1418817 (Migration)

[2015] AATA 3260

1418817 (Migration) [2015] AATA 3260 (3 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  McKkr's PTY LTD

CASE NUMBER:  1418817

DIBP REFERENCE(S):  CLF2014/140222

MEMBER:Jennifer Ciantar

DATE:3 August 2015

PLACE OF DECISION:  Sydney

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

Statement made on 03 August 2015 at 1:44pm

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 on 29 October 2014 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 24 April 2014 in the occupational trainee stream. The application was made in respect of Hardeep Singh (the nominee) for training in the occupation of Café or Restaurant Manager for a period of 1 year. It was proposed that the training take place at La Lola Trattoria.

3. The applicant provided evidence to the Department in relation to the nominee’s qualifications, skills and work experience. He completed an Advanced Diploma of Business Management on 7 March 2013 and a Diploma of Hospitality on 8 July 2010. He worked as a cook from December 2009 to August 2011 at Sizzler Restaurant, Innaloo. He worked as a Food and Beverage (F&B) Supervisor at Red Rooster from October 2009 to April 2013. He was the F&B Team Leader at Mantra Hotel from December 2011 to December 2013 and he has been an F&B Attendant at La Lola Italian Restaurant since April 2013.

4. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72I(5)(c) because the nominee had not demonstrated that he has the equivalent of at least 12 months full time experience in the nominated occupation within the 24 months immediately before the application was lodged. The delegate compared the duties of a Food and Beverage attendant or Waiter ANZSCO code 431511 to those of a Café or Restaurant Manager. The delegate was not satisfied that the nominee’s experience was in, or relevant to, the nominated occupation, or at the requisite skill level. The delegate also took into account that the nominee has been the holder of a student visa since his arrival in Australia and he was not permitted to work more than 40 hours per fortnight when his course was in session. The delegate was also not satisfied that the courses that the nominee completed in the 24 months immediately prior to the lodgement of the visa application are closely related to the nominated occupation or the hospitality industry. The relevant courses that the nominee completed were a Diploma of Business Management and an Advanced Diploma in Business Management. The delegate also decided r.2.72I(4) and r.2.72I(6) were not relevant or met. The delegate concluded that, as r.2.72I(4), (5) and (6) were not met, r.2.72I was not met and the application for an occupational trainee nomination was refused.

5. The applicant appeared before the Tribunal on 18 June 2015 to give evidence and present arguments.  

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

7. The applicant stated that the Diploma of Business Management and the Advanced Diploma in Business Management, which the nominee undertook after hospitality qualifications, are closely related to the occupation of restaurant manager as it is a managerial position. The Tribunal indicated it would give consideration to whether the nominee’s qualifications equate to experience in the occupation. Although work placements that are part of a course might equate to experience in the nominated occupation, the Tribunal is not necessarily persuaded that time spent in the classroom equated to experience in the nominated occupation. The applicant stated he believes the regulations allow for work experience, studies or a combination of both.

8. The applicant stated that the nominee has had equivalent work experience to a restaurant manager in the 2 years from 25 April 2012 to 24 April 2014. In this period, the nominee worked as an F&B Team Leader at Mantra Hotel and as an F&B attendant at La Lola Italian restaurant. Although the nominee had a student visa and could not work more than 20 hours per week, his employment experience equates to fulltime for 12 months. The nominee now holds a bridging visa and the applicant does not know about current visa conditions but the nominee was still the holder of a student visa at the time the application was lodged. When asked how he knows if the nominee worked 20 hours per week, every week for 2 years, the applicant said his business talks to the nominee and to employers, and assesses if the tasks that the nominee undertook are related to the nominated occupation. The Tribunal put to the applicant that apart from the nominee’s CV apart and a letter from La Lola, there is no information about what hours the nominee worked in the relevant 2 year period or about the nominee’s duties. The applicant said he could provide references. The Tribunal put to the applicant that there would be independent information such as payslips and a group certificate which would enable a calculation of the nominee’s hours and rates of pay.

9. When asked if the nominee has worked as a restaurant manager, the applicant said the purpose of the program is to train people who have relevant experience but have skill gaps. The nominee has training in some tasks and he has been working in the hospitality industry and he wants to change his occupation to restaurant manager, given his experience in F&B. The applicant referred to the ANZSCO descriptor of the tasks of a Café or Restaurant Manager and to the experience appraisal that the applicant’s business had conducted, which was provided to the Department. The applicant stated that the nominee provided his CV and then the applicant conducted a skills analysis based on detailed research about the skills required to perform the occupation, not just relying on ANZSCO but also checking advertisements to see what skills employers require.

10. The applicant compared the tasks on the ANZSCO descriptor to the experience appraisal. In regard to the first task in ANZSCO, the nominee has not had experience in planning menus in consultation with chefs. In regard to the second task of planning and organising special functions, the nominee has had some experience in briefing employees about important events. He also has had experience in the opening and closing of tables, preparing bills, moving and splitting tables and management back of house.

11. In regard to the third task of arranging the purchasing and pricing of goods according to a budget, the nominee has not had experience in this task but has had a little involvement in the task of “communicating with other Departments and colleagues, suppliers and contractors to ensure that all information is communicated to the right addressee” as per the experience appraisal. The fourth task in ANZSCO is maintain records of stock levels and financial transactions and the applicant stated that the nominee has not had experience in performing this task. The Tribunal put to the applicant that the nominee’s CV indicates he was involved in the stock take when he worked at Sizzlers. The applicant stated that the nominee does not have monthly experience of taking an inventory. His experience might have been receiving stock rather than taking an inventory.

12. The applicant stated that as he has worked in restaurants and at Mantra, the nominee would have had some exposure to the task of ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance. This task equates to the 6^th and 13^th areas on the experience appraisal. The Tribunal put to the applicant that the experience appraisal indicates that the nominee has only had 1 to 3 months experience in “Perform frequent checks to ensure consistent high quality of preparation and service”.  The applicant stated that as the nominee does not perform this task on a daily basis they calculate that his experience equates to 1 to 3 months. The nominee had said he was not directly responsible for training and supervision of staff but when questioned, he said he had trained new staff on 3 or 4 occasions so they ticked 1-3 months on the experience appraisal, on the basis that the nominee has some relevant work experience. The experience appraisal also contains more tasks (called areas) than ANZSCO.

13. In regard to the 6^th ANZSCO task of “confer with customers to assess their satisfaction with meals and services”, this equates to the third last area on the first page of the experience appraisal. The applicant stated that he does not accept that experience in fast food outlets such as Red Rooster or Sizzler is equivalent but the nominee’s experience in performing this task is assessed as amounting to 4 to 6 months and it would not be a major part of training. The task also relates to the 8^th ANZSCO task. Regarding the 7^th task, the nominee does not really have experience in selecting kitchen staff but he assisted the manager in this task at the restaurant so he has some exposure but needs to be up skilled. The applicant does not give much weight to the nominee’s experience in selecting and training staff at fast food outlets, as the business is different to a restaurant.

14. The Tribunal indicated that whether it will make findings on the structured workplace training requirements will depend on the Tribunal making a positive decision about the issue in dispute. The applicant confirmed that the nominee has qualifications in hospitality and business management. The Tribunal put to the applicant that the nominee might already have sufficient training. The applicant said that the academic skills the nominee acquired are totally different to practical training in a supervised situation. Just passing exams does not mean a person can perform in the workplace if they have not been tested. The nominee has been in the industry for a while but at a lower level and he has not had an opportunity to test his skills in the workplace. Although he has performed many of the tasks in the training plan he needs to do it at a practical level.

15. The Tribunal put to the applicant that the courses often involve on the job training. The applicant said that the practical component of the Certificate III was only as a Cook and was not related to the position of restaurant manager.

16. The applicant said that the nominee recently quit his job at La Lola and he had been performing higher duties at the restaurant since April 2014 so an updated experience appraisal is required. This might shorten the length of training required. When asked about the nominee’s job title at the time he left, the applicant said he does not know if the nominee had been promoted or not. The applicant believes that the nominee still wants to be trained as a restaurant and café manager. The applicant said he does not know why the nominee left but he supposes that the nominee would be prepared to return if the nomination was approved. If the restaurant was not prepared to have the nominee back then the applicant would find another employer.

17. On 2 July 2015 the applicant provided the Tribunal with:

    ·a letter from Mantra which states that the nominee was employed by them as the Food and Beverage Team Leader from 14 November 2011 to 30 September 2013. His hourly pay rate was $18.09. He worked on a casual basis for a maximum of 20 hours per week at the Mantra on Murray in Perth;

    ·a letter from Panerai Pty Ltd trading as La Lola Trattoria which states that the nominee worked for them on a voluntary basis from April 3013 to October 2013 for 20 hours per week to gain relevant work experience. From November 2013 until May 2014 he was employed for a minimum of 20 hours per week and his duties included general operation and control of food and beverage service; liaise with restaurant owner, general manager and chefs; accomplish and maintain the highest quality of food and beverage and services; responsible for ensuring a smooth dining and bar experience for customers; assist in the maintenance of proper emergency and security procedures; taking reservations, greeting and seating guests and providing menus, and informing guests of any restaurant promotion’s/special menus; maintaining a safe and clean dining area for staff and customers by ensuring safety procedures are followed according to restaurant policy and health regulations; ensuring bar stock is replenished and stored correctly; ensuring that all food and products are consistently prepared and served according to the restaurant recipes, portioning, cooking and serving standards; control cash and other receipts by adhering to cash handling and reconciliation procedures in accordance with restaurant policies and procedures.

    ·PAYG payment summary for the year ending 30 June 2013 issued by Mantra hospitality, which indicates that the nominee received $29,469 gross;

    ·PAYG payment summary for the year ending 30 June 2014 issued by Mantra hospitality, which indicates that in the period 1 July 2013 to 30 September 2013 the nominee received $7967 gross.

    ·PAYG payment summary for the year ending 30 June 2014 issued by Panerai Pty Ltd, which indicates that in the period 22 November 2013 to 30 June 2014 the nominee received $14,543 gross;

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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.

20. 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.

21. Regulation 2.72I specifies the criteria to be met for a Subclass 402 (Training and Research) visa. An extract of the relevant regulation is attached to this decision.

22. It is not in dispute that there is no evidence that the occupational training proposed is required in order for the nominee to obtain mandatory registration, membership or licencing, and so r.2.72I(4) is not met.

23. It is also not in dispute that there is no evidence that the proposed occupational training is supported by an Australian government agency or the nominee’s home country, or that the nominee is required to complete practical experience, research or observation to obtain a qualification from a foreign educational institution, or that he is a current student or recent graduate undertaking research closely related to their course, and so r.2.72I(6) is not met. 

    Does the applicant meet r.2.72I(5)?

24. Relevantly in this case a nomination made on the basis of training to enhance skills must meet r.2.72I(5)(c), which requires that 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.

25. The relevant two year period is 24 April 2012 to 23 April 2014. The applicant provided evidence to the Department in relation to the nominee’s qualifications, skills and work experience.

26. The nominee’s CV indicates that from December 2011 to December 2013 the nominee was F&B Team Leader, Mantra Hotel 305 Bar and Restaurant. He was responsible for setting up and operating the bar; responsible for preparing desserts and drinks and serving customers; carrying out general cleaning duties including dishes and tables; oversee restaurant, room service and functions department; setting up conferences and serving food and beverages; responsible for cash up at the end of the shift. However, the letter from Mantra provided to the Tribunal indicates that the period of employment was 14 November 2011 to 30 September 2013, which is consistent with the PAYG. The Tribunal finds that the nominee worked as F&B Team Leader at Mantra from 24 April 2012 to 30 September 2013.

27. The PAYG summary shows that in the 2013 financial year, the nominee received $29,469 gross from Mantra. The letter from Mantra indicates that the hourly rate of pay was $18.09. Although the letter from Mantra states that the nominee worked a maximum of 20 hours a week due to his visa restrictions, the Tribunal calculates that in the 2013 financial year, the applicant worked 1629 hours which equates to 31 hours per week. It may be that in the holiday breaks, the applicant worked additional hours but the Tribunal has serious concerns that the nominee was working in excess of 20 hours per week in breach of conditions attached to his student visa. In the 2014 financial year, between 1 July 2013 and 30 September 2013, the applicant was paid $7967 gross by Mantra. This equates to 440 hours worked in a three month period, or 33 hours per week for 13 weeks. Again, it would appear that the nominee was working in excess of 20 hours per week.

28. However, r.2.72I(5)(c) requires that the nominee 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. Therefore, the Tribunal has given consideration to the evidence about the work performed by the nominee at Mantra. The Tribunal has referred for guidance to the ANZSCO descriptor for the occupation of Café or Restaurant Manager (attached), as the nominated occupation must be an occupation specified, with its corresponding 6-digit code, by the Minister in an instrument in writing for this paragraph: r.2.72I(5)(ba).

29. In the relevant period the nominee was an F&B Team Leader at Mantra from 24 April 2012 to 30 September 2013, a period of 17 months. As noted, although the financial information indicates that the nominee worked more than 30 hours per week, the nominee and the applicant claim that the nominee worked a maximum of 20 hours per week while he held this position. The Tribunal is not satisfied that the nominee was employed full-time in the position for at least 12 months. In any case, regardless of the hours worked by the nominee, the Tribunal is not satisfied that the nominee’s duties equate to at least 12 months full-time experience in the occupation to which the nominated occupational training relates.

30. In considering the specific tasks, the Tribunal is not satisfied that the nominee’s duties included planning menus in consultation with Chefs or arranging the purchasing and pricing of goods according to budget, maintaining records of stock levels, or  planning special functions, or selecting, training and supervising waiting and kitchen staff.  The Tribunal accepts that some of the nominee’s duties such as oversee the restaurant, room service and functions department, set up conferences and being responsible for cash up at the end of the service might involve elements of the duties of a café or restaurant manager. However, on the basis of the available evidence, the Tribunal is not satisfied that the nominee’s duties were at the skill level of a café and restaurant manager. For example, the Tribunal is not satisfied that the duty of setting up a conference involves planning and organising a special function. Similarly, the Tribunal is not satisfied that carrying out general cleaning duties involves ensuring dining facilities comply with health regulations. There is no information before the Tribunal about what was involved in overseeing the restaurant, room service and functions department and whether there were other managerial staff with relevant responsibilities.

31. The Tribunal also notes that the experience appraisal upon which the applicant is relying indicates that the nominee has had nil or less than 3 months experience in most of the tasks of a café or restaurant manager. The Tribunal is not satisfied that the nominee’s employment as an F&B Team Leader at Mantra from 24 April 2012 to 30 September 2013 is the equivalent of at least 12 months full-time experience in the occupation to which the nominated occupational training relates. At best, the nominee might have had part-time experience performing some elements of some of the duties of a café or restaurant manager.

1. According to his CV, from April 2013 until the time of application the nominee was an F&B Attendant at La Lola Restaurant. However, the reference provided to the Tribunal indicates that the nominee worked on a voluntary basis for 20 hours per week from April 2013 to October 2013. Given that the Mantra documents indicate that between July 2013 and 30 September 2013 the applicant was working for them for about 33 hours per week, and that he worked up to 20 hours per week for Mantra in the previous financial year, the Tribunal does not accept that while working at Mantra, the nominee was also working on a voluntary basis at La Lola Trattoria, and also undertaking full time study ( the nominee’s resume indicates he undertook an Advanced Diploma of Business Management during 2013). Furthermore, the Mantra reference indicates that the nominee was a F&B team leader and he had held this position since 14 November 2011. The Tribunal does not find it credible that the nominee would have required experience as a F&B assistant in 2013, at a time when he was still employed at Mantra as a F&B team leader.

2. The documents provided to the Tribunal indicate that from November 2013 until May 2014 the nominee was employed at la Lola for a maximum of 20 hours per week. The Tribunal has therefore considered whether, from 22 November 2013 (per the PAYG) until the date of application, 24 April 2014, a period of 5 months, this employment meets the requirements of r.2.72I(5)(c).

3. The nominee’s CV states that his duties as an F&B attendant at La Lola were to greet the customers and take food and drink orders; serve food and drinks to the customers; clear and reset the tables after service; prepare drinks and desserts for customers; carry out general cleaning duties. The applicant has provided the Tribunal with a letter from La Lola which does not specify the nominee’s job title but details the nominee’s responsibilities (see paragraph 18). However, the Tribunal gives more weight to the duties set out in the nominee’s CV than it does to the duties set out in the letter later provided to the Tribunal. The Tribunal is of the view that the duties in the letter dated 24 June 2015 are inflated for the purpose of establishing that the nominee has experience in the nominated occupation of cafe or restaurant manager. For example, the letter states that the nominee was responsible for ensuring that all food and products are consistently prepared and served according to the restaurant recipes, portioning, cooking and serving standards. However, the description of his duties and the job title in the CV indicate that at La Lola the nominee was an F&B attendant which is similar to a waiter. The Tribunal does not find it credible that the nominee in his capacity as an F&B attendant was responsible for ensuring the consistent preparation of the food that was served and the nominee has not claimed in his CV to have performed such a task.

4. The Tribunal accepts that some elements of the nominee’s tasks as an F&B attendant might have contained elements of the duties of a café or restaurant manager. For example, taking orders and greeting guests, he may have conferred with customers about their satisfaction and in carrying out cleaning duties the nominee might have been aware of the health regulations. However, the Tribunal is of the view that the nominee’s duties in this occupation were not at the requisite skill level and that the nominee did not perform most of the tasks of a café or restaurant manager. Taking into account all the available evidence including the experience appraisal conducted by the applicant, the Tribunal is not satisfied that the nominee‘s work as an F&B attendant is the equivalent to experience in the occupation to which the nominated occupational training relates.

5. The nominee was awarded a Diploma of Business on 7 March 2013 and the Department’s decision record indicates that the nominee completed an Advanced Diploma of Business Management on 9 March 2014. In considering if the nominee’s qualifications can be taken into account in assessing whether he has had the equivalent of at least 12 months full-time experience in the occupation to which the nominated occupational training relates, the Tribunal has given some consideration to the Department’s policy, which suggests that study experience can be taken into account. As discussed with the applicant, the Tribunal is of the view that ‘experience in the occupation’ can include study experience such as a work placement or internship. However, there is no evidence before the Tribunal that the nominee’s studies in the relevant period included work placements or internships that are related to the occupation to which the nominated occupational training relates.

6. The Tribunal is not satisfied that the nominee has the equivalent of at least 12 months full-time experience in the occupation to which the occupational training relates, being café or restaurant manager, in the 24 months immediately preceding the nomination. The Tribunal finds that the applicant does not meet the requirements of r.2.72I(5)(c) and therefore does not satisfy r.2.72I(5).

7. 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 approval of a nomination set out in r.2.72I.

8. For the reasons given above, the Tribunal is not satisfied that the applicant meets the all applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

   DECISION

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

   Jennifer Ciantar
   Member

   
   

   CAFE AND RESTAURANT MANAGERS organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.

   Indicative Skill Level:
   Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
   In Australia:

   AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

   
   In New Zealand:

   NZ Register Diploma (ANZSCO Skill Level 2)

   
   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.

   Tasks Include:

   o   planning menus in consultation with Chefs

   o   planning and organising special functions

   o   arranging the purchasing and pricing of goods according to budget

   o   maintaining records of stock levels and financial transactions

   o   ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance

   o   conferring with customers to assess their satisfaction with meals and service

   o   selecting, training and supervising waiting and kitchen staff

   o   may take reservations, greet guests and assist in taking orders

   
   Occupation:

   141111 Cafe or Restaurant Manager

   
   141111 CAFE OR RESTAURANT MANAGER

   
   Alternative Titles:

   Food and Beverage Manager
   Restaurateur

   
   Organises and controls the operations of a cafe, restaurant or related establishment to provide dining and catering services.

   Fast Food Managers (Aus)/ Quick Service Restaurant Managers (NZ) are excluded from this occupation. Fast Food Managers (Aus) and Quick Service Restaurant Managers (NZ) are included in Occupation 142111 Retail Manager (General)
   Skill Level: 2
   Specialisations:

   Bistro Manager
   Canteen Manager
   Caterer
   Internet Cafe Manager

   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.