Lin (Migration)

[2019] AATA 2354

Lin (Migration) [2019] AATA 2354 (9 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Meiling Lin

CASE NUMBER:  1705840

HOME AFFAIRS REFERENCE(S):           BCC2016/4352150

MEMBER:Kira Raif

DATE:9 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 09 May 2019 at 4:53pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Advanced Diploma of Business – registered nurse – studies not closely related to nominated occupation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 485.221, 485.222

CASES
Chawdhury v MIAC [2010] FMCA 275

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 8 March 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in November 1988. She applied for the visa on 23 December 2016. The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the qualifications used by the applicant to meet the Australian study requirement were closely related to her nominated occupation. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 9 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. Visa Class VC contains Subclass 485. 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).

5. 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 preceding 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.

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

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant stated in her application that she complete the following study in Australia.

   03/09 – 11/12             Bachelor of Nursing

   02/13 – 07/13             Cert IV in Frontline Management

   08/13 – 02/14             Diploma of Management

   03/14 – 09/14             Diploma of Business

   10/14 – 06/15             Cert III in Pathology

   08/15 – 07/16             Advanced Diploma of Business

7. The applicant included with her application evidence of her Australian study.

8. The applicant made the application for the visa in December 2016. The Tribunal finds that the only course the applicant completed in the period of 6 months immediately before the day the application was made was the Advanced Diploma of Business. The Tribunal finds that the applicant relied on that qualification to satisfy the Australian study requirement. The applicant had nominated the occupation of Registered Nurse nec in her application. The Tribunal must be satisfied that the Advanced Diploma of Business is closely related to the nominated occupation of Registered Nurse nec.

9. The applicant provided a written submission to the Tribunal on 2 May 2019. The applicant states that she has been employed by On Luck Chinese Nursing Home as a personal care assistant and, from May 2017, as a registered nurse. The applicant states that there is an ‘overlap’ between the skill and tasks of a registered nurse and the subjects in an Advanced Diploma of Business and the skills obtained through the Business Diploma were unique to the occupation of a registered nurse or could benefit the health care practice daily. The applicant states that the Advanced Diploma of Business provides a theoretical underpinning and ‘construct indispensable skillset to her multi-facets job duties and tasks’.

10. The applicant provided a ‘personal statement’ in which she outlined her duties and responsibilities working as a registered nurse in a nursing home. The applicant states that leadership skills, management skills and communication skills are all closely related to the occupation of registered nurse to fulfil her job requirements. The applicant states that she completed the management courses as they were closely related to her nurse occupation and she acquired important skills such as managerial knowledge, advanced communication skills in different media, strategic and operational awareness of being a team leader, which are core skills in the Advanced Diploma of Business. The applicant states that these skills would assist her future career and she integrated the knowledge she learned in these courses in her daily practice as a registered nurse and a team leader. The applicant outlined in detail the various aspects of her role as a nurse in an aged care facility and how she applies the knowledge from the Advanced Diploma in performing these tasks. She repeated these submissions in oral evidence to the Tribunal. The applicant included a number of documents with her submission, including evidence of her skills assessment and employment, language proficiency, skills assessment and other materials.

11. The Tribunal accepts the applicant’s evidence that she found the skills acquired through the Advanced Diploma to be useful in her daily role as a nurse and that the management and business qualifications may have assisted her in obtaining employment. However, the Tribunal is not satisfied that business knowledge and skills acquired in that course form part of the role of a nurse. The Tribunal is not satisfied there is a relationship, let alone a close relationship, between a business qualification (taken as a whole, rather than by considering individual subjects and knowledge areas to which the applicant refers) and the common duties and responsibilities that make up the role of a registered nurse or. It appears that the applicant had selected particular knowledge areas and sought to establish a relationship between those selected areas and her occupation. However, the assessment must be in relation to the qualification as a whole and not the selective comparison which the applicant has done.

12. The Tribunal also notes that much of the applicant’s evidence relates specifically to her work in an aged care facility. However, the occupation of a nurse is not limited to a particular work environment and there is no distinction between a registered nurse working in an aged care facility and a nurse working in a different environment. It is necessary for the Tribunal to consider the occupation broadly and not the specific work environment where the applicant is employed.

13. The applicant states that she acquired certain skills as part of her Advanced Diploma that she uses in her daily work. The Tribunal is mindful that the Advanced Diploma of Business is a general course that is not designed for the health industry. It does not seek to teach any skills relevant to the field of healthcare. The skills acquired through that course are necessarily generic. As such, the Tribunal is of the view accept that the applicant would have acquired the skills to which she now refers  - such as preparing and implementing health care plans, palliative care, supervision of junior health professionals, dealing with difficult patients, etc - in her nursing degree rather than her business qualification. The Tribunal has formed the view that the applicant’s evidence with respect to the skills acquired in the Business Diploma was exaggerated, if not inaccurate.

14. The applicant repeatedly told the Tribunal that she can apply the skills she learned in the Business course in her job as a nurse and explained how such skills are applied. The Tribunal accepts that this may be so but that is not enough. At best, the applicant may establish that aspects of business knowledge acquired in the Diploma of Business may be useful in any occupation, including that of a nurse and specifically in her performing her role as a nurse. The applicant’s representative submits that the test is that the skills set acquired in the Advanced Diploma is complementary and can be used in the occupation. The Tribunal does not consider that being complementary or useful can be equated to the statutory test of being ‘closely related’. That is, being ‘useful’ does not meet the statutory requirement and is not sufficient, in the Tribunal’s view, to establish the close relationship between the qualification as a whole and the nominated occupation. It is not enough to state that certain aspects of the qualification – such as managerial knowledge, advanced communication skills or strategic and operational awareness of being a team leader – are being applied in the nominated occupation. Rather, it is necessary to establish the close relationship between the entire qualification and the nominated occupation. In the Tribunal’s view, the applicant failed to do that. The applicant’s comparison, put forward in her evidence to the Tribunal, relies on a few individual subjects within the Business qualification and not the qualification as a whole. It also relates to some aspects of the role of a nurse and not to the occupation as a whole. The applicant may have explained the usefulness of one to the other but not the close relationship between the qualification and the occupation.

15. ANZSCO provides the following description of tasks for the nominated occupation of registered nurse.

    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:

    a.assessing, planning, implementing and evaluating nursing care for patients according to accepted nursing practice and standards

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

    c.providing interventions, treatments and therapies such as medications, and monitoring responses to treatment and care plan

    d.promoting health and assisting in preventing ill health by participating in health education and other health promotion activities

    e.answering questions and providing information to patients and families about treatment and care

    f.supervising and coordinating the work of Enrolled Nurses and other health care workers

16. There is nothing in the ANZSCO description of the occupation of registered nurse that indicates that nurses carry out many of the tasks to which the applicant refers, including business plans and extensive management responsibilities.

17. The applicant refers to acquiring skills such as communication, managerial knowledge, staffing responsibilities and strategic and operational awareness in the Business course. In oral evidence, the applicant said that what she learned in the Diploma of Business, she can better understand business and management, skills that she can apply in her work. As noted above, the Tribunal does not consider that some of the tasks to which the applicant refers are part of the responsibilities of a nurse. The Tribunal acknowledges that nurses do have some supervisory responsibilities and accepts that the applicant does arrange the roster and supervises staff and arranges staff training. However, the Tribunal is mindful that this is only one, and limited, aspect of the role of a nurse and the assessment must be against the occupation as a whole. If the applicant’s management and supervisory responsibilities are more significant, then in the Tribunal’s view, the applicant’s role would be that of a nurse unit manager, a supervisor or another health professional but that is not the occupation which the applicant had nominated.

18. The applicant claims that she spoke to others in the industry before choosing to do the business and management qualifications. In oral evidence, the applicant also stated that in her current work, she applies what she has studied in her Advanced Diploma of Business. The applicant’s representative submits that the applicant has a ‘competitive edge’ because of her qualifications. The Tribunal accepts that this may be the case, but the Tribunal must consider the objective standards for the occupation and not the applicant’s particular employment or her employer’s expectations (Chawdhury v MIAC [2010] FMCA 275).

19. Having considered the totality of the applicant’s submissions, the Tribunal is not satisfied that the Advanced Diploma of Business is closely related to the occupation of a nurse. The Tribunal is not satisfied that each of the qualifications used to satisfy the Australian study requirement is closely related to her nominated skilled occupation. The Tribunal is not satisfied the applicant meets cl. 485.222.

    Conclusion

20. 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

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

    Kira Raif
    Senior Member