Jack is a lawyer registered with the High Court of Australia, holding a Bachelor of Laws from the University of New England and a Master of Migration Law from the Australian National University. Before becoming a registered migration agent, he was an electrical engineer with a Master of Engineering from the University of Sydney.He specialises in employer-sponsored migration, family-sponsored migration, skilled migration, business and investor migration, AAT appeals, and Federal Court appeals.Drawing on engineering logic and the legal analytical skills developed at law school, as well as strong professional drafting ability, Jack excels at finding creative solutions for his clients.

He says:“A migration or visa case may be just another job for me, but for a client it can be a life-changing moment.”He therefore puts clients’ interests first at all times, delivering the most efficient and cost-effective migration solutions.

Let’s start by looking at the relevant provisions of the Migration Act.

Section 55 of the Migration Act 1958 expressly states that an applicant may provide additional material to support a visa application before the Minister makes a decision.

This broad section underpins the entire argument that follows.

Next, let’s look at the more specific provisions for Subclass 189.

Clause 189.2 states thatall requirements of Subclass 189 must be satisfied before the Department of Home Affairsmakes a decision on the visa—at the time of decision — not. Hereit is not the case that all requirements must be met at the time of lodgement (time of application)must be fully satisfied.

This Clause is the second key foundation.

Looking further down to the most relevant clause:

We note that clause 189.222 uses the wording at the time of invitation to apply for the visa. The same clause also includes the phrase date of assessment.

This means the Migration Acttreats time and date as distinct concepts.

Specifically, time can refer to a period or span of days, while date refers to a specific calendar day.

We know that after a Subclass 189 applicant receives an invitation, they have 60 days to lodge their visa application.

Those 60 days,in the Federal Court case Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 686 were expressly held to fall within the time frame of at the time of invitation.

The facts of that case are as follows:

The applicant, an accountant, and his spouse were from Nepal. They received an invitation on 11 December 2018 (as shown below).

His original skills assessment had been completed in 2015 and had already expired by the time the invitation was received. A new skills assessment was obtained approximately one month after the invitation (as shown below).

The Department of Home Affairs refused their application on the grounds that a valid skills assessment was not held at the time of invitation. The applicants appealed to the AAT and were again refused.Undeterred, the applicants continued their appeal to the Federal Circuit Court of Australia (FCC).

The FCC’s final record is brief (as shown below),with the judge finding that the phrase “at the time of invitation” in the invitation letter should be interpreted as encompassing the entire validity period of the invitation,not merely the day on which the invitation was issued.The judge therefore found that the Department’s determination was not reasonable,and ordered the Department to grant the visa to the applicant.

The judge’s relevant Reasoning is as follows:

We recommend a dual-track approach.

Applicants with an expired skills assessment or English testshould, within the 60-day window, resit the English test and have the skills assessment reviewed — give it a try, do not miss this rare invitation opportunity. (This does not affect your ability to resubmit an EOI and receive a future invitation.)

While a visa officer still has their own discretion, different officers weigh things differently.With a professionally prepared submission letter that cites the relevant legislation and case law with clear reasoning, we hope to help applicants successfully persuade a visa officer and obtain the visa.

I have also put together a handy reference table on the expiry dates of various documents relevant to skilled PR applications, to help you check your own situation.

After all, the safest approach is to proactively check whether your documents are approaching expiry and act early when something needs to be renewed,because many documents — such as PTE scores, NAATI recertification, and some skills assessments — cannot necessarily be obtained within 60 days. You cannot rely on every outcome falling in your favour.

Prepare your documents early so you are ready to seize the opportunity when it comes.

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