Pandori Australia Pty Ltd (Migration)

[2023] AATA 3918

Pandori Australia Pty Ltd (Migration) [2023] AATA 3918 (19 July 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Pandori Australia Pty Ltd

REPRESENTATIVE:  Mr Sukhjinder Pal Singh (MARN: 0960676)

CASE NUMBER:  1932726

HOME AFFAIRS REFERENCE(S):           BCC2019/4894224

MEMBER:  C. Packer

DATE:  19 July 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 19 July 2023 at 1.24pm

CATCHWORDS

MIGRATION – Employer Nomination – approval of nominated program of occupational training – Cook – purpose of occupational training – at least 12 months of full-time experience in the occupation – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 140GB
Migration Regulations 1994 (Cth), rr 2.72A, 2.72B

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 5 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).

1. The applicant applied for approval on 30 September 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 reg 2.72A of the Regulations. Regulation 2.72A prescribes criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision.

1. The program of occupational training nominated in this case concerns the nominee Bachitar Singh and is to enhance the skills of Cook 351411. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy regulation 2.72B(3)(c).

1. The applicant appeared before the Tribunal on 19 July 2023 to give evidence and present arguments. The applicant was represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 applicant is an approved work sponsor and meets the requirements in reg 2.72A: s 140GB(2).

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

1. Regulation 2.72A(15) requires that reg 2.72B applies to the nomination. Regulation 2.72B states that it applies if any of its subregulations apply. Each subregulation outlines a purpose for occupational training and includes various requirements which must be met. In this case, the applicant claims that reg 2.72B(3) applies.

1. Regulation 2.72B(3) applies if:

   ·the occupational training is a structured workplace training program; and specifically tailored to the training needs of the nominee; and of a duration that meets the specific training needs of the nominee (reg 2.72B(3)(a)); and

   ·the occupational training is in relation to an occupation specified, with its corresponding 6-digit code, by the Minister in a legislative instrument (reg 2.72B(3)(b)); and

   ·the occupation is applicable to the nominee in accordance with the specification of the occupation (reg 2.72B(3)(ba)); and

   ·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 nomination (reg 2.72B(3)(c)).

1. The Tribunal therefore considered whether the nominee, Bachitar Singh, 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 nomination.

1. Documents concerning the nominee were provided with the application and to the Tribunal. The nominee’s resume shows:

15/06/2010 to 14/06/2011 : Diploma of Commercial Cookery, Rana Cooking School, Punjab INDIA

2/06/2019 to 18/06/2019 : Certificate IV in Commercial Cookery, Victorian College of Vocational Excellence, VIC AUSTRALIA

Position: Self Employed

Employer: Family Farming Business Duration : 01-07-2015 to till date

Position: Cook

Employer: Ramesh Sharma Catering Duration: 20-06-2011 to 30-6-2015

1. References from Ramesh Sharma Catering confirm the nominee’s employment as a cook from June 2011 to June 2015.

1. On 26 June 2023 the Tribunal wrote to the applicant. The letter set out the information concerning the nominee’s experience as a cook, and advised that:

   These documents and information are relevant to the review because they show that the nominee does not have the equivalent of at least 12 months of full-time experience as a cook in the 24 months immediately preceding the time of nomination on 30

   September 2019. This would mean that reg 2.72B(3)(c) cannot be met, and the nomination of the program of occupational training cannot succeed.

1. The applicant responded on 30 June 2023 and stated in part:

I hope this letter finds you in good health and high spirits. I am writing to bring to your attention the case of Mr. Bachhitar Singh, an applicant for the position of cook at Pandoori Australia Pty. Ltd. I kindly request your consideration of his application, taking into account his unique circumstances. Mr. Singh possesses a wealth of culinary experience, with approximately 2-3 years of professional cooking experience prior to his visa restrictions.

Unfortunately, due to the conditions of his visa, he has been unable to gain formal employment within the past 24 months. However, during this period, he has been actively engaged in voluntary work related to cooking, including his invaluable assistance in my establishment. As the proprietor of Pandoori Australia Pty. Ltd, I have had the pleasure of working closely with Mr. Singh during his volunteer activities. His dedication, skills, and knowledge in the culinary arts have been evident throughout his time with us. Despite not being able to offer him a paid position due to the work restrictions on his visa, he has demonstrated remarkable commitment and enthusiasm for his craft. Moreover, it is crucial to emphasize that Mr. Singh possesses a profound understanding of our establishment's recipes and cooking techniques. His contribution to our business has been invaluable, and his departure would undoubtedly leave a significant void in our culinary operations. The trust and expertise he have developed in working alongside me would be an asset to Pandoori Australia Pty. Ltd., and his presence would greatly enhance our ability to deliver exceptional culinary experiences to our customers. In light of the aforementioned circumstances, I kindly request that you reconsider Mr. Bachhitar Singh's application for the position of cook at Pandoori Australia Pty. Ltd. His expertise, dedication, and familiarity with our establishment make him an ideal candidate for the role. Furthermore, his commitment to maintaining the highest standards in the culinary field would be a valuable addition to our team. If necessary, I am more than willing to provide any additional information or documentation that may assist in

the re-evaluation of Mr. Singh's application. I firmly believe that granting him the opportunity to work as a cook would not only benefit him personally but also contribute positively to our local culinary industry.

1. At the hearing the Tribunal discussed the requirement of reg 2.72B(3)(c) that cannot be met. The applicant discussed how difficult and time-consuming it is to get cooks. The Tribunal advised that it must apply the law and has no discretion.

1. In sum, after careful consideration of the material before it, the Tribunal finds that the nominee does not have the equivalent of at least 12 months of full-time experience as a cook in the 24 months immediately preceding the time of nomination on 30 September 2019. For these reasons, the Tribunal is not satisfied that any of the subregulations in reg 2.72B apply. Accordingly, reg 2.72A(15) is not met.

Conclusion

1. For these reasons 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

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

C. Packer 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.