De Guzman (Migration)

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.