Xue (Migration)

Case [2023] AATA 1000

Xue (Migration) [2023] AATA 1000 (20 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tao Xue

REPRESENTATIVE:  Mr Michael Xu (MARN: 0002637)

CASE NUMBER:  2002223

HOME AFFAIRS REFERENCE(S):          BCC2019/5735221

MEMBER:Warren Stooke AM

DATE:20 April 2023

PLACE OF DECISION:  Melbourne

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 485.221 of Schedule 2 to the Regulations

·cl 485.222 of Schedule 2 to the Regulations

Statement made on 20 April 2023 at 8:43am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – occupation of Locksmith – Australian study requirement – courses closely related to skilled occupation – relationship between Interpreting skills and Nursing occupation – nursing accreditation – skills being complementary used in age care employment – decision under review remitted   

LEGISLATION
Education Services for Overseas Students Act 2000

Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15; Schedule 2, cls 485.111, 485.221, 485.222

CASES
Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1404
Singh v Minister for Immigration and Border Protection [2017] FCA 1108
Talha v MIBP [2015] 235 FCR 100

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 28 January 2020 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant applied for the visa on 13 November 2019. 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 (Cth) (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 visa because the applicant did not satisfy cl 485.222 of Schedule 2 to the Regulations because the applicant’s Advanced Diploma of Interpreting (LOTE-English) is not closely related to their nominated occupation of 254412: Registered Nurse (Aged Care) and that the applicant does not meet the requirement of Regulation 485.222.

  4. The applicant appeared before the Tribunal on 16 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

  5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

  6. The applicant stated that he had received a copy of the decision from the Department, which he had read. A copy of the decision was provided to the Tribunal with the application for review.

  7. The applicant…

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Details
AGLC
Xue (Migration) [2023] AATA 1000
Case
[2023] AATA 1000
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, made by an applicant seeking to satisfy the primary criteria under clauses 485.221 and 485.222 of Schedule 2 to the Regulations. The dispute centred on whether the applicant had met the Australian study requirement and whether the qualifications obtained were closely related to the applicant's nominated skilled occupation.

The legal issues before the Tribunal were whether the applicant had satisfied the Australian study requirement in the six months prior to the visa application, and whether each degree, diploma, or trade qualification used to meet this requirement was closely related to the applicant's nominated skilled occupation. The applicant had completed a Bachelor of Nursing and diplomas in Interpreting, and sought to have their application reviewed for the nominated occupation of Registered Nurse (Aged Care).

The Tribunal reasoned that the applicant's Bachelor of Nursing qualification was recognised by the Australian Nursing and Midwifery Accreditation Council (ANMAC) as commensurate with an Australian Bachelor degree for migration purposes. Furthermore, the Tribunal considered the applicant's work experience in aged care, where their interpreting skills were utilised to facilitate communication between residents, families, and medical professionals. The Tribunal concluded that the applicant's interpreting skills were complementary to their nursing qualifications and were used in their aged care employment.

Consequently, the Tribunal found that the applicant met the requirements of clauses 485.221 and 485.222 of Schedule 2 to the Regulations. The Tribunal remitted the visa application to the Minister for reconsideration, with the direction that these specific criteria had been met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.221) and secondly, unless limited circumstances apply, 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(1)). The issue in the present case is whether the applicant meets those requirements. The applicant provided evidence that he arrived in Australia in 2011 to attend High School and was granted a Bridging Visa A on 13 November 2019 that has condition 8501 health insurance and that his unaccompanied spouse would join later. The applicant provided evidence of the completion of the following courses of study:a.Bachelor of Nursing from 10/02/2014 to 16/07/2018 at UTS; b.Diploma of Interpreting (LOTE-English) from 23/07/2018 to 17/02/2019 at Sydney Institute of Interpreting and Translating – awarded 19 February 2019;c.Advanced Diploma of Interpreting (LOTE-English) 04/03/2019 to 29/09/2019 at Sydney Institute of Interpreting and Translating – awarded 18 August 2019. The applicant provided evidence of an assessment by the Australian Nursing and Midwifery Accreditation Council (ANMAC) dated 30 October 2019, as follows:“The Australian Nursing & Midwifery Accreditation Council (ANMAC) has completed the assessment of your qualificationsand experience based on the documentation provided. Your skills have been assessed as suitable for migration for the nominated occupation of 254412 Registered Nurse (Aged Care).The applicant has completed the following education to gain Australian/New Zealand registration;· Bachelor Degree from University of Technology Sydney, AustraliaThese educational qualifications have been recognised by ANMAC as being commensurate with at least an Australian Bachelor degree for the purposes of awarding points for qualifications under the General Skilled Migration points test.The assessment has been made based on the following items of evidence:· Australian/New Zealand registration documents· Copy of the qualification· Evidence of work experienceThis advice is in the opinion of ANMAC and does not guarantee the awarding of any points under the skilled migration points test. Determination of points under the skilled migration points test remains at the discretion of delegated officers of the Department of Home Affairs.This determination is valid for migration purposes for two years commencing 30/10/2019.This letter was issued by ANMAC in Canberra on 30/10/2019.” The applicant provided evidence of the maintenance of health insurance with BUPA from 30 November 2019.

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl 485.221 and 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.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 485.221 of Schedule 2 to the Regulations·cl 485.222 of Schedule 2 to the Regulations.Warren Stooke AMMember

Ratio Decidendi

Legal Principle Established

The applicant provided evidence of an assessment by the Australian Nursing and Midwifery Accreditation Council (ANMAC) dated 30 October 2019, as follows:“The Australian Nursing & Midwifery Accreditation Council (ANMAC) has completed the assessment of your qualificationsand experience based on the documentation provided. Your skills have been assessed as suitable for migration for the nominated occupation of 254412 Registered Nurse (Aged Care).The applicant has completed the following education to gain Australian/New Zealand registration;· Bachelor Degree from University of Technology Sydney, AustraliaThese educational qualifications have been recognised by ANMAC as being commensurate with at least an Australian Bachelor degree for the purposes of awarding points for qualifications under the General Skilled Migration points test.The assessment has been made based on the following items of evidence:· Australian/New Zealand registration documents· Copy of the qualification· Evidence of work experienceThis advice is in the opinion of ANMAC and does not guarantee the awarding of any points under the skilled migration points test. Determination of points under the skilled migration points test remains at the discretion of delegated officers of the Department of Home Affairs.This determination is valid for migration purposes for two years commencing 30/10/2019.This letter was issued by ANMAC in Canberra on 30/10/2019.” The applicant provided evidence of the maintenance of health insurance with BUPA from 30 November 2019. The applicant provided evidence of the undertaking of a PTE English language test on 8 October 2019 with a score of 61. The applicant stated at hearing that he worked with Huntingdon Gardens for aged care that has 20 residents of Chinese background of the 171 residence in care, where his interpreting skills are used to interpret for the families and doctors to explain procedures medical treatments, support plans and also to provide written documentation. In this regard, the Tribunal received correspondence form the Huntingdon Gardens Aged Care Facility on 9 January 2023 that detailed the duties of the applicant in the provision of aged care to residents. The applicant has sought to have his application reviewed for the nominated occupation of Registered Nurse (Aged Care) – ANZSCO Code: 254412, as follows: “UNIT GROUP 2544 REGISTERED NURSESREGISTERED 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 standardsoworking in consultation with other Health Professionals and members of health teams, and coordinating the care of patientsoproviding interventions, treatments and therapies such as medications, and monitoring responses to treatment and care planopromoting health and assisting in preventing ill health by participating in health education and other health promotion activitiesoanswering questions and providing information to patients and families about treatment and careosupervising and coordinating the work of Enrolled Nurses and other health care workersOccupations:254411 Nurse Practitioner254412 Registered Nurse (Aged Care)254413 Registered Nurse (Child and Family Health)254414 Registered Nurse (Community Health)254415 Registered Nurse (Critical Care and Emergency)254416 Registered Nurse (Developmental Disability)254417 Registered Nurse (Disability and Rehabilitation)254418 Registered Nurse (Medical)254421 Registered Nurse (Medical Practice)254422 Registered Nurse (Mental Health)254423 Registered Nurse (Perioperative)254424 Registered Nurse (Surgical)254499 Registered Nurses nec254412 REGISTERED NURSE (AGED CARE)Provides nursing care to the elderly in community settings, residential aged care facilities, retirement villages and health care facilities. Registration or licensing is required.Skill Level: 1Specialisation:Registered Nurse (Gerontology)”Relevant principles