ASAP PRESS PTY LTD (Migration)

[2021] AATA 4875

ASAP PRESS PTY LTD (Migration) [2021] AATA 4875 (25 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ASAP Press Pty Ltd

CASE NUMBER:  1836227

HOME AFFAIRS REFERENCE(S):          BCC2018/4909271

MEMBER:Katie Malyon

DATE:25 November 2021

PLACE OF DECISION:  Sydney

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

Statement made on 25 November 2021 at 5:05 pm

CATCHWORDS
MIGRATION – nomination – Accountant (General) – applicant failed to provide the information within the prescribed period – genuine training opportunity requirements not met– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 245AR, 359, 360, 363
Migration Regulations 1994, rr 2.72, 2.73

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 4 December 2018 to refuse to approve the nomination made by the ASAP Press Pty Ltd (the Company) under s.140GB of the Migration Act 1958 (the Act) as well as r.2.72A and r.2.72B of the Migration Regulations 1994 (the Regulations). Relevant criteria from the Regulations are extracted in the Attachment to this decision

2. The Company applied for approval of the nomination on 7 November 2018.  In its nomination, the Company indicated it was seeking approval to provide occupational training to enhance the skills of the nominee, Taiwanese national Yi-wen Wang, in the occupation of Accountant (General) ANZSCO 221111.  The proposed period of training was for 9 months.

3. The delegate refused the Company’s nomination on the basis that, after considering Ms Wang’s qualifications and work experience, they were not satisfied that the proposed training with the Company was a genuine opportunity to enhance Mr Wang’s skills as required by r.2.72B(3) of the Regulations. As such, the delegate was not satisfied that the Company met the requirements of r.2.72A(16) of the Regulations.

4. Inconsistent with cl.5.1(a) of the Tribunal President’s Migration and Refugee Matters Practice Direction dated 1 August 2018, the Company provided no documentation to the Tribunal in support of its review application, apart from a copy of the delegate’s decision.

   Tribunal’s s.359(2) letter

5. On 8 November 2021, the Tribunal wrote to the Company pursuant to s.359(2) of the Act and invited it to provide updated and current information to demonstrate that it meets all of the relevant requirements in r.2.72A and r.2.72B(3) of the Regulations. The Tribunal’s invitation letter was sent to the Company’s representative, Mr Ian Singer of Australia Migrate, at his email address indicated in the Tribunal’s Appointment of Representative form.

6. The Company was advised that, if information in writing was not received by the Tribunal by 22 November 2021 or if it did not, on or before that date, make a request for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking further steps to obtain the information and, further, the Company would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. No information has been provided by the Company in response to the Tribunal’s s.359(2) invitation: further, no request has been received for an extended period in which to provide the information. In these circumstances, s.359C of the Act applies and, pursuant to s.360(3) of the Act, the Company 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 the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

8. The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act to allow the Company additional time in which to provide evidence to support the review application. In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to the current COVID-19 pandemic, evidence that the Company meets all relevant requirements in r.2.72A and r.2.72B(3) of the Regulations is likely to be forthcoming, whether the Company has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the Company. 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

9. In the opinion of the Tribunal, a significant amount of time has passed since the time of lodgement of the review application. Accordingly, the Tribunal wrote to the Company under s.359(2) of the Act inviting it to provide updated and current information demonstrating that the nomination meets all the relevant requirements of r.2.72A and r.2.72B(3) of the Regulations of the Regulations. The Tribunal is satisfied that its s.359(2) letter was sent to the representative’s correct email address. The Company has failed to provide any of the requested information in response to the Tribunal’s s.359(2) letter within the prescribed period set for this purpose, nor has it requested additional time in which to provide the requested information.

10. In the circumstances, the Tribunal considers the Company has had sufficient time in which to address all of the issues arising on review, or request an extension of time to address these issues. Accordingly, the Tribunal has decided not to exercise its discretion under s.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.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the Company meets the criteria for approval of its nomination.  The Tribunal must approve the nomination if all the applicable requirements in r.2.72A and r.2.72B of the Regulations are met.

13. Absent any submissions or evidence being provided to the Tribunal either at the time of lodgement of the review application or in response to its s.359(2) letter, the Tribunal has considered the on-line nomination application as well as evidence lodged with the Department in support of that nomination. This includes the Company’s Training Plan as well as Ms Wang’s resume and evidence of her qualifications.

14. The Tribunal does not have before it updated and current information to address all of the applicable criteria in r.2.72A and r.2.72B of the Regulations. In the circumstances, it has focused on the criterion considered by the delegate in refusing the Company’s nomination.

    Genuine training opportunity: r.2.72A(16)

15. Regulation 2.72A(16) requires that the Minister is satisfied the nominated program is offered as a genuine training opportunity for a purpose referred in a subregulation of r.2.72B of the Regulations. Relevant to this case, r.2.72B(3) of the Regulations is applicable. This sets out requirements in relation to occupational training to enhance the nominee’s skills in an occupation applicable to them. Having reviewed the Company’s nomination lodged with the Department, no claims have been made that any of the other purposes in r.2.72B are applicable to this case.

16. In assessing the genuineness of the Company’s training visa nomination, the Tribunal has reviewed information provided by the Company in relation to its business activities and it has
    also considered the following information in relation to Ms Wang:

    1)after gaining a Master of Professional Accounting from Central Queensland University in 2016, Ms Wang was granted a Subclass 485 Temporary Graduate (Post-Study work stream) valid until 9 September 2018; and,  

    2)whilst acknowledging that her resume states she obtained a Bachelor of English Literature, Linguistics and Teaching from Providence University in Taichung, Taiwan in 2008 and that she has experience as a Sales Assistant as well as a Receptionist, Ms Wang’s curriculum vitae confirms her relevant professional accounting experience and qualifications at the time of lodgement of the Company’s nomination as follows:

    Education & Training
    
    

    2014 – 2016
    Master of Professional Accounting
    Central Queensland University, Sydney Campus

    Work experience
    
    

    Accountant Nov 2016 - Present
    ASAP Press Pty Ltd│ Sydney NSW

    •Managing coding invoices for clients on a daily basis and manage Accounts Receivable in order to maintain a healthy cash flow

    •Processing EFT payments

    •Extracting data from the company MIS into MYOB accounting system and reconciling general ledgers

    •Reviewing costs and expenses in order to ensure the highest level of accuracy and the consistency of records are maintained

    •Taking responsibilities for the maintenance of vendor and client files

    •Taking required action to effectively maintain credit control and terms of payment in relation to both vendors and clients

    Other experience
    
    
    Platinum Accounting Pty Ltd | Sydney | Jan 2016 – Jun 2016

    •Undertake accounting training outside office hours to enhance personal accounting skills and hands on experience

    •Tasks including full function of Account Payable and Account Receivable, Bank and credit reconciliation, Payroll, Inventory, Budgeting, Fixed Assets management, BAS, MYOB and Xero.

17. The lengthy Training Plan provided by the Company to the Department describes the proposed training to be offered to Ms Wang.  It also contains an assessment of the nominee’s skills and experience.  The Training Plan notes that, in addition to her 2 year work experience with the Company from November 2016 to November 2018, the nominee also completed a 2-hour training at Platinum Accounting every Saturday to enhance her personal accounting knowledge. 

18. However, the Tribunal is not satisfied that information provided to the Department on 7 November 2018 in relation to Ms Wang’s accounting skills and her need for professional training to enhance her skills as an Accountant is current as at the date of this decision.  In any event, the Tribunal finds it is improbable that someone who not only holds a Master of Professional Accounting degree but who also has a number of years of professional experience following completion of her postgraduate tertiary studies in Accounting and who completed 2 hour specialist Accounting training sessions for 6 months would require the type of training outlined by the Company in its Training Plan. 

19. Further, the Tribunal has considered the time that the nominee Ms Wang has spent in Australia. Since her arrival as the holder of a Subclass 417 Working Holiday visa on 13 October 2010, Ms Wang has spent the majority of her time in Australia apart from a 17 month period from 13 March 2013 to 10 July 2014. Departmental records confirm Ms Wang continues to remain in Australia and, as such, there are legitimate concerns as to whether she has an incentive to return to Taiwan consistent with the genuine temporary entrant requirement in cl.407.217 of Schedule 2 to the Regulations for grant of a Subclass 407 visa.

20. Having regard to evidence outlined above, the Tribunal concurs with the delegate’s conclusion that the proposed training suggests an employment opportunity with an incidental training component and, as such, is strongly suggestive that the Training Plan has been created for purposes other than enhancing the nominee’s skills as an Accountant.  It appears evident to the Tribunal that the proposed occupational training with the Company is a means of undertaking work and securing employment for the nominee rather than a genuine training opportunity for Ms Wang to enhance her skills as an Accountant.

21. Based on available evidence, the Tribunal is not satisfied that the Company’s nominated program is offered as a genuine training opportunity for a purpose referred to in r.2.72B of the Regulations, in this case, occupational training to enhance the nominee’s skills as set out in r.2.72B(3) of the Regulations. Therefore, the Tribunal finds the requirements of r.2.72A(16) of the Regulations are not met.

22. For the reasons given above, the Tribunal is not satisfied that the Company meets the applicable criteria for its nomination to be approved.  Accordingly, the decision under review must be affirmed.

    DECISION

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

    Katie Malyon

    
    Member

Attachment – Extract from the Migration Regulations 1994

r.2.72A    Criteria for approval of nomination — Subclass 407 (Training) visas 

(1)  This regulation applies to a person:

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

(i)  a temporary activities sponsor; or

(ii)  if the nomination referred to in paragraph (b) is made on or before 18 May 2017 - a professional development sponsor or a training and research 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.

Criteria 

(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 2.75(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.

r.2.72B Criteria for approval of nomination—alternative criteria for Subclass 407 (Training) visa 

(1)  For the purposes of subregulation 2.72A(15), this regulation applies to a nomination by an approved sponsor (the sponsor) of a program of occupational training in relation to a holder of, or an applicant or proposed applicant for, a Subclass 407 (Training) visa (the nominee) if any subregulation of this regulation applies. 

Occupational training required for registration etc. 

(2)  This subregulation applies if the Minister is satisfied that: 

(a)  the occupational training is necessary for the nominee to obtain registration, membership or licensing in Australia, or in the home country of the nominee, in relation to the occupation of the nominee; and

(b)  the registration, membership or licensing is required in order for the nominee to be employed in the occupation of the nominee in Australia, or in the home country of the nominee; and  

(c)  the duration of the occupational training is necessary for the nominee to obtain registration, membership or licensing in Australia, or in the home country of the nominee, in relation to the occupation of the nominee, taking into account the prior experience of the nominee; and

(d)  the occupational training is workplace based; and

(e)  the nominee has appropriate qualifications and experience to undertake the occupational training.

Occupational training to enhance skills

(3)  This subregulation applies if the Minister is satisfied that: 

(a)  the occupational training is:

(i)  a structured workplace training program; and 

(ii)  specifically tailored to the training needs of the nominee; and

(iii)  of a duration that meets the specific training needs of the nominee; and

(b)  the occupational training is in relation to an occupation specified, with its corresponding 6-digit code, by the Minister in a legislative instrument made for the purposes of this paragraph. 

(ba) the occupation is applicable to the nominee in accordance with the specification of the occupation; and

(c)  the nominee has the equivalent of at least 12 months of full-time experience in the occupation to which the occupational training relates in the 24 months immediately preceding the time of the nomination.

(3A)  The Minister may, in an instrument made for the purposes of paragraph (3)(b), specify any matters for the purposes of specifying the applicability of occupations to nominees as mentioned in paragraph (3)(ba), including (without limitation) matters relating to any of the following:

(a)  the person who nominated the program of occupational training;

(b)  the nominee;

(c)  the occupation;

(d)  the program of occupational training;

(e)  the circumstances in which the occupation is undertaken;

(t)  the circumstances in which the program of occupational training is undertaken.

Occupational training for capacity building overseas - overseas qualification

(4)  This subregulation applies if the Minister is satisfied that:

(a)  the nominee 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; and

(b)  the occupational training is a structured workplace-based training program specifically tailored to the training needs of the nominee.

Occupational training for capacity building overseas - government support

(5)  This subregulation applies if the Minister is satisfied that:

(a)  the occupational training is supported by a government agency, or by the government of a foreign country that is the home country of the nominee; and

(b)  the occupational training is a structured workplace-based training program that is:

(i)  specifically tailored to the training needs of the nominee; and

(ii)  of a duration that meets the specific training needs of the nominee.    

Occupational training for capacity building overseas - professional development

(6)  This subregulation applies if the Minister is satisfied that: 

(a)  the nominee:

(i)   has an overseas employer; and

(ii)  is in a managerial or professional position in relation to the overseas employer; and

(b)  the occupational training is relevant to, and consistent with, the development of the managerial or professional skills of the nominee; and

(c)  the occupational training will provide skills and expertise relevant to, and consistent with, the business of the overseas employer of the nominee; and

(d)  the primary form of the occupational training is the provision of face-to-face teaching in a classroom or similar environment.

oOOo