1414678 (Migration)

[2015] AATA 3047

1414678 (Migration) [2015] AATA 3047 (6 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Tastier Food Pty Ltd

CASE NUMBER:  1414678

DIBP REFERENCE(S):  CLF2014/118844

MEMBER:Dione Dimitriadis

DATE:6 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 06 July 2015 at 9:12am

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 the nomination on 24 March 2014. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72I(4), (5) and (6) and the applicant did not meet r.2.72I.

3. The applicant was represented in relation to the review by its registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. On 25 May 2015 the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting the applicant to provide information to demonstrate whether the applicant meets the criteria for approval of a nomination of an occupation, a program or an activity in relation to a holder of, or an applicant or a proposed applicant for a Subclass 402 (Training and Research) visa in r.2.72I and to provide updated information to demonstrate that the occupational training meets one of the 3 streams set out in r.2.72I (4) – (6).

6. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 17 June 2015, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

8. The issue in the present case is whether the applicant meets the criteria for approval of the nomination.

9. 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.

10. 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.

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

12. The Tribunal must determine whether the applicant meets the criteria for approval of a nomination of an occupation, program or activity under s.140GB of the Act that relates to the Subclass 402 (Training and Research) visas, the requirements of which are detailed in r.2.72A and r.2.72I. To approve the nomination, the Tribunal must be satisfied that all of the applicable criteria in r.2.72A and r.2.72I are met. If one of the applicable requirements in r.2.72A or r.2.72I is not met, the Tribunal cannot approve the nomination.

13. Nominations made on the basis of training to enhance skills must meet the requirements detailed at r.2.72I(5) which requires among other things that the nominated occupational training is a structured workplace-based 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.

14. The applicant was approved as a sponsor from 23 October 2013 to 22 October 2016. On 23 October 2013 the Department of Immigration wrote to and informed the applicant that it had approved a Temporary Work Training and Research Sponsorship. The applicant applied for approval of the nomination for an occupational trainee position in the Trainee and Research stream on 24 March 2014. The nominated person is Joo Keat Lim and the occupation is Chef. The applicant stated that there will be structured training to enhance skills. The applicant was requested (in the application) to attach the structured training program that is specifically tailored to the training needs of the nominated person and a curriculum vitae.

15. On 21 May 2014 the Department received a training plan for the nominated person.

16. Information in the delegate’s decision record indicates that in the curriculum vitae the nominated person, Joo Keat Lim, stated that he worked from December 2005 to April 2013 as a Junior Chef at Master Ahead SND BHD. The delegate stated that, given the nominee’s academic qualifications and relevant work experience, the nominated person exceeds the entry level requirement for the nominated occupation of Chef (ANZSCO 351311) and he would be undertaking training below his current skill level. The curriculum vitae indicated that the nominated person has 8 years experience as a Chef since 2005.

17. At the time of lodging the application for review with the Tribunal, the applicant provided a copy of the delegate’s decision record.

18. The Tribunal wrote to the applicant on 25 May 2015 and invited the applicant to provide further information including the following:

    ·Details of a structured workplace training program that is specifically tailored to the training needs of the nominee and is of a duration that meets the specific training needs of the nominee. The information includes:

    odetails of the different components of the training (including periods of practical work experience and instruction) and their duration;

    • details of the overall duration of the program and time frames for completion;
    • details of supervisors/trainers (including those providing ‘off the job’ training);
    • an outline of the objectives of the program; and
    • an outline of the enhanced skills that the nominee would be expected to gain.

    ·     Updated information to show that a skills audit of the nominee has been undertaken to identify current skill levels and training needs.

    ·     Details of how the learning outcomes of the nominee will be monitored and assessed, and by whom.

    ·     Information to demonstrate that the nominee has at least 12 months’ full time experience in the occupation to which the nominated occupational training related in the 24 months preceding the time of nomination. This may include a copy of the nominee’s curriculum vitae, employment contracts, payslips, employment references and PAYG summary statements.

    ·     Information to demonstrate that the nominee has appropriate English skills to undertake the nominated occupational training. This may include results of recent English language proficiency tests, evidence of English courses or studies undertaken in English.

19. The applicant did not respond to the Tribunal’s letter and has not provided any current information about the applicant or the structured workplace training program. The applicant has not provided any further evidence to the Tribunal to support the claim that the applicant satisfied the requirements for the approval of the nomination.

20. ANZSCO (Australian and New Zealand Standard Classification of Occupations) sets out the skills and qualifications for a Chef. The Tribunal is satisfied that ANZSCO is an appropriate measure of the skills and qualifications of a Chef. The indicative skill level is an AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2) in Australia. At least three years of relevant experience may substitute for the formal qualifications listed above.  In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

21. The Tribunal is not satisfied that the nominated training program has been tailored to the training needs of the nominated person, Joo Keat Lim. The information before the Tribunal is that the nominated person was employed as a Junior Chef for approximately 8 years and his work experience is well above the three years of experience which may substitute for the formal qualifications listed in ANZSCO for a Chef. The applicant did not make any submissions to the Tribunal or provide further evidence about training. The Tribunal is not satisfied that the occupational training program is specifically tailored to the training needs of the nominated person. The Tribunal is not satisfied 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. The Tribunal finds that the requirements of r.2.72I(5)(a)(ii) and (iii) are not met. Therefore the applicant does not meet r.2.72I(5).

22. It has not been submitted, and there is no evidence before the Tribunal which indicates, that the nomination meets requirements under alternate limbs related to occupational training required for registration or for capacity building overseas.

23. Regulation 2.72I(4) requires that the nominated occupational training is necessary for the identified visa holder or applicant to obtain registration, membership or licensing, either in Australia or in the nominated person’s home country. This clause also requires that the registration, membership or licensing is required in order for the identified visa holder or applicant to be employed in the occupation, either in Australia or in the nominated person’s home country. There is no evidence provided, nor any known to the Tribunal, to suggest that the occupational training is required in order for the nominated person to obtain mandatory registration, membership or licensing and as such the Tribunal is not satisfied that this application meets the requirements of r.2.72I(4).

24. Regulation 2.72I(6)(b) requires that one of three requirements are met. The first of these requirements, at r.2.72I(6)(b)(i), is that the nominated occupational training is supported either by a government agency or the government in the home country of the nominated person. There is no evidence provided, nor any known to the Tribunal, to suggest that the occupational training is supported by a government agency or the government in the nominated person’s home country. The Tribunal is not satisfied that the applicant meets the requirements of r.2.72I(6)(b)(i).

25. The second requirement, at r.2.72I(6)(b)(ii), is that the nominated person 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. In addition to the fact that the proposed training is for longer than 6 months there is no evidence provided, nor known to the Tribunal, to indicate that the nominated person 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. The Tribunal is not satisfied that the applicant meets the requirements of r.2.72I(6)(b)(ii).

26. The third requirement, at r.2.72I(6)(b)(iii), is that the identified visa holder or applicant is either a student of a foreign educational institution or has graduated from a foreign educational institution during the 12 months preceding the nomination. This clause also requires that the nominated occupational training is to undertake research in Australia which is closely related to the course in which the student is or was enrolled at the foreign educational institution. There is no evidence provided to the Tribunal, nor known to the Tribunal, to indicate that the nominated person is a current student of a foreign educational institution or that he is a recent graduate of a foreign educational institution. There is also no evidence to indicate that the occupational training is to undertake research in Australia. Given the above, the Tribunal is not satisfied that the applicant meets the requirements of r.2.72I(6)(b)(iii).

27. Regulation 2.72I(6)(b) requires that one of three requirements are met. As set out above, the Tribunal is not satisfied that any of these three requirements are met. As the requirements of r.2.72I(6)(b) have not been met, the applicant does not meet the requirements of r.2.721(6).

28. As the applicant does not meet r.2.72I(4), (5) or (6), the Tribunal finds that the applicant does not meet r.2.72I(2)(b), and therefore does not meet the criteria for the approval of a nomination set out in r.2.72I.

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

    DECISION

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

    Dione Dimitriadis

    
    

    Member

    ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    Reg 2.72I      Criteria for approval of nomination — Subclass 442 (Occupational Trainee) visa and Subclass 402 (Training and Research) visa

    [2.72I] (1)      This regulation applies to a person:

    (a)      who is an occupational trainee sponsor or a training and research sponsor; and
    (b)      who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation, a program or an activity in relation to either of the following persons (the identified visa holder or applicant):

    (i)      a holder of, or an applicant for, a Subclass 442 (Occupational Trainee) visa;
    (ii)      a holder of, or an applicant or proposed applicant for, a Subclass 402 (Training and Research) visa.

    [2.72I] (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 or the training and research sponsor are the criteria set out in:

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

    [2.72I] (3)      The Minister is satisfied that the person making the nomination is an occupational trainee sponsor or the training and research sponsor.

    Occupational training required for registration
    [2.72I] (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
    [2.72I] (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

    (ba)      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
    [2.72I] (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.