Italian Enterprises Pty Ltd (Migration)

[2021] AATA 4038

Italian Enterprises Pty Ltd (Migration) [2021] AATA 4038 (15 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Italian Enterprises Pty Ltd

CASE NUMBER:  1925031

HOME AFFAIRS REFERENCE(S):          BCC2019/3683882

MEMBER:Antonio Dronjic

DATE:15 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 15 October 2021 at 10:54am

CATCHWORDS
MIGRATION – application for approval of nomination of position – occupational training – no response to tribunal’s request for information – no current information about proposed training program – proposed training period now expired – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 359(2), 359C, 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), rr 2.72A(16), 2.72B

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Manna v MIAC [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 20 August 2019 to refuse to approve the nomination made by Italian Enterprises Pty Ltd under s 140GB of the Migration Act 1958 (the Act) as well as reg 2.72A and reg 2.72B of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval of the nomination on 25 July 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, Mr Giampietro Perazzolo in the occupation of Chef.

3. 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 the Attachment to this decision.

4. The delegate refused the nomination on the basis that reg 2.72A (16) was not satisfied. The delegate found that that the nominated program is not offered as a genuine training opportunity for a purpose referred to in reg 2.72B.

5. The applicant applied for review of the primary decision on 6 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.

6. On 30 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 Regulations was included in the letter.

7. The s 359(2) invitation was sent to the applicant and advised that, if the information was not provided in writing by 14 October 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The applicant had not provided the information. In these circumstances s 359C applies, and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40.

9. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide requested information in writing.

10. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[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

11. The Tribunal considered whether, in the circumstances of this case, the evidence that the applicant meets all of the requirements of reg 2.72A is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

12. The Tribunal has had regard to the fact that the nomination application was refused by the Department on 20 August 2019. The applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicant has been aware for more than two years of the reasons for the nomination application refusal.

13. The Tribunal wrote to the applicant under s 359(2) of the Act inviting the applicant to provide information demonstrating that the nomination meets all the requirements of the criteria in reg 2.72A and reg 2.72B(3). The applicant has failed to provide requested information.

14. The Tribunal notes that the sponsoring business is not prevented from lodging a new training nomination application for a Subclass 407 visa with the Department.

15. In the circumstances, the Tribunal considers the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 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.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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.

    Regulation 2.72A(13)

18. This regulation requires that 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.

19. With its letter of 30 September 2021, the Tribunal requested the applicant to provide updated and current information in writing demonstrating inter alia that the applicant 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. The Tribunal must by necessity consider contemporary information and evidence as to whether the applicant meets reg 2.72A(13).

20. As the applicant has not responded to its s 359(2) invitation, the Tribunal has no contemporary information before it whether the applicant is engaged in or intends 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.

21. Accordingly, based on the evidence before it, the Tribunal is not satisfied that the applicant meets reg 2.72A(13).

    Is the proposed training genuine? reg 2.72A(16)

22. 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.

23. The application form records that the applicant applied for approval of the nomination to ‘enhance the skills’ of Mr Perazzolo in the occupation of Chef. It was proposed that the training would be ‘general, or on‑the‑job training’ of 38 hours a week at 53 Atherton Road, Oakleigh, Victoria, 3166. The application form states the training period will be from 27 July 2019 to 26 July 2020.

24. The Tribunal must by necessity consider contemporary information and evidence as to whether the nominated program is offered as a genuine training opportunity. As noted above, the applicant did not respond to the Tribunal’s letter of 30 September 2021 inviting it to provide updated and current information which demonstrates that all the requirements of reg 2.72A of the Regulations are met at the time of decision.

25. As the applicant has not responded to its s 359(2) invitation, the Tribunal has had no contemporary information before it about the proposed structured training program, the nominee’s continued employment and further skill development in over two years since the nomination was lodged, nor does it have information about how an additional employment period would impact the proposed training program, including which elements of the program provided are to be modified or are no longer necessary, and/or how this would impact the proposed training duration. The Tribunal notes that the proposed two‑year training period expiring 26 July 2020 has already been exceeded.

26. For this reason, the Tribunal is unable to give weight to information concerning a training plan dating to July 2019, as provided to the Department. By reference to the information presently before it, the Tribunal is not satisfied that the nominee’s stay in Australia is for genuine training purposes.

27. Accordingly, the Tribunal is not satisfied that the requirements in reg 2.72A(16) of the Regulations have been met.

28. 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

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

    Antonio Dronjic
    Member

    
    

    Attachment – Extract from the Migration Regulations 1994
    
    

    r.2.72A Criteria for approval of nomination — Subclass 407 (Training) visas 

    (1) This regulation applies to a person:

    (a) who is, or has applied to be, a temporary activities sponsor; and

    (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 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 2.75(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.

    r.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 required for registration etc.

    (2) 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.

    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; 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;

    (t) the circumstances in which the program of occupational training is undertaken.

    Occupational training for capacity building overseas - overseas qualification

    (4) 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.

    Occupational training for capacity building overseas - government support

    (5) 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.

    Occupational training for capacity building overseas - professional development

    (6) 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.