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

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).
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).
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.
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).
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.
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.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ozindo Group Pty Ltd (Migration)

Details

AGLC: Ozindo Group Pty Ltd (Migration) [2021] AATA 4036
Case: [2021] AATA 4036
Decision Date: 19 October 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Ozindo Group Pty Ltd for approval of a nomination for a Subclass 407 (Training) visa. The nomination proposed a structured training program for Mr Javier Jose Pacheco Royeth, an applicant for the occupation of chef, with the stated objective of enhancing his existing skills. The delegate had previously refused to approve the nomination, a decision that Ozindo Group Pty Ltd sought to have reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the nominated training program met the requirements of regulations 2.72A and 2.72B of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the proposed training opportunity was genuine and if it was structured to sufficiently enhance the nominee's skills, consistent with the requirements for a Subclass 407 visa. This involved assessing whether the training plan adequately addressed the nominee's existing skill set and demonstrated a clear progression in difficulty and complexity over the proposed training period.

The Tribunal reasoned that for a training program to be considered genuine and effective under the regulations, it must be structured to demonstrably increase the nominee's skill level. This requires the duration and content of the training, including both practical and theoretical components, to align with the skill level described in the Australian and New Zealand Standard Classification of Occupations for the nominated occupation. The Tribunal noted that while policy guidelines, such as those in PAM3, could offer guidance, they were not binding and could not override the explicit wording of the legislation. In this instance, the Tribunal was not satisfied that the proposed training plan, as presented, met the criteria for enhancing the nominee's skills to the required standard.

Consequently, the Tribunal affirmed the delegate's decision not to approve the nomination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE 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) 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. 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. 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]. 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.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to approve the nomination.Antonio DronjicMember

Ratio Decidendi

Legal Principle Established

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