1406363 (Migration)

[2015] AATA 3262

1406363 (Migration) [2015] AATA 3262 (30 July 2015)

.

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Harris Farm Markets Pty Ltd

VISA APPLICANTS:  Mr Xueqin Huang
Ms Zhiqun Cai

CASE NUMBER:  1406363

DIBP REFERENCE(S):  BCC2014/158111

MEMBER:Dione Dimitriadis

DATE:30 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Temporary Business Entry (Class UC) visas.

Statement made on 30 July 2015 at 10:43am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 17 January 2014.

3. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

4. The delegate refused to grant the visas on 31 March 2014 on the basis that cl.457.223(4)(e) was not met because the first named visa applicant (the visa applicant) had not demonstrated that he has the necessary skills to perform the nominated occupation of Agricultural Technician.

5. The review applicant appeared before the Tribunal on 23 April 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Frederick Albert Haskins who appeared in person at the hearing. An interpreter in the Cantonese and English languages was available if needed.

6. The review applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

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

   CLAIMS AND EVIDENCE

8. The visa applicant applied for the visa and stated that his sponsoring employer is Harris Farm Markets Pty Ltd (the review applicant). The visa applicant stated that the base rate of pay is $97,000 with guaranteed annual earnings of $107,000.

9. The visa application indicates that the visa applicant completed junior secondary education and passed the examination for the Agricultural Technical Title Certificate in China in July 2013. He was self-employed as a vegetable grower from 1983 to January 2014 and worked as an Agricultural Technician with Gaoyao Sheng Feng Farmers Cooperative from September 2009 to January 2014.  

10. The review applicant nominated the visa applicant in relation to the occupation of Agricultural Technician to work at Warehouse W, Sydney Markets, Flemington. According to the nomination application, provided by the review applicant to the Tribunal, the visa applicant will supervise and provide technical support in vegetable growing.  

11. The visa applicant provided a number of documents to the Department of Immigration (the Department) including copies of the following:

    ·The visa applicant’s resumé;

    ·Co-operative member’s application dated 2 September 2009 to Gaoyao Sheng Feng Specialised Fruit and Vegetable Farmers Cooperative (Gaoyao Cooperative) by the visa applicant;

    ·Certification (of employment and qualification record) by Gaoyao Cooperative that the visa applicant is an Agricultural Technician of the Cooperative and was awarded the Agricultural Technical Title Certificate and the certificate “is pending”;  

    ·Certification by Gaoyao Agricultural Bureau in August 2013 that the visa applicant attended the examination in July 2013 for the agricultural farming techniques training organised by the Agricultural Bureau;

    ·Offer of employment dated 5 December 2013 from the review applicant to the visa applicant for the position of full-time Agricultural Technician to be based at the “Chinese Vegetable Farm store” initially, with a base salary of $97,000.

12. Information in the Department’s file indicates that the visa applicant’s employment and qualification record and his resumé were submitted to the Department’s representatives at the Australian Embassy in Guangzhou in China for verification of authenticity. On 25 February 2014, advice was received from the Department’s representatives that they had attempted to contact Gaoyao Cooperative. The 3 telephone numbers provided on the visa applicant’s employment and qualification record were called but all 3 numbers were out of service.  

13. Information in the Department’s file indicates that a Departmental representative then contacted the visa applicant on his home number and information was provided by the visa applicant as follows:

    ØHe farms 15 mu (approximately equivalent to 1 hectare) of land which is leased from other persons. He grows vegetables on this land which are collected by the Co-operative regularly. The visa applicant and his wife work on the farm themselves and hire temporary helpers when it is busy.

    ØThe visa applicant manually farms the land and uses a tractor. The actual land available for farming at any given time is 7 to 8 mu (approximately equivalent to 0.5 of a hectare) as the rest of the land needs to be maintained and fertilised after farming.

    ØThe visa applicant sells his produce through the Cooperative because it has more avenues for sales. The Cooperative purchases his produce with prices that are a little  higher than the standard wholesale market rate and in addition pays him CNY1200 (approximately equivalent to AUD $200) per month.

    ØThe visa applicant stated that he is paid the additional amount because he has skills but that the Cooperative pays all members the same amount of money monthly.

    ØWhen asked whether that means that all members have the same level of skill, the visa applicant did not respond and stated that not all Cooperative members receive the payment.

    ØThe visa applicant stated that in addition to farming, he assists other Gaoyao Cooperative members in their growing activities, including providing information to temporary workers about fertilising and controlling parasites in preparation for growing vegetables.

    ØWhen put to him that such knowledge is considered basic, regular, farming knowledge which every experienced vegetable grower has, the visa applicant stated that this is not necessarily the case and he obtained the skills through many years of growing vegetables.

    ØWhen asked for information about his specialist skills, the visa applicant was unable to elaborate further, except to say that he has grafting skills and experience in parasite control and prevention. When asked what kind of grafting he had done the visa applicant stated that he has grafted 2 melon seeds together. When asked how he controls and prevents parasites, the visa applicant stated that he dries the soil in the sun, sterilising and killing the parasites. When asked if he has performed any experiments or tests, the visa applicant mentioned grafting again.

14. The Departmental representative noted that the visa applicant kept mentioning that he has skills, however the skills he described were basic skills that one would expect most vegetable growers to have.

15. The delegate refused the visa application on the basis that the visa applicant did not satisfy cl.457.223(4)(e). The delegate stated that in the absence of formal tertiary qualifications, the visa applicant’s employment and qualification record and his resumé were submitted to the Department’s representatives at the Australian Embassy in Guangzhou in China for verification of authenticity. On 25 February 2014 advice was received from the Department’s representatives that they had attempted to contact the Gaoyao Sheng Feng Specialised Fruit and Vegetable Farmers Cooperative which is described on the Internet as an organisation that purchases vegetables and fruit grown by its members and sells locally and in the broader domestic market. The 3 telephone numbers provided on the visa applicant’s employment and qualification record were called but all 3 of the numbers were out of service. The delegate stated that no independent verification could be undertaken. The delegate found that the visa applicant has not demonstrated that he has the minimum qualifications, skills and experience to undertake the occupation of Agricultural Technician. The visa applicant could only provide general and contradictory information about how he provides skilled consultation to other members of Gaoyao Co-operative and/or temporary workers.    

16. At the time of lodging the application for review, the review applicant provided copies of the delegate’s decision record, notification and decision by the Department approving the nomination of the occupation of Agricultural Technician by the review applicant in relation to the visa applicant on 30 December 2013.

17. On 24 December 2014 the Tribunal wrote to the review applicant and invited the review applicant to provide information to demonstrate that the visa applicant is the subject of an approved business nomination. The Tribunal informed the review applicant that it was approved as a standard business sponsor on 26 February 2011 and the sponsorship agreement expired on 26 February 2014 and that the nomination ceased 3 months after the day on which the approval as a standard business sponsor ceased.

18. On 5 January 2015 the Tribunal received a request for an extension of time which the Tribunal granted until 19 January 2015.

19. On 19 January 2015 the Tribunal received from the representative acknowledgements by the Department of applications for approval of the review applicant as a standard business sponsor, application for approval of a nomination and a copy of the application for approval of the nomination.

20. On 17 February 2015 the Tribunal wrote to and invited the review applicant to a hearing on 23 April 2015. The Tribunal also invited the review applicant to provide information in support of the application prior to the hearing.

21. On 26 March 2015 the Tribunal received from the representative a submission to the Department. In the submission, the representative stated that the sponsor has nominated the visa applicant to fill the nominated position of Agricultural Technician. The representative stated that the visa applicant has many years of growing experience in China and is highly knowledgeable and skilled in effective and sustainable farming of Asian vegetables including arrowroot, eggplants, cucumber, bitter melon and pumpkin. He is experienced in providing technical support in overall farming practice. The review applicant wishes to nominate the visa applicant to help maintain and develop the existing business and employment. The visa applicant possesses the required farming experience and skills for the nominated position.

22. The representative stated that there is no comparable existing Australian employee who performs similar job duties in the workplace. The visa applicant’s base salary of $97,000 per annum is an individual arrangement “in consideration of the Australian market salary rate for  the nominee’s skill level as attached and the Department’s specific requirement for exemption of English language.”

23. The representative stated that they made reference to the broader labour market from website search including PayScale and MyCareer and the data obtained demonstrates that the market salary rate for this occupation is above TSMIT and that the proposed salary of $97,000 for the nominated position falls within the market salary range for this level of occupation. The review applicant submits that the terms and conditions of employment will be no less favourable than those that would be provided to an Australian worker performing equivalent work in the same workplace. The representative stated that the review applicant confirms that the duties of the nominated position include a significant majority of the duties as listed in ANZSCO. The representative also referred to the employment contract. The responsibilities and duties are as follows:

    ·Plan and manage the overall process of sustainable vegetable production and maintain standards of quality;

    ·Identify and control pathogenic micro-organisms and insects, parasites, fungi and weeds harmful to vegetables;

    ·Examine the physical characteristics of farm land to determine its most effective use and identify nutrient deficiencies;

    ·Monitor to maintain optimal growing conditions;

    ·Maintain and evaluate records of growing, and assist in developing new methods of planting, fertilising, harvesting and processing crops to achieve optimum land usage;

    ·Train and supervise workers in vegetable growing.

24. On 26 March 2015 the Tribunal also received from the representative a number of documents including copies of a contract dated 15 January 2015, notification of approval of a nomination on 24 March 2015 by the Department and notification of approval of the review applicant as a standard business sponsor, annual report for the 52 week period ending 29 June 2014, independent auditors report and an Account Schedule for the review applicant.

    The Tribunal hearing

25. The Tribunal informed the review applicant of the requirements of cl.457.223(4)(e), cl.457.223(4)(d) and cl.457.223(4)(da) and informed the review applicant that it would consider whether the visa applicant met these criteria.

26. The review applicant was represented by Mr Gary Sin Chor So who stated that he was authorised by the review applicant to represent Harris Farm Pty Ltd. Mr So stated that he mainly looks after Asian vegetables and liaises between the farm, the workers, the farm managers and head office. He has worked for the review applicant from 1973.

27. The representative stated that Mr David Harris, the managing-director, has appointed Mr So to represent the review applicant before the Tribunal. Mr So is authorised to act on behalf of the review applicant and they will provide a written authority after the hearing.

28. Mr So stated that he is based at Kemps Creek at a farm. The review applicant started trying to make Asian vegetables popular in 1995 and applied for 457 technicians to come over. The annual turnover was $250,000 on Asian vegetables and is now $5 million.  Agricultural Technicians came here and recommended changes to the review applicant. The changes were followed by other local growers. Since then the review applicant has continued to expand. Mr So currently has 40 acres under cultivation. Mr So has one Subclass 457 visa holder, an Agricultural Technician, left. 

29. The review applicant needs 3 or 4 Agricultural Technicians to run the operation. The Tribunal asked whether they have advertised in Australia for Agricultural Technicians. Mr So stated that he had 2 years’ experience in farming in Cooma.  He advertised, but no-one turned up. Mr So stated that there is no Agricultural Technician in Australia, or in New South Wales, specialising in Asian vegetables. He needs an Agricultural Technician who knows about the behaviour and characteristics of Asian vegetables.  As far as he knows, there is no technical college, university or TAFE course dealing with Asian vegetables. That is where the 457 Agricultural Technician comes in.  If he advertises, he does not think he will get what the company requires.

30. The review applicant has had 5 Agricultural Technicians over the years, including the current Subclass 457 visa holder. The Tribunal brought to Mr So’s attention that he said that there are no Agricultural Technicians in New South Wales or in Australia specialising in Asian vegetables. Mr So stated that he does not know about interstate but he is pretty sure that is the case in New South Wales. The review applicant made Asian vegetables very popular with the public and promoted them.  

31. The Tribunal informed the review applicant that it has concerns about the statement that there are no Agricultural Technicians specialising in Asian vegetables in New South Wales. The Tribunal asked the review applicant about the 4 Agricultural Technicians that are no longer working for the review applicant. The review applicant stated that they resigned.

32. The Tribunal asked the review applicant how they know that there are no Agricultural Technicians, if they do not advertise. Mr So stated that in the metropolitan area all the fresh produce comes from the Sydney basin and mostly they are Asian market gardeners. In Sydney there are 300 or 400 market gardeners of Asian vegetables supplying to the Sydney markets. If there is a course for Agricultural Technicians, farms would be hiring them locally. That is the reason that Mr Fred Haskin has been asked to come in to give evidence. 

33. The review applicant stated that the position is genuine. They make sure they follow all the rules, including whatever the Department, Workcover and the Taxation Office require.  The Tribunal informed the review applicant that it has some concerns about the application and one of the reasons is the base rate of pay of $97,000 that the review applicant is going to pay the visa applicant. The Tribunal informed the review applicant that it appears to be an inflated wage, possibly to avoid the English language proficiency requirements. The review applicant stated that they are willing to pay $97,000 salary and are certain it will be profitable for them.

34. The Tribunal brought to the review applicant's attention that the Australian government site, Job Outlook, indicates that the average weekly earnings before tax for a full-time Agricultural Technician are $950 per week, which is less than $50,000 a year. The review applicant stated that their records show that Agricultural Technicians are worth this money to the review applicant. Using 457 visa holders has been profitable for the review applicant.  

35. The Tribunal asked the review applicant if it is paying that amount so that the review applicant does not have to do the English language test. The review applicant stated “yes or no”. From their experience with previous 457 visa holders, the review applicant understands their skills and that they will make a big contribution to its operations. The review applicant is happy to pay that money to have these skilled people.

36. The review applicant stated that they have a Subclass 457 visa holder, who is an Agricultural Technician, working for them and he is earning about $60,000. They are negotiating with him to pay the amount of $97,000 because he is the last one they have. The Tribunal brought to the review applicant's attention that this is a big increase from $60,000 to $97,000. The review applicant stated that he will have to take on more responsibility and has already taken on more responsibility because they only have one Subclass 457 visa holder left.

37. The Tribunal asked the review applicant how they know that the visa applicant has the skills. Mr So stated that he does not know. He is relying on Mr Yee Tiy Choy who was a grower in the Sydney market. Mr Choy searched for this type of person or skills suitable for the review applicant. Mr So knows him as he is a friend and a grower. Mr Choy travels back to his village. Mr So told him that the review applicant was looking for that type of skill and Mr So is relying on him to find the right person for the review applicant. Mr So stated that the review applicant has been very happy because the records show that there has been an increase in turnover from $250,000 to $5 million. Mr Choy previously assisted the review applicant to find the 5 Agricultural Technicians that the review applicant sponsored on 457 visas.

1. Mr So has not been to China to see the visa applicant work on the farm. Mr So is relying on Mr Choy’s feedback. They have been satisfied with his recommendations.

2. The Tribunal asked the review applicant if they are aware if all the Agricultural Technicians that the review applicant sponsored, have some association with the Gaoyao Co-operative. Mr So stated that he does not have any knowledge. His concern is that Mr Choy found the right person that is suitable for the review applicant. 

3. The Tribunal referred the review applicant to the delegate’s decision record which stated that the Department tried to verify the experience and qualifications of the visa applicant through the Australian Embassy in China. Mr So stated that he briefly read the decision. His concern is to get the right skilled people and he has no concern about their interviews.

4. The Tribunal informed the review applicant that it has concerns that the Department, through the Australian Embassy, attempted to contact the Gaoyao Co-operative and the 3 telephone numbers on the certification of employment and qualifications were out service so they were unable to verify any of the information. The Tribunal informed the review applicant that it is of concern that one was unable to ring and find out if the person has the qualifications or the employment experience. The Tribunal asked the review applicant if they wanted to say anything about this. Mr So stated that he does not have anything that he wants to add. The Tribunal informed the review applicant that it has concerns that no independent verification could be undertaken.

5. The Tribunal informed the review applicant that the Department contacted the visa applicant who gave information on the telephone and some information was contradictory, according to the information in the decision record. The Tribunal informed the review applicant that information in the decision record is that the visa applicant stated that: he farmed 15 Mu of land and he and his wife work on the farm and they hire temporary helpers when it is busy; the visa applicant leases the land from other persons and he grows vegetables on this land which are collected by the Cooperative regularly; the visa applicant farms the land manually and uses a tractor; and the actual land available for farming at any given time is 7 to 8 mu as the rest of the land needs to be maintained and fertilised after farming.  Mr So stated that he is relying on Mr Choy’s recommendation and if he chooses the visa applicant, he must see the benefits for the review applicant. Mr So does not have any knowledge about the type of work the visa applicant and his wife do. Mr Choy has never been employed by the review applicant and is not paid a fee to find these people. He is doing it as a favour. Mr Choy understands what the review applicant needs and how the review applicant promotes Asian vegetables.

6. The review applicant stated that the visa applicant will be employed at Kemp’s Creek where there are 40 acres. Warehouse W, Sydney Markets, Flemington is the head office. The visa applicant will supervise the farm and report back to Mr So and head office. 

7. The Tribunal informed the review applicant that the visa applicant does not have formal qualifications of a degree, an advanced diploma or diploma although they might have work experience. Mr So stated that he does not know whether they have formal qualifications.

8. The Tribunal informed the review applicant that the offer of employment says that the visa applicant will be initially based at the Chinese vegetable farm store. Mr So stated that this will be at Kemp’s Creek. There is no store there. It is where they do packing and dispatches. This is one of the contributions Subclass 457 holders make to streamline things in relation to Asian vegetables. They have a motto of “from the paddock to the store in 20 hours”. The 457 holders helped the review applicant to streamline production. They have a shed there to do the prepacking.

9. The Tribunal informed the review applicant that it is also looking at whether the visa applicant meets cl.457.223(4)(d). The Tribunal asked the review applicant if they wanted to say anything about whether the visa applicant’s intention to perform the occupation is genuine. The review applicant stated that they truly believe that the visa applicant’s duties are genuine. Past 457 workers are genuine and the review applicant has complied with all the regulations.

10. Regarding the issue of whether the position associated with the nominated occupation is genuine, Mr So stated that he can only speak about his past experience with 457 visa holders.  He assumes that the person Mr Choy chooses will satisfy the requirements. His duties will be to improve packaging, quality control, soil conditions and sustainability and for the company to be able to keep up continuity of delivery to the stores. The visa applicant’s role will be to organise and make sure the planting schedules are on track to keep continuity.  The visa applicant will be able to make on the spot decisions about what to pick and he will make quick decisions in different weather conditions.   

11. The Tribunal informed the review applicant that he is putting a lot of faith in Mr Choy’s judgment. Mr So stated “Absolutely, absolutely.” He is a very reputable grower. Since 1996 from the time they first started, the review applicant has been more than happy.

12. The Tribunal referred the review applicant to the interview conducted with the visa applicant who stated that he sells his produce through the Gaoyao Cooperative because it has more avenues for sales and the Gaoyao Cooperative purchases his produce with prices that are a little bit higher than the standard wholesale market rate and in addition pays him CNY1200 per month. Mr So stated that he does not understand all this. The Tribunal brought to the review applicant's attention that the visa applicant stated that he is paid this amount because he has the skills but that the Gaoyao Cooperative pays all members the same amount of money monthly, although he later stated that not all the Gaoyao Cooperative members receive the payment. The Tribunal informed the review applicant that there was an inconsistency in this statement. Mr So stated that he has no knowledge of this and cannot comment on this. The review applicant pays growers differently and he has no knowledge of how the Cooperative works.

13. The Tribunal brought to the review applicant's attention that the Department was unable to obtain information from the Gaoyao Cooperative because all 3 telephone numbers on that certification were out of service. The review applicant stated “okay”.

14. The Tribunal brought to the review applicant's attention that concerns were raised during the telephone interview and the visa applicant stated that, in addition to farming, he assists other Gaoyao Cooperative members in their growing activities, including providing information to temporary workers about fertilising and controlling parasites in preparation for growing vegetables. The Tribunal informed the review applicant that the Departmental representative  put to the visa applicant that such knowledge is basic farming knowledge which every experienced vegetable grower has.  

15. The Tribunal informed the review applicant that the visa applicant has been nominated in a high level position as an Agricultural Technician yet the information is that he is growing on a farm of about a hectare. The review applicant stated that their experience with other 457 visa holders is that they easily adapt to their farm which is much bigger than the farm the visa applicant is farming now.  That is why he has so much confidence in Mr Choy’s selections.

16. The Tribunal informed the review applicant that when asked for information about his specialist skills, the visa applicant stated that he has grafting skills and experience in parasite control and prevention. The Tribunal informed the review applicant that it has concerns as to whether the visa applicant has the skills at the level of an Agricultural Technician.

17. The Tribunal informed the review applicant that ANZSCO sets out an indicative skill level but the Tribunal is satisfied that it is an appropriate measure of the skills and qualifications of an Agricultural Technician.

18. The Tribunal informed the review applicant that ANZSCO states that most occupations in this unit group of Agricultural Technicians have a level of skill and qualifications commensurate with the qualifications of an Associate Degree, Advanced Diploma or Diploma and that at least 3 years of relevant experience may substitute for the formal qualifications. The review applicant stated that this type of Agricultural Technician may not suit their operations.

19. The Tribunal brought to the review applicant's attention that the first task in ANZSCO for an Agricultural Technician is examining topographical, physical and soil characteristics of farmland to determine its most effective use and identify nutrient deficiencies. Mr So stated that he needs experienced people who have hands on skills. People who have a degree as an Agricultural Technician may not have that skill.  

20. The Tribunal brought to the review applicant's attention that the position that has been nominated is an Agricultural Technician. The Tribunal informed the review applicant that it has to determine whether the visa applicant has the skills, qualifications and employment background to perform the tasks of the nominated occupation.

21. The Tribunal informed the review applicant that the second task in ANZSCO is assisting in developing new methods of planting, fertilising, harvesting and processing crops to achieve optimum land usage and the third task is identifying pathogenic micro-organisms and insects, parasites, fungi and weeds harmful to crops, and assisting in devising methods of control. The Tribunal informed the review applicant that it does not know if the visa applicant has those skills. Mr So stated that for the second task, Mr Choy would know that previous 457 visa holders introduced new methods of planting. They improved planting methods. They always use direct sowing with a single farrow machine which was recommended by previous 457 visa holders. Now they have a precision planting machine, the only one in New South Wales. He is confident that the visa applicant will have new ideas. Previous 457 visa holders had this skill. Regarding the method of planting, local growers are now copying the review applicant. The review applicant bought a machine from Holland. It is time saving and seed cost saving. It was the 457 visa holders who recommended this machine.  

22. The Tribunal informed the review applicant that the delegate stated in the decision record that the visa applicant works on a one hectare farm mainly by manual means and uses a tractor and it appears that he is planting by hand. Mr So stated that he is sure the previous workers were the same because they have limitation of land usage but when they arrived here and saw all the acres, they had ideas and made recommendations and new methods of planting.

23. Mr So stated that another example is that when the 457 visa holders arrived, they told the review applicant to use shade cloth which helps germination. This is a new method of planting and preparing. The Tribunal informed the review applicant that it is not uncommon to use shade cloth. Mr So indicated that it is not used in market gardens.

24. Regarding the third task, the review applicant stated that since the 457 visa holders arrived, the review applicant now uses a lot of organic fertilisers. Regarding the task of analysing produce to set and maintain standards of quality, Mr So stated that it is part and parcel of their skill. The Tribunal informed the review applicant that it does not know if they have that skill. The review applicant stated that when the produce is sent to the shop, the consumer is the best judge.

25. The Tribunal informed the review applicant that this is a high level position and asked what evidence there is that the visa applicant has experience in analysing produce. Mr So stated that you do not have to do analysing. Every so often, you need to test for pesticides but that is not done by Agricultural Technicians. You send the samples to a specialised laboratory to do the analysis.

26. The Tribunal asked the review applicant if they employ other Agricultural Technicians, besides the Subclass 457 visa holder. Mr So stated that he is sure they have but he does not have much contact with them because his role is to specialise in Asian vegetables. The review applicant has a $3.5 billion turnover. Mr So has no knowledge of whether the review applicant employs other Agricultural Technicians and whether they earn $97,000.

27. Mr So stated that he is confident that the visa applicant has the skill of assisting in controlled breeding experiments to develop improved crop strains. The review applicant has 13 varieties and they try to select the right varieties and that is their skill.  Mr So stated that all hybrid seeds are produced overseas and most are from Japan or Taiwan. 

28. The Tribunal asked the review applicant about the task of arranging the supply of chemicals to Farmers and Farm Managers, and giving advice on their use. The review applicant stated that they have fresh care certification and it is part of the employee’s duties.

29. Mr So confirmed that the visa applicant does not have much English. When asked by the Tribunal how the visa applicant will be able to read directions for use for chemicals, pesticides and fertilisers, Mr So stated that most manuals are now in different languages. The Department of Primary Industries has its information in different languages.

30. The Tribunal asked the review applicant about the task of collecting and collating data for research. Mr So stated that there is no course for Asian vegetables and no research. The Tribunal informed the review applicant that there is no evidence that the visa applicant has collected and collated data for research and it appears that he does not speak English. Mr So stated that all the workers are of Chinese ethnicity.

31. The Tribunal informed the review applicant that Agricultural Technicians perform tests and experiments, and provide technical support to assist Agricultural Scientists in areas such as research, production, servicing and marketing. Mr So did not have anything to add. He stated that there is no way to get information on Asian vegetables.

32. The Tribunal informed the review applicant that it specifies that the visa applicant has to demonstrate that he has the skills by providing satisfactory evidence of the skills, qualifications and employment background. Mr So stated that he is relying on Mr Choy to find what the review applicant requires, the type of skilled personnel that is required.   

33. Mr So stated that the review applicant exports fruit to China. There is a window to export certain vegetables back to China. 

34. Mr Frederick Haskins gave evidence that he is a farmer. He has been an Executive Council member of New South Wales Farmers for 8 years. He has been a Horticultural Committee representative for the Sydney basin for 3 years. He is not representing the Association and is at the Tribunal as an individual.  

35. Mr Haskins stated that he has been asked to explain why these people are required for the review applicant’s business. He is at the Tribunal to give evidence as to why the review applicant requires an Agricultural Technician. The people they need are unavailable in Australia. Mr Haskins stated that the Chinese vegetable industry is very specialised. Until the Pesticide Act was introduced in 1999, the government had no idea of the amount and range of Asian vegetables produced in the Sydney basin. Since the Pesticide Act came into force, they had the Premier’s taskforce in 1996. They then had bilingual training officers with the Department of Agriculture working with these farms. That funding has run out and there is no-one in the Sydney basin who has these qualifications. Mostly farmers come out in migrant waves. There have been no migrant waves since 1998. Most of the research into the seeds and the research is done in Taiwan or China and the research is mostly in Mandarin.

36. Charles Sturt University, University of New England and University of Western Sydney do not run courses on how to grow Asian vegetables. Mr Haskins confirmed that there are Agricultural Science degrees. The Tribunal asked Mr Haskins whether he was saying that these degrees are not adaptable. Mr Haskins stated that this person would have to be able to read Mandarin. The Tribunal brought to Mr Haskin’s attention that there are many interpreters here.   

37. Mr Haskins stated that there are no Agricultural Technicians in Australia in the field of Asian vegetables. The Tribunal asked the review applicant about the 3 or 4 Agricultural Technicians that were employed previously by the review applicant. Mr Haskins stated that they were the same and he does not know about them. The Tribunal asked Mr Haskins how he knows that there are no Agricultural Technicians if they do not advertise. Mr Haskins stated that he has been involved since 1973. From his experience there is nobody in Australia that can do the job. The Chinese farms are run by people who are over the age of 50 years. Once they retire, the continuation of the production of Asian vegetables may not continue, unless they can produce highly mechanised farms.  If they do not produce the produce, it increases the biosecurity risks. There are risks of diseases.

38. Mr Haskins stated that the review applicant needs an Agricultural Technician. Mr Haskins stated that other farms in the Sydney basin will not adhere, whereas Harris Farm is in the process of being certified under Fresh Care which is quality control.

39. The Tribunal informed the review applicant that it was not going to call the visa applicant and there is information in the decision record about what the visa applicant said at the time the decision was made. The Tribunal asked the review applicant if there is anything that the visa applicant would say that would add to this. The Tribunal noted that it had not received any statement by the visa applicant about his skills and abilities. The representative stated that there is no point in asking the visa applicant to explain again because one has said one thing and the other has said the other thing.

40. The representative suggested that, as to whether the Co-op is not viable, the Tribunal call the telephone numbers again to see if they are not contactable, because a bit of weight was put on that.  From the representative’s experience, they are readily contactable and there was no problem.

41. The representative stated that the background is similar with the previous 457 visa holders at the review applicant because they come from a specific area and specialise in growing melons and vegetables. Many individual farmers will go with the Co-op. The Co-op will select people who have a specialised skill and work for them in a specific area to help with production. They rely on the skill and experience. This is what Mr So has been saying. Those people can sometimes not explain themselves. Those skills are embedded in the experience. They need someone who knows what they are talking about.

42. Regarding the genuine position, the review applicant has been engaging 457 visa holders. The representative referred to the concern of the Tribunal about the wage of $97,000 and whether they are worth it or whether it is just to circumvent the English language requirements. The representative stated that it is maybe a bit of both. The nomination was approved on $97,000 and the Department has no concerns about that. The representative stated that $97,000 is a reasonable amount. The representative stated that it is reasonable for the review applicant to offer that sort of money because the review applicant generates billions of dollars. The Subclass 457 visa holders are good technicians but they left because they saw no future in being here. They contributed to the interests of Australia.  

1. The Tribunal informed the review applicant that it was not going to ring the Gaoyao Cooperative. The Australian Embassy had tried to telephone all 3 telephone numbers on the certification (folio 20 on the Department’s file) and all 3 numbers were out of service. No further evidence from the Gaoyao Cooperative was provided to explain why the telephone numbers were out of service. As well, the Tribunal could not be confident that the numbers were still those of the Gaoyao Cooperative.  

2. The Tribunal allowed until 1 May 2015 for further evidence to be provided. 

3. On 27 April 2015 the Tribunal received an email from the representative who provided an authority from the review applicant signed by James Williamson, CFO of the review applicant, stating that Mr Gary So is representing the review applicant in all matters relating to the application for review.

   CONSIDERATION OF ISSUES

4. The issues in the present case are whether the visa applicant meets the requirements of cl.457.223(4)(da), cl.457.223(4)(e) and cl.457.223(4)(d).

   Skills, qualification and employment background of the applicant

5. Clause 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl.457.223(4)(e), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister. In this case the nominated occupation is Agricultural Technician.

6. The Tribunal will firstly consider whether the visa applicant satisfies cl.457.223(4)(da).

7. In determining whether an applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, the Tribunal is guided by the skill level as set out in ANZSCO which is an indicative guide. The Tribunal finds that ANZSCO is an appropriate measure of the skills and qualifications of an Agricultural Technician (ANZSCO 311111).

8. An Agricultural Technician comes within the Unit Group of 3111 Agricultural Technicians. In determining the skills and qualifications required for an Agricultural Technician, the qualifications as specified in ANZSCO (in Australia) are an Associate Degree, Advanced Diploma or Diploma. It is also stated in ANZSCO that at least three years of relevant experience may substitute for the formal qualifications listed above and in some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification. (An extract from ANZSCO is attached.)

9. There is no evidence before the Tribunal that the visa applicant has an Associate Degree, Advanced Diploma or Diploma. The review applicant’s representative, Mr So, stated that he does not know whether the visa applicant has formal qualifications. Although the visa applicant has claimed that he attended the examination in July 2013 for the agricultural farming techniques training organised by the Gaoyao Agricultural Bureau and the Gaoyao Cooperative stated in its certification that the visa applicant was awarded the Agricultural Technical Title Certificate, the Tribunal has not seen any formal qualification issued to the visa applicant. The Gaoyao Cooperative stated in its certification that the certificate “is pending” and it appears to still not have been issued about 2 years later. The Tribunal is not satisfied that the visa applicant has formal qualifications as an Agricultural Technician. There is also no evidence that the Agricultural Technical Title Certificate or the agricultural farming techniques training are equivalent to an Associate Degree, Advanced Diploma or Diploma.

10. The Tribunal is satisfied that the visa applicant does not have an Associate Degree, Advanced Diploma or Diploma.  ANZSCO states that at least three years of relevant experience may substitute for the formal qualifications and in some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

11. The Tribunal requires that the visa applicant has at least three years of relevant experience as an Agricultural Technician. The visa applicant claimed that he has worked as an Agricultural Technician with the Gaoyao Cooperative from September 2009 to January 2014.  

12. The Tribunal has significant concerns as to whether the visa applicant has three years of relevant experience as an Agricultural Technician. Whilst there is evidence that the visa applicant and his wife grow vegetables on a small farm of about one hectare, the Tribunal is not satisfied that the visa applicant has performed the majority of tasks of an Agricultural Technician at the level described in ANZSCO. It is a high level position with Agricultural Technicians performing tests and experiments, and providing technical support to assist Agricultural Scientists in areas such as research, production, servicing and marketing.

13. The visa applicant told the Departmental representative that he manually farms the land and uses a tractor and the actual land available for farming at any given time is about half a hectare as the rest of the land needs to be maintained and fertilised after farming. The visa applicant sells his produce through the Cooperative which has more avenues for sales and it purchases his produce with prices that are a little higher than the standard wholesale market rate and in addition pays him the equivalent of about AUD $200 per month because he has skills, but that the Cooperative pays all members the same amount of money monthly. When asked whether that means that all members have the same level of skill, the visa applicant did not respond and stated that not all Cooperative members receive the payment. This was an inconsistency in his statements to the Departmental representative about whether the Gaoyao Cooperative pays all members the same amount of money monthly.

14. The visa applicant stated that, in addition to farming, he assists other Gaoyao Cooperative members in their growing activities, including providing information to temporary workers about fertilising and controlling parasites in preparation for growing vegetables.

15. In response to the Departmental representative’s comment that such knowledge is basic, regular farming knowledge which every experienced vegetable grower has, the visa applicant stated that this is not necessarily the case and he obtained the skills through many years of growing vegetables. When asked for information about his specialist skills, the visa applicant was unable to elaborate further, except to say that he has grafting skills and experience in parasite control and prevention. When asked what kind of grafting he had done, the visa applicant stated that he has grafted 2 melon seeds together. When asked how he controls and prevents parasites, the visa applicant stated that he dries the soil in the sun, sterilising and killing the parasites. When asked if he has performed any experiments or tests, the visa applicant mentioned grafting again.

16. The Tribunal has had regard to the visa applicant’s statements to the Departmental representative and is not satisfied that the visa applicant’s experience is at the level of an Agricultural Technician. The Tribunal is satisfied that the experience and skills as described by the visa applicant are basic farming skills for a farmer growing vegetables. The visa applicant was given the opportunity of expanding on his statements at the interview with the Departmental representative, but he was unable to elaborate further other than to say he has grafting skills and experience in parasite control and prevention.

17. Although the certification by the Gaoyao Cooperative indicates that the visa applicant is an Agricultural Technician, the Tribunal is not satisfied that he is, in fact, an Agricultural Technician. The visa applicant’s statements to the Departmental representative indicate that he has experience in vegetable farming but that he is not an Agricultural Technician. The Department attempted to contact the Gaoyao Cooperative on the 3 telephone numbers provided in the certification but the Department was unsuccessful in contacting the Gaoyao Cooperative because the telephone numbers were out of service. No independent verification could be undertaken.  Although the representative stated at the hearing that he had not had difficulty contacting the Gaoyao Cooperative, and he suggested that the Tribunal telephone the Gaoyao Cooperative, the Tribunal decided not to do this. The Tribunal had concerns that it would not have known if the telephone number was still that of the Gaoyao Cooperative, given that 3 numbers were out of service when the Departmental representative attempted to call the Gaoyao Cooperative and the Tribunal would not definitively know who was answering the telephone.  The review applicant was given time after the hearing to provide further evidence but only provided an authority from the review applicant to Mr So to represent the review applicant at the Tribunal. No further evidence was provided from the Gaoyao Cooperative.

18. The visa applicant claimed that he worked as an Agricultural Technician with the Gaoyao Cooperative from September 2009 to January 2014. If that were the case, the Tribunal considers that it is reasonable to expect that the visa applicant would be able to give detailed evidence of the tasks he performed as an Agricultural Technician. Yet the visa applicant only provided quite general information about the tasks he carried out as an Agricultural Technician for the Gaoyao Cooperative and about how he provides skilled consultation to other members of the Gaoyao Co-operative and/or temporary workers. He also provided inconsistent information about whether the Gaoyao Cooperative pays all members the same amount of money monthly.  

19. The Tribunal also has concerns about the remuneration that will be paid to the visa applicant if he is granted a Subclass 457 visa.  The wages offered to the visa applicant for the position of Agricultural Technician are quite high for a position of this type. It is almost twice the median according to the website, Job Outlook, which indicates that the average weekly earnings before tax for a full-time Agricultural Technician are $950 per week. This is less than $50,000 a year  ( The evidence of the review applicant is that they are willing to pay the visa applicant $97,000 for wages and they are certain it will be profitable for the review applicant. The Tribunal has concerns that the level of salary offered has been chosen to circumvent the requirement for the visa applicant to have a certain level of English language proficiency.  The review applicant stated that their records show that Agricultural Technicians are worth this money to the review applicant and using Subclass 457 visa holders has been profitable for the review applicant. The review applicant stated that based on their experience with the previous Subclass 457 visa holders, the review applicant understands their skills and that they will make a big contribution to its operations. The review applicant follows all the rules of Department, Workcover and the Taxation Office. The review applicant is happy to pay that amount of money to have these skilled people.

20. The Tribunal has considered this evidence but is not satisfied that the visa applicant has the skills, qualifications and employment background that the Tribunal considers necessary to perform the tasks of the nominated occupation of Agricultural Technician.

100.   The review applicant claimed that there are no Agricultural Technicians experienced in the growing of Asian vegetables in New South Wales. The review applicant has not advertised for an Agricultural Technician. Mr So stated that he advertised in Cooma but nobody turned up. The Tribunal does not have documentary evidence as to when the advertisements were placed or the wages offered or the position that was advertised. The current Subclass 457 visa holder, who is an Agricultural Technician, with the review applicant is paid approximately $60,000, which is about $37,000 less per year than the base salary being offered to the visa applicant. According to Mr So, the review applicant and he are relying on Mr Choy to find an Agricultural Technician for the review applicant. Mr So trusts Mr Choy absolutely about this.

101.   However, the Tribunal is not satisfied that the visa applicant is qualified as an Agricultural Technician based on his employment, training and experience. The review applicant stated that they had 5 Agricultural Technicians who held Subclass 457 visas. Only one is still with the review applicant and he is being paid substantially less than the amount offered to the visa applicant. There is no evidence whether the other 4 Agricultural Technicians previously employed by the review applicant are still in Australia and whether an offer of $97,000 was made to them.

102.   The Tribunal has considered the statement of the visa applicant to the Departmental representative and is not satisfied that the visa applicant performs tests and experiments, and provide technical support to assist Agricultural Scientists in areas such as research, production, servicing and marketing. There is no evidence that the visa applicant provided technical support to assist Agricultural Scientists in areas such as research, production, servicing and marketing. The Tribunal is not satisfied that the visa applicant performs tests and experiments. Although the visa applicant stated that he has grafted 2 melon seeds together, the Tribunal is not satisfied that he performs tests and experiments.

103.   When asked for information about his specialist skills, the visa applicant was unable to elaborate further, except to say that he has grafting skills and experience in parasite control and prevention. When asked what kind of grafting he had done the visa applicant stated that he has grafted 2 melon seeds together. When asked how he controls and prevents parasites, the visa applicant stated that he dries the soil in the sun, sterilising and killing the parasites. When asked if he has performed any experiments or tests, the visa applicant mentioned grafting again.

104.   The Tribunal is not satisfied that the visa applicant has carried out a majority of the tasks of an Agricultural Technician. The Tribunal is not satisfied that the visa applicant has carried out the task of examining topographical, physical and soil characteristics of farmland to determine its most effective use and identify nutrient deficiencies, other than at a basic level as a farmer of a small plot of land. The Tribunal is not satisfied that the visa applicant has been involved in assisting in developing new methods of planting, fertilising, harvesting and processing crops to achieve optimum land usage.

105.   The Tribunal is not satisfied that the visa applicant has carried out the task of identifying pathogenic micro-organisms and insects, parasites, fungi and weeds harmful to crops, or assisting in devising methods of control except at a basic level as the farmer of a small block of land leased from others. Although Mr So stated that he is confident that the visa applicant has the skill of assisting in controlled breeding experiments to develop improved crop strains, there is no evidence that the visa applicant has been involved in analysing produce to set and maintain standards of quality or that he has assisted in controlled breeding experiments to develop improved crop strains. Whilst the review applicant’s representative has stated that the visa applicant will be involved in training and supervising workers in vegetable growing, the Tribunal is not satisfied that he has the skills of an Agricultural Technician. The visa applicant told the Departmental representative that in addition to farming, he assists other Gaoyao Cooperative members in their growing activities, including providing information to temporary workers about fertilising and controlling parasites in preparation for growing vegetables. Whilst he stated that he carried out these duties, he did not expand on the information and did not elaborate on the information that he claimed to provide to temporary workers about fertilising and controlling parasites in preparation for growing vegetables.

106.   Mr So gave evidence about the skills of previous Subclass 457 visa holders who improved planting methods, streamlined production and recommended the use of shade cloths to improve germination in market gardens. Whilst previous Subclass 457 visa holders and Agricultural Technicians introduced new methods to the review applicant’s farming practices, the Tribunal has to decide whether the visa applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

107.   There is no evidence that the visa applicant has been involved in arranging the supply of drugs, vaccines and other chemicals to Farmers and Farm Managers, and giving advice on their use or that the visa applicant has been collecting and collating data for research. Whilst the visa applicant may advise producers on farming techniques and management, the Tribunal is not satisfied that this is at the level of an Agricultural Technician. Although the visa applicant has experience in harvesting and other aspects of production processes, the Tribunal is not satisfied that his skills are at the level of an Agricultural Technician. 

108.   The Tribunal did not contact the visa applicant to take evidence from him. The representative stated that there is no point in asking the visa applicant to explain again because one has said one thing and the other has said the other thing. The Tribunal considered that the visa applicant was given the opportunity to answer questions about his skills and experience when the Departmental representative telephoned him. If the visa applicant had the skills, qualifications and employment background to perform the tasks of the nominated occupation, it is reasonable to expect that he would have been able to answer in some detail the questions about the work that he performed. However, his answers led the Departmental representative and the delegate to conclude that the visa applicant does not have the skills to perform the nominated occupation. The visa applicant did not provide a statement to clarify concerns that were raised in the delegate’s decision record. He has not expanded on the answers he gave to the Departmental representative.

109.   In his submission, the representative listed the duties of the visa applicant in the position of an Agricultural Technician. However the Tribunal is not satisfied that the visa applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

110.   The Tribunal does not accept that the visa applicant worked as an Agricultural Technician with the Gaoyao Cooperative from September 2009 to January 2014. The Tribunal accepts that the visa applicant has been self-employed as a vegetable grower for many years but is not satisfied that his experience is at the level of an Agricultural Technician.

111.   The Tribunal is not satisfied, on the evidence, that the visa applicant has the skills, qualifications and employment background that the Tribunal considers necessary to perform the tasks of the nominated occupation.

112.   The Tribunal has considered the claims made by the visa applicant in the visa application that he is well-trained in scientific vegetable growing. The visa applicant’s claims about his experience in scientific vegetable growing are not supported by the statements he gave to the Departmental representative. If he had been working as an Agricultural Technician from September 2009 to January 2014, the Tribunal considers that he should have been able to give clear and detailed evidence of this during the interview with the Departmental representative. Yet he did not do so.

113.   The Tribunal is not satisfied that the visa applicant’s work at Gaoyao Cooperative demonstrates that he has the skills, qualifications and employment background the Tribunal considers necessary to perform the tasks of the nominated occupation. The Tribunal places little weight on the certification by Gaoyao Cooperative given that the visa applicant’s employment and training claims were unable to be verified because at the time of the verification not one of the 3 telephone numbers was contactable and were all out of service. 

114.   The Tribunal has considered the evidence regarding the visa applicant’s skills, qualifications and employment background as a whole. The Tribunal is not satisfied, based on the evidence, that the visa applicant has the skills, qualifications and employment background the Tribunal considers necessary to perform the tasks of the nominated occupation. 

115.   For these reasons the visa applicant does not satisfy the requirements of cl.457.223(4)(da).

116.   The Tribunal has considered the evidence of Mr Haskins and Mr So. The Tribunal finds that they both gave truthful evidence within their knowledge. However, neither of them knows the visa applicant and Mr So has relied on another person, Mr Choy, as to the skills of the visa applicant. Mr Haskins stated that the review applicant requires an Agricultural Technician. However, the Tribunal is not satisfied that the visa applicant has the skills, qualifications and employment background the Tribunal considers necessary to perform the tasks of the nominated occupation of Agricultural Technician.

117.   The Tribunal has already found that the visa applicant does not satisfy the requirements of cl.457.223(4)(da). The visa applicant is therefore not entitled to the grant of a Subclass 457 visa. It is not necessary to decide whether the visa applicant meets other criteria for a Subclass 457 visa.

118.   There is no evidence before the Tribunal that the second named visa applicant meets the primary criteria for the grant of the visa. The second named visa applicant does not meet cl.457.321 which has to be satisfied at time of decision. The second named visa applicant is not a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

119.   For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

DECISION

120.   The Tribunal affirms the decision not to grant the visa applicants Temporary Business Entry (Class UC) visas.

Dione Dimitriadis

Member

ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

457.223

…

Standard business sponsorship

…

(4)The applicant meets the requirements of this subclause if:

(a)each of the following applies:

(i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

(ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

(iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

(aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

(ba)either:

(i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

(ii)     each of the following applies:

(A)the applicant is employed to work in the nominated occupation;

(B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

(C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

(d)the Minister is satisfied that:

(i)    the applicant’s intention to perform the occupation is genuine; and

(ii)     the position associated with the nominated occupation is genuine; and

(da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

(e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

(ea)if:

(i)    the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and

(ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and

(eb)if:

(i)    the applicant is not an exempt applicant; and

(ii)     subclause (6) does not apply to the applicant; and

(iii)    at least 1 of subparagraphs (ea) (i) and (ii) does not apply;

the applicant:

(iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

(v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

(ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

(f)either:

(i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

(ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

…

(6)This subclause applies to an applicant if:

(a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

(b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

…

(11)In subclause (4):

exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.

1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.2  

UNIT GROUP 3111 AGRICULTURAL TECHNICIANS

AGRICULTURAL TECHNICIANS perform tests and experiments, and provide technical support to assist Agricultural Scientists in areas such as research, production, servicing and marketing.

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 Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

In New Zealand:

NZ Register Diploma (ANZSCO Skill Level 2)

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.

Tasks Include:

oexamining topographical, physical and soil characteristics of farmland to determine its most effective use and identify nutrient deficiencies

oassisting in developing new methods of planting, fertilising, harvesting and processing crops to achieve optimum land usage

oidentifying pathogenic micro-organisms and insects, parasites, fungi and weeds harmful to crops and livestock, and assisting in devising methods of control

oanalysing produce to set and maintain standards of quality

oinspecting livestock to gauge the effectiveness of feed formulae

oassisting in controlled breeding experiments to develop improved crop and livestock strains

oarranging the supply of drugs, vaccines and other chemicals to Farmers and Farm Managers, and giving advice on their use

ocollecting and collating data for research

oplanning slaughtering, harvesting and other aspects of production processes

omay advise producers on farming techniques and management

Occupation:

311111 Agricultural Technician

311111 AGRICULTURAL TECHNICIAN

Alternative Title:

Agricultural Technical Officer

Performs tests and experiments, and provides technical support to assist Agricultural Scientists in areas such as research, production, servicing and marketing.

Skill Level: 2
Specialisations:

Agriculture Laboratory Technician
Artificial Insemination Technical Officer
Dairy Technician
Field Crop Technical Officer
Herd Tester
Horticultural Technical Officer