Ding (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a Skilled Independent (Permanent) (Class SI) visa, subclass 189. The applicant's visa application was refused because their skills assessment for the nominated occupation of ICT Business Analyst was issued after the date they received an invitation to apply for the visa. The applicant sought review of this refusal decision.

The central legal issue before the Tribunal was whether the applicant met the requirements of cl.189.222 of the Migration Regulations 1994, specifically whether they possessed a valid skills assessment from the relevant assessing authority at the time of their invitation to apply for the visa. The Tribunal was required to interpret the provisions of Schedule 2 to the Migration Regulations concerning the criteria for a Subclass 189 visa, including the timing of the skills assessment relative to the invitation date.

The Tribunal reasoned that cl.189.222(1) mandates that at the time of invitation, the applicant's skills must have been assessed as suitable by the relevant assessing authority. The applicant's own evidence confirmed that their skills assessment from the Australian Computer Society was issued on 30 November 2017, which was eight days after they were invited to apply for the visa on 22 November 2017. The Tribunal found no discretion to overlook this requirement, and the applicant's misunderstanding of the timing or advice received from the IMMI contact centre did not alter the regulatory obligation.

Consequently, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of a Subclass 189 visa. As this was the only relevant visa subclass in question, the Tribunal affirmed the decision not to grant the applicant the visa.