Owen (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Skilled Independent (Permanent) visa (Subclass 189). The central dispute concerned whether the applicant met the points test criterion for this visa, specifically whether their assessed score was not less than the score stated in their invitation to apply and not less than the qualifying score.

The Tribunal was required to determine if the applicant satisfied the points test criterion by assessing their score against the relevant legislative provisions, including Schedule 6D to the Regulations and the Minister's prescribed pass mark. This involved considering the applicant's age and English language proficiency at the time of their invitation to apply for the visa, and applying the law in force at the time of the delegate's assessment and the Tribunal's assessment, favouring the applicant where more beneficial. The Tribunal also had to consider whether the applicant's nominated occupation, Registered Nurse (Critical Care and Emergency), was a "skilled occupation" as defined by the relevant legislative instrument.

The Tribunal reasoned that the applicant was entitled to 30 points for age, as they were 29 years old at the time of invitation. Furthermore, the Tribunal was satisfied that the applicant possessed proficient English language skills, evidenced by an IELTS test taken prior to application, entitling them to 10 points. Based on these assessments, the Tribunal concluded that the applicant achieved a total score of 70 points. As this score met both the invitation score and the qualifying score, the Tribunal found that the applicant satisfied clause 189.214 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with the direction that the applicant meets the criterion specified in clause 189.214. The Minister was to then consider the remaining criteria for the grant of the visa.