Benninger (Migration)

[2018] AATA 3485

Benninger (Migration) [2018] AATA 3485 (28 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Abigail Le Ann Benninger

CASE NUMBER:  1817198

DIBP REFERENCE(S):  BCC2018/208671

MEMBER:Denise Connolly

DATE:28 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 190 visa:

·cl.190.212(1) of Schedule 2 to the Regulations.

Statement made on 28 August 2018 at 3:02pm

CATCHWORDS

Migration – Skilled Nominated (Permanent) Visa – Subclass 190 (Skilled Nominated) – Skills assessment – Nominated occupation of Early Childhood (Pre-primary school) – Skills assessment valid – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 190.212

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 Immigration to refuse to grant the applicant a Skilled Nominated (Permanent) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 13 January 2018. The delegate refused to grant the visa on 24 May 2018.

2. The delegate made the decision on the basis that evidence of a skills assessment was not provided as required to satisfy cl 190.212(1) for the grant of the visa under the Migration Regulations 1994 (the Regulations).

   CONSIDERATION OF EVIDENCE

3. Clause 190.212(1) requires that at the time of invitation to apply for the visa:

   ·the relevant assessing authority has assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation; and

   ·the assessment was not for a Subclass 485 visa; and

   ·if the assessment specified a period during which the assessment was valid, and the period did not end more than three years after the date of the assessment, the period had not ended; and, if this does not apply, not more than three years had passed since the date of the assessment.

4. The applicant was invited to apply for the visa on 3 January 2018. She had nominated the occupation Early Childhood (Pre-primary School) Teacher. Having regard to the relevant instrument the Tribunal is satisfied that the Australian Institute for Teaching and School Leadership (AITSL) is the relevant assessing authority.

5. On 12 June 2018 the Tribunal received a copy of the applicant’s Skills Assessment Certificate dated 12 October 2017 from the AITSL stating that for the purposes of skilled migration the applicant is suitable for the nominated occupation of Early Childhood (Pre-primary School) Teacher (ANZSCO 241111). The skills assessment does not indicate that it is for the purposes of a Subclass 485 visa. Nor does it indicate that it has a period of validity. The Tribunal is satisfied that not more than three years have passed since the date of the assessment.

6. In light of the new evidence received, the Tribunal is satisfied that cl.190.212(1) is met and has concluded that the matter should be remitted for reconsideration.

   DECISION

7. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 190 visa:

   ·cl.190.212(1) of Schedule 2 to the Regulations.

   Denise Connolly
   Member