MOBILE FONE DOCTOR PTY LTD (Migration)

[2023] AATA 3901

MOBILE FONE DOCTOR PTY LTD (Migration) [2023] AATA 3901 (21 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MOBILE FONE DOCTOR PTY LTD

REPRESENTATIVE:  Mr PHILLIP OH (MARN: 9900334)

CASE NUMBER:  1934328

HOME AFFAIRS REFERENCE(S):          BCC2019/5107673

MEMBER:Alan McMurran

DATE:21 August 2023

PLACE OF DECISION:  Sydney

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

Statement made on 21 August 2023 at 3:14pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated program of occupational training – Customer Service Manager – no response to s.359(2) letter – purpose of occupational training – proposed Training Plan – no consideration of the nominee's current skills and experience – not specifically tailored to identified training needs – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 360

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 4 December 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 14 November 2019 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, MOBILE FONE DOCTOR PTY LTD, applied for approval on 11 October 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. Regulation 2.72A prescribes criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision.

3. The program of occupational training nominated in this case is for the proposed trainee, Jinseong Kim (the trainee),[1] a citizen of the Republic of Korea, to be trained as a Customer Service Manager (ANZSCO 149212) while working in a full-time position for the applicant over 2 years from 1 November 2019 to 1 November 2021.

   [1] Tribunal related visa case number 2000739

4. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg.2.72B(3)(a). This was because it was found that a proposed training plan had not taken account of the nominee’s existing training and experience so as to be designed to enhance his skills.

5. On 13 July 2023, the Tribunal sent a letter to the applicant under s 359(2) of the Act, requiring a response with updated information, including about the training program, on or before 27 July 2023. The applicant did not respond by the due date.

6. As the applicant failed to respond, s 360(2)(c) and s 360(3) apply, and the applicant is no longer entitled to appear before the Tribunal to give evidence and present argument. The Tribunal therefore did not invite the applicant to a hearing.

7. On 3 August 2023, the representative sent an email to the Tribunal stating: “I have received an Email stating that the case is open now. I would be grateful if you inform me who the actual visa applicant is in these circumstances. I have no record of this in my file.” In reply the same day, the Tribunal informed the representative that “the visa applicant associated with the nomination refusal is Mr Jinseong Kim”.

8. On 10 August 2023, the representative sent a further email to the Tribunal requesting “an extension of the case as I am having difficulties locating a visa applicant and his and the company's intention to proceed with the hearing. I require an additional 28 days.”  

9. On 11 August 2023, the Tribunal responded  and declined the request stating:

   “As you have not provided a substantive reason for your request for a delay of 28 days before a decision is to be made on the review application made by MOBILE FONE DOCTOR PTY LTD, the Member has decided, in this instance, your request will not be granted. This means that a decision for the review may be made at any time. Please be advised that the Tribunal aims to make review processes fair, just, economical and quick and a significant delay of 28 days without a substantive explanation or reason for this delay will not adhere to the objectives of the Tribunal. The Member will consider any submissions made relevant to the review application before the decision is made”.

10. The Tribunal has waited until 21 August 2023, but has heard nothing further from the representative or anyone on his behalf.

11. The applicant was represented in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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 applicant is an approved work sponsor and meets the requirements in reg 2.72A: s 140GB(2).

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

14. Regulation 2.72B states that it applies if any of its sub regulations 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. Details of the proposed training plan were submitted with the application.

17. The applicant provided:

    ·     ASIC historical information for the applicant

    ·     A resume for the proposed Trainer, Jonah Levi, Retail Store Manager/Customer Service Manager for the applicant

    ·     A resume for a second Trainer, Michelle Lu, existing Account Manager for the applicant

    ·     An “Onboarding Training Plan” covering a 24 month period

    ·     An employment contract for the Trainee dated 10 October 2019

18. ANZSCO describes the tasks for the role of Customer Service Manager in the following terms:

    149212 Customer Service Manager

    Alternative Titles:
    Plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.

    • Client Service Manager
    • Service Manager

    Skill Level: 2 [AQF Associate Degree, Advanced Diploma or Diploma]

19. Tasks for the role are said to include:

    ·     developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided

    ·     ensuring operational efficiency within a call centre

    ·     providing direction and feedback to team members and assisting with recruitment

    ·     managing, motivating and developing staff providing customer services

    ·     planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided

    ·     liaising with other organisational units, service agents and customers to identify and respond to customer expectations

    ·     may work in a call centre

    Consideration

20. The application did not include any information about the trainee/visa applicant. There was no history provided of his employment. The Department decision refers to his education background which is not repeated here. Suffice to say the trainee has obtained certificate qualifications in ‘customer engagement’ and ‘business’. He has also obtained a Diploma in Marketing and International Business. According to the Department record, the trainee has also obtained experience over a 4 year period from 2015-2019 as a ‘Team Leader’ with Samsung. The level of employment and experience gained in that role is not explained.

21. It appears, however, from the available information that the trainee has gained some experience relevant to the training role nominated and over an extended period while working at Samsung. What is not clear however is how the proposed training plan correlates with the trainee’s background so as to enhance his existing skills. As found by the delegate, and the Tribunal agrees, “there is no consideration of the nominee's current skills and experience evident in the Training Plan provided.”  It is not possible on the very limited information available to determine whether the training plan is likely to enhance any existing skills, or indeed , has any relevance to improving those skills for the nominated training position of Customer Service Manager and the tasks aligned with the position as outlined above.

22. The regulation imposes the need to detail what will be the subject of the training and the purpose, and how that will be achieved, so that it can reasonably be established that the training is both structured and suitable for purpose and likely to enhance existing skills. The requirement involves producing a detailed training schedule which gives particulars of how, when and by whom the specific training objectives will be taught and measured. On the limited detail in the plan, the generic description of the assessment process does not explain how such assessment will measure the trainee’s achievement and progress. It appears to be a highly discretionary assessment process with unidentified parameters.

23. The proposed plan does not illustrate how the trainers propose to divide their time with the trainee and how they will each bear jointly and severally responsibility for the tasks proposed during the training period. Nor is there any indication of what and how an assessment by each of them will be made at the end of the 24 month process, other than by the proposed summary assessment by ‘role playing’ and ‘demonstrations’. There is no indication those methods for assessments are professionally sound and based on demonstrated training techniques for evaluating the outcome of the plan and the enhancement of the trainee’s skills for the role. It is reasonable to conclude that to measure the outcome, there should be some SWOT analysis from the outset relevant to the specific candidate for the training. The Tribunal finds in this instance, there is nothing to demonstrate whether the trainee has already been assessed so as to illustrate where he might be deficient and for which specific training is required.

24. The Tribunal also finds from the available information, that the trainee already has an understanding and knowledge of managing other staff and office processes, stock control and dealing with customer expectations including after-sales service. There is little to gauge the trainee’s level of experience already gained and how he might benefit from additional input for these tasks.

25. The Tribunal was unable to test these issues in a hearing against the submitted information and the mandated requirements, as the applicant forfeited that opportunity. It appears from the available information and the Tribunal has concluded that the nominee for the training visa is already substantially qualified and trained in the role with 4 years’ experience at Samsung, and that the training plan is not specifically tailored to identified training needs.

26. The Tribunal finds on that information that the proposed occupational training is not specifically tailored to any identified needs of the nominee, nor for a duration that would meet those needs. This is because on the available information, it is reasonable to conclude that the nominee is already substantially trained and qualified in the role which he commenced in 2015, and that any further training in the role as proposed, will not enhance his existing skills.

27. The Tribunal finds for these reasons that the requirements for reg 2.72B(3)(a)(ii) and (iii) are not met.

    Conclusion

28. As the requirements in reg 2.72B(3)(a)(ii) and (iii) are not met, it is not necessary to consider any remaining requirements.

29. For the above reasons, the Tribunal is not satisfied that any of the sub regulations in reg 2.72B apply. Accordingly, reg 2.72A(15) is not met.

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

    DECISION

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

    Alan McMurran
    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.