1414531 (Migration)

[2015] AATA 3345

1414531 (Migration) [2015] AATA 3345 (1 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  ADAM'S HALAL BUTCHER

VISA APPLICANT:  Mr Rafi MOHAMMAD

CASE NUMBER:  1414531

DIBP REFERENCE(S):  CLF2012/157635 CLF2014/120247

MEMBER:Marten Kennedy

DATE:1 September 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for an Employer Nomination (Migrant) (Class AN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 119 (Regional Sponsored Migration Scheme) visa:

·cl.119.211(3)(b)(iii) of Schedule 2 to the Regulations

Statement made on 01 September 2015 at 4:42pm

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 June 2014 to refuse to grant the visa applicant an Employer Nomination (Migrant) (Class AN) Subclass 119 visa under s.65 of the Migration Act 1958 (the Act).  The visa applicant applied for the visa on 28 June 2012.

2. The visa applicant is sponsored by the review applicant.  The proprietor of the review applicant is the visa applicant’s brother.  The review applicant operates a Halal butcher in the north western suburbs of Adelaide, and sponsored the visa applicant for skilled migration as a butcher.  The nomination has been approved by the Department having assessed the position against the requirements of r.5.19(4) of the Regulations.

3. The delegate refused to grant the visa on the basis that the applicant did not hold a diploma, and the delegate declined to waive that particular requirement as may be done in exceptional circumstances.

4. In this regard, cl.119.211(3)(b)(iii) of Schedule 2 to the Regulations relevantly requires that, at the time of application, unless exceptional circumstances apply, the applicant has a diploma…or higher qualification that is relevant to the appointment.

5. It was not in dispute that the visa applicant does not hold a relevant diploma, and I so find.  The issue for me to decide is whether exceptional circumstances apply so as to disregard that requirement.

6. In this matter, for the following reasons, I have concluded that there are exceptional circumstances so as to disregard the requirements.

7. In considering this matter, I have taken into account the Department’s policy as to the exercise of the discretion, the ANZSCO classification regarding the indicative skill level as to qualifications and experience generally expected of butchers, and the submissions and supporting documents provided to the Department and to the tribunal.  My conclusion turns on the following considerations.

   The visa applicant has advanced skills as a butcher

8. First, I note that according to ANZSCO, butcher’s and smallgoods makers are not generally expected to hold diploma level qualifications in Australia.  According to ANZSCO, the qualifications of butchers and smallgoods makers in Australia will be an AQF Certificate III including at least 2 years of on the job training, or an AQF certificate IV.

9. I am not bound by the Department’s policy, but have had regard to it. The Department’s policy[1] recognises that in many instances a ‘trade’ (or an ANZSCO skill level 3 major group 3 occupation) may not require a person to hold a diploma qualification.  There may nonetheless be a demand in the Australian labour market for adequately skilled people to perform skill level 3 occupations notwithstanding that it would be unlikely that the candidate would possess a diploma.  The department’s policy, albeit problematic in the face of the express terms of the regulation requiring ‘exceptional circumstances’ is to find exceptional circumstances ‘automatically’ in all cases where relevant Australian trade qualifications are held.

   [1] PAM3 - MIGRATION REGULATIONS > Sch2 Visa 119 - Regional Sponsored Migration Scheme > SKILL REQUIREMENTS

10. Where no Australian qualifications are held and an applicant relies on overseas work experience, as in this case, the Department’s policy requires exceptional circumstances to be assessed based on submission.  In undertaking that assessment, I am mindful that the ANZSCO would require an AQF Certificate III level qualification, with at least 2 years of on the job training, and not a diploma.

11. Further as to the applicant’s skills, I have taken into account the report of a site visit conducted by the Australian High Commission to premises in Hyderabad, India.  The premises visited by the staff of the High Commission were the ‘A-1 Mutton Shop’.  The visa applicant works at the A1 Mutton Shop in Hyderabad with his father where he undertakes the trade of Halal butchery.  I note other information in the Departmental file to the effect that the visa applicant (and therefore also the proprietor of the review applicant) are members of a Muslim caste in Hyderabad traditionally associated with Halal butchery.

12. The staff of the High Commission confirmed that the visa applicant worked at the shop as a butcher by speaking with neighbouring shopkeepers.  The staff of the High Commission formed the view that the visa applicant was open and appeared truthful in describing his work in a subsequent telephone interview, and from the content of the report I note that nothing the visa applicant said in his interview with the High Commission staff contradicted the observations they made at the site or the evidence they compiled from neighbouring shopkeepers.

13. The conclusion of the report however was that in respect of the visa applicant’s skills, the outcome of the site visit was ‘non-genuine’.  This conclusion comes as a surprise when regard is otherwise had as to the content of the report, and perhaps is best understood as an opinion by the assessing officer that the skills of the visa applicant are not commensurate with a skill level 3 tradesperson within the meaning of ANZSCO.  Any connotation of ‘non-genuine’ pertaining to fraud is absent from the content of the report of the site visit.  Specifically, the report of the staff of the High Commission mentions concern as to the evidence that the shop is open two days per week, and therefore the accumulated experience of the applicant would not be equivalent to 3 years’ experience as justifying the label ‘non genuine’.

14. At the hearing, the proprietor of the review applicant, who I accept would be familiar with the family’s business in Hyderabad, explained that the practice in the shop is to be open to customers for two days each week, but time is spent on other days purchasing animals for slaughter, slaughtering the animals and preparing the meat for sale.  In other words, the practice of the butchery is to retail on two days per week, but that does not necessarily mean the applicant is only engaged in the trade for those two days.

15. Further as to the applicant’s skills, evidence was provided to the tribunal in the form of a written letter from Mr Tony Adey, Educational Manager of Meat Studies at TAFE SA.  Mr Adey states in his letter that TAFE SA has assessed the visa applicant against the skills and knowledge of the Certificate III in Meat Processing (Retail Butcher) offered by the institution.  Mr Adey explains that he assessed the visa applicant by examining video footage of him demonstrating skills.  Mr Adey mentions that he also requested and received from the visa applicant a number of written assessments pertaining to theory and the knowledge component of a retail butcher in Australia.

16. Unfortunately, Mr Adey was not available to give evidence during the hearing when I indicated that I wished to speak further with him about his letter.  I interviewed Mr Adey by telephone (recorded) in the absence of the review applicant after the hearing.

17. In that interview Mr Adey confirmed that he is the Educational Manager for TAFE SA with responsibility for a wide portfolio of courses relating to the food industry.  Mr Adey confirmed that he had prepared the letter provided to the tribunal, explaining that where necessary he had obtained input from butchery lecturers at TAFE SA in order to assess the visa applicant’s skills.

18. Mr Adey impressed me as a person who was highly knowledgeable about the meat industry and the training and assessment of butchers.  I have found his evidence as to the applicant’s skills to be persuasive.  I consider, after hearing from Mr Adey, that he has undertaken a careful and considered assessment of the visa applicants skills as a butcher.

19. As to how he found himself to be assessing the skills of the visa applicant, Mr Adey explained that TAFE SA was contacted by the proprietor of the review applicant.  Mr Adey explained that he then met with the proprietor of the review applicant regularly, setting out requirements for the assessment.  He said he was at first hesitant to become involved but agreed to assess the visa applicant only if certain strict requirements were met, including strong video demonstration of skills.  Mr Adey confirmed that TAFE SA did not charge a fee for its assessment, but this was not unusual as TAFE SA had some discretion to provide such community services, giving the example of training the unemployed.

20. I explained to Mr Adey that I would take a number of factors into account in deciding whether there were exceptional circumstances for disregarding the qualification requirement but would not be minded to exercise the discretion regardless of the other factors if I could not be confident that the visa applicant would be able to practice his trade safely in the context of Australian hygiene standards. Mr Adey confirmed that on examining video footage of hygiene practices in the shop in India, he was also initially concerned about this issue.  Mr Adey explained that he forwarded course material to the applicant regarding applying hygiene practices and then assessed the visa applicant in a written test using the same methods that would be used for Australian based students.  Mr Adey told me that the visa applicant successfully completed this assessment.

21. Furthermore, in response to my concerns about this matter, Mr Adey emphasised that the regulatory requirements for licensing butchers in South Australia are very strict.  TAFE SA itself is inspected every 6 weeks notwithstanding it is a training facility. The proprietor of the review applicant will be responsible for ensuring the regulatory requirements are met.  Mr Adey emphasised that his initial concerns about practices regarding hygiene were not related to the visa applicant’s knowledge but rather the different environment in which the trade is practiced in India when compared to Australia.

22. In the course of the interview, Mr Adey mentioned that in his opinion the visa applicant’s knife skills were “exceptional”.  He said that the visa applicant will find Australian hygiene requirements to be much more specific.  I did not understand Mr Adey to be expressing any reservations in this regard, but emphasising that the visa applicant, if granted a visa, will need to quickly implement the theoretical knowledge he has been assessed against.

23. I accept Mr Adey’s evidence to the effect that the visa applicant can demonstrate a high order of butchery skills  Mr Adey describes the skill level of the visa applicant as ‘advanced’ and commensurate with long-term, experience in the trade.

24. The evidence of the high level of skill held by the visa applicant carries significant weight in my consideration as to whether there are exceptional circumstances so as to disregard the requirement that he hold a Diploma.

    The work requires specialised or unusual skills, and is essential to the business

25. I have had regard to written statements of support issued by the ‘Australian Halal Authority and Advisers’, and the evidence of the proprietor of the review applicant to the effect that there is a shortage of Halal butchers, and it is difficult to recruit.

26. The proprietor of the review applicant, Mr Mohamad, told me that he had been able to employ a trainee butcher who did not possess the skills of the visa applicant.  This person has required training.  Mr Mohamad confirmed that this person would retain their employment in the event that the visa applicant were to be granted the visa.  It was submitted on the review applicant’s behalf that if the visa applicant were able to join the business there may be scope for expansion and employment of locals.

27. I have also taken into account that the business is a specialised Halal butcher.  Submissions on behalf of the review applicant explain that there is growing demand for Halal meats.

28. Mr Mohamad explained that in order to slaughter animals he must travel to premises at Snowtown, some distance from Adelaide. This has caused difficulty in staffing his shop as he must be absent for an extended period. 

29. Mr Mohamad also explained that he has had to turn away large restaurant clients and focus only on retail butchery because he has been unable to secure full time Halal butchers as employees and meet the increased demand..  Furthermore, Mr Mohamad explained that he has lost a significant amount of money in a failed expansion attempt, which he attributes to the visa being refused.  Mr Mohammed said he decided to expand his business when the nomination was approved, but had not expected the visa processing to be delayed and the visa to ultimately be refused.

30. I accept that the work of the review applicant requires specialised or unusual skills in meeting a niche market.  I accept that an experienced butcher, and more specifically a butcher experienced in Halal practices is essential to successful operation of the business.

    Conclusion

31. My considerations of these matters serve to satisfy me that there are exceptional circumstances so as to disregard the requirement that the visa applicant hold a diploma.  I therefore find that the visa applicant meets cl.119.211(3)(b)(iii) of Schedule 2 to the Regulations, and will remit the matter accordingly.

    DECISION

    The Tribunal remits the application for an Employer Nomination (Migrant) (Class AN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 119 (Regional Sponsored Migration Scheme) visa:

    • cl.119.211(3)(b)(iii) of Schedule 2 to the Regulations

    Marten Kennedy
    Member