Sydney Skydivers Pty Ltd (Migration)

[2024] AATA 2446

Sydney Skydivers Pty Ltd (Migration) [2024] AATA 2446 (27 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sydney Skydivers Pty Ltd

REPRESENTATIVE:  Ms Yen Wei Wong

CASE NUMBER:  2219074

HOME AFFAIRS REFERENCE(S):          BCC2022/2106005

MEMBER:SM Michael Cooke

DATE:27 June 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for approval of a nomination of a program of occupational training:

·subregulation 2.72B(3)

·subregulation 2.72A(16)

Statement made on 27 June 2024 at 3:36pm

CATCHWORDS
MIGRATION – nomination – Other Sports Coach or Instructor – occupational training – applicant had at least 12 months full-time relevant experience in the occupation – the nominated program is a genuine training opportunity – findings of the delegate are contradicted by the new evidence – decision under review set aside

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, r 2.72

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 to refuse to grant Training (Class GF) visas to the applicant under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visas on 26 August 2020. The delegate refused to grant the visas on 30 September 2022.

2. Under section 140GB of the Migration Act, the Minister must approve an approved sponsor’s nomination if the prescribed criteria are satisfied. The prescribed criteria for approval of a nomination of 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) are set out in regulations 2.72A and 2.72B of the Migration Regulations.

3. The applicant applied for approval of the nomination on 9 June 2022. The delegate decided not to approve the nomination on the basis that he was not satisfied that the nominated program was offered as a genuine training opportunity for a purpose referred to in subregulation 2.72(16) nor that the proposed training was a genuine opportunity to enhance the identified person’s skills as per subregulation 2.72B(3).

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

5. The applicant’s representative has subsequently tendered a comprehensive submission to the Tribunal regarding the case.

6. The Tribunal is satisfied that sufficient information is now present to finalize the decision ‘on the papers’ without recourse to a hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the nominated program is offered as a genuine training opportunity.

9. The delegate concluded that the claimed training position had been primarily created for the dual-purpose of securing migrant labour, for the benefit of the applicant (the sponsor), and as a means of continuing residence in Australia for the nominated person (Mr Shih-lung HSU).

10. The applicant’s representative has provided a comprehensive rebuttal of the adverse findings of the delegate.

11. In (part of) the tendered submission the applicant’s adviser informed of the following:

    With reference to the supporting documents and above, we wish to emphasize that the nominated program is a genuine training opportunity. The occupational training consists of a structured workplace training program with clear goals, specifically tailored to the training needs of the nominee with identified skill gaps and is of a duration that meets the specific training needs of the nominee to achieve his goal of Skydiving Instructor (Tandem Master).

    The occupational training is in relation to the ANZSCO Occupation Code 452317 – Other Sports Coach or Instructor, and Roy (the applicant) had at least 12 months full-time relevant experience in the occupation to which the occupational training relates in the 24 months immediately preceding the time of the nomination. Roy has at least 12 months of highly relevant experience in the ANZSCO Occupation Code 452317 – Other Sports Coach or Instructor, as he has been working as a Skydiving Instructor since March 2023, which is more than 12 months immediately preceding June 2024.

    Further to the above, the business has also established that the sole intention was not to undertake work. Indeed, Roy is not a modern-day slave. When Roy achieves the status of Tandem Master Skydiving Instructor, he will be internationally recognised and possess the capability to propel his career in this industry. It is the goal that Roy has been working persistently and diligently towards, made possible through the support and structured training in Sydney Skydivers.

    The business meets sub-regulation 2.72(A)(16) as the evidence shows that it satisfies all criteria in the relevant sub-regulations 2.72(B)(1) and (3) under the stream of occupational training to enhance skills. Therefore, we submit that the Tribunal should be satisfied that the nominated program is offered as a genuine training opportunity for a purpose referred to in the sub-regulation of regulation 2.72B that applies.

12. The Tribunal has had the benefit of the additional information along with the Departmental and Tribunal files. It is satisfied that the findings of the delegate are contradicted by the new evidence which is both comprehensive and convincing.

13. The Tribunal is now satisfied that the nomination application meets the prescribed criteria for approval of a nomination of a program of occupational training.

    DECISION

14. The Tribunal remits the application for reconsideration with the direction that the applicant meets the following criteria for approval of a nomination of a program of occupational training:

    ·subregulation 2.72B(3)

    ·subregulation 2.72A(16)

    Michael Cooke
    Senior Member