Abdelrahim (Migration)

[2022] AATA 4917

Abdelrahim (Migration) [2022] AATA 4917 (14 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ali Sabrin Abdelhamid Abdelrahim
Mrs Samar Mohamed Mohamed Mohamed Yassein  
Miss Rouaa Ali Sabrin Abdelhamid Abdelrahim
Master Omar Ali Sabrin Abdelhamid Abdelrahim
Miss Rana Ali Sabrin Abdelhamid Abdelrahim

REPRESENTATIVE:  Mr Ashish Sethi

CASE NUMBER:  2211737

HOME AFFAIRS REFERENCE(S):          BCC2021/2169496

MEMBER:Alan McMurran

DATE:14 December 2022

PLACE OF DECISION:  Sydney

DECISION:    

The Tribunal remits the application for a Skilled Work Regional (Provisional) Subclass 491 visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 491 visa:

·     Cl 491.214 of Schedule 2 to the Regulations; and

The Tribunal remits the applications for a Skilled Work Regional (Provisional) Subclass 491 visa for reconsideration, with the direction that the second to fifth named applicants meet the following criteria for a Subclass 491 visa:

·     Cl 491.311 of Schedule 2 to the Regulations.

Statement made on 14 December 2022 at 10:22am

CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) visa– Subclass 491 – Retail and Hospital Pharmacist – applicant held a valid skills assessment issued on 16 September 2021 – assessment was made not more than 3 years prior to the date of invitation – secondary applicants are members of the applicant’s family unit – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65,360
Migration Regulations 1994, Schedule 2, cls 491.214, 491.311

statement of decision and reasons

application for review

1. This is an application lodged 12 August 2022 for review of a decision made by a delegate of the Minister for Home Affairs on 26 July 2022 to refuse to grant the visa applicant a Skilled Work Regional (Provisional) (Class PS) Subclass 491 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant, a citizen of the Arab Republic of Egypt (“the applicant”), applied for the visa on 13 November 2021. The applicant was invited to apply for the position of Retail and Hospital Pharmacist ANZSCO 251511 (“the skilled position”).

3. The second to fifth named applicants (“the secondary applicants”) are members of the applicant’s family unit comprising his wife and 3 children. The secondary applicants are dependent upon a successful application by the visa applicant in order to obtain their visas.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 491.214 of Schedule 2 to the Regulations. This was because the delegate found that the skills assessment provided from the Australian Pharmacy Council (“APC”) was dated 31 January 2018, which was more than 3 years prior to the date when the applicant was invited to apply for the visa on 12 October 2021. As the skills assessment was issued in excess of 3 years prior to the invitation date, the delegate found that cl 491.214 of Schedule 2 to the Regulations was not met.

5. On the information now available to the Tribunal, the Tribunal finds in accordance with section 360(2)(a) of the Act, that it is able to decide the review in the applicant’s favour on the basis of the material now before it and without a hearing.

6. The applicants were represented in relation to the review.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the criteria in clause 491.214 of Schedule 2 to the Regulations.

9. The clause provides that:

   491.214

   (1) At the time of invitation to apply for the visa:
   (a) the relevant assessing authority for the applicant's nominated skilled occupation had
   assessed the applicant's skills as suitable for that occupation; and
   (b) the assessment was not for a Subclass 485 (Temporary Graduate) visa; and
   (c) if the assessment specified a period during which the assessment was valid, and the
   period did not end more than 3 years after the date of the assessment-the period had not
   ended; and
   (d) if paragraph (c) did not apply-not more than 3 years had passed since the date of the
   assessment.
   (2) If the assessment was made on the basis of a qualification obtained in Australia while the
   applicant held a student visa, the qualification was obtained as a result of studying a registered course.

   Findings

10. The available information from the Department shows that the applicant was invited to apply for the position on 12 October 2021.

11. Cl 491.214 requires that the applicant have an assessment specified for a particular period during which the assessment was valid, and not ending more than 3 years after the date of the assessment, and which period of assessment had not ended. If there was no stated period during which the assessment was valid, the assessment must have been made not more than 3 years prior to the date of invitation.

12. At the time of decision, the Department had before it a copy of an assessment issued by the APC as the relevant assessing authority. The assessment did not state a validity period[1]. This means the assessment was required to have been made in the period from 12 October 2018 to 12 October 2021 (date of invitation) to meet the criteria.

    [1] Cl 491.214(c)

13. The assessment was issued and dated 31 January 2018 which was outside the requisite 3 year period. No further information was available for the Department to find that the assessment relevantly at the time of its decision was within the requisite period of 3 years from the time of invitation.

14. The applicant has provided the Tribunal with a copy of a further letter from the APC dated 27 September 2022. The letter is signed by the APC Director for Accreditation and Assessment. The letter explains that the applicant received two skills assessments, firstly on 5 February 2018,  and secondly, on 31 January 2018, which was “incorrectly dated”. The letter states that  the incorrect date for the second and updated assessment “ was an error on our behalf”. It states that  the correct date for the second assessment is in fact 16 September 2021.

15. Following an enquiry by the Tribunal, the APC Director confirmed by email received by the Tribunal on 21 October 2022 that the APC had issued the skills assessment for the applicant for the nominated occupation on 16 September 2021, and which it states is the correct issue date. The Tribunal finds the statement to be valid from the relevant assessing authority and that the revised date is now the correct information for the purpose of this review and at the time of the Tribunal’s decision.

16. The Tribunal finds therefore that the applicant held a valid skills assessment issued on 16 September 2021 and which assessment was made not more than 3 years prior to the date of invitation on 12 October 2021.

17. On the available information, the Tribunal further finds that the skills assessment was not for a Subclass 485 (Temporary Graduate) visa[2], and further that the assessment was not made on the basis of a qualification obtained in Australia while the applicant held a student visa for studying a registered course in Australia[3].

    [2] Clause 491.214(b)

    [3] Clause 491.214(2)

18. For these reasons, the Tribunal finds that the requirements of cl 491.214 are met.

19. Given the findings above the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the applicant’s visa.

    Secondary applicants

20. The Tribunal finds that the secondary applicants are members of the applicant’s family unit, the applicant being a person who now meets the requirements in cl 491.214.

21. The Tribunal finds that the secondary applicants therefore meet cl 491.311, to the extent the applicant now meets clause 491.214.

22. Accordingly, the appropriate course is to remit the application by the secondary applicants for reconsideration of the remaining criteria for the visas.

    decision

23. The Tribunal remits the application for a Skilled Work Regional (Provisional) Subclass 491 visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 491 visa:

    ·     Cl 491.214 of Schedule 2 to the Regulations; and

    The Tribunal remits the applications for a Skilled Work Regional (Provisional) Subclass 491 visa for reconsideration, with the direction that the second to fifth named applicants meet the following criteria for a Subclass 491 visa:

    ·Cl 491.311 of Schedule 2 to the Regulations.

    Alan McMurran
    Member