1418208 (Migration)

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Justin Bruce Barber
Miss Wen Tzu Hsu
CASE NUMBER:  1418208
DIBP REFERENCE(S):  BCC2014/1411217
MEMBER:Dione Dimitriadis
DATE:6 January 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 06 January 2016 at 4:45pm

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied to the Department of Immigration (the Department) for the visas on 8 June 2014. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.
In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Vegetable Grower. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.
The delegate refused to grant the visa because the applicant did not meet cl.187.234 of Schedule 2 to the Regulations because at the time of application, the applicant did not hold the qualifications listed in ANZSCO as being necessary to perform the tasks of the nominated occupation and he was not in a class of persons who are exempt from having to meet that requirement or a person whose occupation is specified by the Minister in an Instrument in writing and requires a skills assessment.
The applicant appeared before the Tribunal in Sydney, New South Wales, by video conference from Griffith, New South Wales, on 8 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Luke Orlan Wiseman, the director of the nominating employer, Keillna Pty Ltd trading as Wisemans Organic Produce.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets cl.187.234.
Skills and qualifications
For applicants in the Direct Entry stream, cl.187.234 requires that at the time of application:
·     the applicant is in a specified class of persons (exempt persons), or
·     if the applicant’s occupation has been specified by the Minister and the applicant did not obtain the necessary qualification in Australia – that the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority (the skills assessment must meet certain requirements, depending on the date of visa application), or
·     if neither of the above applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.
For this criterion, the relevant classes of exempt persons have been specified in IMMI 12/060, and the occupations and relevant assessing authorities have been specified in IMMI12/096. For the skills assessment, if the visa application was made on or after 28 October 2013, the assessment cannot be one for a Subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.
Exempt class of persons
The Minister has specified classes of persons that are exempt from the requirement of having a skills assessment and employment in the occupation for the purposes of cl.187.234(a) in IMMI 12/060 under the headings Class 2 and Class 3. The Minister has also specified persons under the heading Class 1 but this class does not apply to Subclass 187 visas and is not relevant to this case.
The specified classes of persons are as follows:
Class 2
Persons who are nominated for a visa under the Regulations for a position where their nominated earnings will be at least equivalent to the current Australian Tax Office top individual income tax rate.
Class 3
Persons who are currently in Australia as the holder of a Subclass 444 or 461 visa and have been working with their nominating employer in their nominated occupation for at least two years (excluding any periods of unpaid leave) in the last three years immediately before making their visa application.
According to the contract of employment between N & R Wiseman Trust and the applicant, the applicant’s remuneration is $52,000. The applicant confirmed at the hearing that he will earn $52,000. Based on this evidence, the Tribunal finds that the applicant’s wages do not amount to $180,001, which is the current Australian Tax Office top individual income tax rate. The applicant is therefore not a person in Class 2.
There is no evidence that the applicant has ever held a Subclass 444 or 461 visa. The applicant stated at the hearing that he has held two Subclass 417 Working Holiday visas. The Tribunal is not satisfied that the applicant has ever been the holder of a Subclass 444 or 461 visa. The Tribunal finds that the applicant is not a person in Class 3.
The Tribunal therefore finds that cl.187.234(a) does not apply.
Skills assessment
It is a requirement that the applicant’s skills had been assessed as suitable for the occupation if the applicant’s occupation is specified in the relevant instrument and the applicant obtained the necessary qualifications overseas. The occupation of Vegetable Grower is not specified by the Minister for the purposes of cl.187.234(b). The Tribunal therefore finds that cl.187.234(b) does not apply.
Qualifications held
As neither cl.187.234(a) nor (b) apply, the Tribunal will consider whether the applicant has the qualifications listed in ANZSCO as being necessary to perform the occupation of Vegetable Grower.
According to ANZSCO, the occupation of Vegetable Grower (ANZSCO 121221) has Skill Level 1. The occupation of Vegetable Grower comes under the Unit Group of Crop Farmers (1212) and states that in Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
The qualifications listed in ANZSCO as being necessary to perform the tasks of a Vegetable Grower in Australia and New Zealand are a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification and in some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Although it is not explicitly stated, the Tribunal is of the view that the qualifications set out above must be in the field of study relevant to the occupation as ‘skill level’ in ANZSCO reflects the level of skill required to competently perform the set of tasks required for that occupation.[1] This view is supported by the requirement in cl.187.234(c) that the applicant has the qualifications listed as being necessary to perform the tasks of the occupation.
[1] Refer to ANZSCO, the Australian and New Zealand Standard Classification of Occupations First Edition Revision 1 entitled “Conceptual Basis of ANZSCO”, under the subheading of The concept of skill level.
The applicant stated in the visa application that he has a Diploma. He gave evidence at the hearing that the qualification is a Diploma of Horticulture. The applicant provided to the Tribunal a letter dated 1 December 2014 from the Department of Primary Industries stating that the applicant satisfied all the requirements for the qualification of Diploma of Horticulture on 23 May 2014. He was “certified Competent for units of competence required for the qualification by two Tocal Education Officers” on 5 June 2014. The applicant gave evidence at the hearing that he obtained this qualification based on recognition of prior learning and skills recognition. He did not attend a course. The applicant stated that he provided submissions and evidence about his understanding and competencies that led to the qualification.
The applicant provided information in the visa application about his employment history and stated that the following employment is related to the nominated position:
·From September 2008 to June 2009 he did work experience in a nursery at the Royal Botanic Gardens Edinburgh. A description of his duties were: “Nursery work – maintain plants within the nursery used for transplants and cuttings, make cuttings and seed trays” “Aboriculture (sic) – asst (sic) with cutting down trees and branches, transplant trees. Groundskeeping, Greenhouse work with tropical plants. Hardscaping – building dry walls and pathways”.
·From September 2012 to October 2012 he worked as a “farm sitter”. A description of his duties was: “Fencing, feed cattle and sheep, dogs and chickens, cut surplus firewood for owners (sic) return, maintain and improve house and yard.”
·From March 2013 to May 2013, the applicant worked as a shed operator for AGS Sunrice and his duties were to prepare sheds and ventilation for harvest period, operate forklift to empty husk waste bins and operate thrower to fill shed.
·From June 2013 to December 2013, the applicant worked as a Mixed Crop and Vegetable Farmer for Wisemans Organic Produce/ Keillna Pty Ltd and his duties were driving and maintenance of tractors, cultivating and soil preparation, sowing and harvesting, oversight of egg grading operations, supervising staff checking on quality, harvesting and spraying work.
·From December 2013 to June 2014, the applicant worked as a Mixed Crop Farmer for TA and MT Rawson and his duties were driving and maintenance of tractors, cultivating and soil preparation, sowing and harvesting, supervising and managing staff and making sure tasks that are allocated to staff are carried out effectively and efficiently.
The applicant provided a number of documents to the Department including copies of his curriculum vitae, contract of employment between the applicant and N & R Wiseman Trust, references and letter from Department of Primary Industries (Tocal College) stating that the applicant satisfied the requirements for a Diploma of Production Horticulture and he completed the course on 24 June 2014.
In the applicant’s curriculum vitae, he stated that he worked for TA and MT Rawson from 17 December 2013 to 1 June 2014 as a Mixed Crop Farmer. The applicant worked for Wiseman Organics from 1 June 2013 to 15 December 2013 as a Mixed Crop and Vegetable Farmer. The applicant worked for AGS Sunrice from March 2013 to May 2013 as a shed operator. From September 2012 to October 2012 the applicant worked as a “farm sitter” for Wallaby Way and from September 2008 to June 2009 he did work experience in a nursery at the Royal Botanic Gardens Edinburgh.
In a reference dated 5 June 2014 from Regina Wiseman of Keillna Pty Ltd trading as Wisemans Organic Produce, Ms Wiseman stated that the applicant was employed on a casual basis from 13 May 2013 to 4 December 2014. In an undated reference, Tom Rawson stated that the applicant has been employed as a Mixed Crop Farmer from December 2013 to June 2014.
The applicant provided to the Tribunal an academic transcript showing that he undertook a programme of Horticulture full-time at SRUC (Scotland’s Rural College) in the academic year 2008/2009. At the hearing the applicant gave evidence about his skills, employment experience and qualifications. The applicant stated that, while studying at SRUC, he worked one day a week undertaking work experience. The applicant provided a letter from SRUC stating that the applicant was a student at the Scottish Agricultural College which was renamed SRUC after a merger in August 2012. The applicant worked one day a week from September 2008 to June 2009. He did not finish a couple of subjects. He did the course for one year. It was a certificate course which could be extended to a degree. The applicant did not finish the certificate course.
The applicant also provided an academic transcript from the University of Johannesburg stating that he was enrolled in a Bachelor of Science (Botany and Chemistry). Results were provided for 2003 and 2004. He passed nine subjects in 2003 and he passed seven subjects in 2004. The applicant failed a number of subjects and in some subjects supplementary exams were granted.
The applicant stated at the hearing that his skills and experience come from a diverse background. His experience comes from institutions in Australia and the United Kingdom. The applicant confirmed that he does not have a bachelor degree or higher qualification. The applicant stated that the combination of his experience and qualifications means that he has enough experience and understanding to competently accomplish the tasks of the job.
The applicant stated at the hearing that he worked as a farm sitter for two months from September 2012 to October 2012 and this was full-time.
The applicant stated that he worked full-time as a shed operator from March 2013 to May 2013. He then worked full-time from June 2013 to December 2013 as a Mixed Crop and Vegetable Farmer for Wisemans Organic Produce. He had started in May 2013 on odd days and then they recognised his ability and he then began working full-time for them from June 2013. He worked six days a week. The applicant was then employed again by this company from June 2014 to the present. He provided a statement of skills and experience signed by Regina Wiseman on 13 April 2015.
The applicant stated that from December 2013 to June 2014, he worked full-time as a Mixed Crop Farmer for TA and MT Rawson. The applicant provided a statement dated 4 March 2015 from Tom Rawson about the applicant’s skills and experience.
The applicant referred to the visa application and stated that his work as a grain handler at Grainflow from October 2012 to November 2012 was relevant to the nominated occupation. The applicant stated that he worked at two locations and he worked from August 2012 to November 2012. It was more than two months. He is not sure why it was stated that he only worked there for two months.
The applicant stated that he gained experience through institutions, education and formal employment. He was also self-taught and reads literature. He has a hands-on approach. He has a vegetable garden and he is known as being able to grow things. He likes to eat the food that he grows. Now he has the opportunity to do this on a grander scale.
The applicant studied a Bachelor of Science at the Rand Afrikaans University which is now the University of Johannesburg. He studied Botany and Chemistry. He did two years at the university. He did not pass some of the subjects. The subjects that he passed were relevant to the occupation. The subjects that were relevant were Plant Diversity, Plants in Action, Ethno and Economic Botany, Environmental Chemistry, Bacteriology, Plant Pathology and Water-Borne Diseases, Cellular Biology and Molecular Biology to a certain degree.
The applicant stated that his skill level, that Wisemans Organics recognises, suits the position perfectly and that is why they were so keen to sponsor him and keep him in their employ since the application date. They found that the applicant was more than competent to accomplish the tasks of a Vegetable Grower. He has also been working in the position since the application date.
Mr Luke Orlan Wiseman gave evidence that he is the owner and director of the nominating employer, Keillna Pty Ltd trading as Wisemans Organic Produce. Mr Wiseman stated that the applicant’s qualifications leading up to his employment with them and his achievements with them meet the requirements of the level of skill required. They are a large organic commercial operation in Australia. They supply the whole of the east coast. The applicant is the Vegetable Manager or second in charge. The applicant has decision making ability and skills and has been able to perform on his own. From the applicant’s previous experience, his study of Botany and his other farming experience, he was able to step into the role and to fulfil it. Mr Wiseman believes that the applicant has the qualifications. Tocal is considered a reputable institution for the recognition of prior learning. Since June 2014, the applicant has been working full-time for them. His ability to perform tasks and make decisions is well beyond that of a common employee.
The representative provided a submission dated 11 May 2015 to the Tribunal and stated that the applicant submits that his qualifications and experience taken together are sufficient to meet the indicative skill level set by ANZSCO for “most occupations in unit group” and that he had these qualifications and experience at the time of application. The representative referred to a decision of the Migration Review Tribunal (MRT) (case number 1400193) and stated that the MRT found that the term “qualifications” could incorporate a broader concept that “includes relevant employment or other experience, which the ANZSCO entry indicates may ‘substitute’ for educational qualification.” The representative stated that the applicant holds a Diploma of Production Horticulture from Tocal College completed on 5 June 2014 and he has over five years of relevant employment and experience gained through one year of study in Horticulture at Scotland’s Rural College, two years of study in Botany and Chemistry at Rand Afrikaans University and over two years of work experience gained on farms in Australia and working in the Royal Botanic Gardens as part of his studies in Scotland. The representative submitted that the applicant’s Diploma of Production Horticulture which he held at the time of lodgement, together with over five years of relevant employment and other experience, satisfies the indicative skill level specified by ANZSCO.
The Tribunal has considered the evidence, both oral and written. The Tribunal has also considered the submission about the MRT decision. This Tribunal is not bound by the MRT decision. However, the Tribunal has had regard to it. The Tribunal notes that in that case the MRT was satisfied that the applicant had over 10 years employment experience and therefore had at least five years of relevant experience at time of application and thus met the requirement of cl.187.234(c).
The reference in ANZSCO to five years experience as an alternative to the requirement for qualifications refers to “relevant experience”.
The applicant does not have a bachelor degree or higher qualification. The Tribunal has considered whether the applicant has at least five years of relevant experience which may substitute for the formal qualification.
The Tribunal has considered the applicant’s submission that his work experience and study should be taken into account in assessing whether he has five years of relevant experience. The Tribunal has calculated the periods of relevant work and study listed in the visa application, his curriculum vitae, documentary evidence and his oral evidence but is not satisfied that the applicant has five years of relevant experience which may substitute for the formal qualifications.

The applicant’s evidence was that he worked one day a week doing work experience whilst he was studying a certificate course at SRUC from September 2008 to June 2009. He studied for one year and also undertook work experience whilst he was studying. The Tribunal is satisfied that the applicant had 12 months relevant experience from 2008 to 2009 and this involved working at the Royal Botanic Gardens Edinburgh and studying at SRUC.
Based on the applicant’s evidence, the Tribunal is satisfied that he worked for two months as a farm sitter for Wallaby Way and this was relevant work experience.
The Tribunal accepts the evidence in the visa application and in the curriculum vitae that the applicant worked as a grain handler from October 2012 to November 2012 and that this was relevant work experience. Although the applicant claimed at the hearing that he actually worked from August 2012 to November 2012, the Tribunal does not accept this evidence because the applicant provided the information to the Department in two different documents (the visa application and the curriculum vitae) stating that he worked as a grain handler from October 2012 to November 2012. The Tribunal finds that the applicant worked for two months as a grain handler and this was relevant work experience.
The Tribunal accepts that the applicant worked from March 2013 to May 2013 as a shed operator for AGS Sunrice. The Tribunal is satisfied that he worked for three months as a shed operator and this was relevant work experience.
The Tribunal also accepts that the applicant worked for Wisemans Organic Produce/ Keillna Pty Ltd from June 2013 to December 2013. Mr Wiseman attended the hearing and gave evidence about the value of the applicant to their business and Ms Regina Wiseman provided statements in support of the applicant. Although Ms Wiseman stated that the applicant worked from 13 May 2013 to 4 December 2013, the applicant gave evidence at the hearing that he worked in May 2013 on odd days before he started working full-time in June 2014. The Tribunal is satisfied that the applicant worked for six and a half months as a Mixed Crop and Vegetable Farmer and this was relevant work experience.
The Tribunal also accepts that the applicant worked from December 2013 to June 2014 as a Mixed Crop Farmer. In the applicant’s curriculum vitae, he stated that he worked for TA and MT Rawson from 17 December 2013 to 1 June 2014 as a Mixed Crop Farmer. The applicant gave oral evidence at the hearing about this and also provided a statement from Tom Rawson confirming that the applicant worked for Mr Rawson’s business as a farmer between December 2013 and June 2014. The Tribunal is satisfied that the applicant worked for six and a half months as a Mixed Crop Farmer and this was relevant work experience.
The applicant’s year of study at SRUC and his work experience at time of application totals 32 months. Even if the Tribunal accepts the two years of study at the University of Johannesburg as relevant experience, the Tribunal is not satisfied that the applicant has five years of relevant experience. Whilst the applicant has achieved a Diploma of Horticulture in Australia, this was awarded based on recognition of prior learning and skill recognition. The applicant did not attend a course and although he made submissions and completed assessments, the Tribunal does not have any evidence before it as to the time taken for these assessments.
The Tribunal is not satisfied that the applicant had at least five years of relevant experience at time of application to substitute for the formal qualification.
Accordingly, the applicant does not have the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation and he therefore does not meet the requirements of cl.187.234(c).
Therefore, cl.187.234 is not met.
The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.
The second named applicant does not satisfy cl.187.311 because she is not a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa and made a combined application with the primary applicant.
DECISION
The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.
Dione Dimitriadis
Member

ATTACHMENT: CLAUSE 187.234 AND ANZSCO EXTRACT
187.234
At the time of application:
(a) the applicant was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph; or
(b) if:
(i) the applicant’s occupation is specified by the Minister in an instrument in writing for this subparagraph; and
(ii) the applicant did not obtain the necessary qualification in Australia;
the applicant’s skills had been assessed as suitable for the occupation by an assessing authority specified by the Minister in the instrument for subparagraph (i) as the assessing authority for the occupation; or
(c) if neither paragraph (a) nor (b) applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.
1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.2
UNIT GROUP 1212 CROP FARMERS
CROP FARMERS plan, organise, control, coordinate and perform farming operations to grow crops.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Tasks Include:
oplanning and coordinating the production and marketing of crops, such as grain, cotton, sugar cane, fruit and nuts, vegetables, turf and flowers, from soil preparation to harvest taking into account environmental and market factors
oselecting and planting seeds, seedlings and bulbs, and grafting new varieties to root stocks
omaintaining crop production by cultivating, de-budding and pruning, and maintaining optimal growing conditions
oorganising and conducting farming operations, such as collecting, storing, grading and packaging produce, and organising the sale, purchase and despatch of produce
odirecting and overseeing general farming activities such as fertilising and pest and weed control
omaintaining farm buildings, fences, equipment and water supply systems
omaintaining and evaluating records of farming activities, monitoring market activity, and planning crop preparation and production to meet contract requirements and market demand
omanaging business capital including budgeting, taxation, debt and loan management
omay select, train and supervise staff and contractors
Occupations:
121211 Cotton Grower
121212 Flower Grower
121213 Fruit or Nut Grower
121214 Grain, Oilseed or Pasture Grower (Aus) / Field Crop Grower (NZ)
121215 Grape Grower
121216 Mixed Crop Farmer
121217 Sugar Cane Grower
121218 Turf Grower
121221 Vegetable Grower (Aus) / Market Gardener (NZ)
121299 Crop Farmers nec
....
121221 VEGETABLE GROWER (AUS) / MARKET GARDENER (NZ)

Alternative Title:
Vegetable Farm Manager

Plans, organises, controls, coordinates and performs farming, greenhouse and market garden operations to grow vegetables.
Skill Level: 1
Specialisation:
Market Gardener (Vegetables) (Aus)

[2016] AATA 3061

6 January 2016

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Immigration

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