Nguyen (Migration)

[2020] AATA 4930

Nguyen (Migration) [2020] AATA 4930 (14 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nga Quynh Nguyen

CASE NUMBER:  1837657

HOME AFFAIRS REFERENCE(S):          BCC2018/4249692

MEMBER:Denise Connolly

DATE:14 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.222 of Schedule 2 to the Regulations.

Statement made on 14 October 2020 at 1:11pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – manner in which the Tribunal hearing is conducted – Graduate Work stream – Registered Nurse – Advanced Diploma of Leadership and Management – qualification ‘closely related’ to nominated occupation – ANZSCO description – Registered Nurses Standards for Practice – human resource management, preparing budgets and financial management – supervision of other staff including enrolled nurses and certified nurse assistants – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 366A
Migration Regulations 1994 (Cth), Schedule 2, cl 485.222

CASES
Tobon v Minister for Immigration & Anor [2014] FCCA 2208

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 Home Affairs on 20 December 2018 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 applied for the visa on 29 September 2018. 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). The primary criteria must be satisfied by the applicant.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that a qualification on which the applicant relied to meet the Australian study requirement was closely related to her nominated occupation.

   Administrative matters

4. On 16 July 2020 the Tribunal invited the applicant to participate in a telephone hearing scheduled on 20 August 2020. On 20 July 2020 the applicant’s then registered migration agent advised that the applicant would be participating in the hearing.

5. On 6 August 2020 the Tribunal received advice from Lorenzo Boccabella, Barrister, advising that he had been appointed by the applicant. He requested an adjournment of hearing, advising that there were some very technical issues to raise in this case. In his view, the applicant would be seriously disadvantaged if the hearing was conducted by telephone. He indicated that it was a matter where various documents needed to be handed up for there to be discussion and agitation of issues. In his opinion, in light of the complexity of the matter, the applicant did not have the skills to run her matter over the phone. He advised that an objection was formally made to the hearing being conducted solely by telephone. It was his view that there was serious risk that the applicant would not have a fair and proper hearing if conducted in this manner. His preference was for the hearing to be adjourned until such time that the Tribunal determined that it was safe to run face-to-face hearings. He also advised that he was not available on 20 August 2020 but would be available from 26 August to 25 September 2020.

6. The Tribunal considered the representative’s submissions. It did not agree that the hearing could not be conducted fairly by telephone. However it offered for the hearing to be conducted by MS Teams which provides a video facility. The Tribunal explained that it was still of the view that, if this option was not preferred and taken, then a fair hearing could be conducted by telephone. It also advised that it had agreed to postpone the hearing until such time that the representative was available.

7. On 10 August 2020 the applicant’s representative advised the Tribunal as follows

   Teams would work. However this will be quite a technical case and is not a case which the applicant would be able to handle by herself because it will be essentially a legal argument. Applicants falter when they have to present a legal case, as is understandable.

   Hence this would be a case where a submission will be made at the beginning of the hearing that the representative be permitted to give a detailed opening, based on written submissions so that you as the member is fully appraised of the case. The applicant will not be able to do this. Hence reliance will be placed on s.366A(b) (sic)

   Section 366A   Applicant may be assisted by another person while appearing before Tribunal

   (1)  The applicant is entitled, while appearing before the Tribunal, to have another person (the assistant) present to assist him or her.

   (2)  The assistant is not entitled to present arguments to the Tribunal, or to address the Tribunal, unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so….

   (the representative did not include the following)

   (3)  Except as provided in this section, the applicant is not entitled, while appearing before the Tribunal, to be represented by another person.

   (4)  This section does not affect the entitlement of the applicant to engage a person to assist or represent him or her otherwise than while appearing before the Tribunal.

   Teams would work under those conditions but would not work otherwise.

8. The Tribunal arranged for the hearing to be conducted by MS Teams. The applicant was invited to appear before the Tribunal on 28 August 2020 to give evidence and present arguments.

9. On 26 August 2020 attempts were made to contact the representative to organise a pre hearing check to ensure he and the applicant would be able to participate using MS Teams. The case officer was told the representative was not available. The representative subsequently sought to postpone on medical grounds, stating that he had been in hospital since the previous Friday (21 August 2020) and had not recovered. He provided a medical certificate from Royal Brisbane Hospital confirming he had been an inpatient since 21 August 2020 and that he was unfit for duty until 31 August 2020.

10. The Tribunal rescheduled the hearing and the applicant appeared before it on 7 September 2020 to give evidence and present arguments. She was able to give her oral evidence clearly and persuasively. There was no need to hear submissions from her representative.

11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CLAIMS AND EVIDENCE

12. This is a straightforward case. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes 485.222 of Schedule 2 to the Regulations which requires 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 that requirement.

    Information provided by the applicant

13. When making the visa application on 29 September 2018 the applicant provided documentation supporting her claim to have completed the following courses:

    a.Certificate III Aged Care, Ultimo College in the period 1 July 2013 to 16 December 2013

    b.Bachelor of Nursing, Western Sydney University in the period 24 February 2014 to 20 November 2016

    c.Advanced Diploma of Leadership and Management, Sydney Business and Travel Academy in the period 6 March 2017 to 10 August 2018.

14. The Tribunal is satisfied the applicant completed the Bachelor of Nursing and Advanced Diploma of Leadership and Management courses, registered courses, completed in a total of at least 16 calendar months, as the result of a total of at least 2 years academic study. Having regard to CRICOS records it is satisfied the courses were conducted in English. Having regard to her movement records, the applicant was the holder of student visas authorising the study. She therefore satisfied the Australian study requirement on the basis of her Bachelor of Nursing and Advanced Diploma of Leadership and Management qualifications.

15. The applicant nominated the occupation of Registered Nurse nec (ANZSCO 254499) in her application.

16. The Tribunal finds that the only course the applicant completed in the period of six months immediately before the day the application was made was the Advanced Diploma of Leadership and Management. It finds the applicant must rely on this qualification to meet the Australian study requirement.

17. There is no dispute the Bachelor of Nursing is closely related to the nominated occupation.

18. The Tribunal must also be satisfied that the Advanced Diploma of Leadership and Management is closely related to the nominated occupation of Registered Nurse.

    Relevant ANZSCO descriptions and other material

19. The delegate considered the ANZSCO description for the nominated occupation. She acknowledged that the Advanced Diploma may assist the applicant in her future career plan but she was not satisfied the course was closely related to the nominated skilled occupation.

20. The ANZSCO description for the nominated occupation states as follows:

    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

21. The Tribunal also had regard to the relevant Major Sub-Major and Minor Group descriptions.  The ANZSCO Minor Group 254 Midwifery and Nursing Professionals description includes the following description of tasks:

    a.assisting 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

    b.evaluating nurses' ongoing educational needs and planning relevant syllabus structures

    c.directing 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

    d.providing care and management of pregnancy and birth

    e.undertaking and promoting nursing and interdisciplinary research projects, and promoting uptake of findings into clinical nursing practice and patient management

22. The applicant’s representative provided to the Tribunal a submission which included information from the Nursing and Midwifery Board of Australia, including the “Registered Nurses Standards for Practice”. It includes the following information about the standards expected of a registered nurse:

    RNs determine, coordinate and provide safe, quality nursing. This practice includes comprehensive assessment, development of a plan, implementation and evaluation of outcomes. As part of practice, RNs are responsible and accountable for supervision and the delegation of nursing activity to enrolled nurses (ENs) and others…

    This practice includes working in a direct nonclinical relationship with clients, working in management, administration, education, research, advisory, regulatory, policy development roles or other roles that impact on safe, effective delivery of services in the profession and/or use of the nurse’s professional skills. RNs are responsible for autonomous practice within dynamic systems, and in relationships with other healthcare professionals.

23. The standards indicate there is an expectation registered nurses will have leadership and management skills, including the following

    1.7 contributes to quality improvement and relevant research

    2.6 uses delegation, supervision, coordination, consultation and referrals in professional relationships to achieve improved health outcomes

    2.7 actively fosters a culture of safety and learning that includes engaging with health professionals and others to share knowledge and practice that supports person centred care

    2.8 participates in and/or leads collaborative practice

    2.9 reports notifiable conduct…

    5.2 collaboratively constructs nursing practice plans until contingencies, options, priorities, goals, actions, outcomes and timeframes are agreed

    5.3 documents, evaluates and modifies plans accordingly to facilitate the agreed outcomes

    5.4 plans and negotiates how practice will be evaluated in the timeframe of engagement

    5.5 coordinates resources effectively and efficiently for planned actions

    6.3 appropriately delegates aspects of practice to enrolled nurses and others

    6.4 provides effective timely direction and supervision to ensure that delegated practice is safe and correct

    6.6 uses the appropriate processes to identify and report potential and actual risk…

    7.1 evaluates and monitors progress…

    7.2 revises plans based on evaluation…

    7.3 determines, documents and communicates further priorities, goals and outcomes…

24. The representative also provided written letters of support from the following professionals:

    a.Dr Manoj Kumar, geriatrician and consultant physician, who advised that he had observed the applicant, in her role as a registered nurse in the St George Aged Care facility Bexley, dealing with the numerous issues faced by the aged care profession at this time

    b.Dr Megan Young and Dr Chim Payda, general practitioners confirming they have observed the applicant working diligently and efficiently in her role as a registered nurse at the St George Aged Care facility.

25. At the hearing the applicant confirmed that she is employed as a registered nurse in an aged care facility. She explained that registered nurses in aged care facilities are essentially the unit managers. She is currently employed as a registered nurse at the St George Aged Care facility in Bexley. There are 40 residents under her care. As the registered nurse in the facility she supervises 10 staff including enrolled nurses and certified nurse assistants. There are also unqualified care workers.

26. The applicant explained that as the registered nurse in an aged care facility she is the first contact between the resident, the doctor, the staff, family members and the owner. She also deals with allied health professionals such as speech therapists and occupational therapists.

27. The applicant is of the view her study in leadership and management has equipped her to perform the duties of a registered nurse in an aged care facility as the position requires leadership and management skills. She teaches, supports and mentors enrolled nurses and assistant nurses. She deals with all the stakeholders and manages risk, which is currently significant, given the Covid19 pandemic. As the registered nurse she identifies, assesses, monitors, and communicates to minimise risk.

28. As the registered nurse in an aged care facility she also has some role in managing finances as purchases and expenses need to be recorded clearly. Also, for example, as the registered nurse, when a resident wants to see a particular specialist, she assesses costs and explains to residents and their families the benefits and consequences.

29. The applicant was able to describe the ways in which a registered nurse in an aged care facility manages and leads, particularly given there is no doctor permanently on-site. They need to manage and direct contact and case conferences with the family and other stakeholders. The Advanced Diploma in Leadership and Management gave her the skills and confidence to lead and manage, as the registered nurse, within an aged care facility. She develops care and service plans and deals with issues, teaches and mentors staff and manages medication regimes. The course gave her the confidence to facilitate the case conferences with doctors and families. She is of the view the course is closely related to the duties of the occupation of registered nurse in an aged care environment.

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

30. Clause 485.222 requires the qualifications used to satisfy the Australian study 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).

31. In this case, the applicant nominated the occupation of Registered Nurse (nec), which is a skilled occupation specified in the relevant instrument.

32. In deciding whether the Advanced Diploma of Leadership and Management is closely related to the nominated occupation, the delegate considered only the ANZSCO description. The Tribunal has had an opportunity to consider further information, including the “Registered Nurses Standards for Practice” set out in the material from the Nursing and Midwifery Board of Australia. The Tribunal is of the view this information is relevant in its consideration of whether the Advanced Diploma is closely related to the occupation.

33. The Tribunal finds, based on the Nursing and Midwifery Board of Australia material, that registered nurses direct and control the allocation of human and material resources for a health service, are involved in human resource management, preparing budgets and financial management. It also accepts that registered nurses employed in aged care facilities are essentially unit managers, directly responsible for the supervision of other staff including enrolled nurses and certified nurse assistants. It accepts registered nurses in aged care facilities manage the relationships between the resident, the doctor, the staff, and family members and deal with allied health professionals. It accepts they lead case conferences and manage risk. It is of the view these management and leadership skills are currently critical and significant responsibilities, given the Covid19 pandemic.

34. Having regard to the material provided about the Advanced Diploma of Leadership and Management the Tribunal is satisfied it covers areas and provides skills in managing organisational change, resources, risk and continuous improvement, and providing leadership. These are consistent with the duties of a registered nurse in an aged care facility setting.

35. While the Tribunal accepts the ANZSCO description in Unit Group 2544 Registered Nurses does not refer to management and leadership tasks, it notes directing, controlling the allocation of human and material resources for a health service unit such as recruiting staff, human resource management, and preparing budgets and financial management are listed in Minor Group 254.

1. The Tribunal has also considered the Court’s view in Tobon that the decision maker must be satisfied the study or training for which the qualification was granted conferred on the applicant skills which fall within the set of skills associated with carrying out the occupation. It has looked at the whole of the occupation of registered nurse (nec) and her courses as a whole. The Tribunal is of the view that the applicant’s Australian qualifications have provided her with skills that fall within the set of skills associated with the role of a registered nurse, particularly when working in the aged care setting.  Overall, in the circumstances of this particular case, the Tribunal is satisfied the applicant’s Australian qualifications are closely related to her nominated skilled occupation.

2. As the applicant’s qualification is closely related to the nominated skilled occupation, the applicant meets cl.485.222.

3. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

   DECISION

4. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

   ·cl.485.222 of Schedule 2 to the Regulations.

   Denise Connolly
   Member