GEMRANCH PTY LTD (Migration)

GEMRANCH PTY LTD (Migration) [2019] AATA 4843 (29 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  GEMRANCH PTY LTD
CASE NUMBER:  1717313
DIBP REFERENCE(S):  BCC2017/2538038 CLF2017/60201
MEMBER:Karen Synon
DATE:29 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 29 October 2019 at 11:23am
CATCHWORDS
MIGRATION – nomination of training position – structured training program tailored to identified employee – no response to Tribunal’s s 359 letter – no current evidence of training plan – decision under review affirmed
LEGISLATION
Migration Act 1959 (Cth), ss 140GB, 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 2.72B(3)(a)
CASE
Hasran v MIAC [2010] FCAFC 40

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.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 17 March 2017. A nomination for a Training Position is made under s.140GB of the Act and r.2.72A and r.2.72B of the Regulations. Regulation 2.72B(3) prescribes the criteria that must be satisfied for the Minister to approve a nomination for occupational training to enhance skills. These criteria are extracted in the attachment to this decision.
On 20 July 2017, the delegate refused the nomination on the basis the applicant did not satisfy r.2.72B(3) because he was not satisfied that the nominated occupational training plan was a structured training program specifically tailored to the training needs of the identified employee.
The applicant applied for review of the primary decision on 8 August 2017 and provided a copy of the department’s decision.
The applicant was represented in relation to the review by its registered migration agent.
The Tribunal wrote to the applicant via its representative on 8 August 2017 acknowledging the lodgement of the applicant for review. In this letter the Tribunal advised “[i]f you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible”. No substantive information has been received from the applicant since the time it lodged the application for review.
On 9 October 2019, the Tribunal wrote to the applicant, in accordance with s.359(2) of the Act, inviting it to provide:
·Information which demonstrates you meet all the requirements of Regulation 2.72A and Regulation 2.72B(3).
A copy of the relevant regulations was included in the letter.
The invitation was sent to the applicant via its nominated authorised recipient (also its registered migration agent’s) email address which had been provided in connection with the review. The applicant was advised that if the information was not provided in writing by 23 October 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 23 October 2019 the Tribunal received correspondence (that was dated 22 October at 8.40pm) from the applicant’s authorised recipient and migration agent who emailed the Tribunal to relevantly advise:
We confirm that we were originally appointed to act for the above named applicant, Gemranch Pty Ltd, in relation to above the application for review. Please note that we have been unable to obtain any instructions to continue to act for the applicant in relation to the invitation to provide information issued by the Tribunal on 9 October 2019.
Within 30 minutes of receiving this correspondence on the morning of 23 October 2019 the Tribunal sent a copy of the 359(2) invitation directly to Mr Ivatts Russell, the review applicant’s contact person and also telephoned Mr Russell to alert him to this correspondence.
The applicant did not provide the information requested, or indeed provide any response, within the prescribed period and no extension of time was sought or granted.
In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal is satisfied that it has communicated with the review applicant via his authorised recipient at the representative’s advised email address in a prescribed manner.
The Tribunal has accordingly decided to proceed to decision without taking further steps to obtain the information. In making this decision the Tribunal notes that the applicant has not provided any substantive materials, written arguments or information other than the application for review and a copy of the department’s decision on 8 August 2017, a period of over 2 years ago. The Tribunal has waited a further 3 full business days to receive any correspondence or submissions after the due date for the invited information has passed but none has been provided.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination
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 r.2.72A and r.2.72B are met.
The application form records that the applicant was applying for a visa to ‘enhance the skills’ of Viet Tan Le in the occupation of ‘Supply and Distribution Manager’. It was proposed that the training would be ‘general, on-the-job training’ of 38 hours a week at Australian Produce Brokers in Canning Vale, Western Australia. It was submitted that the training program's objectives are to “give the applicant skills and training in the industry that will increase the employability of the applicant for the future”. The training was proposed for a one year period from 17 July 2017 to 17 July 2019.
The delegate refused the nomination on 20 July 2017, 3 days after the application had been lodged, on the basis that r.2.72B(3)(a) was not met because no evidence was provided with the application that the nominated occupational training is a structured training plan specifically tailored to the training needs of the identified nominee and of a duration that meets the specific training needs of the nominee.
In the absence of any submissions or evidence being provided to the Tribunal, it has considered the limited evidence provided to the department in support of the nomination application. The only supporting evidence provided was: the nominee’s educational qualification, his passport and IELTS results. No training program was provided but the following comment made: “[t]raining programme is still in the process of being finalised”.
A letter attached to the application from the registered migration agent advised “the applicant is in the process of obtaining a structured training programme for the nominee and we expect to have it finalised within 2 weeks”. This training programme was not subsequently provided to the Tribunal.
Regulation 2.72B(3) ‘occupational training to enhance skills’ requires that the Tribunal be satisfied that the occupational training is:
(i) a structured workplace training program; and
(ii) specifically tailored to the training needs of the nominee; and
(iii) of a duration that meets the specific training needs of the nominee.
The applicant did not respond, within the prescribed period, to the Tribunal's letter of 9 October 2019 inviting the provision of information which demonstrates that the requirements of Regulations 2.72A and 2.72B(3) are met. Nor has any relevant information been provided at any stage during the review period. Further, because the applicant has lost the entitlement to a hearing, the Tribunal was not able to take oral evidence from the applicant regarding the proposed structured training plan.
In particular, because the applicant provided no evidence of any structured training plan to the department or the Tribunal, the Tribunal cannot be satisfied that the applicant meets Regulation 2.72B(3).
Regulation 2.72B provides that any of the subregulations can satisfy the alternative criteria for Subclass (Training) visa. These are: occupational training required for registration etc; occupational training for capacity building overseas – overseas qualification; occupational training for capacity building – government support; occupational training for capacity building overseas– professional development. There is no evidence before the Tribunal that the nomination can satisfy any of the alternative criteria.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Karen Synon
Member

ATTACHMENT - Extracts from the Migration Regulations 1994
Reg 2.72A Criteria for approval of nomination — Subclass 407 (Training) visa
(1) This regulation applies to a person:
(a) who is:
(i) a temporary activities sponsor; or
(ii) if the nomination referred to in paragraph (b) is made on or before 18 May 2017 - a professional development sponsor or a training and research 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.
Criteria
(3) The Minister is satisfied that the person is:
(a) a temporary activities sponsor; or
(b) if the nomination is made on or before 18 May 2017 - a professional development sponsor or a training and research 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 2.75(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.
Reg 2.72B Criteria for approval of nomination—alternative criteria for Subclass 407 (Training) visa
(1) For the purposes of subregulation 2.72A (15), this regulation applies to a nomination by an approved sponsor (the sponsor) 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) if any subregulation of this regulation applies.
…
Occupational training to enhance skills
(3) This subregulation applies if the Minister is satisfied that:
(a) the occupational training is:
(i) a structured workplace training program; and
(ii) specifically tailored to the training needs of the nominee; and
(iii) of a duration that meets the specific training needs of the nominee
(b) the occupational training is in relation to an occupation specified, with its corresponding 6-digit code, by the Minister in a legislative instrument made for the purposes of this paragraph
(ba) the occupation is applicable to the nominee in accordance with the specification of the occupation; and
(c) 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 the nomination.

[2019] AATA 4843

29 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice