1502476 (Migration)

[2016] AATA 3006

1502476 (Migration) [2016] AATA 3006 (4 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  College of Innovation and Industry Skills Pty Ltd

CASE NUMBER:  1502476

DIBP REFERENCE(S):  BCC2014/1798160 CLF2015/11157

MEMBER:Carolyn Wilson

DATE:4 January 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 04 January 2016 at 10:27am

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.2.72A of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval of the nomination on 23 July 2014. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72I(5) because they had not demonstrated the nominee needed the proposed training.

3. Ms Michelle Sidebottom, a Director of the applicant, appeared before the Tribunal on 25 November 2015 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. The requirements for approval of a nomination for a Subclass 402 visa are set out in r.2.72I of the Regulations and extracted in Annexure A.  The College of Innovation and Industry Skills Pty Ltd is an approved occupational trainee sponsor as required by r.2.72I(3) of the Regulations. 

8. The issue in this case is whether the applicant’s nomination meets the remaining criteria for approval of one of three streams of training, respectively set out in r.2.72I(4), r.2.72I(5) and r.2.72I(6) of the Regulations.

9. The nominated occupation is that of Chef (ANZSCO 351311). 

10. The applicant does not assert to meet either r.2.72I(4) or (6) and on the evidence it is clear they cannot.  That is, the proposed training programme is not occupational training required for registration (r.2.72I(4)) or workplace-based training for capacity building overseas (r.2.72I(6)).

11. Nominations made on the basis of training to enhance skills must meet the requirements set out in r.2.72I(5) which requires that the nominated occupational training is a structured workplace training program, specifically tailored to the training needs of the identified nominee and is of a duration that meets the specific training needs of the identified nominee. Regulation 2.72I(5)(c) requires that the identified 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.

12. The nominated occupation is Chef.  The nominee’s resume shows the nominee has worked as a Cook from 2011 to 2014.  After being initially employed as a kitchen hand in a food court Asian restaurant in the Whitford Shopping Centre, he was promoted to the position of Cook.  There is no evidence to support a claim that the nominee had worked as a Chef prior to his employment as a Commis Chef in August 2014.  His curriculum vitae clearly identified his position prior to August 2014 as that of Cook.  Further, the applicant gave oral evidence that the nominee requires this training course in order to become a Chef.  His previous work in the food court and his study in commercial cookery meant that on completion of the courses at Stanley International College he was considered a graduate Cook (notwithstanding the courses undertaken purport to provide qualifications as a Chef).  The applicant’s evidence was that in order for the nominee to be employable as a Chef he needed to undertake further occupational training such as that offered to him by the College of Innovation and Industry Skills.

13. The Tribunal raised with the applicant at hearing that the evidence before it did not support a finding that the nominee had the equivalent of at least 12 months full-time experience in the occupation to which the nominated occupational training relates (ie Chef), in the 24 months immediately preceding the time of nomination. The applicant claimed the nominee could meet this requirement as his study amounted to 12 months full-time experience in the nominated occupation.  They rely on his Certificate IV in Hospitality and Diploma of Hospitality attained at Stanley International College from 2013 to 2014.  The representative submits both courses were of 6 month duration, thus meeting the 12 month minimum requirement. 

14. The Tribunal has considered the Department’s policy in PAM 3 which states that the prior 12 months experience for the purpose of r.2.72I(5)(c) can be employment or study.  Whilst the Tribunal is not bound by policy, it sees no reason to depart from it in this case. 

15. As put to the applicant at hearing, the Tribunal had a look at the courses undertaken by the applicant at Stanley International College.   The applicant undertook the commercial cookery pathway, and both the Diploma and Certificate IV courses purport to qualify students to work as Chefs. It may be possible to find these courses amounted to experience in the occupation of Chef as study in that field.  However, both his Diploma and Certificate IV courses were only 20 week courses.  Thus even in combination they fall short of the minimum 12 months full-time experienced required.

16. The representative submits that whilst there were 20 weeks of teaching, they rely on the Department’s policy that 20 weeks tuition amounts to a 6 months course. The Tribunal notes however this policy relates to applications for Student visas.  The Tribunal accepts the policy is sensible in reference to identifying what is a 6 months course for the purpose of a Student visa (ie 20 weeks tuition and 6 weeks holidays).  However, the Tribunal does not accept the policy is relevant to the question of whether the nominee has the equivalent of 12 months full-time experience in the 24 months prior to nomination.  The Regulations clearly require a nominee to identify 12 months of experience over a 2 year period.  The Tribunal does not accept it is open to it to find that the necessary 12 months might include 12 weeks of holiday.

17. The Tribunal finds the applicant has 40 weeks of experience in studying commercial cookery.  Even accepting this is experience in the occupation to which the nominated occupational training relates, it falls short of the minimum 12 months required.  The Tribunal is not satisfied the nominee has the equivalent of at least 12 months experience as a Chef in the 24 months immediately preceding the time of nomination.  The nominee cannot meet r.2.72I(5)(c).

18. The Tribunal is not satisfied the requirements of r.2.72I(5) are met and therefore finds r.2.72I(2) is not met.  Accordingly the nomination cannot be approved and the delegate’s decision to this effect is affirmed.

    DECISION

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

    Carolyn Wilson

    
    

    Member

    ANNEXURE A
    Extracts from the Migration Regulations 1994
    
    

    Regulation 2.72I Criteria for approval of nomination - Subclass 442 (Occupational Trainee) visa and Subclass 402 (Training and Research) visa
    
    
    (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:

    (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) 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 of the training and research 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.
    
    

    (4) Occupational training required for registration 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.
    
    

    (5) Occupational training to enhance skills 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) [repealed]

    (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.
    
    

    (6) Occupational training for capacity building overseas 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.