Hair Salon Group Pty Ltd (Migration)

[2023] AATA 3940

Hair Salon Group Pty Ltd (Migration) [2023] AATA 3940 (18 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Hair Salon Group Pty Ltd

CASE NUMBER:  2005655

HOME AFFAIRS REFERENCE(S):          BCC2019/6489159

MEMBER:Katie Malyon

DATE:18 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 18 September 2023 at 11:52 am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Marketing Specialist – occupational training – capacity building overseas – overseas qualification stream – no response to s.359(2) invitation – Tribunal declined indefinite adjournment of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 359C, 360, 363A

Migration Regulations 1994 (Cth), rr 2.72A, 2.72B

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 3 March 2020 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72A of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant, Hair Salon Group Pty Ltd T/A Frank Provost ABN 95 623 568 669 (the Company), applied for approval on 5 December 2019. A nomination of a program of occupational training in relation to a Subclass 407 visa is made under s 140GB of the Act and reg 2.72A of the Regulations. Regulations 2.72A and 2.72B prescribes criteria that must be satisfied for the Minister to approve a nomination. These criteria are extracted in the Attachment to this decision.

3. The delegate decided not to approve the nomination on the basis the Company did not satisfy reg 2.72B(4) of the Regulations because the proposed training for its nominee, French national Solene Cecile Tissier, to train in the occupation of Marketing Specialist ANZSCO 225113 was not only for a period of more than 6 months but also documentation provided did not demonstrate that the training was a course requirement for the nominee to obtain her overseas qualification. Evidence had been provided that Ms Tissier was enrolled in a Master’s degree at IESEG School of Management in Lille, France.

4. The Company sought review of the delegate’s refusal of its nomination application.  The Tribunal acknowledges that it accompanied its review application with evidence to address some of the shortcomings in documentation lodged with the Department. 

   The Tribunal’s s 359(2) letter

5. On 11 August 2023, the Tribunal wrote to the Company under s 359(2) of the Act inviting it to provide updated and current information addressing all the relevant criteria in reg 2.72A and 2.72B of the Regulations.

6. The Company was requested to provide this information by 25 August 2023.  It was also advised that it may seek an extension of time to provide a response to the Tribunal’s

   
   

   s 359(2) letter and that, if a response was not received within the period allowed or a request for an extension of time to provide the requested documentation was not received within that time, the Tribunal may make a decision on the review without taking further action to obtain their views on the information. And, in these circumstances, the Company would lose any entitlement it might otherwise have under the Act to appear before the Tribunal to give evidence and present arguments.

7. The Tribunal is satisfied that its s 359(2) letter was properly dispatched to the email address of the Company’s representative, its Financial Controller Mr Chris Han. No response has been received from the Company in response to the Tribunal’s s 359(2) letter. Nor has it requested additional time in which to do so. In these circumstances, s 359C of the Act applies and, pursuant to s 360(3) of the Act, the Company is not entitled to appear before the Tribunal. If a review applicant has no entitlement to a hearing, the effect of s 363A of the Act is that the Tribunal has no power to permit the applicant to appear Hasran v MIAC [2010] FCAFC 40.

8. Although the Company has not requested this, the Tribunal has considered whether it would be appropriate to adjourn the review under s 363(1)(b) of the Act to allow the Company additional time in which to provide evidence to support his review application. In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to impact of the COVID-19 pandemic on businesses - particularly, those in the hairdressing industry - evidence that the Company meets all of the relevant requirements of reg 2.72A and reg 2.72B of the Regulations is likely to be forthcoming and whether the Company has had a fair opportunity to provide the information or documents already. The Tribunal has also taken into account the decisions in Huo vMinister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration andCitizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

   [1] [2002] FCA 617.

   [2] [2012] FMCA 28.

9. As noted above, the Tribunal wrote to the Company under s 359(2) of the Act inviting it to provide updated and current information to address all the relevant criteria in reg 2.72A and reg 2.72B of the Regulations. The Company has failed to provide any of the requested information within the prescribed period set for this purpose, or seek additional time in which to do so.

10. In the circumstances of this case, the Tribunal considers the Company has had sufficient time to either provide the requested information and thereby address the issues arising on review or seek an extension of time in which to do so. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s 359C of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets the criteria for approval of its nomination. The Tribunal must approve the nomination if the applicant is an approved temporary activities sponsor and meets the requirements in reg 2.72A: s 140GB(2) of the Act.

    Purpose of the occupational training and the alternative criteria in reg 2.72B for approval of the nomination: reg 2.72A(15)

13. It is a requirement in reg 2.72A(15) of the Regulations that reg 2.72B applies to the nomination. For the purpose of determining whether an 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.

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

15. The stream identified in the Company’s nomination is occupational training for capacity building overseas – overseas qualification as set out in reg 2.72B(4) of the Regulations. This requires that the Minister must be satisfied:

    a)the nominee is required to complete the training in a period of no more than 6 months of practical experience, research or observation to obtain a qualification from a foreign educational institution; and,

    b)the occupational training is a structured workplace-based training program specifically tailored to the training needs of the nominee. 

16. As noted above, the delegate was not satisfied that the Company meets reg 2.72B(4)(a) of the Regulations on the basis that the proposed training of the nominee Ms Tissier in the occupation of Marketing Specialist ANZSCO 225113 was for a period of 7 months and 7 days in total, that is, it was more than 6 months. Further, whilst the delegate acknowledged receipt of a document titled “Certificate” issued by IESEG School of Management in Lille dated 1 October 2019 which confirms that Ms Tissier is a Master’s student who has been registered with IESEG School of Management since 2018, it does not demonstrate that the proposed training is a specified course requirement for her to obtain her overseas Master’s qualification.

17. The Tribunal acknowledges that accompanying its review application the Company provided a number of documents to address the shortcomings identified in the delegate’s decision. However, the Company was invited under s 359(2) of the Act to provide updated and current information to demonstrate that it now, as at the date of this decision, meets all of the requirements of reg 2.72A of the Regulations including reg 2.72A(15). No response has been provided to the Tribunal’s s 359(2) invitation. As such, there is no updated information before the Tribunal to demonstrate that it currently satisfies the requirements of reg 2.72B(4) and thereby meets the requirements in reg 2.72A(15) of the Regulations.

18. Based on available evidence, the Tribunal finds that the Company does not meet reg 2.72B(4)(a) of the Regulations and it does not meet reg 2,72B(4)(b) of the Regulations. Consequently, it does not meet reg 2.72B(4) of the Regulations. In these circumstances, the Tribunal is not satisfied that the Company meets the requirements of reg 2.72A(15) of the Regulations.

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

    DECISION

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

    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.

    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.

    (2)Occupational training required for registration etc.  This subregulation applies if the Minister is satisfied that:

    (a) the occupational training is necessary for the nominee to obtain registration, membership or licensing in Australia, or in the home country of the nominee, in relation to the occupation of the nominee; and

    (b)the registration, membership or licensing is required in order for the nominee to be employed in the occupation of the nominee in Australia, or in the home country of the nominee; and

    (c)the duration of the occupational training is necessary for the nominee to obtain registration, membership or licensing in Australia, or in the home country of the nominee, in relation to the occupation of the nominee, taking into account the prior experience of the nominee; and

    (d)         the occupational training is workplace based; and

    (e)the nominee has appropriate qualifications and experience to undertake the occupational training.

    (3)         Occupational training to enhance skills  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; and

    (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.

    (3A)The Minister may, in an instrument made for the purposes of paragraph (3)(b), specify any matters for the purposes of specifying the applicability of occupations to nominees as mentioned in paragraph (3)(ba), including (without limitation) matters relating to any of the following:

    (a)         the person who nominated the program of occupational training;
    (b)         the nominee;
    (c)         the occupation;
    (d)         the program of occupational training;
    (e)         the circumstances in which the occupation is undertaken;
    (f)         the circumstances in which the program of occupational training is undertaken.

    (4) Occupational training for capacity building overseas - overseas qualification  This subregulation applies if the Minister is satisfied that:

    (a)the nominee is required to complete a period of no more than 6 months of practical experience, research or observation to obtain a qualification from a foreign educational institution; and

    (b)the occupational training is a structured workplace-based training program specifically tailored to the training needs of the nominee.

    (5) Occupational training for capacity building overseas - government support   This subregulation applies if the Minister is satisfied that:

    (a)the occupational training is supported by a government agency, or by the government of a foreign country that is the home country of the nominee; and

    (b)         the occupational training is a structured workplace-based training program that is:

    (i)   specifically tailored to the training needs of the nominee; and
    (ii)  of a duration that meets the specific training needs of the nominee.

    (6) Occupational training for capacity building overseas - professional development  This subregulation applies if the Minister is satisfied that:

    (a)         the nominee:

    (i)  has an overseas employer; and
    (ii) is in a managerial or professional position in relation to the overseas employer; and

    (b)the occupational training is relevant to, and consistent with, the development of the managerial or professional skills of the nominee; and

    (c)the occupational training will provide skills and expertise relevant to, and consistent with, the business of the overseas employer of the nominee; and

    (d)the primary form of the occupational training is the provision of face-to-face teaching in a classroom or similar environment.

    oOOo