Since the increase of the 2022-2023 Migration Program planning level, many applicants unexpectedly receive an invitation to apply for a general skilled migration visa such as a subclass 189 or 190 visa. Whilst this is good news, many applicants were not ready to submit the visa application because their skills assessment has expired at the time of the invitation. This has led to many issues and affected many people’s eligibility to apply for the visa.
In the case of Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 686, the Federal Circuit Court preferred the interpretation of ‘at the time of invitation’ to include the entire invitation period, which is the 60-day period from the date of invitation.
RELEVANT FACTS
The applicant in the case was invited to apply for a subclass 189 visa on 11 December 2018. The visa application was subsequently refused by the Department of Home Affairs because the skills assessment submitted was not satisfactory. The Administrative Appeals Tribunal (AAT) affirmed this refusal decision.
The skills assessment result in question was dated 21 September 2015. The applicant did, however, obtain a new skills assessment on 10 January 2019.
FINDINGS OF THE COURT
The Court preferred the interpretation of the wording ‘at the time of invitation’ to also include the 60-day period after the notification of the invitation to apply for the visa. On the basis of the case of Berenguel, this is contrasted with the wording of ‘date of invitation’, which was not used in the legislation.
IMPLICATIONS
This case would affect many applicants who received an invitation to apply for the General Skilled Migration visa but whose skills assessment has expired. If you feel that you are affected by the decision in Thapa, contact our office to discuss it.
