1502923 (Migration)

[2016] AATA 3798

1502923 (Migration) [2016] AATA 3798 (22 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Australian Academy of Management and Science

CASE NUMBER:  1502923

DIBP REFERENCE(S):  CLF2015/14774

MEMBER:Michael Cooke

DATE:22 April 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision not to approve the application and substitutes a decision that the applicant is approved as a Training and Research sponsor.

Statement made on 22 April 2016 at 4:15pm

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 11 February 2015 not to approve the applicant as a sponsor under s.140E of the Migration Act 1958 (the Act).

2. The applicant applied for approval as a sponsor on 25 June 2015.

3. The delegate decided not to approve the application on the basis that the applicant did not satisfy r.2.60A(d) of the Migration Regulations 1994 (the Regulations).

4. On 27 February 2015 the applicant applied to the Tribunal to review the decision.

5. The Tribunal has decided it has sufficient new evidence to finalize the review ‘on the papers’ without recourse to a hearing.

6. For the following reasons, the Tribunal has concluded that the decision under review should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets the requirements for approval as a training and research sponsor in accordance with the criteria in r.2.60A and r.2.60M which must be satisfied regardless of when the application for approval was made. For the application to be approved, all the requirements must be met: s.140E(1).

8. The delegate refused the application as they were not satisfied that the applicant had ‘the capacity to comply with the sponsorship obligations applicable to a person who is or was a sponsor of the class for which the applicant has applied’ a requirement contained in r.2.60A(d).

9. In response to the hearing invitation the applicant provided additional information addressing the adverse findings of the delegate, in particular, its capacity to comply with the sponsorship obligations.

10. As part of AAMS defence and application to the AAT for a review of the decision, AAMS has provided to the AAT revised documents showing that it has improved the following:

    Policy and Procedure for a Training Plan V1.1 /02/16.

    -This document outlines clear defined roles for the employer and the trainee (page 2)

    -This document outlines the role of AAMS as the RTO whereby it will (page 3)

    a)    monitor the attendance by checking whilst in the workplace 

    b)    randomly check/submission of payslips to ensure that they are paid the right salary

    c)    an endorsement letter be presented to the employer before the student starts work

    d)    AAMS is the sponsor and holds control of their "training"

    e)    provide occupational training for at least 30 hours a week, of which at least 70 per cent is in the workplace, including:

    ·training or practical experience in the workplace required for you to obtain registration for employment in your occupation in Australia or in your home country

    ·have a structured workplace-based training program to enhance your existing skills in an eligible occupation listed in the Consolidated Sponsored Occupation List (CSOL)

    ·have a structured workplace-based training program to enhance your skills and promote capacity building outside Australia

    Under Contract definitions; Part C — Responsibilities

    The trainee, employer and RTO must work in partnership. The full list of responsibilities can be found in the Training Contract. In addition to these responsibilities, any other expectations of the apprentice/trainee, employer and RTO agreed to by the parties to the Contract, consistent with state legislation and the Training Contract should be included here, in the form of an attachment to the Training Plan.

    Under Contract definitions; Part D - Occupational Trainee Stream

    Occupational Trainee Stream: for people who need structured workplace-based training to enhance their skills in their current occupation, area of tertiary study, or field of expertise. Training is delivered on-job and off-job.

    On-job. This is training provided completely on the job by the employer. The RTO supports the training by mentoring the employer. The RTO, employer and trainee must discuss and agree on the method used to ensure the integrity of the training and assessment process.

    Off-job. This is training provided directly by AAMS. It takes place either in the employer's training facilities, or off-site at AAMS facilities. In each case, the trainee will be away from the normal work environment. Off-job training delivery still requires that the employer and trainee confirm the competencies of the trainee in the workplace.

    The P&P for a Training Plan also includes CONTRACT DETAILS. Pages 5-7. These pages include A) Contact details of all stakeholders, B) Traineeship details, C) Responsibilities for each stakeholder, D) Occupational Trainee Stream, E) Signatures for all stakeholders.

    AAMS has provided samples of assessment tools that would be used as part of ‘off the job’ training. These include a sample for Hospitality training, ‘prepare and serve espresso coffee’, which supports ‘operate an espresso machine’. And for Disability Services training, meet personal support needs, which supports Assess individuals and Manage Care.

    AAMS has also updated materials under (more information AAMS). This includes its trainer matrix to deliver and monitor the said courses, a list of work places to facilitate practical training, a skills audit procedure, a training schedule outlining the program of study for theory of 30% and practical of 70%.

    In conclusion:

    AAMS has taken the advice of the IMMI officer and corrected its shortcomings that were originally submitted to become an Occupational Trainee Nomination (Subclass 402). The training plan now clearly identifies direct control for outcomes and responsibilities of AAMS as the sponsor of a Subclass 402 visa holder. AAMS has procedures in place to monitor the payment of wages and conditions within the workplace including having regular site visits.

    AAMS feels that if this information was provided to the Department of Immigration and Boarder Protection during its original submission a positive outcome would have eventuated.

11. The Tribunal makes the following findings regarding the r.2.60M criteria:

    (1)       For subsection 140E(1) of tile Act, and in addition to the criteria in regulations 2.60A, this regulation sets out the criteria that must be satisfied for the Minister to approve an application by a person for approval as a training and research sponsor.

    (2)       The person must be:

    (a)       an Australian organisation that is lawfully operating in Australia; or

    (b)       a government agency

    (c)       a foreign government agency.

    (3)       The person must be:

    (a)       intending to engage in occupational training; or

    (b)       a tertiary or research institution.

12. The Tribunal finds from the evidence before it that the applicant is an Australian organisation that is lawfully operating in Australia and is intending to engage in occupational training. The applicant meets r.2.60M.

13. The Tribunal has revisited evidence of the applicant’s ability to meet the criteria in r.2.60A(a)-(d).

14. The Tribunal finds from the evidence before it that (a) the applicant has applied for approval as a temporary work sponsor in accordance with the process set out in regulation 2.61: and (b) the applicant is not already a sponsor of the class for which the applicant is applying and finds that the applicant does meet those criteria. The Tribunal is unaware of any adverse information known to Immigration about the applicant or a person associated with the applicant and finds the applicant meets r.2.60A(c).

15. The Tribunal has received additional information on the applicant’s ability ‘to comply with the sponsorship obligations applicable to a person who is a sponsor of the class for which the applicant has applied’. The Tribunal is satisfied that this additional information further elaborates on the applicant’s ability to meet its obligations, in particular, having direct control over its ability to deliver training to the applicants through the host organizations. The applicant has essentially re-jigged its proposal to the Department as the applicant has said to the Tribunal thus: 

    AAMS has taken the advice of the IMMI officer and corrected its shortcomings that were originally submitted to become an Occupational Trainee Nomination (Subclass 402). The training plan now clearly identifies direct control for outcomes and responsibilities of AAMS as the sponsor of a Subclass 402 visa holder. AAMS has procedures in place to monitor the payment of wages and conditions within the workplace including having regular site visits.

    AAMS feels that if this information was provided to the Department of Immigration and Boarder Protection during its original submission a positive outcome would have eventuated.

16. The Department’s concern had been that - in its initial proposal - the applicant appeared to be relying on the host employer organizations to inform the applicant of the applicants’ performance and progress. The delegate’s view was that the lack of control would severely diminish the applicant’s ability to maintain and comply with all of its sponsorship obligations. The Tribunal agrees with this view and the fact that the applicant has revisited its proposal indicates its correctness. The Tribunal is satisfied that the new proposal elaborated by the applicant (see above) has cured any defects in its initial proposal. Furthermore information from the applicant’s accountant indicates the applicant company “can continue to meet all of its obligations in the immediate future” (D1, f.26). The company has been in business since 2008 and the Tribunal finds this this information indicates the applicant firm has on-going financial viability.

17. For the reasons given above, the Tribunal finds that the applicant now meets all the applicable criteria prescribed in r.2.60A

    DECISION

18. The Tribunal sets aside the decision not to approve the application and substitutes a decision that the applicant is approved as a Training and Research sponsor.

    Michael Cooke
    Member

    
    

    ATTACHMENT - Extracts from the Migration Regulations 1994

    2.60A Criterion for approval as a temporary work sponsor

    For subsection 140E (1) of the Act, line criterion that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a temporary work sponsor is that the Minister is satisfied that:

    (a)         the applicant has applied for approval as a temporary work sponsor in accordance with the process set out in regulation 2 .61: and

    (b)        the applicant is not already a sponsor of the class for which the applicant is applying; and

    (c)         either:

    (i)          there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or

    (ii)        it is reasonable to disregard any adverse information known to Immigration about the applicant or a person associated with the applicant; and.

    (d)        the applicant has the capacity to comply with the sponsorship obligations applicable to a person who is a sponsor of the class for which the applicant has applied.

    2.60M Criteria for approval as a training and research sponsor

    (1)        For subsection 140E(1) of tile Act, and in addition to the criteria in regulations 2.60A, this regulation sets out the criteria that must be satisfied for the Minister to approve an application by a person for approval as a training and research sponsor.

    (2)        The person must be:

    (a)         an Australian organisation that is lawfully operating in Australia; or

    (b)        a government agency

    (c)         a foreign government agency.

    (3)        The person must be:

    (a)         intending to engage in occupational training; or

    (b)        a tertiary or research institution.

    2.60S Additional criteria for all classes of sponsor — transfer, recovery and payment of costs

    (1)        For subsection 140 E(1 ) of tie Act, the criteria in this regulation are in addition to the criteria in regulations 2.59 to 2.64M.

    (2)        The criteria that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a sponsor menntioned in any of regulations 2.59 to 2.60M include a criterion that the Minister is satisfied that:

    (a)         the applicant has not taken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, associated with the applicant becoming an approved sponsor; and

    (b)        the applicant has not taken any action, and has not sought to take any action, that would result in another person paying -to a person some or all of the costs, including migration agent costs, associated with the applicant becoming an approved sponsor; and

    (c)         the applicant has no-I oaken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, that relate specifically to tile recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; nd

    (d)        the applicant has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and

    (e)…     

    (f)…

    (3)        The criteria that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a sponsor mentioned in any of regulations 2.59 to 2.60M include a criterion that the Minister is satisfied that:

    (a)         the applicant has not recovered from another person some or all of the costs, including migration agent costs:

    (i)          associated with the person becoming an approved sponsor; or

    (ii)        that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and

    (b)        the applicant has not sought to recover from another person some or all of the costs, including migration agent costs:

    (i)          associated with the person becoming an approved sponsor; or

    (ii)        that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and

    (c)…

    (d)…

    (4)        However, the Minister may disregard a criterion referred to in subregulation (2) or (3) if the Minister considers it reasonable to do so.