Thapa v MICMSMA

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FEDERAL CIRCUIT COURT OF AUSTRALIA

Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 686

File number(s): SYG 3328 of 2019
Judgment of: JUDGE HUMPHREYS
Date of judgment: 12 April 2021
Catchwords: MIGRATION – Administrative Appeals Tribunal – subclass 189 (Points Tested Stream) visa – whether the Tribunal fell into jurisdictional error in misconstruing and misapplying cl 189.222(1) of the Migration Regulations 1994 by wrongly interpreting the expression “at the time of invitation to apply for the visa” – jurisdictional error made out – the application is upheld.
Legislation:

Migration Act 1958 (Cth), ss 55, 495A.

Migration Regulations 1994 (Cth), cll 189.1, 189.2, 189.221, 189.222, 189.223.
Cases cited:

Berenguel v Minister for Immigration and Citizenship [2010] HCA 8.

Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; 162 CLR 24.

Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32.
Number of paragraphs: 31
Date of last submission/s: 1 April 2021
Date of hearing: 1 April 2021
Place: Parramatta
Counsel for the Applicant: Mr Gormly
Counsel for the Respondents: Mr Bevan

ORDERS

SYG 3328 of 2019
BETWEEN:

SAUGAT THAPA

First Applicant

SHRIJU ARYAL

Second Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE HUMPHREYS

DATE OF ORDER:

12 APRIL 2021

THE COURT ORDERS THAT:

1.The application is upheld.

2.An order that the decision of the Administrative Appeals Tribunal be quashed.

3.A writ of mandamus directed to the Administrative Appeals Tribunal requiring it to determine the applicant’s application according to law.

4.The first respondent is to pay the first and second applicant’s costs fixed in the amount of $7,467.00.

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

  1. The applicants are husband and wife. Both are citizens of Nepal. The first applicant (“the applicant”) sought permanent residence in Australia to practice as an accountant, having obtained a Masters degree in Professional Accounting in Australia in March of 2015. In addition, the applicant holds a Masters of Business Administration obtained from Kathmandu University.

  2. By way of letter, dated 11 December 2018, the then Minister for Home affairs invited the applicant to apply for a subclass 189 (Points Tested Stream) visa (“189 visa”) for the nominated occupation of Accountant (General).

  3. That invitation was valid for 60 days after the date of the letter and expired on 9 February 2019.

  4. On 12 March 2019, after the expiry of the invitation, a Departmental officer told the applicant’s Migration Agent that the skills assessment which had been provided by Chartered Accountants Australia and New Zealand to support the applicant’s application, was not sufficient. The applicant determined not to withdraw the application.

  5. On 20 March 2019, a delegate of the Minister for Home Affairs (“the delegate”) decided to refuse the application for a 189 visa on the basis of the lack of a valid Skills Assessment that met the requirements of Schedule 2 of cl 189.222 of the Migration Regulations 1994 (Cth) (“the Regulations”) as…

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Details
Case
[2021] FCCA 686
Decision Date

CaseChat Overview and Summary

The applicant sought judicial review of a decision made by the Administrative Appeals Tribunal. The dispute concerned the validity of the applicant's skills assessments in relation to his application for a Subclass 189 visa. The applicant had obtained two skills assessments for his nominated occupation of Accountant (General). The first, dated 21 September 2015, was found by the Tribunal to have expired on 21 September 2018, prior to the invitation to apply for the visa on 11 December 2018. The second skills assessment, dated 10 January 2019, was found by the Tribunal not to be "available" at the time of the invitation.

The primary legal issue before the court was whether the Tribunal had erred in its interpretation and application of clause 189.222(1)(a) of the Migration Regulations 1994. Specifically, the applicant argued that the Tribunal had misconstrued the phrase "at the time of invitation to apply for the visa" to mean the date the invitation was issued (11 December 2018), rather than the period within which the invitation was valid and open for application. The applicant contended that his second skills assessment, obtained during the 60-day invitation period, should have satisfied the requirement.

Humphreys J considered the applicant's grounds of judicial review, which alleged jurisdictional error due to the Tribunal's misinterpretation of the relevant regulation. The applicant relied on the fact that the invitation to apply was valid for 60 days, from 11 December 2018 until 9 February 2019, and that his second skills assessment was obtained and submitted within this period. The Tribunal's finding that the second skills assessment was not "available" at the time of the invitation was central to its decision. The court was required to determine whether the phrase "at the time of invitation to apply" referred to the specific date of the invitation or the entire period of validity of that invitation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant’s now seek judicial review of the Tribunal decision.THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION The Tribunal’s decision is relatively short. At paragraph 13 of its decision, the Tribunal acknowledged that the applicant had two skills assessments, both of which found him suitable for his nominated skilled occupation of Accountant (General). The first skills assessment was dated 21 September 2015. The second was dated 10 January 2019. At paragraph 14 of its decision, the Tribunal found that there was no expiry date of validity of the first skills assessment dated 21 September 2015. The Tribunal then applied cl 189.222(d) of the Regulations to the assessment, finding that three years applied. It therefore expired on 21 September 2018. The Tribunal then found that it did not satisfy the criteria to be valid as at the time of the invitation of 11 December 2018. At paragraph 15 of its decision, the Tribunal found the second skills assessment, which was dated 10 January 2019, although it found the applicant suitable for the nominated skilled occupation, it was not “available” as at the time of the invitation of 11 December 2018. The Tribunal noted the applicant relied upon Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (“Waensila”) and Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 (“Berenguel”). The Tribunal found that Berenguel has not been applied in this context. The Tribunal found that the skills assessment did not satisfy the criteria of “at the time of the invitation to apply” and the relevant skills assessment must exist at the time of the invitation to apply, being 11 December 2018.GROUNDS OF JUDICIAL REVIEW The grounds of judicial review now relied upon are set out in an Amended Initiating Application filed with the Court on 17 November 2020. They are as follows:Ground oneThe decision of the second respondent Tribunal was affected by jurisdictional error in that the Tribunal misconstrued and misapplied cl 189.222(1) of the Migration Regulations 1994 by wrongly interpreting the expression “at the time of invitation to apply for the visa” to mean the date the Minister issued the invitation rather than the period within which the invitation was valid and/or open.Particulars•It was a primary criterion under cl 189.221 for the grant of a Subclass 189 visa that “The applicant was invited, in writing, by the Minister to apply for the visa”.•Under the power provided by s 495A of the Migration Act 1958, the first respondent Minister used a computer program to invite the first applicant to apply for a Subclass 189 visa for the occupation of Accountant (General) – (the SkillSelect invitation). •The SkillSelect invitation was dated 11 December 2018 and was expressed to be valid for 60 calendar days “from the date of this letter” (the invitation period). The invitation said that “It enables you to satisfy one of the requirements for making a valid application for a 189 (PTS) visa provided the application is lodged on or before 09 Feb 2019”(original emphasis).•It was a primary criterion under cl 189.222(1)(a) for the grant of the subclass 189 visa that: •“At the time of invitation to apply for this visa:•the relevant assessing authority has assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation…”…•During the invitation period the first applicant obtained and submitted a further skills assessment from Chartered Accountants (CA) as the first skills assessment from CA he had declared in his original Expression of Interest (“EOI”) was over three years old by the time the invitation period commenced.•The Tribunal misconstrued “at time of invitation to apply for the visa” in cl 189.222(1)(a) to mean the date of the commencement of the invitation period, ie 11 December 2018, and accordingly wrongly found that the skills assessment requirement under cl 189.221(1)(a) was not met as the second CA skills assessment did not exist on 11 December 2018.•As a result of this misinterpretation the Tribunal found the first applicant did not satisfy cl 189.222(1) and accordingly refused to grant the applicant’s visas.•Had the Tribunal correctly construed cl 189.222(1)(a) it would have accepted the second CA skills assessment satisfied that clause as that assessment came into existence during the invitation period, ie between 11 December 2018 and 9 February 2019.CONSIDERATION

Ratio Decidendi

Legal Principle Established

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