The Trustee for iRock Finishes Trust (Migration)

[2020] AATA 5818

The Trustee for iRock Finishes Trust (Migration) [2020] AATA 5818 (26 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for iRock Finishes Trust

CASE NUMBER:  1812898

DIBP REFERENCE(S):  BCC2018/939219 CLF2018/50431

MEMBER:Karen Synon

DATE:26 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 26 November 2020 at 8:43pm

CATCHWORDS
MIGRATION – Employer Nomination – nomination for a Training Position – Wall and Floor Tiler – occupational training to enhance skills – structured workplace training program – no response to s.359(2) invitation to provide information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 359C, 360, 363A

Migration Regulations 1994 (Cth), rr 2.72A, 2.72B

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 Immigration to refuse to approve a nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72A and r.2.72B of the Migration Regulations 1994 (the Regulations).

2. 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.

3. The applicant applied for approval of the nomination on 27 February 2018.  The delegate refused the nomination on the basis that r.2.72B(3)(a) was not satisfied because the training was not a genuine structured workplace training program.

4. The applicant applied for review of the primary decision on 4 May 2018 and provided a copy of the Department’s decision.

5. The applicant was represented in relation to the review by its registered migration agent.

6. The Tribunal wrote to the applicant via its representative on 4 May 2018 acknowledging the lodgement of the applicant for review.  In this letter the Tribunal advised “[i]f you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible”.  No information has been received from the applicant since the time it lodged the application for review.

7. On 11 November 2020, the Tribunal wrote to the applicant, in accordance with s.359(2) of the Act, inviting it to provide updated and current information addressing the criteria in Regulation 2.72A and Regulation 2.72B(3) and, without limiting the information that may be given, invited the following in writing:

   ·     Information about the identity of any person authorised to speak and make decisions on behalf of the applicant;

   Ø  for example, if the applicant is a company or registered business, an ASIC company or business name extract ( the applicant is a company or registered business, current and historical information about its office holders’ registration details;

   Ø  for example, an ASIC current and historical extract ( about the applicant’s current status as an approved Temporary Activities Sponsor, professional development sponsor or a training and research sponsor;

   Ø  for example, a record of approval as a Temporary Activities Sponsor that has not lapsed or ceased

   ·     Details of the nominee and any secondary applicants;

   ·     Information about the applicant’s current organisational structure and where the nominee sits in relation to that structure;

   Ø  for example, an organisational structure chart that includes all of the applicant’s current and proposed employees, their position title/duties, and whether they are an Australian citizen, permanent resident or visa holder

   ·     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;

   Ø  for example, information about employment and training opportunities offered to Australian citizens and/or permanent residents

   ·     Information about whether the nominee has “Functional” English;

   Ø  for example, copies of English language test results that the nominee has taken

   Ø  “Functional” English is defined in s5(2) of the Migration Act, Reg 5.17 of the Migration Regulations and Instrument number IMMI 15/004

   ·     Information about the training to be provided, including:

   i.details of who will provide the training including the location and the contact details of each employer, and, if the applicant is not the employer, the applicant’s relationship with the employer;

   ii.the location(s) of the training

   iii.whether the occupational training is a structured workplace training program;

   Øfor example, a training program detailing content and method of delivery including training objectives, tasks, timeframes and measures for success for completion of training components (such as applicable skills expected to be gained and/or any qualifications or certifications on completion)

   iv.whether the occupational training is specifically tailored to the training needs of the nominee;

   Øfor example, the nominee’s skills audit, documents demonstrating the nominee’s current skill level including academic and vocational qualification documents, CV.

   v.whether the occupational training is of a duration that meets the specific training needs of the nominee;

   Øfor example, a timetable of the proposed program and activities that sets out the periods of practical work experience and the periods of instructions and observations.

   ·     Information about the nominee’s education and prior experience relevant to the specified occupation and the proposed training, particularly whether the nominee completed at least 12 months full-time experience in the specified occupation during the 24 months immediately preceding the time of nomination;

   Ø  for example, copies of education certificates, a copy of the nominee’s resume and/or work reference letters relating to the nominee’s experience

   ·     Information about how the occupational training corresponds to the specified occupation’s position description in ANZSCO;

   Ø  see and type the nominated occupation’s 6 digit ANZSCO code number into the ‘Search’ function).

8. It was emphasised any information the applicant provided should be up to date and address all the relevant criteria.  A copy of the relevant regulations was included in the letter.

9. The invitation was sent to the applicant’s representative at the email address which had been provided in connection with the review.  The applicant was advised that if the information was not provided in writing by 25 November 2020, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. The applicant did not provide the information requested, or indeed provide any response, within the prescribed period and no extension of time was sought or granted.

11. 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 an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal is satisfied that it has communicated with the review applicant via its authorised representative and registered migration agent at the advised email address in a prescribed manner.

12. The Tribunal has accordingly decided to proceed to decision without taking further steps to obtain the information.  In making this decision the Tribunal notes that the applicant has not provided any substantive materials, written arguments or information other than the application for review and a copy of the department’s decision on 4 May 2018, a period of over two and a half years ago.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

15. The application form records that the applicant was applying for a visa to ‘enhance the skills’ of Thomas Maurice Claude Xavier Chastaings in the occupation of ‘Wall and Floor Tiler’.  It was proposed that the training would be ‘general, or on-the-job training’ of 38 hours a week at 36 Barrani Street, East Bentleigh, Victoria, 3165.  The application form states the training period will be two years from 1 March 2017 to 1 March 2019 and its objectives are:

    To upskill the nominee to the level of being an Australian qualified wall and floor tiler.

16. The delegate refused the nomination on the basis that r.2.72B(3)(a) was not met because no evidence was provided of a structured workplace training program.

17. In the absence of any submissions or evidence being provided to the Tribunal, it has considered the evidence provided to the Department in support of the nomination application.  This was:

    ·The application form – ‘Nomination for a Training Position’;

    ·A Contract of Employment dated 11 February 2018;

    ·The nominee’s resume; and

    ·Email confirmation of nominee’s Pearson Academic English language test appointment.

18. Regulation 2.72B(3) ‘occupational training to enhance skills’ requires that the Tribunal be satisfied that 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.

19. The applicant did not respond, within the prescribed period, to the Tribunal's letter inviting the provision of updated and current information which demonstrates that all the requirements of Regulations 2.72A and 2.72B(3) are met at the time of decision.  Nor has any relevant information been provided at any stage during the review period.  Further, because the applicant has lost the entitlement to a hearing, the Tribunal was not able to take oral evidence regarding the proposed structured training plan.

20. As the applicant has not responded to its s.359(2) invitation, the Tribunal has no information before it about the proposed structured training program, the nominee’s continued employment and further skill development in the over two and a half years since the nomination was lodged and how an additional significant employment period would impact the proposed training program including which elements of the program provided are to be modified or no longer necessary and/or how this would impact the proposed training duration.  This is despite the Tribunal inviting additional information about:

    ·Details of who will provide the training including the location and the contact details of each employer, and, if the applicant is not the employer, the applicant’s relationship with the employer;

    ·The location(s) of the training

    ·whether the occupational training is a structured workplace training program;

    Øfor example, a training program detailing content and method of delivery including training objectives, tasks, timeframes and measures for success for completion of training components (such as applicable skills expected to be gained and/or any qualifications or certifications on completion)

    ·     whether the occupational training is specifically tailored to the training needs of the nominee;

    Øfor example, the nominee’s skills audit, documents demonstrating the nominee’s current skill level including academic and vocational qualification documents, CV.

    ·     whether the occupational training is of a duration that meets the specific training needs of the nominee;

    Øfor example, a timetable of the proposed program and activities that sets out the periods of practical work experience and the periods of instructions and observations.

21. The Tribunal notes that while, at several points in the application form, there was the instruction to “see attached training program for details”, there was no training plan provided to the Department and nor has one been provided to the Tribunal.

22. Nor has the applicant made any attempt to address any of the significant issues, which the delegate clearly raised, at any time since the application for review was lodged in May 2018.

23. The Tribunal has formed the view, after reviewing the limited information provided to the Department, that there is no structured training program specifically tailored to the training needs of the nominee and of a duration that meets the specific training needs of the nominee.

24. The Tribunal is therefore not satisfied that the applicant meets Regulation 2.72B(3)(a).

25. Regulation 2.72B provides that any of the subregulations can satisfy the alternative criteria for Subclass (Training) visa.  These are: occupational training required for registration etc; occupational training for capacity building overseas – overseas qualification; occupational training for capacity building – government support; occupational training for capacity building overseas– professional development.  There is no evidence before the Tribunal that the nomination can satisfy any of the alternative criteria.

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

    DECISION

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

    Karen Synon
    Member

    
    

    Attachment – Migration Regulations 1994

    Reg 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.

    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.