Patel (Migration)

[2023] AATA 896

Patel (Migration) [2023] AATA 896 (23 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kunal Rajendrakumar Patel

REPRESENTATIVE:  Mr Thomas Griffiths (MARN: 1387008)

CASE NUMBER:  1923018

HOME AFFAIRS REFERENCE(S):          BCC2017/3436243

MEMBER:Katie Malyon

DATE:23 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 489 visa:

·cl 489.224 of Schedule 2 to the Regulations.

Statement made on 23 February 2023 at 4:19 pm

CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – First Provisional Visa Stream – ‘points test’ criterion – Australian employment experience qualifications – Civil Engineering Draftsperson – study in a designated regional area – Partner qualifications – single status – designated area sponsorship qualifications – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 93, 350, 360
Migration Amendment (New Skilled Regional Visas) Regulations 2019
Migration Regulations 1994 (Cth), r 2.26AC; Schedule 2, cl 489.224

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 August 2019 to refuse to grant the applicant a Regional Sponsored (Provisional) (Class SP) Subclass 489 Skilled - Regional (Provisional) visa under s 65 of the Migration Act 1958 (Cth) (the Act).  This is a points based visa with 2 streams of which the ‘First Provisional Visa Stream’ is available to skilled applicants who have submitted an expression of interest and then received an invitation to apply for the visa.

2. The applicant, Kenyan national Mr Kunal Rajendrakumar Patel, was invited to apply for the visa on 6 September 2017 and he lodged his application with the Department just 2 weeks later on 20 September 2017. Criteria for the grant of a Subclass 489 Skilled - Regional (Provisional) visa are set out in Part 489 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).  

3. The delegate refused to grant the visa because Mr Patel did not satisfy the ‘points test’ criterion in cl 489.224(1) of Schedule 2 to the Regulations. Essentially, this was because the delegate was not satisfied of Mr Patel’s claimed employment in Australia as a Civil Engineering Draftsperson ANZSCO 312211 and so awarded him no points in respect of this criterion. As a consequence, the delegate assessed Mr Patel’s score under the Schedule 6D General Points Test to be 65 points. However, the score as specified in his invitation letter dated 6 September 2017 was 70 points. Accordingly, Mr Patel did not meet the requirement in cl 489.224(1) that his assessed score is not less than the score stated in the invitation to apply for the visa.

4. Mr Patel was represented in relation to the review by his representative, Mr Thomas Griffiths. In response to the Tribunal’s s 359(2) of 7 October 2022, the representative provided a range of documentation together with a detailed submission addressing changes to the points awarded to Subclass 489 visa applicants as set out in Schedule 6D of the Regulations effective 16 November 2019. The representative submits that these significant changes to the Regulations and relevant legislative instruments as at the time of the Tribunal’s decision have resulted in Mr Patel now achieving the qualifying score to pass the points test.

5. Following constitution of the matter to the Member and after consideration of documentation provided as well as the representative’s submission, the Tribunal has decided that a hearing in this case is not necessary as it has been able to find in favour of Mr Patel consistent with

   
   

   s 360(2)(a) of the Act.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant satisfies the points test criterion in

   
   

   cl 489.224 of Schedule 2 to the Regulations which requires that the applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than:

   1)       the score stated in the invitation to apply for the visa; and,

   2)       the ‘qualifying score’.

8. Subdivision B of Division 3 of Part 2 of the Act provides for a points system under which an applicant is given an assessed score based on a prescribed number of points for particular attributes. The qualifications and points applicable to this case are prescribed in Schedule 6D to the Regulations: reg 2.26AC of the Regulations. An applicant achieves the ‘qualifying score’ if their assessed score is more than, or equal to, the applicable pass mark (s 94 of the Act), which is set by the Minister from time to time under s 96(2) of the Act. The Tribunal must consider the applicant against the qualifications and points prescribed in Schedule 6D, and the pass mark as in force both at the time of the delegate’s assessment as well as that which is in force at the time of the Tribunal’s assessment. It must then apply whichever is more favourable to the applicant: s 93 and s 350 of the Act.

   What is the applicant’s assessed score applying the law in force at the time of the delegate’s assessment and at the time of the Tribunal’s assessment?

9. Having regard to the provisions in s 93 and s 350 of the Act, the Tribunal has considered below Mr Patel’s score as assessed by applying the law in force at the time of the delegate’s decision and then how the delegate’s assessment of the score has been impacted by changes to the law effective 16 November 2019 following amendments made to the Regulations by the Migration Amendment (New Skilled Regional Visas) Regulations 2019 (the Amending Regulations). By way of summary, the amendments provide for the award of additional points in four Parts of Schedule 6D including, relevant to Mr Patel’s case, Part 6D.10, Part 6D.11 and Part 6D.13.

10. The Tribunal has summarised in the Table below at para [66] its comparative assessment of Mr Patel’s score at the 2 relevant times to enable it to determine which is more favourable for Mr Patel as required by s 93 and s 350 of the Act.

    Part 6D.1 – Age qualifications

11. Points are available under this Part if the applicant was aged between 18 and 44 years at the time of invitation to apply for the visa.

12. At the time of invitation on 6 September 2017, Mr Patel was aged 28.  Therefore, he is entitled to 30 points under this Part at the time of the delegate’s assessment. 

13. The Amending Regulations make no changes to the provisions in Part 6D.1.  Consequently, Mr Patel is entitled to 30 points under this Part at the time of the Tribunal’s assessment.

    Part 6D.2 – English language qualifications

14. Points are available under this Part on the basis of the applicant’s level of English language proficiency at the time of invitation to apply for the visa. An applicant who has ‘superior English’ as defined in reg 1.15EA of the Regulations is awarded 20 points and an applicant who has ‘proficient English’ as defined in reg 1.15D of the Regulations is awarded 10 points.

15. Mr Patel provided the Department with a copy of his PTE Academic test score dated 14 February 2017 confirming that he has ‘proficient English’.  Therefore, Mr Patel is entitled to 10 points under this Part at the time of the delegate’s assessment. 

16. The Amending Regulations make no changes to the provisions in Part 6D.2.  As such, Mr Patel is entitled to 10 points under this Part at the time of the Tribunal’s assessment.

    Part 6D.3 – Overseas employment experience qualifications

17. Points are available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed outside Australia in the applicant’s nominated skilled occupation or a closely related skilled occupation for a period totalling at least 36, 60 or 96 months in the 10 years immediately before that time.

18. Mr Patel has made no claims in relation to his employment overseas in his nominated skilled occupation of Civil Engineering Draftsperson for at least 36 months in the 10 years immediately before the invitation to apply for a Subclass 489 visa.  Furthermore, he has provided no evidence to support such a claim.  Therefore, subject to consideration of Part 6D.5, he is entitled to no points under this Part at the time of the delegate’s assessment. 

19. The Amending Regulations make no changes to the provisions in Part 6D.3.  As such and subject to consideration of Part 6D.5, Mr Patel is entitled to no points under this Part at the time of the Tribunal’s assessment.

    Part 6D.4 – Australian employment experience qualifications

20. Points are available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed in Australia in the nominated occupation or a closely related skilled occupation for a period totalling at least 12, 36, 60 or 96 months in the 10 years immediately before that time.

21. As noted above, the delegate was not satisfied that Mr Patel provided sufficient evidence of his work experience in Australia as a Civil Engineering Draftsperson for at least 12 months in the 10 years immediately before the invitation letter dated 6 September 2017.  The delegate’s decision, a copy of which was provided to the Tribunal, sets out in considerable detail information provided by Mr Patel regarding his work experience in Australia including his time as the holder of a Subclass 457 visa sponsored by Dusty Sand Pty Ltd T/A Dusk, Sand Planning & Design (Dusk). 

22. The Department issued a s 57 natural justice letter to Mr Patel on 12 March 2019 regarding his claimed employment with Dusk.  In response, he provided extensive documentation concerning not only his former employment with Dusk but also his employment with Ozwest Group as the holder of a Bridging A visa following the expiry of his Subclass 457 visa on 4 March 2017.  However, based on evidence provided, the delegate was not satisfied that Mr Patel had been employed in his nominated occupation, or a closely related skilled occupation for at least 12 months in the 10 years immediately before being invited by the Minister to apply for his Subclass 489 visa application on 6 September 2017. 

23. The representative in his submission to the Tribunal notes that, although Mr Patel had been sponsored by Dusk as the holder of a Subclass 457 visa granted on 4 September 2015 on the basis of being employed as a Civil Engineering Draughtsperson, he was unable to provide sufficient supporting evidence of his work experience with Dusk as at the time of the delegate’s decision some 2 years later on 20 September 2017.  No additional evidence has been provided to the Tribunal to demonstrate that Mr Patel was employed in Australia in the nominated occupation as at the time of the delegate’s decision. 

24. Therefore, subject to consideration of Part 6D.5, Mr Patel is entitled to no points under this Part at the time of the delegate’s assessment. 

25. The Amending Regulations make no changes to the provisions in Part 6D.4.  As such and subject to consideration of Part 6D.5, Mr Patel is entitled to no points under this Part at the time of the Tribunal’s assessment.

    Part 6D.5 - Aggregating points for employment experience qualifications

26. Under this Part, if an applicant has qualifications mentioned in both Parts 6D.3 and 6D.4 and the combined number of points that would be awarded under those Parts is more than 20 points, then 20 points must be given under this Part for the qualifications and no points are to be given under Part 6D.3 or 6D.4.

27. The combined number of points that have been awarded under Parts 6D.3 and 6D.4 to Mr Patel is 0 points.  As this is not more than 20 points, Mr Patel is entitled to no points under Part 6D.7 at the time of the delegate’s assessment. 

28. The Amending Regulations make no changes to the provisions in Part 6D.5.  Accordingly, Mr Patel is entitled to no points under this Part at the time of the Tribunal’s assessment.

    Part 6D.6 – Australian professional year qualifications

29. Five points are available under this Part if, at the time of invitation to apply for the visa, the applicant had completed a professional year (that is, a course specified in a legislative instrument) in Australia in the nominated occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the immediately preceding 48 months.

30. Mr Patel has not made any claims, nor has he provided evidence of, completing a professional year at the time he was invited to apply for a Subclass 489 visa.  Therefore, he is entitled to no points under this Part at the time of the delegate’s assessment.

31. The Amending Regulations make no changes to the provisions in Part 6D.6.  Consequently, Mr Patel is entitled to no points under this Part at the time of the Tribunal’s assessment.

    Part 6D.7 – Educational qualifications

32. An applicant may be entitled to points under this Part if, at the time of invitation to apply for the visa, s/he had met the requirements for the award of a specified Australian qualification or overseas qualification of a ‘recognised standard’. In determining whether an overseas qualification is of a ‘recognised standard’, regard must be had to the matters set out in reg 2.26AC(5) which include recognition of the qualification by the relevant assessing authority, recognition of the qualification by a specified body, the duration of the study and any other relevant matter: item 6D71(b) and item 6D72(b) of Schedule 6D.

33. Essentially, applicants who have been awarded a Doctorate are awarded 20 points, an applicant who has met the requirements for the award of at least a Bachelor degree is awarded 15 points and applicants who have met requirements for the award of a Diploma, trade qualification or other qualification recognised by the relevant assessing authority are awarded 10 points.

34. Mr Patel provided the Department with information to confirm that he had completed a Diploma of Science (Engineering Studies) at the Perth Institute of Business and Technology (PBIT) in Perth, Western Australia.  Therefore, Mr Patel is entitled to 10 points under this Part as at the time of the delegate’s assessment.

35. The Amending Regulations make no changes to the provisions in Part 6D.7.  As such, Mr Patel is entitled to 10 points under this Part at the time of the Tribunal’s assessment.

    Part 6D.7A – Specialist educational qualifications

36. Points may be awarded under this Part if, at the time of invitation to apply for the visa, the applicant met the requirements for the award of a ‘specialist educational qualification’ as defined in reg 2.26AC(5A) of the Regulations. The applicant must satisfy the Minister that they have met the requirements for the award of a Masters degree by research, or a Doctoral degree, which included at least 2 academic years of study at an Australian educational institution in a field of education specified in the relevant instrument.

37. Mr Patel has not provided any evidence nor has he claimed to meet this requirement.  Therefore, he is entitled to no points under this Part as at the time of the delegate’s assessment.

38. The Amending Regulations doubled the number of points available to applicants who meet the requirements for the award of a ’specialist educational qualification’ to the provisions in Part 6D.7A.  However, as Mr Patel has provided no evidence and nor has he claimed to meet this requirement he is entitled to no points under this Part at the time of the Tribunal’s assessment.

    Part 6D.8 – Australian study qualifications

39. Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the ‘Australian study requirement’, as defined in reg 1.15F of the Regulations. To meet the Australian study requirement, the applicant must satisfy the Minister that they have completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a registered course or courses, for which all instruction was in English. The applicant must also have undertaken the courses in Australia while holding a visa authorising study, and completed the courses in a total of at least 16 calendar months as a result of a total of at least 2 academic years study.

40. As noted above, Mr Patel provided evidence to the Department of his completion of a Diploma of Science (Engineering Studies) at PIBT and a Certificate IV Civil Engineering (Foundation Studies / Tertiary Preparation Program) at PIBT (then known as Edith Cowan College) after more than 2 years of study as the holder of a Student visa permitting him to study.  Since the Australian study requirement had been met at the time of invitation, Mr Patel is entitled to 5 points under this Part as at the time of the delegate’s assessment.

41. The Amending Regulations make no changes to the provisions in Part 6D.8.  As such, Mr Patel is entitled to 5 points under this Part at the time of the Tribunal’s assessment.

    Part 6D.9 – Credentialled community language qualifications

42. Five points may be awarded under this Part if, at the time of invitation to apply for the visa, the applicant had a qualification in a particular language awarded or accredited by a specified body, and at a specified standard for the language.

43. Mr Patel has not provided any evidence to support a claim of having a qualification in a community language.  Therefore, he is entitled to no points under this Part.

44. The Amending Regulations make no changes to the provisions in Part 6D.9.  As such, Mr Patel is entitled to no points under this Part at the time of the Tribunal’s assessment.

    Part 6D.10 – Study in regional Australia or a low-population growth metropolitan area qualifications

45. As at the time of the delegate’s assessment, 5 points may be awarded under this Part if, at the time of invitation to apply for the visa the applicant: 

    a)met the Australian study requirement (as defined in reg 1.15F of the Regulations);

    b)the location of the campus(es) at which the study was undertaken were in a specified area of Australia;

    c)the location in which the applicant lived while undertaking the course of study was in a specified area of Australia; and,

    d)none of the study undertaken constituted distance education.

46. The delegate found that there was no evidence to support a finding that Mr Patel studied in regional Australia or a low-population growth metropolitan area as set out in the relevant legislative instrument IMMI 12/015.  However, Mr Patel’s representative submits that Mr Patel meets all of subparagraphs (a) - (d) of Part 6D.10 at the time of the delegate’s assessment. 

47. The representative submits, and the Tribunal accepts, that Mr Patel was awarded 5 points under Part 6D.8 due to his meeting the ‘Australian study requirement’ for completing a Diploma in Science (Engineering Studies) in Australia and, as such, he also meets subparagraph (a) under Part 6D.10. 

48. However, in order to meet subparagraph (b) as at the time of the delegate’s assessment, the location of the campus where Mr Patel completed his Diploma must be specified by the Minister.  Relevant postcodes have been specified in legislative instrument IMMI 12/015.  For Western Australia, postcodes included at the time of the delegate’s assessment are 6041 – 6044, 6083 – 6084, 6121 – 6126 and 6200 – 6799.  IMMI 12/015 expressly excludes “Perth and surrounding areas’.  Mr Patel’s Academic Transcript issued by PIBT dated 22 May 2015 confirms that PIBT is located at Edith Cowan University’s campus in Mount Lawley WA 6050.  The Tribunal notes that Mount Lawley is located in Perth’s inner north.  Mount Lawley’s postcode of 6050 is not included in the list of postcodes identified in IMMI 12/055 as regional Australia or a low-population growth metropolitan area.  In the circumstances, the Tribunal is not satisfied that Mr Patel completed his Diploma in regional Australia or a low-population growth metropolitan area. 

1. Therefore, he is entitled to no points under this Part as at the time of the delegate’s assessment.

2. As noted above, the Amending Regulations make changes to the provisions in Part 6D.10.  The representative submits, and the Tribunal accepts, that the changes favourably impact Mr Patel’s point score.  No changes have been made to subparagraph (a) of Part 6D.10, that is, the need to meet the ‘Australian study requirement’. 

3. In relation to subparagraph (b) of Part 6D.10, reference to a location specified by the Minister in a legislative instrument has been replaced by reference, instead, to the location of the campus being in a ‘designated regional area’. For a visa application lodged prior to 20 January 2021, the term ‘designated regional area’ is defined in reg 1.15M of the Regulations to mean ‘(a) a designated city or major regional centre; or (b) a regional centre or other regional area’. Regulation 1.15M states that the Minister may, by legislative instrument specify a part of Australia to be a ‘designated city or major regional centre’ and ‘a regional centre or other regional area’. Relevantly, LIN 22/022 specifies all postcodes in Western Australia.  Accordingly, the Tribunal is satisfied that the location of the campus where Mr Patel undertook his Diploma and Certificate IV is in a designated regional area. 

4. Subparagraph (c) of Part 6D.10 requires that the applicant undertook their course of study while they lived in a ‘designated regional area’.  Evidence lodged with the Department confirms that Mr Patel lived at addresses in Aveley WA 6069 and Tuart Hill WA 6060 whilst undertaking his study at PIBT.  Both of these postcodes are included in LIN 22/022.  As such, the Tribunal is satisfied that Mr Patel undertook his Diploma in Science (Engineering Studies) whilst living in a designated regional area. 

5. There have been no changes to subparagraph (d) of Part 6D.10 which requires that none of the study undertaken constituted distance education.  The representative has provided the Tribunal with a copy of a signed letter dated 22 May 2015 from Ms Holly Tran, Student Services Officer with PIBT, confirming that Mr Patel was a full-time student at PIBT from 8 October 2012 to 11 September 2014.  As noted by the representative, there is no mention of any distance education.  The Tribunal accepts that there is no information in any of the documentation issued by PIBT indicating that lectures and tutorials were delivered by way of distance education to students.

6. Having regard to the revised provisions of Part 6D.10 effective 16 November 2019 following introduction of the Amending Regulations as well as the provisions of LIN 22/022 and documentation referred to by the representative, the Tribunal is satisfied that Mr Patel is entitled to 5 points under this Part at the time of the Tribunal’s assessment.

   Part 6D.11 – Partner Skill qualifications (now known as Partner qualifications)

7. At the time of the delegate’s assessment, 5 points may be awarded under this Part if the applicant has a spouse or de facto partner who is also an applicant for the same visa subclass and who is not an Australian citizen or permanent resident and, at the time the applicant was invited to apply for the visa, the spouse or de facto partner was under a specified age, nominated a specified skilled occupation, and had been assessed as having suitable skills and, also, had competent English.

8. Mr Patel made no claims as part of his application and provided no evidence to the delegate that he met the Partner Skill qualification.  The representative confirmed to the Tribunal that Mr Patel maintains his single status and that he currently has no spouse or de facto partner.  He provided a Statutory Declaration from Mr Patel sworn 2 November 2022 confirming that he is currently single. 

9. Therefore, Mr Patel is entitled to no points under this Part as at the time of the delegate’s assessment.

10. The Amending Regulations have significantly changed the issues for consideration in relation to assessing the contribution of a partner to an applicant’s Subclass 189 visa.  Relevant to the circumstances presented by Mr Patel, if an applicant is single, they can now be awarded 10 points. 

11. Having regard to the changes to Part 6D.11 following introduction of the Amending Regulations, the Tribunal is satisfied that Mr Patel is entitled to 10 points under this Part as at the time of the Tribunal’s assessment.

    Part 6D.12 – State or Territory nomination qualifications

12. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 190 Skilled - Nominated visa.  

13. Mr Patel has not been invited to apply for a Subclass 190 visa and is, therefore, entitled to no points under this Part.

14. The Amending Regulations make no changes to the provisions in Part 6D.12.  As such, Mr Patel is entitled to no points under this Part at the time of the Tribunal’s assessment.

    Part 6D.13 – Designated area sponsorship qualifications

15. At the time of the delegate’s assessment, 10 points were available under this Part for applicants who were invited to apply for a Subclass 489 Skilled - Regional (Provisional) visa where the relevant State or Territory government agency has not withdrawn the nomination or, relevant to the circumstances of this case, if the applicant was sponsored by a family member, the Minister has accepted that sponsorship.  Mr Patel was invited to apply for a Subclass 489 visa.  

16. The delegate found that Mr Patel met the requirements under Part 6D.13 of the Regulations due to sufficient evidence of sponsorship by a family member, his brother Ronakkumar Harshadbhai Patel, who is an Australian permanent resident. Accordingly, the delegate awarded Mr Patel 10 points under this criterion. 

17. The Amending Regulations have increased the points awarded in Part 6D.12 to now be 15 points.  As such, Mr Patel is entitled to 15 points under this Part at the time of the Tribunal’s assessment.

    Conclusion - applicant’s points at the time of assessments by the delegate and the Tribunal

18. Having regard to evidence provided, the Tribunal accepts that Mr Patel should be awarded the points set out below at the time of the delegate’s assessment and at the time of the Tribunal’s assessment.

    Table: Points awarded at the time of assessment by the Department and the Tribunal

Item	Qualification	DoHA Points	AAT Points
6D.1	Age	30	30
6D.2	English language	10	10
6D.3	Overseas employment experience	0	0
6D.4	Australian employment experience	0	0
6D.5	Aggregated employment	0	0
6D.6	Australian professional year	0	0
6D.7	Educational	10	10
6D.7A	Specialist education qualification	0	0
6D.8	Australian study	5	5
6D.9	Credited community language	0	0
6D.10	Study in a regional / low population area	0	**
Study in a designated regional area	**	5
6D.11	Partner qualifications	0	10
6D.12	State or Territory nomination	0	0
6D.13	Designated area sponsorship	10	15
Total assessed score	65	85
** not applicable

1. As evident from the Tribunal’s assessment of Mr Patel’s scores at the date of the delegate’s assessment and at the time of its own assessment, Mr Patel has benefited significantly from changes introduced by the Amending Regulations.  His assessed points score has increased from 65 points to 85 points.

   Has the applicant achieved the score stated in the invitation to apply for the visa?

2. It is a requirement that an applicant’s score is not less than the score stated in the invitation to apply for the visa.  The written invitation given to Mr Patel on 6 September 2017 stated a score of 70 points. 

3. Based on the above assessments, having regard to the legislation and legislative instruments in effect at the time of the delegate’s assessment, the Tribunal finds that Mr Patel’s assessed score under the points system is 65 points. Accordingly, the Tribunal concurs with the delegate’s conclusion that, as at the time of the delegate’s assessment, Mr Patel did not meet the requirements in cl 489.224(1) of Schedule 2 to the Regulations as his assessed score is less than the score stated in the invitation to apply for the visa. As noted above, this was the basis on which the delegate refused Mr Patel’s application.

4. However, having regard to the legislation and legislative instruments in effect at the time of the Tribunal’s assessment, the Tribunal finds that Mr Patel’s assessed score as at the time of the Tribunal’s assessment is 85 points. 

5. In these circumstances and having regard to the provisions of s 93 and s 350 of the Act which require the Tribunal to apply whichever is the more favourable score, the Tribunal is satisfied that Mr Patel meets the requirement in cl 489.224(1) of Schedule 2 to the Regulations as his assessed score is not less than the score stated in the invitation to apply for the visa.

   Has the applicant achieved a qualifying score?

6. Section 94(1) of the Act states that an applicant whose assessed score is more than or equal to the applicable pass mark at the time when the score is assessed is taken to have received a qualifying score.

7. At the time of the Tribunal’s assessment, the pass mark is 60 points for applications made before 16 November 2019 where the application for the visa was made in response to an invitation given by the Minister before 1 July 2018: LIN 19/210.  Because the delegate found that Mr Patel’s assessed score was less than the score of 70 points specified in his invitation letter, no consideration was given by the delegate as to whether Mr Patel’s assessed score was more or less than the qualifying score. 

8. Since Mr Patel’s assessed score of 85 points as at the time of the Tribunal’s assessment is above the pass mark of 60 points, the Tribunal is satisfied that Mr Patel has achieved the qualifying score.

9. Accordingly, the Tribunal finds Mr Patel meets the requirement in cl 489.224(2) of Schedule 2 to the Regulations that his assessed score is not less than the qualifying score.

   Conclusion

10. For the above reasons, Mr Patel is entitled to 85 points under the points test. As his assessed score is not less than the score stated in the invitation to apply for the visa and, further, his assessed score is not less than the qualifying score, the Tribunal finds Mr Patel satisfies cl 489.224 of Schedule 2 of the Regulations. The appropriate course is to remit the application for the visa to the Minister to enable consideration of the remaining criteria for grant of the visa.

    DECISION

11. The Tribunal remits the application for a Skilled - Regional (Provisional) visa for reconsideration with the direction that the applicant meets the following criterion for a Subclass 489 visa:

    ·cl 489.224 of Schedule 2 to the Regulations

    Katie Malyon

    
    Member