De Guzman (Migration)
[2022] AATA 5097
•7 December 2022
De Guzman (Migration) [2022] AATA 5097 (7 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Gary De Guzman
REPRESENTATIVE: Mr Michael Moeidjiantho (MARN: 1572961)
CASE NUMBER: 2012057
HOME AFFAIRS REFERENCE(S): BCC2020/1625358
MEMBER:R. Skaros
DATE:7 December 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the application for a Skilled Work Regional (Provisional) (Class PS) 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.
Statement made on 07 December 2022 at 5:44pm
CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 (Skilled Work Regional (Provisional)) – Registered Nurse (Nec) – skills assessment – timing of assessment – ‘at the time of the invitation to apply for the visa’ – period which invitation was valid or open – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 491.214CASES
Thapa v MICMSMA [2021] FCCA 686statement 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 3 July 2020 to refuse to grant the visa applicant (the applicant) a Skilled Work Regional (Provisional) (Class PS) Subclass 491 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 26 May 2020 and nominated the skilled occupation of Registered Nurse (Nec), Australian and New Zealand Standard Classification (ANZSCO) code 254499.
The delegate was not satisfied that the relevant assessing authority for the applicant’s nominated skilled occupation had assessed the applicant’s skills as suitable for that occupation at the time of the invitation to apply for the visa as required by cl.491.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicant was represented in relation to the review.
The Tribunal did not consider a hearing to be necessary in the circumstances of this case as it was able to find in favour of the applicant on the material before it.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant satisfies the requirements of cl 491.214 of Schedule 2 to the Regulations. This provision requires that at the time of the invitation for the visa, a relevant assessing authority had assessed the applicant’s skills as suitable for the nominated occupation. It also requires that: the assessment was not for a Subclass 485 (Temporary Graduate) visa; and not more than 3 years had passed since the date of the assessment or, if a shorter period of validity was specified in the assessment, that shorter period has not ended: cl 491.214(1). In addition, 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: cl. 491.214(2).
In this case the applicant was invited to apply for the visa on 21 May 2020 in the nominated occupation of Registered Nurse (Nec) ANZSCO 254499. The invitation to apply remained open until 20 July 2020.
The term ‘relevant assessing authority’ is defined to mean a person or body specified under reg 2.26B. This provision authorises the Minister to specify a person or body as the relevant assessing authority for a skilled occupation by an instrument in writing. In this case, LIN 19/051 is the relevant legislative instrument specifying occupations and assessing authorities. The Australian Nurses and Midwives Accreditation Council (ANMAC) is the relevant assessing authority specified for the applicant’s nominated occupation of Registered Nurse (Nec) (ANZSCO 254499).
The applicant provided the Department with a positive skills assessment from ANMAC for the nominated occupation of Registered Nurse (Nec) stated to be valid for two years from 26 April 2018. He also provided a second positive skills assessment from ANMAC for the nominated occupation valid for two years commencing from 5 June 2020. The delegate found that the first skills assessment was no longer valid at the time of the invitation to apply for the visa and could not be used to satisfy cl 491.214(1)(a). In respect of the second invitation, the delegate noted it commenced after the invitation to apply for the visa was issued, and also found it could not be used to satisfy cl 491.214(1)(a). Accordingly, the delegate found the applicant did not meet the requirements of cl 491.214(1).
In Thapa v MICMSMA [2021] FCCA 686 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 for 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 expiration of the invitation). This interpretation appears equally applicable to the requirement in cl 491.214.
In this case the period of the invitation was 21 May 2020 until 20 July 2020. The second skills assessment commenced 5 June 2020 which was within the period of the invitation. On the evidence before it, the Tribunal finds that at the time of the invitation to apply for the visa the relevant assessing authority for the applicant’s nominated skilled occupation had assessed his skills as suitable for that occupation. The applicant meets cl 491.214(a).
The Tribunal also finds that the skills assessment provided by the applicant was not for a Subclass 485 (Temporary Graduate) visa and meets cl 491. 214(b). The skills assessment stated that was valid for two years from the time of commencement, so until 5 June 2022. A such at the time of the invitation to apply for the visa, the period and not ended and satisfied the requirements of cl 491.214(c). Clause 491.214(d) is not relevant in the circumstances of this case. Further, as the skills assessment was not made on the basis of a qualification obtained in Australia, cl 491.214(2) does not apply to the applicant in this case.
On the evidence the Tribunal finds that the applicant satisfies the requirements of cl 491.214 of Schedule 2 to the Regulations.
Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
decision
The Tribunal remits the application for a Skilled Work Regional (Provisional) (Class PS) 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.
R. Skaros
Senior Member
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