1409033 (Migration)

[2015] AATA 3015

1409033 (Migration) [2015] AATA 3015 (1 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  JABLI INTERCULTURAL CENTRE IN AUSTRALIA PTY.LTD

CASE NUMBER:  1409033

DIBP REFERENCE(S):  ASB2014/1670 CLF2014/78086

MEMBER:Don Lucas

DATE:1 July 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 01 July 2015 at 8:42pm

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 to refuse to approve a nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72I of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval of a nomination of an occupational trainee program under s.140GB of the Act and r.2.72I of the Regulations on 24 January 2014.

3. The delegate decided not to approve the nomination on 2 May 2014 on the basis that the applicant did not satisfy any of the three pathways identified in r.2.72I(4), (5) or (6) of the Regulations and thus did not meet the requirements of r.2.72I as a whole.

4. Mr Kenji Ishii, Director of Jabli Intercultural Centre in Australia Pty.Ltd, appeared before the Tribunal on 11 June 2015 to give evidence and present arguments.

5. A separate hearing had been scheduled in the related application made by Ms Kumiko Shiraya concerning a decision to refuse her application for a subclass 402 Training and Research Visa (Occupational Trainee). The related Tribunal file reference is 1409278. Prior to the hearing, the Tribunal was advised that the visa applicant has since returned to Japan and did not wish to take part in the hearing.

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Act and Regulations provide for approval of persons as sponsors and nominations of occupations, programs or activities to be undertaken in Australia by prospective holders of Subclass 402 (Training and Research) visas.

8. A nomination of an occupation, program or activity in relation to various visas, including Subclass 402, is made under s.140GB of the Act and r.2.72A of the Regulations.

9. Regulation 2.72A sets out generic criteria for approval of a nomination, and r.2.72I specifies additional criteria specific for a Subclass 402 (Training and Research) visas. A copy of the regulations is reproduced in the attachment to this decision.

10. Nominations made on the basis of training to enhance skills must meets the requirements detailed at r.2.72I(5) which requires among other things that the nominated occupational training is a structured workplace training program, specifically tailored to the training needs of the identified visa holder or applicant and of a duration that meets the specific training needs of the identified visa holder or applicant.

11. During the course of the hearing, the Tribunal discussed the three different pathways for approval of a nomination with Mr Kenji Ishii, namely Occupational Training Required for Registration (r.2.72I(4)), Occupational Trainee to Enhance Skills (r.2.72I(5)), and Occupational Training for Capacity Building Overseas (r.2.72I(6).

12. The evidence before the Tribunal is that the applicant had specifically requested that the nomination be assessed against the Occupational Training for Capacity Building Overseas alternative in r.2.72I(6). The evidence also indicates that the visa applicant identified in the nomination was proposing to undertake training the occupation of Teacher of English to Speakers of Other Languages, ANZSCO[1] 249311. This occupation can be also described as teacher of English as a second language, or ‘ESL’ Teacher.

    [1] The Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary

13. During the course of summarising the requirements of each of the three possible pathways, Mr Kenji Ishii acknowledged to the Tribunal that he understood that the application did not meet any of the three alternative pathways.

14. The Tribunal summarises the relevant evidence and its findings as follows.

    Occupational training required for registration (r.2.72i(4))

15. Mr Kenji Ishii provided a number of documents the Tribunal in the Japanese language, which he explained were Japanese government departmental documents outlining the necessity of particular training and qualification to be undertaken in order to perform the occupation of ESL teacher in the government sector in Japan. Mr Ishii acknowledged however that it was not in any way mandatory for an ESL teacher to have such qualifications to perform such occupation in the private sector in Japan, and that they would simply be beneficial in relation to competing in the employment market.

16. Accordingly, there is no evidence before the Tribunal to suggest that the nominated occupational training is required in order for the nominee to obtain mandatory registration, mentorship or licensing in order to perform the occupation of ESL teacher in Japan, and accordingly the nomination does not meet the requirements in r.2.72I(4).

    Occupational trainee to enhance skills (r.2.72i(5),

17. The nominee identified in the application holds a range of different qualifications related to the teaching of English, the highest of which is a Bachelor of Arts awarded by the Department of English and American literature in a Japanese tertiary institution in March 2005.

18. The applicant has not provided any evidence that the nominated occupational training in Australia will give the nominee additional or enhanced skills as an ESL teacher further to the qualifications which she already possesses.

19. Mr Ishii acknowledged that the training available through his organisation, which he considered to be otherwise beneficial, could not be compared to training at the graduate level that the nominee already possessed.

20. Accordingly, the nomination does not meet the criteria in r.2.72(5)(ii) requiring structured workplace training specifically tailored to the training needs of the nominee.

    Occupational training for capacity building overseas (r.2.72I(6))

21. The Tribunal discussed the requirements of the third pathway with Mr Ishii, who conceded that none of the three alternative is provided in this pathway were met, namely that either

    (i) the nominated occupational training is supported by a government agency or the government of a foreign country that is the home country of the identified visa holder or applicant;

    (ii) the nominee was required to complete a period of no more than 6 months of practical experience, research or observation to obtain a qualification from a foreign educational institution; or

    (iii) the nominee was

    (A) is a student of a foreign educational institution; or

    (B) had graduated from a foreign educational institution during the 12 months preceding the time of nomination;

22. Accordingly, on the basis of the evidence before it the Tribunal finds that the nomination does not meet the capacity building requirements in r.2.72I(6)

23. As the applicant does not meet r.2.72I(4), (5) or (6), the Tribunal finds that it does not meet r.2.72I(2)(b), and consequently does not meet the criteria for the approval of an occupational trainee nomination set out in regulation 2.72I.

24. As a result, the decision refusing approval to the nomination made by the delegate should be affirmed.

    DECISION

25. The Tribunal affirms the decision not to approve the nomination.

    Don Lucas
    Member

    
    

    ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    Regulation 2.72I Criteria for approval of nomination — Subclass 442 (Occupational Trainee) visa

    (1) This regulation applies to a person:

    (a) who is an occupational trainee sponsor ; and
    (b) who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation, a program or an activity in relation to a holder of, or an applicant or a proposed applicant for, a Subclass 442 (Occupational Trainee) visa (the identified visa holder or applicant).

    (2) For subsection 140GB(2) of the Act, and in addition to the criteria set out in regulation 2.72A , the criteria that must be satisfied for the Minister to approve a nomination by the occupational trainee sponsor are the criteria set out in:

    (a) subregulation (3) ; and
    (b) 1 of subregulations (4) , (5) and (6) .

    (3) The Minister is satisfied that the person making the nomination is an occupational trainee sponsor.

    Occupational training required for registration

    (4) The Minister is satisfied that:

    (a) the nominated occupational training is necessary for the identified visa holder or applicant to obtain registration, membership or licensing in Australia or in the home country of the identified visa holder or applicant in relation to the occupation of the identified visa holder or applicant; and
    (b) the registration, membership or licensing is required in order for the identified visa holder or applicant to be employed in the occupation of the identified visa holder or applicant in Australia or in the home country of the identified visa holder or applicant; and(c) the duration of the occupational training is necessary for the identified visa holder or applicant to obtain registration, membership or licensing in Australia or in the home country of the identified visa holder or applicant in relation to the occupation of the identified visa holder or applicant, taking into account the prior experience of the identified visa holder or applicant; and
    (ca) the occupational training is workplace based; and
    (d) the identified visa holder or applicant has appropriate qualifications, experience and English language skills to undertake the occupational training.

    Occupational training to enhance skills

    (5) The Minister is satisfied that:

    (a) the nominated occupational training is:

    (i) a structured workplace training program; and
    (ii) specifically tailored to the training needs of the identified visa holder or applicant; and
    (iii) of a duration that meets the specific training needs of the identified visa holder or applicant; and

    (b) if the nomination was made before 1 July 2010 — the nominated occupational training is in relation to an occupation specified by the Minister in an instrument in writing for this paragraph; and
    [(b) amended by SLI 2010, 133 with effect from 01/07/2010 - LEGEND note][(ba) inserted by SLI 2010, 133 with effect from 01/07/2010 - LEGEND note]
    (ba) if the nomination is made on or after 1 July 2010 — the nominated occupational training is in relation to an occupation specified, with its corresponding 6-digit code, by the Minister in an instrument in writing for this paragraph; and
    (c) the identified visa holder or applicant has the equivalent of at least 12 months full-time experience in the occupation to which the nominated occupational training relates in the 24 months immediately preceding the time of nomination; and
    (d) the identified visa holder or applicant has appropriate English language skills to undertake the nominated occupational training.

    Occupational training for capacity building overseas

    (6) The Minister is satisfied that:

    (a) the nominated occupational training is not available in the home country of the identified visa holder or applicant; and
    (b) 1 of the following requirements is met:

    (i) the nominated occupational training is supported by a government agency or the government of a foreign country that is the home country of the identified visa holder or applicant;
    (ii) the identified visa holder or applicant is required to complete a period of no more than 6 months of practical experience, research or observation to obtain a qualification from a foreign educational institution; or
    (iii) the identified visa holder or applicant:

    (A) is a student of a foreign educational institution; or
    (B) has graduated from a foreign educational institution during the 12 months preceding the time of nomination;

    and the nominated occupational training is to undertake research in Australia that is closely related to the course in which the student is or was enrolled at the foreign educational institution; and
    (c) the nominated occupational training is a structured workplace-based training program specifically tailored to the identified visa holder or applicant; and
    (d) the nominated occupational training will give the identified visa holder or applicant additional or enhanced skills in the occupation to which the nominated occupational training relates; and
    (e) the identified visa holder or applicant intends to return to his or her home country after successfully completing the nominated occupational training; and
    (f) the identified visa holder or applicant has appropriate English language skills to undertake the nominated occupational training.