Berinato (Migration)

This matter concerned an application for a Skilled Nominated (Permanent) visa (Subclass 190) by an applicant who nominated the occupation of Construction Project Manager. The central dispute revolved around the applicant's eligibility for points under the 'overseas employment experience' category and potentially the 'partner qualification' category, which were the only two controversial elements of the 14 points test categories. The Administrative Appeals Tribunal was tasked with reviewing the delegate's decision.

The legal issues before the Tribunal were whether the applicant's overseas employment experience qualified for the necessary points, and whether a partner qualification could be considered. Crucially, the Tribunal had to determine if the applicant achieved the qualifying score required for the visa, applying the law in force at the time of the delegate's assessment and at the time of the Tribunal's assessment, whichever was more favourable to the applicant. The Tribunal was required to assess the applicant against the qualifications and points prescribed in Schedule 6D to the Regulations and the relevant pass mark.

The Tribunal reasoned that the applicant's nominated occupation, Construction Project Manager, was included in the relevant legislative instrument. While the applicant's overseas employment experience and potential partner qualification were contentious, the Tribunal ultimately found that the applicant's score was not less than the score stated in the invitation to apply (70) and not less than the qualifying score (65). This meant the applicant satisfied clause 190.214 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with the direction that the applicant met the criterion specified in clause 190.214.