Undag (Migration)

[2018] AATA 203

Undag (Migration) [2018] AATA 203 (7 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Everly Ingod Undag
Mr Charlie Pajabes Undag
Mr Chev Harvey Ingod Undag

CASE NUMBER:  1709377

DIBP REFERENCE(S):  BCC2017/793930

MEMBER:Catherine Carney-Orsborn

DATE:7 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 07 February 2018 at 3:35pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Nominated skill occupation – Registered nurse – General skill set – Complementary skills – Qualifications not closely related

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15I, 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 11 April 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 28 February 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 delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl.485.222 of Schedule 2 to the Regulations because they found that the Diploma Leadership Management was not closely related to the applicant’s nominated occupation of Registered Nurse.

4. The applicants appeared before the Tribunal on 6 February 2018 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their 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 first named applicant (the applicant) is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes cl. 485.222 of Schedule 2 to the Regulations. This requires 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?

8. 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). The relevant instrument for this purpose is Legislative Instrument  IMMI 16/059.

9. In this case, 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 23 December 2015.  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 28 February 2017.  The applicant is therefore relying on the Diploma of Leadership and Management completed on 2 September 2016 to satisfy the Australian study requirement.

10. 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.

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

12. The applicant arrived in Australia in 2011 on a student visa.  She has been on subsequent student visas and has a Certificate III in children’s services, a Diploma of children’s Services, a Bachelor of Nursing and a Diploma of Leadership and Management.

13. She is currently working in a nursing home as a registered nurse.  She said that her ambition is to be a nurse unit manager. The Tribunal explained that its task was to look at whether the qualification is closely related to the nominated occupation rather than on the applicant’s proposed career path.   The Tribunal asked her to outline her tasks. She said she is currently doing night shifts at the nursing home.  She said that she is expected to supervise the carers who are washing, showering etc. the residents.  The applicant said she has to budget.  The Tribunal asked her how she was budgeting.  She replied with words to the effect that if her patients’ needs pads or shampoo she will consider the budgets.

14. The Tribunal asked who her supervisors were.  She said there is a Facility Manager and a Assistant Facility Manager.

15. The applicant stated that she had a nurse manager and a clinical manager.

16. The applicant went through how she always wanted to broaden her knowledge.  She said she hopes to one day be a nurse manager.  She has taught at a children’s school and she claims she is responsible for the night staff.  She said she had future career opportunities and her qualifications are relevant.

17. In submissions on the Department and Tribunal file the applicant set out the tasks of a registered nurse according to ANZSCO and the subjects studied in the Diploma of Leadership and Management.  The applicant claims that the subjects are directly related to and highly supporting of her nursing degree and her career as a registered nurse.  The submissions go on to claim that it is essential for every nurse to have leadership and managerial knowledge.

18. 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.

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

20. 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 the only task that may be said to involve some managing skill is “supervising and coordinating the work of Enrolled Nurses and other health care workers.”

21. The applicant claimed at hearing that she has been employed at a nursing home for a year.  She is a first year registered nurse.  She claimed she supervised other staff.  The applicant may have a supervisory role of a reduced staff on a night shift in a nursing home however the Tribunal does not accept that she is expected to undertake a managerial role such as managing budgets and financial plans, develop workplace policy and procedures, undertake project work, plan E-marketing communications, implement diversity in the workplace, manage operational plan, lead and manage effective workplace relationships and manage quality customer service.  These are all roles that would be expected of her managers.  She referred to having two managers in her workplace that carry out those roles. The Tribunal accepts that general skills such as developing and use emotional intelligence and manage personal work priorities and professional development is something that would be beneficial to any worker and may be complementary to her career ambitions but are not a set of skills that are associated with the nominated occupation of registered nurse.

22. 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 Diploma of Leadership and Management as a whole, and the submissions and evidence presented, the Tribunal is not persuaded that the relationship between the Diploma of Leadership and Management and the occupation of registered nurse is closely related.

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

24. As the first named applicant does not satisfy the primary criteria the secondary applicants do not met the criteria for the grant of the visa as dependents of the first named applicant.

25. On the basis of the above findings, the applicants do 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

26. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Catherine Carney-Orsborn
    Member