Gulab (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding the refusal to grant a Subclass 190 (Skilled – Nominated) visa to the first applicant, Mr Gulab, and consequently, to the secondary applicants. The core of the dispute revolved around whether Mr Gulab met the specific visa criterion requiring a valid skills assessment at the time of invitation to apply for the visa.

The Tribunal was required to determine if Mr Gulab satisfied clause 190.212(1) of the Migration Regulations 1994. This clause mandates that at the time of invitation, the applicant's skills must have been assessed as suitable by the relevant authority, the assessment must not have been for a Subclass 485 visa, and if a validity period was specified, it must not have expired. If no validity period was specified, no more than three years should have passed since the assessment date.

The Tribunal found that Mr Gulab's skills assessment, provided by the Australian Computer Society on 24 January 2018, had a validity period of two years, meaning it expired on 24 January 2020. As Mr Gulab was invited to apply for the visa on 20 November 2020, his skills assessment had expired. Despite Mr Gulab's submissions regarding COVID-19 pandemic delays and advice received from the Department, the Tribunal concluded that the wording of clause 190.212(1) was strict and that the requirement for a valid skills assessment at the time of invitation was not met. Consequently, the Tribunal affirmed the decision to refuse the visas for both the primary and secondary applicants. The Tribunal also considered a request for referral for ministerial intervention but decided against it, noting that the applicant could make a direct request to the Minister.