Patel (Migration)

This matter concerned an application for a Skilled Regional Sponsored (Provisional) (Class SP) visa, Subclass 489, by Mr. Patel. The dispute before the Administrative Appeals Tribunal (AAT) was whether Mr. Patel satisfied the points test criterion, specifically clause 489.224 of Schedule 2 to the Migration Regulations 1994. The Tribunal was constituted by Member Katie Malyon.

The primary legal issue before the Tribunal was to determine Mr. Patel's assessed score under the points test, considering the law in force at the time of the original delegate's assessment and the law in force at the time of the Tribunal's assessment. This involved assessing his eligibility for points under various parts of Schedule 6D to the Regulations, including age, and applying the provisions of sections 93 and 350 of the Migration Act 1958, which mandate that the more favourable assessment to the applicant must be applied. The Tribunal also had to consider the impact of amendments to the Regulations made by the Migration Amendment (New Skilled Regional Visas) Regulations 2019, which came into effect on 16 November 2019.

The Tribunal reasoned that Mr. Patel was entitled to 30 points for age, as he was 28 at the time of his invitation to apply and this provision was unchanged by the Amending Regulations. After considering the various points Mr. Patel was eligible for under the applicable legislative frameworks, the Tribunal concluded that he was entitled to a total of 85 points. As this score met both the score stated in his invitation to apply and the qualifying score, the Tribunal found that Mr. Patel satisfied the points test criterion. Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, with a direction that Mr. Patel meets the points test criterion.