“At the Time Of Invitation” Redefined

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 invitation period which is the 60 day period from the date of invitation. 

Facts

On 11 December 2018, the applicant was invited to apply for the 189 visa in the occupation of Accountant (General). His application was later refused by Department and affirmed by AAT that his skills assessment issued by Chartered Accountants ANZ was not sufficient. 

That skills assessment was dated 21 September 2015. He then completed another one on 10 January 2019. 

This was appealed to the Federal Circuit Court of Australia in its interpretation of “at the time of invitation”. 

Findings

It was not in dispute that the applicant did not hold a current skills assessment ‘at the time of invitation’. 

The Applicant had applied and obtained the second skills assessment during the ‘invitation period’. That is, within the 60 days after the notification of invitation to apply for the visa. On the basis of Berenguel, the Court adopted the interpretation that the wording “time of invitation” was used rather than “date of invitation”, therefore the skills assessment obtained during the invitation period should be accepted. 

At paragraph 30, the Court specifically commented that clear words would need to be used should the legal regulation be intended to mean the specific date of invitation. 

Conclusion

This court case changes the foundational understanding of most lawyers and agents. It would be interesting to see whether this would be overturned. In the meantime, this case means that you could still apply for the General Skilled Migration visa if your skills assessment has unknowingly expired. 

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