Narooma Medical Centre Pty Ltd (Migration)

[2023] AATA 4259

Narooma Medical Centre Pty Ltd (Migration) [2023] AATA 4259 (14 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Narooma Medical Centre Pty Ltd

CASE NUMBER:  1935457

HOME AFFAIRS REFERENCE(S):          BCC2019/5348907

MEMBER:K. Chapman

DATE:14 November 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 14 November 2023 at 3:01pm  

CATCHWORDS
MIGRATION – approval of nominated program of occupational training – bona fide nexus to an ‘overseas employer’ – no response to s.359(2) invitation – Tribunal declined indefinite adjournment of review – participation in the nominated program – purpose of occupational training – decision under review affirmed

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

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

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs, on 26 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 applied for approval on 24 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 regs 2.72A – 2.72B of the Regulations. Regulation 2.72A prescribes criteria that must be satisfied for the Minister to approve a nomination by a person. Regulation 2.72B(6) contains requirements relating to a nomination for the purpose of professional development.

3. The delegate refused to approve the nomination on the basis that the applicant did not satisfy the requirements of reg 2.72A(15), due to a lack of satisfaction that the occupational training had a bona fide nexus to an ‘overseas employer’ of the nominee, having regard to reg 2.72B(6)(a)(i). On 16 December 2019, the applicant applied to the Tribunal for review of the nomination decision. The applicant submitted a copy of the delegate’s decision with their application for review.

4. On 20 June 2023, the Tribunal Registry wrote to the applicant, pursuant to s 359(2) of the Act, inviting them to provide current information addressing the relevant criteria under regs 2.72A - 2.72B. The Tribunal is satisfied this invitation was properly despatched to the applicant’s email address. The due date for response to the invitation was 4 July 2023. The applicant failed to respond to the information within the prescribed period. No response to the invitation has been received by the Tribunal at the time of this decision.

5. Where an applicant is invited to provide further information in accordance with s 359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to s 359C(1) of the Act. In these circumstances, the applicant is not entitled to appear before the Tribunal in accordance with s 360(3) of the Act. Of note, 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 the review applicant to appear before it as outlined in the Full Federal Court matter of Hasran v MIAC [2010] FCAFC 40.

6. The Tribunal has carefully considered whether to afford additional time to the applicant to give the information requested in the s 359(2) invitation, or to provide further material in support of their application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision making process.

7. The Tribunal has taken into account that the applicant has been aware since around 26 November 2019 of the reasons for the nomination application being refused and also that the implications of not responding to the information requested in the invitation from the Tribunal of 20 June 2023 were set out in the relevant correspondence. Further, ample time has now passed since the due date for response to the invitation.

8. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to provide the information requested in the s 359(2) invitation and address the central issues arising in the application for review. On balance, the Tribunal considers it appropriate to make its decision on the review without taking any further action to obtain the information requested in the aforementioned invitation. Accordingly, the Tribunal has made its decision on this review application having due regard to the documentary material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present review 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. Of note, regs 2.72A(3) to (16) must be satisfied for the nomination to be approved.

    Participation in the nominated program – reg 2.72A(5)

11. Regulation 2.72A(5) requires that the nominee will participate in the nominated program.

12. Given the applicant did not respond to the Tribunal’s invitation pursuant to s 359(2) of the Act, there is a paucity of contemporary information in evidence regarding the current or future engagement of the nominee, the financial viability of the applicant’s business or the current scale of its organisation. On balance, the Tribunal cannot be satisfied that the nominee will participate in the nominated program.

13. For these reasons, reg 2.72A(5) is not satisfied by the applicant.

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

14. Regulation 2.72A(15) requires that reg 2.72B applies to the nomination. Regulation 2.72B states that it applies if any of its sub-regulations apply. Each sub-regulation outlines a purpose for occupational training and includes various requirements which must be met. In this review, the applicant claims that reg 2.72B(6) applies.

15. Regulation 2.72B(6) applies if:

    ·the nominee has an overseas employer; and is in a managerial or professional position in relation to the overseas employer (reg 2.72B(6)(a)); and

    ·the occupational training is relevant to, and consistent with, the development of the managerial or professional skills of the nominee (reg 2.72B(6)(b)); and

    ·the occupational training will provide skills and expertise relevant to, and consistent with, the business of the overseas employer of the nominee (reg 2.72B(6)(c)); and

    ·the primary form of the occupational training is the provision of face-to-face teaching in a classroom or similar environment (reg 2.72B(6)(d)).

16. Given the applicant did not respond to the Tribunal’s invitation pursuant to s 359(2) of the Act, there is a dearth of contemporary information in evidence regarding the nominee’s claimed overseas employer and the relationship of the current proposed program of training to that employer. On balance, the Tribunal cannot be satisfied that the nominee has an overseas employer and that the proposed training has a bona fide link to such employer. Accordingly, the Tribunal finds that the requirements in reg 2.72B(6) are not met by the applicant. There are no other claims made by the applicant to meet any of the other sub-regulations of reg 2.72B.

17. For these reasons, the Tribunal is not satisfied that any of the sub-regulations in reg 2.72B apply. Accordingly, reg 2.72A(15) is not satisfied by the applicant. The Tribunal so finds.

18. Having regard to the above matters, the Tribunal is not satisfied that the applicant meets the applicable requirements for approval of the nomination. Accordingly, the decision under review must be affirmed.

    DECISION

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

    K. Chapman
    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.