Nguyen (Migration)

The Administrative Appeals Tribunal considered the case of Nguyen, an applicant for a Skilled Work Regional (Provisional) (Class PS) visa, Subclass 491. The central dispute concerned whether the applicant satisfied the points test criterion for the visa, specifically in relation to their nominated occupation of Economist and their Doctor of Philosophy degree.

The Tribunal was required to determine if the applicant's assessed score met or exceeded the qualifying score and the score stated in their invitation to apply. This involved assessing the applicant against the qualifications and points prescribed in Schedule 6D to the Regulations, as well as the relevant pass mark in force at the time of the delegate's assessment and the Tribunal's assessment, applying whichever was more favourable. The Tribunal also had to consider the definition of a 'skilled occupation' as specified in Legislative Instrument IMMI 19/051.

The Tribunal's reasoning focused on specific parts of the points test. It found that the applicant, aged 39 at the time of invitation, was entitled to 25 points for age. However, based on a Pearson Test of English (PTE) score report dated 29 November 2020, which showed an overall score of 39, the Tribunal determined that the applicant failed to demonstrate an English language proficiency level that attracted points under that qualification, thus receiving no points for this criterion. The Tribunal did not make a final determination on the overseas employment experience qualifications in the provided text.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the first named applicant meets criterion cl 491.216 of Schedule 2 to the Regulations. The applications of the second, third, and fourth named applicants were also to be reconsidered on the basis that they meet the secondary requirements for the grant of the visas.