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…

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: [2023] AATA 558
Decision Date: 28 February 2023

CaseChat Overview and Summary

This matter concerned an application for a Skilled Independent (Permanent) (Class SI) visa, Subclass 189, by an applicant who nominated the occupation of Accountant (General). The applicant was invited to apply for the visa on 13 March 2020. The delegate of the Minister refused the visa application on the basis that the applicant did not satisfy clause 189.222 of Schedule 2 to the Migration Regulations 1994, which requires a suitable skills assessment from the relevant assessing authority at the time of invitation to apply for the visa. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant possessed a skills assessment that satisfied the requirements of clause 189.222 at the time of the invitation to apply for the visa. This clause mandates that for invitations issued on or after 1 July 2014, the skills assessment must be current and valid at the time of invitation. The Tribunal was required to determine if the skills assessments provided by the applicant, specifically those from Chartered Accountants Australia and New Zealand (CAANZ), met this temporal requirement.

The Tribunal reasoned that while the applicant had provided several assessments from CAANZ, including one dated 31 March 2020, this assessment was issued after the invitation date of 13 March 2020 and was therefore insufficient. However, the Tribunal also noted that the applicant had provided a skills assessment dated 9 May 2016, which was no longer valid at the time of invitation, and employment assessments that did not confirm suitability for the nominated occupation. Despite these findings, the Tribunal concluded that the applicant did satisfy clause 189.222.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant meets the criteria under clause 189.222 of Schedule 2 to the Regulations. The Minister was to then consider the remaining criteria for the Subclass 189 visa.

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 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.

Decision

Reasons for decision

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. SkarosSenior Member

Ratio Decidendi

Legal Principle Established

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