2012-Feb 24: Authority to study clarification – SMC 14.10 note

Visa Pak 53 - Clarification about authority to study clarification at SMC 14.10. An applicant must have been lawful or held a study visa in the country where they gained their qualification, and did not breach the conditions of the visa for the qualification to be recognised.

Visa Paks

24 February 2012

NZAMI has raised a specific concern about the interpretation of the following note, which sits under the SMC qualification instructions at SM14.10 Points for recognised qualifications, when determining whether to award points.

SM14.10 Points for recognised qualifications

Note: A qualification will not be recognised if gained while in a country where the principal applicant was either an unlawful resident or required authority to study, but did not have such authority.

The concern is whether an applicant is considered to have had the required ‘authority to study’ if they held a student visa to study towards a specified qualification and only completed half the course and exited with SMC points gaining qualification.

Authority to study

The following example provides guidance on this concern.

The applicant holds a student visa to study towards a Diploma in International Culinary Arts. If the applicant completes the Diploma course they will graduate with the following qualifications:

  • Diploma in International Culinary Arts (L5)
  • National Certificate in Hospitality (Prof Cookery L4 Pasta and Rice)
  • National Certificate in Hospitality (Prof Cookery L4 Fish and Shellfish)
  • National Certificate in Hospitality (Prof Cookery L4 Patisserie)

The applicant exits the diploma course early having only achieved the National Certificate in Hospitality (Prof Cookery L4 Patisserie), and then submits an EOI claiming points for this qualification.

Did the applicant have the required ‘authority to study’?
The applicant had the authority to study. Despite exiting the specified course early and claiming points for a qualification not listed on their student visa, qualification points could be awarded as the Patisserie qualification was a component of the overall Diploma. As such, the applicant had not breached the conditions of their visa and thus had the required authority to study.

Example of not having the authority to study

If the applicant held a student visa to study towards a Bachelor of Engineering and instead completed a National Certificate in Cookery, they would have breached the conditions of their student visa and thus would not have held the required authority to study.

Skilled Migrant Category – Settlement & Contribution

Background

A number of branches have advised that there is an issue with PhD students applying for residence under the Skilled Migrant Category (SMC) before they have completed their studies and some cases it will be a number of years before they finish their PhD. Branches advise that these applications are often declined because the applicant does not intend to ‘readily’ obtain skilled employment and they do not meet SM21.10(g). Branches are concerned that these declines often lead to complaints as applicants argue that their circumstances have not changed since they were invited to apply for residence. While the background of this issue relates to PhD students the advice below applies to all principal applicants studying towards any qualification.

Operations Support Action:

A letter was sent to New Zealand universities and recommends that PhD students who have not demonstrated the ability to successfully settle in and contribute to New Zealand by meeting SM21.5 Assessment of ability to settle and contribute wait until they have finished their studies before they apply for residence under the SMC.

SM21.5 Assessment of ability to settle and contribute

Operations Support recommendation:

  1. If it is apparent from the ‘Expression of Interest’ that the principal applicant is studying towards a PhD or any other qualification, branches could include a sentence in the ‘Invitation to Apply’ letter advising that the application is unlikely to be approved if they do not intend to readily obtain skilled employment.
  2. If, following assessment of an application, it is determined that the principal applicant has good employment prospects, then they should be given the opportunity to take up a SMC job search work visa. In many cases the applicant will intend to keep studying and will choose not to take up this option, in these cases a potentially prejudicial information letter will need to be sent.