Ozindo Group Pty Ltd (Migration)

[2021] AATA 4036

Ozindo Group Pty Ltd (Migration) [2021] AATA 4036 (19 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ozindo Group Pty Ltd

CASE NUMBER:  1927236

HOME AFFAIRS REFERENCE(S):          BCC2019/4295427

MEMBER:Antonio Dronjic

DATE:19 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 19 October 2021 at 11:15am

CATCHWORDS
MIGRATION – application for approval of nomination of position – occupational training – structured program to enhance existing skills – documentary evidence and submissions provided after extended due date – decision without hearing – proposed training period expired – no revised plan provided – difficulty recruiting staff in regional location – visa subclass not intended to fill labour shortages – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), rr 2.72A(16), 2.72B(3)(a)(i)

CASES
Alimi v Minister for Immigration [2007] FMCA 1520
Chow v MIMIA [2002] FCA 1429
Durzi v MIMIA [2006] FCA 1767
Hasran v MIAC [2010] FCAFC 40
Lobo v MIMIA [2003] FCAFC 168
Moller v MIAC [2007] FMCA 168
Sakhno v MIAC [2007] FMCA 1492
Re Drake and MIEA (No 2) (1979) 2 ALD 634
Vishnumolakala v Minister for Immigration [2006] FMCA 1209

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 12 September 2019 to refuse to approve the nomination made by Ozindo Group Pty Ltd under s 140GB of the Migration Act 1958 (the Act) as well as reg 2.72A and reg 2.72B of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval of the nomination on 28 August 2019. In its nomination lodged with the Department, the applicant indicated it was seeking approval to provide occupational training to enhance the skills of the nominee, Mr Javier Jose Pacheco Royeth in the occupation of Chef (ANZSCO 351311).

3. A nomination for a training position is made under s 140GB of the Act as well as reg 2.72A and reg 2.72B of the Regulations. Relevant criteria from the Regulations are extracted in Attachment A to this decision.

4. The delegate refused the nomination on the basis that reg 2.72A(16) was not satisfied. The delegate was not satisfied that the nominated program is offered as a genuine training opportunity to enhance the nominee’s existing skills as per reg 2.72B(3)(a).

5. The applicant applied for review of the primary decision on 26 September 2019 and provided a copy of the Department’s decision. The applicant was represented in relation to the review by its registered migration agent.

6. On 17 September 2021, the Tribunal sent a letter to the applicant which contained a request to the applicant to provide information in writing demonstrating that the nomination meets all the requirements of the criteria in reg 2.72A and reg 2.72B(3). The request was made pursuant to s 359(2) of the Act. A copy of the relevant Regulations was included in the letter.

7. The s 359(2) invitation was sent to the applicant and advised that, if the information was not provided in writing by 1 October 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. On 28 September 2021, the applicant requested, and the Tribunal granted an extension of time to provide information in writing until 8 October 2021.

9. The applicant had not provided the requested information by the due date as extended by the Tribunal. In these circumstances s 359C applies, and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40.

10. On 11 October 2021, the applicant submitted documentary evidence and submissions in support of the review application. The list of documents is attached to this decision record and marked as Attachment B.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 reg 2.72A and reg 2.72B are met.

    Is the proposed training genuine? reg 2.72A(16)

13. It is a requirement of reg 2.72A(16) of the Regulations that the Minister is satisfied the nominated program is offered as a genuine training opportunity for a purpose referred to in reg 2.72B of the Regulations. As noted above, this was the basis on which the delegate refused the applicant’s nomination.

14. The application form records that the applicant applied for approval of a nomination to ‘enhance the skills’ of Mr Javier Jose Pacheco Royeth in the occupation of chef. It was proposed that the training would be supervised work of 38 hours a week at 70 Stirling Tce Albany, Western Australia, 6330. The application form states the training period will be from 2 September 2019 to 29 November 2020 and its objectives are to provide the opportunity to demonstrate skills and job readiness relevant to the nominated occupation (Chef) in an Australian workplace.

15. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision-makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]

    [1]     See Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Vishnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55].

16. The Department policy requires the training must be primarily workplace-based, must be for at least 30 hours per week (though this needs to be compared with the requirement in reg 2.72B(3)), and its accompanying training plan should acknowledge the nominee’s existing skill set and demonstrate how the nominee’s skills will be sufficiently enhanced by the training proposed. For training to be structured to increase the nominated person’s skill level, the duration and content (including the practical and theoretical components) should be consistent with the skill level as described in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for the identified occupation, and should demonstrate an increase in difficulty and complexity over the course of the training program.

17. The skill levels of Chef as identified in ANZSCO (351311) include:

    ·AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    ·At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

18. It is not necessary for a nominee to be skilled to the level outlined by ANZSCO when considering a nomination for an Occupational Trainee position. It is however required, that the nominee has a minimum of 12 months relevant experience in the occupation in the 24 months preceding the time of nomination (reg 2.72B(3)(c)). Likewise, a skilled individual may be eligible for further training to enhance their skills provided this is sufficiently justified in the training plan and they meet other eligibility requirements as defined by reg 2.72B(3).

19. The Tribunal notes that when assessing an application under reg 2.72B, it must be satisfied the training proposed features a documented structured training plan that is uniquely tailored to the training needs of the nominee and is for a timeframe necessary for the nominee to enhance their skills in the nominated occupation.

20. The training plan provided with the visa application in August 2019 provided that the training period will be from 2 September 2019 to 29 November 2020 and its objectives are to provide the opportunity to demonstrate skills and job readiness relevant to the nominated occupation (Chef) in an Australian workplace.

21. Despite being invited to do so by the Tribunal’s letter of 17 September 2021, the applicant has failed to provide information in writing as to how an additional employment period would impact the proposed training program, including which elements of the program provided are to be modified or are no longer necessary, and/or how this would impact the proposed training duration. The Tribunal notes that the proposed 12-month training period expiring on 29 November 2020 has already been exceeded by almost 11 months.

22. The applicant has not submitted a revised training plan, with details of the further training it proposes, or an up-to-date audit showing why further training is necessary.

23. Based on the evidence before it, the Tribunal finds that the submitted training plan is no longer appropriate and does not reflect what further training is required. The Tribunal is not satisfied that there is currently in place a structured training program adjusted to meet any further training needs of the nominee, and considering further acquired skills through working full time on the job from the start of the application in September 2019.

24. The Tribunal is of the view the applicant has had a significant period since September 2019 to provide further on-the-job training for the nominee, and to make provision for any further identified skill deficiencies.

25. In his letter dated 10 October 2021, the company director, Mr Davey, stated inter alia that the business, which is in regional Australia, has struggled to find chefs since its inception in 2015. He further stated that, during the past 18 months, the nominee’s ability has developed significantly, and he has become an essential employee for the survival of the business. It was submitted that there is a substantial shortage of chefs in WA and that the business is unable to send the nominee overseas in order to apply for a temporary work visa as this would be impractical because of the COVID-19 pandemic and travel restrictions imposed by the Government.

26. While appreciating the difficulties in recruiting chefs in WA (and other parts of Australia), the Tribunal observes that the Occupational Trainee stream program was not designed to fill labour shortages and it was not appropriate for persons whose sole intention is to undertake work. The Occupational Trainee stream program does allow the visa holder to undertake a structured and specifically tailored training program to enhance their skills, however it is not intended for the purposes of facilitating a long-term employment opportunity, whereby skills are developed incidentally through continued work experience.

27. According to the organisational chart provided by the applicant, in addition to Mr Pacheco Royeth (the nominee), the restaurant employs a head chef who is a holder of a Subclass 482 visa; another full-time chef, Mr Lee who is a holder of a bridging visa A; one casual chef; and one full-time cook.

28. The Tribunal notes that, according to the nominator’s payroll summary for the period from 1 July 2021 to 10 October 2021, the nominee’s gross salary was $16,153. At the same time, the other full-time chef, Mr Lee, who is not stated to be receiving training by the business, was paid a gross salary of $10,653 during the same period.

29. By reference to the information presently before it, the Tribunal is not satisfied that the nominee’s stay in Australia is for genuine training purposes. Rather, it appears to be a process to allow him the opportunity to remain in Australia.

30. Based on the evidence before it, the Tribunal is not satisfied there is a structured workplace training program in place for occupational training for the nominee at the time of its decision.

31. Accordingly, reg 2.72B(3)(a)(i) is not met.

    Conclusion

32. Having considered the material overall, the Tribunal is not satisfied that the nominated program is offered as a genuine training opportunity for a purpose referred to in reg 2.72B, in this case, occupational training to enhance skills.

33. As a result of this finding, the Tribunal is not satisfied the applicant meets reg 2.72A(16).

34. As the Tribunal is not satisfied that the applicable criteria for approval of a nomination for a Subclass 407 (Training) visa as set out in reg 2.72A and reg 2.72B(3) are met, the application therefore cannot succeed.

    DECISION

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

    Antonio Dronjic
    Member

    
    

Attachment A – Extract from the Migration Regulations 1994

r.2.72A Criteria for approval of nomination — Subclass 407 (Training) visas 

(1) This regulation applies to a person:

(a) who is, or has applied to be, a temporary activities sponsor; and

(i) a temporary activities sponsor; or

(ii) if the nomination referred to in paragraph (b) is made on or before 18 May 2017 - a professional development sponsor or a training and research 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.

Criteria 

(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 2.75(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.

r.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

Attachment B: Document List

·Representative’s Letter Dated 11 October 2021

·Business and Position Statement Dated 10 October 2021

·ASIC Company and Historical Extract

·Business Lease

·Business Organisation Chart

·Profit and loss Statement for the period 01 Jul 2020 to 30 Jun 2021

·Business Activity Statement for the period Apr 2021 to Jun 2021

·ANZSCO ABS extract: 351311 Chef [Page 58-59]

·Position Description (Chef)

·Employment Contract dated 7 June 2021

·Payroll Summary for the period 01 Jul 2020 to 10 Oct 2021

·Nominee’s Payslips for the period 02 Aug 2021 to 26 Sept 2021

·Business Menu