To get straight to the point, 189 invitations have finally been issued recently — cause for widespread celebration.
For a summary of the invitation round, see: 189 Sudden Invitation Downpour — Scores for Several Occupations Dropped Sharply!
But when delighted applicants discovered that their skills assessment and English test had expired, they were completely stunned — feeling that after finally securing an invitation, it was now beyond saving. They might miss this opportunity, with no way of knowing when independent skilled migration would come around again.
Don’t panic — this article explains in depth why it may still be worth trying.
Relevant Provisions of Migration Law
Let’s first look at the relevant provisions of migration law.
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Section 55 of the Migration Act 1958 clearly provides that, before the Minister makes a decision, the applicant may provide further material in support of the visa application.
This broad Section lays the groundwork for everything that follows.
Now let’s look at the more specific provisions for the 189 visa.
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Clause 189.2 states that all the requirements for the 189 visa must be met by the Department of Home Affairs at the time of decision — that is, before a decision on the visa is made. This does not mean they must all be satisfied at the time of application.
This Clause is the second major foundation.
Moving further down to the most directly relevant provision:
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Note that clause 189.222 uses the wording “at the time of invitation to apply for the visa”. Within the same clause, the term “date of assessment” also appears.
The implication is that migration law treats “time” and “date” as distinct concepts.
Specifically, “time” can refer to a period or window of days, whereas “date” refers to a single specific day.
The Federal Court Case
As we know, once an applicant receives a 189 invitation, they have 60 days in which to lodge the visa application.
And this 60-day window was in the Federal Court case Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 686 expressly held to fall within the timeframe of “at the time of invitation”.
The details of this case are as follows:
The applicant, an accounting professional, together with his spouse, is from Nepal. He received his invitation on 11 December 2018 (see image below).
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His original skills assessment had been done in 2015 and had already expired by the time he received the invitation. His new skills assessment was only obtained about a month after the invitation (see image below).
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The Department of Home Affairs refused the application on the basis that he did not hold a valid skills assessment at the time of invitation. The applicant appealed to the AAT and was refused again. Undeterred, he appealed further to the Federal Circuit Court of Australia (FCC).
The FCC’s final record of judgment is brief (see image below). The judge held that “at the time of invitation” on the invitation letter should be interpreted as covering the entire validity period of the invitation, rather than being limited to the day the invitation was issued. On that basis, the judge held that the Department’s finding was unreasonable and ordered that the visa be granted to this applicant.
The judge’s reasoning is set out below:
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We recently dealt with a similar case, in which the applicant’s visa was refused. We then sought the opinion of a barrister, whose response is set out below:
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It can be seen that, when a case officer makes a similar decision without following the law already confirmed by the courts — however absurd that may be, and however likely it is to be overturned on appeal — it is nevertheless within the decision-maker’s own discretion.
Our recommendation: pursue a two-track approach.
We recommend proceeding on two tracks.
Applicants whose skills assessment and English are expired should, within the 60-day window, re-sit the English test and request a review of their skills assessment, and give the application a try — don’t pass up this hard-won invitation. (This does not prevent you from lodging a fresh EOI and waiting for the next round.)
Although the case officer still has discretion, each case officer weighs matters differently. With a professional Submission Letter from us, citing the relevant legislation and case law with clear reasoning, we aim to help applicants persuade the case officer and secure the visa.
Be prepared in advance: check the expiry dates of your documents.
For the validity periods of the various documents required for skilled PR applications, I’ve put together a short table to help you check your own situation.
The safest approach is still to keep an eye on when your own documents are about to expire and act early to renew them. Many documents — PTE, NAATI recertification, some skills assessments and the like — cannot necessarily be produced within 60 days, and you can’t assume every outcome will fall your way.
In the new financial year, both the 189 and state sponsorship programs have more places, and skilled migration is experiencing a broad-based recovery.
The Prime Minister said this week that, at next week’s Thursday and Friday Jobs Summit, consideration will also be given to making it easier for temporary skilled migrants to transition to PR, as part of the federal government’s plan to address labour shortages.
Although the migration program has been running for many years, Australia still lacks skilled labour in occupations such as chefs. The difficulty of moving from permanent and temporary migration categories to permanent residency has been one of the reasons for labour shortages in a number of important industries over the years.
“Why are we still emphasising temporary employment? One thing I’ve often talked about is the importance of permanent employment — giving people a stake in this country. If we bring people here, giving them that opportunity to stay is also something that should be looked at.”
