Chopra (Migration)

[2020] AATA 2461

Chopra (Migration) [2020] AATA 2461 (6 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Janesh Chopra

CASE NUMBER:  1707328

DIBP REFERENCE(S):  BCC2017/274482

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         6 February 2020 at 11:59 am (VIC time)

DATE OF WRITTEN RECORD:                18 March 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 18 March 2020 at 4:46pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post-Study Work stream – Australian study requirement not met – course was completed more than 6 months before the application was made –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.231

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 March 2017 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (the Act).

2. At the hearing on 6 February 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. To be eligible for the grant of a 485 post-study work visa, an applicant must satisfy a range of requirements set out in the Regulations. You applied for a 485 Temporary Graduate Post-Study Work visa on 20 January 2017.  Your application was refused on 21 March 2017 because the delegate found you did not satisfy clause 485.231 which says that to qualify for a 485 post-study work visa an applicant must hold a qualification or qualifications from the list specified and the study involved has been undertaken in the period of six months immediately before the day the application was made.  The acceptable qualifications are Bachelor degree, Master’s degree or a Doctoral degree.

4. With your application you lodged evidence of having completed a Master of International Business from Monash University on 7 December 2015.  This study was undertaken more than 12 months before the date of your application and therefore cannot be considered.

5. You also provided a letter of completion for your Graduate Diploma of Accounting from Melbourne Institute of Technology confirming that you completed this course on 7 November 2016.  Now, although this date is within the six months immediately before the date on which you lodged your application a Graduate Diploma is not one of the eligible qualifications for the post-study work stream visa, therefore your Graduate Diploma of Accounting cannot be used to satisfy the study requirements for the visa.

6. Consequently the delegate refused your application and you applied to this Tribunal for review of that decision.  When matters come here, as I have said, the role of the Tribunal is to take a fresh look at your application and to make a new decision as to whether you are eligible for a 485 visa.

7. You have provided evidence to the Tribunal that you were misled by someone you believed was a migration agent who at the time was not a migration agent and you say has now subsequently become a migration agent.  While the Tribunal has some sympathy for your circumstances this is not a matter to which the Tribunal can have regard when considering whether or not you are eligible for a 485 visa.

8. There are two streams in the 485 visa, post-study work stream and graduate work stream.  You applied for the post-study work stream which requires an applicant to provide evidence of having recently completed studies at a Bachelor level or higher.

9. The graduate work stream application on the other hand can be satisfied with studies at a lower level than Bachelor degree, however in the application an applicant must nominate a skilled occupation and provide a skilled assessment for that nomination.

10. The Tribunal is of the view that because of the requirement that the graduate work stream application must be accompanied by the nomination of a skilled occupation and a skills assessment it is not possible to subsequently switch from post-study work stream to a graduate work stream occupation.

11. You have provided from a CPA a document dated 8 June 2017, which thanks you for your assessment application.  It states that: We have considered all the documents you have provided and the result of this assessment is that you are not academically suitable for migration under ANZSCO 221.111/Accountant (general).

12. In response to this, you say, yes, that is because I did not have satisfactory English at the time, which may well be the case.  While it has no bearing on this decision, the Tribunal notes that it would have been a reason for you not to have been granted a graduate work stream visa had that been the visa stream that you had chosen.

13. As you have not provided evidence of having undertaken the required study being at Bachelor level or higher in the period of six months before you lodged this visa application, which was lodged on 20 January 2017, you do not satisfy clause 485.231.  It is therefore the decision of this Tribunal to affirm the decision under review.

    DECISION

14. The Tribunal affirms the decision under review.

    Tim Connellan
    Member