Fry (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Skilled Independent (Permanent) visa (Subclass 189). The applicant, nominated as a Secondary School Teacher, had her visa application affirmed by the Tribunal. Despite finding the applicant to be a genuine and truthful individual, the Tribunal recommended that the Minister exercise discretionary powers under section 351 of the Migration Act 1958 (Cth) due to extenuating circumstances.

The primary legal issues before the Tribunal were whether the applicant's skills had been assessed as suitable for her nominated occupation by the relevant assessing authority at the time of invitation to apply for the visa, and whether she satisfied the points test criteria for the visa. Clause 189.212(1) of the Migration Regulations 1994 (Cth) stipulated that such an assessment must have been obtained prior to the invitation to apply.

The Tribunal noted that the applicant's skills assessment from the Australian Institute for Teaching and School Leadership (AITSL) was dated 23 February 2017, which post-dated the invitation to apply for the visa. The applicant conceded this fact, attributing the delay to her withdrawal of a Partner visa application due to family violence and the Christmas holiday period. While the Tribunal affirmed the decision not to grant the visa based on the strict requirements of the regulations, it acknowledged the applicant's circumstances and respectfully recommended that the Minister consider exercising the powers under s 351 of the Act.