De Guzman (Migration) - [2022] AATA 5097

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 remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 491.214
CASES
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 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…

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.

Keep reading for free

Create a free CaseChat account to read De Guzman (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] AATA 5097
Decision Date: 7 December 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Skilled Work Regional (Provisional) (Class PS) visa, Subclass 491, for the occupation of Registered Nurse (Nec). The central dispute revolved around whether the applicant had met the requirement for a valid skills assessment at the relevant time stipulated by the migration regulations.

The primary legal issue before the Tribunal was the interpretation of the phrase "at the time of the invitation to apply for the visa" as it pertains to the validity of a skills assessment under clause 491.214 of Schedule 2 to the Migration Regulations 1994. This clause requires that a relevant assessing authority has assessed the applicant's skills as suitable for the nominated occupation, and that this assessment was not for a Subclass 485 visa and had not expired.

The Tribunal reasoned that, by analogy with the decision in *Thapa v MICMSMA* [2021] FCCA 686, the relevant period for satisfying the skills assessment requirement was not merely the date of the invitation itself, but the entire period during which the invitation was valid or open. The applicant had provided two skills assessments from the Australian Nurses and Midwives Accreditation Council (ANMAC). The first, dated April 2018, was found to be expired by the delegate. The second, commencing June 2020, was issued after the invitation date of May 2020 but before its expiry in July 2020. Applying the *Thapa* interpretation, the Tribunal concluded that the second skills assessment was valid for the purposes of clause 491.214.

Consequently, the Tribunal remitted the application for reconsideration, directing that the applicant met the criteria under clause 491.214 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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. SkarosSenior Member

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.