1618354 (Migration)

[2016] AATA 4776

1618354 (Migration) [2016] AATA 4776 (8 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  McKker’s Pty Ltd

CASE NUMBER:  1618354

DIBP REFERENCE(S):  CLF2016/87857

MEMBER:Katie Malyon

DATE:8 December 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision not to approve the application and substitutes a decision that the nomination is approved.

Statement made on 08 December 2016 at 12:37 pm

CATCHWORDS
Migration – Nomination – Subclass 402 – Occupational trainee – Cook – Structured training program – Skills assessment provided – Hearing unnecessary

LEGISLATION

Migration Act 1958, s 140GB

Migration Regulations 1994, r 2.72I

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 19 October 2016 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72I of the Migration Regulations 1994 (the Regulations). 

2. On 12 August 2016, McKkr’s Pty Ltd (McKkr’s) applied for approval of a nomination for an occupational trainee position.  The application was made in respect of Ashish Kuldipak Contractor (the nominee) for training in the occupation of Cook ANZSCO 351411 for a period of 12 months.  It was proposed that the training take place with Wesley Community Services Ltd trading as Wesley Hospital Ashfield.

3. The delegate decided not to approve the nomination on the basis that McKkr’s did not satisfy r.2.72I(5)(a) of the Regulations because, based on evidence provided by McKkr’s, Mr Contractor’s academic qualifications and relevant work experience indicate that he would not be undertaking training to enhance his current skill level. In light of this, the delegate was not satisfied the nominated occupational training is a structured training program that is specifically tailored to the training needs of the identified nominee. Accordingly, the delegate found the application does not meet the requirements of r.2.72I(5)(a) of the Regulations.

4. McKkr’s new representative provided the Tribunal with a copy of the delegate’s decision as well as a copy of an assessment by Victoria University of nominee Mr Contractor’s skills as a Cook (Commercial) dated 18 December 2015 (the Skills Assessment).  The Tribunal notes that the Skills Assessment was not provided to the Department. 

5. For the following reasons, the Tribunal has concluded that the decision under review should be set aside. In reaching its decision, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of McKkr’s on the basis of the material before it pursuant to s.360(2)(a) of the Act.

   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 a prospective holder of a Subclass 402 (Training and Research) visa (Subclass 402 visa). 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 as well as r.2.72A and r.2.73A of the Regulations.

7. Relevant to this matter, the requirements for approval of a nomination for a Subclass 402 visa are also set out in r.2.72I of the Regulations and extracted in the Attachment to this decision. McKkr’s provided evidence that it is an approved occupational trainee sponsor as required by r.2.72I(3) of the Regulations. The issue in this case is whether McKkr’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.

8. In this case, McKkr’s made claims in relation to r.2.72I(5) of the Regulations only: it has not made claims in relation to r.2.72(4) or (6) of the Regulations. There is no evidence before the Tribunal that the occupational training proposed is required for the nominee to obtain mandatory registration, membership or licensing, and so r.2.72I(4) of the Regulations is not met. There is no evidence before the Tribunal that the proposed occupational training falls within the requirements of r.2.72I(6) which relates to ‘occupational training for capacity building overseas’, and so r.2.72I(6) of the Regulations is not met.

9. Nominations made on the basis of training to enhance skills must meet the requirements set out in r.2.72I(5) of the Regulations 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 is of a duration that meets the specific training needs of the identified visa holder or applicant.

   Is the nominated occupational training a structured workplace training program that is specifically tailored to the training needs of the nominee and of a duration that meets the specific training needs of the nominee?

10. As noted above, the delegate refused the nomination because McKkr’s had not provided evidence that the training to be provided is a structured training program that has been specifically tailored to the nominee’s individual training needs.  Specifically, the delegate referred to the nominee’s academic qualifications and work experience as a Cook which led the delegate to conclude that the nominee would not be undertaking training to enhance his current skill level but, rather, be undertaking the position for the primary purpose of employment. 

11. Evidence provided confirms that nominee Mr Contractor studied a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management at the Holmes Institute from October 2008 until September 2010.  Initially, he worked as a Cook at the Australian Turf Club for 18 months.  Thereafter, based on evidence provided, he worked part-time as a Cook with Wesley Hospital Ashfield from 15 March 2011 until 15 July 2013 and, since then, has worked there full-time as a Cook.  However, the Skills Assessment (issued by Victoria University) recognises that while Mr Contractor has “good experience as a Commercial Cook from working in hospitals” his knowledge of 6 identified units is ”limited” and he “needs more in-depth knowledge and experience at the required level to be deemed a Skilled Worker”.  The 6 units specifically identified in the Skills Assessment are: produce seafood dishes; produce meat dishes; prepare food to meet special dietary requirements; plan and cost basic menus; produce cakes, pastries and bread; and, produce desserts.  The Skills Assessment recommends that that Mr Contractor “work in the industry in the relevant departments and do practical gap training to gain more knowledge”.  Coincidentally, McKkr’s Skills Audit dated the 10 August 2016 in relation to Mr Contractor identified similar deficiencies in his work experience and his need for training in these, and other, areas.

12. The Tribunal is satisfied that the Training Plan prepared by McKkr’s identifies: the nominee’s existing skills and experience; his training needs; the training objectives and outcomes; the training delivery method; the activities, tasks and methods by which the learning outcomes are to be assessed; and, the timeframes to achieve learning outcomes.  The Training Plan also distinguishes between periods of practical work experience and periods of instruction and/or observation.  The Tribunal is satisfied that the program is specifically directed towards the training needs of Mr Contractor and is not a generic training program.  The training will be conducted by appropriately qualified and experienced trainers including the Catering Manager at Wesley Hospital Ashfield who also has recent experience in teaching Hospitality and Commercial Cookery at a tertiary institution.

13. Based on evidence provided, the Tribunal is satisfied that the nominated occupational training is a structured workplace training program that is specifically tailored to the training needs of the nominee. Accordingly, the Tribunal finds that r.2.72I(5)(a)(i) and (ii) are met. The training program will be delivered over 12 months during the nominee’s term of full- time employment. In light of this, the Tribunal is satisfied that the training program is of a duration that meets the specific training needs of the nominee and the Tribunal finds that r.2.72I(5)(a)(iii) is met. The Tribunal therefore finds that the nominated occupation training meets r.2.72I(5)(a) of the Regulations.

    Is the nominated occupational training in relation to a specified occupation?

14. The proposed training is for the occupation of Cook ANZSCO 351411. This is an occupation specified in the relevant instrument IMMI 16/060 and, therefore, the requirement in r.2.72I(5)(ba) of the Regulations is met.

    Does the nominee have the required 12 months full-time experience in the 24 months immediately preceding the time of nomination?

15. The 24 months immediately preceding this nomination is the period 12 August 2014 to 12 August 2016.  Departmental policy states that relevant experience may include employment experience or study experience.  On the basis of evidence provided, the nominee Mr Contractor has worked full-time for Wesley Community Services Ltd trading as Wesley Hospital Ashfield in the position of Cook since 15 July 2013.  

16. In the circumstances, the Tribunal finds that nominee has at least 12 months full-time experience in the occupation to which the nominated occupation training relates in the 24 months immediately preceding the time of nomination. Accordingly, the Tribunal finds the requirements of r.2.72I(5)(c) of Regulation are met.

    Does the nominee have appropriate English language skills to undertake the nominated occupational training?

17. Evidence has been provided that the nominee Mr Contractor has completed a Certificate IV in Commercial Cookery and a Diploma of Hospitality in Australia. In addition, evidence has been provided that Mr Contractor completed an IELTS test undertaken 9 May 2015 with scores of 8.0 for Listening, 7.0 for Reading, 6.5 for Writing and 8.0 for Speaking with an Overall Band Score of 7.5. Having regard to this evidence, the Tribunal is satisfied that the identified nominee has the appropriate English language skills to undertake the nominated occupational training. The Tribunal finds that the requirements of r.2.72I(5)(d) of the Regulations are met.

    Conclusion

18. The Tribunal finds that all of the requirements of r.2.72I(5) of the Regulations have been met by McKkr’s. McKkr’s is an approved occupational trainee sponsor and has used the appropriate nomination process for the purposes of r.2.72A and 2.73A of Regulations as required.

19. Given these conclusions, the appropriate course is to set aside the decision refusing the nomination and substitute a decision approving the nomination.

    DECISION

20. The Tribunal sets aside the decision not to approve the application and substitutes a decision that the nomination is approved.

    Katie Malyon

    
    Member

    ATTACHMENT
    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.

    oOOo