Kippen (Migration)

The Administrative Appeals Tribunal considered a dispute concerning a Skilled Nominated (Permanent) visa (Subclass 190). The applicant sought this visa, nominating the occupation of Early Childhood (pre-primary school) Teacher. The delegate refused to grant the visa on the basis that the applicant did not satisfy the points test criterion.

The primary legal issue before the Tribunal was whether the applicant's assessed score under the points test was not less than the score stated in the invitation to apply for the visa, and not less than the qualifying score. This involved an assessment of the points awarded for various attributes, including Australian work experience, as prescribed by Schedule 6D to the Migration Regulations 1994. The Tribunal was required to consider the points test as in force at the time of the delegate's assessment and at the time of the Tribunal's assessment, applying whichever was more favourable to the applicant.

The Tribunal found that the applicant was awarded 90 points, which was less than the 95 points stated in the invitation to apply. The refusal was specifically due to a shortfall of 5 points for Australian work experience. However, the applicant provided further submissions and evidence to the Tribunal regarding this shortfall, aiming to demonstrate at least 36 months of relevant employment. Having regard to this new evidence and departmental policy, the Tribunal determined that the applicant did meet the points test criterion.

Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, with a direction that the applicant satisfies the points test criterion under clause 190.214 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the grant of the visa.