1618354 (Migration)

The Administrative Appeals Tribunal considered an application by McKkr’s concerning a nomination for a Subclass 402 (Training and Research) visa. The dispute arose when the delegate refused to approve McKkr’s nomination, asserting that the proposed occupational training did not meet the regulatory requirements. The Tribunal, presided over by Member Katie Malyon, ultimately determined that a hearing was unnecessary as the available material supported a decision in favour of McKkr’s.

The central legal issue before the Tribunal was whether McKkr’s nomination satisfied the criteria for approval under Regulation 2.72I of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the nominated occupational training program was a structured workplace training program, tailored to the nominee's specific training needs and of an appropriate duration, as required by Regulation 2.72I(5). The delegate's refusal was based on the belief that the nominee's existing qualifications and experience as a Cook indicated the role was primarily for employment rather than genuine training to enhance skills.

The Tribunal reasoned that while the delegate focused on the nominee's existing qualifications, the core requirement under Regulation 2.72I(5) was that the nominated training be a structured program specifically tailored to the nominee's training needs and of a duration that met those needs. The Tribunal found that the evidence provided by McKkr’s, including the structured nature of the proposed training and its specific tailoring to the nominee's culinary background, satisfied this criterion. The Tribunal concluded that the delegate had erred in focusing on the nominee's existing skill level rather than assessing whether the proposed training itself met the regulatory definition of enhancing skills.

Consequently, the Tribunal set aside the decision to refuse the nomination and substituted a decision approving the nomination.