MYG Group Pty Ltd as the Trustee for MYG Business Trust (Migration)

MYG Group Pty Ltd as the Trustee for MYG Business Trust (Migration) [2021] AATA 2618 (16 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  MYG Group Pty Ltd as the Trustee for MYG Business Trust
CASE NUMBER:  1812551
HOME AFFAIRS REFERENCE(S):          CLF2018/48353
MEMBER:Susan Trotter
DATE:16 July 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 16 July 2021 at 9:26am

CATCHWORDS
MIGRATION – application for approval of nomination of position – training position – training tailored to enhance existing skills, not to learn basic skills – equivalent of at least 12 months’ full-time experience in 2 years before nomination – comparison of nominee’s education and work experience with ANZSCO description of occupation – some relevant experience in course of other roles – nominee currently working for another employer, with future plan to work in home country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 140GB
Migration Regulations 1994 (Cth), rr 2.72A, 2.72B(3)(a)(ii), (c)

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 Home Affairs on 17 April 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72A and r.2.72B of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 15 March 2018 indicating it sought the nomination to provide occupation training to enhance the skills of the nominee visa applicant, Ms Melissa Gomes Tima-an, in the position of Trainee Quality Assurance Manager in the occupation of Quality Assurance Manager.
A nomination for a Training Position is made under s.140GB of the Act and r.2.72A and r.2.72B of the Regulations. Regulation 2.72B(3) prescribes the criteria that must be satisfied for the Minister to approve a nomination for occupational training to enhance skills. These criteria are extracted in the attachment to this decision.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72B(3)(a)(ii) which requires the occupational training to be specifically tailored to the training needs of the nominee. The delegate was not satisfied that the training was developed for the visa applicant to enhance her existing skills and experience as a Quality Assurance Manager, but rather was for an apprentice or trainee to learn the basic skills of the occupation from a beginner’s level.
The applicant lodged an application for review with the Tribunal on 2 May 2018 and provided a copy of the delegate’s decision to the Tribunal.
Ms Requel Ogle appeared before the Tribunal by video conference, as an authorised spokesperson for the applicant, on 22 February 2021, to give evidence and present arguments.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
ISSUES
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 r.2.72A and r.2.72B are met. Subregulations 2.72A(3) to (16) are required to be met.
Of relevance, r.2.72A(3) to (16) and r.2.72B, are as follows:
(a) Is the applicant a temporary activities sponsor? (r.2.72A(3))
(b) Was the nomination made in accordance with r.2.73A of the Regulations? (r.2.72A(4))
(c)   Will the nominee participate in the nominated program? (r.2.72A(5))
(d) If the nominee holds a visa, has the sponsor 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 and, if not, is it reasonable in the circumstances not to do so? (r.2.72A(6) and (7))
(e) Has the applicant provided information that identifies the employer or employers in relation to the nominated program including the location and contact details of each employer, the relationship between the sponsor and the employer (if not the same person), the location/s where the nominated program will be carried out and 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? (r.2.72A(8) and (9))
(f)    Has the applicant certified, in writing and as part of the nomination, whether or not the applicant has engaged in conduct in relation to the nomination that constitutes a contravention of s.245AR(1) of the Act? (r.2.72A(10))
(g) Is there no adverse information known to Immigration about the applicant or a person associated with the applicant, or if so, is it reasonable to disregard the information? (r.2.72A(11))
(h) Will the occupational training be provided directly by the sponsor (applicant) or are other specific requirements alternatively met? (r.2.72A(12))
(i)    Does the applicant not engage in, or not 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? (r.2.72A(13))
(j)    Does the nominee have functional English? (r.2.72A(14))
(k)   Is the occupational training proposed in the nomination a structured workplace training program specifically tailored to the training needs of the nominee and of a duration that meets the specific training needs of the nominee? (r.2.72A(15) and r.2.72B(2)(a))
(l)    Is the occupational training proposed in the nomination in relation to an occupation specified, with its corresponding 6-digit code, by the Minister in a legislative instrument made for the purposes of r.2.72B(3)(b)? (r.2.72A(15) and r.2.72B(2)(b))
(m) Is the occupational training proposed in the nomination applicable to the nominee in accordance with the specification of the occupation? (r.2.72A(15) and r.2.72B(2)(ba))
(n) Does the nominee have 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? (r.2.72A(15) and r.2.72B(2)(c))
(o) Is the nominated program offered as a genuine training opportunity for a purpose referred to in the subregulation of r.2.72B that applies? (r.2.72A(16))
CONSIDERATION
The nomination application lodged on 15 March 2018, and accompanying documents, included the following details:
Nominated person:  Melissa Gorres Tima-an
Training position to be undertaken
by the nominated person:  Trainee Quality Assurance Manager
Occupation grouping:  Managers
Occupation (ANZSCO):  Quality Assurance Manager
Position type:  Full-time
Proposed period of training:  15 March 2018 to 15 March 2019
Training type:  General or on-the-job training
Number of hours per week  32
Will the applicant be engaging the nominated
person as an employee?  Yes
Objectives of the proposed training:                  This is a comprehensive and intensive workplace based training to help enhance the trainee skills in the field of Quality Assurance.
Additional or enhanced skills to be acquired
by the nominated person:  perform quality management process and understand quality management requirements within an organisation, quality planning, quality control, skills in determining and implementing quality procedures, standards, assessing customer requirements and ensuring that these are met.
Relevant qualifications:  Certificate IV of Small Business Management
Diploma of Management of Leadership and Management
Advanced Diploma of Leadership Management
Relevant skills:  Knowledge of how to develop and manage strategic plans within an organisation
Management skills
Customer Service Management
Frontline quality control
Relevant experience:  5 years managerial experience within an organization dealing directly with quality control and customer service standards
Documents provided to the Department included as follows:
(a) A letter of engagement from the applicant to the nominee dated 14 March 2018 referring to the offer of employment in the position of Quality Assurance Manager trainee.
(b) Certificate and Record of Results for Certificate IV in Small Business Management as follows:
Completion Date:                 30 August 2016
Unit Name
Apply digital solutions to work processes
Apply marketing communication across a convergent industry
Develop and apply knowledge of marketing communication industry
Apply project cost management techniques
Apply project life cycle management processes
Establish legal and risk management requirements of small business
Plan small business finances
Market the small business
Undertake small business planning
Introduce cloud computing into business operations
(c)   Certificate and Record of Results for Diploma of Leadership and Management as follows:
Completion Date:                 15 May 2017
Unit Name
Manage quality customer service
Manage payroll
Manage knowledge and information
Develop and use emotional intelligence
Lead and manage effective workplace relationships
Develop a workplace learning environment
Manage people performance
Manage operational plan
Identify and evaluate marketing opportunities
Undertake project work
Manage personal work priorities and professional development
Lead and manage team effectiveness
(d) Certificate and Record of Results for Advanced Diploma of Leadership and Management as follows:
Study period:          2 June 2017 to 10 February 2018
Completion Date:                 15 May 2017
Unit Name
Develop an advertising campaign
Execute an advertising campaign
Manage finances
Manage knowledge and information
Develop and use emotional intelligence
Lead and manage organisational change
Provide leadership across the organisation
Develop and implement strategic plans
Develop and implement a business plan
Develop and implement a business plan
Develop a marketing plan
Manage risk
Establish and maintain strategic networks
Manage strategic contracts
(e) Letter from Maumi Hotels Pty Ltd regarding nominee’s employment commencing 1 April 2010 as a Guest Relations Executive.
(f)    Curriculum vitae of the nominee including as follows (unedited):
I am a very dedicated person with more than ten years experience in the customer service industry. A multi-tasker, self-motivated and a highly organized person who possesses a strong work ethic that is custom made from an administrative and supervisory roles. I have worked in a call centre, front office in the cruise ship and hotel environment and currently working as a concierge for a prestigious shopping centre. I’ve consistently achieved high customer satisfaction feedbacks and implement improvements to daily operations.
I was a respected trainer and leader of customer-focussed teams; instill a shared, enthusiastic commitment to customer service as a key element of the company’s successful service. Lead by example and ensure the execution of all quality, safety and hotel operation policies.
Key Skills and Competencies
Competent Customer Service  Excellent customer service skills
Supervisor  Responsible and accountable
Team building/Training/Supervision  Reliable and flexible
Customer Satisfaction  Honest and Fair in decision-making
Enhancement  High level computer skills including
Strategic Marking and Sales  Excel, Word, Outlook & Powerpoint
Cost-reduction strategies  Excellent written and verbal
Complaint Handling & Resolution  communication skills acquired via
More than ten years of experience  study and customer service work
In customer service both phone &
face-to-face
Education and Training
·     Envirotech Institute of Education, Australia  2016-2017
Advanced Diploma of Leadership and Management
Diploma of Leadership and Management
Certificate IV in Small Business Management
·     University of San Jose – Recoletos, Philippines           1998-2003
Bachelor of Science in Industrial Engineering
·     Colegio de la Immaculada Concepcion Philippines                  1988-1998
Primary and Secondary Graduate
Training:
Completed numerous courses and seminars in customer service, loss prevention, time management, leadership, performance assessment and safety management.
Professional Experience
Company:               Pacific Fair Shopping Centre
Hooker Blvd, Broadbeach QLD 4218
Position:                Concierge Staff
Period:                   March 2016 – Present
Job Description:
·     Provide excellent customer service, tourism and general information both on the telephone and in person
·     Answering phone calls including all class for Centre Management and direct calls to the correct department, take appointments and bookings.
·     Assist customers with directions to stores and information about Pacific Fair
·     Assist customers who want to hire mobility equipments
·     Handle Gift Card purchases accurately
·     Provide information on events of Pacific Fair
Company:               Naum Hotel
41 Seah Street Singapore 188396
Position:                Guest Relatives Executive
Period:                   April 2010 – November 2015
Job Description:
·     Handled front office duties including check-in & check-out of guests
·     Supervise over the Guest Relations Officers and manage the shift
·     Took care of hotel reservations in the absence of the reservations agent and answers queries regarding bookings
·     Furnishes guests with information about Singapore like places to go or things to do around town and coordinates with the guests on the tours that they would like. Also book their dinner reservations and assisted guests with airline bookings and confirmations
·     Handle complaints and feedback of guests
·     In charge of night auditing during night shift duty
Company:               Norwegian Cruise Lines
7665 Corporate Center Drive, Miami, Florida 33126
Position:                Guest Relatives Officer/ Receptionist
Period:                   July 2007 – Oct 2008
Job Description:
·     Functioned as a shift leader if the Senior Guest Relations Officer / Receptionist is not on duty and oversees the Jr. Receptionists on duty
·     Responsible for giving accurate, consistent information to guests in an efficient and courteous manner
·     Handled guest’s dissatisfaction, special requests and suggestions with care and sensitivity according to their needs. The appropriate follow-up and corrective action was taken accordingly
·     Recorded significant guest related issues in the daily logbook for shared knowledge and follow-up
·     Maintained a cash box for giving change, cashing traveler’s checks & FOREX
·     Responsible for answering the emergency telephone line & taking appropriate, immediate action.
·     Took care of Lost & found items and the related documentation.
·     Assigned to assist the Concierge in handling the VIP check in and requests
·     Maintains office/desk hours on a daily basis for answering and expediting VIP requests and inquiries, providing DVDs and CDs upon request, making restaurant reservations, etc. When not available to answer the telephone, an answering machine was also utilized.
Company:               Gorres Estates
144-A Colon Street, Cebu City, Philippines 6000
Position:                Cashier/ Secretary
Period:                   February 2006 – June 2007
Job Description:
·     Handled the budgeting and the operating costs of the family business
·     Processed the proper documentation for the business
·     Filed the pertinent information and documents
·     Recorded all transactions made
Company:               Western Wats Philippines Inc
MEZ 2, Lapu-Lapu City, Cebu, Philippines 6000
Position:                Customer Service Associate / Call Center Agent
Period:                   August 2003 – January 2006
Job Description:
·     Handled the product opinion surveys for the U.S. consumers
·     Handled account/ surveys for the European consumers, as well
·     Assigned in the sensitive issue surveys like political surveys for the U.S.
·     Assigned in vital projects as Volvo Cards of North America
·     Processed the proper documentation for the business
(g) Letter from applicant dated 15 March 2018 confirming it will be the sponsor of the nominee, confirming that the work-based training would take place on its premises at Southport and will have a duration of 12 months and attached Training Plan.
Additional documents provided to the Tribunal included:
(a) Written submissions provided prior to hearing
(b) Business name search for the applicant
(c)   ASIC search for the applicant
(d) PTE English test of the nominee
(e) New five-phase Workplace-based Training Plan for Quality Assurance Manager
(f)    Lease between Educare Training Institute Australasia Pty Ltd and the applicant dated 13 November 2020
(g) Various corporate membership certificates of the applicant
(h) Organisation chart of the applicant
(i)    Written submissions provided post hearing.
The Tribunal confirmed with Ms Ogle that the applicant sought to meet r.2.72B(3).
At the start of the hearing the Tribunal discussed with Ms Ogle that in order to approve the nomination it needed to be satisfied that all of the requirements in r.2.72B(3) are met, including r.2.72B(3)(a), which the delegate was not satisfied was met. The Tribunal raised with Ms Ogle that on the evidence before it, it held a concern as to whether r.2.72B(3)(c), a necessary requirement for the nomination to be approved, could be met and much of the hearing was focussed on this requirement.
Ms Ogle told the Tribunal that the nominee initially came into the employ of the applicant as an assistant and a secretary. That is a different arm of the business but adds support to what the applicant does for new business start-ups, in Ms Ogle’s role as a migration agent. This involves investors and business owners that come into the country. They help them to start up their business. That is an additional service that the applicant provides. Part of the process, which the visa applicant was helping Ms Ogle with based on her skill set, was to do the business registrations, work on some policies and procedures relating to the nature of the clients’ businesses, do research and put in place things for clients from a compliance point of view: for example, for an alcohol based business, arrange compliance with licensing and registration requirements. However the visa applicant was keen to do more than this. She had the potential to be a quality assurance manager because she is really good at checking the details. She wanted to enhance her skills. The applicant therefore said they would provide training for her as a Quality Assurance Manager. They engaged a third party to help develop the training plan. At the particular time when they hired nominee, her experience was just based on working at Pacific Fair Shopping Centre (Pacific Fair). She had some experience but not in the higher level things like Ms Ogle did. At that particular time, Ms Ogle was not confident that the visa applicant would been able to do the higher level matters so she wanted to start her at a lower level, and that is why the Department refused the nomination application. She understands where the Department was coming from and she should have put more information in the training plan, as to what was involved at the deeper level.
Ms Ogle told the Tribunal that the nominee commenced working for the applicant in March 2018 and had been working previously as a guest concierge with Pacific Fair from March 2016. Ms Ogle thinks she was still working at Pacific Fair on the weekends after she started working for the applicant during the week. She started working for Ms Ogle as a personal assistant/secretary. As at 17 May 2018, it can be seen from a payslip at the time that the visa applicant was being paid $839.80 per week. She said that the nominee is now working for a different organisation at the moment – a training organisation.
The Tribunal noted that the Department was not satisfied that the proposed training program was ‘structured to enhance existing skills and experience held by the nominee in the occupation of the Quality Assurance Manager, but rather to introduce them to occupation for the first time and impart the necessary baseline, novice-level skills it requires’.

The Tribunal discussed with Ms Ogle that r.2.72B(3)(a) requires that the occupational training is a structured workplace training program, specifically tailored to the training needs of the nominee and of a duration that meets the specific training needs of the nominee. Further, paragraph (b) requires that the occupational training is in relation to an occupation specific, with its corresponding 6-digit code, in the relevant legislative instrument. The Tribunal further noted that the delegate also referred to paragraph (c) of r.2.72B(3), which requires that 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. Ms Ogle suggested that study would be able to satisfy that requirement because the legislation defines experience as either study or work, with any study completed by the applicant in Australia to be considered as experience.
The Tribunal discussed with Ms Ogle that the evidence before the Tribunal is that the visa applicant has completed an Advanced Diploma of Leadership and Management, a Diploma of Leadership and Management and a Certificate IV in Small Business Management in Australia and, previously, a Bachelor of Science in Industrial Engineering completed in the Philippines in 2003.
The Tribunal discussed with Ms Ogle Department policy, which suggests that the study or skills should be at a level commensurate with the actual nominated occupation. The Tribunal noted that ANZSCO suggests that the nominated occupation of Quality Assurance Manager is an occupation with a skill level of 1, which would normally be commensurate with a Bachelor degree or higher qualification. Notably, the occupation of Quality Assurance Manager is found within the Unit Group 1399 Other Specialist Managers as follows:
UNIT GROUP 1399 OTHER SPECIALIST MANAGERS
This unit group covers Specialist Mangers not elsewhere classified.
It includes Arts Administrators or Managers, Environmental Managers, Laboratory Managers, Quality Assurance Managers and Sports Administrators.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
Occupations:
…
139914 Quality Assurance Manager
…
139914 QUALITY ASSURANCE MANAGER
Alternative Title:
Quality Facilitator
Plans, organises, directs, controls and coordinates the deployment of quality systems and certification processes within an organisation.
Skill Level: 1
The Tribunal invited Ms Ogle to address how r.2.72.B(3)(c) is met having regard to these matters. The Tribunal adjourned for an hour in order to allow Ms Ogle to have an opportunity to locate evidence that she had in her possession addressing these matters.
Following the adjournment, the Tribunal sought to discuss with Ms Ogle the nature of the nominee’s role with the applicant. The Tribunal noted that Ms Ogle had initially said that the nominee’s role was as her personal assistant/secretary. Ms Ogle continued that it wasn’t so much a personal assistant – it was more like her assistant. Her (Ms Ogle’s) role was setting up the businesses for the investors and putting in place risk procedures, and the nominee used to help put those policies through – everything relating to if they needed licencing or registration, etc. Ms Ogle said her role was more like a quality officer. She was always doing the checks and helping her put the procedures in place. When they did emails and things like that, she would be her assistant. During the time employed with the applicant, the nominee’s role didn’t change as such, however, the nominee did become a little more advanced. For example, if Ms Ogle was required to talk to government departments, the nominee would get involved and prepare the various documents needed in order, for example, for the businesses to be recognised or meet the requirements of specific businesses. Her role was very broad.
Ms Ogle told the Tribunal that the nominee is no longer employed with the applicant. Her employment ceased in April 2019. Since April 2019, she has been employed with Educare College doing student administration. She is doing quality control there as well, from a compliance point of view. The nominee told the Tribunal that she started in student administration at Educare College and she is also a compliance officer. Her role is student administration/quality assurance officer. In response to the Tribunal’s query as to what is proposed if the visa is granted, Ms Ogle said that the nominee wants to return to the Philippines, where her mother is located, after she gains some experience but because quality assurance is such a broad role, she could apply it to any business. Ms Ogle said the nominee has done all of her studies here in Australia and because quality assurance is such a broad role, she could be employed by any type of business. The nominee does not yet have that (experience) but she would like to have that so she can move on and apply that at a managerial level. As far as Ms Ogle knows, based upon what the nominee is doing at the college now, it would take her three to four years for her to meet the quality compliance officer in Australia standards and if Ms Ogle is able to give that to the nominee, she can then take that experience with her when she heads to the Philippines. It is a higher role than what the nominee is doing now; a Quality Assurance Manager is what she has always wanted to do. If the visa is granted, the applicant is happy to re-employ the nominee. The nominee told the Tribunal if she had this further experience and training in Australia, she would welcome that so she can learn the Australian standards. It would give her more credibility and let her have a better career back in the Philippines.
The Tribunal invited Ms Ogle to address the Tribunal on how r.2.27B(3)(c) would be met in the nominee’s circumstances, that is, how the nominee would have the equivalent of at least 12 months of full-time experience in the occupation of Quality Assurance Manager in the 24 months prior to the date of the nomination application on 15 March 2018. Ms Ogle responded that whilst ANZSCO says Bachelor qualification or at least five years of relevant experience, the guideline for ANZSCO is at a skilled level and generally for any other visa or when doing skills assessment, they would look at the skill level. She said that the nominee had a relevant degree, a Bachelor of Science in Industrial Engineering, even though that was more than five years (having finished in 2003), and also some of her duties for the Pacific Fair job were relevant as were some of the subjects she studied in the Advanced Diploma, which had elements of quality assurance and management in terms of risks and procedures. Ms Ogle said all of that combined meant that they could say that the nominee had done the study and experience before she came to them and based on that they thought that would satisfy the requirement.
The Tribunal asked the nominee about her work immediately prior to commencing work for the applicant which, as noted in her curriculum vitae, was as concierge from March 2016 to March 2018 at Pacific Fair. The Tribunal noted that the nominee’s curriculum vitae referred to her job description as Concierge Staff at Pacific Fair, including (unedited):
·Provide excellent customer service, tourism and general information both on the telephone and in person
·Answering phone calls including all calls for Centre Management and direct calls to the correct department, take appointments and booking
·Assist customers with directions to stores and information about Pacific Fair
·Assist customers who want to hire mobility equipments
·Handle Gift Card purchases accurately
·Provide information on events of Pacific Fair.
The nominee confirmed that this was a correct description of her duties as Concierge Staff at Pacific Fair.
The Tribunal discussed its concern about a correlation between the duties as described for Concierge Staff being of such a nature that they could be taken into account for the purposes of considering whether the nominee had at least 12 months experience in the 24 months prior to the nomination application in the occupation to which the occupational training relates. The Tribunal noted that from what the nominee had described, the role at Pacific Fair was quite a separate and different position to that of a Quality Assurance Manager role. The nominee said that there were still standards and procedures to be met. The Tribunal noted that there are standards and procedures to be met in any job. Ms Ogle accepted that it probably does not relate to the role of Quality Assurance Manager but that Ms Ogle also looked at her prior experience and study, including the nominee’s Industrial Engineering degree in the Philippines when she was considering the nomination and visa application for the nominee.
The Tribunal discussed with Ms Ogle that based on all of the evidence it did not doubt that the nominee would be a highly desirable candidate for the job and it could be seen that she would have a lot of potential, but its concern was that for r.2.72B(3)(c) to be satisfied, the Tribunal has to be satisfied that the nominee has at least 12 months of full-time experience in the occupation to the which the occupational training relates in the 24 months immediately preceding the time of the nomination (that is in the period 15 March 2016 to 14 March 2018).
The Tribunal noted that given the Bachelor of Science in Industrial Engineering was completed in 2003, being 15 years prior to the nomination it would not be able to be taken into account. The Tribunal then discussed the nominee’s other qualifications as follows:
·the Advanced Diploma of Leadership and Management started in June 2017 and awarded in February 2018
·the Diploma of Leadership and Management started in August 2016 and awarded in May 2017
·the Certificate IV in Small Business Management awarded in August 2016.
The Tribunal noted that ANZSCO states that most occupations in the relevant Unit Group have a level of skill commensurate with Bachelor degree or higher qualification, with a Quality Assurance Manager having a skill level of 1, that is a Bachelor degree, or at least five years of relevant experience possibly being a substitution for the formal qualification. The Tribunal noted also that the policy, a relevant consideration to be taken into account if not inconsistent with the legislation and Regulations, suggests that what should be considered is whether the qualification and experience of the person are related to the identified occupation and, further, suggests that what needs to be done is to assess the skills of the nominee against the entry level skills of the nominated occupation to ensure the nominee has the appropriate skills to undertake the position. The Tribunal noted that what would normally be required is a Bachelor degree but the Tribunal could look to see whether the Advanced Diploma and Diploma qualifications were commensurate with the suggested skills for a Quality Assurance Manager in ANZSCO. Notably, ANZSCO states that the Quality Assurance Manager ‘Plans, organises, directs, controls and coordinates the deployment of quality systems and certification processes within an organisation’. The Tribunal indicated that it would also look at the higher levels in ANZSCO relevant to the occupation of a Quality Assurance Manager.
The Tribunal noted that the subject/competencies for the highest level of qualification of the nominee in the two years preceding the nomination application, that is the Advanced Diploma of Leadership and Management, were:
·Develop an advertising campaign
·Execute an advertising campaign
·Manage finances
·Manage knowledge and information
·Lead and manage organisation change
·Provide leadership across the organisation
·Develop and implement strategic plans
·Develop and implement a business plan
·Develop a marketing plan
·Manage risk
·Establish and maintain strategic networks
·Manage strategic contracts.
The Tribunal asked Ms Ogle which of the subjects/competencies of that qualification it is submitted should be taken into account as satisfying the requirement.
Ms Ogle said that looking at VETASSESS, the assessing authority for the occupation of Quality Assurance Manager, where it sets out their criteria and how they assess someone as fully skilled, in their information under Quality Assurance Manager, what they have is ‘in addition to the above it is essential for an applicant to meet the following employment criteria at least one year of experience undertaken in the last five years’. That is how they assess a person. They continue ‘if the qualification is not in a highly relevant field then the applicant must have at least three years of post qualification experience at the appropriate skills level. This is reduced to two years if there is an additional qualification of at least an AQF diploma level in a highly relevant field’.
The Tribunal discussed with Ms Ogle that the test in the regulation isn’t what VETASSESS assesses but rather whether the nominee has 12 months’ experience in the requisite 24 month period, with policy stating that study can be considered such that the Tribunal would consider whether the nominee’s studies in the requisite two year period was related to the occupation of Quality Assurance Manager, the occupation to which the occupational training relates. The Tribunal indicated that it would consider the nominated occupation in ANZSCO and would look at all matters in ANZSCO, including each sub-level, including the Unit Group, the minor group, the sub-minor group and the major group. The Tribunal indicated that there might be some competencies undertaken as part of an Advanced Diploma and Diploma that might be related to the nominated occupation. However, the Tribunal discussed with Ms Ogle its concerns, based on the evidence before it, about whether r.2.72B(3)(c) could be met. Ms Ogle indicated that she would have to agree at the time of qualification but queried whether it could be looked at now. The Tribunal noted that whilst consideration could be given to whether the requirements in r.2.72B(3)(a) and (b) related to the training program are now met, r.2.72B(3)(c) requires consideration of the 24 months immediately preceding the time of the nomination. Ms Ogle said that she remembered from her training for CPD as a migration agent that sometimes time of application matters can be considered at time of decision. The Tribunal indicated its view that r.2.72B(3)(c) is very specific in its requirement that it is required to be met in the 24 months immediately preceding the time of the nomination.
The Tribunal discussed with Ms Ogle that it could see that some of the subjects/competencies in the Advanced Diploma and Diploma qualifications, such as ‘manage quality customer service’ could be considered to be related to the occupation of Quality Assurance Manager, but that it held concerns as to whether there was sufficient correlation such that the experience represented by the study for the Advanced Diploma of Leadership and Management and the Diploma of Leadership and Management would meet the requirement of 12 months full-time experience in the 24 months preceding the time of nomination.
Ms Ogle sought additional time after the hearing to give more clarity on the units relating to the Advanced Diploma of Leadership and Management and the Diploma of Leadership and Management.
Following the hearing, Ms Ogle provided written submissions to the Tribunal drawing the Tribunal’s attention, in particular, to the following parts of the Departmental policy in relation to r.2.72B(3)(c):
Recent and relevant experience
Under regulation 2.72B(3)(c) officers must be satisfied that the nominee has recent experience in the identified occupation that the training relates. The nominee must be building upon skills which they have already have gained. This experience may include employment experience or study experience, however it:
must be the equivalent of at least 12 months full-time experience in the occupation and
must have occurred in the 24 months immediately preceding the time of nomination. For example, 8 months full-time experience and 8 months part-time (at approximately 19 hours per week) experience or 24 months part-time experience (at approximately 19 hours per week).
The requirement for the nominee to have ‘the equivalent of at least 12 months full-time experience in the occupation to which the nominated occupation training relates’ is to ensure that the nominee is building upon already gained skills and that they have recent experience and/or qualifications/s and/or experience are complementary and will be enhanced in the nominated training program.
Under policy, the critical factor in determining whether the nominee’s experience and/or qualification/s is related to the occupational training program is whether the skill set/s underpinning the qualification/s and/or experience are complementary and will be enhanced in the nominated training program, in terms of both subject matters and the level at which those skills were obtained.
Sponsors should submit, with the nomination, a copy of the nominee’s relevant qualifications and curriculum vitae (CV). Officers should consider whether the qualifications and experience of the person are related to the identified occupation and assess whether the requested duration of stay meets the specific training needs of the nominee.
Officers should assess the skills of the nominee against the entry level skills for the nominated occupation to ensure the nominee has the appropriate skills to undertake the position. ANZSCO provides information on the required skills and qualifications to perform occupations.
If an officer is not satisfied that the nominee has the appropriate skills or the nominee’s skills will be sufficiently enhanced by the training, then the application may be refused.
…
(emphasis noted in the submissions)
Written submissions on behalf of the applicant in relation to the nominee’s skills and qualifications included as follows:
·The applicant had completed the Advanced Diploma of Leadership and Management and Diploma of Leadership and Management. We have compared the courses’s units from her transcript to the Bachelor of Business Management courses’s unit of The University of Queensland Australia as below:

Diploma and Advanced Diploma of Leadership and Management – Evirotech Institute of Education (more than 12 months full-time study)

Bachelor of Business Management – UQ

Manage quality customer service

n/a

Manage payroll

Accounting for Decision Making

Manage knowledge and information

Transforming Business with Information Systems

Manage people and performance

Organizational Behaviour/ Human Resources

Manage operational plan

n/a

Lead and manage team effectiveness

Introduction to Management

Manage finances

Introduction to Financial Management

Lead and manage organisational change

Innovation and Entrepreneurship

Provide leadership across the organisation

Leadership and Management Science

Develop and implement a business plan

Business Law

Develop a marketing plan

Foundations of Marketing/Marketing

Establish and maintain strategic networks

Economic for the Business

Manage strategic contracts

Business Law/ International Business

The nominee has undertaken more related courses’ units for the proposed occupation Quality Assurance Manager (ANZSCO – 139914) – which aligns with the tailored training plan – comparing to the Bachelor Degrees from the UQ university. As the nominee is going to be trained to skill level 1 – therefore the requirement to have bachelor degree is not justifiable in this circumstance.
The nominee had been working as Secretary with MYG from 08/03/2018 part-time (up to 20 hours – please see the payslips) and had performed the following duties and responsibilities:
·Organise and coordinate work schedule for staff members and CEO
·Acting at first point of contact between clients and CEO / staff members to manage work-flow and report to CEO
·Managing databases and information
·Develop work schedule and record staff member performance
·Organise staff meeting to inform CEO’s new directions, policies and procedures.

According to ANZSCO’s description – Quality Assurance Manager’s duties quoted: ‘Plans, organises directs, controls and coordinates the deployment of quality systems and certification process with an organisation.”
Prior to lodging the nomination the applicant had worked for Pacific Fair Shopping Centre from March 2016 – Present part time (up to 20 hours per week – please see the attached payslips and PAYG Summary) with the similar duties:
·   Directly provide customer services according to the company deployment of quality procedure.
·   Coordinate the service request with other Department
·   Manage and keep records all calls for Centre Management
·   Organise services and assist customers with specific requests including giving accurate stores information, arrange mobility equipments, check the quality of the equipments and control the purpose of use for clients
·   Ensure the customer purchasing and customer receipts are handled properly and accurately following company standard procedure.

The Nominee has been working with Pacific Fair Shopping Centre with similar duties prior to lodging the nomination application at least 24 months part-time. As the nominee is going to be trained to skill 1, therefore, the nominee satisfied the regulation 2.72B(3)(c) as a junior level of Quality Assurance Manager position.

The applicant’s written submissions also referred the Tribunal to a case study, being a nomination and visa application recently granted to one of its clients as follows:
1.The resume: the applicant has done Multimedia work which is relevant to the proposed occupation as Graphic Designer
2.The qualification: the applicant only complete the Diploma of Digital Media Technology
3.According to ANZSCO – 232411 Graphic Designer – “have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).”
4.The applicant satisfied the criterias and got the visa application approval (as demonstrated by provided documents).
The Tribunal has carefully considered all of the evidence before it. As discussed with Ms Ogle at hearing, the Tribunal does not doubt that the nominee was a very worthy applicant for employment, and that has proved to be the case. However, that is not the issue required to be considered by the Regulations. The issue is whether the nominee had the equivalent of at least 12 months of full-time experience in the occupation to which the occupational training relates, that is the occupation of Quality Assurance Manager, in the 24 months immediately preceding the time of the nomination.
The Tribunal accepts that the nominee, in undertaking the concierge role with Pacific Fair, was required to adhere to quality assurance procedures relating to customers and the shopping centre. However, the nominee’s role with Pacific Fair was clearly one predominantly of customer service and the compliance with quality assurance procedures as part of such a role does not elevate a person’s experience to that of ‘planning, organising, directing, controlling and coordinating the deployment of quality systems and certification processes within an organisation’.
As regards whether the study undertaken by the nominee in the 24 months immediately preceding 15 March 2018, the Tribunal carefully considered the Records of Results and competencies of those qualifications as itemised at paragraphs 12(b), (c) and (d) of these Reasons. The Tribunal accepts that some of those competencies, such as managing quality customer service, managing finances, leading and managing organisational change and managing risk, would include some aspects of the ANZSCO described duties of a Quality Assurance Manager, the Tribunal is not satisfied that is sufficient to amount to the equivalent of at least 12 months full-time experience in the occupation of Quality Assurance Manager.
The Tribunal has also taken in account the comparative assessment the applicant has undertaken between the Diploma and Advanced Diploma of Leadership and Management and the Bachelor of Business Management in the post hearing written submissions. However, the Tribunal finds this comparison of little assistance. The comparison required is not one of the qualifications undertaken by the nominee against a Bachelor degree that would be equivalent to a skill level 1, but rather is whether the nominee can be assessed as having at least 12 months of full-time experience in the occupation of Quality Assurance Manager. The Departmental policy referred to in the submissions suggests that the ‘critical factor in determining whether the nominee’s experience and/or qualification/s is related to the occupational training is whether the skill set/s underpinning the qualification/s and/or experience are complementary and will be enhanced in the nominated training program, in terms of both subject matter and the level at which those skills were obtained. The Tribunal has had regard to this part of the policy but, notably, the policy actually misquotes the provisions of the legislation. In those circumstances, the wording of the regulation must prevail. On the clear wording of the regulation, the question to be answered for the purposes of r.2.72B(3)(c) is whether the nominee has the equivalent of at least 12 months of full-time experience in the occupation to which the occupational training relates, not whether the experience and/or qualifications is related to the occupational training. However, on either reading, the Tribunal cannot be satisfied. Whilst some of the subjects studied in the two years prior to the time of nomination might have some relevance to the occupation of Quality Assurance Manger, given the broad range of competencies undertaken in the studies for the qualifications, and the focus on general business skills, as opposed to quality assurance skills, the Tribunal is unable to be satisfied that there is enough to amount to 12 months full-time experience.
The Tribunal has carefully considered all matters; however, based on the evidence before it, the Tribunal is unable to be satisfied the nominee had the equivalent of at least 12 months of full-time experience in the occupation to which the occupational training relates, that is the occupation of Quality Assurance Manager, in the 24 months immediately preceding the time of the nomination.
Therefore, the Tribunal is not satisfied the applicant meets r.2.72B(3)(c).
For the reasons given above, the Tribunal is not satisfied the applicant meets all the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
OTHER MATTERS
The Tribunal acknowledges the case study provided by the applicant, that is, documents supporting that a similar nomination application has been approved. However, the Tribunal must consider the application before it based upon the evidence relevant to this application.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Susan Trotter
Member
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
Reg 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.

[2021] AATA 2618

16 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness

Diploma and Advanced Diploma of Leadership and Management – Evirotech Institute of Education (more than 12 months full-time study)	Bachelor of Business Management – UQ
Manage quality customer service	n/a
Manage payroll	Accounting for Decision Making
Manage knowledge and information	Transforming Business with Information Systems
Manage people and performance	Organizational Behaviour/ Human Resources
Manage operational plan	n/a
Lead and manage team effectiveness	Introduction to Management
Manage finances	Introduction to Financial Management
Lead and manage organisational change	Innovation and Entrepreneurship
Provide leadership across the organisation	Leadership and Management Science
Develop and implement a business plan	Business Law
Develop a marketing plan	Foundations of Marketing/Marketing
Establish and maintain strategic networks	Economic for the Business
Manage strategic contracts	Business Law/ International Business