Visa Law

Four months seems quite a conservative estimate. There is no way to be 100% sure, as there is always the theoretical possibility that 500 accountants with 65 points will all lodge EOIs today and make the 'queue' longer than it currently is. However, the results for the round of invitations made on 8 September 2014 are likely to be a good guide: http://www.immi.gov.au/Work/Pages/SkillSelect/results/8-september-2014.aspx The results tell you that accountants with 60 points who had made an EOI on or earlier than 14/08/2014 at 11:53 pm received an invitation in that round. This suggests that if you lodge an EOI today you probably won't get an invitation at the next round of invitations (13 October 2014), but you may get an invitation the round after that (27 October 2014), and you are very likely to get an invitation in the next round again (10 November 2014).

The main advantage of lodging onshore is that the decision can be reviewed by the Migration Review Tribunal (MRT) if your application is refused. The MRT stands in the shoes of the case officer and looks at the merits of your application afresh. If you lodge offshore you won't have access to merits review and your ability to challenge a refusal will be limited to fairly technical legal grounds that you would have to argue in a court. This may be a moot point if you clearly satisfy all of the criteria, but nonetheless worth bearing in mind. If you come to Australia on an ETA (with a genuine intention to stay temporarily) and later decide to make a 189 application onshore, then you should be granted a bridging visa A with work rights when you make the application. This would come into effect three months after you arrive in Australia - when your first travel period expires - and would allow you to remain lawfully while the 189 application is processed. This means that if there is any delay in processing, including if your application is refused and you need to apply to the MRT, your time without the ability to work will be 'capped' to those three months (provided you don't leave the country and re-activate your ETA). Skills assessments are a lot faster for accountants than engineers going through Engineers Australia, particularly if you pay for 'fast-tracking'. You have a choice of three assessing authorities - CA, CPA and IPA: http://www.charteredaccountants.com.au/The-Institute/Migration-assessment.aspx http://www.cpaaustralia.com.au/become-a-cpa/migration-assessment http://www.publicaccountants.org.au/about-us/immigration

I can't see anything in the regulations or written policy that rules out counting distance education per se. However, as a matter of practice the case officer may be more likely to have doubts about a distance learning qualification. Jupiter's suggestion to have your degree assessed by VETASSESS is a very good idea. If the advice from VETASSESS is positive, this will be highly persuasive, and you may not need to do anything more than this. If not, this is not necessarily the end of the matter, but it will make things difficult. In the absence of positive VETASSESS points test advice, there are a few additional matters to consider. Any material from Madras University that establishes the standard duration of the degree, such as a detailed course plan, will be very important. If the standard course duration is less than three years of full-time study or part-time equivalent, then your degree will not meet the definition of 'bachelor degree' under reg 2.26AC: http://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/s2.26ac.html The case officer must also consider 'other relevant factors'. This can include a wide range of information sources, but written policy explicitly allows case officers to consider 'Country Education Profiles'. See: https://aei.gov.au/Services-And-Resources/Services/Country-Education-Profiles/about-cep/Pages/default.aspx If the VETASSESS advice is not positive, you might consider looking at the CEP for India (it costs $50 including GST) so you can see what conclusions the case officer might draw about your course from this source. We have never subscribed to the profile for India (I would have a look for you otherwise) so I cannot say whether it will contain anything directly relevant to your case. You should just be aware that in the absence of positive points advice from VETASSESS or persuasive material from the course provider itself, the case officer may rely on the CEP.

There is further information on BVBs and how to apply on the DIBP website: http://www.immi.gov.au/visas/Pages/020.aspx

You can make an onshore application for a 187 while holding a bridging visa A, B or C, provided that you are not prevented from making an application by section 48 of the Migration Act. The reason you cannot make an onshore application in these specific circumstances is the combined effect of a) not holding a "substantive visa" (a visa other than a bridging visa) and b) the refusal of the 457. You are what is commonly referred to as "section 48 barred" from making a further onshore application for any visa other than a partner visa or protection visa. This distinction is important, particularly if parts of this thread are read out of context by other users - if you held a bridging visa A (BVA) but had not had a refusal or cancellation then an onshore application would be possible. It is possible to leave and make an offshore application for a 187 and then come back onshore - provided you are able to obtain a bridging visa B (BVB). However, you should carefully consider the reasons for the refusal of the 457 in the first place. If they relate to the suitability of your training and/or experience, these issues will inevitably arise again with a 187 application and you may be wasting the (at least) $3520 application fee. If you leave without a BVB, you will have no visa to come back on. Unfortunately, there is no guarantee of being granted a BVB. You need to have "substantial reasons" for travel. This provision may be interpreted more strictly if you are awaiting merits review (i.e. the MRT) than if you are waiting for a Departmental level decision. Wanting to make an offshore application for another visa in order to get around section 48 is unlikely to be seen as "substantial" by itself.

From what you have said, the most appropriate way to stay in Australia long-term may be to seek a position with an Australian employer in NSW, who then MAY be able to sponsor/nominate you for a 457/186 visa (or 187 in a regional area) provided they meet all the criteria to become a sponsor and/or nominate you and you meet the criteria for the relevant subclass. Assuming you aren't in Australia yet, a working holiday or ETA may be the only way of getting here in the first place, as it may be difficult to secure a position from offshore. If you are unable to obtain a position but you are willing to consider moving to NT or SA (and you satisfy all of the criteria set by that territory/state, as well as the General Skilled Migration criteria), then state nomination MAY be an option. You need to genuinely intend to move to the nominating state or territory. However if your plans change and you end up moving - for example from SA to NSW - before your commitment to SA is complete, there does not appear to be any obvious legal mechanism for the Department of Immigration to cancel a subclass 190 visa (the permanent state-nominated subclass) or for the relevant state to otherwise "punish" you for breaching your commitment. Most states are "wise" to the potential abuse of the state nomination process - for example SA makes applicants go to some trouble to prove that they have researched the state and have a genuine preference for SA over other states. However, I have not heard of a 190 visa being cancelled on the basis that the visa holder failed to settle in the nominating state. I would be interested to know if anyone has experience or heard of this happening - and on what basis this was done (or attempted) by the Department.

The relevant part of the legal test is outlined in s 137Q(2)(b) of the Migration Act, which allows the Department (DIBP) to cancel the visa if: ... the person does not satisfy the Minister that he or she has made a genuine effort to be engaged in that employment for the required employment period. The required period is two years. Given the short space of time between visa grant and termination of employment, a case officer might infer that you contrived your own dismissal and therefore failed to make a "genuine effort". As far as I am aware, RSMS cancellations are not all that common. I have dealt with one matter in which the visa holder was sacked two weeks after visa grant, and we managed to avoid cancellation by showing that he had made a genuine effort. (In spite of his efforts he was, unfortunately, poorly equipped by his Australian study to perform his job adequately - and DIBP accepted this.) It is worth bearing in mind the following extract from policy: A visa holder is unlikely to be assessed as failing to have made a genuine effort where the failure to commence or complete the two year employment period was because of a situation beyond the visa holder's control. Examples include: *the position was not filled or did not remain viable due to a serious downturn in business activity or *financial loss, bankruptcy or closure of the business. If you have evidence that your termination was a direct result of a downturn in business - e.g. a glowing reference admitting that you were let go for that reason - then this will be helpful. The fact that you worked for them for almost three years is also inconsistent with an "RSMS scam" - the circumstances would be far more suspicious if you had no real history with the employer. If your employer suffered a genuine downturn in business, this should not be difficult to prove by reference to profit and loss statements covering, say, the 11-12, 12-13 and 13-14 financial years. However, they would need to be willing to give you (or your lawyer - they can provide it on condition that you don't see it) copies of these or other relevant financial documents. While moving out of a regional area does not appear to be legally relevant per se, if you headed for the nearest major city the day after employment was terminated, this would arguably be more consistent with you having contrived your own dismissal. On the other hand, your claim to have made a genuine effort is probably more likely to be seen as credible if you try and remain in the same regional area and industry. One other thing to bear in mind is whether or not it will actually come to DIBP's attention. The above client's visa was only cancelled when his employer nominated another employee for the same position, alerting DIBP to the termination of his employment. I am not sure that data matching between the ATO and DIBP is likely to trigger an "alarm" upon termination. There does not appear to be a positive legal obligation to inform the Department of the end of the employment relationship, and it is not a foregone conclusion that cancellation will be considered. You should ensure that DIBP has your current address so that if they receive information from another source and consider cancellation, you will receive the notice of intention to consider cancellation in time to do something about it. If you decide NOT to disclose the termination, you may want to consider "protecting" your right to stay in Australia permanently by a) applying for citizenship as soon as possible (basically the first date after 7 July 2015 when you can satisfy the four-year residence test); and b) not leaving Australia until your citizenship is granted (if you are onshore if/when the visa is cancelled, you can apply to the MRT to have the decision reviewed). However, you may decide that you prefer to deal with the issue pre-emptively and tell DIBP of your own volition. If you move to a major city, it may also be difficult to keep DIBP aware of your address without effectively admitting that you no longer work in a regional area.