(ii) respondent's Bundle of Documents dated 25 February 2020;

(iii) respondent's Statement of Issues, Facts and Contentions dated 25 February 2020 (Respondent's SIFC);

(iv) applicant's Statement of Issues, Facts and Contentions dated 14 April 2020 (Applicant's SIFC);

(v) affidavit of Margaret Jane Grant (with attached documents) dated 19 June 2020 (MJG Affidavit);

(vi) applicant's responses to the affidavit of Margaret Jane Grant dated 21 July 2020 and 22 July 2020 (Applicant's MJG Responses);

(c) submissions of the applicant dated 1 September 2020 and 11 September 2020 (together, the Applicant's Submissions); and

(d) submissions of the respondent dated 3 September 2020 and 11 September 2020 (together, the Respondent's Submissions).

1. A further affidavit of Margaret Jane Grant was also filed on 3 September 2020 (MJG Reply Affidavit).
2. By consent, the Tribunal made an order on 7 September 2020 that, subject to any further order, the matter is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
3. In making its findings of material fact, and in determining the matter, the Tribunal has had regard to the documents listed in [3] above, as well as to the original application and the MJG Reply Affidavit.

1. Having reviewed the Agreed Bundle and the MJG Reply Affidavit, the Tribunal is satisfied that the facts as agreed between the parties are supported by the evidence. Accordingly, the Tribunal makes findings in terms of the Agreed Facts, as follows.

1. The Applicant is Ms Manju Thekkekara, an internationally qualified nurse seeking registration as an Enrolled Nurse in Australia.
2. The Respondent is the Nursing and Midwifery Board of Australia.
3. The Respondent is the National Health Practitioner Board for the professions of nursing and midwifery pursuant to Part 5, Div 1 of Schedule 2 to the Health Practitioner Regulation National Law (WA) Act 2010 (National Law).

Background

The Applicant's professional antecedents

1. The Applicant commenced a diploma in nursing and midwifery on 30 August 2000 at the Oxford School of Nursing in Bangalore, Karnataka State, India. The Applicant completed her studies on 31 August 2003.
2. The Applicant's diploma in nursing and midwifery from the Oxford School of Nursing is:
   1. her only qualification for the purpose of this proceeding; and
   2. comparable to an Australian AQF5 (diploma level qualification).
3. On 13 February 2004, the Applicant registered as a Registered Nurse/ Midwife with the Karnataka State Nursing Council in Bangalore.
4. From 2003 to 2004, the Applicant worked as a full-time Registered Nurse at the Jubilee Mission Medical College and Hospital in Thrissur, Kerala.
5. The Applicant relocated to Ontario, Canada, in around 2005. From 2005 to 2006, the Applicant worked as a personal support care provider at Hazelton Place, in Toronto, Canada.
6. On 18 June 2008, the Applicant became registered as a Registered Practical Nurse (RPN) with the College of Nurses of Ontario, Canada after passing a national exam and satisfying the registration requirements.
7. There is no equivalent to an RPN in Australia.
8. The Applicant is currently employed as a Nurse in the Long Term Care Homes and Services Division at the City of Toronto. The Applicant has held this position since 8 October 2008.

1. On 25 January 2019, the Applicant applied to the Australian Health Practitioner Regulation Agency (AHPRA) on behalf of the Respondent for registration as an Enrolled Nurse (Application).
2. As a component of the Application, the Applicant submitted to the Respondent (inter alia) an International English Language Testing System (IELTS) report form dated 16 January 2019, with a minimum overall band score of 7.5. The Applicant scored less than the minimum score of 7.0 in one individual component (6.0 for writing). Part 21 of the Application specified that a successful candidate must pass the IELTS with a minimum overall score of 7.0, and a minimum score of 7.0 in each individual component (listening reading, writing and speaking.)
3. On 20 March 2019, the Respondent wrote to the Applicant and requested, relevantly:

1. test results that met the English Language Skills Registration Standard (ELSRS) or a booking confirmation for an approved English language test; 2. a certified copy of the Applicant's academic transcript;

1. a response to an adverse disclosure event.
2. On 27 March 2019, the Applicant acknowledged receipt of the requests dated 20 March 2019, and addressed the adverse disclosure event.
3. On 5 April 2019, the Applicant requested that the Respondent waive the English proficiency requirement on the basis that her overall score was 7.5. The Respondent also indicated that the Karnataka Nursing Council was unable to provide a certificate of good standing.
4. On 9 April 2019, the Respondent advised the Applicant that the Applicant would need to provide compliant test results, and that a certificate of good standing was required.
5. On 15 April 2019, the Applicant provided the Respondent with a booking confirmation to sit an additional IELTS test on 27 April 2019. The Applicant also indicated that a certificate of good standing from the Karnataka Nursing Council would not be possible because at the time of the Applicant's registration in India, they had not 'introduced the system to keep the record of work history to provide the good standing certificate'.
6. On 16 April 2019, the Applicant wrote to the Respondent and indicated that the Karnataka Nursing Council had not responded to her requests for a certificate of good standing, and that all her emails and calls had not been replied to.
7. On 29 April 2019, the Respondent requested updated IELTS test results from the Applicant.
8. On 30 April 2019, the Applicant indicated to the Respondent that the results would be forthcoming.
9. On 8 May 2019, the Respondent received a verification of registration of the Applicant from the Karnataka State Nursing Council.
10. On 29 May 2019, the Applicant told the Respondent that her second IELTS results were not as good as her original IELTS results (without disclosing the results). The Applicant elected not to provide the additional IELTS results and continued her Application on the basis of the IELTS results contained in the Application. The Applicant requested that the English language test be waived because she was a Canadian citizen.
11. On 30 May 2019, the Respondent requested that the Applicant disclose the new IELTS results so that the Respondent could assess those results to determine whether the Applicant meets the English Language test pathway. The Respondent indicated that it could not provide exemptions to the required standards because the Applicant was a Canadian citizen.
12. On 31 May 2019, the Applicant reiterated that the results were not as good as the IELTS results submitted with the Application, so declined to provide them.
13. On 31 May 2019, the Respondent indicated to the Applicant that given the IELTS standard had not yet been met, it was likely that the Application would be refused.
14. On 6 June 2019, the Applicant asked the Respondent to take into consideration the Applicant's experience as a nurse in English­speaking Canada.
15. On 6 June 2019, the Respondent advised the Applicant that the English language standard must be met in order to gain general registration in Australia and requested the results of the Applicant's second IELTS results.
16. On 7 June 2019, the Applicant confirmed that she would not provide the second IELTS results and indicated that she submitted her Application without compliant IELTS results on the basis of advice from AHPRA that she could later provide test results.
17. On 7 June 2019, the Respondent again reiterated that the Respondent does not allow any exceptions when the English Language standard has not been met.
18. On 19 July 2019 the Respondent notified the Applicant that it proposed to refuse her application on the basis of the Applicant failing to satisfy the following requirements as set out in Health Practitioner National Law (National Law):
    1. The Applicant had not demonstrated that she was qualified for general registration as an Enrolled Nurse under section 53(b) of the National Law, as she failed to establish that she held a qualification considered to be substantially equivalent or based on similar competencies to an approved qualification. The Respondent considered that the Applicant's Diploma in General Nursing and Midwifery from the Oxford School of Nursing in Bangalore was not a qualification recognised for registration as an Enrolled Nurse.
    2. The Applicant had not provided the IELTS test results that met the ELSRS as required by section 55 of the National Law. The Applicant did not satisfy the minimum score of 7.0 in each of the four components of the IELTS.
19. The Respondent invited the Applicant to make further submissions within 30 days from the Respondent's 19 July 2019 letter, which the Applicant did not elect to do.
20. On 19 August 2019, the Respondent informed the Applicant that it had decided to formally refuse to grant her Application for registration.
21. By application dated 17 September 2019, the Applicant filed an appeal for review in the Tribunal pursuant to s.199 of the National Law. In her appeal to the Tribunal, the Applicant contended that despite the Respondent's decision to refuse her registration, the Applicant's:
    1. 10 years of experience as a nurse in Canada should allow her to be considered for registration; and
    2. overall score of 7.5 on the IELTS demonstrates her competence in English.
22. The Applicant has not yet provided an IELTS score or accepted equivalent that meets the required ELSRS.
23. Of particular relevance for these purposes, the Tribunal notes that, by its letter dated 19 August 2019 (Agreed Bundle, folio 2), the respondent notified the applicant of its decision to refuse her application for registration as an Enrolled Nurse (Decision) on the basis that the applicant:

(a) had not demonstrated that she was qualified for general registration as an Enrolled Nurse, which deficit could not be corrected by imposing a condition on her registration; and

(b) had not demonstrated that she met the English Language Skills Registration Standard (ELSRS) required for registration as an Enrolled Nurse, and therefore was not suitable for registration.

1. Registration of health practitioners is dealt with in Pt 7 of the National Law. The term 'health practitioner' is defined in s 5 of the National Law includes the 'midwifery' and 'nursing' professions, and includes a recognised speciality in either of those professions. Enrolled nurses are registered under Division 2 of the national (general) Register of Nurses (Table in s 222 of the National Law).
2. The respondent is a National Board (within the meaning of that term in s 5 of the National Law) with powers and responsibilities under the National Law in relation to the professions of nursing and midwifery.
3. In carrying out its functions, the Board is required have regard to the objectives and guiding principles of the national registration and accreditation scheme: s 4 of the National Law.
4. The objectives of the national registration and accreditation scheme are set out in s 3(2) of the National Law, relevantly as follows:

(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and

...

(d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and

(e) to facilitate access to services provided by health practitioners in accordance with the public interest; and

(f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners.

1. The guiding principles, set out in s 3(3) of the National Law, include that the scheme is to operate in a transparent, accountable, efficient, effective and fair way.
2. Section 77 of the National Law provides that a person may apply to a National Board for registration in a health profession, and sets out requirements for any such application.
3. If after considering an application, the National Board proposes to refuse to register an applicant, it must give written notice stating its reasons and inviting the applicant to make a submission by a stated date: s 81 of the National Law.
4. Section 82(1) of the National Law provides that, after considering an application for registration and any submissions made in accordance with a notice under s 81, the Board must:

(a) decide to grant the applicant the type of registration in the health profession applied for if the applicant is eligible for that type of registration under a relevant section; or

(b) decide to grant the applicant a type of registration in the health profession, other than the type of registration applied for, for which the applicant is eligible under a relevant section; or

(c) decide to refuse to grant the applicant registration in the health profession if ­

(i) the applicant is ineligible for registration in the profession under a relevant section [relevantly including s 52 of the National Law] because the applicant ­

(II) has not completed a period of supervised practice in the health profession, or an examination or assessment required by the Board to assess the individual's ability to practise the profession; or

(III) is not a suitable person to hold registration; or

(IV) is disqualified under this Law from applying for registration, or being registered, in the health profession; or

(V) does not meet a requirement for registration stated in an approved registration standard for the profession; or

(ii) it would be improper to register the applicant because the applicant or someone else gave the National Board information or a document in relation to the application that was false or misleading in a material particular.

1. Section 39 of the National Law provides that a National Board may develop and approve codes and guidelines, to provide guidance to the health practitioners it registers and about other matters relevant to the exercise of its functions.

1. The five 'types' of registration available under Pt 7 of the National Law are general, specialist, provisional, limited or non-practicing (see Palatty and Nursing and Midwifery Board of Australia [2013] WASAT 78 (Palatty) at [35] and [42]). In this case, the applicant relevantly applied for general registration as an Enrolled Nurse.
2. As noted in Palatty at [45] to be eligible for general registration in a health profession (including that of Enrolled Nurse), the person applying must in every case meet 'each and every one of the five criteria identified in s 52(1) of the National Law' (original emphasis), which provides:

An individual is eligible for general registration in a health profession if ­

(a) the individual is qualified for general registration in the health profession; and

(b) the individual has successfully completed ­

(i) any period of supervised practice in the health profession required by an approved registration standard for the health profession; or

(ii) any examination or assessment required by an approved registration standard for the health profession to assess the individual's ability to competently and safely practise the profession; and

(c) the individual is a suitable person to hold general registration in the health profession; and

(d) the individual is not disqualified under this Law or a law of a co­regulatory jurisdiction from applying for registration, or being registered, in the health profession; and

(e) the individual meets any other requirements for registration stated in an approved registration standard for the health profession.

1. In this case, the criteria in s 52(1)(a) (pertaining to the applicant's qualifications) and s 52(1)(c) and (e) (as they pertain to the applicant's satisfaction of approved registration standards, specifically the ELSRS) are of particular relevance.

1. Section 53 of the National Law sets out 'four possible and alternative routes' (Palatty at [47]) to meet the qualification requirements for general registration, which may be summarised as follows:

(a) the person holds an 'approved qualification', as defined by the National Law, being a specified and defined qualification: s 53(a); or

(b) the person holds a qualification that the Board considers substantially equivalent (in terms of the substantive competencies of the qualification) to an approved qualification (comparable qualification): s 53(b); or

(c) the person holds a qualification that is not an approved qualification or a comparable qualification, but has 'successfully completed' an examination or other assessment 'required or nominated by the Board (bridging qualification): s 53(c); or

(d) the person holds a qualification that is not currently an approved qualification or a comparable qualification but which previously qualified the person for registration, and pursuant to which the person was previously registered, under the National Law or its prior equivalent ('grandfathered' qualification): s 53(d).

1. Pursuant to s 39 of the National Law, the Board has published guidelines (relevant at the time of the applicant's application: Agreed Bundle, folios 41-48, and currently: Agreed Bundle, folios 49-58) setting out and explaining various criteria it has developed to determine comparable qualifications for internationally qualified nurses and midwives (IQNM Model).
2. The current IQNM Model (Agreed Bundle, folio 52) identifies three core criteria (Qualification Criteria) (which replaced the eight criteria that applied under the previous IQNM Model: Agreed Bundle, folio 42), as follows:

(a) criterion 1 - qualification recognised for registration:

Your qualification was recognised by a statutory registration/licensing body for registration as a registered nurse or midwife or enrolled nurse in the country your qualification was received and you have met any pre- registration examination requirements. Where there is only one level of nurse in your country your qualification will be assessed at the registered nurse level [;]

(b) criterion 2 - quality assurance and accreditation:

At the time you received your qualification as a registered nurse or midwife or enrolled nurse the qualification was subject to quality assurance and recognised or accredited by a body external to the education institution and based on published accreditation standards [; and]

(c) criterion 3 - academic level of qualification:

The academic level of your qualification is comparable to, at a minimum, an ... Australian Diploma level 5 (enrolled nurse) of the Australian Qualifications Framework.

1. Section 55(1) of the National Law provides that the Board may decide an individual is not a suitable person to hold general registration in a health profession if, relevantly:

(d) in the Board's opinion, the individual's competency in speaking or otherwise communicating in English is not sufficient for the individual to practise the profession; or

(f) the nature, extent, period and recency of any previous practice of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to general registration in the profession; or

(g) the individual fails to meet any other requirement in an approved registration standard for the profession about the suitability of individuals to be registered in the profession or to competently and safely practise the profession; or

(h) in the Board's opinion, the individual is for any other reason ­

(i) not a fit and proper person for general registration in the profession; or

(ii) unable to practise the profession competently and safely.

1. The term 'registration standard' is defined to mean a registration standard developed by a national board under s 38 of the National Law: s 5 of the National Law.
2. Section 38(1) of the National Law provides that a National Board must develop and recommend to the Ministerial Council registration standards about certain matters including, relevantly:

(d) requirements about the English language skills necessary for an applicant for registration in the profession to be suitable for registration in the profession.

1. At the time of the applicant's application for registration:

(a) the Board's Registration Standard: English Language Skills (version 1 July 2015) (Agreed Bundle, folio 30) (2015 ELSRS) applied; and

(b) pursuant to s 39 of the National Law, the Board had published a policy and guidelines in relation to the satisfaction of the 2015 ELSRS (Agreed Bundle, folios 31-34).

1. The current applicable ELSRS for nursing and midwifery is the Board's Registration Standard: English Language Skills (version 1 March 2019) (Agreed Bundle, folio 35) (2019 ELSRS), and the Board has published a revised policy and guidelines in line with that standard (Agreed Bundle, folios 36-40).
2. Each of the 2015 ELSRS and the 2019 ELSRS and applicable guidelines relevantly require an applicant to achieve, in an approved English language test (IELTS), a score of no less than 7.0 overall, and scores of no less than 7.0 in each of the four competency areas (reading, writing, speaking and listening) (see [54] below).

1. As noted above, the present application is made under s 199(1)(a) of the National Law, which allows a person who disagrees with a decision of the Board to appeal that decision to the appropriate responsible tribunal. Section 11 of the National Law Act provides:

A reference in the [National Law] to an appeal against a decision is, for an appeal to the State Administrative Tribunal as the responsible tribunal, a reference to a review of the decision as provided under the State Administrative Tribunal Act 2004 Part 3 Division 3.

1. By reason of s 11 of the National Law and s 17 of the SAT Act:

(a) an application under to s 199 of the National Law falls within the Tribunal's review jurisdiction; and

(b) the respondent's Decision, made under s 82(1)(c) of the National Law, is a 'reviewable decision' under the SAT Act.

1. In the exercise of its review jurisdiction, the Tribunal:

(a) does not determine the validity or otherwise of the reviewable decision: Killen v Commissioner of Police [2014] WASC 427 at [42]- [43];

(b) must make the reviewable decision afresh (s 27(1) of the SAT Act) and, in doing so, the Tribunal has the same jurisdiction, functions and discretions as those of the original decision-maker, in this case being the Board (s 202(2) of the National Law and s 29(1) of the SAT Act);

(c) may consider, but is not limited by, the reasons given by the respondent for the reviewable decision (s 27(3) of the SAT Act), and may take into account any new or additional material which was not available to the respondent at the time that the reviewable decision was made (s 27(1) of the SAT Act);

(d) may affirm, vary or set aside the reviewable decision, and in the latter case may substitute its own decision (s 202(1) of the National Law and s 29(3) of the SAT Act), to arrive at the correct and preferable decision (s 27(2) of the SAT Act); and

(e) is not able to deal with a matter that is different in essence from the matter that was before the respondent (s 29(9) of the SAT Act).

1. It follows from the above that the Tribunal must exercise functions and discretions corresponding with those of the Board to decide, on the basis that it is the correct and preferable decision, whether to grant or to refuse to grant the applicant registration as an Enrolled Nurse.

1. The applicant's contentions, as contained in the application, Applicant's Submissions, Applicant's SIFC and the Applicant's MJG Responses, may be broadly summarised as follows:

(a) the applicant holds a diploma in nursing and midwifery (Diploma) from the Oxford School of Nursing in Bangalore, Karnataka State, India (School) (Agreed Facts at para 5) which:

(i) qualified her to practice as a Registered Nurse in India, and Registered Nurses have more responsibility than Enrolled Nurses;

(ii) is comparable to an AQF5 level qualification, being the applicable level required for an Enrolled Nurse;

(iii) is accredited, widely accepted worldwide and was a contemporary course that was well­staffed and included content related to medication management; and

(iv) has now been replaced by a bachelor of science at the same institution;

(b) the applicant completed a grade 12 certificate (being a six-month pre-degree program), so the Diploma should properly be regarded as an 'advanced diploma';

(c) India has provided qualified diploma nurses to Australia and abroad for many years, and the applicant is aware of other nurses with similar Indian qualifications who are registered in Australia;

(d) the applicant worked as a Registered Practical Nurse (RPN) in Canada for ten years, which:

(ii) required the applicant to pass Registered Practical Nursing exams and an English language test in Canada;

(iii) demonstrates acceptance of the applicant's competency and qualifications in Canada (which has comparable standards to Australia); and

(iv) demonstrates that she can provide quality nursing to the public;

(e) in the above premises, the Diploma should be accepted as being a comparable qualification under s 53(b) of the National Law, for the purposes of the applicant meeting the qualification requirements for registration as an Enrolled Nurse;

(f) the applicant's work experience, particularly over the last 12 years, should be given weight in assessing her suitability for registration, being of more practical relevance than qualifications obtained 17 years ago;

(g) the applicant has achieved, in her best IELTS result, an overall test score of 7.5, with individual competency scores of 8.0 for reading, 7.5 for speaking, 8.0 for listening and 6.0 for writing;

(h) the requirement for achieving a minimum score of 7.0 in each competency area should be waived in relation to the applicant's score for writing because:

(i) the applicant's overall IELTS score of 7.5, together with her work performance and experience in Canada, demonstrates her competency in English (including in a nursing context); and

(ii) the applicant is immigrating from Canada, and the Australian government exempts immigrants from Canada, USA and European countries and New Zealand from English language testing, and the Board also 'gives some exceptions' to applicants from those countries.

1. The contentions contained in the Respondent's SIFC and Respondent's Submissions may be broadly summarised as follows:

(a) the applicant did not at the time of her application meet the 2015 ELSRS, and does not now meet the 2019 ELSRS, because:

(i) the only pathway for meeting the ELSRS applicable to the applicant is the test pathway, which requires that the candidate must receive a score (in an approved English language test) of no less than 7.0 overall, and no less than 7.0 for each of the four components (listening, reading, writing and speaking) individually; and

(ii) the applicant has not demonstrated that she achieved an IELTS score of or above 7.0 in writing;

(b) compliance with the ELSRS is mandatory, and there is no discretion under the ELSRS to waive its requirements;

(c) the respondent refutes the applicant's assertion that the English language skills requirement has been waived in other cases, but in any event the respondent assesses each application for registration on a case by case basis and is not satisfied that the applicant meets the necessary standards;

(d) where, as here, an applicant for registration is not 'suitable' under s 55(1) of the National Law, then the eligibility requirements under s 52(1)(c) and s 52(1)(e) of the National Law are not met;

(e) further, the applicant does not meet the qualification requirements necessary for registration as an Enrolled Nurse because:

(i) the applicant's Diploma is comparable to an AQF5 level qualification (Agreed Facts at para 5);

(ii) the applicant's Diploma was obtained in India where there is only one level of nursing qualification. In those circumstances, to satisfy the Qualification Criteria (criterion 1) the academic level of qualification must be assessed at the Registered Nurse level, which requires an AQF7 level qualification; and

(iii) the applicant's Diploma was not subject to external quality assurance, recognised or accredited by a body external to the education institution and based on published accreditation standards, and therefore does not meet the Qualification Criteria (criterion 2);

(f) where, as here, an applicant's qualification is not substantially equivalent to or based upon similar qualifications as an approved Australian qualification, then the applicant does not satisfy the requirements of s 52(1)(a) and s 53(b) of the National Law; and

(g) in the premises, the Tribunal should affirm the decision of the Board to refuse the applicant's application for registration as an Enrolled Nurse.

1. As noted above (at [19]), the Board (and therefore the Tribunal in its place) would need to be satisfied that the applicant meets every eligibility requirement in s 52 of the National Law before it could grant her application for registration.

Section 52(1)(a) ­ is the applicant qualified for general registration?

1. In approaching the question of whether the applicant is qualified for registration as an Enrolled Nurse, it is important to note that the focus of the Tribunal's inquiry is on the qualification held by the applicant, not on the applicant herself or her individual circumstances.
2. This is consistent with the observations made by the Victorian Civil and Administrative Tribunal (VCAT) when considering a similar application in Kaur v Nursing and Midwifery Board of Australia (Review and Regulation) [2018] VCAT 682 (Kaur) at [11]:

In essence, our task has been to consider whether any nurse who has completed the same diploma qualification as Ms Kaur holds, and no other nursing qualification, is entitled to be registered by the Board as an Enrolled Nurse. Our task has not been to decide whether Ms Kaur personally should be registered based on the experience and skills she has acquired in India and Australia.

1. Further, in the context of considering whether an applicant was 'qualified' for the purposes of s 52 of the National Law, the VCAT in Kaur (at [25]-[28]) adopted and applied the meaning given to the term 'qualification' in Pereira v Psychology Board [2014] VSC 417 (Pereira), as follows:

[30] Depending on the context, the word 'qualification' is capable of at least three meanings. The first meaning encompasses only a formal educational qualification. The second meaning encompasses a formal educational qualification or membership of a recognised professional body. The third meaning encompasses a formal educational qualification, membership of a recognised professional body or practical skill and experience which is unconnected to such a qualification or membership.

...

[39] ... The word, however, does not extend to the third meaning because a person's practical experience in and of itself does not equate to an objectively measurable or identifiable 'qualification'. ... Until such an assessment is formally conducted and results in a formal educational qualification or membership of a recognised professional body, the practical experience cannot constitute a qualification.

1. With respect, this Tribunal agrees with the interpretation of and approach to s 52(1)(a) adopted in Kaur. Interpreting 'qualified' and 'qualification' in this way:

(a) takes appropriate account of the legislative context of s 52(1)(a) (see Commissioner of Police v Thayli Pty Ltd [2020] WASC 43 at [29]); and

(b) is consistent with an applicant's experience being explicitly dealt with elsewhere in the National Law (in particular, experience goes to the assessment of an applicant's suitability for registration under s 55(1)(f) of the National Law).

1. As outlined at [21] above, there are four pathways identified in s 53 of the National Law for the applicant to establish that she is qualified for general registration, and it is for the applicant to satisfy the Tribunal in relation to them (George and Nursing and Midwifery Board of Australia [2013] WASAT 202 (George) at [24]; Akpan and Nursing and Midwifery Board of Australia (delivered 7 June 2013) at [44]-[46]).

(a) In relation to the 'approved qualification' route, the Tribunal notes that, in accordance with s 49 of the National Law, the list of qualifications approved by the Board appears on the Australian Health Practitioner Regulation Agency's (AHPRA) website. The applicant's Diploma does not appear on the list and, accordingly, the Tribunal is not satisfied that applicant holds an approved qualification for the purposes of s 53(a) of the National Law.

(b) Further, there is no other evidence that could satisfy the Tribunal that the applicant has undertaken any examination or assessment required by the Board to be successfully completed for the purposes of s 53(c) of the National Law. Although the applicant refers to having taken an exam for the purposes of becoming registered in Canada, she does not assert that that process meets the requirements of a bridging qualification.

(c) Finally, the applicant does not assert that she has ever been registered in Australia and so there is no basis to apply the 'grandfathered' qualification route under s 53(d) of the National Law.

(d) It follows that the only route reasonably open to the applicant to pursue, and the only one seriously contended by her (see [34] above), is the comparable qualification route under s 53(b) of the National Law.

Does the applicant hold a comparable qualification?

1. Because the Tribunal in reviewing the Decision exercises all of the powers of the Board, it may - but is not required - to take account of the IQNM Model in determining whether it is satisfied that the applicant's Diploma is a comparable qualification for the purposes of s 53(b) of the National Law (see Kaur at [52], where VCAT noted that the IQNM guidelines were within the discretion of the Board, rather than binding on it).
2. Noting the principles and objectives of the national registration and accreditation scheme, and in particular the need for rigor, consistency and transparency in the application of standards, the Tribunal considers it appropriate to take account of the Qualification Criteria under the IQNM Model in satisfying itself in relation to s 53(b) of the National Law.
3. As noted in Draper v Psychology Board of Australia [2013] NSWPT 3 at [94] (and cited in Kaur at [55]):

[W]hen guidelines have been devised by experienced professional people with a long established relevant knowledge base they should not be disregarded lightly.

1. Ms Grant, who is a specialist accreditation adviser in AHPRA, gave evidence (in the MJG Affidavit and the MJG Reply Affidavit, together with supporting documents) that:

(a) when considering an application for registration, the Board assesses each qualification against the Qualification Criteria in the IQMN and there is a very important public protection rationale behind doing so (to ensure that education standards and competencies of nurses entering Australia are consistent and well understood so that nurses are not placed in clinical settings unsuited to their competencies);

(b) Ms Grant considered the information submitted by applicant against the Qualification Criteria, as well as information obtained by her in relation to Ms Grant has concluded that the applicant's Diploma does not satisfy the threshold requirements for a qualification that is substantially equivalent or based on similar competencies to an approved qualification;

(c) in relation to Qualification Criterion 1:

(i) in Australia there is a distinction between the profession of Enrolled Nurse and Registered Nurse. The education requirements, competency requirements and standards and scope of practice for each profession are distinct, and they are not interchangeable;

(ii) the Diploma qualified the applicant for registration as a Registered Nurse in India; it is not recognised for registration as an Enrolled Nurse, because there is no comparable profession in India;

(i) the Diploma was not subject to external quality assurance, and recognised or accredited by a body external to the education institution based on published accreditation standards and practices;

(ii) the National Assessment and Accreditation Council in India (NAAC) is the authority having the responsibility for accrediting and monitoring nursing education in India. NAAC undertakes this function in a very different way to accrediting bodies in Australia (it prescribes a national syllabus and teaching hours for nursing education, then authorises Indian nursing institutions to deliver that content, and relies on a final national exam to test individual competencies);

(iii) although the information provided by the applicant demonstrates the School is now an accredited education provider with NAAC, there is no evidence that it was accredited at the time the applicant completed her qualification;

(iv) in any event, the Diploma itself was and is not accredited (because NAAC accredits institutions only; it does not assess the quality of courses administered by the institutions); and

(iv) there is no evidence that, at the time of the applicant's qualification, NAAC used any published standards that might be used to determined equivalency of the course content and competencies;

(e) in relation to Qualification Criterion 3, the applicant's Diploma is equivalent to AQF5 and is sufficient to meet the qualification level requirement for registration as an Enrolled Nurse, but not as a Registered Nurse; and

(f) in relation to the applicant's contention that the Diploma is equivalent to an advanced diploma qualification, the study period for her nursing qualification itself (not any other certificate) would have to be a minimum of three and a half years, which is not met.

1. The Tribunal accepts the evidence and assessment of Ms Grant, taking account of her experience in assessing health qualifications, the objective support given to her evidence from the materials annexed to her affidavits, and the wording of the IQNM Model itself.
2. The Tribunal also observes that Ms Grant's observations and conclusions are broadly consistent with expert evidence and findings made in analogous applications - in this and other Tribunals - involving similar Indian qualifications and the application of the Qualification Criteria (albeit earlier iterations thereof): see for example, Kaur, Palatty and George.
3. In line with the approach in Pereira and Kaur (see [38]-[39] above) and with the Tribunal's interpretation of s 52(1) (see [40] above), the Tribunal does not consider that the applicant's work experience as an RPN in Canada is relevant to the question of whether she is qualified for general registration.
4. Further, whether or not other nurses from India have been registered for practice in Australia has no bearing on whether the applicant is qualified to be registered: see Palatty at [48]-[49] and George at [26].
5. The Tribunal is not satisfied that the applicant's Diploma is a comparable qualification for the purposes of s 53(b) of the National Law, and therefore finds that the applicant does not meet the requirements of s 52(1)(a) of the National Law.

Section 52(1)(c) and (e) ­ does the applicant meet the registration standards relating to language?

1. It is instructive to begin with the language of s 52(1)(e) which prescribes, as one of the essential eligibility criteria for general registration, that an applicant 'meets any other requirements for registration stated in an approved registration standard'.
2. The relevant approved registration standard in this case is the 2019 ELSRS, which in turn relevantly requires an applicant applying for initial registration to be able to demonstrate one of the following:

(a) the applicant's primary language is English and the applicant has attended at least six years of primary and secondary education in, and holds a relevant tertiary qualification that was taught and assessed in, a 'recognised country'; or

(b) if applying for registration as an Enrolled Nurse, the applicant has successfully completed at least five years continuous education in a 'recognised country'; or

(c) achievement of the required minimum scores and satisfaction of required test results in one of the specified language tests (relevantly including the IELTS test) (test pathway); or

(d) in defined circumstances, compelling evidence demonstrating English language proficiency at least equivalent to the other pathways in the ELSRS, set out in a policy published by the Board.

1. India is not a 'recognised country' for the purposes of the ELSRS and so the first two pathways are not open to the applicant. Further, there is no published policy of the Board that would enable the applicant to meet the equivalency pathway contemplated in sub-paragraph (d) above.
2. The only reasonably arguable pathway for the applicant to meet the 2019 ELSRS, therefore, is the test pathway, in respect of which the required test results for IELTS are prescribed as follows:

(a) a minimum overall score of 7; and

(b) a minimum score of 7 in each of the four components (listening, reading, writing and speaking) (second limb test results).

1. Unlike the language of s 51(1)(a) read with s 53(b) of the National Law - which required the Tribunal to consider the equivalence of the applicant's Diploma, and therefore to exercise judgment against stated criteria - the language of s 52(1)(e) of the National Law read with the 2019 ELSRS does not require an evaluative exercise of judgment. Section 52(1)(e) of the National Law demands that the requirements of any approved registration standard be met, and the approved registration standard in question relevantly demands the attainment of particular test results. The satisfaction of the registration standard is therefore, in these circumstances, a question of fact.
2. Whatever the applicant's other experience or competencies might be, on her own evidence and submissions (for example, the Applicant's Submissions dated 11 September 2020, reflected at [34](g) above), she does not meet the second limb test results, and therefore does not meet the requirements of the 2019 ELSRS.
3. The Tribunal finds that applicant does not meet the requirements of the 2019 ELSRS and therefore does not satisfy s 52(1)(e) of the National Law.
4. The finding in [56] above is also the basis for the Tribunal being satisfied, pursuant to s 55(1)(g) of the National Law, that the applicant is not suitable to hold general registration as an Enrolled Nurse, and therefore does not satisfy s 52(1)(c) of the National Law.

1. For completeness, the Tribunal notes that the letter notifying the applicant of the Decision is dated 19 August 2019, and the application was lodged 29 days thereafter, on 17 September 2019.
2. Rule 9(a) of the State Administrative Tribunal Rules 2004 (WA) requires that an application for review of a reviewable decision must be made within 28 days of the day on which the decision-maker 'gives a notice' of the decision.
3. Allowing for the time it would ordinarily take for a letter to be delivered by post, the Tribunal finds that an extension of time to commence proceedings was not required, because the application was made within 28 days of the day on which notice could be effected.

1. Any one of the conclusions reached in [50], [57] and [58] is a sufficient basis for the Tribunal to conclude that the applicant is not eligible under s 52 of the National Law for general registration as an Enrolled Nurse.
2. Accordingly, the decision of the respondent to refuse to grant the applicant registration as an Enrolled Nurse should be affirmed.

1. The decision of the respondent to refuse to grant the applicant registration as an Enrolled Nurse is affirmed.
2. The application is otherwise dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.