Sterling Catering Service Pty Ltd (Migration)

[2022] AATA 2913

Sterling Catering Service Pty Ltd (Migration) [2022] AATA 2913 (6 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sterling Catering Service Pty Ltd

REPRESENTATIVE:  Mr Sobaran Singh (MARN: 9791702)

CASE NUMBER:  1831908

HOME AFFAIRS REFERENCE(S):          BCC2018/3442647 CLF2018/360256

MEMBER:Warren Stooke AM

DATE:6 July 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 6 July 2022 at 5:57pm

CATCHWORDS

MIGRATION – nomination of a position – position of Restaurant Manager – evidence of meeting training obligations – limited Occupational Training Plan – no assessment process – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 140
Migration Regulations 1994, rr 2.72, 2.73

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 17 October 2018 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 11 September 2018. 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. The program of occupational training nominated in this case is for the nominated position of Restaurant Manager – ANZSCO Code: 141111. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy regulation 2.72A and 2.72B because the training plan appeared to be a generalised document that could be applicable to any individual placed in the position, rather than a structured program designed to enhance specific skill gaps that the nominee possesses and the plan contained assessed periods that all concluded on the same day.

4. The applicant appeared before the Tribunal on 29 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Rahul Maher, the nominee.

5. The applicant stated that he had not read the delegate’s decision, but he understood from the advice of his agent that the training plan was not designed.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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).

9. The applicant provided evidence that the business was registered with ASIC on 21 April 2016, as Sterling Catering Service Pty Ltd and assigned ABN: 90 612 004 547, with the advised director, Mr Dinesh Singh Panwar.

10. The applicant, Mr Dinesh Singh Panwar, stated that he is a director and chef with the business that he started in October 2012 in a partnership but changed to the new company in 2016 and that he had been working in restaurants since 2003.

11. The applicant stated that the nominee is employed with The Chutney Mary Café that is an owned and operating business of Sterling Catering Service Pty Ltd and was registered with ASIC on 1 December 2016.

12. The business provided evidence of an approved Temporary Activities Sponsor from 20 July 2017 to 20 July 2022.

13. The applicant provided evidence that the business entered into a contract with the nominee on 4 September 2018 for a 12 month Occupational Training Plan that was signed by the parties on 6 September 2018 with a salary of $47,275 and a superannuation contribution of 9.5 per cent. The applicant stated that the nominee was appointed as an Acting Restaurant Manager.

14. The applicant stated that the restaurant employs 12 to 15 employees that includes 3 permanent chefs, but after covid the staff was reduced with staff leaving.

15. The applicant stated that he employs 4 Australian’s with the balance on visas.

16. The applicant stated that the nominee commenced as a waiter in 2016 and then provided a lead to staff as the floor manager with the director controlling the kitchen staff in his capacity as the head chef.

17. The applicant stated that the business opens for 7 days and another chef will lead the kitchen when he is personally not available.

18. The applicant provided the Department with evidence of a proposed training period of 12 months, together with a training plan that included a schedule of activities and subject areas to be included in the training.

19. The applicant stated that the training plan was developed by Mary Bach and she was intended to do the training of the nominee in the position of Restaurant Manager for the 407 requirements but the college where Ms Bach was engaged stopped undertaking 407 related training.

20. The applicant stated that the same training plan is intended to be used but Stanley College does not have enough time with exam time and training.

21. The applicant provided evidence that the nominee had undertaken a Pearson English language test on 24 March 2018 with a score of 71.

22. The applicant provided evidence that the nominee, Mr Maher, is paid $26 to $27 per hour and for the last 6-8 weeks has worked about 20 hours per week.

23. The applicant stated that the business makes superannuation contributions to Hostplus.

24. The applicant stated that the restaurant opens at 4.30pm and that the nominee’s duties include opening the business to check the bookings; making the rosters and closing the restaurant that operates to 9.30pm from Sunday to Thursday and to 10.00pm for Friday and Saturday.

25. The applicant stated that he had provided the training, although not qualified to provide the training.

26. The applicant stated that the plan for the 407 was to have a proper coach because of proper training and that the business had not provided professional training due to covid. At this juncture the Tribunal noted that Covid did not arise formally in Australia until March 2020 and for a significant period Western Australia was unaffected.

27. At the end of evidence, the applicant sought more time to prepare a training plan.

28. The Tribunal refused the request and noted that the applicant had had almost three and one half years to undertake the training.

    Evidence of Mr Rahul Maher (the Nominee)

29. The nominee stated that he understood the visa application had been refused because the training plan was not as strong as it was supposed to be.

30. The nominee stated that he arrived in Australia in August 2009 and completed high school and a Hospitality Management Diploma.

31. The nominee stated that he commenced work with Chutney Mary Café in May 2016 as a waiter and has been the Restaurant Manager for the last two years.

32. The nominee stated that he has not undertaken professional training but the owner, Dinesh, helps from the kitchen.

33. The Tribunal asked what training had been undertaken and he responded that he is learning by himself and not through a professional and this included budgets and dealing with the negative response from clients.

34. The nominee referred to the training plan that outlined functions to be included in training.

35. The nominee stated that he was on a temporary visa and planned to go back to India at the end of 12 months.

36. The nominee stated that he had applied for an Expression of Interest relating to a 190 visa.

37. The Tribunal asked the nominee if the representative had advised the nominee of the impact of a decision (in this case) regarding his 190 visa application if the Tribunal were to affirm the decision of the delegate. The nominee did not provide a response of understanding.

    Representative Submission

38. The Tribunal invited the Representative to make a submission and he acknowledged that the training plan had not been reviewed since the delegate’s decision.

39. The Tribunal noted that the training plan was regarded as inadequate in the delegate’s decision and that in the period since the decision the applicant had not sought to address the findings regarding the inadequacy of the original training plan.

40. The Tribunal is not satisfied that the proposed training plan submitted to the Department prior to the decision of the delegate, which has not changed, is adequate for the following reasons:

    a.The training plan does not address the skills gap of the nominee;

    b.The training plan does not identify the elements of the plan identified for the needs of the nominee and has rather been presented as a list of subjects typical of an academic curriculum, that conclude on a common date;

    c.The training plan does not have an assessment process for the nominee to identify the effectiveness of the learning and address the skills deficiencies identified for the trainee;

    d.The implementation of the training plan has not been put in place under the supervision of an accredited skilled instructor, who is accountable for the execution and outcomes of the training, but rather has been addressed ad hoc by the owner of the business, who undertakes chef duties in the kitchen and is responsible for the overall operation of the business and is not a professional trainer for a Restaurant Manager – ANZSCO Code: 141111 position.

41. Overall, the Tribunal is not satisfied that the proposed training plan is consistent with the requirements of cl. 407 expectations or suitable for the proposed purpose the applicant stated was the intention of the plan.

42. Based on available evidence, the Tribunal is not satisfied that the business’s nominated program is offered as a genuine training opportunity for a purpose referred to in r.2.72B of the Regulations, in this case, occupational training to enhance the nominee’s skills as set out in r.2.72B(3) of the Regulations. Therefore, the Tribunal finds the requirements of r.2.72A(16) of the Regulations are not met.

43. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for its nomination to be approved. Accordingly, the decision under review must be affirmed.

    decision

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

    Warren Stooke AM
    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.