Ramos (Migration)

[2018] AATA 3546

Ramos (Migration) [2018] AATA 3546 (24 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Larry Ace Mechilina Ramos

CASE NUMBER:  1716628

DIBP REFERENCE(S):  BCC2017/2188919

MEMBER:Susan Trotter

DATE:24 July 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 24 July 2018 at 4:35pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement in six months – Courses registered – Length of studies – Academic duration of courses – Course closely related to nominated skill occupation – Recent course of generalised focus – No direct overlap of course and occupation – One course relates to occupation – Course not completed before application – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15F,2.26AC, Schedule 2 cls 485.221, 485.222

CASES
MIBP v Dhillon (2014) 227 FCR 525
Talha v MIBP [2015] FCAFC 115
Constantino v MIBP [2013] FCA 1301
Chawdhury v MIAC [2010] FMCA 275
Kabir v MIAC [2010] FMCA 577
Shafiuzzaman v MIAC [2011] FMCA 874
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 then Minister for Immigration and Border Protection[1]on 24 July 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

   [1] Now the Minster for Home Affairs.

2. The applicant is a 29 year old citizen of the Philippines. He first arrived in Australia in June 2014 as the holder of a Subclass 572 (Vocational and Educational Training Sector) visa. He has undertaken various studies in Australia. He applied for the temporary visa the subject of this application, known as a Subclass 485 visa, on 21 June 2017.

3. 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).

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.222 because the delegate was not satisfied that the Advanced Diploma of Leadership and Management course completed by the applicant is closely related to the applicant’s nominated skilled occupation of “Registered Nurse nec” as required.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 31 July 2017.

6. The applicant appeared before the Tribunal on 25 June 2018 to give evidence and present arguments.

7. The applicant was represented in relation to the review.

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

   ISSUES

9. 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 cl.485.222 of Schedule 2 to the Regulations.

10. Clause 485.221 requires that the applicant must have satisfied the ‘Australian study requirement’ in the period of six months immediately before the day the application was made.

11. Clause 485.222 requires that each degree, diploma or trade qualification used to satisfy the Australian study requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222).

12. 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 one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses that:

    (a)  are registered courses; and

    (b)  were completed in a total of at least 16 calendar months; and

    (c)  were completed as a result of a total of at least two academic years study; and

    (d)  for which all instruction was conducted in English; and

    (e)  the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

13. ‘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). For the purposes of this case, ‘2 academic years’ is specified by the Minister in IMMI 09/040 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.

14. Regulation 2.26AC(6) provides as follows:

    degree means a formal educational qualification, under the Australian Qualifications Framework, awarded by an Australian educational institution as a degree or a postgraduate diploma for which:

    (a)  the entry level to the course leading to the qualification is:

    (i)   in the case of a bachelor’s degree — satisfactory completion of year 12 in the Australian school system or of equivalent schooling; and

    (ii)   in the case of a master’s degree — satisfactory completion of a bachelor’s degree awarded at an Australian tertiary educational institution or of an equivalent award; and

    (iii)  in the case of a doctoral degree — satisfactory completion of a bachelor’s degree awarded with honours, or a master’s degree, at an Australian tertiary educational institution or of an equivalent award; and

    (iv)  in the case of a postgraduate diploma — satisfactory completion of a bachelor’s degree or diploma awarded at an Australian tertiary educational institution or of an equivalent award; and

    (b)  in the case of a bachelor’s degree, not less than 3 years of full-time study, or the equivalent period of part-time study, is required.

    diploma means:

    (a)  an associate diploma, or a diploma, within the meaning of the Register of Australian Tertiary Education (as current on 1 July 1999), that is awarded by a body authorised to award diplomas of those kinds; or

    (b)  a diploma, or an advanced diploma, under the Australian Qualifications Framework, that is awarded by a body authorised to award diplomas of those kinds.

    …

    trade qualification means:

    (a)  an Australian trade qualification obtained as a result of the completion of:

    (i)   an indentured apprenticeship; or

    (ii)   a training contract;

    that is required by State or Territory industrial training legislation or a relevant Federal, State or Territory industrial award and involves:

    (iii)  part-time formal training at a technical college or a college of technical and further education; and

    (iv)  employment within the meaning of:

    (A)  an industrial award under a law of the Commonwealth or of a State or Territory; or

    (B)  a law of a State or Territory dealing with commercial or industrial training; or

    (b)  a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group IV in the ASCO; or

    (c)  a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group 3 in ANZSCO.

15. 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.

16. It follows that the issues to be determined by the Tribunal are:

    (a)  Did the applicant meet the Australian study requirement in the period of six months immediately before the day of the visa application?

    (b)  Is each such degree, diploma or trade qualification relied upon by the applicant to satisfy the Australian study requirement closely related to the applicant’s nominated skilled occupation?

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The applicant listed the following Australian study in his visa application:

    Diploma in Nursing

    (Enrolled/ Division 2 Nursing)                TAFE Queensland Brisbane                15/06/14 to 25/11/15

    Advanced Diploma in

    Leadership and Management              Queensland International Institute          29/02/16 to 01/02/17

    Graduate Diploma – Initial                   Education Training and Employment

    Registration for Overseas Nurses Australia   01/03/17 to 23/05/17

18. The applicant provided detailed written submissions, and various documentation, to the Tribunal including as follows:

    (a)  Letter/reference form Chanchal Kurup.

    (b)  Letter/reference from Geeta Wagle.

    (c)  Record of Results – Advanced Diploma of Leadership and Management.

    (d)  Statement – Explanation of how Advanced Diploma of Leadership and Management units are closely related to the occupation of Registered Nurse ANZSCO 254418.[2]

    Issue 1 – Did the applicant meet the Australian study requirement in the period of six months immediately before the day of the visa application?

    [2] The Tribunal observes that the applicant has nominated “Registered Nurse nec” as the nominated occupation in his visa application. That description correlates to the occupation 254499 Registered Nurses nec in the Unit Group 2544 Registered Nurses in ANZSCO. The code 254418 correlates to the occupation of Registered Nurse (Medical) in ANZSCO. Notably, the tasks listed for both occupations in ANZSCO are identical, being the tasks listed for the Unit Group 2544 Registered Nurses.

19. The Tribunal first considered whether each of the courses completed by the applicant are a degree, diploma or trade qualification as required by r.1.15F to be taken into account in establishing whether the Australian study requirement is met.

20. The Tribunal is satisfied and finds that the Diploma in Nursing and Advanced Diploma in Leadership and Management courses are diplomas as defined by r.2.26AC(6) and can be taken into account. However the Graduate Diploma – Initial Registration for Overseas Nurses course is a non-award non-AQF program and is neither a degree, diploma or trade qualification as defined in r.2.26AC(6).

21. Having regard to all evidence and material before it, including Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) records and Provider Registration and International Student Management System (PRISMS) records, the Tribunal finds that the Diploma in Nursing and Advanced Diploma in Leadership and Management courses are registered courses, being courses of education provided by institutions that are registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the courses to overseas students. The Tribunal therefore finds that r.1.15F(1)(a) is met.

22. Based on the evidence before the Tribunal, these courses were studied by the applicant for a total of at least 16 calendar months, with the Diploma in Nursing being studied for approximately 17 ½ months and the Advanced Diploma in Leadership and Management being studied for approximately 12 months. The Tribunal therefore finds that r.1.15F(1)(b) is met.

23. CRICOS records show that the academic duration of the Diploma in Nursing was 83 weeks and the academic duration of the Advanced Diploma in Leadership and Management was 46 weeks. These courses were therefore of an academic duration of 129 weeks in total (that is, at least two academic years). Further, the Tribunal is satisfied on the evidence before it that all instruction was in English for the courses. The Tribunal is therefore satisfied and finds that the requirements of rr.1.15F(1)(c) and r.1.15F(1)(d) are met in relation to these two courses together.

24. Based on records from the Department of Home Affairs (the Department), the Tribunal is satisfied that the applicant held a Subclass 572 (Vocational Education and Training Sector) visa, a Subclass 010 Bridging visa[3] and a Subclass 500 (Student) visa between June 2014 and February 2017 authorising study. The Tribunal therefore finds that r.1.15F(1)(e) is met.

    [3] In accordance with cl. 010.611(4)(a)(i) of Schedule 2 to the Regulations, when a Bridging Visa Class A is granted to the holder of a student visa at the time of application for the bridging visa, the same conditions which applied to the student visa apply to the bridging visa. granted to a person who is the holder of a student visa at the time of application for the bridging visa, the same conditions which applied to the student visa apply to the bridging visa. The Department’s records show that the only additional specific conditions imposed upon the applicant’s Subclass 010 visa were condition 8105 prohibiting work of more than 40 hours per fortnight when the applicant’s course was in session (applicable only if doing a course other than a masters by research or a doctorate course).

25. As paragraphs (a) to (e) of r.1.15F are met, the Tribunal finds that the applicant meets the Australian study requirement. In considering whether that requirement was met in the six months immediately preceding the date of the visa application, the Tribunal notes that the Department’s policy guidelines contained in its Procedures Advice Manual (PAM3) states as follows in relation to the Australian study requirement under the Graduate Work stream:

    When must the study have been undertaken

    …

    ·     if the applicant is claiming to satisfy the Australian study requirement on the basis of having completed more than one eligible qualification, they must have met the academic requirements for the award of their most recently completed qualification at some time in the 6 months immediately before the day the VC-485 application was made.

26. The applicant’s most recently completed qualification was the Advanced Diploma in Leadership and Management, which the Tribunal has found is an eligible qualification. Based on the documentary evidence before it, the Tribunal is satisfied and finds that the applicant completed that qualification on 1 February 2017, that is, within the period of six months immediately before the day of the visa application, 21 June 2017.

27. Therefore cl.485.221 is met.

    Issue 2 – Is each such degree, diploma or trade qualification closely related to the applicant’s nominated skilled occupation?

28. An occupation is a ‘skilled occupation’ if it is an occupation of a kind:

    (a)  that is specified by the Minister in an instrument in writing to be a skilled occupation; and

    (b)  if a number of points are specified in the instrument as being available - for which the number of points are available; and

    (c)  that is applicable to the person in accordance with the specification of the occupation.[4]

    [4] Regulations 1.03 and 1.15l

29. The applicant nominated the skilled occupation of Registered Nurse nec, which is a skilled occupation specified in the relevant instrument.

30. The term 'closely related' is not defined in the Regulations. However, the term has been considered by the Full Federal Court of Australia in the decisions of MIBP v Dhillon (2014) 227 FCR 525 (Dhillon) and Talha v MIBP [2015] FCAFC 115 (Talha) as well as the Federal Court of Australia's in its decision in Constantino v MIBP [2013] FCA 1301 (Constantino). Accordingly, the Tribunal has been guided by these cases in its consideration of this issue.

31. The leading authorities on the issue of whether a qualification used to satisfy the Australian study requirement is ‘closely related’ to the applicant’s nominated skilled occupation establish that:

    (a)  While the words ‘closely related’ are not defined in legislation they do require and call attention to the connection between two things, and although the words ‘closely related’ do not require an exact correspondence (Dhillon), the relationship must be more than merely complementary (Constantino).

    (b)  In making the assessment, the nature of the nominated occupation must be determined by reference to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and, further, the ANZSCO needs to be read as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation (emphasis added) (Talha).

    (c)  It is appropriate to objectively consider the relationship of the applicant’s qualification (or, in this case, qualifications) to the ANZSCO definition of the occupation rather than relying on the applicant’s own description of what the occupation entails, or the applicant’s own view of the proximity of the qualifications or usefulness of the qualifications to the nominated occupation. (Chawdhury v MIAC [2010] FMCA 275, Kabir v MIAC [2010] FMCA 577 and Shafiuzzaman v MIAC [2011] FMCA 874).

    (d)  It is ultimately a matter for the decision-maker (that is, the Tribunal) to decide whether an applicant’s Australian qualifications are ‘closely related’ to the nominated skilled occupation (Talha) and, in carrying out the evaluative exercise, it is critical that the whole of the Australian studies be compared with the whole of the nominated occupation. (Talha, Dhillon and Constantino).

32. In making the assessment, the Tribunal has considered the nature of the nominated occupation as determined by reference to the ANZSCO and has read the ANZSCO as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the requirements of the nominated occupation.

33. The Tribunal has proceeded on the basis of objectively considering the relationship of the applicant's qualifications to the ANZSCO tasks for the occupation. The Tribunal has considered whether the applicant's Australian qualifications are 'closely related' to the nominated skilled occupation by carrying out an evaluative exercise of the whole of the Australian studies undertaken by the applicant compared with the whole of the nominated occupation.

34. The Full Federal Court's decision in Talha notes that the ANZSCO comprises a system of five hierarchies for classifying occupations. At the lowest level of this hierarchy, the ANZSCO has a list of 'Occupations'. The next level of hierarchy is known as a 'Unit Group'. The next step up the ladder of the ANZSCO hierarchy is known as a 'Minor Group'. Minor Groups are then aggregated to form 'Sub-Major Groups' which, in turn, step up and are aggregated at the highest level to form 'Major Groups'.

35. ANZSCO Unit Group 2544 Registered Nurses states that the occupation of Registered Nurse has the following description and tasks:

    Description

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

    Task

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

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

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

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

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

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

36. The Tribunal accepts that the Diploma in Nursing (Enrolled/ Division 2 Nursing) is closely related to the nominated skilled occupation of Registered Nurse nec.

37. The Record of Results for the Advanced Diploma of Leadership and Management completed by the applicant shows the following subjects:

    Develop And Implement Strategic Plans
    Develop And Implement A Business Plan
    Manage Risk
    Develop, Implement And Maintain WHS Managements Systems
    Develop Workplace Policy and Procedures For Sustainability
    Provide Leadership Across The Organisation
    Develop A Marketing Plan
    Lead And Manage Organisational Change
    Manage Innovation And Continuous Improvement
    Contribute To Organisation Development
    Manage Finance
    Manage Market Research

38. At hearing, the Tribunal discussed a number of matters with the applicant, including that the issue to be determined is not whether the Advanced Diploma of Leadership and Management might be useful to him in his nominated occupation, nor whether it might be of assistance to him with his future aspirations nor whether it is closely related to his current employment, but rather whether those qualifications are ‘closely’ related to the nominated skilled occupation.

1. Having identified the Description and Tasks information in ANZSCO in relation to the occupation of Registered Nurse nec, the Tribunal has considered the actual subjects studied in the Advanced Diploma of Leadership and Management course by the applicant, and compared these, and the content of these subjects as particularised in the applicant’s submissions, to the specific tasks of Registered Nurse (from ANZSCO) to determine if the subjects overall, and therefore the qualification, is ‘closely related’ to the nominated skilled occupation. The applicant’s submissions in relation to each of tasks and the relevant subjects from Advanced Diploma of Leadership and Management included as follows:

Registered Nurse Task	Applicant’s submissions (unedited)
Assessing, planning, implementing and evaluating nursing care for patients according to accepted nursing practice and standards	The units BSBMGT616 – develop and implement strategic plans and BSBMGT617 – develop and implement a business plan are utilised as these subjects are parallel in creating a nursing care plan, where as a nurse you carefully identify and assess each and every need of the patient and implement a plan to handle and provide effective nursing care. By understanding the identified health factor / issue, a nurse can develop and implement a strategic plan on how to provide efficient and accepted nursing practice and standards. At the same time, developing and implementing a business plan can provide strategies for other nurses to follow.
Working in consultation with other Health Professionals and members of health teams and coordinating the care of patients	The units BSBINN601 – lead and manage an organisational change, BSBMGT615 – contribute to organisational development, BSBFIM601 – Manage Finances and BSBMGT605 – provide leadership across and organisation have all helped me to work within the chain of command and work my way up as a team leader in a medical ward. As a charge nurse I am in charge in implementing leadership management, coordinating with other health practitioners and professional and providing help and assistant to my staff members. At the same time, ensuring that my staff as a fair patient ratio and maintaining appropriate KPIs. The units helped me to be prepared in communicating and answering questions as to my general manager regarding about the situation in the ward.
Providing interventions treatments and therapies such as medications and monitoring responses to treatment and care plan	The units BSBRSK501 – manage risk and BSBWHS605 – develop, implement and maintain WHS management systems and BSBSUS501 – develop workplace policy and procedures for sustainability are relevant as being to fully understand, detect and identify risk factors that contribute to the health of the patient helps performs my job efficiently and effectively. Having workplace learning through online learning, team training, mentorship, and skills enhancements can expand the skills and experiences of a nurse to easily identify, detect and eliminate risk factors that contribute to the well being of the patient, and to the health and safety of the workplace. Furthermore, developing health policies in a workplace such as no lifting policy, falls policy helps ensure that the health and safety of the nurses who works in the ward are well maintained. Also having an understanding on how to manage emotions in times of stress with heavy patient workload and anxiety related to patient’s expectation and demands. I can easily manage and provide efficient customer service via continuing expansion of knowledge through experience by means that I, can approach my work methodically and calmly.
Promoting health and assisting in preventing ill health by participating in health education and other health promotion activities	Utilising the units BSBMKG609 – develop a marketing plan and BSBMGT608 – Manage innovation and Continuous Improvement helps me as a nurse to participate and promote other health ideas that will help improve my skills as a nurse and as a leader in educating other nurses and student nurses. Developing and managing innovation in health via research and other health workers but as well as to the patient needs.
Answering questions and providing information to patients and families about treatment and care	The unit BSBMGT616 – Develop and Implement Strategic Plans provided me the appropriate information on how to manage patient’s relatives and friends in answering there needs regarding about the care rendered and treatment provide. Having a understanding on how customer services works also provided me the knowledge on how to keep my emotions intact and handle or diffuse the situation between difficult patient’s and families who are anxious about there care or how the service of the hospital in the general.
Supervising and coordinating the work of Enrolled Nurses and other health care workers	BSBMGT605 – provide leadership across and organisation has been utilised greatly. As a charge nurse in a nursing ward having knowledge and background study in leadership provided me the confidence and information I need to tackle the role such as team leader / charge nurse. As a charge nurse I am in charge in managing my staff members in per shift and allocating fair patient ratio to the next incoming staff shift. As charge nurse I am also in charge in providing education and assistant to my fellow Enrolled nurse, Assistant in Nursing and Nursing Students making sure that they are safe and have all of their needs to render efficient and effect nursing care.

1. The applicant submitted that the Advanced Diploma in Leadership and Management helped him to be prepared in his current job as a registered nurse in charge of a medical ward, and that having knowledge and education in the course helped him to organise effectively the things he does in his day-to-day job as a nurse, and that he believes the course will help him progress in a higher position one day as a unit nurse manager.

2. The applicant’s evidence to the Tribunal included that he is currently employed at Darwin Private Hospital. He is a registered nurse in one of the medical wards. He was promoted to be a charge nurse/ team leader in February 2018. That role goes beyond the role of a registered nurse. As a team leader, he handles the ward and the staff and allocates the nurse/patient ratio and oversees issues that arise for patients. There is a nurse unit manage above him. He is a charge nurse on the shift. He supervises registered nurses, enrolled nurses, assistant nurses and student nurses. His role is somewhere between the role of a registered nurse and the role of a nurse unit manager.

3. The applicant told the Tribunal that before coming to Australia, he completed a Diploma in Nursing which qualified him to be an Enrolled Nurse. After finishing the Advanced Diploma in Leadership and Management, he applied for a bridging program to be qualified as a registered nurse in Australia. Ms Kurup was the person who mentored him for the bridging program. She was his educator when he was doing the bridging program which he finished in May 2017. He was required to do a three month course which was done in Melbourne. The course was done with Education Training and Employment Australia in Melbourne.

4. Submissions on behalf of the applicant included that nurses are considered the managers of the healthcare industry. Reference was made to the letter from Ms Wagle where she stated ‘nurses are manager for the healthcare system and more than 50% of the role is based in management.’ It was submitted that, as referenced in the decision of Tobon v Minister for Immigration & Anor [2014] FCCA 2208, there does not have to be a direct ‘overlap’ or ‘match’ between the subject matter of the course and the nominated skilled occupation in order for an applicant to be able to qualify for a Temporary Graduate visa. All that is necessary is that the skills that are gained through the Australia study must be capable of being used for more than a small part of the skilled occupation.

5. Oral submissions included that it is not just supervisors that are required to do tasks that would be considered managerial in terms of coordinating patients but that registered nurses also coordinate other health care professionals like enrolled nurses. The Tribunal discussed with the applicant’s representative that that may well be accepted, but the issue might remain as to whether that part of the tasks of a Registered Nurse nec, amounts to a substantial proportion of the tasks of the occupation such that a finding can be made that the qualification is closely related, including having had regard to Ms Wagle’s estimate of 50%, and Ms Kurup’s estimate of 65%, of a nursing role being based in management.

6. The Tribunal discussed with the applicant that the letters from Ms Kurup and Ms Wagle refer to a Leadership and Management qualification being essential to progress in the profession as a Nurse Supervisor or a Nurse Unit Manager and that both letters otherwise note that such a qualification is “related” to the operational task of the role of a nurse.

7. The Tribunal asked the applicant whether in undertaking the Advanced Diploma of Leadership and Management, there was any particular focus on the nursing or the medical environment. The applicant responded in the negative and stated that it was a very generalised focus. He noted that a Nursing Care Plan is similar to the development and implementation of strategic plan subject, for which subject he did a case study on mobile phones. The Tribunal also discussed the other subjects in the Advanced Diploma of Leadership and Management course in some detail with the applicant and the applicant gave examples of how the subjects and the learning from the subjects can be used in the various tasks of a registered nurse. The Tribunal had careful regard to the applicant’s written analysis of the tasks of a registered nurse as compared to the subjects studied, and his oral evidence in that regard.

8. The Tribunal discussed with the applicant and representative that by way of comparison, if the nominated skilled occupation was that of Nurse Manager, it might be considered that the Advanced Diploma of Leadership and Management qualification was closely related to that occupation, with the tasks of a Nurse Manager seeming much more leadership and organisation oriented than those of a Registered Nurse. Notably the tasks identified for a Nurse Manager 254311 in ANZSCO, as discussed with the applicant, are:

   1.developing and implementing and monitoring policies and objectives of nursing care as they apply to units staff and community groups

   2.coordinating the allocation of human and material resources for a health service unit such as recruitment of staff human resource management preparation of budgets and fiscal management

   3.monitoring and controlling the performance of nursing and support staff within the unit and providing leadership

   4.initiating studies to evaluate the effectiveness of nursing services in the unit in relation to objectives costs and nursing care

   5.promoting working relationships with community agencies and health and education providers

   6.contributing to organisational objectives in relation to quality safety and risk management

9. In considering all of these matters, the Tribunal notes that the court in Tobon stated that:

   “the decision-maker must undertake the following steps:

   1.First, the decision-maker must identify the study or training for which the diploma was granted, and the skills the applicant acquired as a result of such study or training (acquired skills)

   2.Second, the decision-maker must identify the set of skills that are associated with carrying on the nominated skilled occupation (nominated skills)

   Third, the decision-maker must determine whether all or a substantial proportion of the acquired skills are nominated skills, If the decision-maker so determines, the diploma is closely connected with the nominated skilled occupation.”

10. However, the Tribunal also took into account the Full Federal Court’s observations on that approach in Talha and, as already noted, the need to compare the whole of the visa applicant’s studies against the whole of the nominated occupation.

11. The Tribunal finds that the set of skills associated with the carrying on the nominated skilled occupation of Registered Nurse nec 254499 are consistent with the tasks for this occupation as listed in ANZSCO and as set out in paragraph 36 of these Reasons, that is:

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

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

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

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

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

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

12. Consistent with the approach suggested by the Court in Talha, the Tribunal also considered the tasks described for Unit Group 2544 Registered Nurses, Minor Group 254 Midwifery and Nursing Professionals, Sub-Major Group 25 Health Professionals and Major Group 2 Professionals of which the Occupation Registered Nurse nec 254499 forms part.

13. The Tribunal is satisfied from analysing the qualifications and the relevant tasks for the whole of the occupation of Registered Nurse nec that some of the skills acquired from the Advanced Diploma in Leadership and Management course are associated with carrying on the nominated skilled occupation as a Registered Nurse. For example, skills gained in providing leadership across an organisation would assist in the tasks of a Registered Nurse in supervising and coordinating the work of enrolled nurses and other health care workers. The Tribunal is also satisfied that the Advanced Diploma in Leadership and Management would be of some relevance generally to the tasks of a Registered Nurse. The Tribunal notes that there does not have to be a direct ‘overlap’ or ‘match’ between the subject matter of the course and the nominated skilled occupation but the skills that are gained must be capable of being used for more than a small part of the skilled occupation. The Tribunal also accepts that someone in the occupation of Registered Nurse would contribute to organisational development by providing practical feedback based on day-to-day experience. However, the Tribunal is not satisfied that a Registered Nurse plays a managerial role in terms of skills which would be developed from completing subjects such as developing and implementing strategic plans and business plans, development and implementing WHS Management Systems, developing workplace policy and procedures for sustainability, providing leadership across an organisation, developing a marketing plan, leading and managing organisational change, managing innovation and continuous improvement, managing finance and managing market research, which were part of the Advanced Diploma in Leadership and Management undertaken by the applicant.

14. The Tribunal accepts that some of the skills acquired from these subjects may well be being utilised by the applicant in his current role, which on the evidence in practice is a role somewhere between that of Registered Nurse and a Nurse Unit Manager, or may well be beneficial to the applicant in his further career aspirations, but having taken all matters into account is not satisfied that the acquired skills are closely related to the nominated skilled occupation of Registered Nurse as opposed to, for example, a Nursing Manager.

15. As discussed with the applicant at hearing, the acquired skills from the qualification are more analogous to the occupation of Nursing Manager, which although part of the same Minor Group, Sub-Major Group and Major Group as Registered Nurse nec, importantly is part of a different Unit Group, and is not the relevant skilled occupation nominated by the applicant in their visa application.

16. Having taken into account all of these matter, the Tribunal is unable to be satisfied that the Advanced Diploma of Leadership and Management is ‘closely related’ to the nominated skilled occupation of Registered Nurse nec.

17. It follows that cl.485.222 is not met in relation to the Advanced Diploma in Leadership and Management course.

    Conclusion

18. In conclusion therefore, the Tribunal is only satisfied that the Diploma in Nursing is closely related to the nominated skilled occupation of Registered Nurse and not the Advanced Diploma in Leadership and Management qualification. Clause 485.222 is therefore only met in relation to the Diploma in Nursing. As the academic duration of the Diploma of Nursing course is only 83 weeks, and that course was not completed within the period of six months immediately before the visa application on 21 June 2017, that course alone does not satisfy the Australian study requirement.

19. Not all of the courses relied upon to satisfy the Australian study requirement are closely related to the applicant’s nominated skilled occupation as required.

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.

    Susan Trotter
    Member