On initial glance, the Regulations seem to make it clear that at the time of invitation a Skills Assessment must be valid. This is because many interpret the term “at the time of invitation to apply for visa” as “at the date of invitation to apply for visa”.
(1) At the time of invitation to apply for the visa:
- “the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation”
In the relatively recent case of Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 686, Judge Humpreys adopted the interpretation that the wording “the time of invitation” shall be the period of validity of the invitation to apply for the visa, which is 60 calendar days from the date of an invitation letter issued through SkillSelect.
As long as the judgement is not overturned, by adopting the court’s interpretation of the wording “at the time of invitation”, the following is one scenario where you can be granted a visa even though your Skills Assessment has expired at the date of being invited:
You were invited to apply for a Subclass 491 visa on 01 June 2021. You therefore have 60 calendar days from 01 June 2021 to apply for your visa, meaning you have until 31 July 2021 to submit the visa application. On 01 June 2021, you held a Skills Assessment that has expired since 16 April 2021. After receiving the invitation, you then applied for a new Skills Assessment and successfully obtained a new Skills Assessment on 25 July 2021 and then submitted your visa application before 31 July 2021.
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Footnotes available upon request.
Written by Oguzhan Sheriff
Managing Director at RSG Lawyers and Associates
Email: oguzhan@rsglaw.com.au
Ph: (03) 9350 4440
