Chowdhury (Migration) - [2024] AATA 1011

Chowdhury (Migration) [2024] AATA 1011 (5 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Kazi Jahan Jeb Chowdhury
Mrs Nusrat Jahan
Miss Kazi Ashrafin Jahan
CASE NUMBER:  2116921
HOME AFFAIRS REFERENCE(S):          BCC2021/1186800

MEMBER:Alison Mercer
DATE:5 April 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Work Regional (Provisional) (Class PS) visas.

Statement made on 5 April 2024 at 5:44pm

CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 (Skilled Work Regional (Provisional)) – Accountant (General) – skills assessment – more than 3 years old at time of invitation to apply – new assessment obtained after the date of invitation – Tribunal declined indefinite deferral of decision-making – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 491.214
CASES
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Thapa v MICMSMA [2021] FCCA 686
Waensila v Minister for Immigration and Border Protection (2016) FCAFC 3

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 28 October 2021 to refuse to grant the visa applicants (the applicants) Skilled Work Regional (Provisional) (Class PS) subclass 491 visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants were invited to apply for the visas on 26 May 2021 and applied for the visas on 3 June 2021. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy cl.491.214, which required that, at the time that the applicants were invited to apply for the visas, the relevant assessing authority for the applicant’s nominated skilled occupation had assessed his skills as suitable for that occupation, the skills assessment in question was not given for the purposes of a subclass 485 (Temporary Graduate) visa application, and if the assessment specified a validity period, that period had not expired (or if no period was specified, the assessment was not more than 3 years old).
The delegate found that the applicant had nominated the occupation of Accountant (General) but the skills assessment he provided for this occupation from CPA Australia was dated 9 May 2018 and was thus more than 3 years old at the time that the visa application was made.
The delegate acknowledged that the applicant had provided a new skills assessment for his occupation, issued by CPA Australia on 13 September 2021, but found this could not be taken into account as it was obtained after the applicant was invited to apply for the visa on 26 May 2021. The delegate therefore found that the applicant could not meet the criteria for a subclass 491 visa.
The delegate also refused to grant visas to the second and third named applicants, as they could not…

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: [2024] AATA 1011
Decision Date: 5 April 2024

CaseChat Overview and Summary

This matter concerned an application for a Skilled Work Regional (Provisional) (Class PS) visa, subclass 491. The applicant nominated Accountant (General) as their skilled occupation. The core dispute revolved around whether the applicant met the requirements for a valid skills assessment at the time of their invitation to apply for the visa. The Administrative Appeals Tribunal (AAT) was required to determine the applicant's eligibility for the visa.

The primary legal issue before the Tribunal was the interpretation and application of clause 491.214 of the Migration Regulations 1994. Specifically, the Tribunal had to ascertain whether the applicant possessed a skills assessment that was valid and not more than three years old at the time of their invitation to apply for the visa, as stipulated by subclause 491.214(1)(d). The Tribunal also considered whether a subsequent skills assessment, obtained after the invitation date, could satisfy this requirement, and whether the interpretation of "at the time of invitation" could extend to the period within which the invitation was valid.

The Tribunal reasoned that the applicant's initial skills assessment from CPA Australia, dated 9 May 2018, was more than three years old by the invitation date of 26 May 2021, thus failing to meet the criterion in clause 491.214(1)(d). A subsequent skills assessment, dated 13 September 2021, was obtained after the invitation date and therefore could not satisfy the requirement. The Tribunal considered the case of *Thapa v MICMSMA* [2021] FCCA 686, which suggested that "at the time of invitation" could encompass the period of invitation validity. However, even applying this broader interpretation, the applicant's first assessment was too old, and the second assessment had not yet been issued within the invitation period of 26 May 2021 to 26 July 2021.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Skilled Work Regional (Provisional) (Class PS) visa. The Tribunal noted that the applicant had elected not to request Ministerial intervention but that this option remained open to them.

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 decisions under review must be affirmed.CONSIDERATION OF LAW, CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets cl.491.214, which provides as follows: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.… It is not disputed that the date that the applicant was invited to apply for the visa was 26 May 2021. With the online visa application, the applicant provided a positive skills assessment for his nominated skilled occupation of Accountant (General) issued by CPA Australia on 9 May 2018. The Tribunal is satisfied that the skills assessment did not have a specified expiry date; it therefore comes within cl.491.214(1)(d), which requires that not more than 3 years had passed since the date of the skills assessment. The Tribunal finds that more than 3 years had passed between 9 May 2018 and 26 May 2021, and therefore the CPA Australia skills assessment of 9 May 2018 does not satisfy cl.491.214(1)(d) and therefore does not satisfy cl.491.214 as a whole. The Tribunal further finds that the applicant’s second positive skills assessment from CPA Australia was dated 13 September 2021, after the date he was invited to apply for the subclass 491 visa, and therefore it cannot satisfy the requirements of cl.491.214 either. The Tribunal has considered the recent case of Thapa v MICMSMA [2021] FCCA 686, in which the Court considered the interpretation of cl.189.222, which, like cl.491.214, requires that the applicant had a relevant skills assessment ‘at the time of the invitation to apply for the visa.’ The Court held that the relevant point in time at which the requirement in cl.189.222 must be met is not the date of the invitation but rather, the period within which the invitation was valid or open (being the period between the date of the invitation and the expiry of the invitation). This interpretation appears equally applicable to the requirements of cl.491.214. However, in this case, that period ran between 26 May 2021 and 26 July 2021; during this period, the first skills assessment was more than 3 years old, and the second skills assessment had not been issued. Therefore, Thapa’s case does not assist the applicant. The Tribunal has also considered the 2 cases referred to it by the applicant, being Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 and Waensila v Minister for Immigration and Border Protection (2016) FCAFC 3.

Decision

Reasons for decision

The Tribunal acknowledges that the applicants have elected not to request the Tribunal to refer their case for Ministerial intervention pursuant to s.351 of the Act, but notes that it remains open to them to make such a request directly if they wish to do so in future.DECISION The Tribunal affirms the decision not to grant the applicants Skilled Work Regional (Provisional) (Class PS) visas.Alison MercerMember

Ratio Decidendi

Legal Principle Established

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