Canjeevaram Dinesh (Migration) - [2023] AATA 254

Canjeevaram Dinesh (Migration) [2023] AATA 254 (19 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Vishnu Teja Canjeevaram Dinesh
REPRESENTATIVE:  Ms Bina Shah (MARN: 0848531)
CASE NUMBER:  2011085
HOME AFFAIRS REFERENCE(S):          BCC2020/1615604
MEMBER:Antonio Dronjic
DATE:19 January 2023
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Work Regional (Provisional) (Class PS) visa.

Statement made on 19 January 2023 at 12:19pm
CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 (Skilled Work Regional (Provisional)) – skills assessment no longer valid at time of invitation to apply – new skills assessment submitted after invitation expired – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 491.214(1)
CASE
Thapa v MICMSMA [2021] FCCA 686
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 July 2020 to refuse to grant the applicant a visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a points based visa designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.
The applicant was invited to apply for the visa on 20 May 2020 and applied for the visa on 25 May 2020. The criteria for the grant of a Subclass 491 - Skilled Work Regional (Provisional) visa are set out in Part 491 - Skilled Work Regional (Provisional) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy cl. 491.214.
The applicant applied to the Tribunal on 3 July 2020 for review of the delegate’s decision. With the review application, the applicant provided a copy of the primary decision record.
According to the primary decision record submitted by the applicant with the review application, with his application for a Subclass 491 visa, the applicant submitted skilled assessment letter dated 1 March 2018 issued by the Australian Computer Society (ACS). The skills assessment letter stated that the assessment for the applicant’s nominated occupation of an ICT Security Specialist (ANZSCO 262112) is valid for a period of 24 months. The delegate found that the skills assessment was no longer valid at the time the applicant was invited to apply for a Subclass 491 visa.
On 30 July 2020, the applicant submitted new skills assessment letter from ACS dated 29 July 2020.
On 25 June 2021, the Tribunal received documentary evidence from the applicant’s representative. The list of documents submitted is attached to this decision record as Attachment A.
On 30 November 2022 the Tribunal wrote to the applicant advising that it considered material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend the hearing on 19 January 2023 to give evidence and present arguments.
On 5 December 2022,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 254
Decision Date: 19 January 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant the applicant a Skilled Work Regional (Provisional) (Class PS) visa (Subclass 491). The applicant had nominated an occupation as an ICT Security Specialist. The core of the dispute revolved around the validity of the applicant's skills assessment at the time of invitation to apply for the visa.

The Tribunal was required to determine whether the applicant met the requirements of clause 491.214(1) of the Migration Regulations 1994. Specifically, the Tribunal had to consider whether, at the time of invitation to apply for the visa, the relevant assessing authority had assessed the applicant's skills as suitable for their nominated occupation, and whether that assessment was still valid according to the criteria set out in the regulations.

The Tribunal reasoned that clause 491.214(1) requires a valid skills assessment to be in place at the time of invitation to apply. The applicant's initial skills assessment from the Australian Computer Society (ACS) was dated 1 March 2018 and was valid for 24 months. The invitation to apply for the visa was issued on 20 May 2020 and remained open until 19 July 2020. Therefore, the initial skills assessment had expired before the invitation was issued. Although the applicant submitted a new skills assessment dated 29 July 2020, this was after the expiry date of the invitation. Applying the reasoning from *Thapa v MICMSMA*, the Tribunal interpreted "at the time of invitation to apply" to mean the period during which the invitation was valid or open. Consequently, the Tribunal found that the applicant did not have a valid skills assessment during the period the invitation was open. As this was a prescribed criterion for the visa, the Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE Clause 491.214 (1) prescribes that:(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. As noted in the primary decision record and confirmed in the applicant’s evidence given at the hearing, with his application for a Subclass 491 visa, the applicant submitted skilled assessment letter dated 1 March 2018 issued by ACS. The skills assessment letter stated that the assessment for the applicant’s nominated occupation of an ICT Security Specialist (ANZSCO 262112) is valid for a period of 24 months. As the invitation to apply for the visa was issued on 20 May 2020 and was open until 19 July 2020, the skills assessment of 1 March 2018 was no longer valid. The applicant subsequently provided new skills assessment letter from ICS for the same nominated occupation dated 29 July 2020. The Tribunal note that in Thapa v MICMSMA, the Court held that the words ‘at the time of invitation to apply’ in cl 189.222(1) meant the period within which the invitation was valid or open, not the date the invitation itself was made or given to the applicant.[1] The Court’s reasoning would appear equally applicable to the similarly worded skills assessment criterion in cl 491.214(1) as well.[1] Thapa v MICMSMA [2021] FCCA 686, at [28]-[30]. As the invitation to apply stated that the invitation expiry date was 19 July 2020, the Tribunal finds that the skills assessment letter of 29 July 2020 was submitted after the invitation expiry date. Based on the evidence before it, the Tribunal is not satisfied that, at the time of invitation to apply for a Subclass 491 visa and during the time the invitation was open (until 19 July 2020), the relevant assessing authority for the applicant's nominated skilled occupation had assessed the applicant's skills as suitable for that occupation. Accordingly, the Tribunal finds that the applicant does not meet the requirements of cl.491 (1). As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled Work Regional (Provisional) (Class PS) visa.Antonio DronjicMemberAttachment A: Document List·Marriage certificate dated 24 June 2021.·Shruthi Lavanya Selvakumar (Spouse) passport undated. Attachment B: Document List·Skills assessment from Australian Computer Society dated 1 March 2018.·Copy of Rushika Canjeevaram Vishnu (daughter) passport undated.·Response to hearing invitation dated 5 December 2022.·Bridging visa B grant notification dated 9 December 2020.·DoHA code of conduct for registered migration agents undated.·Visa grant notification Shruthi Lavanya Selvakumar (spouse) dated 27 March 2021.·Image of IAEC google reviews undated.·Decision notification Rushika Canjeevaram Vishnu (daughter) dated 20 October 2022.·Decision notification Vishnu Teja Canjeevaram Dinesh dated 20 October 2022.·DoHA s.57 natural justice letter dated 3 September 2022.·DoHA withdrawal of application dated 6 October 2022.·Email thread between Namrata Trivedi and Mr Canjeevaram dated 11 February 2020.·Skilled nomination grant for ICT security specialist ANZSCO code: 262112 from Departments of Jobs, Precincts dated 20 May 2020.·Marriage certificate received in attachment B.·Vishnu Teja Canjeevaram Dinesh updated passport copy undated.·Vishnu Teja Canjeevaram Dinesh applicant statement undated.·Notice of tax assessment year ending 30 June 2022.·DoHA Subclass 491 decision record Vishnu Teja Canjeevaram Dinesh·Copy of email complaint to MARA reference Number CAS-03730-W0J6 dated 22 August 2022.·Vishnu Teja Canjeevaram Dinesh termination letter from genU dated 4 April 2022.

Decision

Reasons for decision

Based on the evidence before it, the Tribunal is not satisfied that, at the time of invitation to apply for a Subclass 491 visa and during the time the invitation was open (until 19 July 2020), the relevant assessing authority for the applicant's nominated skilled occupation had assessed the applicant's skills as suitable for that occupation. Accordingly, the Tribunal finds that the applicant does not meet the requirements of cl.491 (1). As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled Work Regional (Provisional) (Class PS) visa.Antonio DronjicMemberAttachment A: Document List·Marriage certificate dated 24 June 2021.·Shruthi Lavanya Selvakumar (Spouse) passport undated. Attachment B: Document List·Skills assessment from Australian Computer Society dated 1 March 2018.·Copy of Rushika Canjeevaram Vishnu (daughter) passport undated.·Response to hearing invitation dated 5 December 2022.·Bridging visa B grant notification dated 9 December 2020.·DoHA code of conduct for registered migration agents undated.·Visa grant notification Shruthi Lavanya Selvakumar (spouse) dated 27 March 2021.·Image of IAEC google reviews undated.·Decision notification Rushika Canjeevaram Vishnu (daughter) dated 20 October 2022.·Decision notification Vishnu Teja Canjeevaram Dinesh dated 20 October 2022.·DoHA s.57 natural justice letter dated 3 September 2022.·DoHA withdrawal of application dated 6 October 2022.·Email thread between Namrata Trivedi and Mr Canjeevaram dated 11 February 2020.·Skilled nomination grant for ICT security specialist ANZSCO code: 262112 from Departments of Jobs, Precincts dated 20 May 2020.·Marriage certificate received in attachment B.·Vishnu Teja Canjeevaram Dinesh updated passport copy undated.·Vishnu Teja Canjeevaram Dinesh applicant statement undated.·Notice of tax assessment year ending 30 June 2022.·DoHA Subclass 491 decision record Vishnu Teja Canjeevaram Dinesh·Copy of email complaint to MARA reference Number CAS-03730-W0J6 dated 22 August 2022.·Vishnu Teja Canjeevaram Dinesh termination letter from genU dated 4 April 2022.

Ratio Decidendi

Legal Principle Established

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