Brown-Denarusha Pty Ltd (Migration) - [2021] AATA 4709

Brown-Denarusha Pty Ltd (Migration) [2021] AATA 4709 (29 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Brown-Denarusha Pty Ltd
CASE NUMBER:  1926246
HOME AFFAIRS REFERENCE(S):          BCC2019/3861062

MEMBER:Antonio Dronjic
DATE:29 November 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 29 November 2021 at 11:58am
CATCHWORDS
MIGRATION – application for approval of nomination of occupational training position – genuine opportunity to enhance nominee’s existing skills – nominee employed for three years already, with no training provided – proposed training period expired – nominee’s application for training visa refused and application for permanent working visa in progress – no post-hearing documentary evidence or submissions provided – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 140GB
Migration Regulations 1994 (Cth), rr 2.72A(16), 2.72B(3)(a)
CASES
Alimi v Minister for Immigration [2007] FMCA 1520
Chow v MIMIA [2002] FCA 1429
Durzi v MIMIA [2006] FCA 1767
Lobo v MIMIA [2003] FCAFC 168
Moller v MIAC [2007] FMCA 168
Re Drake and MIEA (No 2) (1979) 2 ALD 634
Sakhno v MIAC [2007] FMCA 1492
Vishnumolakala v Minister for Immigration [2006] FMCA 1209

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 Home Affairs on 28 August 2019 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and regs 2.72A and 2.72B of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 5 August 2019. In its nomination lodged with the Department, the applicant indicated it was seeking approval to provide occupational training to enhance the skills of the nominee, Ms Rathnayaka Mudiyanselage Hashini Madushani Jayawardana, in the occupation of Production or Plant Engineer (ANZSCO 233513).
A nomination for a training position is made under s 140GB of the Act as well as reg 2.72A and reg 2.72B of the Regulations. Relevant criteria from the Regulations are extracted in Attachment A to this decision.
The delegate refused the nomination on the basis that reg 2.72A(16) was not satisfied. The delegate was not satisfied that the nominated program is offered as a genuine training opportunity to enhance the nominee’s existing skills as per reg 2.72B(3)(a).
The applicant applied for review of the primary decision on 18 September 2019 and provided a copy of the Department’s decision. The applicant was represented in relation to the review by its registered migration agent.
On 21 September 2021, the Tribunal sent a letter to the applicant, which contained a request to the applicant to provide information in writing demonstrating that the nomination meets all the requirements of the criteria in reg 2.72A and reg 2.72B(3). The request was made pursuant to s 359(2) of the Act. A copy of the relevant part of the Regulations was included in the letter.
On 6 October 2021, the applicant’s representative submitted documentary evidence and submissions in support of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brown-Denarusha Pty Ltd (Migration)

Details

AGLC: Brown-Denarusha Pty Ltd (Migration) [2021] AATA 4709
Case: [2021] AATA 4709
Decision Date: 29 November 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Brown-Denarusha Pty Ltd for approval of a nomination for an occupational training position. The nominee, Ms. Jayawardana, was proposed to enhance her skills in the occupation of Production or Plant Engineer. The delegate had previously refused the nomination, finding that the proposed training was not genuine.

The central legal issue before the Tribunal was whether the nominated training program met the requirements of regulations 2.72A and 2.72B of the Migration Regulations. Specifically, the Tribunal had to determine if the proposed training constituted a genuine opportunity to enhance the nominee's existing skills, as required by regulation 2.72A(16). This involved assessing the duration, content, and objectives of the proposed training in light of the nominee's existing employment and the Department's policy guidelines.

The Tribunal reasoned that for training to be considered genuine and to demonstrably enhance a nominee's skills, its duration and content must be consistent with the relevant ANZSCO occupation description and show an increase in difficulty and complexity. The Tribunal noted that the nominee had already been employed for three years without any training, and the proposed training period had expired. Furthermore, no post-hearing documentary evidence or submissions were provided to support the genuineness of the training. The Tribunal concluded that the proposed training, as presented, did not sufficiently demonstrate how the nominee's skills would be enhanced, nor did it acknowledge her existing skill set in a way that indicated a genuine increase in skill level. The Tribunal also clarified that while policy guidelines can be informative, they do not bind the Tribunal and cannot override the plain wording of the legislation.

Consequently, the Tribunal was not satisfied that the applicable criteria for approval of the nomination for a Subclass 407 (Training) visa were met. The Tribunal affirmed the decision not to approve the nomination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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 applicable requirements in reg 2.72A and reg 2.72B are met.Is the proposed training genuine? reg 2.72A(16) It is a requirement of reg 2.72A(16) of the Regulations that the Minister is satisfied the nominated program is offered as a genuine training opportunity for a purpose referred to in reg 2.72B of the Regulations. As noted above, this was the basis on which the delegate refused the applicant’s nomination. The application form records that the applicant applied for approval of a nomination to ‘enhance the skills’ of Ms Jayawardana in the occupation of Production or Plant Engineer. In the original training plan that was submitted to the Department with the nomination application, it was proposed that the training would be general or on-the-job training of 38 hours per week. The application form states the training period will be from 1 September 2019 to 31 August 2020, and its objectives are to ‘to improve specialised skills within the manufacturing and production of electrical switchboards as required’. In the training plan itself, the stated objective of the proposed training was to:·provide an understanding of Electrical switchboard design concepts;·provide an understanding of the overall switchboard manufacturing process; and·provide an understanding of the role of Production Engineer. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[2] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision-makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[3][2] See Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.[3] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Vishnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55]. The Department policy requires the training to be primarily workplace-based and last for at least 30 hours per week (although this needs to be compared with the requirement in reg 2.72B(3)), and its accompanying training plan should acknowledge the nominee’s existing skill set and demonstrate how the nominee’s skills will be sufficiently enhanced by the training proposed. For training to be structured to increase the nominated person’s skill level, the duration and content (including the practical and theoretical components) should be consistent with the skill level as described in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for the identified occupation, and should demonstrate an increase in difficulty and complexity over the course of the training program.

Decision

Reasons for decision

As the Tribunal is not satisfied that the applicable criteria for approval of a nomination for a Subclass 407 (Training) visa as set out in reg 2.72A and reg 2.72B(3) are met, the application therefore cannot succeed.DECISION The Tribunal affirms the decision not to approve the nomination.Antonio DronjicMember

Ratio Decidendi

Legal Principle Established

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