Peterpans Backpacker Adventure Travel Pty Ltd (Migration)

Peterpans Backpacker Adventure Travel Pty Ltd (Migration) [2019] AATA 1049 (27 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Peterpans Backpacker Adventure Travel Pty Ltd
CASE NUMBER:  1830323
HOME AFFAIRS REFERENCE(S):           CLF2018/358962
MEMBER:Susan Trotter
DATE:27 March 2019
PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 27 March 2019 at 6:03pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Customer Service Manager – sponsorship bar imposed and served many years ago – proposed occupational training – structured workplace training program – specifically tailored to training needs of nominee – individual skills audit – specific deficiencies addressed – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 140GB
Migration Regulations 1994 (Cth), rr 2.72, 2.72A, 2.72B

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 27 September 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
A nomination for a Training Position is made under s.140GB of the Act and r.2.72A and r.2.72B of the Regulations. Regulation 2.72B(3) prescribes the criteria that must be satisfied for the Minister to approve a nomination for occupational training to enhance skills. These criteria are extracted in the attachment to this decision.
On 24 August 2018, the applicant applied for approval indicating it sought the nomination to provide occupational training to enhance the skills of the nominee, Andre Ronneburg.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72B(3) because the delegate was not satisfied the occupational training proposed is a structured workplace training program specifically tailored to the training needs of the nominee.
The applicant lodged an application for review with the Tribunal on 16 October 2018.
Mr Barry Downes, Group General Manager of the applicant, appeared before the Tribunal, on behalf of the applicant, on 20 March 2019, to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent who also attended the hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
ISSUES
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 r.2.72A and r.2.72B are met. Subregulations 2.72A(3) to (16) are required to be met.
The issues to be determined, as relevantly required by r.2.72A(3) to (16) and r.2.72B, are as follows:
(a) Is the applicant a temporary activities sponsor?
(b) Was the nomination made in accordance with r.2.73A of the Regulations?
(c) Will the nominee participate in the nominated program?
(d) If the nominee holds a visa, has the sponsor 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 and, if not, is it reasonable in the circumstances not to do so?
(e) Has the applicant provided information that identifies the employer or employers in relation to the nominated program including the location and contact details of each employer, the relationship between the sponsor and the employer (if not the same person), the location/s where the nominated program will be carried out and 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?
(f)    Has the applicant certified, in writing and as part of the nomination, whether or not the applicant has engaged in conduct in relation to the nomination that constitutes a contravention of s.245AR(1) of the Act?
(g) Is there no adverse information known to Immigration about the applicant or a person associated with the applicant, or if so, is it reasonable to disregard the information?
(h) Will the occupational training be provided directly by the sponsor (applicant) or are other specific requirements alternatively met?
(i)    Does the applicant not engage in, or not 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?
(j)    Does the nominee have functional English?
(k)   Is the occupational training proposed in the nomination a structured workplace training program specifically tailored to the training needs of the nominee and of a duration that meets the specific training needs of the nominee?
(l)    Is the occupational training proposed in the nomination in relation to an occupation specified, with its corresponding 6-digit code, by the Minister in a legislative instrument made for the purposes of r.2.72B(3)(b)?
(m) Is the occupational training proposed in the nomination applicable to the nominee in accordance with the specification of the occupation?
(n) Does the nominee have 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?
(o) Is the nominated program offered as a genuine training opportunity for a purpose referred to in the subregulation of r.2.72B that applies?
CONSIDERATION
The nomination application lodged on 24 August 2018, and accompanying documents, included the following details:
Nominated person:  Andre Ronneburg
Training position to be undertaken
by the nominated person:  Customer Service Manager
Occupation grouping:  Managers
Occupation (ANZSCO):  Customer Service Manager
Position type:  Full-time
Proposed period of training:  1 October 2018 to 30 September 2019
Training type:  Enhancing skills
Training details:  General or on-the-job training
Number of hours per week                  15
Training details:  Classroom based training
Number of hours per week                  8
Training details:  Supervised work
Number of hours per week                  15
Will the applicant be engaging the nominated
person as an employee?  Yes
Objectives of the proposed training:  To up skill the nominee in the Customer Service Manager occupation. See attachments.
In addition, documents including a traineeship letter of offer, CV of Mr Ronneburg, references and training plans, were provided addressing the additional or enhanced skills to be acquired by the nominated person, the main tasks, responsibilities and other information about the position, the nominee’s relevant qualifications, nominee’s relevant skills and nominee’s relevant experience.
Additionally, in response to an invitation to provide further information addressing the r.2.72B(3) material, the applicant made general and specific submissions. The specific submissions will be considered later in these Reasons. The general submissions include as follows:
(a) The applicant is an employer with $43 million turnover employing between 115 and 150 employees; including four Subclass 407 trainees and four Australia Citizens/Permanent Residents undergoing the same traineeship;
(b) The customer service manager traineeship is underlined by core customer service modules of varying nature, depth and intensity;
(c) The intent and core purpose of the training is to upskill and enhance leadership and strategic management abilities of trainees to do well in their career after completion;
(d) It is impractical for such a large, fluid organisation to produce a customised training manual for each Subclass 407 nominee;
(e) The applicant’s focus continues to be a skill identification process of a handful of candidates that have demonstrated peak potential to be part of the traineeship including the use of resources such as multiple trainers’ times, constant mentorship, travel and incidental costs in addition to remuneration; and
(f)    Each candidate undergoes a unique traineeship formula that is customised to their skills audit.
(g) The applicant has guidelines for employee training and development that underpins identification of potential leaders and managers based on performance, leadership skills and ability to advance their career through the traineeship program.
(h) As with other large organisations, it is impractical and commercially inane to draft a fully customised program or structure for each trainee. The applicant’s management staff are highly proficient in assessing a trainee’s skills and ability at the start of a traineeship, as captured in the individual’s skills audit spreadsheet.
(i)    The training matrix comprises a point based triangular skilled audit of:
1.Relevancy of the training module to the particular candidate.
2.Competency level of the candidate in each of the relevant training modules.
3.Final ability and outcome of the training module.
(j)    The applicant selects the areas of deficiencies based upon the initial assessment of the nominee to determine the length of each training module/sub module. No trainees have closely similar skills audit ratings. By way of example, a trainee with leadership potential with no experience would spend an elongated period (say four to six weeks) of on-the-job training in that module in contrast to someone more experienced who may only spend one week on that aspect.
(k)   Traineeship progress spreadsheets clearly outline a structured workplace-based training unambiguously customised, timed and delivered as per individual training needs established via the skills audit process.
Mr Downes’ evidence at hearing, and in a letter of 7 December 2018 in response to an invitation from the Tribunal to provide information showing that the applicant satisfies the criteria for the nomination to be approved, and submissions, included as follows:
(a) The applicant is a student and youth travel agency generally catering to people inbound to Australia. Their clients usually study and travel throughout Australia, New Zealand and Asia. The applicant also works a lot with language schools and with groups of Australians going on a trip such as a spring break. The applicant’s main source of business is via word of mouth. They are not a business that gets repeat business. That is why there is such a huge focus on customer service across all areas of the business to attract the word of mouth referrals.
(b) The applicant’s head office relocated from Brisbane to Melbourne about six months ago but also retains five or six offices in Brisbane. The applicant also has several core offices – Sydney, Queenstown, Byron Bay and Cairns. Some of the senior operational staff have remained in Brisbane, but the main parts of head office have moved to Melbourne. In total, the applicant has stores in 35 to 36 locations.
(c) Smart phones have changed how clients interact with the applicant and the skill set of staff has had to diversify accordingly. They are constantly adapting to new trends and resources to access their client base. It is very much a changing environment.
(d) The nominee first began working with the applicant approximately seven and a half years ago. He was the first trainee manager for the company way back before the company had training programs. The company was a lot smaller then and barely had staff induction. He has worked to build every training program they now have and has developed the management program.
(e) The Subclass 407 training program was developed about three years ago. Since then about 15 persons have gone through the scheme, averaging four to six each year.
(f)    When the nominee started with the applicant, he had good customer service and some knowledge of the industry. He had a broad and good base skill level but not specific customer service in their industry.
(g) The nominee is currently working as an assistant customer service manager in the William Street branch in Sydney.
(h) The customer service manager traineeship is underlined by core customer service modules of varying nature, depth and intensity. The applicant’s focus is on a skills identification process of a handful of candidates that have demonstrated peak potential. Significant resources such as multiple trainers’ time, constant mentorship, travel and incidental costs are covered by the applicant as well as remunerations of the trainees.
(i)    Every trainee undergoes a unique traineeship formula that is customised to their skills audit. The trainee program is usually conducted in batches of two to three employees with highly experienced trainers who make judgment calls on a daily or weekly basis as to what the trainee is to be trained in.
(j)    From a commercial point of view the applicant seeks to find people with base skills and aptitude. Their priority is to look at people with work rights and residency as that is more economical for them. However it is a very niche business and sometimes the people identified with these base skills and aptitudes do not have work rights or residency and the company therefore supports them.
(k)   Looking at the specific skills audit for the nominee,[1] it can be seen that an assessment has been made of the nominee’s ability upon commencement. Based on this assessment, a formulae for delivering the traineeship is used to determine relevancy and enhanced skills that will be imparted on completion as follows:
[1] Page 25 of the Department file
Relevancy of modules minus (Ability upon commencement) multiplied by (Identified areas of upskilling) = Module delivery period/s as indicated on the individualised traineeship spreadsheet
(l)    The specific skills audit for the nominee shows the following for each component/module of the training program:
Customer Service Cycle
While the nominee has widespread professional experience in many aspects of business, he lacks complete knowledge of the travel industry, and especially in the applicant’s customer service cycle. The first four weeks of the nominee’s traineeship is to ensure any previous bad habits are picked up and quashed and that he settles into the program with ease.
The nominee’s current role has seen him job shadow the Customer Service Manager. While the nominee is aware of the applicant’s sales cycle, there has never been any formal documented process implemented. The first four week is to ensure the nominee’s knowledge is sufficient and correct.
Retail Customer Service
The nominee’s previous positions have ensured that he already possess a fairly competent level of retail Customer Service. The nominee, like other candidates, is to spend eight week on retail customer service as this comprises the day in day out duties that all customer service officers will be performing.
Staff Motivation
The nominee worked as a full Customer Service Manager for two months at a backpacker company. During this period he had staff working under his control but did not possess the relevant skills to motivate staff to work to their maximum potential. An emphasis is to be placed on training the nominee to learn the fundamental basics of how to stimulate the minds of customer service officers under his control. The constructive criticism module will play a big part in the nominee’s development given the currently assessed actions of the nominee in this regard to have a demotivating rather than motivating effect.
Support recruitment and selection of Customer Service (CS) staff
The nominee has overseen recruitment in his most recent position with the applicant, however, the staff put forward by him were not to the standard the applicant expects. The nominee has been assessed as needing to learn the personable intricate qualified of what makes staff great rather than focussing on resumes alone. The training will include to ensure that the nominee puts into practice effectively his learning from previous experience in this regard and to develop skills to confidently interview autonomously to be a fully-fledged Customer Service Manager.
Industry complaints procedures
The nominee has handled customer complaints previously however with the high volume of customers of the applicant each year, heavy work place training is required in industry complaints procedures. The industry complaints procedures module will enable the nominee to learn the different types of complaints received in the industry and the ability to autonomously handle these compliant instead of escalating to higher management.
Staff Development
The nominee has been assisting management to induct staff. This section of training will teach the nominee to do this autonomously, including the crucial part of documenting action plans.
Manage quality customer service
This module will incorporate advanced problem solving and quality assurance to be practically applied at a strategic level and planning and will be a step up from basic customer service skills learned in earlier modules.
Manage workforce planning
The nominee has not managed workforce planning risk in previous work experience. This training aspect is vital to successful management in a retail industry where process and procedures need constant strategic adjustments drive by demographics, staff movement, seasonal variations, competitor analysis and management directives.
Manage operational risk
The nominee has not managed operational risk in previous work experience. This module covers a four week period during which the nominee will be exposed to how operational plans are conceived and developed, what factors constitute a risk matrix for an operational success or failure, how/when/why to plan and manage available resources during peak and off-peak times. The module will include role play for at least one week to demonstrate these skills.
Lead and manage team effectiveness
The nominee has led teams in previous positions resulting in a higher initial rating in his individual skills audit. However, his previous experience is from an unrelated industry and he needs a 360 degree exposure of how to establish team performance plan, and develop and facilitate team cohesion in a fast-moving sector especially when staff retention rates can significantly fluctuate. The nominee’s core training aspects will be to identify and communicate shared corporate purpose and goals, staff specific plans based on individuals strengths, how to generate and retain trust within team players and also the employer. The nominee’s learning will involve cultivating strong, shared leadership abilities. The module of four weeks is not necessarily enough for this aspect however the nominee will be exposed to as many aspects as possible in real-time commercial situations.
Manage personal work priorities
This module will enable the nominee to reflect on his training and plan for his career.
(m) The nominee’s individual skills audit outlines precisely what the nominee will be exposed to, timing, competency levels (start, desired and achieved upon completion) and detailed information on location.
(n) Every submodule is followed up with an assessment and fully loaded evaluation process which provides feedback, re-visit of modules in theory where required, gaps addressed through further on-the-job training with high focus and re-marking for presentation to management.
(o) The training will mainly be carried out at the William Street branch in Sydney but given there are also other trainees in Sydney, there can sometimes be combined trainees at another office close by.
(p) It is totally disputed that the program is a generic one. The program is unique and the key document for each individual is their skills audit.
Issue 1 – Is the applicant a temporary activities sponsor?

The Tribunal has considered the Department’s records, which confirm that the applicant was approved as a temporary activity sponsor on 1 June 2017 and is approved until 1 June 2022.
The requirements of r.2.72A(3) are therefore met.
Issue 2 – Was the nomination made in accordance with r.2.73A?
Having regard to the manner in which the application was made, and notes on the Department’s file, the Tribunal is satisfied the process for nomination was made in accordance with r.2.73A. It was made on the form specified and the relevant fee was paid.
The requirements of r.2.72A(4) are therefore met.
Issue 3 – Will the nominee participate in the nominated program?
Having regard to the written material and the applicant’s oral evidence at the hearing, the Tribunal is satisfied that the nominee will participate in the nominated program.
The requirements of r.2.72A(5) are therefore met.
Issue 4 – If the nominee holds a visa, has the sponsor 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 and, if not, is it reasonable in the circumstances not to do so?
There are no secondary sponsored persons in this case so the requirements of r.2.72A(6) and (7) are not relevant.
Issue 5 – Has the applicant provided information that identifies the employer or employers in relation to the nominated program including the location and contact details of each employer, the relationship between the sponsor and the employer (if not the same person), the location/s where the nominated program will be carried out and 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?
The Tribunal is satisfied that the sponsor has provided information that identifies the employer in relation to the nominated program, the applicant, and the location and contact details of the employer. The Tribunal is satisfied that the nominated program will be carried out, in the main, on the job at the applicant’s premises based in Sydney.
The requirements of r.2.72A(8) are therefore met.
Issue 6 – Has the applicant certified, in writing and as part of the nomination, whether or not the applicant has engaged in conduct in relation to the nomination that constitutes a contravention of s.245AR(1) of the Act?
Having regard to the nomination application, the Tribunal is satisfied that the sponsor (the applicant) has certified in writing and as part of the nomination[2] that the sponsor has not engaged in conduct in relation to the nomination that constitutes a contravention of s.245AR(1) of the Act.
[2] Refer to page 3 of the Department file
The requirements of r.2.72A(10) are therefore met.
Issue 7 – Is there no adverse information known to Immigration about the applicant or a person associated with the applicant, or if so, is it reasonable to disregard the information?
‘Adverse information’ is defined in r.1.13A as follows:
(1) Adverse information about a person is any adverse information relevant to the person’s suitability as:
(a)      an approved sponsor; or
(b)      a nominator (within the meaning of regulation 5.19).
(2) Without limiting subregulation (1), adverse information about a person includes information that the person:
(a)      has contravened a law of the Commonwealth, a State or a Territory; or
(b)      is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law; or
(c)      has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory authority that administers or enforces the law; or
(d) has become insolvent (within the meaning of section 95A of the Corporations Act 2001); or
(e)      has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a bogus document, or information that is false or misleading in a material particular.
(3) Nothing in this regulation affects the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).
(4) In this regulation:
information that is false or misleading in a material particular means information that is:
(a)   false or misleading at the time it is given; and
(b)   relevant to any of the matters the Minister may consider when making a decision under the Act or these Regulations, whether or not the decision is made because of that information.
Note: For the definition of bogus document, see subsection 5(1) of the Act.
The use of the word ‘includes’ in r.1.13A(2) indicates the above list is not exhaustive. Other information which is in some way adverse and relevant to the sponsor’s suitability as an approved sponsor or as a nominator could be considered ‘adverse information’.
Even if such adverse information is known to Immigration, it may be disregarded if reasonable to do so. The Regulations do not further define ‘reasonable’ in this context, but the Explanatory Statement to the Regulations introducing this requirement states that it may be ‘reasonable’ to disregard information if, for example, the person had developed practices and procedures to ensure the relevant conduct was not repeated.
The applicant’s representative advised the Tribunal at hearing that a bar had previously been imposed and served by the applicant many years ago. This is consistent with information from the Department. There is minimal information before the Tribunal in relation to this bar. Given the bar imposed is many years past, the Tribunal is satisfied that it is reasonable to disregard this adverse information. The Tribunal is otherwise satisfied that there is no adverse information known to Immigration about the sponsor or a person associated with the sponsor.
Therefore the requirements of r.2.72A(11) are met.
Issue 8 – Will the occupational training be provided directly by the sponsor or are other specific requirements alternatively met?
Mr Downes told the Tribunal that the training is all being conducted by internal trainers employed by the applicant and that no training is to be outsourced.
The Tribunal is satisfied on this basis that the occupational training will be provided directly by the applicant.
The requirements of r.2.72A(12)(a) and r.2.72A(12) are therefore met.
Issue 9 – Does the applicant 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?
Mr Downes’ evidence was that where possible the applicant elects to employ and train Australian citizens and permanent residents, but that due to the nature of the business these roles cannot be sourced exclusively from Australian citizens and permanent residents. Nonetheless, generally at least half of the trainees are Australian citizens and permanent residents.
Having taken all matters into account, the Tribunal is satisfied that there is no evidence before the Tribunal to indicate that the sponsor has engaged in, or intends 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.
Accordingly the Tribunal is satisfied the requirements of r.2.72A(13) are met.
Issue 10 – Does the nominee have functional English?
‘Functional English’ is defined in s.5(2) of the Act to include if a person provides prescribed evidence of the person’s English language proficiency. This includes evidence of having achieved an International English Language Testing System (IELTS) average band score of at least 4.5 in a test conducted not more than 12 months before lodging the relevant application.
The evidence before the Tribunal shows that the nominee applied for a Class GF Training visa (Subclass 407) on the same date as the nomination application was lodged, 24 August 2018.
Following the hearing, the applicant provided the Tribunal with an IELTS test result for the nominee, dated 12 September 2018, for a test conducted on 4 September 2018, showing an overall band score of 7.0 with scores of 6.5, 6.5, 6.0 and 8.0 in the components of listening, reading, writing and speaking respectively.
The test date of 4 September 2018 is not more than 12 months before 24 August 2018 and the required score of at least 4.5 is met.
The nominee therefore has functional English and r.2.72A(14) is met.
Issue 11 – Is the occupational training proposed in the nomination a structured workplace training program, specifically tailored to the training needs of the nominee of a duration that meets the specific training needs of the nominee?
Having considered all the material before it, for the following reasons, the Tribunal is satisfied the occupational training is a structured workplace training program that is specifically tailored to the training needs of the nominee, and that the duration proposed meets the specific training needs of the nominee.
The applicant has provided a document entitled ‘407 Traineeship Program’, incorporating a number of modules to be read in conjunction with each trainee’s individual skills audit. Having had regard to the Traineeship Program, the Tribunal is satisfied that it is a structured workplace training plan.
The nominee’s individual skills audit shows that, based upon the nominee’s existing skills and competencies, and the requirements of the role, the nominee will undertake differing periods of time for each module. The Tribunal is satisfied on the evidence that the trainee plan has been specifically tailored to the needs of the nominee.
Further, having had regard to the nominee’s currently assessed competencies and the structure of the program over a twelve month period focussing on areas where most knowledge acquisition is needed by the nominee and areas of most importance to the occupation, the Tribunal is satisfied that the duration proposed meets the specific training needs of the nominee.
Based on the above findings the Tribunal is satisfied the requirements in r.2.72B(3)(a) are met.
In reaching this conclusion, the Tribunal acknowledges the concerns raised by the delegate in their decision. However, the Tribunal has had the benefit of the applicant’s Group General Manager specifically explaining the training program, and in particular the individual skills audit for the nominee, which shows that there is a detailed training plan with a very specific assessment of the nominee’s skills. Further, the Tribunal is satisfied that the letter of Mr Downes of 7 December 2018 specifically addresses the nominee’s deficiencies in certain areas to be addressed by the specifically tailored plan for him. The Tribunal accepts that the applicant operates in a niche market and that the training plan as specifically modified based on the nominee’s current competencies takes this into account to upskill the nominee in the particular niche industry of the applicant.
Issue 12 – Is the occupational training proposed in the nomination in relation to an occupation specified, with its corresponding 6-digit code, by the Minister in a legislative instrument made for the purposes of r.2.72B(3)(b)?
The occupation is Customer Services Manager (ANZSCO 149212). Having regard to the relevant legislative instrument, IMMI 18/050, the Tribunal is satisfied 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 r.2.72B(3)(b). The Tribunal has considered the instrument and there are no matters specified for the occupation.
Therefore r.2.72B(3)(b) is satisfied.
Issue 13 – Is the occupational training proposed in the nomination applicable to the nominee in accordance with the specification of the occupation?
The Tribunal is satisfied the nominee has completed a Bachelor’s Degree in Business Administration and Management in Germany between 2012 and 2017, and has previously worked in a number of service and management roles with backpacker and travel companies from 2015 to date, including his current role as an Assistant Customer Services Manager since July 2017 with the applicant (with an intervening role as a Customer Service Manager with a backpacker business for two months between August and October 2017). The Tribunal notes the ANZSCO description for the occupation of Customer Services Manager indicates the skill level is an AQF Associate Degree, Advanced Diploma or Diploma or alternatively at least three years of relevant experience in substitution for formal qualifications. There are no other matters specified for the occupation in IMMI 18/050. Having regard to the nominee’s qualifications and experience, the Tribunal is satisfied the occupation is applicable to the nominee in accordance with the specification of the occupation.
Accordingly the requirement in r.2.72B(3)(ba) is met.
Issue 14 – Does the nominee have 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?
The nominee commenced working for the applicant in July 2017 and has worked with the applicant as an Assistant Customer Service Manager since that time, with an intervening role as a Customer Service Manager with a backpacker business for two months between August and October 2017. The Tribunal is therefore satisfied that 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.
Therefore r.2.72B(3)(c) is met.
Issue 17 – Is the nominated program offered as a genuine training opportunity for a purpose referred to in the subregulation of r.2.72B that applies?
Having considered the material overall, the Tribunal is satisfied that the applicant genuinely intends to offer the nominee a genuine training opportunity which will benefit both the nominee and the applicant. Accordingly the Tribunal is satisfied that the nominated program is offered as a genuine training opportunity for a purpose referred to in r.2.72B, in this case occupational training to enhance skills.
Therefore the requirements of r.2.72A(16) are met.
Conclusion
As the Tribunal has found that r.2.72A(3), (4), (5), (6), (7), (8), (10), (11), (12), (13), (14), (15)[3] and (16) are met (and r.2.72A(9) is not relevant), the Tribunal is satisfied the criteria for approval of a nomination for a Subclass 407 (Training) visa set out in r.2.72A are met.
[3] Incorporating r.2.72B(3)(a), (b), (ba) and (c).
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.
Susan Trotter
Member
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
Reg 2.72A Criteria for approval of nomination — Subclass 407 (Training) visa
(1) This regulation applies to a person:
(a) who is:
(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 person is:
(a) a temporary activities sponsor; or
(b) if the nomination is made on or before 18 May 2017 - a professional development sponsor or a training and research 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.
Reg 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.
Reg 2.73A Process for nomination — Subclass 407 (Training) visa
(1) This regulation applies to a person who is nominating, under paragraph 140GB(1)(b) of the Act, a program of occupational training in relation to the holder of, or an applicant or proposed applicant for, a Subclass 407 (Training) visa.
(2) For the purposes of subsection 140GB(3) of the Act, the person may nominate the program in accordance with a process specified in a legislative instrument made by the Minister for the purposes of this subregulation.
(3) A legislative instrument made for the purposes of subregualtion (2) may specify any of the following:
(a) a form for the nomination;
(b) a fee which must accompany the nomination;
(c) any other requirements in relation to the nomination.

[2019] AATA 1049

27 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction