Suntech Solar Pty Ltd (Migration)

Suntech Solar Pty Ltd (Migration) [2022] AATA 4159 (25 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Suntech Solar Pty Ltd
REPRESENTATIVE:  Ms Bernadette Burns (MARN: 0744805)
CASE NUMBER:  1918929
HOME AFFAIRS REFERENCE(S):          BCC2019/3028249
MEMBER:Katie Malyon
DATE:25 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 25 October 2022 at 5:11 pm
CATCHWORDS
MIGRATION – nomination – Electronic Instrument Trades Worker – applicant failed to provide the requested information within the prescribed period – nominated program was not offered as a genuine training opportunity –nominator did not provide any updated or current information –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 140GBA, 359, 360, 363
Migration Regulations 1994, r 2.72
CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 25 June 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). Relevant criteria from the Regulations are extracted in the Attachment to this decision.
The applicant, Suntech Solar Pty Ltd (the Company), applied for approval on 13 June 2019. In its nomination, the Company indicated it was seeking approval to provide occupational training to enhance the skills of the nominee, Italian national Mr Mirko Mantovani, in the occupation of Electronic Instrument Trades Worker (General) ANZSCO 342314. The proposed period of training was 2 years.
The delegate refused the nomination on the basis that, after considering Mr Mantovani’s qualifications and work experience both in Italy and Australia, it was found he had been working as an Electronic Instrument Trades Worker on a casual/labour hire basis since August 2016 including in that role with the Company since August 2017. Therefore, the nominee would not be enhancing his skills through a uniquely tailored training program as required by reg 2.27B(3)(a) but, rather, refining his skills through a long-term employment opportunity. As such, the delegate was not satisfied that the nominated program was offered as a genuine training opportunity as required by reg 2.72A(16) of the Regulations.
Inconsistent with cl 5.1 of the Tribunal President’s Practice Direction Migration and Refugee Matters, no documentation or a detailed submission was lodged in support of the Company’s claims at the time of lodgement of its review application with the Tribunal, apart from a copy of the delegate’s decision.
Tribunal’s s 359(2) letter
To enable the Tribunal to assess whether the Company meets all of the relevant requirements for approval of its nomination, on 26 July 2022 the Tribunal wrote to the Company pursuant to s 359(2) of the Act and invited it to provide updated and current information about the business and the proposed occupational training plan for its nominee Mr Mantovani. The Tribunal’s letter was sent to the person appointed to receive communications on behalf of the Company, its registered migration agent Ms Bernadette Burns.
The Tribunal’s s 359(2) letter advised the Company that, if information in writing was not received by the Tribunal on or before 9 August 2022 or, in the alternative, if it did not, on or before that date, make a request for an extension of time in which to provide the information, the Tribunal: may make a decision on the review without taking further steps to obtain the information; and, the Company would lose any entitlement he might otherwise have under the Act to appear before the Tribunal to give evidence and present arguments.
The Tribunal is satisfied that its invitation was properly dispatched to the email address of the Company’s representative. No response has been received from the Company in response to the Tribunal’s s 359(2) letter. The Company has not provided any updated and current information about its business and the proposed occupational training for Mr Mantovani. Nor has it requested additional time in which to do so. In these circumstances,
s 359C of the Act applies and, pursuant to s 360(3) of the Act, the Company is not entitled to appear before the Tribunal. If a review applicant has no entitlement to a hearing, the effect of s 363A of the Act is that the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.
Although the Company has not requested this, the Tribunal has considered whether it would be appropriate to adjourn the review under s 363(1)(b) of the Act to allow the Company additional time in which to provide evidence to support its review application. In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to the impact of the COVID-19 pandemic on many businesses, evidence that the Company meets all of the relevant requirements of reg 2.72A and reg 2.72B(3) of the Regulations is likely to be forthcoming, whether the Company has had a fair opportunity to provide the information or documents already, and the significance of the information or documents to the Company. The Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2]where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh.[4]
[1] [2002] FCA 617.
[2] 2012] FMCA 28.
[3] [2013] HCA 18.
[4] [2014] FCAFC 1.
As noted above, the Tribunal wrote to the Company under s 359(2) of the Act inviting it to provide current and updated information demonstrating that its nomination meets all the relevant requirements of the criteria in reg 2.72A and reg 2.72B(3) of the Regulations. The Company has failed to provide any of the requested information within the prescribed period set for this purpose, or seek additional time in which to do so.
In the circumstances of this case, the Tribunal considers the Company has had sufficient time to provide requested information and thereby address all of the issues arising on review. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s 359C of the Act.
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 its nomination. The Tribunal must approve the nomination if all the applicable requirements in reg 2.72A and reg 2.72B of the Regulations are met. If any of the requirements are not met, the Tribunal must affirm the delegate’s decision to refuse the nomination.
Absent any new submissions or evidence being provided to the Tribunal either at the time of lodgement of the review application or in response to its s 359(2) letter, the Tribunal has considered the on-line nomination application as well as evidence lodged with the Department in support of that nomination. This includes the Company’s Training Plan as well as Mr Mantovani’s resume and evidence of his Diploma as a Technician of Mechanical Industry from the Ministry of Education University and Research in Verona awarded on 1 July 2002.
Genuine training opportunity – reg 2.72A(16)
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. Relevant to this case, reg 2.72B(3) of the Regulations is applicable. This sets out requirements in relation to occupational training to enhance the nominee’s skills in an occupation applicable to them. Having reviewed the Company’s nomination lodged with the Department, no claims have been made that any of the other purposes in reg 2.72B are applicable to this case.
As noted above, the reason for the delegate’s refusal of the Company’s nomination was that the proposed Training Plan as assessed against Mr Mantovani’s work experience and qualifications was not considered to be uniquely tailored to enhance his skills as an Electronic Instrument Trades Worker (General) ANZSCO 342314. It was therefore found that the Company’s proposed training program was a means of securing work for Mr Mantovani rather than a genuine training opportunity.
The Tribunal wrote to the Company on 26 July 2022 inviting it to provide updated and current information in writing to demonstrate that it meets all the relevant requirements of the Regulations. No response has been received from the Company: it has not provided any updated information about its proposed Training Program for Mr Mantovani or updated information about its business. The Tribunal also has no information before it regarding the nature of the duties (if any) undertaken by Mr Manotvani for the Company or any other business since the time of lodgement of the Company’s nomination more than 3 years ago. In these circumstances, the Tribunal has no current information before it to demonstrate that the Company’s Training Program is a structured workplace trading program which is specifically tailored to the current training needs of the nominee Mr Manotvani and that it is of a duration that meets Mr Manotvani’s specific training needs as required by reg 2.72B(3)(a) of the Regulations.
Based on available evidence, the Tribunal is not satisfied that the Company’s nominated training program as lodged with the Department is offered as a genuine training opportunity to enhance Mr Manotvani’s current skills as an Electronic Instrument Trades Worker (General) ANZSCO 342314. Therefore, the Tribunal finds the requirements of reg 2.72A(16) of the Regulations are not met.
For the above reasons, the Tribunal is not satisfied that the Company meets the requirements of reg 2.72A of the Regulations. Accordingly, the Tribunal must affirm the decision under review to refuse the Company’s nomination.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Katie Malyon

Member
Attachment – Extract from the Migration Regulations 1994

r.2.72A Criteria for approval of nomination — Subclass 407 (Training) visas
(1) This regulation applies to a person:
(a) who is, or has applied to be, a temporary activities sponsor; and
(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 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 2.75(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.
r.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.
oOOo

[2022] AATA 4159

25 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies

Standing