Gyro Australia Pty Ltd (Migration)

[2023] AATA 205

Gyro Australia Pty Ltd (Migration) [2023] AATA 205 (16 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Gyro Australia Pty Ltd

REPRESENTATIVE:  Dr Nguyet Thi Doan (MARN: 1795946)

CASE NUMBER:  1903317

HOME AFFAIRS REFERENCE(S):          BCC2018/5036530

MEMBER:K. Chapman

DATE:16 January 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 16 January 2023 at 10:51am

CATCHWORDS
MIGRATION – nomination –applicant failed to provide the requested information within the prescribed period – no updated or current information before the Tribunal about the applicant’s business and the nominated position – a lack of satisfaction the placement afforded a genuine training opportunity – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65,359, 360, 363
Migration Regulations 1994, rr 2.72, 2.73

CASES

Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 30 January 2019, to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (‘the Act’) and regs 2.72A – 2.72B of the Migration Regulations 1994 (Cth) (‘the Regulations’).

2. The applicant, Gyro Australia Pty Ltd, applied for approval on 13 November 2018. A nomination of a program of occupational training in relation to a Subclass 407 visa is made under s 140GB of the Act and regs 2.72A - 2.72B of the Regulations. Regulation 2.72A prescribes criteria that must be satisfied for the Minister to approve a nomination by a person. Regulation 2.72B(3) prescribes the criteria that must be satisfied for the Minister to approve a nomination for occupational training to enhance skills.

3. The delegate refused to approve the nomination on the basis that the applicant did not satisfy the requirements of reg 2.72A(16), due to a lack of satisfaction the placement afforded a genuine training opportunity. On 13 February 2019, the applicant applied to the Tribunal for review of the nomination decision. The applicant submitted a copy of the delegate’s decision with their application for review.

4. On 17 June 2022, the Tribunal Registry wrote to the applicant, pursuant to s 359(2) of the Act, inviting them to provide current information addressing the relevant criteria under regs 2.72A - 2.72B of the Regulations. The Tribunal is satisfied this invitation was properly despatched to the email address of the applicant’s representative. The due date for response to the invitation was 1 July 2022. The applicant failed to respond to the information within the prescribed period. No response to the invitation has been received by the Tribunal at the time of this decision.

5. Where an applicant is invited to provide further information in accordance with s 359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to s 359C(1) of the Act. In these circumstances, the applicant is not entitled to appear before the Tribunal in accordance with s 360(3) of the Act. Of note, the effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear before it as outlined in the Full Federal Court matter of Hasran v MIAC [2010] FCAFC 40.

6. The Tribunal has carefully considered whether to afford additional time to the applicant to give the information requested in the s 359(2) invitation, or to provide further material in support of their application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision making process.

7. The Tribunal has taken into account that the applicant has been aware since around 30 January 2019 of the reasons for the nomination application being refused and also that the implications of not responding to the information requested in the invitation from the Tribunal of 17 June 2022 were set out in the relevant correspondence. Further, ample time has now passed since the due date for response to the invitation.

8. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to provide the information requested in the s 359(2) invitation and address the central issues arising in the application for review. On balance, the Tribunal considers it appropriate to make its decision on the review without taking any further action to obtain the information requested in the aforementioned invitation. Accordingly, the Tribunal has made its decision on this review application having due regard to the documentary material before it.

9. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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. Of note, regs 2.72A(3) to (16) must also be satisfied for the nomination to be approved.

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

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

12. Given the applicant did not respond to the Tribunal’s invitation pursuant to s 359(2) of the Act, there is a lack of contemporary information in evidence regarding the current or future engagement of the nominee, the financial viability of the applicant’s business or the current scale of its organisation. On balance, the Tribunal cannot be satisfied that the nominee will participate in the nominated program.

13. For these reasons, reg 2.72A(5) is not satisfied by the applicant.

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

14. 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.

15. 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 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)).

16. Given the applicant did not respond to the Tribunal’s invitation pursuant to s 359(2) of the Act, there is a paucity of contemporary information in evidence regarding the current proposed program of occupational training. On balance, the Tribunal cannot be satisfied that the occupational training is specifically tailored to the training needs of the nominee, or that it is of a duration that meets the specific training needs of the nominee. Accordingly, the Tribunal finds that the requirements in reg 2.72B(3)(a) are not met by the applicant.

17. For these reasons, the Tribunal is not satisfied that any of the subregulations in reg 2.72B apply. Accordingly, reg 2.72A(15) is not satisfied by the applicant. The Tribunal so finds.

    Genuine training opportunity – reg 2.72A(16)

18. 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. Reg 2.72B(3) is relevant to this review.

19. Given the applicant did not respond to the Tribunal’s invitation pursuant to s 359(2) of the Act, there is a dearth of contemporary information in evidence to indicate that the nominated program is offered as a genuine training opportunity for a purpose outlined in reg 2.72B(3).

20. Therefore, the Tribunal finds that the applicant does not satisfy the requirements in Reg 2.72A(16).

21. For these reasons, the Tribunal is not satisfied that the applicant meets the applicable requirements for approval of the nomination. Accordingly, the decision under review must be affirmed.

    DECISION

22. The Tribunal affirms the decision not to approve the nomination.

    K. Chapman
    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.