WBHO Infrastructure Pty Ltd (Migration)

[2022] AATA 2687

WBHO Infrastructure Pty Ltd (Migration) [2022] AATA 2687 (2 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  WBHO Infrastructure Pty Ltd

REPRESENTATIVE:  Mrs Simona Ancuta (MARN: 1792794)

CASE NUMBER:  1836065

HOME AFFAIRS REFERENCE(S):          BCC2018/4593733

MEMBER:R. Skaros

DATE:2 June 2022

PLACE OF DECISION:  Sydney 

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

Statement made on 02 June 2022 at 6:48pm

CATCHWORDS
MIGRATION – nomination –Surveyor – proposed occupational training was not specifically tailored to the training needs of the nominee –applicant failed to provide the requested information within the prescribed period – applicant had not provided a skills assessment for the nominee – no updated or current information before the Tribunal– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, rr 1.13, 2.72

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 Home Affairs on 19 November 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 19 October 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 enhancing skills in the industry of construction. The nominee was identified as Mr Andries Van Der Westhuizen, and the proposed training related to the position of Surveyor (Australian and New Zealand Standard Classification of Occupation (ANZSCO) code 232212).

4. The delegate was not satisfied on the evidence that the proposed occupational training was specifically tailored to the training needs of the nominee as required by reg 2.72B(3)(a)(ii). The delegate was not satisfied that reg 2.72B applied and found that reg 2.72A(15) was not met. Accordingly, the delegate decided not to approve the nomination.

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

6. On 17 March 2022 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting them to provide updated and current information to support that the requirements of reg 2.72A, including one of the alternative criteria in reg 2.72B, were satisfied.

7. The invitation was sent to the last email address provided in connection with the review. The letter advised that if the information was not received by 31 March 2022, the Tribunal may make a decision on the review without taking further steps to obtain the information, and the applicant would lose any entitlement they may otherwise have had to appear before the Tribunal and present evidence and arguments.

8. On 18 March 2022 the representative advised that they were no longer appointed to represent the applicant in this matter and stated that they had forwarded the Tribunal’s invitation to the applicant at their company email address. The representative was advised that, as the applicant’s authorised recent, the Tribunal must send them all correspondence unless and until the applicant advised otherwise.

9. The applicant did not provide a response to the Tribunal’s invitation and, in the event they did not receive the original communication, the Tribunal sent a copy of that invitation to the applicant on 16 May 2020, and indicated that they had until 30 May 2022 to provide a response. The Tribunal also requested that the applicant advise if they wished to update their contact details and if they wanted to withdraw their current representative and appoint another.

10. The Tribunal did not receive comments or a response to the letter. In these circumstances, s.359C of the Act 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 them to appear: Hasran v MIAC [2010] FCAFC 40.

11. The representative did not advise that they no longer acted for the applicant until after the s.359(2) letter was sent, and the Tribunal did not receive any advice from the applicant either withdrawing their representation, appointing another representative or otherwise changing their contact details.  The Tribunal is satisfied that the s.359(2) letter was correctly sent to the applicant’s representative. The Tribunal also provided the applicant a further opportunity to provide the requested information. To date, the invited information has not been provided to the Tribunal and the applicant has not indicated any intention to do so in the future, or otherwise communicated with the Tribunal

12. The Tribunal has no power to permit the applicant to appear before the Tribunal and is not required to delay indefinitely making its decision. Having regard to all the circumstances, the Tribunal has decided to proceed to a decision without taking further steps to obtain the requested information

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

    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 applicant is an approved work sponsor and meets the requirements in reg 2.72A: s 140GB(2).

15. The applicant is involved in the construction industry. They nominated Mr Van Der Westhuizen, who was stated in the visa applicant to be a ‘Surveyor Graduate’, and proposed occupation training related to the position of Surveyor, ANZSCO 232212. The nomination application broadly outlined the nominee’s qualifications, skills and experience, and provided some details regarding the proposed occupational training.

16. In support of the nomination application the applicant provided: a copy of the nominee’s resume; a letter from the applicant to the nominee dated 17 October 2018 confirming his employment and stating that he has been a permanent employee for the company since January 2017; a letter from Curtin University dated 28 February 2017 stating that the nominee had completed all requirements for the award of a Bachelor of Surveying; and a document entitled ‘Surveyor Professional Development Plan Template’ signed by the nominee (undated).

17. In this case the delegate noted that the applicant had not provided a skills assessment for the nominee, and as such it was difficult to determine the areas in which he had knowledge gaps or lacked skills. Further the delegate noted the training plan did not identify the trainer, the trainer’s qualifications and experience and did not indicate how the training would be assessed. The delegate found that the nomination application failed to provide key information to justify the need for further training and did not demonstrate how the nominee’s skills would be sufficiently enhanced. The delegate was not satisfied that the proposed occupational training met the requirements of reg 2.72B(3)(a)(ii) and found that reg 2.72B and reg 2.72A(15) were not met.

    Purpose of occupational training: reg 2.72B – reg 2.72A(15)

18. Regulation 2.72A(15) requires that reg 2.72B applies to the nomination. Regulation 2.72B states that it applies if any of its subregulations apply. Each subregulation outlines a purpose for occupational training and includes various requirements which must be met. In this case, the applicant claims that reg 2.72B(3) applies. The Tribunal must consider whether these requirements are satisfied at the time of its decision.

19. Regulation 2.72B(3) applies if:

    ·the occupational training is a structured workplace training program; and specifically tailored to the training needs of the nominee; and of a duration that meets the specific training needs of the nominee (reg 2.72B(3)(a)); and

    ·the occupational training is in relation to an occupation specified, with its corresponding 6-digit code, by the Minister in a legislative instrument (reg 2.72B(3)(b)); and

    ·the occupation is applicable to the nominee in accordance with the specification of the occupation (reg 2.72B(3)(ba)); and

    ·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 nomination (reg 2.72B(3)(c)).

20. The evidence provided to the Department is that the nominee holds a Bachelor of Surveying and was a permanent employee for the applicant from January 2017 (ongoing at the time of lodging the nomination application). He had been employed with the applicant as an Assistant Surveyor and Graduate Surveyor. The nominee’s resume stated that he had worked on the following projects for the applicant from 2017: MRWA Great Eastern Highway Passing Lanes, MRWA Margaret River By-Pass, MRWA Great Northern Highway Maggie Creek – Wyndham. His responsibilities included: the establishment and maintenance of survey control networks: survey line, levels and positions of design and as-built information; interpreting drawings to create and verify design data for set out and conformity; volume calculation and monthly quantity generation; communicating effectively with clients and contractors to achieve project program and quality; working as part of a Survey Team; ensuring strict health and safety procedures are adhered to resulting in zero accidents; and complying with company policies at all times. This is consistent with the nominee’s skills identified in the nomination application.

21. The nominee’s resume also states that between January and February 2013, and again between January and February 2014, he worked as a Surveying Assistant for ‘WBHO Civil Engineering’ on a casual basis. He also has experience as a labourer

22. According to the nomination application, the proposed occupational training would consist of ‘general or on the job training’ for 38 hours per week. The letter dated 17 October 2018, written by the applicant’s Human Resources Advisor, stated that the nominee’s workplace would vary between the Kwinana Office (45 Hope Valley Road, Naval Base WA) and projects which may be located throughout Western Australia, including but not limited to Margaret River, Kununurra, and Geraldton.

23. The nomination application stated that the objectives of the proposed training program were to provide the nominee comprehensive on the job training in the various aspects of surveying. The additional or enhanced skills to be acquired by the nominee were identified as: plan and construction survey, survey computations, spatial data modelling and errors, spatial mapping, engineering surveying, applied cartography and geographic information systems. The application referred to the training plan for more details.

24. The ‘Surveyor Professional Development Plan Template’ provided to support the nomination application was in the form of a spreadsheet. One column listed 14 professional development activity/topics, the first seven of which were specified in the nomination application as the additional or enhanced skills to be acquired by the nominee (set out above). The remaining activities/topics were stated as: co-ordinate and mapping systems; spatial data processing; integrated surveying; measurement and adjustment analysis; land planning; survey law and ethics; and surveying using global positioning systems. An appendix to the document provided additional detail about the course content for each subject.

25. However, this plan is generic in nature and it is not clear that has been designed with consideration for the nominee’s existing qualifications skills and experience as stated above. Nor did this plan provide the method of assessment for each of the identified subjects or provide details regarding the trainers or their qualifications and experience. Moreover, the plan was provided to support the nomination application made in 2018, and it is not evident that this training plan, and the other evidence presented to the Department relating to the proposed training program, remains current and reflects the circumstances in place at the time of this decision.

26. The applicant was invited to provide updated and current information on the structure, content, and duration of the training program and how it met the specific training requirements of the nominee. The applicant did not respond to the invitation and nor did they otherwise provide other evidence to demonstrate that the elements of reg 2.72B(3)(a)(i), (ii) and (iii) were met. On the evidence before it, the Tribunal is not satisfied that the requirements of reg 2.72B(3)(a) are met. Accordingly, the Tribunal is not satisfied that reg 2.72B(3) applies.

27. The applicant did not claim that the alternative criteria in reg 2.72B were applicable. The material provided to the Department to support the nomination application is now several years old, the applicant did not provide updated and detailed information as requested. On the available evidence the Tribunal is not satisfied the requirements of reg 2.72B(2), (4), (5) or (6) are satisfied at the time of the decision. 

28. The Tribunal is not satisfied that any of the subregulations in reg 2.72B apply. Accordingly, reg 2.72A(15) is not met. The Tribunal is not satisfied that reg 2.72A is met.

29. For these reasons the Tribunal is not satisfied that the applicant meets the applicable requirements for approval of the nomination. Accordingly, the decision under review must be affirmed.

    DECISION

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

    R.Skaros
    Senior 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.