CHEUNG (Migration)

[2018] AATA 5083

CHEUNG (Migration) [2018] AATA 5083 (6 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kai Ming CHEUNG

CASE NUMBER:  1712202

HOME AFFAIRS REFERENCE(S):           BCC2017/1227568

MEMBER:Karen McNamara

DATE:6 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 06 December 2018 at 2:16pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Australian study requirement – qualification not closely related to nominated occupation – registered nurse – nursing degree completed more than 6 months before application lodgement – Advanced Diploma of Leadership and Management completed within requisite time period – qualification not closely related to nominated occupation – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 485.111, 485.221, 485.222, rr 1.03, 1.15F(1), 1.15I, 2.26AC(6)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 May 2017 to refuse to grant Mr Kai Ming Cheung (the applicant) a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 31 March 2017. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The applicant has provided to the Tribunal a copy of the delegate’s decision record which records on the 24 May 2017, the delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because in the delegate’s view, the applicant’s second qualification of Advanced Diploma of Leadership and Management is not closely related to his nominated occupation of Registered Nurse.

4. The applicant appeared before the Tribunal on 29 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The applicant elected to only use the interpreter when he required.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.221 and 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl.485.221); and secondly, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222). The issue in the present case is whether the applicant meets those requirements.

7. The delegate noted that the applicant did not meet cl.485.221 because he completed the Bachelor of Nursing degree more than 6 months prior to lodging his visa application and therefore the applicant did not satisfy the Australian study requirements in the period of 6 months immediately before the day the application was made. 

Does the applicant meet the Australian study requirement?

1. Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:

   ·that are registered courses; and

   ·that were completed in a total of at least 16 calendar months; and

   ·that were completed as a result of a total of at least 2 academic years study; and

   ·for which all instruction was conducted in English; and

   ·that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

2. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.1.03, 1.15F and 2.26AC(6), and cl.485.111). ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (r.1.15F(2)). For the purposes of this case, ‘ 2 academic years’ is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000.

3. When applying for the visa, the applicant nominated the occupation Registered Nurse. He provided evidence that he had completed a Bachelor of Nursing awarded by the University of Technology Sydney on 28 April 2016, issued on 13 May 2016 and an Advanced Diploma of Leadership and Management from Supreme Business College Sydney, completed on 17 March 2017.  The applicant provided the academic transcript and award for the Advanced Diploma of Leadership and Management to the Department, both showing the date of issue to be 27 March 2017.

4. Having regard to CRICOS records, his academic record and letter of completion from the University of Technology Sydney and letter of completion from Supreme Business College, the Tribunal is satisfied that the applicant’s Bachelor of Nursing Degree and Advanced Diploma of Leadership and Management are registered courses. CRICOS records that the Bachelor of Nursing is of 156 weeks duration and conducted in English. The applicant’s record of results for the Bachelor of Nursing, indicate he undertook the study from February 2013 to April 2016. CRICOS records confirm that the applicant’s Advanced Diploma of Leadership and Management was of 49 weeks duration and was conducted in English. The applicant’s academic transcript for this course, indicate he undertook the study from 4 July 2016 to 17 March 2017.

5. Having regard to this information the Tribunal is satisfied that the applicant has completed a Bachelor of Nursing Degree and Advanced Diploma of Leadership and Management awarded by Australian educational institutions as a result of completing registered courses, that were completed in a total of at least 16 calendar months; and as a result of a total of at least 2 academic years study; and for which all instruction was conducted in English. Having regard to the applicant’s movement records the Tribunal is satisfied the applicant undertook the courses as the holder of a visa authorising the applicant to study. Accordingly it has found the applicant completed the Advanced Diploma of Leadership and Management on 17 March 2017, the Tribunal is satisfied the applicant met ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made on 31 March 2017. The applicant therefore meets cl.485.221

   Is the qualification ‘closely related’ to the nominated occupation?

6. In addition, cl.485.222 requires the qualification used to satisfy that requirement to be closely related to the applicant’s nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the Minister as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (rr.1.03 and 1.15I).

7. In this case, the applicant nominated the occupation of Registered Nurse. In order to meet the Australian study requirements in the 6 months immediately before the day the visa application was made, the applicant must rely on the Bachelor of Nursing Degree and Advanced Diploma of Leadership and Management.

8. The Tribunal explained to the applicant the requirements of cl.485.222 and discussed the issues with him at the hearing. It noted that the skills acquired in the Advanced Diploma of Leadership and Management relate to management tasks and duties. It explained that it was considering whether those management subjects are closely related to the nominated skilled occupation of Registered Nurse.

9. The Tribunal asked the applicant if the subjects he studied in the Advance Diploma of Leadership and Management related to management tasks and duties to which the applicant responded yes. When asked how these subjects related to his nominated occupation of Registered Nurse, the applicant indicated that in his role as a nurse in an aged care facility he needed to provide leadership. He is currently working in an aged care facility and on weekends is required to supervise other staff. On weekends he is the only Registered Nurse on duty and is in charge of the facility.  His studies have taught him how to handle complaints and he provided an example of a situation regarding complaints about the quality of a meal and the steps he would take to resolve the issue. The applicant told the Tribunal that through his leadership and management studies he has learnt how to be a leader and is able to handle difficult situations. The Tribunal asked the applicant to provide an example of when he has used his leadership management skills in his current job. The applicant provided an example of where he has implemented a system to manage PBS medication to ensure that it has not expired.

10. The Tribunal explained to the applicant that it was considering information from ANZSCO and it may form the view that the nominated occupation is front line patient care in nature and is not relate to the management skills the applicant attained in the leadership and management course.  The Tribunal read the applicant the ANZSCO descriptions for the nominated occupation of Registered Nurse and asked the applicant to comment on why he believed the subjects of the Advanced Diploma of Leadership and Management are closely related to occupation of Registered Nurse. The applicant told the Tribunal that the course has enabled him to speak with the families of residents under his care and that quality of care is more than clinical care - it includes activities, the environment and the quality of their meals. The course has also taught him problem solving and how to implement plans.

11. In considering whether the applicant’s Advanced Diploma of Leadership and Management is closely related to the nominated skilled occupation of Registered Nurse, the Tribunal has had regard to the ANZSCO description for the nominated occupation, other occupations from the Sub Major Group 25 Health Professionals, Minor Group 254 Midwifery and Nursing Professionals and the Unit Group in which it falls, 2544 Registered Nurses. While it is not bound by these descriptions it finds they are a useful tool in considering the skills required for the nominated skilled occupation. The Tribunal notes that in Talha v MIDBP [2015] FCAFC 115 the Full Court makes it clear that the Tribunal is not confined to the description of the occupation at the lowest level of the ANZSCO Code and that it is necessary to have regard to any information which is relevant in the higher ANZSCO groupings into which the applicant’s nominated occupation falls.  The relevant ANZSCO descriptions are attached to this decision record.

12. In considering this issue, the Tribunal accepts that the occupation and the course do not require an exact correspondence.  However the Tribunal notes that in Uddin v MIAC [2010] FCA 1281 the Court confirmed that the relationship must be more than merely complementary.

13. The Tribunal has taken into consideration the applicant’s evidence about why the Advanced Diploma of Leadership and Management is closely related to the nominated occupation of Registered Nurse. It notes that the applicant has indicated it has enabled him to deal with difficult situations, plan and resolve problems and supervise other staff on weekend duty. However the Tribunal is of the view that in making the assessment of whether the course is closely related to the occupation, it is necessary to focus on the nominated occupation rather than on the applicant’s claims about the occupation.  The Court in Talha held that in this context that the decision maker is entitled to give substantial weight to the contents in the ANZSCO descriptions. The Tribunal is also of the view that it is appropriate to objectively consider the relationship between the applicant’s qualifications and the ANSCO definition of the occupation, rather than relying on the applicant’s own description of what the occupation entails.

14. Having regard to the ANZSCO descriptions attached, the Tribunal is of the view the nominated occupation is front line patient care in nature and focuses on assessing, planning, implementing and evaluating nursing care for patients according to accepted nursing practices and standards and working in consultation with other Health Professionals and members of health teams and coordinating the care of patients.  The occupation also provides interventions, treatments and therapies such as medications and monitoring responses to treatment and care plan as well as answering questions and providing information to patients and families about treatment and care. The Tribunal accepts that it may promote health and assist in preventing ill health by participating in health education and other health promotion activities as well as supervising and coordinating the work of Enrolled Nurses and other health care workers.

15. The Tribunal has had regard to the applicant’s courses.  It is satisfied that the applicant’s Bachelor of Nursing is closely related to his nominated skilled occupation of Registered Nurse because it relates directly to nursing care, pathophysiology and pharmacology, assessment and therapeutics in health care and integrated nursing concepts.

16. The Tribunal has had regard to the skills acquired in the applicant’s Advanced Diploma of Leadership and Management.  The Tribunal is of the view that these relate to management and leadership tasks under taken by a management professional and include managing innovation and continuous improvement, finances, resources, risk, human resources, strategic planning, employee relations, developing marketing and business plans and developing, implementing and maintaining WHS management systems.  Considered overall and having regard to the ANZSCO descriptions confirming the nominated occupation provides frontline patient health care, the Tribunal is not satisfied the applicant’s Advanced Diploma of Leadership and Management subjects are closely related to the nominated skilled occupation.  While the Tribunal appreciates that employers might expect their employees to have some management competencies, the Tribunal is of the view that the skills acquired by the Advanced Diploma of Leadership and Management are merely complementary. The Tribunal accepts the applicant might apply these skills if he was in charge of the day to day operations of the aged care facility but the applicant told the Tribunal that the facility employs a Facility Manager and a Deputy Manager. However the Tribunal is focusing on whether the Advanced Diploma of Leadership and Management is related to the nominated skilled occupation, not the working environment of the applicant’s current employment. The Tribunal is not satisfied that the Advanced Diploma of Leadership and Management course relate to duties carried out by health professionals including, Midwifery and nursing professionals and Registered Nurses.

17. Considering the whole of the applicant’s Australian studies and the whole of the nominated skilled occupation, the Tribunal is not satisfied the applicant’s Advanced Diploma of Leadership and Management is a qualification that is closely related to the nominated skilled occupation of Registered Nurse.

18. As the applicant’s qualification is not closely related to the nominated skilled occupation, the applicant does not meet cl.485.222.

19. On the basis of the above findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Karen McNamara
    Member

    
    

    1220.0 – ANZSCO - Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.2

    SUB-MAJOR GROUP 25 HEALTH PROFESSIONALS

    
    HEALTH PROFESSIONALS develop health care programs and policies, conduct tests and diagnose and treat physical and physiological disorders, and provide nursing care, advice and counselling to patients to maintain, promote and restore good health and safe and healthy working environments.

    Indicative Skill Level:
    In Australia and New Zealand:

    Most occupations in this sub-major group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

    
    Tasks Include:

    oexamining patients to establish the nature of their complaint and performing or ordering diagnostic procedures

    oselecting and administering appropriate treatment, medication and therapy

    oprescribing prosthetic and corrective devices

    oproviding remedial therapy, rehabilitation and nursing care

    oadvising on individual, community and population health measures and health promotion, and safe working environments

    MINOR GROUP 254 MIDWIFERY AND NURSING PROFESSIONALS

    
    MIDWIFERY AND NURSING PROFESSIONALS provide care to mothers and their babies, the elderly, and physically and mentally ill patients in hospitals, nursing homes, medical centres and the community; provide clinical education to midwives and nurses; conduct research into clinical nursing practice; and manage health service units and sub-units.

    Indicative Skill Level:
    In Australia and New Zealand:

    Occupations in this minor group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

    
    Tasks Include:

    oassisting in examining patients, administering prescribed treatment, monitoring patients' progress, and facilitating lifestyle options and treatment plans in conjunction with patients' families, other carers and the community

    oevaluating nurses' ongoing educational needs and planning relevant syllabus structures

    odirecting and controlling the allocation of human and material resources for a health service unit such as recruiting staff, human resource management, preparing budgets and financial management

    oproviding care and management of pregnancy and birth

    oundertaking and promoting nursing and interdisciplinary research projects, and promoting uptake of findings into clinical nursing practice and patient management

This section contains the following subsection :

          UNIT GROUP 2541 Midwives

          UNIT GROUP 2542 Nurse Educators and Researchers

          UNIT GROUP 2543 Nurse Managers

          UNIT GROUP 2544 Registered Nurses

UNIT GROUP 2544 REGISTERED NURSES

REGISTERED NURSES provide nursing care to patients in hospitals, aged care and other health care facilities, and in the community.

Indicative Skill Level:
In Australia and New Zealand:

Occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Registration or licensing is required.

Tasks Include:

oassessing, planning, implementing and evaluating nursing care for patients according to accepted nursing practice and standards

oworking in consultation with other Health Professionals and members of health teams, and coordinating the care of patients

oproviding interventions, treatments and therapies such as medications, and monitoring responses to treatment and care plan

opromoting health and assisting in preventing ill health by participating in health education and other health promotion activities

oanswering questions and providing information to patients and families about treatment and care

osupervising and coordinating the work of Enrolled Nurses and other health care workers

Occupations:

254411 Nurse Practitioner
254412 Registered Nurse (Aged Care)
254413 Registered Nurse (Child and Family Health)
254414 Registered Nurse (Community Health)
254415 Registered Nurse (Critical Care and Emergency)
254416 Registered Nurse (Developmental Disability)
254417 Registered Nurse (Disability and Rehabilitation)
254418 Registered Nurse (Medical)
254421 Registered Nurse (Medical Practice)
254422 Registered Nurse (Mental Health)
254423 Registered Nurse (Perioperative)
254424 Registered Nurse (Surgical)
254425 Registered Nurse (Paediatrics)
254499 Registered Nurses nec

254411 NURSE PRACTITIONER

Provides advanced and extended nursing care to patients, such as ordering diagnostic tests, undertaking diagnosis and health assessments, prescribing patient care management, medicines and therapies, as authorised in relevant nursing legislation, and referring to specialist Medical Practitioners and other Health Professionals in a range of health, welfare and community settings. Registration or licensing is required.

Skill Level: 1

254412 REGISTERED NURSE (AGED CARE)

Provides nursing care to the elderly in community settings, residential aged care facilities, retirement villages and health care facilities. Registration or licensing is required.

Skill Level: 1
Specialisation:

Registered Nurse (Gerontology)

254413 REGISTERED NURSE (CHILD AND FAMILY HEALTH)

Provides nursing care to children from birth to school age and their families with an emphasis on the prevention, early detection of, and early intervention in, physical, emotional and social problems affecting children and their families such as assistance with parentcraft, immunisation and developmental milestones. Registration or licensing is required.

Skill Level: 1
Specialisation:

Plunket Nurse (NZ)

254414 REGISTERED NURSE (COMMUNITY HEALTH)

Provides nursing care, health counselling, screening and education to individuals, families and groups in the wider community with a focus on patient independence and health promotion. Registration or licensing is required.

Skill Level: 1
Specialisations:

Registered Nurse (Health Education and Promotion)
Registered Nurse (Public Health)
Registered Nurse (School Nurse)

254415 REGISTERED NURSE (CRITICAL CARE AND EMERGENCY)

Provides nursing care to critically ill patients and patients with unstable health following injury, surgery or during the acute phase of diseases, integrating new technological equipment into care in settings such as high dependency units, intensive care units, emergency departments or retrieval services. Registration or licensing is required.

Skill Level: 1
Specialisations:

Registered Nurse (Acute Care)
Registered Nurse (Emergency/Trauma)
Registered Nurse (High Dependency)
Registered Nurse (Neonatal Intensive Care)
Registered Nurse (Paediatric Intensive Care)

254416 REGISTERED NURSE (DEVELOPMENTAL DISABILITY)

Alternative Title:

Mental Retardation Nurse

Provides nursing care to people with intellectual and development disabilities in a range of health, welfare and community settings. Registration or licensing is required.

Skill Level: 1

254417 REGISTERED NURSE (DISABILITY AND REHABILITATION)

Provides nursing care to patients recovering from injury and illness, and assists and facilitates patients with disabilities to live more independently. Registration or licensing is required.

Skill Level: 1
Specialisation:

Registered Nurse (Rehabilitation)

254418 REGISTERED NURSE (MEDICAL)

Provides nursing care to patients with conditions, such as infections, metabolic disorders and degenerative conditions, which require medical intervention in a range of health, aged care and community settings. Registration or licensing is required.

Skill Level: 1

254421 REGISTERED NURSE (MEDICAL PRACTICE)

Alternative Titles:

Practice Nurse
Primary Health Care Nurse (NZ)

Provides clinical care to patients, undertakes clinical organisation and practice administration, and facilitates communication within a general practice environment and between the practice and outside organisations and individuals. Registration or licensing is required.

Skill Level: 1

254422 REGISTERED NURSE (MENTAL HEALTH)

Alternative Title:

Psychiatric Nurse

Provides nursing care to patients with mental health illness, disorder and dysfunction, and those experiencing emotional difficulties, distress and crisis in health, welfare and aged care facilities, correctional services and the community. Registration or licensing is required.

Skill Level: 1
Specialisations:

Psychopaedic Nurse (NZ)
Registered Nurse (Child and Adolescence Mental Health)
Registered Nurse (Drug and Alcohol)
Registered Nurse (Psychiatric Rehabilitation)
Registered Nurse (Psychogeriatric Care)

254423 REGISTERED NURSE (PERIOPERATIVE)

Alternative Title:

Operating Room Nurse

Provides nursing care to patients before, during and immediately after surgery, assesses patients' condition, plans nursing care for surgical intervention, maintains a safe and comfortable environment, assists Surgeons and Anaesthetists during surgery, and monitors patients' recovery from anaesthetic, prior to return to, or discharge from, ward. Registration or licensing is required.

Skill Level: 1
Specialisations:

Registered Nurse (Anaesthetic)
Registered Nurse (Operating Room)
Registered Nurse (Recovery)

254424 REGISTERED NURSE (SURGICAL)

Provides nursing care to patients with injuries and illness that require surgical intervention. Registration or licensing is required.

Skill Level: 1

254425 REGISTERED NURSE (PAEDIATRICS)

Provides nursing care to children of all ages, including neonates, across a range of health and community settings with an emphasis on assessing children’s acute and ongoing needs while taking into account physical, social, cultural and family circumstances. Registration or licensing is required.

Skill Level: 1

254499 REGISTERED NURSES NEC

This occupation group covers Registered Nurses not elsewhere classified. Registration or licensing is required.

Skill Level: 1
Occupations in this group include:

Flight Nurse
Nursing Officer (Defence Forces)
Registered Nurse (Infection Control)
Registered Nurse (Remote or Rural Area)