Musngi (Migration)

This matter concerned an appeal by an applicant for a Skilled Independent (Permanent) visa (Subclass 189) against a decision of the Migration Review Tribunal. The applicant had nominated the occupation of Registered Nurse (Critical Care and Emergency) and sought to satisfy the visa requirements through the points test. The primary dispute revolved around whether the applicant met the "points test" criterion, specifically concerning the "Australian Study" component, and whether the Tribunal had correctly applied the relevant legislation in its assessment.

The court was required to determine whether the applicant satisfied the points test criterion, which mandates that an applicant's score must not be less than the score stated in their invitation to apply and not less than the qualifying score. This involved assessing the applicant's eligibility for points under various categories, including age and English language proficiency, as prescribed by Schedule 6D to the Regulations and the relevant sections of the Migration Act 1958 (Cth). The court also had to consider which version of the law, as in force at the time of the delegate's assessment or the Tribunal's assessment, was more favourable to the applicant.

The Tribunal found that the applicant was entitled to 30 points for age and proficient English language skills. The court reasoned that the Tribunal had correctly applied the law in force at the time of the delegate's assessment and that the applicant's assessed score met the required threshold. Consequently, the court concluded that the applicant satisfied clause 189.224 of Schedule 2 to the Regulations, a prescribed criterion for the grant of the visa. The court remitted the application to the Minister for reconsideration of the remaining criteria.