Thapa v MICMSMA

The applicant sought judicial review of a decision made by the Administrative Appeals Tribunal. The dispute concerned the validity of the applicant's skills assessments in relation to his application for a Subclass 189 visa. The applicant had obtained two skills assessments for his nominated occupation of Accountant (General). The first, dated 21 September 2015, was found by the Tribunal to have expired on 21 September 2018, prior to the invitation to apply for the visa on 11 December 2018. The second skills assessment, dated 10 January 2019, was found by the Tribunal not to be "available" at the time of the invitation.

The primary legal issue before the court was whether the Tribunal had erred in its interpretation and application of clause 189.222(1)(a) of the Migration Regulations 1994. Specifically, the applicant argued that the Tribunal had misconstrued the phrase "at the time of invitation to apply for the visa" to mean the date the invitation was issued (11 December 2018), rather than the period within which the invitation was valid and open for application. The applicant contended that his second skills assessment, obtained during the 60-day invitation period, should have satisfied the requirement.

Humphreys J considered the applicant's grounds of judicial review, which alleged jurisdictional error due to the Tribunal's misinterpretation of the relevant regulation. The applicant relied on the fact that the invitation to apply was valid for 60 days, from 11 December 2018 until 9 February 2019, and that his second skills assessment was obtained and submitted within this period. The Tribunal's finding that the second skills assessment was not "available" at the time of the invitation was central to its decision. The court was required to determine whether the phrase "at the time of invitation to apply" referred to the specific date of the invitation or the entire period of validity of that invitation.