AUSTRALIAN STEEL PTY LTD (Migration)

AUSTRALIAN STEEL PTY LTD (Migration) [2017] AATA 2476 (21 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  AUSTRALIAN STEEL PTY LTD
CASE NUMBER:  1619698
DIBP REFERENCE(S):  BCC2016/2474361 CLF2016/95686
MEMBER:Karen Synon
DATE:21 November 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the application and substitutes a decision that the nomination is approved.
Statement made on 21 November 2017 at 12:04pm

CATCHWORDS
Migration – Nomination – Occupational trainee program – Subclass 402 (Training and Research) visas – Metal Fabricator – Structured training program – 12 months full-time experience – Appropriate English language skills

LEGISLATION

Migration Act 1958, s 140GB
Migration Regulations 1994, r 2.72I, r 2.72A

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to approve a nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72I of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval of the nomination on 22 July 2016.
Under section 140GB of the Act, the Minister must approve a nomination if it meets the prescribed criteria. The prescribed criteria for a training and research visa are set out in 2.72A and 2.72I of the Regulations.
The Trustee for Simply Patrich Trust applied for approval on 22 July 2016 of a nomination for an occupational trainee position. The application was made in respect of Mr Rolly Manipol (the nominee) for training in the occupation of ‘Metal Fabricator’ (ANZSCO 322311) for a period of 12 months. It was proposed that the training activity will take place at the business premises of Australian Steel Pty Ltd, 64 Mills Road, Braeside, 3195, Victoria. Details of the relevant ANZSCO occupation are extracted in an attachment to this decision.
To approve a nomination for a training and research position, the prescribed criteria must be met. The delegate did not approve the nomination on the basis that ‘Australian Steel Pty Ltd’ did not satisfy r.2.72I(5)() of the Regulations because she formed the view that the nominated occupational training was not a structured training program specifically tailored to the training needs of the identified nominee.
On 22 November 2017 Australian Steel Pty Ltd (‘the review applicant’) applied for review of the primary decision and provided a copy of the department’s decision to the Tribunal.
Mr Charles Capocasale, on behalf of the review applicant, appeared before the Tribunal on 20 November 2017 to give evidence and present arguments. This was conducted as a combined hearing with the related case of the nominee’s 402 visa refusal. The Tribunal therefore received oral evidence from Mr Rolly Manipol, the nominee in the related case.
The applicant was represented in relation to the review by its registered migration agent who was present throughout the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 prospective holders of Subclass 402 (Training and Research) visas. 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 and r.2.72A of the Regulations.
Regulation 2.72A, as it applies to this case requires that:
·the person is an approved sponsor;
·a nomination has been made for a Subclass 402 visa nominating the visa holder or applicant, that the application identifies the employer;
·the location where the nominated program will be carried out; and that there is no adverse information known about the nominator or a person associated with the nominator or it is reasonable to disregard such information.
Information from the Department's records shows that the applicant is an approved sponsor and that this sponsorship expires on 11 December 2019. The application for the nomination contained the required information. The department records indicate that an allegation as to possible sponsor/employer breaches was made in January 2016 however, as further examination of department records available to the Tribunal do not suggest that any investigations or sanctions followed this allegation, the Tribunal considers it reasonable to disregard the information. Consequently, the Tribunal considers that the applicant meets the requirements in r.2.72A.
The primary issue in this case is whether the review applicant’s nomination meets the 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. The requirements for approval of a nomination for a Subclass 402 visa are set out in r.2.72I of the Regulations and are included as an attachment to the decision.
As confirmed in the company's Form 1402N ‘Nomination for an occupational trainee position’ there is no evidence that the occupational training proposed for the nominee Mr Rolly Manipol is required so that he can obtain mandatory registration, membership or licensing as set out in r.2.72I(4) of the Regulations. Nor is there any evidence that the proposed occupational training is supported by an Australian government agency or Mr Rolly Manipol’s home country, The Philippines, or that he is required to complete practical experience, research or observation to obtain a qualification from a foreign education institution, or that he is a current student or recent graduate undertaking research closely related to his course.
The evidence before the Tribunal is that the applicant is only seeking to meet the requirements under the ‘occupational training to enhance skills’ stream and is not seeking to meet the alternative criteria under either occupational training required for registration or for capacity building overseas. In light of this evidence and in the absence of any evidence supporting a nomination consistent with the requirements of r.2.72I(4) or r.2.72I(6) of the Regulations, neither r.2.72(4) or r.2.72I(6) of the Regulations are met.
Consequently the Tribunal must consider if the applicant satisfies the requirements of r.2.72I(5).
To satisfy r.2.72I(5) the review applicant must met the 3 separate criteria which are cumulative. Relevantly in this case, a nomination made on the basis of training to enhance skills must meet must meet r.2.72I(5) of the Regulations which requires, among other things, that the nominated occupational training is a structured workplace training program, is specifically tailored to the training needs of the nominee and is of a duration that meets his specific training needs.
The proposed training is for the occupation of ‘Metal Fabricator’ (ANZSCO 322311). This is an occupation specified in the relevant instrument.
The Tribunal explained to the applicant at the hearing that r.2.72I(5)(a) requires that the occupational training program be a structured workplace training program, be specifically tailored to the training needs of the identified visa applicant and of a duration that meets the specific training needs of the identified visa holder.
The Tribunal took evidence from Mr Charles Capocasale, the owner and director of Australian Steel Pty Ltd who explained the nature of his business which he has owned since 1992. The Tribunal also took evidence from the identified visa holder (’the nominee’) Mr Rolly Manipol about his employment and study history, his period of employment with the applicant and the tasks he currently performs.
Requirements for the nominated occupational training to enhance skills
The nominated occupational training must be a structured workplace training program and be specifically tailored to the needs of Mr Rolly Manipol. With the application for approval, the applicant provided a ‘Metal Fabrication Training Plan’ for Mr Rolly Manipol. A revised and more detailed training plan was provided during the review which recognises that the nominee has been working 20 hours a week in the business since November 2016. The training is to be delivered in house due to the specialised nature of the applicant’s business requirements. The nominee will be under constant supervision and instruction of one of 2 supervisors Daniel Huber or Amir Burekovic.
During the hearing Mr Capocsale explained the types of specialised and complex welding that his company contracts. It is one of only a handful of such specialised steel manufacturing companies in Victoria and counts among its major clients: Form700 (a major construction company); Bluescope; OneSteel; and Surdex Steel. In particular Australian Steel is a leading thick steel plate cutting company with a turnover of approximately $8,000,000 in the last financial year. While some companies (for example laser cutters) cut steel up to 20 mm thick, Australian Steel cuts plates of up to 500-600mm. This is highly complex work required for major structural buildings such as bridges. While the nominee had relevant experience in welding he did not, and still does not have, the highly specialised competencies that Australian Steel requires. The training plan was developed based on the company’s training manual which runs to several hundred pages (and which the applicant showed the Tribunal at the Callover which preceded the hearing). The Tribunal discussed elements of both the original training plan and the revised training plan with Mr Capocasale at the hearing. Mr Capocaslae provided detailed evidence about the nature of the business and the specialised skills required of his technical workforce. He brought samples of welded steel of different types and thicknesses to demonstrate the unique steel processing market in which his company operates. Mr Capocasale said he was confident that after the 12 months training the nominee could proceed onto a 457 visa as he would then be competent to independently work on complex steel processing jobs. After considering both the written and oral evidence of the applicant and taking evidence from Mr Manipol, the Tribunal is satisfied that the revised training plan is both a structured workplace training program and that is specifically tailored to meet the needs of Mr Rolly Manipol. The Tribunal is therefore satisfied that r.2.72I(5)(a)(i)(ii) are met.
In light of the Tribunal's preceding finding that the training is specifically tailored to the needs of Mr Rolly Manipol, the Tribunal is also satisfied that the training program is of a duration that meets the specific training needs of the nominee and that r.2.72I(5)(a)(iii) is met.
Nomination occupation is specified by the Minister
The nominated occupation of Metal Fabricator (ANZSCO Code 322311) is specified in IMMI 17/060. Therefore r.2.72I(5)(ba) is met.
At least 12 months full-time experience in the occupation
Regulation 2.72I(5)(c) requires Mr Rolly Manipol to have 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 the nomination on 22 July 2016.
The evidence before the Tribunal is that the applicant was employed as a Maintenance Welder and Metal Fabricator on board international ships from January 2007 until May 2013. He then undertook study in a Certificate III in Fabrication Engineering from August 2014 until October 2015 and studied an Automotive Mechanical course from November 2016. He commenced with Australian Steel Pty Ltd In November 2016.
In this respect, the Tribunal notes department policy in PAM3 which, while it is not bound (or indeed permitted) to apply, considers to contain useful guidance. In relation to ‘Prior Experience’ PAM 3 states:
Under regulation 2.72I(5)(c),delegates must be satisfied that the nominated trainee has prior and recent experience in the identified occupation that the training relates. This experience may include employment experience or study experience[1]but must:
·be the equivalent of at least 12 months fulltime experience in the occupation and
·have occurred in the 24 months immediately preceding the time of nomination.
This requirement is to ensure that nominees have recent experience and/or qualification/s compatible with the ASCO/ANZSCO to which their nominated training program relates. Under policy, the critical factor in determining whether the nominee's experience and/or qualification/s is related to occupational training is whether the skill set/s underpinning the qualification/s and/or experience are complementary and will be enhanced in the nominated training program, in terms of both subject matter and the level at which those skills were obtained.
[1] Tribunal’s emphasis.
All nominees are assessed on their own merits and case by case. It is not the intention of this policy to fetter a delegate or be interpreted as having limitless application. It is open to delegates to query the compatibility of the skill set/experience/qualification/s with the nominator or make further investigations as they deem necessary.
The nominee studied a Certificate III in in Fabrication Engineering which he commenced in August 2014 and successfully completed in October 2015. The nomination application was made on 22 July 2016. On this basis and having regard to department policy as detailed above, the Tribunal is satisfied that the nominee did have 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 the nomination July 2016.
The Tribunal therefore finds that r.2.72I(5)(c) is met.
Appropriate English language skills
The Tribunal is not aware of any deficiencies in the nominee’s English skills such that he could not undertake the nominated occupational training. He conversed confidently with the Tribunal during the hearing. Therefore the Tribunal is satisfied he has an appropriate level of English language and r.2.72I(5)(d) is met.
The Tribunal has found the nomination meets the requirements in r.2.72I. Consequently the Tribunal sets aside the decision under review and substitutes a decision that the nomination is approved.
DECISION
The Tribunal sets aside the decision not to approve the application and substitutes a decision that the nomination is approved.
Karen Synon
Member

ATTACHMENTS
Extract from the Migration Regulations 1994 (at 18 November 2016)[2]
[2] Legend notes removed.
Reg 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 (the identified visa holder or applicant):
(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 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 or the training and research sponsor.
Occupational training required for registration
(4)  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.

Occupational training to enhance skills
(5) 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
(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
(5)(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.
Occupational training for capacity building overseas
(6) 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.
Extract from the Migration Regulations 1994 (at 18 November 2016)[3]
[3] Legend notes removed.
Reg 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 (the identified visa holder or applicant):
(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 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 or the training and research sponsor.
Occupational training required for registration
(4)  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.

Occupational training to enhance skills
(5) 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
(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.
Occupational training for capacity building overseas
(6) 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.
Reg 2.72A Criteria for approval of nomination — various visas
(1) a This regulation applies to a person:
(a) who is an approved sponsor; and
(b) who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation, a program or an activity in relation to a visa and a person, as explained by the table.
Item    Visa to which the nomination relates      Person to whom the nomination relates
….
Subclass 402 (Training and Research visa          Holder
Applicant
Proposed applicant…
(2) For subsection 140GB(2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by the person are set out in subregulations (3) to (9).
(3) The Minister is satisfied that the person has:
…(d) made a nomination of an occupation, a program or an activity in relation to a visa and a person, as explained by the table in accordance with the process set out in regulation 2.73A.
Item    Visa to which the nomination relates      Person to whom the nomination relates
….
Subclass 402 (Training and Research visa          Holder
Applicant
Proposed applicant…
(4) The Minister is satisfied that the person has identified in the nomination the visa holder, or an applicant or a proposed applicant for a visa, (the identified visa holder or applicant) who will work or participate in the nominated occupation, program or activity.
(5) If the person identifies a visa holder for subregulation (4), the Minister is satisfied that the person has listed on the nomination each secondary sponsored person who holds the same visa as the visa holder on the basis of the secondary sponsored person's relationship to the visa holder.
(6) However, the Minister may disregard the fact that 1 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.
(7) The Minister is satisfied that the person has provided the following:
(a) information that identifies the employer or employers in relation to the nominated occupation, program or activity, including:
(i) the location and contact details of each employer; and
(ii) if the person and the employer are not the same person — the relationship between the person and the employer;
(b) information that identifies the location or locations where the nominated occupation, program or activity will be carried out;
(c) information that identifies each member of the family unit of the identified visa holder or applicant who holds, or proposes to apply for, the same visa as the identified visa holder or applicant on the basis of satisfying the secondary criteria.
(8) For paragraph (7)(a), in the case of a nominated occupation, program or activity that is a volunteer role, employer includes the person or organisation responsible for the tasks to be carried out as part of the nominated occupation, program or activity….
(9) The Minister is satisfied that:
(a) there is no adverse information known to Immigration about the person or a person associated with the person; or
(b) if any adverse information is known to Immigration about the person or a person associated with the person — it is reasonable to disregard the information.
Extract from the Australian New Zealand Standard Classification of Occupations (ANZSCO)
UNIT GROUP 3223 STRUCTURAL STEEL AND WELDING TRADES WORKERS

STRUCTURAL STEEL AND WELDING TRADES WORKERS cut, shape, join and repair metal components of iron and steel structures, boilers, pressure vessels and pipes, ships and other vessels.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)…
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
ostudying blueprints, drawings and specifications to determine job requirements
oselecting, cleaning and preparing metal stock
ocutting marked-out metal sections and shapes using hand tools, flame cutting torches and metal cutting machines
oshaping and bending metal sections and pipes using hand and machine tools, and by heating and hammering
oaligning parts to be joined using hand tools and measuring instruments
ojoining metal sections using various welding techniques, bolting and riveting
oexamining welds for width of bead, penetration and precision
ofinishing products by cleaning, polishing, filing and bathing in acidic solutions
ocleaning and smoothing welds by filing, chiselling and grinding
Occupations:
322311 Metal Fabricator
322312 Pressure Welder
322313 Welder (First Class) (Aus) / Welder (NZ)
322311 METAL FABRICATOR

Marks off and fabricates structural steel and other metal stock to make or repair metal products and structures such as boilers and pressure vessels.
Skill Level: 3
Specialisations:
Boilermaker-Welder
Brass Finisher
Metal Fabricator-Welder
Metal Template Maker
Structural Steel Trades Worker

[2017] AATA 2476

21 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies