Automotive Care Pty Ltd (Migration)

[2022] AATA 4325

Automotive Care Pty Ltd (Migration) [2022] AATA 4325 (17 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Automotive Care Pty Ltd

CASE NUMBER:  1911094

HOME AFFAIRS REFERENCE(S):          BCC2019/1398994

MEMBER:Vanessa Plain

DATE:17 November 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 17 November 2022 at 11:14am

CATCHWORDS
MIGRATION – Motor Mechanic (General) – occupational training will be provided directly by sponsor– no adverse consequences for Australians – applicant meets the requirements for approval of the nomination of the program of occupational training –  decision under review set aside

LEGISLATION
Migration Act 1958, ss 245AR, 140GB
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73

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 17 April 2019 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 19 March 2019. 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 the application is for a Motor Mechanic (General) (ANZSCO 321211). The delegate decided not to approve the nomination on the basis that the applicant did not satisfy the requirements of r 2.72A(16). In order to satisfy r.2.72A(16), an applicant must satisfy one of the subregulations in r 2.72B of the Migration Regulations. The subregulations set out the alternative criteria that apply to a nomination 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). The delegate decided not to approve the nomination on the basis that the delegate considered that the applicant did not satisfy r 2.72B, namely, the delegate was not satisfied that the training proposed in the nomination was offered as a genuine training opportunity for the Nominee to enhance their skills in the nominated occupation.

4. The applicant applied to the Tribunal for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with their review application

5. Mr Rahman, director and shareholder of the applicant, together with Mr Hassan (Nominee), appeared before the Tribunal on 17 November 2022 via video link to give evidence and present arguments. The Nominee is the applicant for the Training Visa (class GF) (subclass 407) in the related case (AAT case no. 1913263).  The related matters were heard concurrently in a combined hearing. 

6. The Tribunal exercised its discretion to hold the hearing by video link.  The hearing was held via video link to limit the ongoing effects of the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video link, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video link. The Tribunal is satisfied that the applicant and Nominee were given a fair opportunity to give evidence and present arguments

7. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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).

Background

1. Prior to the hearing, the applicant submitted an extensive amount of documentation to the Tribunal which addresses the relevant criteria set out below.  The Tribunal has had regard to the entirety of the documentation submitted by the applicant.

Nominator is a sponsor – reg 2.72A(3)

1. Regulation 2.72A(3) requires that the applicant is a temporary activities sponsor. In a notice of decision dated 22 March 2019, the applicant was approved as a temporary activities sponsor from 22 March 2019 to 22 March 2024 and therefore reg 2.72A(3) is met.

Nomination made in accordance with reg 2.73A – reg 2.72A(4)

1. Regulation 2.72A(4) requires that the applicant made the nomination in accordance with reg 2.73A. Regulation 2.73A states that the person nominating the program of occupational training may nominate the program in accordance with a process specified in a legislative instrument. The relevant instrument, 18/038 sets out various requirements such as the form to be used to make the nomination and the fee which must accompany the nomination.

2. The Tribunal has before it a copy of the application, made on the appropriate electronic form, and a copy of an application fee receipt for $170. Accordingly, the Tribunal is satisfied that the application was made in accordance with reg 2.73A and that reg 2.72A(4) is met.

Participation in the nominated program – reg 2.72A(5)

1. Regulation 2.72A(5) requires that the nominee will participate in the nominated program.

2. The Tribunal is assisted by the evidence of the applicant’s director, Mr Rahman. Mr Rahman informed the Tribunal that he had prepared an extensive written training plan for Mr Hassan with the assistance of his solicitor and staff.  The training plan is tailored for Mr Hassan and is in line with his current experience and skills.  The training plan is operative over 24 months and is a suitable duration of time to bring Mr Hassan’s practical skills and experience in line with a competent mechanic.

3. Mr Hassan has been employed by the applicant since 2019 initially on a part-time basis which progressed to full-time.  It is noted that the shop was not operating at capacity during mandatory COVID-19 lockdowns and this interrupted Mr Hassan’s training period.  He is approximately 50% through his training plan and the main purpose of it is to ensure he obtains practical skills commensurate with his theoretical knowledge obtained during his studies.    

4. Mr Follacchio further informed the Tribunal at the hearing that the training that Mr Hassan is undertaking pertains to technical skills which he has not obtained in his studies, and which appear on his CV in the context of his theoretical training at his education provider. 

5. By a contract of employment, Mr Rahman confirmed that, should the visa be approved, the Nominee would continue to train as proposed in the training plan.

6. The Tribunal notes that Mr Rahman’s evidence is corroborated by that of the Nominee.  The Nominee stated to the Tribunal that he agrees with Mr Rahman’s evidence as a fair reflection of his role at the business.  The Nominee confirmed his intention to complete the nominated program.

7. On the evidence before it, the Tribunal is satisfied that the nominated person will participate in the nominated program and reg 2.72A(5) is met.

Secondary sponsored persons – reg 2.72A(6)

1. Regulation 2.72A(6) applies where the nominee holds a visa, and requires 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.

2. In this case, the nominee does not hold a visa and therefore this requirement does not apply.

Provision of information about proposed employers and location of work (reg 2.72A(8))

1. Regulation 2.72A(8) requires that the sponsor has provided certain information, including:

   ·information that identifies the employer or employers in relation to the nominated program, including the location and contact details of each employer, and if the sponsor and employer are not the same person – the relationship between the sponsor and the employer: reg 2.72A(8)(a). If undertaking the nominated program is a volunteer role, ‘employer’ includes the person or organisation responsible for the tasks to be carried out as part of the nominated program: reg 2.72A(9);

   ·information that identifies the location or locations where the nominated program will be carried out: reg 2.72A(8)(b); and

   ·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: reg 2.72A(8)(c).

2. From the application and the training plan, the Tribunal is satisfied that the applicant is trading under the name of ‘Automotive Care’ in Laverton North, Victoria. For this reason, reg 2.72A(8) is met.

Certification about conduct that contravenes s 245AR(1) – reg 2.72A(10)

1. Regulation 2.72A(10) requires 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 s 245AR(1) of the Act.

2. By his statutory declaration, Mr Rahman has declared that the sponsor business has not engaged in conduct in relation to the nomination that constitutes a contravention of s 245AR(1) of the Act

3. The applicant has also provided the requisite certification in the application.

4. Reg 2.72A(10) is therefore met.

No adverse information – reg 2.72A(11)

1. Regulation 2.72A(11) requires that either there is no adverse information known to Immigration about the sponsor or a person associated with the sponsor, or it is reasonable to disregard any such information. ‘Adverse information’ and ‘associated with’ have the meanings given in regs 1.13A and 1.13B.

2. There is no evidence before the Tribunal of any adverse information known to Immigration about the sponsor or a person associate with the sponsor. Accordingly, reg 2.72A(11) is met.

Occupational training will be provided directly by sponsor – reg 2.72A(12)

1. Regulation 2.72A(12) requires that:

   ·the occupational training will be provided directly by the sponsor; or

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

   ·the sponsor is specified in a legislative instrument; or

   ·the occupational training will be provided in circumstances specified in a legislative instrument.

2. From the training plan submitted by Mr Rahman, the Tribunal is satisfied that the occupational training will be provided directly by Mr Rahman.

3. Accordingly, reg 2.72A(12) is met.

Activities will have no adverse consequences for Australians – reg 2.72A(13)

1. Regulation 2.72A(13) requires 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.

2. The applicant has characterised itself as being a small motor mechanic business which has operated for several years in Laverton North in Melbourne.  The Tribunal accepts this characterisation, noting also that the retention of trained staff in the motor mechanic repair sector has been difficult particularly in the wake of the COVID-19 pandemic.  Mr Rahman also informed the Tribunal that the Nominee is the only member of his staff utilising a subclass 407 visa, save for one other staff member from New Zealand. 

3. Accordingly, the Tribunal is satisfied that the applicant 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.

4. For these reasons, reg 2.72A(13) is met.

Functional English – reg 2.72A(14)

1. Regulation 2.72A(14) requires that the nominee has functional English. ‘Functional English’ is defined in s 5(2) of the Act, which states that a person has functional English at a particular time if he or she passes a test that is approved in writing by the Minister and is conducted by a person or organisation approved by the Minister (s 5(2)(a)), or the person provides prescribed evidence of the person’s English language proficiency (s 5(2)(b)). There are no approved tests, persons or organisations for s 5(2)(a). For s 5(2)(b), evidence is prescribed by reg 5.17. Regulation 5.17 prescribes evidence such as the nominee holding an award that required at least two years of full-time study or training conducted in English, and evidence specified by the Minister in an instrument in writing.

2. The Nominee obtained an overall score of 71 in a Pearson PTE Academic English Test taken on 8 April 2017.  He therefore possesses functional English as defined in r 5.17. 

3. For these reasons, reg 2.72A(14) is met.

Purpose of occupational training: reg 2.72B – reg 2.72A(15)

1. Regulation 2.72A(15) requires that reg 2.72B applies to the nomination. Regulation 2.72B states that it applies if any of its subregulations apply. Each subregulation outlines a purpose for occupational training and includes various requirements which must be met. In this case, the applicant claims that reg 2.72B(3) applies.

2. Regulation 2.72B(3) applies if:

   • the occupational training is a structured workplace training program; and

   specifically tailored to the training needs of the nominee; and of a duration

   that meets the specific training needs of the nominee (reg 2.72B(3)(a)); and

   • the occupational training is in relation to an occupation specified, with its corresponding 6-digit code, by the Minister in a legislative instrument

   (reg 2.72B(3)(b)); and

   • the occupation is applicable to the nominee in accordance with the

   specification of the occupation (reg 2.72B(3)(ba)); and

   • the nominated person has the equivalent of at least 12 months of full-time

   experience in the occupation to which the occupational training relates in the months immediately preceding the time of nomination (reg 2.72B(3)(c)).

3. The occupational training is clearly in relation to the occupation of Motor Mechanic (General) (ANZSCO 321211), which is an occupation identified on relevant legislative instrument IMMI 19/050.  The occupation is applicable to the Nominee in accordance with the specification of the occupation, and is within the industry of learning and experience relevant to the Nominee.

4. The training plan contains a skills audit and skills gap analysis of the Nominee.  The audit considers the Nominee’s Australian qualifications and competencies, whilst the gap analysis identifies areas where training action is required for the nominated person to become a Motor Mechanic (General) (ANZSCO 321211).

5. The Nominee has obtained the equivalent of at least 12 months full-time experience in the occupation within the 24 months immediately preceding the time of nomination, on the basis of his length of service at the business.

6. The Tribunal has had regard to the extracts of the Nominee’s payslips and the applicant’s financial records which verify the Nominee’s work.  Although the employment experience was conducted at a lower skill level than the nominated occupation, the Tribunal is satisfied that the employment indicates that the Nominee was working within the relevant field and in an environment which relates to his occupation and industry.

7. In considering the term ‘full-time experience’, the Tribunal has had regard to the Departmental policy guidelines under PAM which specify that such experience can consist of either employment or study.

   “Under regulation 2.72B(3)(c) officers must be satisfied that the nominee has recent

   experience in the identified occupation that the training relates. The nominee must be

   building upon skills which they already have gained. This experience may include

   employment experience or study experience, however it:

   • must be the equivalent of at least 12 months full-time experience in the occupation and

   • must have occurred in the 24 months immediately preceding the time of nomination. For example, 8 months full-time experience and 8 months part-time (at approximately 19 hours per week) experience or 24 months part-time experience (at approximately 19 hours per work).

   The requirement for the nominee to have ‘the equivalent of at least 12 months full-time experience in the occupation to which the nominated occupational training relates is to ensure that the nominee is building upon already gained skills and that they have recent experience and/or qualification/s compatible with their nominated training program.

   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.”

8. Having regard to the above, the Tribunal is satisfied that the Nominee’s full-time experience gained through his work experience within the 24 months prior to the time of nomination retains compatibility with the nominated program of occupational training. 

9. For these reasons, the Tribunal is satisfied that reg 2.72B(3) applies. Accordingly, reg 2.72A(15) is met.

Genuine training opportunity – reg 2.72A(16)

1. Regulation 2.72A(16) requires that the nominated program is offered as a genuine training opportunity for a purpose referred to in the subregulation of reg 2.72B that applies. In this case, reg 2.72B(3) applies.

2. The Tribunal does not consider that the training opportunity is not a genuine training opportunity. Although the Nominee is unquestionably skilled in many areas relevant to the motor mechanic role, the training plan has thoughtfully identified the gaps in the Nominee’s practical skill set and proposes relevant remedies.

3. The Tribunal places significant weight upon the evidence of Mr Rahman, which the delegate did not have the benefit of at the time of original decision.  Mr Rahman stated that although various matters on the Nominee’s CV are identical to matters set out on the training plan, the difference is the training plan affords the Nominee the opportunity to obtain a practical skill, as opposed to a theoretical one which was obtained during the Nominee’s study.

4. Based upon the evidence before the Tribunal, the Tribunal is of the view that the applicant is a reputable business and well positioned to provide the proposed remedies. In this context, the Tribunal raises no issue with the genuine nature and duration of training plan.

5. Finally, the Tribunal raises no issue with any benefits that flow to the applicant for facilitating the Nominee’s stay in Australia. Any such benefits may be characterised as mutually beneficial, rather than exploitative.

6. For these reasons, reg 2.72A(16) is met.

7. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements for approval of the nomination of the program of occupational training.

8. For these reasons the Tribunal is satisfied that the applicant meets the applicable requirements for approval of the nomination. Accordingly, the decision under review must be set aside and substituted with a decision that the nomination be approved.

DECISION

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

Vanessa Plain
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).

1. 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.

2. The Minister is satisfied that the sponsor is a temporary activities sponsor.

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

4. The Minister is satisfied that the nominee will participate in the nominated program.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. The Minister is satisfied that the nominee has functional English.

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

14. Regulation 2.72B applies to the nomination.

15. 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.