Ndhlema Kakunka (Migration)

This matter concerned an application for review of a decision to affirm the refusal of a Skilled Work Regional (Provisional) (Class PS) visa, subclass 491. The applicant, Ndhlema Kakunka, had nominated the occupation of Accountant (General) and sought to rely on a professional year course with no expiry date and recently attained English language competency. The dispute centred on whether the applicant met the points test criteria for the visa.

The primary legal issue before the Tribunal was to determine whether the applicant satisfied the points test criterion, which requires the applicant's score to be not less than the score stated in the invitation to apply and not less than the "qualifying score". This involved assessing the applicant's qualifications and points against the relevant regulations and the Minister's prescribed pass mark, applying the law in force at the time of the delegate's assessment and the Tribunal's assessment, and favouring the applicant where more beneficial. The Tribunal also considered the definition of a "skilled occupation" as specified by the relevant instrument.

The Tribunal reasoned that it was required to assess the applicant's score under the provisions of section 350 of the Act, comparing the law in force at the time of the delegate's decision and the Tribunal's decision to determine which was more favourable. The Tribunal noted that points are awarded for various attributes, including age. In this instance, the applicant was aged 43 at the time of invitation, entitling her to 15 points under the age qualifications part of the points test, as confirmed by her passport biodata page. The Tribunal's comparative assessment of the applicant's score under different legislative frameworks was summarised in a table.