K and S Food Services Pty Ltd (Migration)

K and S Food Services Pty Ltd (Migration) [2021] AATA 3598 (23 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  K and S Food Services Pty Ltd
CASE NUMBER:  1917462
HOME AFFAIRS REFERENCE(S):          BCC2019/2481599

MEMBER:Sheridan Lee
DATE:23 September 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination

Statement made on 23 September 2021 at 9:43 am
CATCHWORDS
MIGRATION – application for approval of nomination of occupational training position – genuine position – structured program specifically tailored to needs of nominee – evidence and arguments from manager of applicant and nominee – nominee with part-time experience and basic skills to gain in-depth knowledge – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 140GB
Migration Regulations 1994 (Cth), r 2.72A(16), 2.72B(3)(a)
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 (Cth) (the Act) and r 2.72A of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval to nominate Ms Chee Yuen Ang for a training position on 10 May 2019. The delegate decided not to approve the nomination because they were not satisfied that the nominated program was offered as a genuine training opportunity, to enhance the nominee’s existing skills, as required by r 2.72B(3)(a).
K & S Food Services Pty Ltd, is one company within the K & S Group, which together operate the different components of the Breadtop franchise, such as manufacturing, wholesale, retail outlets and property management.
As at the date of the hearing, the Tribunal had three active review applications from companies within the group, one from K & S Sydney and two from K & S Food Services. Ms Julie Ho, Group Manager for the K & S Group, was listed as the company representative for all three applications. On 27 May 2021, the Tribunal wrote to Ms Ho to seek consent for the Tribunal to conduct a combined hearing for all three applications. On 9 June 2021, the applicant’s representative advised that the applicant would like the opportunity to provide evidence for each matter separately. It was noted that a combined hearing would be exhausting and may impair Ms Ho’s ability to fully engage. The Tribunal accepted the request and scheduled three independent hearings.
Ms Ho appeared before the Tribunal in the current matter via video on 11 August 2021 to give evidence and present arguments on behalf of K & S Food Services. The Tribunal also received oral evidence from the nominee, Ms Ang.
The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The applicant did not raise any concerns in respect of the hearing format.
The applicant was represented in relation to the review.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under r 2.72A, which sets out the criteria for approval of a nomination for a Subclass 407 (Training) visa.
The nominator is a temporary activities sponsor
The Minister, or the Tribunal on review, must be satisfied that the person making the nomination is a temporary activities sponsor: r 2.72A(3).
Departmental records indicate that K & S Food Services is approved as a temporary activities sponsor for the period 5 June 2019 to 5 June 2024.
The nomination application is compliant
Regulation 2.72A(4) requires that the sponsor made the nomination in accordance with reg 2.73A. Immigration Instrument 18/038 sets out the relevant requirements for the purposes of the regulation.
Having reviewed the departmental file, the Tribunal is satisfied that the application for approval:
·was made on the approved Form 1479N (Internet).
·was accompanied by the required fee of $170.
Accordingly, the requirement in r 2.72A(4) is met.
Nominee will participate in nominated program: reg 2.72A(5)
Under r 2.72A(5), the Minister must be satisfied that the nominee will participate in the nominated program. This will allow the refusal of the nomination if the visa applicant is assessed as not having a genuine intention to participate.
Ms Ho gave evidence that the nominee is currently working in the company’s facility in Abbotsford as a Pastry Cook. She is not undertaking the training program at present but will commence upon the approval of the nomination and associated visa.
Current salary? Don’t know. Will need to check.
Family members included in nomination unless reasonable to disregard: regs 2.72A(6) and (7)
If the nominee holds a visa, the Minister must be satisfied that the sponsor has listed on the nomination each secondary sponsored person who holds the same visa on the basis of that person’s relationship to the nominee.
There are no secondary visa-holders. As such, the requirements of r 2.72A(6) and (7) do not apply.
Details of proposed employers and location of work provided: regs 2.72A(8) and (9)
Regulation 2.72A(8) requires that the Minister is satisfied that the sponsor has provided information regarding proposed employers and the location of work.
Having reviewed the nomination application form, the Tribunal is satisfied that the applicant provided the address if the company’s office and the work location.
Accordingly, the requirements in regulations 2.72A(8) and (9) are met.
Certification relating to ‘payment for visa’ conduct: reg 2.72A(10)
As part of the nomination application, the applicant has certified in writing that it has not engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Act, in accordance with r 2.72A(10).
No adverse information: reg 2.72A(11)
Under reg 2.72A(11), the Minister must be satisfied that there is no adverse information known to Immigration about the sponsor or a person associated with the sponsor; or it is reasonable to disregard any adverse information known to Immigration about the sponsor or a person associated with the sponsor.
There is no adverse information contained on either the departmental or tribunal files in respect of K & S Food Services or a person associated with the sponsor. The Tribunal infers that this is because there is no adverse information known to immigration. As such, the requirements of r 2.72A(11) are met.
Occupational training will be provided directly by the sponsor: reg 2.72A(12)
Under reg 2.72A(12), the Minister must be satisfied that either:
·the occupational training will be provided directly by the sponsor;
·the sponsor is supported by a Commonwealth agency, and the Commonwealth agency has provided a letter endorsing the arrangement for the provision of occupational training;
·the sponsor is specified in a legislative instrument; or
·the occupational training will be provided in circumstances specified in a legislative instrument.
At the Tribunal hearing, Ms Ho gave evidence that the training will be delivered by the sponsor directly. However, the training was developed with the assistance of an external training organisation. A copy of the structured training plan was provided to the Tribunal in post-hearing submissions, received on 20 August 2021.
The requirement of reg 2.72A(12) has been met.
No adverse consequences for Australians: reg 2.72A(13)
Regulation 2.72A(13) requires 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 permanent residents. The Explanatory Statement explains that together with the ‘genuine training opportunity’ requirement in reg 2.72A(16), this criterion will allow the Department to consider the ‘business model’ of the sponsor to ensure that the sponsor is genuinely engaged in occupational training and will not use the Subclass 407 visa for the purpose of introducing additional labour into the Australian labour market.
At the Tribunal hearing, Ms Ho gave evidence that the company has had difficulty finding Australian employees to work in the pastry cook positions. She explained that most applicants for advertised positions are not local. Ms Ho further noted that Breadtop products are primarily based on pastry items that are common throughout Asia and Australian cooks would not have extensive experience or training with relevant baked goods. The applicant supplied a spreadsheet with a comparison of recent applicants and attached resumes to evidence the attempts to fill the position with a local candidate.
In post-hearing submissions, the applicant noted that the company has always provided training to its Australian employees and has employed a number of Australian apprentices.
The Tribunal notes that the nominee is currently paid as a Level 5 Cook in accordance with the Food, Beverage and Tobacco Manufacturing Award 2000. The applicant supplied a number of payslips issued to the nominee as evidence of wages paid on a pro-rata basis while the applicant only works part-time. As such, the Tribunal considers that the nominee will not be paid less than an Australian citizen or permanent resident would receive.
On the basis of the above information, the Tribunal is satisfied that the application meets the requirements of reg 2.72A(13).
Applicant has functional English: reg 2.72A(14)
To satisfy reg 2.72A(14), the Minister must be satisfied that the nominee has ‘functional English’. Functional English is defined in s 5(2) of the Act and requirements are outlined in IMMI/004. The instrument requires an IELTS test score of 4.5 or above. The nominee provided an IELTS test report form dated 23 January 2021 showing that a score of 5 was achieved.
Genuine training opportunity: reg 2.72A(16)
Regulation 2.72A(16) requires that the Minister is satisfied that the nominated program is offered as a genuine training opportunity for a purpose referred in reg 2.72B that applies. The applicant selected ‘training to enhance skills’ as the appropriate nomination type, which is outlined in r 2.72B(3):
(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; and
(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 nomination.
The decision of the delegate outlines that they considered the proposed training was put forward as a means of securing the nominee’s employment on a trainee salary for the benefit of the applicant, rather than a genuine training opportunity. However, at the Tribunal hearing, both Ms Ho and Ms Ang confirmed that Ms Ang would continue to receive the Award rate throughout the training period. There was no evidence before the Tribunal to suggest that the rate of pay would be reduced as a result of the proposed training.
When asked about her understanding of the training agreement, Ms Ang gave evidence that she was consulted by her employer about what she hopes to achieve. In that regard, Ms Ang explained that she would like to become a prestige cook. She hopes that the training will assist her to gain an in-depth knowledge of the products, the materials needed and the skills. Ms Ang outlined that her qualifications were achieved in a school environment, not a work placement. Only the basic skills were taught and there was no chance to gain an in-depth knowledge. The Tribunal is satisfied that the nominated program is offered as a genuine training opportunity.
On the basis of the above, the requirements of r 2.72A(16) are met.
Alternative criteria are met: regs 2.72A(15), 2.72B
Regulation 2.72A(15) merely states that reg 2.72B applies to the nomination. In order to satisfy reg 2.72B, one of five alternate criteria must be met. As outlined above, r 2.72B(3)(a) is applicable in the current matter.
Having reviewed the training plan and taken evidence from Ms Ang, the Tribunal is satisfied that the occupation training complies with the requirements of r 2.72B(3)(a).
The occupation of Pastry Cook is specified in the relevant immigration instrument and it is applicable to the nominee. Further, the applicant has more than five years part-time experience in the occupation. The Tribunal considers that this is the equivalent of at least 12 months full-time.
The nomination meets the requirements of r 2.72A(15).
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r 2.72A for approval of the nomination in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Sheridan Lee
Member

[2021] AATA 3598

23 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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