Thapa (Migration) - [2022] AATA 4610

Thapa (Migration) [2022] AATA 4610 (19 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Saugat Thapa
Mrs Shriju Aryal
REPRESENTATIVE:  Mr Hem Raj Bhatta (MARN: 1466471)
CASE NUMBER:  2106327
HOME AFFAIRS REFERENCE(S):          BCC2018/5575132
MEMBER:Wan Shum
DATE:19 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Skilled - Independent (Permanent) (Class SI) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 visa:
·cl 189.222 of Schedule 2 to the Regulations.

Statement made on 19 October 2022 at 4:49pm
CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 – qualification was obtained as a result of studying a registered course – second skills assessment provided – decision under review remitted
LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 2.26B, 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 20 March 2019 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visas 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 first named applicant (the applicant) was invited to apply for the visa on 11 December 2018 and applied for the visa on the same day, nominating the skilled occupation of Accountant (General).
The criteria for the grant of a Subclass 189 visa are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. In the present case, the delegate refused to grant the visas finding that the skills assessment provided did not meet the criteria as set out in cl 189.222.
The applicant sought review of that decision and on 20 November 2019, the Tribunal, differently constituted, affirmed the decision finding that the applicant did not satisfy cl 189.222(1). The applicant applied to the Federal Circuit Court in relation to that decision and on 12 April 2021 the Court determined that the decision of the Tribunal be quashed, and issued a writ of mandamus directing the Tribunal determine the matter according to law.
The applicants were represented in relation to the review. Having regard to the judgment and submissions presented, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.
For the following reasons, the Tribunal has concluded…

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: [2022] AATA 4610
Decision Date: 19 October 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr. Thapa concerning his application for a Skilled Independent (Permanent) visa (Subclass 189). The dispute centred on whether the skills assessments provided by Mr. Thapa met the requirements of clause 189.222 of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant's skills assessment satisfied clause 189.222(1), which mandates that at the time of invitation to apply for the visa, the relevant assessing authority must have assessed the applicant's skills as suitable for their nominated occupation. This assessment must not be for a Subclass 485 visa and must meet currency requirements. Additionally, the Tribunal had to consider clause 189.222(2), which stipulates that if the assessment was based on a qualification obtained in Australia while holding a student visa, that qualification must have resulted from studying a registered course.

The Tribunal reasoned that the applicant's first skills assessment was too old to satisfy the currency requirements of clause 189.222(1)(d). However, the applicant's second skills assessment, dated 10 January 2019, was found to be valid as it fell within the invitation period, which the Federal Circuit Court in *Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs* [2021] FCCA 686 determined to be the period from the invitation date until its expiry. As this assessment was from a relevant authority, was not for a Subclass 485 visa, and was valid at the time of invitation, it met the requirements of clause 189.222(1). Furthermore, the assessment indicated the applicant's Master of Professional Accounting qualification was recognised as comparable to an Australian Bachelor degree, and there was no indication it was based on a non-registered course, thus satisfying clause 189.222(2).

Consequently, the Tribunal found that the applicant satisfied clause 189.222 and remitted the visa application for reconsideration by the Minister, with a direction that the applicant meets this specific criterion.

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 the skills assessments provided by the applicant met the terms of cl 189.222. 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. In addition, this assessment cannot be one for a Subclass 485 (Temporary Graduate) visa and must meet certain requirements in relation to the currency of the assessment. In this case, the currency of the first assessment from the Chartered Accountants Australia and New Zealand was in issue as the assessment outcome was dated by 21 September 2015, and while there was no expiry specified on the assessment, meant that cl 189.222(1)(d) was not satisfied as more than 3 years had passed since the date of the assessment. The later skills assessment, also issued by Chartered Accountants Australia and New Zealand, dated 10 January 2019 was found not to satisfy 189.222(1) as it was issued after the date of the invitation to apply for the visa. However, the Court in Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 686 has determined that the ‘time of invitation’ refers to a period of time from the date of the invitation until the date the invitation expires. In this case, the 60 days invitation period was between 11 December 2018 and 9 February 2019. Therefore, as the second skills assessment was dated 10 January 2019, the Tribunal finds that the assessment came into existence at the ‘time of invitation’. As the applicant’s skills had been assessed as suitable on 10 January 2019 for the applicant’s nominated skilled occupation by a ‘relevant assessing authority’, as Chartered Accountants Australia and New Zealand is a person or body specified by the Minister in the relevant instrument under reg 2.26B of the Regulations (reg 1.03), the requirements of cl 189.222(1)(a) are met. There is no indication on the assessment that it was for a Subclass 485 (Temporary Graduate) visa and cl 189.222(1)(b) is met. In addition, the assessment specified a period of validity of 3 years and, at the time of invitation to apply, that period had not ended. Therefore, the requirement of cl 189.222(1)(c) is met. 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 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) (ESOS Act), to provide the course to overseas students (reg 1.03). The assessment refers to the applicant’s Master of Professional Accounting from King’s Own Institute, Australia and states that it “is recognised by Chartered Accountants Australia and New Zealand… Your educational qualifications have been recognised as being comparable to at least an Australian Bachelor degree for the purpose of awarding points under the General Skilled Migrations points test. Your qualifications are assessed as suitable for migration to Australia under your nominated occupation classification

Decision

Reasons for decision

On the basis of these findings, the applicant satisfies cl 189.222 and the appropriate course is to remit the visa application to the Minister to consider the applicants against the remaining criteria.decision The Tribunal remits the applications for Skilled - Independent (Permanent) (Class SI) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 visa:· cl 189.222 of Schedule 2 to the Regulations.Wan ShumMember

Ratio Decidendi

Legal Principle Established

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