Xue (Migration) - [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

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).
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.
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.
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.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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.
The applicant stated that he understood that the visa application was refused because the decision said the Advanced Diploma of Interpreting was not related to his nursing course.
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 qualifications
and 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, Australia
These 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 experience
This 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 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

Occupations:
254411 Nurse Practitioner
254412 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 nec

254412 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: 1
Specialisation:
Registered Nurse (Gerontology)”
Relevant principles
The Tribunal is guided by the decision of the Full Court in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 (25 August 2015) (Griffiths, Mortimer and Beach JJ), which includes the following:
“[53] Of course, it is ultimately a matter for the primary decision-maker and, on a statutory review, the Tribunal, to decide whether Mr Talha’s Australian studies are “closely related” to his nominated skilled occupation. But in carrying out the evaluative exercise it is critical that the whole of Mr Talha’s Australian studies be compared with the whole of his nominated occupation, as established in previous decisions of the Court, including Dhillon at [20] per Allsop CJ, Murphy and Pagone J, Constantino at [26] per Jacobson J and Bhanot at [29] per Perry J. As the Full Court stated in Dhillon at [20]:
The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26]. That is what the Tribunal did. The Tribunal informed itself about the nature of the skilled occupation of pastry cook by considering the Australian Standard Classification of Occupations (ASCO) and compared that with the course content submitted by Mr Dhillon for the units undertaken by him in the business management course completed at the Nova Institute. At [91] the Tribunal considered that the requirement of a qualification being “closely related” to the nominated occupation required that the relationship between the skills gained in the qualification were more than merely complementary to the occupation or that the skills could be used in that occupation. The Tribunal did not ask itself an incorrect question when determining whether the qualifications relied upon by Mr Dhillon were closely related to his nominated profession of pastry cook (see Bhanot v Minister for Immigration and Border Protection [2014] FCA 848, [21], [24], [38]) and on the materials its finding was open to the Tribunal.

(Emphasis added).
The point of distinction between Dhillon and this proceeding is that the Tribunal here did not properly construe and apply the relevant parts of the ANZSCO Code which related to Mr Talha’s nominated skill occupation.”
The Tribunal considers that the decision of Murphy J in Singh v Minister for Immigration and Border Protection [2017] FCA 1108 (19 September 2017) to be instructive to the Tribunal in considering the application currently before the Tribunal. His Honour stated the following:
“In Prasad v Minister for Immigration & Citizenship [2012] FCA 591 at [4] Logan J noted that the relevant Department’s “Procedures Advice Manual” provided:
The ‘closely related’ requirement is to ensure that applicants have qualifications compatible with their nominated skilled occupation. Under policy, the critical factor in determining whether a qualification is closely related to the nominated skilled occupation is whether the skill set/s underpinning the qualifications/s are complimentary [sic] and can be used in the nominated occupation, in terms of both subject matter and the level at which those skills were obtained.
(Emphasis in original.)
His Honour said (at [24]):
“Closely related” certainly does not require an exact correspondence. As used adverbially, closely imports a meaning of “near” in the present context. “Related” requires a relevant relationship between the nominated course of study and the nominated occupation. The construction promoted by the Minister in his manual, although not in this court on appeal, is a more remote relationship than that specified in the regulation.
In Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 at [20] (Allsop CJ, Murphy and Pagone JJ) the Full Court said:
The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26].
Further, the Tribunal considers that the following decision of Kendal J in Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1404 (24 June 2021) to be instructive with respect to the current case regarding the matter of ‘closely related’ for the purposes of the criteria pertaining to the Regulations to satisfy a 485 Visa:
54.        In Singh v Minister for Home Affairs[2020] FCA 203, the Federal Court summarised the principles in relation to the meaning of “closely related” as follows:
23.        As is apparent from the Tribunal’s reasons, it considered the trio of relevant cases in this Court on the meaning of “closely related”: Minister for Immigration and Border Protection v Dhillon & Anor [2014] FCAFC 157; (2014) 227 FCR 525 (Dhillon); Talha v Minister for Immigration and Border Protection & Anor [2015] FCAFC 115; (2015) 235 FCR 100 at [53] and Constantino v Minister for Immigration and Border Protection & Anor [2013] FCA 1301; (2013) 139 ALD 567 at [26].
24.        The principles to be derived from those three cases are not in issue. They are:
(a) The words “closely related” require a consideration of the connection between two things, being the relevant course of study and the occupation the subject of the visa application.
(b) The comparison does not require a finding of an exact correspondence between the course of study and the occupation but does require that “the whole of the qualification” must be compared with the “whole of the occupation” to determine whether the necessary close relationship exists.
(c) A conclusion that the qualification and the occupation are “closely related” requires more than a conclusion that the two things are complementary, or that the qualification might be applied or utilised in the course of the nominated profession.
25.        As the Tribunal noted, the nature of the nominated occupation is to be determined by reference to the “Australian and New Zealand Standard Classification of Occupations” (ANZSCO), which needs to be read as a whole and with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation. In considering the comparison between the course of study and the occupation, it is not appropriate to rely upon the applicant’s view or description of what the occupation entails or the applicant’s view of the degree of any relevant connection: Chawdhury v Minister for Immigration & Anor[2010] FMCA 275 at [12]; Kabir v Minister for Immigration and Citizenship & Anor[2010] FMCA 577; (2010) 244 FLR 25 at [70]; Shafiuzzaman v Minister for Immigration & Anor[2011] FMCA 874 at [58].
55.        Here, the Tribunal’s application of the principles was sound.
56.        The Tribunal informed itself about the nature of the nominated occupation by considering the ANZSCO and the applicant’s evidence about what is required of a chef. It accepted that the applicant would have obtained management skills as a part of his Diploma of Management. It expressly noted that staff selection and training are part of the role of a chef (and could be considered management responsibilities). However, the management skills which the applicant had obtained (and which were the “whole of the qualification”) were not relevant to the “whole of the occupation”. Rather, it was determined that there were few management responsibilities included in the role expected of a chef (at [16]).
57.        Further, after careful consideration, the Tribunal did find that the applicant’s management skills (which he had obtained through the Diploma of Management) would be “useful”. The Tribunal noted the skills were relevant, on the applicant’s own evidence, to a future occupation (as, perhaps, a head chef). However, their relevance or usefulness to the “nominated occupation” was not readily apparent. Nor did the evidence indicate that the skills obtained in the Diploma of Management were such that they played a meaningful part in relation to the tasks required of a chef.
58.        The Tribunal’s application of law to the facts in this scenario was entirely sound.
59.        To the extent that the applicant now says that the Tribunal’s approach in this regard is “theoretical”, rather than “practical” (as was raised by the applicant in his oral submissions before this Court), the Court disagrees. It cannot be said here that the Tribunal’s findings were not open to it on the evidence. While this Court might have determined differently, that is not the relevant test on review. Here, as correctly argued by the Minister (at [43]) the Tribunal’s decision cannot be described as illogical or irrational in the sense that the Tribunal formed a view that no rational or logical decision maker could have arrived at on the same evidence: SZMDS at [130].
60.        Ground 3, and the applicant’s submissions that the “AAT decision is wrong in law” and/or “too theoretical” are, accordingly, dismissed.”
Does the applicant meet the Australian study requirement?
Under reg 1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:
·that are registered courses; and
·that were completed in a total of at least 16 calendar months; and
·that were completed as a result of a total of at least 2 academic years study; and
·for which all instruction was conducted in English; and
·that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
‘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). ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (r.1.15F(2)). For the purposes of this case, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000 (LIN 19/085 - Legislative Instrument).

The Tribunal is satisfied that the applicant completed the following courses of study in the English language at a registered Australian institution and that the most recent course was completed within the 6 month period prior to application on 13 November 2019:
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.
Further, the Tribunal is satisfied that the three courses of study were completed in more than 16 calendar months and with a period of greater than 2 years of academic study.
The Tribunal is satisfied that the Australian Study requirement, by combining the applicant’s most recent course, has been met. In this regard, the Tribunal accepts that qualifications may be combined to meet the Australian study requirement, providing one of them was completed in the 6 months immediately preceding the date of the visa application, which in this case is the Advanced Diploma of Interpreting. As such, the applicant has completed at least 2 years of academic study in the English language, whilst holding an authorised visa.
The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application.
Therefore, the applicant meets cl.485.221.
Is the qualification ‘closely related’ to the nominated occupation?
In addition, cl 485.222 requires each qualification used to satisfy that requirement is closely related to the applicant’s nominated skilled occupation, unless the visa application was made in the period mentioned in paragraph 1229(3)(ka) of Schedule 1 to the Regulations. In this case, the visa application was not made during that period.
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 (regs 1.03 and 1.15I).
In this case, the applicant nominated the occupation of Registered Nurse (Aged Care) – ANZSCO Code: 254412, which is a skilled occupation specified in the relevant instrument.
The applicant provided a transcript of the subject material undertaken in the Advanced Diploma of Interpreting at Sydney Institute of Interpreting and Translating that included the following subjects:
·Interpret in complex dialogue settings (LOTE – English)
·Interpret in complex monologue settings (LOTE – English)
·Interpret through communication media
·Manage discourses in complex settings
·Sight translate (LOTE – English)
·Use complex subject area terminology in interpreting (LOTE-English)
·Apply codes and standards to professional judgement
·Negotiate translating and interpreting assignments
·Build glossaries for translating and interpreting assignments
·Maintain and enhance professional practice
·Use chuchotage (whispered simultaneous) to interpret (LOTE-English)
·Use note taking to recall and reproduce source messages (LOTE-English)
·Demonstrate complex LOTE proficiency in different subjects and cultural contexts
·Interpret as part of a team
·Apply theories to translating and interpreting work practices
The Tribunal in considering whether a qualification is closely related to the nominated occupation, is not undertaking an assessment of whether any skills obtained from a qualification would benefit the applicant or be useful for a particular occupation. It is required to consider whether the qualifications are closely related to the nominated occupation and not any potential job in a particular type of company or future career.
The Tribunal accepts that communication skills are important in the Nursing profession, however, this is not the relevant test for ‘closely related’. The test requires a relevant relationship between the nominated course of study and the nominated occupation. The units of competency for the qualification of the Advanced Diploma of Interpreting are relied upon by the applicant to generally ensure competency in translating text or written information from one language into another language and interpreting information and understanding between different languages, which in this case is in an environment of critical health care for vulnerable aged care residents. The applicant has skills to assist professional administer care plans, communicate with medical professionals and families and translate documentation to ensure patients/residents comprehend the treatment being administered.
The Tribunal has reviewed the core duties undertaken by a Registered Nurse (Aged Care), as provided in ANZSCO Code: 254412, and is satisfied that the skills acquired through the study of an Advanced Diploma of Interpreting, described in the transcript provided herein, is ‘closely related’ to the nominated occupation of Registered Nurse (Aged Care).
The Tribunal has considered the highest hierarchy within which the applicant’s nominated occupation of Registered Nurse (Aged Care) is Major Group 2 Professionals. The ANZSCO descriptor states that Professionals ‘perform analytical, conceptual and creative tasks through the application of theoretical knowledge and expertise in the fields of the arts, media, business, design, engineering, the physical and life sciences, transport, education, health, information and communication technology, the law, social sciences and social welfare’. In this regard, the Tribunal accepts that the Major Group 2 Professionals, includes health, social sciences and social welfare, which precisely includes the occupation of Registered Nurse (Aged Care) to ‘perform analytical, conceptual and creative tasks through the application of theoretical knowledge and expertise in the fields of health, social sciences and social welfare’, as described. As such, the skills provided from the study of an Advance Diploma of Interpreting, includes skills to ‘perform analytical, conceptual and creative tasks through the application of theoretical knowledge and expertise in the fields of health, social sciences and social welfare’.
The Tribunal accepts that the skills of a Register Nurse (Aged Care) provided in ANZSCO Code: 254412 has sufficient scope to include translating and interpreting skills to perform the duties described for the occupation, that includes:
·assessing, planning, implementing and evaluating nursing care for patients according to accepted nursing practice and standards
·working in consultation with other Health Professionals and members of health teams, and coordinating the care of patients
·providing interventions, treatments and therapies such as medications, and monitoring responses to treatment and care plan
·promoting health and assisting in preventing ill health by participating in health education and other health promotion activities
·answering questions and providing information to patients and families about treatment and care
·supervising and coordinating the work of Enrolled Nurses and other health care workers
The Tribunal considered the relationship of the applicant’s qualifications to the ANZSCO definition of the occupation. The Tribunal compared the whole of the Australian studies with the whole of the nominated occupation. As such, the Tribunal is satisfied that on the overall evidence, the Advanced Diploma of Interpreting and Diploma of Interpreting qualifications are ‘closely related’ to the applicant’s nominated occupation of Registered Nurse (Aged Care), as claimed.
Overall, the Tribunal considers that the units of competency for the Interpreting qualifications, as a whole, are qualifications that are ‘closely related’ to the nominated occupation of Registered Nurse (Aged Care), as claimed.
As each qualification used to satisfy the Australian study requirement is closely related to the nominated skilled occupation, the applicant meets cl 485.222.
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 AM
Member