Can I apply for visa if my skill assessment expired? This is the question we usually get from our clients.
To obtain a Permanent Resident visa in Australia through the General Skilled Migration program, the visa applicant must have a suitable skills assessment that is still valid “at the time of invitation to apply for visa”.
The following are visas that require a valid skills assessment for a successful PR visa application outcome:
How long is Skill Assessment valid for?
- If the validity period or expiry date is printed on the Skills Assessment, it will be valid until the date specified on the Skills Assessment, provided the date did not exceed 3 years from the Skills Assessment first issue date.
- If the validity period or expiry date is not printed on the Skills Assessment, it will be valid for 3 years from the Skills Assessment first issue date.
Can I apply for visa if my Skills Assessment has expired “at the time of invitation to apply for visa”?
Prior to the Federal Circuit Court of Australia judgement in the case of Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 686, most of us including, the legal professionals, the migration agents and the visa assessment delegate will say that’s not possible. This is because most of us interpreted the term “at the time of invitation to apply for visa” as “at the date of invitation to apply for visa”.
In the 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.
By adopting the court’s interpretation of the wording “at the time of invitation”, the following is one of the scenarios that you can be granted a visa even though your Skills Assessment has expired at the date of being invited to apply for the visa as long as the judgement is not overturned:
- You were invited to apply for a Subclass 491 visa on 01 Jun 2021 and you have 60 calendar days from 01 Jun 2021 to apply for your visa. In another word, you have until 31 Jul 2021 to submit the visa application. On 01 Jun 2021, you held a Skills Assessment that has expired since 16 Apr 2021. After receiving the invitation, you then applied for a new Skills Assessment and successfully obtained a new Skills Assessment on 25 Jul 2021 and then submitted your visa application before 31 Jul 2021.
Case Summary of Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 686
- On 11 Dec 2018, the primary applicant was invited to apply for Subclass 189 Skilled Independent Visa in the Points Tested Stream;
- The invitation was valid for 60 days and expired on 09 Feb 2019;
- At the date of invitation on 11 December 2018, the Skills Assessment of the primary applicant issued on 21 September 2015 has expired since 21 September 2018;
- The primary applicant applied for a new Skills Assessment and received an outcome for this new Skills Assessment on 10 January 2019;
- The applicants then lodged a Subclass 189 Skilled Independent Visa;
- On 20 March 2019, the Subclass 189 visa application was refused on the basis that the 2015 Skills Assessment was no longer valid “at the time of invitation” and the 2019 Skills Assessment was issued “after the date the applicant was invited to apply for the visa”;
- The applicants then requested for merits review at the Administrative Appeals Tribunal (AAT);
- The AAT affirmed the decision not to grant the visa;
- The applicants then sought judicial review of the AAT decision at the Federal Circuit Court of Australia;
- On the basis of Berenguel v Minister for Immigration and Citizenship [2010] HCA 8, the Court adopted the interpretation that the wording “time of invitation” was used rather than “date of invitation”, therefore the Skills Assessment obtained during the 60-day invitation period should be accepted.
- The court ordered the AAT decision to be quashed;
- The court ordered The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to pay the applicants AUD7,467 for the legal costs.
Skills Assessment Expired? Not Sure What To Do?
Worry not! Book a consultation with Ausdirect Migration today. Rest assured, we will assist you in navigating every step of the process during your migration journey.
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