Bayswater Car Rental Pty Ltd (Migration)

[2023] AATA 465

Bayswater Car Rental Pty Ltd (Migration) [2023] AATA 465 (9 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Bayswater Car Rental Pty Ltd

CASE NUMBER:  1922449

HOME AFFAIRS REFERENCE(S):          BCC2019/3380255

MEMBER:Katie Malyon

DATE:9 March 2023

PLACE OF DECISION:  Sydney

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

Statement made on 09 March 2023 at 1:32 pm

CATCHWORDS

MIGRATION – approval of a nomination – position of Transport Company Manager – genuine training opportunity – training and work experience in the area – proposed employers and location of work – functional English – structured workplace training program – decision under review set aside      

LEGISLATION

Migration Act 1958, ss 5, 140GB, 245, 359
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 24 July 2019 to refuse to approve the nomination made by the applicant, Bayswater Car Rental Pty Ltd T/A No Birds ABN 70 008 711 608 (the Company), under s 140GB of the Migration Act 1958 (the Act) and reg 2.72A of the Migration Regulations 1994 (the Regulations).

2. The Company applied for approval on 5 July 2019.  In its nomination, the Company indicated it was seeking approval to provide occupational training to enhance the skills of the nominee, Ghanian national Mr Desmond Oscar Selorm Kofi Nkornu, in the occupation of Transport Company Manager ANZSCO 149413.  The proposed period of training was approximately 6 months.

3. The delegate refused the nomination on the basis that, having regard to the nominee’s 8 years of experience in training and working in roles that are complimentary to the occupation of Transport Company Manager ANZSCO 149413, it was not reasonable to find that the nominee did not already have training and work experience in the areas specified in the Company’s training plan. Regard was had to Mr Nkornu’s employment as a Logistics Manager and supervisor in Ghana for 4 years, his employment as an Operations Assistant with the Company since 2015 and recent completion of his Master of Commerce – Supply Chain Management at Curtin University. The delegate concluded that the training proposal had been developed in order to secure Mr Nkornu’s employment with the Company rather than be a genuine training opportunity for him. As such, reg 2.72A(16) of the Regulations was not met.

4. Inconsistent with cl 5.1(a) of the Tribunal’s Migration and Refugee Matters Practice Direction of 1 August 2018, no documentation was provided by the representative in support of the Company’s review application when it was lodged with the Tribunal.

   Tribunal’s s 359(2) letter

5. The Tribunal wrote to the Company on 17 August 2022 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 reg 2.72A and reg 2.72B(3) of the Regulations. On 31 August 2022, the Tribunal received a number of documents in response to the Tribunal’s s 359(2) letter.

6. Following constitution of the matter to the Member in November 2022 and having reviewed the documentation provided in response to the Tribunal’s s 359(2) letter, the Tribunal invited the Company to attend a hearing. The Tribunal also indicated in its hearing invitation additional documentation that it requested be provided in support of the nomination.

   Hearing – 12 January 2023

7. On 12 January 2023, one of the Company’s NSW Managers, Mr Brett Carneson, appeared before the Tribunal on behalf of the Company to give evidence and present arguments.  The Tribunal also received oral evidence from the nominee, Mr Nkornu.  Further documentation was provided at the hearing.  The Tribunal found both Mr Carneson and Mr Nkornu to be credible witnesses.

8. By way of brief background, the Tribunal notes that the Company operates multiple car rental depots across Australia.  In Western Australia, it operates from the Perth CBD, Kewdale, Subiaco, Fremantle and Bayswater.  In New South Wales, it has 3 facilities in Kings Cross, Artarmon and Mascot.  The nominee Mr Nkornu currently works as a Manager at the Mascot depot.  He is one of the Company’s 2 Managers who work at Mascot.  At Kings Cross, there are 6 Managers including Mr Carneson, as well as the NSW State Manager Mr Vinder Dogra.  In addition, the Company employs a Manager at its Artarmon premises. 

9. The Company was initially represented in relation to the review by registered migration agent Farhan Shakil RMA 0853636.  Mr Carneson told the Tribunal that Mr Shakil is no longer a registered migration agent as his application to become a Solicitor is pending.  As such, the Company was no longer using his services.  The Tribunal has independently confirmed that Mr Shakil is no longer registered with the Office of Migration Agents Registration Authority and nor is he a solicitor registered with the NSW Law Society.

10. After the hearing, further documentation was submitted by the Company including, relevantly, an updated Skill Audit for Mr Nkornu for the nominated position of Transport Company Manager, a revised Training Plan dated 10 February 2023 (the Revised Training Plan) and a copy of Mr Nkornu’s signed Training Agreement dated 9 February 2023 (the Training Agreement).

11. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.  The Tribunal acknowledges that it has significantly more information than that which was available to the delegate, including the oral evidence of Mr Carneson and Mr Nkornu.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the Company meets the criteria for approval of the nomination. The Tribunal must approve the nomination if all the applicable requirements in reg 2.72A and reg 2.72B of the Regulations are met. If any of the requirements are not met, the Tribunal must affirm the delegate’s decision to refuse the nomination. Relevant provisions of the Regulations referred to herein are set out in the Attachment to this decision.

    Nominator is a sponsor: reg 2.72A(3)

13. Regulation 2.72A(3) requires that the applicant is a temporary activities sponsor.

14. The Tribunal has been provided with a copy of the Company’s temporary activities sponsorship approval issued by the Department confirming that its sponsorship is effective until 11 June 2024. For this reason, reg 2.72A(3) is met.

    Nomination made in accordance with prescribed process: reg 2.72A(4)

15. Regulation 2.72A(4) requires that the applicant made the nomination in accordance with reg 2.73A.  

16. Having reviewed the Department’s file, the Tribunal is satisfied the nomination was made in accordance with the prescribed process. As such, the Tribunal is satisfied that the Company has met reg 2.72A(4) of the Regulations.

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

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

18. The Tribunal has considered documentation lodged with the Tribunal both prior to and after the hearing as well as oral evidence provided at the hearing.  Evidence provided confirms that the nominee Mr Nkornu has been employed with the Company since 2015.  Initially, he worked as a Cleaner in the Company’s Perth office and was then engaged as a Rental Service Officer from 2017.  Given he showed considerable aptitude for the Company’s work, Mr Nkornu was promoted and was subsequently offered the role of Manager in 2018.  Mr Nkornu told the Tribunal that he had worked in logistics as a Port Supply Logistics Manager for 3 years in Accra, Ghana.  However, in that role, he had no interface with customers and so has been challenged by the customer relations work in a car rental agency business.  The Company’s NSW depots lease around 1,700 cars.  So, whilst he was familiar with logistics business and was aware, because of his work as a cleaner with Company then as a Customer Service Officer, it has been a challenge to get on top of many aspects of the role of a Manager.

19. Both Mr Carneson and Mr Nkornu independently told the Tribunal during the hearing that Mr Nkornu requires further ongoing training dealing with specific shortcomings in his experience to date. 

20. Mr Carneson confirmed during the hearing that, given the passage of time since the nomination was lodged with the Department, Mr Nkornu has had the benefit of obtaining further experience in many of the managerial tasks expected of him.  However, he identified a number of areas in which Mr Nkornu still needs his skills developed in line Company expectations which include training programs published by Cars* Plus (which is based in the USA) and produces training programs as well as software for automobile dealers including car rental agencies.[1]  In the circumstances, Mr Carneson said the proposed period of training period of 6 months as set out in the Training Plan lodged with the Department would be reduced.  He told the Tribunal that, once Mr Nkornu has completed the training necessary for him to become a competent Transport Company Manager, the Company will definitely consider sponsoring him for a temporary resident visa.

    [1] Cars*Plus dealership management software (carsplussoftware.com)

21. As noted above, following the hearing, the Company provided an updated Skill Audit together with the Revised Training Plan and a copy of Mr Nkornu’s Training Agreement.  The updated Skill Audit confirms Mr Nkornu’s ongoing training needs as discussed in detail in the hearing.  The training period set out in the Revised Training Plan has been reduced to 3 months.

22. It is acknowledged by the Tribunal that the Company has a number of staff filling managerial roles in NSW and that its assessment of Mr Nkornu’s shortcomings as identified in the Skill Audit and addressed in the Revised Training Plan are credible.  The Skill Audit reflects oral evidence provided by Mr Carneson at the hearing.  In independent evidence during the hearing, Mr Nkornu acknowledged he has some shortcomings which need to be addressed. 

23. Having regard to evidence provided, the Tribunal is satisfied that Mr Nkornu will participate in the training program as set out in the Revised Training Plan pursuant to the Training Agreement. For these reasons, Tribunal is satisfied that the requirements in reg 2.72A(5) are met.

    Family members are included in the nomination unless it is reasonable to disregard this: reg 2.72A(6) and reg 2.72A(7)

24. If the nominee holds a visa, the Minister must be satisfied that the sponsor has listed in the nomination each secondary sponsored person who holds the same visa as the nominee on the basis of that person’s relationship to the nominee. 

25. Mr Nkornu does not have any family members who hold the same visa that he does. He confirmed this at the hearing. The Tribunal has reviewed the Company’s nomination and confirms that no secondary applicants are included. Accordingly, the Tribunal is satisfied that the provisions of reg 2.72A(6) and reg 2.72A(7) do not apply in this case.

    Provision of information about proposed employers and location of work: reg 2.72A(8) and reg 2.72A(9)

26. Regulation 2.72A(8) requires that the Minister is satisfied that the sponsor has provided information regarding proposed employers and the location of work.  Specifically, the sponsor is required to provide 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 as a volunteer role, the term ‘employer’ includes the person or organisation responsible for the tasks to be carried out as part of the nominated program: reg 2.72A(9);

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

    · 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).

27. The nomination application includes evidence which identifies the Company as the employer in relation to Mr Nkornu’s nominated training program.  This is confirmed in the Training Agreement lodged by the Company after the hearing.  The Revised Training Plan identifies that the nominated training program will be delivered at the Mascot depot at 55 Kent Road, Mascot and by the Company’s State Manager, Mr Dogra. 

28. Based on evidence provided, the Tribunal is satisfied that the Company has provided the required information including the name of the occupation and the corresponding ANZSCO code.  The Company indicated the occupation is Transport Company Manager ANZSCO 149413.  Additionally, the Company confirmed that the location the training will be carried out is at the Company’s Mascot depot in Mascot and will be undertaken by the Company’s State Manager Mr Dogra.

29. Therefore, the Tribunal is satisfied that the Company meets reg 2.72A(8) is met

    Certification about conduct that contravenes s 245AR(1) of the Act: reg 2.72A(10)

30. 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.

31. Having reviewed the Company’s nomination lodged with the Department, the Tribunal is satisfied that the Company has made the requisite certification. Accordingly, the requirement in reg 2.72(8B) of the Regulations is met.

    No adverse information: reg 2.72A(11)

32. 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. The terms ‘adverse information’ and ‘associated with’ have the meanings given respectively in reg 1.13A and reg 1.13B of the Regulations.

33. There is no evidence before the Tribunal to indicate that there is any ‘adverse information’ known to Immigration, either about the Company or a person ‘associated with’ the Company. For these reasons, the Tribunal is satisfied that the requirements in reg 2.72(11) of the Regulations are met.

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

34. 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.

35. In oral evidence to the Tribunal and as set out in the Revised Training Plan, it is proposed that the nominee Mr Nkornu will continue to undertake training provided directly by the Company and conducted by its NSW State Manager Mr Dogra.

36. The Tribunal is therefore satisfied that the Company will directly be providing the training to Mr Nkornu and that reg 2.72A(12) of the Regulations is therefore met.

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

37. 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.

38. There is no evidence before the Tribunal that the Company has engaged in or intends to engage in activities that will have adverse consequences for employment or training opportunities, or conditions of employment, for Australian citizens or permanent residents.  On the contrary, the Company’s Organisation Chart confirms that, in relation to its 10 Managers all are Australian citizens or permanent residents, apart from Mr Nkornu.

39. Accordingly, the Tribunal is satisfied the requirement in reg 2.72A(13) of the Regulations is met.

    Functional English: reg 2.72A(14)

40. Regulation 2.72A(14) requires that the nominee has functional English. The term ‘functional English’ is defined in s 5(2) of the Act to include persons who provide prescribed evidence of their English language proficiency. This includes evidence of having achieved an overall band score of at least 4.5 based on the 4 test components of Speaking, Reading, Writing and Listening in an International English Language Testing System (IELTS) test: IMMI 15/004.  The test is required to be conducted no more than 12 months before lodgement of the visa application or at the time of processing the application.  Alternatively, an applicant needs to provide evidence that they successfully completed, in Australia, at least one year of full-time study or equivalent part-time study towards a degree or higher degree.

41. The Tribunal acknowledges that Mr Nkornu provided evidence to the Department of completing a Master of Commerce – Supply Chain Management at Curtin University on 13 January 2017 and that, subsequently, he was granted a Subclass 485 Skilled Graduate visa. As such, it accepts that he has, prior to lodgement of the nomination on 5 July 2019, provided evidence that he successfully completed in Australia at least one year of full-time study towards a higher degree. Accordingly, the Tribunal is satisfied that reg 2.72A(14) of the Regulations is met.

42. In passing, the Tribunal notes that the Company provided a copy of Mr Nkornu’s IELTS test results from a test undertaken on 11 June 2020 confirming that he achieved a score of Listening 8.0, Reading 6.5, Writing 7.5, Speaking 8.0 with an Overall Band Score of 7.5. Based on available evidence, the Tribunal is therefore satisfied that Mr Nkornu has functional English as at the time of processing his visa application given that this process is still ongoing and, as a consequence, the Company has demonstrated that it meets reg 2.72A(14) of the Regulations.

    Alternative criteria in reg 2.72B for approval of a nomination: reg 2.72A(15)

43. For the purpose of determining whether the applicant meets the requirements of reg 2.72A(15) of the Regulations, the Tribunal must consider the alternative criteria in reg 2.72B of the Regulations.

44. Regulation 2.72B(1) provides that, for the purposes of reg 2.72A(15), any of 5 streams can satisfy the alternative criteria for nomination of a Subclass 407 Training visa. These alternative training streams are occupational training:

    1) required for registration etc: reg 2.72B(2);

    2) to enhance skills: reg 2.72B(3);

    3) for capacity building overseas – overseas qualification: reg 2.72B(4);

    4) for capacity building – government support: reg 2.72B(5); and,

    5) for capacity building overseas – professional development reg 2.72B(6).

45. In this case, the stream identified in the Company’s nomination is occupational training to enhance skills as set out in reg 2.72B(3) of the Regulations. This requires that the Minister is satisfied that:

    a)the occupational training is:

    (i)a structured workplace training program;

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

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

    b)the occupational training is in relation to an occupation specified, with its corresponding 6-digit code, by the Minister: reg 2.72B(3)(b);

    c)the occupation is applicable to the nominee in accordance with the specification: reg 2.72B(3)(ba); and,

    d)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 nomination: reg 2.72B(3)(c).

1. The Tribunal has considered each of the requirements in relation to reg 2.72B(3) of the Regulations.

   Structured workplace training program: reg 2.72B(3)(a)(i)

2. The Company has submitted the Revised Training Plan which provides for a reduced training period of 3 months to enable Mr Nkornu to gain or enhance his skills required for the position of Transport Company Manager.  The training will be conducted at the Company’s Mascot branch in Sydney.

3. The training will be conducted by a mixture of assessment methods in order to evaluate Mr Nkornu’s skill progression.  Methods adopted will include completion and assessment of practical tasks, observation in the workplace, informal questioning of Mr Nkornu by his trainer Mr Dogra and testing Mr Nkornu’s knowledge verbally.

4. Having reviewed the Revised Training Plan, the Tribunal is satisfied that the nominated occupational training is a structured workplace training program. Therefore, the Tribunal is satisfied that the requirement in reg 2.72B(3)(A)(i) of the Regulations is met

   Specifically tailored to the training needs of the nominee: reg 2.72B(3)(a)(ii)

5. The Revised Training Plan provided to the Tribunal commences with a detailed assessment of Mr Nkornu’s Skill Gap Analysis having regard to the skill level and specialisation necessary to perform the tasks of the nominated occupation as set out in ANZSCO.  It acknowledges Mr Nkornu’s more than 12 months’ full-time experience in the nominated occupation of Transport Company Manager in the 24 months prior to lodgement of the domination having regard to accompanying evidence of his qualifications and CV.  It acknowledges Mr Nkornu has completed a Master of Commerce in Supply Chain Management from Curtin University.  Mr Nkornu’s resume confirms that he has worked as a Customer Service Officer with the Company in the period 2015 to 2018 including his early days as a Cleaner as well as his 3 years’ experience in the related work of being a Port Supply and Logistics Manager with  J&R Offshore Services Ltd in Accra, Ghana from May 2012 to February 2015. 

6. In its Revised Training Plan, the Company has identified 10 Skill Cluster Families which it views are key to the success of its Transport Company Managers.  These skill clusters families are:

   ·Business Operation and Financial Activities – manage services or staff activities; establish organisational policies or programs; manage operational budgets; negotiate purchases or contracts; undertake financial reporting; documentation and analysis; verify and maintain financial records;

   ·Human resource skills - supervise staff; undertake human resources activities; resolve human resources issues; train staff;

   ·Communication and Collaboration - communicate and collaborate with customers and staff;

   ·Safety and Hazard Management - monitor compliance with regulations, standards or procedures; investigate equipment and systems malfunctions and failures;

   ·Environmental Management - design or install sustainable processes and systems; environmental impact reduction planning; teach environmental awareness and sustainability;

   ·Other Skills Cluster Families – material transportation; operating procedures and processes; records, documentation, reports and research;

   ·Technology Tools - common technology tools; enterprise resource planning ERP software; business intelligence and decision support software; project management software.

7. Having reviewed the Training Plan which was lodged with the Department, it is evident that the Company has given detailed consideration to the need to specifically identify shortcomings in Mr Nkornu’s experience as a Transport Company Manager.  The Revised Training Plan confirms oral evidence provided by Mr Carneson during the hearing regarding the skills that Mr Nkornu needs to develop.  As noted above, the Revised Training Plan submitted to the Tribunal after the hearing provides for a training period of 3 months (38 hours per week) of occupational training to further develop his managerial skills. 

8. A summary of the Revised Training Plan to be conducted over 11 phases is set out in the Table below:

Skill Cluster	Weeks’  duration	Hours per week
1.	Managing services or staff activities	24
2.	Enterprise resource planning ERP software	5	8
3.	Managing operational budgets	6
4.	Negotiate purchases or contracts	20
5.	Undertake financial reporting, documentation and analysis	2	10
6.	Verify and maintain financial records	8
7.	Train staff	2	8
8.	Communication and collaboration	30
9.	Develop operational strategies, plans or procedures	15
10.	Respond to legal regulatory and compliance issues	3	8
11.	Prepare forms, legislation or proposals	15

The Revised Training Plan sets out in detail the tasks to be undertaken by Mr Nkornu in each of these 11 phases of his training program to enhance his managerial skills.

1. The Tribunal accepts that the phases in the Revised Training Plan are consistent with the learning objectives identified in the Skill Audit.  It also accepts that the proposed training is uniquely tailored to the training needs of Mr Nkornu and that the proposed training will enhance his skills in the nominated occupation of Transport Company Manager.

2. On the basis of the evidence provided, the Tribunal is satisfied that the requirement in reg 2.72B(3)(a)(ii) has been met by the Company.

   A duration that meets the specific training needs of the nominee: reg 2.72B(a)(iii)

3. As noted above, the Revised Training Plan estimates a training period of 3 months (12.5 weeks).  The Tribunal accepts that Mr Nkornu has been working with the Company initially as a car detailing and general office cleaner in Perth whilst undertaking his studies at Curtin University but then took on a Customer Service Officer role.  Subsequently, he was promoted to a junior Managerial role but that the Company has identified that he needs specific training to meet the Company’s expectations of its Managers to competently undertake the duties as set out in ANZSCO for the position of Transport Company Manager.  The Skill Audit lodged with the Tribunal especially identifies the need to have Mr Nkornu undertake training in relation to managing customer services and staff activities, in particular, in relation to directing organisational operations, projects and services as well as managing the Company’s control system activities and its operations regarding risk management. 

4. After careful consideration, the Tribunal accepts that the proposed training period of 3 months duration meets the specific training needs of the nominee Mr Nkornu. Therefore, the Tribunal is satisfied that the requirement in reg 2.72B(a)(iii) is met.

   The occupational training is in relation to a specific occupation, with its corresponding 6-digit code: reg 2.72B(3)(b)

5. Regulation 2.72B(3)(b) of the Regulations requires that the occupational training is in relation to a specified occupation with its corresponding 6-digit code. Accordingly, the Tribunal has considered the nature of the occupational training proposed in the Revised Training Plan as well as the terms of the Training Agreement made between the Company and Mr Nkornu on 9 February 2023 and whether the training is in relation to a specified occupation.

6. The specified occupation set out in the Company’s nomination is Transport Company Manager ANZSCO 149413.  The task of Transport Company Manager as set out in ANZSCO are as follows:

   
   
   

   UNIT GROUP 1494 TRANSPORT SERVICES MANAGERS
   
   

   Transport Services Managers organise and control the buying and selling of vehicles for rental agencies and coordinate the leasing of vehicles, the operations of railway stations, and the operations of enterprises that operate fleets of vehicles to transport goods and passengers.
   
   

   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 Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

   …

   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. Registration or licensing may be required.
   
   

   Tasks Include:

   ·organising the purchase and maintenance of transport vehicles, equipment and fuel

   ·liaising with clients to determine requirements and providing customers with advice and information regarding vehicle type, purchase or hire rates and obligations and handling complaints

   ·receiving orders and bookings, and planning and implementing transportation schedules

   ·ensuring goods are stored and transported in conditions that will maintain their quality

   ·arranging collection and delivery of vehicles and goods

   ·maintaining business records and preparing operational statements and reports

   ·coordinating activities associated with the arrival, departure, loading and unloading of trains

   ·ensuring compliance with occupational health and safety regulations
   
   

   Occupations:

   149411 Fleet Manager

   149412 Railway Station Manager

   149413 Transport Company Manager
   
   

   149413 Transport Company Manager

   Organises and controls the operations of an enterprise that operates a fleet of vehicles to transport goods and passengers. Registration or licensing may be required.

   Skill Level: 2

   Specialisations:

   ·    Bus Company Manager

   ·    Car Rental Agency Manager

7. The Tribunal has carefully considered the nature of the training proposed to be undertaken by the nominee Mr Nkornu. Based on the evidence provided including oral evidence at the hearing, the Tribunal accepts that the training to be provided as set out in the Revised Training Program will be in relation to the specified occupation of Transport Company Manager ANZSCO 149413. Accordingly, the requirement in reg 2.72B(3)(b) of the Regulations is met.

   The occupation must be applicable to the nominee and the nominee must have at least 12 months of full-time experience in the occupation to which the training relates in the 24 months immediately preceding the time of the nomination: reg 2.72B(3)(ba) and reg 2.72B(3)(c)

8. In its submission lodged with the Tribunal, the Company confirmed that Mr Nkornu has been employed with the Company since 2015.  He initially worked as a Cleaner and then as a Customer Service Officer before being offered a role as Manager in 2018.  In addition, The Company has provided PAYG Payment Summaries in respect of Mr Nkornu for years ended 30 June 2016 to date.  Documentation provided confirms oral evidence given by Mr Carneson at the hearing.  As a part-time Cleaner, Mr Nkornu was earning approximately $10,000 per annum but that increased to $65,354 per annum when he was employed full-time as a Customer Service Officer following completion of his Master of Commerce degree during which time when he was the holder of the Skilled Graduate Subclass 485 visa.  Following Mr Nkornu’s appointment as a Manager at the Company’s Mascot branch, he has earned between $81,002 - $99,000 per annum, depending on commission earned.  The Company’s submission also notes Mr Nkornu’s resume confirms that he worked in a related occupation of Port Supply and Logistics Manager for 3 years on a full-time basis from 2012 - 2015.  As observed by the delegate, accepting Mr Nkornu’s resume at face value, it is clear he has a number of years’ experience training and working in roles which are complementary to the occupation of Transport Company Manager.

9. The Tribunal accepts that, prior to lodgement of the Company’s nomination, Mr Nkornu worked with the Company on a full-time basis and had accumulated at least 12 months of full-time experience in the occupation to which the occupational training relates. 

10. Having regard to the evidence provided, the Tribunal is satisfied that the occupation of Transport Company Manager ANZSCO 149413 is applicable to the nominee Mr Nkornu and that, as such, the requirements of reg 2.72B(3)(ba) of the Regulations are met. Further the Tribunal accepts that Mr Nkornu has at least 12 months of full-time experience in the occupation of Transport Company Manager ANZSCO 149413 in the 24 months immediately preceding lodgement of the Company’s the nomination on 5 July 2019 and, therefore, the requirements in reg 2.72B(3)(c) of the Regulations are met.

11. For these reasons, the Tribunal is satisfied that the cumulative requirements in reg 2.72B(3) are met. Accordingly, reg 2.72A(15) is met.

    Genuine training opportunity: reg 2.72A(16)

12. 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. Relevant to this case, reg 2.72B(3) of the Regulations is applicable. This sets out the requirements in relation to occupational training to enhance the skills of the nominee in an occupation which is 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 reg 2.72B set out above in para [44] are applicable to this case.

13. As noted above, the reason the delegate refused the Company’s nomination was that, having regard to Mr Nkornu’s 3 years of experience as a Logistics Manager with J&R Offshore Services Limited in Ghana, his Master of Commerce – Supply Chain Management qualification from Curtin University and his employment with the Company since 2015, the delegate formed the view that the proposed Training Plan was not reasonable as it was considered Mr Nkornu would have already had training and work experience in these areas identified in the training plan and he would not require further training.  The delegate found the proposed Training Plan was excessive and, therefore, was not a genuine training opportunity: rather, it had been developed in order to secure Mr Nkornu’s employment with the Company.. 

14. The Tribunal acknowledges that it has significantly more information than that which was available to the delegate, including oral evidence at the hearing.  Having considered the evidence overall, the Tribunal is satisfied that the nominated program is offered as a genuine training opportunity for the purpose of enhancing Mr Nkornu’s occupational skills as a Transport Company Manager.  The Tribunal accepts that enhancement of Mr Nkornu’s skills as a Transport Company Manager will benefit both the Company and the nominee.  In oral evidence at the hearing, Mr Carneson indicated that once the training has been completed, it is the Company’s intention to sponsor Mr Nkornu on an appropriate work visa. 

15. Based on available evidence, the Tribunal is satisfied that the nominated program is offered as a genuine training opportunity for a purpose referred to in reg 2.72B of the Regulations, in this case, occupational training to enhance the skills of the nominee as set out in reg 2.72B(3) of the Regulations

16. Therefore, the requirement in reg 2.72A(16) is met.

    Conclusion

17. For the cumulative reasons set out above, the Tribunal is satisfied that the Company’s nomination meets all of the applicable criteria to be approved. 

    DECISION

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

    Katie Malyon

    
    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.

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