Orana Garden Ltd (Migration)

Orana Garden Ltd (Migration) [2019] AATA 5379 (13 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dubbo RSL Aged Care Association Pty Ltd (name changed to ORANA GARDENS LTD)
CASE NUMBER:  1700475
HOME AFFAIRS REFERENCE(S):         BCC2016/1957219
MEMBER:Mr S Norman
DATE:13 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 13 August 2019 at 12:20pm

CATCHWORDS
MIGRATION – nomination of an occupation (employer nomination) – Occupational Trainee Stream – position of Diversional Therapist – training primarily conducted in the workplace – regional aged care provider – structured workplace training plan – recent full-time experience – decision under review set aside
LEGISLATION
Migration Act 1958, s 140GB
Migration Regulations 1994, r 2.72
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 on 22 December 2016, to refuse to approve a nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72I of the Migration Regulations 1994 (the Regulations). The Department delegate’s decision was lodged with the Tribunal.
The applicant applied for approval of the nomination on 6 June 2016. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72I(4), (5) or (6).
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Act and the Regulations provide for approval of persons as sponsors and nominations of occupations, programs or activities to be undertaken in Australia by a prospective holder of a Subclass 402 (Training and Research) visa (Subclass 402 visa) – being the nominee/visa applicant. A nomination of an occupation, program or activity in relation to various visas, including Subclass 402 visas, is made under s.140GB of the Act as well as r.2.72A and r.2.73A of the Regulations. Relevant to this matter, the requirements for approval of a nomination for a Subclass 402 visa are also set out in r.2.72I of the Regulations (see Attachment).
Regulation 2.72I(2)(b) requires that the applicant must satisfy one of the three requirements in r.2.72I(4) or (5) or (6). The applicant indicated in their Nomination Form that they wished to seek approval for occupational training to enhance skills.
The applicant/nominator thus indicated in the Nomination Form (Form 1402N[1]), that they intend to seek approval of a Training and Research nomination in the Occupational Trainee Stream. Accordingly, the applicant is principally seeking consideration under r.2.72I(5). That being said, the applicant must be considered pursuant to the alternate streams (being r.2.72I(4) & (6)).
[1] Department – from folio 91.
For an applicant to meet the requirements of r.2.72I(5), they must satisfy each of the requirements as set out in r.2.72I(a)-(d).
Is the nominated occupational training a structured workplace training program that is specifically tailored to the training needs of the nominee and of a duration that meets the specific training needs of the nominee?
Regulation 2.72I(5)(a) stated:
(5) The Minister is satisfied that:
(a) the nominated occupational training is:
(i) a structured workplace training program; and
(ii) specifically tailored to the training needs of the identified visa holder or applicant; and
(iii) of a duration that meets the specific training needs of the identified visa holder or applicant; …
By Department letter dated 31 July 2019, the applicant (Dubbo RSL Aged Care Association Pty Ltd - now called ORANA GARDENS LIMITED) was advised their application as a temporary activities sponsor had been approved and was in effect until 31 July 2024.
The applicant lodged an application for approval of a Nomination for a Occupational Trainee position on 6 June 2016. The nominated occupation was for a Diversional Therapist (ANZSCO: 411311); and the nominee/visa applicant was Ms Nyasha CHITSUNGE (a citizen of Zimbabwe). The proposed training period was said to be 24 months.[2]
[2] Department – folio 90.
The delegate then noted the purpose of the Occupational Trainee stream is to allow Australian employers to provide workplace-based training opportunities to its trainees. It is limited to training that is primarily conducted in the workplace and is not an appropriate visa for persons whose sole intention is to undertake work or study on a full time or part time basis. It is not primarily a work or study visa. Further, any qualification gained is incidental to the work experience program.
On 15 October 2016, the Department requested specified evidence from the applicant. That included:
·     statement of the nominee’s training needs and how these would be addressed through the training program
·     statement of the objectives of the training program
·     state the number of hours per week to training will involve
·     state the percentage of training that will be in a classroom environment
·     state the work activities to be undertaken
·     state the curriculum and training tasks to be undertaken
·     state the location of the training – list if more than one location
·     state the duration/timeframe for the training
·     state how the nominees training progress will be assessed and monitored
·     provide a list of all supervisors, trainers and assessors and their qualifications and experience
On 11 November 2016, the applicant provided a six part training plan with an updated letter of offer to the Department. The delegate said the training plan indicated that students would undertake standardised training, often at a beginners or intermediate level, in order to obtain a qualification. Although the training plan contained a schedule outlining training/module/study components, the delegate did not believe it was sufficiently structured to demonstrate work-based training, nor did it establish the existing skills and prior experience of the nominee. The delegate further said the training plan did not identify or make efforts to contain specifically tailored components based on the individual training needs of the nominee.
The delegate also said the evidence provided was indicative of vocational training intended to gain formal qualifications rather than an Occupational Trainee program intended to enhance the skills of a trainee in their nominated occupation. The delegate believed that more appropriate visa classes were available to enable participation in a formal training program leading to formal qualifications via vocational training avenues (such as Student visas). The delegate continued that given the indication that the primary purpose of the visa was so the nominee could complete vocational training and obtain a qualification, this was not sufficiently consistent with the purpose of the Subclass 402 visa being to undertake structured workplace training that had been designed to enhance the nominee’s skills. Therefore, the delegate was not satisfied the proposed training program was structured or specifically tailored to the needs of the nominee. Accordingly, the delegate was not satisfied the applicant would be undertaking suitable training and therefore did not meet the requirements of r.2.72I(5)(a).
The evidence and submissions lodged by the applicant with the Department, included (but was not limited to):
·     A ‘Falls Management’ document dated August 2016[3]
[3] Department – from folio 452.
·     A Work Health and Safety and Environmental Management Policy Manual Unit 3 dated 2015[4]
[4] Department – from folio 446.
·     Medication Framework Unit 6 dated July 2016[5]
[5] Department – from folio 360.
·     Medication Assessment Competency dated November 2015[6]
[6] Department – from folio 312.
·     Privacy Policy[7]
[7] Department – from folio 304.
·     Lifestyle Policy Unit 12 dated April 2015[8]
[8] Department – from folio 295.
·     Massage Policy Unit 11 dated July 2015[9]
·     Heat Treatment Policy Unit 9 dated June 2015[10]
·     Tens Policy Unit 10 dated May 2015[11]
·     Pain Management Unit 8 dated December 2015[12]
·     Food Safety – Care and Activity Staff dated March 2016[13]
·     Safe Chemical Handling[14]
·     Manual Handling Policy Unit 5 dated July 2015[15]
·     Elder Abuse Unit 1[16]
·     Confidentiality and Security of Information Policy Unit 2 dated May 2016[17]
·     Infection Control Policy Unit 4 dated August 2016[18]
[9] Department – from folio 284.
[10] Department – from folio 280.
[11] Department – from folio 277.
[12] Department – from folio 272.
[13] Department – from folio 262.
[14] Department – from folio 251.
[15] Department – from folio 219; and from folio209.
[16] Department – from folio 187.
[17] Department – from folio 178.
[18] Department – from folio 172.
The above documents did contain some evidence of in-house training. The nominator’s letter of 11 November 2016[19] (a materially similar letter dated 1 June 2016 was lodged[20]) also listed the following as “major duties and responsibilities”:
[19] Department – from folio 101.
[20] Department – from folio 7; and from folio 3.
·     conduct individual and/or group exercise programs according to the residence mobility plan developed by the physiotherapist and their clinical condition
·     conduct individual mobility and dexterity programs according to the mobility and dexterity plan and the clinical condition of the resident
·     conduct pain management interventions according to the residence care plan
·     responsibility for heat pack treatment and monthly records
·     under the supervision and direction of one of the following; facility manager, CRN, physiotherapist, team leader, conduct assessments such as the Falls risk assessments, mobility and dexterity or manual handling assessments
·     ensure safety, comfort, dignity, privacy and respect at all times, promote independence through encouragement, information, assistance to community services or other service providers
·     working together with other health providers …
·     undertake documentation in relation to the memorability and …territory programs
·     compile the weekly Falls report
·     participate in Falls prevention weekly meetings
·     document any referrals for physiotherapy etc …
The applicant also provided evidence of having achieved ‘Statement/s of Attendance’ and ‘Statement/s of Attainment’ and other qualifications.[21] She had also been awarded:
·     a Certificate IV in Frontline Management[22]
·     Certificate IV(s) in Aged Care[23]
·     Certificate IV in Training and Assessment[24]
[21] Department – from folio 67.
[22] Department – folio 48.
[23] Department – from folio 47, folio 39 (2016).
[24] Department – folio 35.
By letter of 6 June 2016,[25] the agent explained that the visa applicant’s Subclass 457 visa was cancelled in March 2016, due to her no longer being a member of the family unit of the primary applicant (the applicant travelled to Australia with her two children and former partner). It was also claimed the applicant had been employed at the (then) RSL Aged Care Family in Dubbo since 2009.
[25] Department – from folio 17.
The applicant’s curriculum vitae,[26] more fully referred to her academic qualifications and work experience. By letter dated 1 June 2016, the nominator’s Facility Manager claimed that all attempts to fill the position of Diversional Therapist with local labour had not been successful. The Training Plan[27] for the visa applicant was said to include discussion with her, and an explanation of how the training program will work and the production of an assessment plan. It was also anticipated the visa applicant would undertake a Diploma of Leisure and Health for 24 months.[28]
[26] Department – from folio 15.
[27] See Department – from folio 11.
[28] Department – folio 190.
With the Tribunal was lodged:
·     an article titled ‘The Crisis in the caring workforce’ (no date provided but reference was made to May 2013)[29]
[29] Tribunal – folio 15.
·     a Dubbo RSL Aged Care Association Ltd document, briefly setting out the work undertaken[30]
[30] Tribunal – from folio 17.
·     a further document setting out the inter alia training schedule for the visa applicant.[31] That document was (possibly) prepared around January 2017[32]
·     The document also identified the following ‘main skill gaps’ of the visa applicant as follows:
·plan programmes in health care and in the community
·plan and organise the leisure and recreational activities
·prepare and monitor tailored programs for individual clients as per their needs and interest
·assess the client’s ability to perform various tasks
·handle sensitive situations
·improve the quality of life for residents through proper planning and also implementing the various leisure activities
·work efficiently with people with disabilities and other barriers for active participation
[31] Tribunal – from folio 22.
[32] Tribunal – folio 24.
Migration agent submissions dated 18 January 2017,[33] said the delegate focused on the Diploma of Leisure and health; the training was always intended to be work based and on-the-job; at the time of application the nominating employer did not have prior experience of the material required to support the application; it was conceded the nominator had used the Diploma of Leisure and Health material as a guide for the training of the nominee. It was then claimed this material is not intended to be used to gain a qualification. The agent then referred to the above-mentioned Training Plan which was tailored to the training needs of the nominee. They also referred to a skills audit that had been conducted based on the training needs of the nominee. It was also claimed the nominator is committed to training all staff especially local workers when they are available. However it is difficult to recruit and retain high-quality workers. This is especially true in regional areas.
[33] Tribunal – from folio 24.
By an apparently undated letter from the sponsor[34] (lodged shortly prior to the subsequently vacated hearing scheduled for 6 August 2019), it was claimed:
[34] Tribunal – from folio 58.
·     the visa applicant had been working with the sponsor since February 2010
·     it was hoped to sponsor the visa applicant for a subclass 407 Visa
·     the proposed training would allow the visa applicant to “experience the various skills which are required for the occupation and become an expert in the industry”
·     the main purpose of the training is to enhance the visa applicant skills which are required for the occupation
·     the main skill gaps were then identified as:
·     plan programmes in health care and in the community
·     plan and organised leisure and recreational activities
·     prepare and monitor tailored programs for individual clients as per their needs and interest
·     assess the client’s ability to perform various tasks
·     handle sensitive situations
·     improve the quality of life for residents through proper planning and also implementing the various leisure activities
·     work efficiently with people with disabilities and other barriers for active dissipation
·     further evidence was provide purporting to set out the duration of the training.[35]
[35] Tribunal – from folio 58 (reverse side).
Also lodged were:
·a letter of support dated 22 July 2019, from the local Federal Member of Parliament[36]
·a Certificate of Attendance for the visa applicant – relating to her completion of a (2 hour) Risk Management Education course on 25 June 2019[37]
·a Certificate of Attendance for the visa applicant – relating to her completion of a (1 hour) can independence education course on 15 May 2019[38]
·a Certificate of Attendance for the visa applicant – relating to her completion of a (1 hour) Lifestyle Documentation Requirements Education course on 15 May 2019[39]
·16 other similar Certificates (all undertaken in May/June 2019)[40]
·A Certificate of Successful Completion of a Training Services course on 18 June 2019[41]
·A pamphlet about Orana Gardens[42]
·A letter from Orana Gardens (Rebecca McDonald) dated 3 June 2019, congratulating the visa applicant on her recent promotion to the role of Lifestyle Coordinator – which would carry with it ongoing development and training opportunities.
[36] Tribunal – folio 52.
[37] Tribunal – folio 52.
[38] Tribunal – folio 52 (reverse side).
[39] Tribunal – folio 51.
[40] Tribunal – from folio 50.
[41] Tribunal – folio 44 (reverse side).
[42] Tribunal – from folio 43.
The information considered by the Tribunal included that:
The unemployment rate in Dubbo is typically below the State average and is currently at 4.9% compared to 5.6% for NSW.
It is estimated that 16,959 people work in Dubbo^, the majority of whom work a 35-39 hour week. By August 2018 it is estimated that total employment in Dubbo will be at 21,919 jobs, which represents an annualised growth rate of 2.20%*.
[43] ‘Population and Demographics’, Dubbo, accessed 28 May 2019.
Of the 16,959 workers in Dubbo 17.98% are classified as Professionals, 12.02% Managers, 14.62% Technicians and Trade Workers, and 10.75% Labourers.[43]
Further country information stated:
The number of Diversional Therapists fell over the past 5 years and is expected to stay about the same over the next 5 years: from 3,500 in 2018 to 3,600 by 2023.

Job openings can come from new jobs being created, but most come from turnover (workers leaving).
There are likely to be around 2,000 job openings over 5 years (that's about 400 a year).
Size: This is a very small occupation.
Unemployment: Unemployment was below average in 2017.
Location: Diversional Therapists work in many regions of Australia. Many work in Victoria.
Industries: Most work in the Health Care and Social Assistance industry.
Earnings: Full-time workers earn around $1,021 per week (below the all jobs average of $1,230). Earnings tend to be lower when starting out and higher as experience grows.
Full-time: Less than half work full-time (39.1%, fewer than the all jobs average of 68.4%), showing there are many opportunities to work part-time.
Age: The average age is 53 years (compared to the all jobs average of 40 years). Many workers are 45 years or older (73.8%).
Gender: 94.4% of workers are female (compared to the all jobs average of 46.7%).[44]
[44]Diversional Therapists (Prospects), Australian Government, accessed 28 May 2019.
further:
A Certificate III including at least 2 years of on-the-job training, or a Certificate IV, or at least 3 years of relevant experience, is usually needed, with the majority of workers having a Certificate III or higher Vocational Education and Training (VET) qualification. Even with a qualification, experience or on-the-job training is usually needed. Registration or licensing may be required.
After having considered the evidence, the Tribunal accepts the comparatively low unemployment rate in Dubbo, could make such job opportunities as the Diversional Therapist position difficult to fill. The Tribunal also understands the visa applicant, whose children are included in a permanent visa application (lodged by the visa applicant’s former partner), would wish to continue to reside in Australia in order to remain with her children.
Be that as it may, after considering the most recent evidence, the Tribunal is satisfied the nominated occupational training is structured workplace training (in the place of work where the visa applicant had been engaged since 2010); that while the identified skill gaps appeared to be consistent (though all identified skill gaps could generally warrant ongoing improvement), the most recent training appeared to have been specifically tailored to the training needs of the visa applicant, and the duration of that training appears to meet the specific training needs of the visa applicant.

Accordingly, the Tribunal accepts the applicant meets Regulation 2.72I(5)(a).
Is the nominated occupational training in relation to a specified occupation?
Regulation 2.72I(5)(ba) stated:
(5) The Minister is satisfied that:
…..
(ba) the nominated occupational training is in relation to an occupation specified, with its corresponding 6-digit code, by the Minister in an for this paragraph; and
The proposed training is for the occupation of Diversional Therapist (ANZSCO: 411311). This is an occupation specified in the relevant instrument (IMMI: 16/060), and therefore the requirement in r.2.72I(5)(ba) is met.
Does the nominee have the required 12 months full-time experience in the 24 months immediately preceding the time of nomination?
Regulation 5(C ) stated:
(5) The Minister is satisfied that:
…..
(c) the identified visa holder or applicant has the equivalent of at least 12 months full-time experience in the occupation to which the nominated occupational training relates in the 24 months immediately preceding the time of nomination; …
The 24 months immediately preceding the nomination is the period 6 June 2014 to 6 June 2016. Departmental policy states that relevant experience may include employment experience or study experience. That said, the evidence before the Tribunal (including the nominee’s curriculum vitae[46] and corroborating evidence by the sponsor) included that the visa applicant had been employed by the same employer since approximately 2010 (and the nomination approval application was lodged on 6 June 2016).
[46] Department – from folio 15.
Accordingly, the Tribunal accepts the applicant has met r.2.72I(5)(c).
Does the nominee have appropriate English language skills to undertake the nominated occupational training?
Regulation 2.72I(5)(d) stated:
(5) The Minister is satisfied that:
…..
(d) the identified visa holder or applicant has appropriate English language skills to undertake the nominated occupational training.
Evidence had been lodged that the nominee had completed an IELTS test undertaken 14 March 2015[47], with scores of 8.5 for Listening, 6.0 for Reading, 8.0 for Writing, and 8.5 for Speaking - with an Overall Band Score of 8.0.
[47] Department – folio 69.
The PAMS relevantly stated (in part):
English proficiency adequate for training program
Regulation 2.72I(4)(d) requires a GC-402 visa holder or applicant to have appropriate English language skills to undertake the nominated training. This requirement also ensures work health and safety standards are met.
Four factors that officers should consider are whether the applicant:
at a level appropriate for the occupation or
- comes from an English speaking country or has spent a continuous period of at least 5 years at a school in which the classes are given in English or
- has recent
- has registration (conditional or otherwise) to train in a profession and that registration includes an English language requirement or
- clearly demonstrates proficiency in English.
Officers should also consider the English language requirements of the occupation in which the training will take place. This includes, but is not limited to
- considering mandatory requirements, if any, for that occupation and
- the level of English required to meet the work health and safety requirements relevant to the occupation in which the training will take place.
If not satisfied that the applicant’s English is sufficient to undertake the proposed program, officers may request evidence of English proficiency as per GC-402 policy, namely:
Under policy, these English language test results are valid for no more than 2 years …
- English language skills as demonstrated by a test average/total/overall band score of more than:
In the present case the Tribunal understands the visa applicant is a citizen of Zimbabwe. Further, based on Department policy, the IELTS test results she had obtained on 14 March 2015, were no longer valid. However, those test results were well in excess of the policy guidance results required for the grant of the visa, and since that time the visa applicant had been engaged in work with English speaking colleagues and patients in her work in the now named ORANA GARDENS LIMITED (formerly the Dubbo RSL Aged Care Association Pty Ltd). There has also been no material evidence that her English language skills had deteriorated since that time.
Accordingly, the Tribunal accepts the applicant has met r. 2.72I(5)(d).
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Mr S Norman

Member
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
Reg 2.72I Criteria for approval of nomination — Subclass 442 (Occupational Trainee) visa and Subclass 402 (Training and Research) visa
(1)  This regulation applies to a person:
(a) who is an occupational trainee sponsor or a training and research sponsor; and
(b) who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation, a program or an activity in relation to either of the following persons (the identified visa holder or applicant):
(i) a holder of, or an applicant for, a Subclass 442 (Occupational Trainee) visa;
(ii) a holder of, or an applicant or proposed applicant for, a Subclass 402 (Training and Research) visa.
Note: Amendments of these Regulations that commenced on 24 November 2012 repealed the Subclass 442 (Occupational Trainee) visa. If a nomination does not identify an applicant or holder described in this subregulation, the nomination fee may be refunded: see subregulation 2.73A(7).
(2)  For subsection 140GB(2) of the Act, and in addition to the criteria set out in regulation 2.72A, the criteria that must be satisfied for the Minister to approve a nomination by the occupational trainee sponsor or the training and research sponsor are the criteria set out in:
(a)  subregulation (3); and
(b) 1 of subregulations (4), (5) and (6).
(3)  The Minister is satisfied that the person making the nomination is an occupational trainee sponsor or the training and research sponsor.
Occupational training required for registration
(4)  The Minister is satisfied that:
(a) the nominated occupational training is necessary for the identified visa holder or applicant to obtain registration, membership or licensing in Australia or in the home country of the identified visa holder or applicant in relation to the occupation of the identified visa holder or applicant; and
(b) the registration, membership or licensing is required in order for the identified visa holder or applicant to be employed in the occupation of the identified visa holder or applicant in Australia or in the home country of the identified visa holder or applicant; and
(c)  the duration of the occupational training is necessary for the identified visa holder or applicant to obtain registration, membership or licensing in Australia or in the home country of the identified visa holder or applicant in relation to the occupation of the identified visa holder or applicant, taking into account the prior experience of the identified visa holder or applicant; and
(ca) the occupational training is workplace based; and
(d)  the identified visa holder or applicant has appropriate qualifications, experience and English language skills to undertake the occupational training.
Occupational training to enhance skills
(5)  The Minister is satisfied that:
(a) the nominated occupational training is:
(i) a structured workplace training program; and
(ii) specifically tailored to the training needs of the identified visa holder or applicant; and
(iii) of a duration that meets the specific training needs of the identified visa holder or applicant; and
(ba) the nominated occupational training is in relation to an occupation specified, with its corresponding 6-digit code, by the Minister in an instrument in writing for this paragraph; and
(c) the identified visa holder or applicant has the equivalent of at least 12 months full-time experience in the occupation to which the nominated occupational training relates in the 24 months immediately preceding the time of nomination; and
(d) the identified visa holder or applicant has appropriate English language skills to undertake the nominated occupational training.

Occupational training for capacity building overseas
(6)  The Minister is satisfied that:
(a) the nominated occupational training is not available in the home country of the identified visa holder or applicant; and
(b) 1 of the following requirements is met:
(i) the nominated occupational training is supported by a government agency or the government of a foreign country that is the home country of the identified visa holder or applicant;
(ii) the identified visa holder or applicant 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; or
(iii) the identified visa holder or applicant:
(A) is a student of a foreign educational institution; or
(B) has graduated from a foreign educational institution during the 12 months preceding the time of nomination;
and the nominated occupational training is to undertake research in Australia that is closely related to the course in which the student is or was enrolled at the foreign educational institution; and
(c) the nominated occupational training is a structured workplace-based training program specifically tailored to the identified visa holder or applicant; and
(d) the nominated occupational training will give the identified visa holder or applicant additional or enhanced skills in the occupation to which the nominated occupational training relates; and
(e) the identified visa holder or applicant intends to return to his or her home country after successfully completing the nominated occupational training; and
(f) the identified visa holder or applicant has appropriate English language skills to undertake the nominated occupational training.

[45]Diversional Therapists (Overview), Australian Government, accessed 28 May 2019.

[2019] AATA 5379

13 August 2019

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

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