1318136 (Migration)

1318136 (Migration) [2015] AATA 3736 (24 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Gurcharn Singh ATF Sher Gill Unit Trust
CASE NUMBER:  1318136
DIBP REFERENCE(S):  CLF2012/133334
MEMBER:Alison Mercer
DATE:24 November 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 24 November 2015 at 12:58pm

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 13 November 2013 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant, Gurchan Singh as trustee for Sher Gill Unit Trust (trading as Sher Gill Orchards), applied for approval of the position of Vegetable Grower on 29 June 2012. The requirements for the approval of the nomination are found in r.5.19 of the Regulations which contains two alternative streams: an Employer nomination stream (r.5.19(2)) and a Regional Sponsored Migration nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(1A), the nomination meets the requirements of either stream and the employer is not subject of certain sanctions, then the application must be approved (r.5.19(1C)(a)). The application must otherwise be rejected (r.5.19(1C)(b)).
In this case, the applicant is seeking to satisfy the criteria in the Regional Sponsored Migration nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a) of the Regulations because the delegate was not satisfied that the applicant had demonstrated a need for a new position in the nominated occupation of Vegetable Grower. The delegate noted that the applicant operated 2 farms with 6 full-time employees and 50 part-time/seasonal employees. The delegate further noted the director Gurchan Singh’s claim that a new manager was required to take responsibility for the farms as Mr Singh had a new venture as a contractor recruiting and supplying workers for farms within the region which took up most of his time. Mr Singh also claimed that the applicant had recently secured funding for an irrigation upgrade which would lead to further expansion of the business. The delegate found, however, that no evidence had been provided to show that the nominated position was an already existing one which had become vacant. The delegate further found that the financial information provided by the applicant indicated that sales figures were declining. Therefore, the delegate did not accept that the applicant had demonstrated genuine need for the nominated position.
The Tribunal received a review application signed by Mr Gurchan Singh on behalf of the applicant on 2 December 2013. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Ms Merushe Asim, as its representative and authorised recipient for correspondence for the purposes of the review.
On 4 December 2014, the Tribunal wrote to the applicant pursuant to s.359(2) of the

Act to invite the applicant to provide information in writing, together with supporting documentation where available, to demonstrate that it met each part of r.5.19(4), noting that it had to meet all requirements within r.5.19(4) to be successful in its review application. The Tribunal noted that, without limiting the type of information that could be provided, it would be assisted to receive evidence of business registration, most recent financial statements and Business Activity Statements (BAS), organisational structure chart, employment contract for nominee and information demonstrating that there was still a need for a paid employee in the nominated position. The information was requested by 29 December 2014.
On 29 December 2014, the Tribunal received a submission from the applicant’s agent with supporting documentation. Further documents were received on 22 October 2015, following a request for updated information by the Tribunal.
The Tribunal wrote to the applicant via its agent on 2 November 2015 to invite a representative of the applicant to attend a hearing on 24 November 2015 via video conference. The Tribunal also requested that the nominee, Ms Jaspreet Kaur, be available to give evidence as a witness at the hearing.
On 21 November 2015, the Tribunal received additional documents from the applicant’s agent, being the applicant’s financial statements for 2013/14 and 2014/15.
Mr Gurchan Singh, representing the applicant, appeared before the Tribunal on 24 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Ms Jaspreet Kaur, and legal submissions from the applicant’s agent.
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 this case is whether the applicant meets the requirements for approval of the nomination under the Regional Sponsored Migration stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application must be compliant: r.5.19(1A)
Regulation 5.19(1A) requires that the application be made in accordance with approved form (1054) and be accompanied by the prescribed fee. In this case, the Tribunal is satisfied from the material on the Department file that the application was made on form 1054 and was not accompanied by a fee as there was no prescribed fee payable at the time of lodgment. As such, the Tribunal finds that r.5.19(1A) is met.
The employer is not the subject of certain actions: r.5.19(1C)(a)(iii)
Regulation 5.19(1C)(a)(iii) requires that the applicant not be the subject of an action that is described in s.140L (as it was prior to 14 September 2009) or s.140M of the Migration Act 1958. Such an action includes the cancelling of approval or the barring of the employer as a sponsor.
The Tribunal has reviewed the Department’s records, including its Integrated Client Service Environment (ICSE) electronic records and has been unable to locate any information indicating that the applicant has been subject to an action under either ss 140L or 140M.
Given the above findings, the Tribunal is satisfied that the requirement in r.5.19(1C)(a)(iii) is met.
Actively and lawfully operating a business in Australia: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the nomination relates to a need for a paid employee in a business that is actively and lawfully operating in Australia. The business must be operated by the applicant.
From the material on the Department’s file, including the applicant’s business registration, financial statements for the financial year 2012/13, 2013/14 and 2014/15, BAS to 30 June 2015, and statements from its owner Mr Gurchan Singh dated December 2014 and 19 October 2015, the Tribunal is satisfied that the applicant is lawfully and actively operating a business in the Goulburn Valley in Victoria since 1999, and that the business consists of 2 farms (130 acres in total) on which apples, apricots and plums, capsicum, eggplant and zucchini are grown.
The Tribunal notes the delegate was not satisfied that the applicant had demonstrated that it had a genuine need for a person to fill the nominated occupation, particularly since the position appeared not to have previously existed.
In his statement provided to the Tribunal in December 2014, Mr Gurcharn Singh identified a need for the position of Farm Manager on the basis that his rapidly growing new business as a contractor was taking up most of his time and he desperately needed a Farm Manager to operate his 2 farms. He stated that he had previously tried to recruit others people whom he had employed and offered to train but they were not interested in taking responsibility of management, as they were usually interested in seasonal work and moving on. Mr Singh further stated that he had spoken with Fruit Growers Victoria and other fruit growers that he dealt with on a daily basis and they had all acknowledged the difficulty of recruiting and retaining a qualified and skilled Farm Manager.
Mr Singh stated that he had recently been approved for government funding of $189,156 for irrigation works on his properties, and had removed thousands of trees to implement the new irrigation system. With the assistance of the nominee, he had planted new varieties of fruit trees and these needed careful management and supervision. In addition, Mr Singh was also upgrading his packing shed operations to cope with the anticipated increased production in 2015/16. He noted that due to the irrigation upgrade and removal of many fruit trees, production income had been down but would increase over the next 2 years as the new trees matured and started to bear fruit. Mr Singh asserted that this initial set up of the orchards was critical to his profitability in future as the new irrigation system will result in reduced costs of irrigation due to better efficiencies in irrigation, and the fact that the trees were being planted in closer plantings and on a trellis system, which would provide more tonnage per acre and a more efficient way to grow and harvest the fruit. He further stated that the set up of the orchards, planting and nurturing of new trees, pruning, shaping and thinning of the trees to result in the best quality and quantity of production was important work that the nominee was currently managing. She also trained staff in the new planting and nurturing systems as well as maintaining the existing horticultural and vegetable growing business.
Mr Singh stated that he had employed the nominee since 2012 for 20 hours per week as per her student visa conditions but desperately needed her to convert to full-time work so that he could delegate additional managerial work to her as the orchards continued to grow and develop. He confirmed that he was offering her 2 years of full-time work and more if she was agreeable.
In his updated statement of 19 October 2015, Mr Singh stated that he employed 6 permanent employees and had up to 50 seasonal employees for planting, pruning and harvesting. He confirmed that he still had a desperate need for a Farm Manager to run the 2 farms as his time was mostly taken up with his newer business as a labour recruiter for workers for farms within the area. He confirmed his previous advice about the grant he had received for the irrigation works on his properties, the fact that he and the nominee had therefore removed many trees and planted new varieties and provided a planting schedule for the 2 properties that runs until 2018. Mr Singh further stated that he was upgrading his packing shed operations to cope with the anticipated increase in production for 2015/16 as they had already started to harvest from trees planted in 2014 and 2015. Mr Singh reiterated that the set up of the orchards, planting and nurturing of the new trees, pruning, shaping and thinning of the trees to the best quality and quantity of production was important work that the applicant managed for him. He added that now that they were harvesting the new trees and continuing to plant, the workload continued to grow and he was using contract staff supervised by the applicant. The applicant stated that the applicant had taken over many of the critical duties of the farm but he needed her to be able to work full-time to alleviate the pressure on him that was growing each day, particularly as the harvest season was approaching. Mr Gill stated that he had hoped that the Tribunal would have heard the case earlier as he could not find another skilled operator to work in the business and whom he could trust, as the young trees needed a lot of attention to ensure that they grew well and strong. The harvesting of the trees required attention to ensure that the trees were not damaged. He confirmed that he was offering the applicant 2 years of full-time work and more if she was agreeable.
At the hearing, both Mr Singh and Ms Kaur (the nominee) provided evidence to the Tribunal separately. The Tribunal found them both to be credible witnesses whose evidence about the development of the applicant’s business and Ms Kaur’s role within it was consistent.
Mr Singh briefly summarised developments since 2012 for the business. In 2012, SPC ended a contract to purchase pears from the applicant business. This was a substantial blow, as one of the 2 farms was largely devoted to growing pears. Mr Singh said that after considerable thought and discussions with his bank manager, he applied for, and was successful in obtaining, a government grant for approximately $190,000 by selling water to the government. The grant money was used to install a new irrigation system across both properties operated by the applicant. The pear trees from one property were removed, and a variety of new fruit trees were planted in a new high density pattern. Mr Singh gave as an example removing 1,000 pear trees from one block, and planting 8,500 new fruit trees (apricots, apples and plums) in the same area. The previous pear yield had been about 200 tonnes, but the expected yield from the higher density planting is around 550 tonnes.
Mr Singh told the Tribunal that there was a downturn in the business during this transitional period, as he also closed the packing room because that was largely for the SPC pears which were no longer being grown. In the meantime, he began hiring out 14 cherry picker machines that the business already owned in order to generate an interim cash flow for the business. Mr Singh said that this side of the business took off and required a significant amount of attention from him to train staff to use the machinery correctly and to maintain and repair the equipment. He had much less time to spend managing the orchards and devolved this role to the nominee. She was limited by her visa conditions to 20 hours per week during this period, and so he still had some responsibility for running the orchards, but his main focus was on the machinery contracting business. Since July 2015, the nominee has been granted permission to work full-time and he has been able to hand over residual responsibilities for the orchards to her.
Mr Singh confirmed that the new fruit trees planted in 2013, 2014 and 2015 will result in increased production. They are harvesting the ones planted in 2013 at present, and the apricots have been very profitable. Apples will be harvested in 2016 and other fruits after this. Ultimately, his aim it to replant the whole property (both orchards) with high density planting, and the nominee is crucial to this. She has already helped him grow the business. Mr Singh stated that for at least the next 2 years, he would continue to mainly manage the equipment contracting business and rely on the nominee to manage the orchards; after this period, he anticipated that they would reopen the packing shed for the new varieties and the business would be reliant on the equipment contracting business. He noted that the 2014/15 financial statements for the business show a significant increase in sales and net profit from the much slower, transitional financial year of 2013/14. He further clarified that the wages listed in the 2013/14 and 2014/15 financial statements for the applicant of $26, 608 and $25,108 respectively, represented Ms Kaur’s wages for working 20 hours per week. The business employed other workers, but they were paid by an associated company also operated by Mr Singh, Merrigum Enterprises Pty Ltd.
Ms Kaur gave evidence that she completed a Diploma of Horticulture in 2011, then relocated to Kyabram to work 20 hours per week for Mr Singh in the packing shed, and then as Farm Manager, while she completed further business and management qualifications in Melbourne. Her studies were 2 days per week and the rest of the time she was working for the applicant for 20 hours per week. Ms Kaur gave evidence consistent with Mr Singh regarding the development of the business and its transition from tradition planting to high density planting with new fruit varieties.
Having had regard to all of the documentary and oral evidence provided, the Tribunal is satisfied that the nomination is in respect of a genuine need for a paid employee within the applicant’s business, and that the applicant is actively and lawfully operating a business in Australia.
Given the above findings, the Tribunal finds that the requirement in r.5.19(4)(a) is met.
Nature of the appointment: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the appointment will provide the employee with full-time employment for at least 2 years in regional Australia. ‘Regional Australia’ is a part of Australia defined in the instrument IMMI 11/058. There are alternative requirements for persons who held a specified Refugee and Humanitarian visa, but these are not relevant to the present case.
Based on the updated contract of employment provided to the Tribunal dated 19 October 2015 (which was signed by the applicant and Mr Singh), the Tribunal is satisfied that the appointment would provide the employee with full-time employment (38 hours per week) for at least 2 years in Merrigum in Victoria, postcode 3618, and that this postcode is specified in IMMI 11/058 as being in regional Australia for the purposes of the Regional Sponsored Migration Scheme.
The Tribunal notes that the applicant has already provided evidence, in the form of PAYG statements and its financial reports for 2013/14, of its payment of the nominee for working 20 hours per week. It further notes that her salary has now increased since she was given permission to work full time in July 2015. The applicant’s income for the 2014/15 financial year was $447,833, with net profit of $74,983. The Tribunal accepts Mr Singh’s evidence that the business income and net profits will most likely continue to rise over the coming years as the newly planted high density fruit trees continue to yield, and further high density planting is undertaken. The Tribunal is therefore satisfied that the applicant’s business has, and will have, the financial capacity to pay the nominee’s salary for at least 2 years.
Given the above findings, the requirement in r.5.19(4)(b) is met.
Minimum qualifications: r.5.19(4)(c)
Regulation 5.19(4)(c) requires that unless the appointment is exceptional, the work to be performed requires the appointment of a person who has a diploma or higher qualification. ‘Diploma’ for these purposes is defined in r.2.26A(6).
The Tribunal notes that the original nominated occupation was Vegetable Grower, but the submissions to the Tribunal refer to the nominated occupation as Farm Manager, and indicate that the nominated position has responsibility for managing the operations of 2 orchards growing both fruit and vegetables.
The Tribunal has reviewed the Australian and New Zealand Standard Classification of Occupations (ANZSCO) online dictionary and is satisfied that the most accurate classification of the nominated occupation is either Fruit or Nut Grower (ANZSCO code 121213) or Mixed Crop Farmer (ANZSCO code 121216). Both of these occupations fall within Unit Group 1212 (Crop Farmers), which in turn falls within Sub-Major Group 12 (Farmers and Farm Managers). The Tribunal notes that the occupation Vegetable Gardener (ANZSCO code 121221) also falls within the same Unit and Sub-Major Group within ANZSCO.
ANZSCO indicates that most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification, and that at least 5 years of relevant experience may substitute for formal qualifications.

The Tribunal is therefore satisfied that the work to be performed in the nominated occupation requires the appointment of a person who has a Diploma or higher qualification, noting that a Bachelor degree is a higher qualification than a Diploma within the Australian Qualifications Framework (AQF):
Given the above, the Tribunal finds that the requirement in r.5.19(4)(c) is met.
Standards for wages and working conditions: r.5.19(4)(d)
Regulation 5.19(4)(d) requires that the employee is to be employed in Australia in accordance with the standards for wages and working conditions provided under relevant Australian legislation and awards.
The Tribunal notes that the most recent contract of employment between the applicant and nominee Ms Kaur dated 19 October 2015 specifies a salary of $45,000 per year plus 9.5% superannuation. The Tribunal is further satisfied that the relevant Award for this occupation is the Commonwealth Horticulture Award 2010. The Tribunal notes that this Award provides that the minimum weekly award for the highest employee skill level (level 5) is $746.20 per week, or $38,802.40 per year. The Tribunal is satisfied that the proposed salary for the nominee exceeds this.
The Tribunal is further satisfied that that the remainder of the conditions in the contract of employment between the applicant and nominee are consistent with those set out in the Federal Fair Work Act 2009.
Given the above, the Tribunal finds that the requirement in r.5.19(4)(d) is met.
Certification by Gazetted body: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that a body specified in Gazette Notice has certified that the nomination meets the certain requirements.
The Tribunal is satisfied from the material on the Department file that a relevant Regional Certifying Body (RCB) as specified in IMMI 11/058, being the Department of Business and Innovation in Shepparton, certified on 22 June 2012 that there was a need for a paid employee in the business, that the business was lawfully and actively operating in regional Australia, that the position required qualifications equivalent to at least Diploma level and that the nominated position was available for at least 2 years on a full-time basis.
At hearing, Mr Singh confirmed that it is still very difficult to get local candidates for Farm Manager positions as few people want to stay on in such positions and prefer to do seasonal picking work. He was confident that the RCB would still certify that the business had a genuine need for the position. The applicant’s agent submitted that she acted for a number of orchardists in the region, and was aware that even large companies generally recruited overseas for Orchard or Farm Manager positions due to the lack of available local candidates.
Given the above findings, the Tribunal is satisfied that the requirement in r.5.19(4)(e) is met.
Nothing adverse known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires the Tribunal to be satisfied that nothing adverse is known to Immigration about the business background of the applicant, its officers, or any member of a relevant partnership.
Having reviewed the Department’s file and its electronic records, the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to Immigration about the business background of the applicant, its officers, or any member of a relevant partnership.
Given the above, the Tribunal finds that the requirement in r.5.19(4)(f) is met.
Satisfactory record of compliance with immigration laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires the Tribunal to be satisfied that the applicant has a satisfactory record of compliance with the immigration laws of Australia.
As noted above, the Department’s ICSE electronic records indicate that no sanctions have been imposed on the applicant pursuant to ss 140L or 140M of the Act. There is no indication of any other non-compliance with immigration laws by the application.
Given the above, the Tribunal finds that the requirement in r.5.19(4)(g) is met.
Satisfactory record of compliance with workplace relations laws: r.5.19(4)(h)
Regulation 5.19(4)(h) requires that the Tribunal be satisfied that the applicant has a satisfactory record of compliance with workplace relation laws of the Commonwealth and each State or Territory in which the applicant operates and has employees.
In this case, the Tribunal is satisfied that there is no information on the Department’s file or in its electronic records, or otherwise before the Tribunal, indicating that the applicant does not have a satisfactory record of compliance with workplace relation laws of the Commonwealth and Victoria.
Given the above, the Tribunal finds that the requirement in r.5.19(4)(h) is met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Alison Mercer
Member

ATTACHMENT – RELEVANT LAW
Migration Regulations 1994
5.19.    Approval of nominated positions (employer nomination)
…
(1A)Application must be:
(a)made in accordance with approved form 785 or 1054; and
(b)accompanied by the fee prescribed in regulation 5.37.
(1B)The Minister may, in writing, approve or reject an application.
(1C)However:
(a)the Minister must approve an application if:
(i)       the application is made in accordance with subregulation (1A); and
(ii)      the nominated position is the subject of an employer nomination that:
(A)if the application was made using form 785 - meets the requirements of subregulation (2); or
(B)if the application was made using form 1054 - meets the requirements of   subregulation (4); and
(iii)     the employer is not the subject of an action that is described in section 140L of the Act (as in force immediately before 14 September 2009) or section 140M of the Act; and
(b)the Minister must reject an application if any of the requirements in paragraph (a) is not met.
…
(4)An employer nomination meets the requirements of this subregulation if:
(a)the employer nomination is made by an employer in respect of a need for a paid employee in a business that is:
(i)       actively and lawfully operating in regional Australia; and
(ii)      operated by that employer; and
(b)either:
(i)       the appointment:
(A)will provide the employee with full-time employment; and
(B)will be for at least 2 years; and
(C)will be located in regional Australia; or
(ii)      if the employer nomination relates to a person designated under regulation 2.07AO — the appointment:
(A)will provide the employee with either continuing full-time employment or seasonal employment that will continue; and
(B)is in accordance with the employment the employee has undertaken in regional Australia over the previous 12 months; and
(C)will be located in regional Australia; and
(c)unless the appointment is exceptional, the work to be performed requires the appointment of a person who has a diploma (within the meaning of subregulation 2.26A(6)) or higher qualification; and
(d) the employee is to be employed or engaged in Australia in accordance with the standards for wages and working conditions provided for under relevant Australian legislation and awards; and
(e)a body specified by Gazette Notice for this paragraph certifies that the employer nomination meets the requirements of paragraphs (a), (b) and (c); and
(f)the Minister is satisfied that nothing adverse is known to Immigration about the business background of:
(i)       the employer; or
(ii)      any officer of any of the entities that constitute the employer; or
(iii)     any individual who is a member of a partnership that is 1 of the entities that constitute the employer; and
(g)the Minister is satisfied that the employer has a satisfactory record of compliance with the immigration laws of Australia; and
(h)the Minister is satisfied that the employer has a satisfactory record of compliance with workplace relations laws of:
(i)       the Commonwealth; and
(ii)      each State or Territory in which the employer operates the business and has employees of that business.

[2015] AATA 3736

24 November 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction