Brown-Denarusha Pty Ltd (Migration)

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.