Tran (Migration)

The Administrative Appeals Tribunal considered the case of Tran, an applicant for a Subclass 188 Business Innovation and Investment (Provisional) visa. The applicant sought to satisfy the primary criteria for this visa, specifically focusing on the Business Innovation stream. The delegate had previously refused the visa based on an assessment against clause 188.222 of the Regulations, which pertains to the points test. The Tribunal's review was confined to whether the applicant met the requirements of clause 188.222, taking into account fresh evidence.

The central legal issue before the Tribunal was whether the applicant met the requirements of clause 188.222 of the Regulations, which mandates achieving a minimum score of 65 points on the business innovation and investment points test. This test involves summing points awarded under various parts of Schedule 7A, including age, English language proficiency, educational qualifications, business experience, financial assets, business turnover, business innovation, and special endorsement. The Regulations also stipulate that an applicant cannot receive points for more than one prescribed qualification and must be awarded points for the qualification attracting the highest score if multiple are met.

The Tribunal's reasoning focused on assessing the applicant's eligibility for points under specific criteria within Schedule 7A. The applicant, born on 29 November 1982, was 36 years old at the time of her invitation to apply, entitling her to 25 points under Part 7A.2 (Age). She did not claim points for English language proficiency under Part 7A.3. Under Part 7A.4 (Educational Qualifications), the applicant sought five points based on holding a trade qualification, diploma, or bachelor degree from an Australian educational institution. The Tribunal concluded that the matter should be remitted for reconsideration, indicating that a final determination on the visa application was not made at this stage.