What is Thapa v Minister for Immigration [2021] FCCA 686 ?

Background

Skills assessment validity periods are calculated as follows:

• If no validity period is shown on a skills assessment, the assessment is valid for 3 years from date of issue,
• If the validity period shown on a skills assessment is less than 3 years, the assessment is valid for the period stated on the assessment,
• If the validity period shown on a skills assessment is more than 3 years, the assessment is valid for three years from date of assessment.

What happened in Thapa v Minister for Immigration [2021] FCCA 686 ?

• Applicant had a nominated occupation of Accountant (General) for subclass 189.
• On 11 December 2018, the applicant received an invitation from DHA to apply for the 189 visa.
• The application had a skills assessment dated 21 September 2015, which had expired as at 11 December 2018.
• Applicant completed another skill assessment on 10 January 2019, which is within 60 days of the 11 December 2018 invitation date.
• The visa application was refused by DHA on the basis that the applicant's skills assessment had expired at the time of the invitation, assumed to be 11 December 2018 in this context.
• The refusal decision was affirmed by the Administrative Appeals Tribunal (AAT).
• Applicant appealed to the Federal Circuit Court of Australia disputing the interpretation of the phrase at the time of invitation.

What did the court find ?

In the case of Thapa v Minister for Immigration [2021] FCCA 686, the Federal Circuit Court preferred the interpretation of at the time of invitation to include the entire 60 day period invitation period starting from the date of invitation.

• The court did not dispute that the applicant did not hold a current skills assessment at the time of invitation.
• Applicant had applied and obtained the second skills assessment during the invitation period i.e. within the 60 days after the notification of invitation to apply for the visa.
• The Court adopted the interpretation that the wording time of invitation was used rather than date of invitation, therefore the second skills assessment obtained during the 60 day invitation period should be accepted.
• The Court specifically commented that clearer words would need to be used should the legal regulation be intended to mean the specific date of invitation.

Conclusion

This case would affect many applicants who received an invitation to apply for the General Skilled Migration visa but whose skills assessment has expired. The ruling in this case means that you can still apply for a General Skilled Migration visa if your skills assessment has expired at the date of the invitation, as long as you are able to provide a valid skill assessment at any time within the 60 day invitation period.