Benninger (Migration)

The Administrative Appeals Tribunal considered an appeal by Benninger concerning a decision to refuse a Skilled Nominated (Permanent) Visa (Subclass 190). The delegate's decision was based on the applicant's alleged failure to provide evidence of a skills assessment as required by clause 190.212(1) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 190.212(1) at the time of her invitation to apply for the visa. This clause mandates that the relevant assessing authority must have assessed the applicant's skills as suitable for the nominated occupation, that the assessment was not for a Subclass 485 visa, and that the assessment remained valid within a specified timeframe. The applicant had nominated the occupation of Early Childhood (Pre-primary School) Teacher.

The Tribunal found that the Australian Institute for Teaching and School Leadership (AITSL) was the relevant assessing authority. The applicant provided a Skills Assessment Certificate dated 12 October 2017, which stated her suitability for the nominated occupation for skilled migration purposes. The Tribunal noted that this assessment was not for a Subclass 485 visa and did not specify a validity period. Given the invitation to apply was on 3 January 2018, the Tribunal was satisfied that less than three years had passed since the date of the assessment, thus meeting the criteria of clause 190.212(1).

Consequently, the Tribunal remitted the application for reconsideration, directing that the applicant met the criteria under clause 190.212(1) of Schedule 2 to the Regulations.