Essential Background information. You are a registered migration agent. Last year, your clients Robert and Sonia Hearne (owners and operators of Goodman's transport in Sydney) were in dire need of a mechanic due to the illness of one of their valuable staff and needed your advice/assistance with lodging a subclass 400 visa for Leonard De Klerk from South Africa. As a first step, please read Background information to set the scene, before reading the remainder of the information below.Background Information - Goodman's Transport Pty Ltd The company is family owned. Established in 2005 by Robert and Sonia Hearne. Robert is the head mechanic in the company and the Sonia manages all office operations including logistics and finance. Robert has 5 Diesel mechanics and 15 drivers working under him. The company's fleet consists of 18 Mercedez-Benz Diesel Engine trucks which require the skills of specially qualified and trained mechanics who understand the trademarked ''Mercedez-Benz BlueTEC Diesel technology.'' This not only requires specialist training but also, ongoing professional development and certifications for the mechanics. Not many motor (or even Diesel) mechanics in Australia have the skills required to work with this technology. Sonia also has 5 office staff working with her. 3 of the mechanics currently working under Robert completed their apprenticeships with him and have been loyal to the company for many years. The two others joined the company from interstate after many months of Australia wide advertising efforts coordinated by Sonia back in 2016. The company works mainly in transporting and delivering wholesale building and other trade supplies to locations throughout Australia's East Coast. The company pays for all professional development and certifications including a trip to Germany every second year for the most cutting-edge training at the Mercedez-Benz company headquarters. Last year in October, one of their mechanics told Robert and Sonia that he had been diagnosed with cancer and needed urgent surgery from which he would take several months to recover. The company has been operating at full capacity for many years. Robert and Sonia cannot even remember the last time they took a holiday. However, the cancer diagnosis of their valuable staff member coincided with an increasing demand for Goodman's services and they had just won additional contracts with a number of companies developing new housing estates in South East QLD. Goodman's transport was to transport the building materials from Sydney to Brisbane. For this purpose and for continuing with their usual operations the company's vehicles (some of which were experiencing wear and tear) needed urgent attention to remain in good working order. Each truck would be doing thousands of additional kilometres over a short period of time. By now, the other 4 mechanics were working significant and unsustainable amounts of over-time. Given the fact that each time, the company had to recruit new Diesel mechanics in recent years, it took over 6 months of advertising to find someone qualified, Robert and Sonia decided they did not have this amount of time on their hands. Knowing, that one of their other mechanics, Jacob has a cousin in South Africa (Leonard De Klerk) with the rare skill set that the company needed, they decided to go straight to the source. Leonard De Klerk has been a Diesel Motor mechanic since leaving High School in 1999. He became Mercedes-Benz qualified when working with a European mining company, based in South Africa, in 2007. His certifications and professional development are all up to date. Whilst he has never been to Australia before, he has travelled extensively throughout Africa using his skills in various locations for both mining and also general logistics. He was very keen to come to Australia and use his skills to help out Jacob's employer. This is where you (registered migration agent) came in. During a consultation with Robert and Sonia at your office in mid- March 2024, you explained that the most suitable visa is the Subclass 400 - Temporary Work (Short Stay Activity)(Class GA) visa. Fast forward to July 2024 Robert, Sonia and Leonard followed the advice that you gave them back in March 2024 and a subclass 400 visa in the Highly Specialised Work Stream, was granted to Leonard on 28 March 2024 with a validity period of 3 months. Expiry 28 June 2024. Leonard's assistance proved to be invaluable for ensuring the company could continue to operate efficiently and effectively, keep their trucks in sound working order, keep their drivers safe and meet delivery deadlines on time every time. However, by early June they were again struggling to keep up with the workload. There are several reasons for this: 1. The mechanic who had been diagnosed with cancer unfortunately passed away. Not only was this unforeseen, it was a shock and deeply saddening for Robert, Sonia and all their other employees. Aside from the personal tragedy, it also meant that one of the company's valued, highly skilled staff members was permanently lost. 2. Due to the ongoing housing crisis in South-East QLD, combined with Goodman's transport's impeccable reputation for a high quality service, the company was offered even more contracts in late May, 2024. The last thing Robert and Sonia wanted to do was turn down these opportunities. 3. Seeing as Leonard's visa period was coming to an end, Sonia again, launched an extensive, Australia wide advertising campaign from early May onwards. However, by mid- June they had still been unable to recruit anyone suitably qualified. 4. They were able to recruit a new apprentice Diesel mechanic which everyone was very happy about. However, this of course means additional work involved in training and supervision. Leonard has been very helpful in taking on some of Robert's duties as Robert has become busier with the new apprentice. It is a worthwhile investment but will take a number of years for this apprentice to become fully qualified. Following the last-minute (unsuccessful) recruitment attempt, a decision was made to extend Leonard's stay in Australia through the Temporary Skill Shortage Visa Program. Leonard's wife is employed as a nurse in a very busy hospital in Capetown and had therefore decided not to accompany Leonard to Australia. There were no secondary applicants included in the visa application. The Standard Business Sponsorship, Nomination and visa application were lodged simultaneously on 26 June 2024. It took just 5 days for the sponsorship to be approved on 1 July 2024. Unfortunately, an email from the Department of Home Affairs on 4 July 2024, contained bad news regarding the nomination application. The nomination application was refused because the Departmental Delegate (case officer) did not agree that the nominated position Diesel Motor Mechanic, ANZSCO Occupation Diesel Motor Mechanic, Code: 321212 was a genuine position within Goodman's Transport Pty Ltd. Robert, Sonia and Leonard are in shock and disbelief. They are worried about the implications of this decision for the future of the company and its ability to meet contractual obligations. They come to see you again on the 6th of July 2024. They had hoped that the subclass 482 visa would give the company enough time to train the new apprentice and in the best case scenario also recruit more local staff. In the meantime they could rest assured knowing that they have Leonard on board. You have lodged an application for review of the decision to refuse the nomination application at the AAT (Migration and Refugee Division) and you must now prepare written submissions to support the NOMINATION review application. First of all, you should familiarise yourself with the further information and supporting documents below, including the Department's refusal letter. Important note: We are not dealing with the refused subclass 482 visa application. You do not need to concern yourself with the visa. We are dealing with the refusal of the nomination in accordance with regulation 2.72 of the Migration Regulations 1994 (Cth). The purpose of this assessment item is to assess your ability to use legal research skills to prepare and draft complex submissions and effectively advocate for clients. Task: Use the resources set out below (including the further background information) to prepare written submissions supporting an application for review of refused Temporary Skill Shortage (Class GK) subclass 482 nomination in the medium- term stream. Read the background information carefully and prepare your 'Written Submissions' (review the rubric below for marking criteria and standards required). Create a word document and save it with your name in the title. Add your 'Written Submissions"' to the document. Submit the document to the submission point below by the due date. Assumptions In preparing your written submissions you may make reasonable assumptions based on the information that you have been provided. In addition, you can assume that you lodged an application for review of the Department's decision to refuse the subclass 482 nomination with the AAT within the correct time frame. Instructions Prepare your written submissions: By using your persuasive legal writing skills Demonstrating your knowledge and understanding of written advocacy for your client Upload your completed submission, to the submission point below by the due date Make sure your name and student number are identified in the file title Documentary evidence supporting written submissions Supporting evidence for written submission is essential to support the claims you are making in your submission. You are required to refer to supporting documents where appropriate in your submission but you are not required to create fake supporting documents. You can simply list and refer to the documents that you would, in a real life situation, use to support your arguments. Specificity is very important when you are referring to supporting documents. As you will see below, some supporting documents have been provided to assist you. It is important to provide a list of the supporting documents with clear descriptions of those documents. However it is not enough to simply list the documents - you must also make it clear in your submissions how each document supports the claims you are making in the submissions. Whilst it is expected that you dedicate a substantial amount of your submissions to addressing the Delegate's refusal reasons, remember that the process of merits review involves the AAT member stepping into the shoes of the original decision maker. This means they can revisit the entire nomination with fresh eyes. This is particularly relevant in the context of refused nominations where the process is not for the AAT Member to ''remit'' the application back to the Department if they make a positive finding. Rather, if, after conducting their review, the nomination criteria can be met, the AAT Member will set aside the refusal decision and substitute a more favourable decision i.e. an approval. You should therefore also be sure to clearly set out the other criteria for the nomination and specify how/why your client satisfies those. In this way you are giving your clients the best possible chances for success and assisting the Tribunal member to make a positive finding.Resources: Below you will see attached the following supporting documents: IMMI refusal_482 nomination_Goodman's Trasnport_7233LAW, A1, T2, 2024.4 July 2024 Goodman's Transport Lot 15, Depot Road Outskirts of Sydney 2555, NSW. In reply quote: Name of applicant: Goodman's Transport Pty Ltd Application ID: 11882266 Name of Nominee: Leonard Paul De Klerk Nomination TRN: EGO15ML8888 Visa Program: Temporary Skill Shortage (subclass 482) visa Stream: Medium Term Dear Sponsor Notification of nomination refusal I wish to advise that the application for approval of a nomination has been refused. The attached nomination refusal decision record outlines details about this decision. After careful consideration of the information provided, the applicant has failed to demonstrate that they have met the relevant criteria for the approval of this nomination as set out in Australian Migration Law. Review Rights No further assessment of this application can be taken at this office. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision within 21 days after the day on which you are taken to have received this letter. 1 Receiving this letter As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted. Please note that this review period is prescribed in law and an application for merits review may not be accepted after this date. Lodging an application for merits review Applications for merits review can be lodged online, in person, faxed or posted to any registry of the Administrative Appeals Tribunal (AAT). Online www.aat.gov.au/apply-online. Registries of the Administrative Appeals Tribunal New South Wales Level 6, 83 Clarence Street Sydney NSW 2000 Victoria Level 4, 15 William Street Melbourne VIC 3000 Western Australia Level 13, 111 St Georges Terrace Perth WA 6000 South Australia Level 2, 1 King William Street Adelaide SA 5000 Queensland Level 6, 295 Ann Street Brisbane QLD 4000 Tasmania 39-41 Davey Street Hobart TAS 7000 Australian Capital Territory Level 8, 14 Moore Street Canberra ACT 2601 Alternatively, review application forms can be lodged by email to m..n@aat.gov.au or by fax to 02 9276 5599 or 03 9454 6999 or 07 3052 3069. Further information about the merits review process is available from the AAT on the Tribunal website www.aat.gov.au, or by telephoning 1800 228 333. 2 Yours Sincerely Jerry Position Number: 81116677 Department of Home Affairs The original of this letter including any attachments was sent to: S..a@Goodmanstransport.com.au 3 Details of Nomination Name of Sponsor Sponsorship Application ID Nominated Person Client Name Client ID: Date of Birth: Details of Nomination application Place of lodgement Date of lodgement Nomination TRN: Stream: Information and evidence considered Goodman's Transport Pty Ltd 12872266 Leonard Paul De Klerk 11882267 13 August 1982 Online (Sydney processing centre) 26 June 2024 EGO15ML8888 Medium Term NOTICE OF DECISION NOMINATION REFUSAL NOTICE TEMPORARY SKILL SHORTAGE SUBCLASS 482 I am a delegated decision maker under the Migration Act. In reaching my decision, I have considered the following: Relevant legislation contained in the Migration Act 1958 (Cth) ''The Act'' and the Migration Regulations 1994 (Cth) ''The Regulations.'' Information contained in the Department's procedural instructions Documents and information provided by the applicant(s) Relevant information held on Department files 4 Reasons for decision Under section 140GB(2) of The Act, the Minister must approve an approved sponsor's nomination if: (a) in a case to which section 140GBA applies, unless the person is exempt under section 140GBB or 140GBC the labour market testing condition under section 140GBA is satisfied; and (aa) in a case in which the person is liable to pay nomination training contribution charge in relation to the nominationthe person has paid the charge; and (ab) in any casethe person is an approved work sponsor; and (b) in any case the prescribed criteria are satisfied. The prescribed criteria for approval of a nomination are set out in regulation 2.72 of the Regulations. Prescribed criteria (in part) Regulation 2.72 Criteria for approval of nomination - Temporary Skill Shortage (10) The Minister is satisfied that the position associated with the occupation is (a) genuine; I have assessed the applicant's application against the prescribed criteria in regulation 2.72 and I am not satisfied that the applicant meets paragraph 2.72(10)(a). Assessment of whether the position associated with the nominated occupation is genuine Paragraph 2.72(10)(a) of the Regulations requires that the position associated with the nominated occupation is genuine. Having assessed all the relevant information, I am not satisfied that the position nominated is needed in the business, given that there are already 4 other full time employees in the exact same position/occupation. I am also not satisfied that the nominated position was not created to facilitate a Migration outcome for the nominee. According to the ANZSCO occupation profile, a Diesel Motor Mechanic (321212) maintains, tests and repairs diesel motors and the mechanical parts of trucks, buses and other heavy vehicles such as transmissions, suspension, steering and brakes. The specific tasks include: Detecting and diagnosing faults in engines and parts. Dismantling and removing engine assemblies, transmissions, steering mechanisms and other components, and checking parts. Repairing and replacing worn and defective parts and reassembling mechanical components and referring to service manuals as needed. Performing scheduled maintenance services, such as oil changes, lubrications and engine tune-ups, to achieve smoother running of vehicles and ensure compliance with pollution regulations. Reassembling engines and parts after being repaired. Testing and adjusting mechanical parts after being repaired for proper performance. Diagnosing and testing parts with the assistance of computers. 5 May inspect vehicles and issue roadworthiness certificates or detail work required to achieve roadworthiness. Whilst, I am prepared to accept, that the nominee may be performing some or even most of these duties, as this would appear to be consistent with the nature and scope of the nominating business, the exact nature of the duties to be performed, is not clear. No position description was provided. The organisation chart provided with the nomination application, also shows that there are 4 other mechanics employed in this organisation which again leads me to question why a 5th one would be necessary given that the fleet of trucks owned by the company is modest and it would be reasonable to assume that not all trucks are in the depot at any given time. It is also not reasonable to believe that there may be mechanical problems, break downs, necessary repairs to the extent that 5 full time mechanics would be needed. There is also information before me which demonstrates that there is a familial relationship between the nominee and one of the other employees in the company. This fact, combined with my suspicion that a 5th full time mechanic may not be necessary for this company, has led me to conclude that this position may have been created to facilitate a Migration outcome for the nominee Mr De Klerk. While I am satisfied that the nominated position exists to some extent and that the nominee has the requisite skills, I am not satisfied that a 5th full time mechanic is needed in this company. I am not satisfied that the nominated position has not been created to facilitate a migration outcome for the nominee. Therefore, I am not satisfied that the position associated with the nominated occupation is genuine and consequently the applicant does not satisfy paragraph 2.72(10). Decision Subsection 140GB(2) of the Act, relevantly provide that a nomination application must satisfy the prescribed criteria in order to be approved. The prescribed criteria relevant to this application are set out in regulation 2.72. As the applicant does not satisfy paragraph 2.72(10), the criteria relevant to approval of the nomination are not met. Therefore, I refuse Goodman's Transport Pty Ltd.'s application for approval of nomination for a subclass 482 (Temporary Skills Shortage) Visa. Department of Home Affairs https://lms.griffith.edu.au/courses/23277/files/6043752?wrap=107/02/2024, 13:18 1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, First Edition, Revision 1 h..s@.nsf/Latestproducts/82155273857F359BCA2575DF002DA733?opendocument 1/3 Skip to main content Archived content. See ABS Website for latest information and statistics Australian Bureau of Statistics Search for: Submit search query: MENU Statistics Census Participating in a survey About > By Release Date 1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, First Edition, Revision 1 ARCHIVED ISSUE Released at 11:30 AM (CANBERRA TIME) 25/06/2009 Contents >> Major Group 3 Technicians and Trades Workers >> SUB-MAJOR GROUP 32 Automotive and Engineering Trades Workers >> MINOR GROUP 321 Automotive Electricians and Mechanics >> UNIT GROUP 3212 Motor Mechanics UNIT GROUP 3212 MOTOR MECHANICS MOTOR MECHANICS repair, maintain and test motor vehicle and other internal combustion engines and related mechanical components. Motor Vehicle Parts and Accessories Fitters are excluded from this unit group. Motor Vehicle Parts and Accessories Fitters are included in Unit Group 8994 Motor Vehicle Parts and Accessories Fitters. Indicative Skill Level: Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below. In Australia: AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3) In New Zealand: NZ Register Level 4 qualification (ANZSCO Skill Level 3) At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification. Registration or licensing may be required. Tasks Include: 07/02/2024, 13:18 1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, First Edition, Revision 1 h..s@.nsf/Latestproducts/82155273857F359BCA2575DF002DA733?opendocument 2/3 detecting and diagnosing faults in engines and parts dismantling and removing engine assemblies, transmissions, steering mechanisms and other components, and checking parts repairing and replacing worn and defective parts and reassembling mechanical components, and referring to service manuals as needed performing scheduled maintenance services, such as oil changes, lubrications and engine tune-ups, to achieve smoother running of vehicles and ensure compliance with pollution regulations reassembling engines and parts after being repaired testing and adjusting mechanical parts after being repaired for proper performance diagnosing and testing parts with the assistance of computers may inspect vehicles and issue roadworthiness certificates or detail work required to achieve roadworthiness Occupations: 321211 Motor Mechanic (General) 321212 Diesel Motor Mechanic 321213 Motorcycle Mechanic 321214 Small Engine Mechanic 321211 MOTOR MECHANIC (GENERAL) Alternative Title: Automotive Light Mechanic Maintains, tests and repairs petrol engines and the mechanical parts of lightweight motor vehicles such as transmissions, suspension, steering and brakes. Registration or licensing may be required. Skill Level: 3 Specialisations: Automatic Transmission Mechanic Automotive Airconditioning Mechanic Brake Mechanic Ground Support Equipment Fitter (Air Force) Vehicle Mechanic (Army) 321212 DIESEL MOTOR MECHANIC Maintains, tests and repairs diesel motors and the mechanical parts of trucks, buses and other heavy vehicles such as transmissions, suspension, steering and brakes. Registration or licensing may be required. Skill Level: 3 Specialisation: Automotive Heavy Mechanic 321213 MOTORCYCLE MECHANIC 07/02/2024, 13:18 1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, First Edition, Revision 1 h..s@.nsf/Latestproducts/82155273857F359BCA2575DF002DA733?opendocument 3/3 Maintains, tests and repairs the mechanical parts of motorcycles. Registration or licensing may be required. Skill Level: 3 321214 SMALL ENGINE MECHANIC Maintains, tests and repairs engines of chainsaws, lawn mowers, garden tractors and other equipment with small engines. Registration or licensing may be required. Skill Level: 3 Specialisations: Chainsaw Mechanic Lawnmower Mechanic Outboard Motor Mechanic Previous Page Next Page This page last updated 21 March 2023 Archived content. See ABS Website for latest information and statistics Creative commons Copyright Disclaimer Privacy Accessibility https://lms.griffith.edu.au/courses/23277/files/6043729?wrap=1Goodman's Transport Pty Ltd Position Description - Leonard De Klerk Position Title: Diesel Motor Mechanic Location: Goodman's Transport, Lot 15 Depot Road, Outskirts of Sydney, 2555 NSW Reports to: Robert Hearne (Owner/Director) Responsible for: - Maintaining the highest possible standards of maintenance for all Goodman's Trucks to ensure safety and efficiency as the primary operational objectives. - Maintaining ongoing professional development certifications to comply with legislative requirements and quality standards on which Goodman's Transport prides itself. - Detecting and diagnosing faults in engines and parts of Mercedez-Benz, Blue TEC Diesel Technology Trucks. - Dismantling and removing engine assemblies, transmissions, steering mechanisms and other components, and checking parts. - Repairing and replacing worn and defective parts and reassembling mechanical components and referring to service manuals as needed. - Performing scheduled maintenance services, such as oil changes, lubrications and engine tune-ups, to achieve smoother running of vehicles and ensure compliance with pollution regulations. - Reassembling engines and parts after being repaired. - Testing and adjusting mechanical parts after being repaired for proper performance diagnosing and testing parts with the assistance of computers.https://lms.griffith.edu.au/courses/23277/files/6043731?wrap=1Goodman's Transport nomination - important background information In a Temporary Skills Shortage nomination, the ''applicant'' is the nominator and the nominator in turn, is the business i.e. sole trader, company, trustee for a company etc. This is very important to understand. - For the nomination in question, the applicant was Goodman's Transport Pty Ltd (Australian Proprietary Limited company), trading as ''Goodman's Transport.'' - There are two directors; 1. Robert Hearne 2. Sonia Hearne Goodman's Transport Pty Ltd is registered with the Australian Securities and Investment Commission (ASIC) and the Australian Taxation Office (ATO). - Australian Company Number: 558632746 - Australian Business Number: 12558632746 Hence, the applicant for review in the Migration and Refugee Division of the AAT is also Goodman's Transport Pty Ltd The nominee (visa applicant) is Leonard De Klerk, born 13/8/1982 Sonia has been sent an acknowledgement letter from the AAT which stated the AAT case number as follows: 24123456. As mentioned, Robert, Sonia and Leonard are very upset and distressed. However, Sonia concedes that they should have engaged your services to assist with the TSS nomination in the first place. They did not realise how specialised and complex this process is. Especially in relation to demonstrating that the position is genuine. At the time of lodging the nomination in the immi account Sonia attached the following documents; - Evidence of advertisement attempts in accordance with the information stipulated on the Department of Home Affairs website. Note: you can assume, for the purposes of this task, that the Labour Market Testing attempts satisfy the requirements of s140GBA of the Act and LIN18/036. - Employment contract for Leonard De Klerk - compliant with the Fairwork, national employment standards. - A basic organisation chart (showing the employee breakdown and reporting lines) - Most recent BAS statement. - Copy of Business bank statement. Following some further questions, Sonia has provided you with the following information; 1. Leonard is the only foreign employee in the company - all others are Australian citizens. Goodman's Transport has never employed anyone on a visa. 2. The Australian mechanics employed by Goodman's Transport are all subject to the same terms and conditions of employment as Leonard, they have all signed fair work compliant employment contracts, and they are paid in accordance with the Road Transport and Distribution award. 3. Detailed position description for Leonard De Klerk (see document in assessment folder).HINT: Now is the time to start thinking creatively. Based on everything you know so far, what kinds of further documents could you request from Goodman's to substantiate the submissions you are making on their behalf? Refer to the learning materials and online classrooms in the course Workshops particularly Workshops 1 & 2 (Persuasive Legal Writing) For research on legislation and policy relating to the temporary skill shortage subclass 482 nomination in regulation 2.72 of the Migration Regulations 1994 (Cth) Use LEGENDcom For research on case law that may be relevant to one or more areas of the legislation in question: Use http://www.austlii.edu.au/ https://jade.io/ Links to an external site. or LexisNexis via the Griffith Library Page. Please use LEGENDcom References with Murdoch Referencing Tool