Keng (Migration) - [2023] AATA 558

Keng (Migration) [2023] AATA 558 (28 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Lyveng Keng
REPRESENTATIVE:  Mr Xuanyu Ye (MARN: 1687261)
CASE NUMBER:  2109466
HOME AFFAIRS REFERENCE(S):          BCC2020/1290669
MEMBER:R. Skaros
DATE:28 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Skilled - Independent (Permanent) (Class SI) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 visa:
·cl 189.222 of Schedule 2 to the Regulations.

Statement made on 28 February 2023 at 10:30am
CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – Accountant (General) – skills assessment – issued after the date of the invitation to apply for the visa – ‘at the time of invitation’ – period within which the invitation was valid or open – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 189.222
CASES
Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [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 8 July 2021 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visa under s.65 of the Migration Act 1958 (Cth) (the Act). This visa is 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 13 March 2020 and applied on 31 March 2020 nominating the skilled occupation of Accountant (General) (ANZSCO 22111).
The criteria for the grant of a Subclass 189 visa in the Points-tested stream are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate was not satisfied a relevant assessing authority had assessed the applicant’s skills as suitable for the nominated occupation at the time of the invitation to apply for the visa and found that he did not meet cl.189.222 required for the grant of the visa.
The applicant was represented in relation to the review.
In this case, the Tribunal did not consider it necessary to invite the applicant to a hearing as it was able to find in his favour 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, at the time of the invitation to apply for the visa, the applicant had a skills assessment which satisfied the requirements of cl.189.222.
Suitable Skills Assessment
Clause 189.222(1) requires that at the time of invitation to apply for the visa, the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation. For visa applications where the invitation to apply was given on or after 28 October 2013, this assessment cannot be one for a Subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, there are additional requirements relating to the currency of the assessment as at the time of invitation to apply for the visa.
‘Relevant assessing authority’ means a person or body specified by the Minister in an instrument under reg 2.26B of the Regulations (reg 1.03). ‘Skilled occupation’ has the meaning given by reg 1.15I of the Regulations (reg 1.03). An occupation is a skilled occupation if: it is specified by the Minister in an instrument in writing as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation. The relevant instrument for these purposes is LIN 19/051.
If the assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification must have been obtained as a result of studying a registered course: cl 189.222(2). ‘Registered course’ is defined to mean a course of education or training provided by an institution, body or person that is registered, under the Education Services for Overseas Students Act 2000 (Cth), to provide the course to overseas students (reg 1.03). A current list of registered courses appears in the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS).
The applicant was invited to apply for the visa on 13 March 2020, with the invitation being valid until 12 May 2020. He lodged an application for the visa with the Department on 31 March 2020, nominating the skilled occupation of Accountant (General) (ANZSCO 22111). This is a specified skilled occupation in LIN 19/051. Relevantly, this instrument specifies that Chartered Accountants Australia and New Zealand (CAANZ) is a relevant assessing authority for this occupation.
The applicant provided a suitable skills assessment dated 9 May 2016 from CAANZ. However, this was no longer valid at the time of the invitation to apply for the visa and did not meet the requirements of cl.189.222. He also provided to the Department skilled employment assessments issued by CAANZ dated 16 August 2018 and 13 March 2020 respectively. However, these did not indicate that he had been found suitable for the nominated occupation. Finally, the applicant provided a suitable skills assessment issued by CAANZ dated 31 March 2020. As this assessment was issued after the date of the invitation to apply for the visa, the delegate found that this was also insufficient to satisfy the relevant requirements. The delegate concluded the applicant did not meet cl.189.222.
In submissions to the Tribunal the applicant’s representative contended that, in requiring the skills assessment to have been made before the date of the invitation to apply for the visa, the delegate had misconstrued the requirements of cl.189.222 and submitted this interpretation was contrary to the finding of the court in Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 686 (Thapa).
Relevantly, the court in Thapa found that the term “at the time of invitation” in cl.189.222 meant the period within which the invitation was valid or open, not the date the invitation itself was made or given to the applicant. In this case, the invitation was issued on 13 March 2020 and was open until 12 May 2020. The applicant provided a suitable skills assessment for the nominated occupation from the relevant assessing authority which was dated 31 March 2020, and which was valid for a period of three years from that date. The date of the skills assessment falls within the period of the invitation per the interpretation in Thapa. On this basis the Tribunal accepts that the applicant meets the requirements in cl.189.222(1)(a).
The Tribunal further finds that the skills assessment was not for a Subclass 485 (Temporary Graduate Visa), and that the period of validity of the skills assessment had not ended at the time of the invitation to apply for the visa. Accordingly, the requirements of cl.189.222(1)(b) and (c) are satisfied. He is not required to meet cl.189.222(1)(d). The Tribunal is satisfied that the applicant meets cl.189.222(1).
The skills assessment was based on the applicant’s completion of a Master of Professional Accounting (Extended) at the University of Technology Sydney, Australia. In a letter dated 14 July 2014, the education provider stated the applicant undertook this course between July 2012 and July 2014, and information before the Tribunal confirms that he held a student visa during that period. The education provider confirmed that the course was registered on CRICOS. The Tribunal is satisfied that the applicant meets cl.189.222(2).
The Tribunal finds that the applicant satisfies cl.189.222 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.
DECISION
The Tribunal remits the application for a Skilled - Independent (Permanent) (Class SI) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 visa:
·cl 189.222 of Schedule 2 to the Regulations.
R. Skaros
Senior Member