PRANZA (Migration)

[2018] AATA 320

PRANZA (Migration) [2018] AATA 320 (19 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms NEMIA PRANZA

CASE NUMBER:  1703389

DIBP REFERENCE(S):  BCC2016/4182545

MEMBER:Catherine Carney-Orsborn

DATE:19 February 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 19 February 2018 at 4:09pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Qualifications do not ‘closely relate’ to nominated occupation

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.5I Schedule 2 cls 485.221, 485.222

CASES
Constantino v MIBP [2013] FCA 1301
MIBP v Dhillon (2014) 227 FCR 525
Talha v MIBP [2015] FCAFC 115

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 on 7 February 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 applied for the visa on 11 December 2016. 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 delegate refused to grant the visas because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because they found that the Advanced Diploma in Accounting was not closely related to the applicant’s nominated occupation of Registered Nurse.

4. The applicants appeared before the Tribunal on 14 February 2018 to give evidence and present arguments.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. The Tribunal has the department’s file and the Tribunal file.  The applicant provided further submissions and documents to the Tribunal.  The applicant appeared before the Tribunal on 14 February 2018. 

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

9. Cl.485.221 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). The relevant instrument for this purpose is Legislative Instrument IMMI 16/059.

10. In this case, the applicant nominated the occupation of registered nurse which is a skilled occupation specified in IMMI 16/059.  

11. The applicant nominated the occupation of registered nurse which is a skilled occupation specified in IMMI 16/059. The applicant completed a Bachelor of Nursing on 7 June 2013.  The Bachelor of Nursing qualification is closely related to the nominated occupation of registered nurse however that qualification was not completed in the 6 months immediately preceding the date of the visa application being the 11 December 2016.  The applicant is therefore relying on the Advanced Diploma of Accounting completed on 17 June 2016 to satisfy the Australian study requirement.

12. The Tribunal has the Department file and Tribunal file before it.  The applicant provided submissions on closely related to the Department and further submissions were provided to the Tribunal.

13. The applicant attended a hearing and gave oral evidence.  A summary is as follows.

14. The applicant said she was born in the Philippines in 1971.  She has an Aunt in Australia and adult children in the Philippines.  She is separated from her spouse. 

15. She first came to Australia in 2008 on a tourist visa.  She was then granted a student visa.  She undertook various courses of study.  In December 2009 she completed a Certificate III in aged care work and home and community care work.  In June 2013 she completed a Bachelor Degree in Nursing from the University of Canberra.  In June 2016 she completed an Advanced Diploma of Accounting.

16. The Tribunal explained that it had the decision which was made by the Department before it.  The Tribunal stated that as the Advanced Diploma of Accounting was completed in the 6 months immediately preceding the day the visa application was made.  The Tribunal will therefore consider whether the Advanced Diploma of Accounting was closely related to the applicant’s nominated skilled occupation.  The nominated skilled occupation is registered nurse.

17. The applicant gave evidence that she felt it was closely related.  She said in her employment as a registered nurse at an aged care organisation she was responsible for rostering, budgeting and controlling costs.  The Tribunal asked her to expand on how her accounting was related to being a registered nurse.  She replied that her patients need incontinent pads and products of personal hygiene.  She said she has to control the cost of such items and reduce expenses.  She said that as a nurse she needs to identify what is needed and ensure that she does not spend too much.  She stated that her employer is seeking to sponsor her.

18. In written submissions the applicant set out her employment background.  She further provided references from her employer, assessments of her qualifications as a nurse and her CV.  She stated the reasons why she did not apply within the 6 month time frame using her Bachelor of nursing was because at the time she graduated in nursing she did not have the required English skills.  She claims she now has those skills.

19. In the Department decision the description of a registered nurse according to ANZSCO is set out.  The description in ANZSCO does not refer to accounting being activities which are related to the occupation of registered nurse.

20. While “closely related” is not defined in the Regulations, the decisions of the Full Federal Court in MIBP v Dhillon (2014) 227 FCR 525 and Talha v MIBP [2015] FCAFC 115, and the Federal Court in Constantino v MIBP [2013] FCA 1301 provide guidance. Having regard to these decisions, the Tribunal considers that for a qualification to be “closely related” to an occupation, the relationship between the skills gained in the qualification and the occupation must be more than merely complementary. It does not accept the submission that it must consider whether the qualification complements or has a broader relevance to the occupation.

21. The Tribunal has carefully considered the submissions and evidence provided by the applicant.

22. The Tribunal has considered the ANZSCO unit group description for registered nurses.  That description states “registered nurses provide nursing care to patients in hospital, aged care and other health care facilities and in the community”.  The tasks outlined are tasks all directly related to nursing care.

23. The applicant provided a reference from her employer which indicates that she is a valued employee and has been employed in an aged care facility since July 2017. The Tribunal accepts that the applicant may be a valued employee and works as a registered nurse.  The Tribunal accepts that her employer may find her accounting qualifications useful however on the evidence before it the Tribunal does not accept that the advanced diploma of Accounting is closely related to being a registered nurse.  The Tribunal accepts that the applicant may have to account for personal products used by her patients and assists them in their budgeting however it does not accept that those skills are related to the occupation of registered nurse.

24. The Tribunal has considered the applicant’s claims and evidence but does not accept that there is a close relationship between the qualification and the nominated occupation. Having considered the Advanced Diploma of Accounting as a whole, and the submissions and evidence presented, the Tribunal is not persuaded that the relationship between the Advanced Diploma of Accounting and the occupation of registered nurse is closely related.

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

26. 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

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

    Catherine Carney-Orsborn
    Member