Evans (Migration)

This matter concerned an appeal by the applicant, a Primary School Teacher, against the refusal of her Subclass 186 Employer Nomination Scheme visa under the Direct Entry stream. The primary issue was whether the applicant had satisfied the requirements of clause 186.234 of the Migration Regulations 1994, which mandates either being an exempt person or having her skills assessed as suitable for her nominated occupation by a specified assessing authority at the time of application.

The Tribunal was required to determine if the applicant met the criteria under clause 186.234. Specifically, it needed to ascertain whether the applicant was an exempt person or if she had obtained a skills assessment from the relevant authority, the Australian Institute for Teaching and School Leadership (AITSL), for her occupation as a Primary School Teacher. The Tribunal also considered the validity and nature of any skills assessment provided, noting that for applications made after 28 October 2013, the assessment could not be for a Subclass 485 visa.

The applicant contended that her membership and registration with the Victorian Institute of Teaching (VIT), which had assessed her skills as suitable for teaching in Victoria, constituted a sufficient skills assessment. However, the Tribunal found that VIT was not the specified assessing authority for the occupation of Primary School Teacher under the relevant legislative instruments. The applicant also confirmed she did not fall into any of the specified classes of exempt persons. Consequently, the Tribunal concluded that the applicant had failed to satisfy clause 186.234, as she had not provided evidence of a skills assessment from the correct authority and was not an exempt person.

As the applicant did not meet the primary criteria for the Subclass 186 visa, her secondary applicant, who applied as a member of her family unit, also failed to meet the requirements. Accordingly, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants. The Tribunal did, however, note the applicant's circumstances and suggested she raise the matter of her departure with the Department, highlighting the potential negative impact on her students.