Angels Care (Australia) Pty. Ltd. (Migration)

[2022] AATA 3754

Angels Care (Australia) Pty. Ltd. (Migration) [2022] AATA 3754 (20 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Angels Care (Australia) Pty. Ltd.

CASE NUMBER:  1836775

HOME AFFAIRS REFERENCE(S):          BCC2018/4800625

MEMBER:Antonio Dronjic

DATE:20 September 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 20 September 2022 at 11:04am

CATCHWORDS
MIGRATION – nomination – Aged or Disabled Carer – applicant failed to provide the requested information within the prescribed period – not satisfied that the nominee’s stay in Australia is for genuine training purposes –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GBA, 359, 360, 363
Migration Regulations 1994, r 2.72

CASES
Hasran v MIAC [2010] FCAFC 40

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 Home Affairs on 30 November 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72A of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 31 October 2018. A nomination of a program of occupational training in relation to a Subclass 407 visa is made under s 140GB of the Act and reg 2.72A of the Regulations. Regulation 2.72A prescribes criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision.

3. The program of occupational training nominated in this case is enhancing skills of the nominee, Ms Mary Joy TAMONDONG in the occupation of Aged or Disabled Carer – (ANZSCO 423111).

4. The delegate found that the nomination application represents an opportunity for the sponsor to engage migrant labour and engage a worker in an agreement that leaves the nominee vulnerable to exploitation and underpayment and was therefore not satisfied the applicant meet the requirements of 2.72A(11) of the Regulations.

5. The applicant applied for review of the primary decision on 14 December 2018 and provided a copy of the Department’s decision.

6. On 17 June 2022, the Tribunal sent a letter to the applicant which contained a request to the applicant to provide information in writing demonstrating that the nomination meets all the requirements of the criteria in reg 2.72A and one of the alternative criteria in reg 2.72B. The request was made pursuant to s 359(2) of the Act. A copy of the relevant Regulations was included in the letter.

7. The s 359(2) invitation was sent to the applicant and advised that, if the information was not provided in writing by 1 July 2022, the Tribunal may decide on the review without taking further steps to obtain the information and the review applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. As the applicant had not provided the requested information in writing, s 359C applies, and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

9. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide requested information in writing.

10. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision‑making processes.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

11. The Tribunal considered whether, in the circumstances of this case, the evidence that the applicant meets all of the requirements of reg 2.72A is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

12. The Tribunal has had regard to the fact that the nomination application was refused by the Department on 30 November 2018. The applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicant has been aware for more than three years of the reasons for the nomination application refusal.

13. The Tribunal wrote to the applicant under s 359(2) of the Act inviting the applicant to provide information demonstrating that the nomination meets all the requirements of the criteria in reg 2.72A and one of the alternative criteria reg 2.72B(3). The applicant has failed to provide requested information.

14. The Tribunal notes that the sponsoring business is not prevented from lodging a new training nomination application for a Subclass 407 visa with the Department.

15. In the circumstances, the Tribunal considers the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s 359C of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72A: s 140GB(2).

    Genuine training opportunity – reg 2.72A(16)

18. It is a requirement of reg 2.72A(16) of the Regulations that the Minister is satisfied the nominated program is offered as a genuine training opportunity for a purpose referred to in reg 2.72B of the Regulations.

19. The application form records that the applicant applied for approval of the nomination to ‘enhance the skills’ of Ms Mary Joy TAMONDONG in the occupation of Aged or Disabled Carer.

20. The Tribunal must by necessity consider contemporary information and evidence as to whether the nominated program is offered as a genuine training opportunity. As noted above, the applicant did not respond to the Tribunal’s letter of 17 June 2022 inviting it to provide updated and current information which demonstrates that all the requirements of reg 2.72A of the Regulations are met at the time of decision.

21. As the applicant has not responded to its s 359(2) invitation, the Tribunal has had no contemporary information before it about the proposed structured training program, the nominee’s continued employment and further skill development, nor does it have information about how an additional employment period would impact the proposed training program, including which elements of the program provided are to be modified or are no longer necessary, and/or how this would impact the proposed training duration.

22. For this reason, the Tribunal is unable to give weight to information provided to the Department in October 2018. By reference to the information presently before it, the Tribunal is not satisfied that the nominee’s stay in Australia is for genuine training purposes. Rather, it appears to be a process to allow her the opportunity to simply remain in Australia.

23. For these reasons the Tribunal is not satisfied that the applicant meets the applicable requirements for approval of the nomination. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Antonio Dronjic
    Member

    
    

    ATTACHMENT - Extracts from the Migration Regulations 1994

    2.72A Criteria for approval of nomination—Subclass 407 (Training) visa

    (1)This regulation applies to a person (the sponsor):

    (a)who is, or has applied to be, a temporary activities sponsor; and

    (b)who has nominated, under paragraph 140GB(1)(b) of the Act, a program of occupational training (the nominated program) in relation to a holder of, or an applicant or proposed applicant for, a Subclass 407 (Training) visa (the nominee).

    (2)For the purposes of subsection 140GB(2) of the Act, the criteria that must be satisfied for the Minister to approve the nomination are the criteria set out in this regulation.

    (3)The Minister is satisfied that the sponsor is a temporary activities sponsor.

    (4)The Minister is satisfied that the sponsor made the nomination in accordance with regulation 2.73A.

    (5)The Minister is satisfied that the nominee will participate in the nominated program.

    (6)If the nominee holds a visa, the Minister is satisfied that the sponsor has listed on the nomination each secondary sponsored person who holds the same visa as the nominee on the basis of the secondary sponsored person’s relationship to the nominee.

    (7)However, the Minister may disregard the fact that one or more secondary sponsored persons are not listed on the nomination if the Minister is satisfied that it is reasonable in the circumstances to do so.

    (8)The Minister is satisfied that the sponsor has provided the following:

    (a)information that identifies the employer or employers in relation to the nominated program, including:

    (i)       the location and contact details of each employer; and

    (ii)      if the sponsor and the employer are not the same person—the relationship between the sponsor and the employer;

    (b)information that identifies the location or locations where the nominated program will be carried out;

    (c)information that identifies each member of the family unit of the nominee who holds, or proposes to apply for, the same visa as the nominee on the basis of satisfying the secondary criteria.

    (9)For the purposes of paragraph (8)(a), if undertaking the nominated program is a volunteer role (within the meaning given by subregulation 2.57(5)), employer includes the person or organisation responsible for the tasks to be carried out as part of the nominated program.

    (10)The Minister is satisfied that the sponsor has certified, in writing and as part of the nomination, whether or not the sponsor has engaged in conduct in relation to the nomination that constitutes a contravention of subsection 245AR(1) of the Act.

    (11)The Minister is satisfied that:

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

    (b)if any adverse information is known to Immigration about the sponsor or a person associated with the sponsor—it is reasonable to disregard the information.

    (12)The Minister is satisfied that:

    (a)the occupational training will be provided directly by the sponsor; or

    (b)the sponsor is supported by a Commonwealth agency, and the Commonwealth agency has provided a letter endorsing the arrangement for the provision of the occupational training; or

    (c)the sponsor is specified in a legislative instrument made by the Minister for the purposes of this paragraph; or

    (d)the occupational training will be provided in circumstances specified in a legislative instrument made by the Minister for the purposes of this paragraph.

    (13)The Minister is satisfied that the sponsor does not engage in, or intend to engage in, activities that will have adverse consequences for employment or training opportunities, or conditions of employment, for Australian citizens or Australian permanent residents.

    (14)The Minister is satisfied that the nominee has functional English.

    Note:       For functional English, see subsection 5(2) of the Act.

    (15)Regulation 2.72B applies to the nomination.

    (16)The Minister is satisfied that the nominated program is offered as a genuine training opportunity for a purpose referred to in the subregulation of regulation 2.72B that applies.