Australian study requirement to claim 5 points

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Australian study requirement to claim 5 points


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Old 04-17-2013, 12:32 PM
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Australian study requirement to claim 5 points

Dear Mark,

I am just wondering if you can clarify my query regarding 5 points to be claimed for australian study requirement in 189,190 or 489 visa.
I am an overseas nurse currently registered in Australia.As per my knowledge i will get 15 pts for bachleors of nursing done from overseas as it is assessed according to australian standards.besides this I completed 2 yrs of study in australia i.e. diploma of management and advanced diploma of mgt ,which is not related to my nominated occupation(registered nurse).so can u please clarify if I can get 5 points for aus study or Not as it is not related to my profession. i very confused with the different information on various sites.I am sure you can clear this confusion...
Thank you in advance..


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Old 04-18-2013, 10:14 AM
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Reply requested pls....


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Old 04-20-2013, 08:32 AM
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Hi Fateh -

I can't give you specific advice on your case since I don't have access to your documents and information. However generally speaking, as long as the course was completed in Australia, and was listed on CRICOS as being at least 92 weeks in duration, and you completed it in 16 months or more, you would receive the 5 points for that under the Australian Study Requirement. It is not a requirement of the ASR that the couse be related to your nominated occupation.

Also note that your skills assessing authority must approve your Bachelor course as being equivalent to an Australian Bachelor degree per their standards/rules/etc.

Best,

Mark Northam

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Old 08-14-2013, 12:38 PM
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Quote:
Originally Posted by MarkNortham View Post
Hi Fateh -

I can't give you specific advice on your case since I don't have access to your documents and information. However generally speaking, as long as the course was completed in Australia, and was listed on CRICOS as being at least 92 weeks in duration, and you completed it in 16 months or more, you would receive the 5 points for that under the Australian Study Requirement. It is not a requirement of the ASR that the couse be related to your nominated occupation.

Also note that your skills assessing authority must approve your Bachelor course as being equivalent to an Australian Bachelor degree per their standards/rules/etc.

Best,

Mark Northam
Dear Mark,

I am a bit confused about this point. From the DIAC booklet 6 (page 25) it states that he will get the point as nowhere it is mentioned the relevance of occupation and study.
Link
immi.gov.au/allforms/booklets/1119.pdf
This point supports the claiming point of Australian Study Requirement


On the other hand, from immigration website, it states that "The two academic years study must contribute towards the award of an acceptable qualification that is closely related to the occupation you nominate on your General Skilled Migration application"
Link
immi.gov.au/skilled/general-skilled-migration/2-year-study.htm
As the two are saying opposite, it makes a confusion. My condition is like Fateh's one. So I'm requesting you please clarify to these two points which one should be considered by DIAC?

Thanks in advance


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Old 08-14-2013, 01:10 PM
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Hi Forkan -

Excellent question, and a vivid demonstration about why the DIAC website does not always contain complete and accurate information when it comes to all the requirements for a visa. In a way it's inevitable - immigration law represents thousands of pages of regulations and related legislative instruments, and then you pile on top of that thousands of pages of policy which essentially instructs DIAC personnel about how to interpret and apply the law. Any single website simply could not represent all details of all regulations including the accompanying policy for any single visa, much less all of them.

As a migration agent, I rarely visit the DIAC website when looking for answers due to the situation as described above. If your visa is refused, the claim that "but wait! the DIAC website didn't say that was required..." is useless, as the DIAC website essentially has no legal standing. It's useless as an defense in case of trouble, and equally as useless if you are going to depend on it to provide the complete regulations and policy for any visa. It's basically a summary of the most common bullet points and frequently provided answers.

So now to your question. As you correctly point out, the "closely related to your nominated occupation" aspect is absent in the DIAC Booklet, but is present in a different area of the website, both referring to the Australian Study Requirement (ASR).

As it turns out, Regulation 1.15F of the Migration Regulations 1994 which defines the ASR contains no requirement of relevance to an occupation, BUT if you look at the PAM3 Policy Advice Manual that guides DIAC personnel as they interpret and apply the regulations, it says this:

"The Australian study requirement does not require visa applicants to have completed a single course of study of 2 academic years duration. Applicants may use study undertaken to complete more than one degree, diploma or trade qualification to meet the Australian study requirement as long as the courses they have studied are closely related to the nominated occupation."

So what DIAC appears to have done is to add this requirement via policy. Would it stand up at the MRT if a visa was refused based on this? Maybe, maybe not. Policy isn't the law, and in cases where policy goes beyond the legal requirements, it becomes incumbent on the MRT to decide the outcome. If I were representing a client who was refused based on non-relevance, I would need to do some thorough legal research to see if there are any other references in the legislation to relevance for the purposes of the ASR. Assuming there were not, it would come down to the MRT Member's decision as to whether the policy was reasonable and appropriate.

Hope this helps, sorry for the long essay on regulations vs policy, but it's important for people to understand there's a world of difference between the two.

Best,

Mark Northam

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Old 08-14-2013, 01:23 PM
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Thanks Mark for your precious time. Now it is Clear to me.
I went through the link below (page 26), but could not find PAM3: Div1.2/reg1.15F which you have described clearly. Thank you for that. Actually you gave me 5 points.

immi.gov.au/gateways/agents/pdf/sch6c-pam.pdf

Thank you very very much


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Old 08-14-2013, 01:27 PM
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Quote:
Originally Posted by MarkNortham View Post
Hi Forkan -

Excellent question, and a vivid demonstration about why the DIAC website does not always contain complete and accurate information when it comes to all the requirements for a visa. In a way it's inevitable - immigration law represents thousands of pages of regulations and related legislative instruments, and then you pile on top of that thousands of pages of policy which essentially instructs DIAC personnel about how to interpret and apply the law. Any single website simply could not represent all details of all regulations including the accompanying policy for any single visa, much less all of them.

As a migration agent, I rarely visit the DIAC website when looking for answers due to the situation as described above. If your visa is refused, the claim that "but wait! the DIAC website didn't say that was required..." is useless, as the DIAC website essentially has no legal standing. It's useless as an defense in case of trouble, and equally as useless if you are going to depend on it to provide the complete regulations and policy for any visa. It's basically a summary of the most common bullet points and frequently provided answers.

So now to your question. As you correctly point out, the "closely related to your nominated occupation" aspect is absent in the DIAC Booklet, but is present in a different area of the website, both referring to the Australian Study Requirement (ASR).

As it turns out, Regulation 1.15F of the Migration Regulations 1994 which defines the ASR contains no requirement of relevance to an occupation, BUT if you look at the PAM3 Policy Advice Manual that guides DIAC personnel as they interpret and apply the regulations, it says this:

"The Australian study requirement does not require visa applicants to have completed a single course of study of 2 academic years duration. Applicants may use study undertaken to complete more than one degree, diploma or trade qualification to meet the Australian study requirement as long as the courses they have studied are closely related to the nominated occupation."

So what DIAC appears to have done is to add this requirement via policy. Would it stand up at the MRT if a visa was refused based on this? Maybe, maybe not. Policy isn't the law, and in cases where policy goes beyond the legal requirements, it becomes incumbent on the MRT to decide the outcome. If I were representing a client who was refused based on non-relevance, I would need to do some thorough legal research to see if there are any other references in the legislation to relevance for the purposes of the ASR. Assuming there were not, it would come down to the MRT Member's decision as to whether the policy was reasonable and appropriate.

Hope this helps, sorry for the long essay on regulations vs policy, but it's important for people to understand there's a world of difference between the two.

Best,

Mark Northam
Dear Mark,
I have already lodged 190 visa with 65 points on 8 august and it includes 5 points for ASR as well.however my study is not relevant to nominated occupation.So in your experience do u think i could get a problem
Actually I rang DIAC once and asked the same question of relevant studies with noninated occupation in ASR and got a reply from booklet 6 only which does not mention the fact of relevancy..
Its very confusing at this stage now..Can u please suggest me something ...your response wiuld be really very appreciatated...
Thank you Mark

Kind Regards,
Fateh


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Old 08-14-2013, 01:28 PM
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Hi Forkan -

Thanks for this, however the PAM3 document you cited is outdated and no longer in effect - Schedule 6C was replaced by Schedule 6D in the migration regulations, which refers to the current points test. There is a hazard dealing with PDF versions of PAM3 as they may not be updated every time new policy is added or changed - the good news is that many public libraries have subscriptions to LEGENDCOM which is the DIAC online service that provides online real-time access to migration law, regulations, and policy - it's the most current source available for these things, and (good) agents refer to it daily. You can even purchase a subscription yourself if you're a big fan of reading migration law & policy - it's $800/year though! For me, it's a business necessity.

Hope this helps -

Best,

Mark Northam

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  #9 (permalink)  
Old 08-14-2013, 01:35 PM
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Hi Fateh -

DIAC phone assistance is even less complete than their website, sorry to report. And the same issue - phone advice from DIAC is useless as a reference or excuse if you have a problem as a result of following it. What a choice... reading a booklet that is incomplete, or waiting on hold for 40 minutes and then talking to someone on the phone who's reading the same incomplete booklet!!

In your case, it will depend on how rigorously the case officer applies DIAC policy. You might get lucky and they overlook it, or you might not be lucky and the case officer enforces policy and tries to take away the 5 points, which then means you cannot justify the points you claimed in your EOI, which can mean having to withdraw your visa, lose your visa application fee, and start again in the worst case scenario.

If DIAC tries to make an issue out of this, I would contact a registered migration agent immediately and have them quickly put together a detailed submission demonstrating how there is no legislative basis for the relevance requirement. If the case officer digs in his/her heels and refuses it anyway based on policy, then the next step may be the MRT where the "no legislative requirement" argument can be made again. I've seen things come down both ways in these circumstances - sometimes policy wins, sometimes the regulations win. Can go either way depending on the circumstances of the case.

Hope this helps -

Best,

Mark Northam



Quote:
Originally Posted by fateh View Post
Dear Mark,
I have already lodged 190 visa with 65 points on 8 august and it includes 5 points for ASR as well.however my study is not relevant to nominated occupation.So in your experience do u think i could get a problem
Actually I rang DIAC once and asked the same question of relevant studies with noninated occupation in ASR and got a reply from booklet 6 only which does not mention the fact of relevancy..
Its very confusing at this stage now..Can u please suggest me something ...your response wiuld be really very appreciatated...
Thank you Mark

Kind Regards,
Fateh

__________________
Mark Northam
Immigration Lawyer and Registered Migration Agent

LLB, GradDipLaw, GradCertMigrLaw, BBA(Acctg) MARN 1175508
Northam Lawyers http://nlaw.com.au [email protected]
Co-Host, Coming 2 Oz live video show: https://www.facebook.com/groups/coming2oz/

  #10 (permalink)  
Old 08-14-2013, 01:40 PM
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Hi Mark,

Thanks for your quick reply Mark.

Actually i have already experienced MRT because of my student visa refusal and still struggling with them..therefore very scared..anyways no option now rather than to wait..
Thank you for your time
Regards,
Fateh


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