LIN 19/051. This involved assessing whether the applicant's score met both the invitation score and the qualifying score, considering the points available for attributes such as age and English language proficiency at the time of invitation. The Tribunal also had to apply the relevant legislative provisions, including sections 93, 94, and 350 of the Act, and consider the pass mark and invite score in force at the time of the delegate's assessment and the Tribunal's assessment, applying whichever was more favourable to the applicant.

The Tribunal reasoned that the applicant was 35 years old at the time of invitation, entitling them to 25 points for age. For English language proficiency, the applicant provided evidence of an Occupational English Test (OET) taken before the invitation date, indicating a "B" grade in all components, which satisfied the requirement for superior English. However, the core of the decision rested on clause 189.224 of the regulations, which was a prescribed criterion for the grant of the visa. Although the specific details of how this clause was not met are not elaborated in the provided text, the Tribunal concluded that this criterion was not satisfied.

Consequently, the Tribunal affirmed the decision not to grant the visa, finding that clause 189.224, a prescribed criterion for the grant of the visa, had not been met by the applicant.