Reality Accountants Pty Ltd (Migration)

[2022] AATA 4334

Reality Accountants Pty Ltd (Migration) [2022] AATA 4334 (22 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Reality Accountants Pty Ltd

REPRESENTATIVE:  Ms Samantha Vitale (MARN: 0964981)

CASE NUMBER:  1920852

HOME AFFAIRS REFERENCE(S):          BCC2019/2994416

MEMBER:C. Packer

DATE:22 November 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 22 November 2022 at 5:29pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – applicant failed to provide the requested information within the prescribed period – not satisfied that the nominated program is offered as a genuine training opportunity for the purpose of enhancing the nominee’s skills – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, rr 2.72, 2.73

CASES
Hasran v MIAC [2010] FCAFC 40

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 11 July 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).

2. The applicant applied for approval on 12 June 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.

3. On 17 August 2022 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the applicant to provide updated and current information that addressed the requirements in r.2.72A and r.2.72B. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 31 August 2022 the Tribunal may make a decision on the review without taking further steps to obtain the information, and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

4. On 31 August 2022 the applicant provided some of the requested information. However, information requested was not provided and a submission of 31 August 2022 stated in part:

   2. We will provide the sponsorship approval letter as soon as possible
   3. organizational chart,
   We will provide the organizational chart as soon as possible
   8. Information about who will provide the training and where it will be provided,
   including the location and contact details of each employer, and if the applicant
   is not the employer, the applicant’s relationship with the employer;
   The nominee will be working at suite 308/ 379-383 Pitt Street Sydney NSW. We will provide additional information as soon as possible
   Please note we will be providing all documents pertaining to the applicant’s current skill level, including his resume, as soon as possible

5. The applicant did not provide the current information requested:

   3. Information about the applicant’s current organisational structure and where the nominee sits, or will sit, in relation to that structure;
   · For example, an organisational chart that includes all the applicant’s
   current and proposed employees, their position title and duties, and
   whether they are an Australian citizen, permanent resident or
   temporary visa holder.
   6. Information that demonstrates the applicant 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;
   · For example, information about employment and training
   opportunities offered to Australian citizens and/or permanent
   residents.
   9. If the nominated program is to enhance skills (reg 2.72B(3)), information about:

   b. whether the training is specifically tailored to the training needs of the
   nominee and is of a duration that meets these needs;
   · For example, an analysis of the nominee’s current skills and
   training needs, a timetable of the proposed program and
   activities, and the nominee’s current and proposed contract of
   employment including a detailed position description.
   c. the specified occupation, and corresponding 6-digit code, that the
   proposed training program relates to; and
   d. the nominee’s previous experience including information about whether the
   nominee has completed at least 12 months full-time experience in the
   occupation to which the occupational training relates during the 24 months
   immediately preceding the time of lodgement of the nomination.
   · For example, the nominee’s CV and work reference letters

   relating to the nominee’s experience.

6. The applicant did not provide the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the 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 them to appear: Hasran v MIAC [2010] FCAFC 40.

7. On 11 November 2022 the Tribunal advised the applicant that before making a decision, the Tribunal was giving the applicant time until 21 November 2022 to provide any additional information. However, the Tribunal has not received a response. The Tribunal has decided to proceed to a decision without providing further time to provide information.

8. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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)

11. 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.

    Occupational training to enhance skills (reg 2.72B(3))

12. 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)).

13. The applicant applied for approval on 12 June 2019 and provided a training plan dated 11 June 2019 as well as information current to mid-2019.

14. On 17 August 2022 the Tribunal wrote to the applicant inviting the applicant to provide updated and current information that addressed the requirements in r.2.72A and r.2.72B.

15. On 1 September 2022 the applicant provided documents including:

    ·A submission dated 31 August 2022

    ·ASIC documents concerning the business

    ·The nominee’s VEVO, English language tests and police clearance

    ·A training plan, undated

16. The training plan produced to the Tribunal copies the training plan provided in June 2019, but with a different address given for the location of training.

17. There is no information before the Tribunal that shows the nominee’s employment since mid-2019, now a lengthy period of more than three years and five months.

18. There is no information before the Tribunal that shows the nominee’s current skill level or his current training needs, if any.  

19. There is no information before the Tribunal that shows the applicant in fact currently proposes to provide the training. The training plan produced to the Tribunal is merely a copy of the training plan from June 2019. Other information that may have shown an intention by the applicant to provide training, such as a current organisational chart and current information about who will provide the training including the current contact details of each employer, is not before the Tribunal.

20. In sum, based on the very limited current information before it, the Tribunal is not satisfied that the training program first proposed in mid-2019 is 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)).

21. 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.

    Genuine training opportunity – reg 2.72A(16)

22. Regulation 2.72A(16) requires that the nominated program is offered as a genuine training opportunity for a purpose referred to in the subregulation of reg 2.72B that applies. In this case, reg 2.72B(3) applies.

23. In light of the foregoing discussion about the lack of current information concerning the nominee’s employment since mid-2019, the nominee’s current skill level or his current training needs, if any, and information that shows the applicant in fact currently proposes to provide the training- the Tribunal is not satisfied that the nominated program is offered as a genuine training opportunity for the purpose of enhancing the nominee’s skills.

24. For these reasons, reg 2.72A(16) is not met.

    Activities will have no adverse consequences for Australians – reg 2.72A(13)

25. Regulation 2.72A(13) requires 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.

26. There is no information before the Tribunal that shows the applicant in fact currently proposes to provide the training. The training plan produced to the Tribunal is merely a copy of the training plan from June 2019. Other information that may have shown an intention by the applicant to provide training, such as a current organisational chart and current information about who will provide the training including the contact details of each employer, is not before the Tribunal. There is no current information that shows the sponsor’s activities since mid-2019.

27. In sum, based on the material before it, the Tribunal is not 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.

28. For these reasons, reg 2.72A(13) is not met.

    Conclusion

29. 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

30. 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.