Patel (Migration)

The Administrative Appeals Tribunal considered the case of Mr Patel, an applicant for a Skilled Independent (Permanent) visa (Subclass 189). The dispute concerned whether Mr Patel met the points test requirements for this visa subclass, which is a points-based visa for skilled workers. The Tribunal, presided over by Member Amanda Mendes Da Costa, was tasked with reviewing the delegate's decision to affirm the refusal of the visa.

The primary legal issue before the Tribunal was to determine if the applicant satisfied the points test criterion. This involved assessing whether the applicant's score, calculated according to the relevant provisions of the Act and Regulations, was not less than the score stated in the invitation to apply and not less than the 'qualifying score'. The Tribunal also had to consider the applicant's nominated occupation, Mechanical Engineer (ANZSCO 233512), and the points awarded for various attributes, including age and English language proficiency, as prescribed in Schedule 6D to the Regulations and relevant legislative instruments.

The Tribunal's reasoning focused on applying the law in force at the time of the delegate's assessment and the current assessment, applying whichever was more favourable to the applicant. The applicant was awarded 30 points for age, as he was 29 years old at the time of invitation. For English language proficiency, the applicant provided evidence of a PTE Academic test taken on 3 October 2019, indicating competent English. However, the Tribunal concluded that the applicant was entitled to a maximum of 60 points under the points test.

As the applicant's assessed score of 60 points was less than the qualifying score required for the visa, he did not satisfy clause 189.224 of the relevant regulations. Since this was a prescribed criterion for the grant of the visa, the Tribunal affirmed the delegate's decision not to grant Mr Patel a Skilled Independent (Permanent) visa.