Toni & Guy Parramatta (No 2) Pty Ltd (Migration)

TONI & GUY PARRAMATTA (NO 2) PTY LTD (Migration) [2018] AATA 4554 (10 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  TONI & GUY PARRAMATTA (NO 2) PTY LTD
CASE NUMBER:  1806549
DIBP REFERENCE(S):  BCC2018567890 CLF2018/39703 CLF2018/47987
MEMBER:Denise Connolly
DATE:10 September 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 10 September 2018 at 2:45pm

CATCHWORDS
MIGRATION – temporary activities sponsor – occupational trainee – Subclass 407 (Training) visa –Hairdresser – structured workplace training program – comprehensive information about in-house training course – tailored to nominee’s needs – 12 months’ relevant experience – functional English skills – decision under review affirmed
PRACTICE AND PROCEDURE – combined hearing
LEGISLATION
Migration Act 1958 (Cth), s 140GB
Migration Regulations 1994 (Cth), rr 2.72A, 2.72B
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 Immigration on 21 February 2018 to refuse to approve the applicant’s 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).
The applicant applied for approval on 2 February 2018. 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.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72B(3) because the delegate was not satisfied the occupational training proposed is a structured workplace training program specifically tailored to the training needs of the nominee.
Mr Nathan Cherrington appeared before the Tribunal, on behalf of the applicant, on 13 August 2018 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent who also attended the hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
At the time of application the applicant indicated it seeks the nomination to provide occupational training to enhance the skills of the nominee, Jiha Kim, DOB 11 August 1991. The applicant advised that the nominee holds a Certificate III in Hairdressing from the Toni & Guy Academy and that she has 6 years’ relevant experience in salons (mostly in Korea). It was proposed that the training would be general, on-the-job training to work for 38 hours a week at the Toni & Guy Salon in Concord, NSW. It was submitted that the training program’s objectives are to build on entry-level hairdressing skills through on the job training in the Moving Up System, a Toni & Guy system to train employees to its in-house Director level.
The applicant provided information about Toni & Guy and a document entitled Vardering which explains that a Toni & Guy apprentice must gain the skill level to be able to progress to the vardering program and that this requires time and experience in the salon as an assistant before the apprentice is invited to take on the course. Vardering is a structured workplace training program which includes the topics colour skills, blowdry/styling techniques, haircuts, product training, customer relations and consultations, and molecular structure of hair. Once the individual is vardered they qualify as a more senior member of staff. The applicant explained that the nominee is a technician (colourist) however to become a senior member in the salon she must complete the vardering program. This will provide her with a skill set beyond the basic level of hairdressing gained in the Certificate III. It is asserted that the nominee has only completed a 6 week ‘mini-vardering’ program. The nominee will also receive training in styling and OH&S at a higher level. There are chemicals she will work with only after completing the vardering program.
The applicant provided a table entitled Structured Training Program – Fast Track to Artistic Director indicating the mini-vardering (6 weeks) has objectives to acquire skills and terminology exclusive to Toni & Guy; to understand everyday procedures followed in the salon; and to be aware of company’s expectations. The full vardering program teaches advanced colouring, styling, OH&S and consultation skills. It is conducted mainly while on the job.
The applicant provided an in-house document indicating that vardering is a compulsory introductory training for all Toni & Guy hairdressers. The document describes the applicant’s “Moving Up” system indicating that to move up within the business in a two-year period requires certain commitments and training. It sets out the areas which will be covered by the training including customer service, product knowledge, presentation skills, and management skills.
The applicant also provided a copy of the Terms and Conditions of Employment agreement between the applicant and the nominee dated 6 December 2017. It indicates that the nominee will be employed as a trainee on the approval of her occupational trainee visa and that the provider training program runs for a maximum of eight weeks. The applicant agrees to pay a minimum base wage of $42,069 plus superannuation.
The applicant provided the nominee’s PTE Academic Test Taker Score Report for a test undertaken on 24 October 2017 in which she achieved an overall score of 50 with at least 35 in each skill. (She therefore has functional English.)
The applicant has provided to the Tribunal a copy of the delegate’s decision record. The delegate explained that she must be satisfied that the training proposed in the nomination features a documented structured training program that is uniquely tailored to the training needs of the nominee, for a timeframe necessary for the nominee to enhance their skills in the nominated occupation. The duration and content should be consistent with the skill level as described in ANZSCO for the identified occupation. The nominated occupation in this case is Hairdresser (ANZSCO 391111) and the proposed training period is 23 months. The delegate explained it is required that a nominee has a minimum of 12 months’ relevant experience in the occupation in the 24 months preceding the time of nomination.
The delegate considered the training plan and the nominee’s skill level. While she was satisfied that the nominee had at least 12 months’ relevant experience in the occupation and would benefit from further training, she was not satisfied that the training plan provided identifies sufficiently how the nominee will enhance her skills. She formed the view that the training proposal does not identify the nominee’s skill gaps and does not take into account the nominee’s prior experience. She noted that the nominee has spent a significant amount of time recently onshore in which she has been employed the majority of time within the industry and in related positions. She noted the evidence indicates the nominee has completed a Certificate III. She also noted the nominee had completed a six week Toni & Guy mini vardering program. She noted that the document entitled Structured Training Program which outlines the proposed training states that the first two components are mini vardering and OH&S. The delegate considered this to be contradictory. She did not find it plausible that the nominee would require further enhancement of the skills listed within the mini vardering course such as sectioning, colouring, foiling and freehand work on models given the nominee’s extensive experience in hairdressing and the fact that she has already completed her Certificate III in hairdressing.
Prior to the hearing the applicant provided comprehensive documentation about the Subclass 407 Training Plan for the nominee, her current skill level assessment, a letter from the Managing Director of Toni & Guy Australia regarding their training programs, information about Toni & Guy Academy trainers, a written submission and a previous decision of the former Migration Review Tribunal (differently constituted) in relation to a factually similar application.
The Structured Training Program for the nominee sets out the various modules that would be undertaken by the nominee, the manner in which the training would be delivered and the time taken for each module. The training program acknowledges that the nominee has completed the first module, which covers basic styling, colouring and OHS. The module indicates that the nominee would then spend six months of training on styling, six months on more advanced styling and six months on styling at the Director level. There is then a module entitled Art Directors which is also for six months.
The applicant provided to the Tribunal a skill level assessment undertaken by one of the Academy’s trainers Elizabeth Shedwick which describes in detail the nominee’s strengths and requirements for further training.
The written submission explains that a Toni & Guy structured training program has fixed modules that each trainee must complete. While the nominee has developed colourist skills her stylist skills are at a basic level and in order to be promoted through the Toni & Guy system to the level of Art Director (which is still in the occupation hairdresser) she needs to undertake the module set out in the structured training program. The representative explains that Toni & Guy is a global franchise and the training programs are necessary for the nominee to advance within the organisation. The representative is emphatic that the application is not an attempt to avoid the Subclass 457 visa program requirements (the Tribunal has assumed this is a reference to the base salary requirement). Rather it is a way to develop the applicant’s skills so that she can be sponsored for a temporary skill shortage visa to work in the role of an Art or Technical Director at Toni & Guy. She explains that it is difficult to keep Australian staff in the industry but it is offering this structured training program as a long-term retention strategy which will hopefully result in more hairdressers reaching the Art Director level and continuing their careers with Toni & Guy. She asserts that Toni & Guy have to look to international staff to fill their current skills gap. The benefit of the training program to the nominee is that her skills are enhanced and she will become an Art Director with all the opportunities that entails. The representative sets out the advantages for the nominee, the sponsor and Australia.
The letter from the Managing Director explains that Toni & Guy has 35 franchise salons across Australia and the key to its success is that they have highly skilled hairdressers who provide quality service. In order to maintain this control of quality, every hairdresser employed by Toni & Guy is trained in the same way. He sets out the levels of training. This is consistent with the structured training program described above. He describes the structured hierarchy within the organisation based on the skill level of the hairdresser; stylist/technician, top stylist/senior technician, head Director/head technician, Art Director/technical director. He explains that in order to reach the highest level the hairdresser must undergo the two-year training program. He explains that Toni & Guy are willing to sponsor Art/Technical Directors on Subclass 457 (now 482) visas so long as they have completed the structured training program. Currently there are more than 30 Art/Technical Directors being sponsored on Subclass 457 visas by Toni & Guy franchises. The Art/Technical Directors can charge more for their services and due to their skills and experience can build a loyal client base and generate higher and more consistent income for the salon. The current award rate for hairdressers is substantially lower than the Subclass 457 minimum salary. It is currently $767 per week which equates to an annual base salary of $39,899. The business cannot justify sponsoring hairdressers who are not at the required skill level of Art Director because they cannot generate sufficient revenue to cover their wage. The structured training program is a way of skilling employees over a two-year period to level of Art/Technical Director at which point they would be offered skill shortage sponsorship if they want it. This way Toni & Guy can fill the skill gaps in both the intermediary and highest levels throughout the organisation.
At the hearing the applicant explained that the nomination was sought under the occupational training to enhance skills alternative in r.2.72B(3). He acknowledged that the nominee is currently a hairdresser, a senior technician who specialises in colour. However in order to reach the level at which Toni & Guy is willing to sponsor her under the temporary skilled shortage sponsorship program, the nominee must complete the two-year training program. This would enable her to reach the skill level of stylist which would allow her to increase her charges. She is currently concentrating on building her client base at the technician level. However she needs further training as a stylist and in customer relations. This is indicated in the skill level assessment provided to the Tribunal before the hearing which records that she has only basic cutting skills.
The applicant acknowledged that the nominee started working with Toni & Guy in early 2017 as an assistant when she finished her Certificate III. She completed the Certificate at the Toni & Guy Academy which is a one-year course. The applicant is an educator in the Academy and he identified her as a good student. She then became an assistant at his store in early 2017and then a colour technician.
The applicant acknowledged that the nominee has completed the first module of the training program. They have not commenced her on the styling module yet because they are waiting for the outcome of this review. Also she needed to be a colour technician for a year before completing the styling module. Once she commences this module she will attend the Academy three days a week for an eight week period. He indicated that the OH&S knowledge required is different depending on her whether she is a technician or stylist. Once she has finished the stylist module her skills will be assessed according to the Moving Up system. She will also concentrate on building her own clientele and becoming a senior stylist. The assessment will include her doing a show. If she is successful she would then become a top stylist/senior technician. She will move up within six weeks and this will allow her to increase her charges. However Toni & Guy do not like the trainees to move up too fast. She will also spend six months training in a module focusing on customer service, and new cutting techniques. He explained that the franchise focuses on client service and quality. The nominee needs further training to be able to adapt to all clients and be consistent at a higher level. He believes that she will benefit enormously from the training and he has made a commitment to her. She is learning about cutting from watching him cut but she is not ready to cut for Toni & Guy just yet. Once she has finished her vardering she will commence cutting.
The applicant acknowledged that the nominee has had previous experience as a hairdresser. However he thinks that that experience was attained in Korea and it does not count for the purposes of Toni & Guy’s systems. She is not experienced at the Toni & Guy level. She might have cut in Korea but not in a way recognised by the organisation. She did complete the Certificate III and has done vardering for colouring and other courses such as three Wella colour courses. The applicant explained that he pays for all the training. However most of her training will be on the job.
The Tribunal asked about the nominee’s skill gaps which are addressed in the written material provided before the hearing. He confirmed that in order to progress at Toni & Guy the nominee needs to learn 14 different haircuts and they have to be perfect. She has not learned them yet. Ideally she would learn the 14 cuts in an eight week period. He is going to pay her while she is learning those cuts.
The Tribunal discussed with the applicant the period required to complete the training. He indicated that the nominee has already completed her technical colour vardering and he wants her to start her styling vardering at the end of August as he believes she is ready. There are other colouring techniques that she will need to undertake as there are various levels of peroxide and bleaching methods that she does not know about. Also the colour company, Wella, brings out new products from time to time and she will receive training. He indicated that perming is becoming fashionable again and she will need to learn those techniques. He indicated that much of the training is undertaken at night after work but there is also training at work during work hours. It is anticipated that the training period will end in about January 2020.
The applicant indicated that he is not aware of any relevant adverse information.
The Tribunal acknowledged that the applicant has provided evidence confirming the nominee has functional English.
When asked if there was anything else he wished to add, the applicant indicated that he considers the nominee to be very highly skilled hairdresser with a lot of potential. He believes she will be a good asset and that she will benefit from the vardering as she will be highly trained. She has just started to become profitable and he has been committed to paying for her training because he is of the view she is a long-term investment. He also wants to give back to the industry.
Assessment of the evidence
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.
The Tribunal is satisfied the applicant, a temporary activities sponsor, has nominated, under s.140GB(1)(b) of the Act, a program of occupational training in relation to an applicant for a Subclass 407 (Training) visa, the nominee.
The Tribunal has considered the Department’s electronic records which confirm that the applicant was approved as a temporary activity sponsor on 8 December 2017 and accordingly is approved until 8 December 2022. The applicant therefore meets the requirement of r.2.72A(3)(a). As the nomination was made after 18 May 2017 r.2.72A(3)(b) is not relevant.
Having regard to the manner in which the application was made, and notes on the Department’s file, the Tribunal is satisfied the process for nomination was made in accordance with r.2.73A. It was made on the form specified and the relevant fee was paid. Therefore r.2.72A(4) is met.
Having regard to the written material and the applicant’s oral evidence at the hearing, the Tribunal is satisfied that the nominee will participate in the nominated program. Therefore the requirements of r.2.72A(5) are met.
There are no secondary sponsored persons in this case so the requirements of r.2.72A (6) and (7) are not relevant.
The Tribunal is satisfied that the sponsor has provided information that identifies the employer in relation to the nominated program, the applicant, and the location and contact details of the employer. The Tribunal is satisfied that the nominated program will be carried out, in the main, on the job at the applicant’s salon based in Concord NSW, aside from some training that will be undertaken in the classrooms at the Academy in Sydney. The Tribunal is therefore satisfied that the requirements of r.2.72A(8) are met. On the basis of the material provided the Tribunal is satisfied the nominee will be paid a base salary and is therefore not undertaking the program is a volunteer. Accordingly the requirements of r.2.72A(9) are not relevant.

Having regard to the nomination application, the Tribunal is satisfied that the sponsor, the applicant, has certified in writing and as part of the nomination, that the sponsor has not engaged in conduct in relation to the nomination that constitutes a contravention of s.245AR(1) of the Act. Therefore the requirements of r.2.72A(10) are met.
Having regard to the notes made by the delegate on the Department’s file, and the applicant’s oral evidence provided at the hearing, the Tribunal is satisfied that there is no adverse information known to Immigration about the sponsor or a person associated with the sponsor. Therefore the requirements of r.2.72A(11) are met.
The applicant has indicated that in the main the occupational training will be provided directly by himself at his salon in Concord. There will be some classroom training undertaken at Toni & Guy’s Academy where he is a trainer. Overall the Tribunal is satisfied the occupational training will be provided directly by the sponsor. The Tribunal is therefore satisfied that the requirements of r.2.72A(12)(a) and r.2.72A(12) are met.
There is no evidence before the Tribunal to indicate that the sponsor has engaged in, or intends 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. Accordingly the Tribunal is satisfied the requirements of r.2.72A(13) are met.
The applicant has provided to the Tribunal a copy of the nominee’s PTE Academic Test Taker Score Report for a test undertaken on 24 October 2017 in which she achieved an overall score of 50 with at least 35 in each component. She therefore has functional English and r.2.72A(14) is met.
The Tribunal must consider whether the applicant meets the requirements set out in r.2.72A(15). The alternative set out in r.2.72B(3) - occupational training to enhance skills is relevant in this case. Having considered all the material before it, for the following reasons, the Tribunal is satisfied the occupational training is a structured workplace training program that is specifically tailored to the training needs of the nominee, and that the duration proposed meets the specific training needs of the nominee.
The applicant has provided to the Tribunal a document entitled Structured Training Program which sets out the modules that the nominee will undertake for completing on-the-job and classroom training. That program indicates that at least four hours per week training will be completed within the salon, however from the applicant’s oral evidence the Tribunal has concluded that more time will be spent in the salon observing the applicant as part of the training. The Tribunal accepts that the applicant has already completed one of those modules, vardering colouring, and that she is about to commence the vardering styling module. The Tribunal is satisfied that once she has completed the vardering modules as an apprentice or trainee, she will move on to the stylist module which will, in the main be on-the-job. She will learn various techniques by observing the applicant. She will then complete the Top Stylist module, the Style Director module and the Art Director module. Having regard to evidence about the structured training program the Tribunal is satisfied that, while a small part of the training occurs in the classroom, most of the training will be undertaken in the workplace. On the basis of all this material the Tribunal is satisfied that the nominated occupational training is a structured workplace training program. Therefore the Tribunal is satisfied that the requirement in r.2.72B(3)(a)(i) is met.
Having considered the skill level assessment provided to the Tribunal and the various skills to be acquired in the structured training program, and the applicant’s oral evidence at the hearing, the Tribunal is satisfied the training program is specifically tailored to the training needs of the nominee in order for her to pursue a career in Toni & Guy, which she will be able to use more broadly. The Tribunal notes the delegate did not have an opportunity to consider this material. On the evidence before it the Tribunal is satisfied the requirement in r.2.72B(3)(a)(ii) is met. Having regard to the documents provided to the Tribunal and the applicant’s oral evidence at the hearing the Tribunal is satisfied that the training will be completed by January 2020. It has formed the view given the content of the structured training program that the duration proposed, up to 2 years, meets the specific training needs of the nominee. Accordingly the Tribunal is satisfied the requirement in r.2.72B(3)(a)(iii) is met.
Based on the above findings the Tribunal is satisfied the requirements in r.2.72B(3)(a) are met.
The occupation is Hairdresser (ANZSCO 391111). Having regard to IMMI 18/050 the Tribunal is satisfied 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 r.2.72B(3)(b). The Tribunal has considered the instrument and there are no matters specified for the occupation. Therefore this requirement is satisfied.
The Tribunal is satisfied the nominee has completed a Certificate III in Hairdressing and she has been working as a hairdresser for several years in Australia and Korea. It notes the ANZSCO description for the occupation indicates the skill level is an AQF Certificate III including at least two years of on-the-job training. There are no other matters specified for the occupation in IMMI 18/050. It is therefore satisfied the occupation is applicable to the nominee in accordance with the specification of the occupation. Accordingly the requirement in r.2.72B(3)(ba) is met.
The nominee commenced working for Toni & Guy as a hairdresser in early 2017. Prior to that experience she had worked as a hairdresser in Korea. There is no dispute 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. The Tribunal is therefore satisfied the requirement in r.2.72B(3)(c) is met.
Overall the Tribunal is satisfied the requirements of r.2.72B(3) are met. As one of the subregulations inr.2.72B is met the applicant satisfiesr.2.72A(15).
Having considered the material overall, the Tribunal is satisfied that the applicant genuinely intends to offer the nominee a genuine training opportunity which will benefit both the nominee and possibly in the future Toni & Guy. Accordingly the Tribunal is satisfied that the nominated program is offered as a genuine training opportunity for a purpose referred to in r.2.72B, in this case occupational training to enhance skills. Therefore the requirements of r.2.72B(16) are met.
On the basis of the above findings, the Tribunal is satisfied the criteria for approval of a nomination for a Subclass 407 (Training) visa set out in .2.72A
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Denise Connolly
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
Reg 2.72ACriteria for approval of nomination — Subclass 407 (Training) visa
(1) This regulation applies to a person:
(a) who is:
(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 person is:
(a)  a temporary activities sponsor; or
(b) if the nomination is made on or before 18 May 2017 - a professional development sponsor or a training and research 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.
Reg 2.73A    Process for nomination — Subclass 407 (Training) visa
(1)  This regulation applies to a person who is nominating, under paragraph 140GB(1)(b) of the Act, a program of occupational training in relation to the holder of, or an applicant or proposed applicant for, a Subclass 407 (Training) visa.
(2)  For the purposes of subsection 140GB(3) of the Act, the person may nominate the program in accordance with a process specified in a legislative instrument made by the Minister for the purposes of this subregulation.
(3)  A legislative instrument made for the purposes of subregualtion (2) may specify any of the following:
(a) a form for the nomination;
(b)  a fee which must accompany the nomination;
(c) any other requirements in relation to the nomination.

[2018] AATA 4554

10 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness