Time of Application? Significance of the Thapa Case: Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 686 (12 April 2021)

In this case, a husband and wife, both citizens of Nepal, applied for permanent residence in Australia. The husband, referred to as “the applicant,” had a background in accounting and was invited to apply for a visa in December 2018. However, his skills assessment had expired by that time, and he obtained a new one in January 2019. Despite this, the application was refused because the new skills assessment was not considered to exist “at the time of the invitation” in December 2018.

The Administrative Appeals Tribunal (Tribunal) affirmed this decision, leading the applicants to seek judicial review. Their main argument was that the Tribunal misinterpreted the relevant regulation by focusing on the date of the invitation rather than the period of invitation validity, which was 60 days.

The court considered the wording of the regulation, which required that certain criteria be met “at the time of invitation to apply for the visa.” The applicants argued that this meant during the 60-day invitation period, while the government argued it referred to the date of the invitation. The court ultimately sided with the applicants, stating that the government’s interpretation would lead to unfairness and that the regulation allowed for the consideration of information up until the decision date. Therefore, the applicants should have been able to provide updated information, such as a new skills assessment, during the 60-day invitation period.

In summary, the court found that the government’s interpretation of the regulation was unreasonable and that the applicants should have been allowed to provide additional information during the 60-day invitation period, which could have included an updated skills assessment.

Written by Ross Ahmadzai

9 Oct, 2023

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