1418780 (Migration)

[2015] AATA 3488

1418780 (Migration) [2015] AATA 3488 (19 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  J.S and M.K and B.S H.S Rai

VISA APPLICANTS:  Mr Tarlochan Singh
Mrs Sarabjeet Kaur
Mr Gurinder Singh
Ms Simranpreet Kaur

CASE NUMBER:  1418780

DIBP REFERENCE(S):  BCC2013/950932

MEMBER:Denise Connolly

DATE:19 October 2015

PLACE OF DECISION:  Sydney

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

Statement made on 19 October 2015 at 3:22pm

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 28 June 2013.

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 29 October 2014 on the basis that cl.457.223(4)(da) was not met because he was not satisfied the first named visa applicant (the visa applicant) has the skills, qualifications and employment background considered necessary to perform the tasks of the nominated occupation of Mixed Crop Farmer.  

5. Mr Jinder Singh Rai (the review applicant) appeared before the Tribunal, on behalf of the review applicants, on 25 September 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da).

Skills, qualification and employment background of the applicant

1. 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 this case the nominated occupation is Mixed Crop Farmer (ANZSCO 121216).

10.    The review applicant has provided to the Tribunal a copy of the delegate’s decision record.

11.    When making the visa application, the visa applicant provided an affidavit from Mr Gurpartap Singh. The reference states that the visa applicant had been doing agriculture work with him for the last 7 years at his village in Mirpur Lakha and he is an experienced farmer. It states he is has knowledge in agriculture and farming operations, he knows how to drive all agricultural machines and implements, and he knows how to manage and control farm labour. 

12.    The delegate’s decision record records that Departmental officers spoke to Mr Gurpartap Singh on 5 September 2014. Mr Singh advised that the visa applicant assists him with looking after the farming land. Mr Gurpartap Singh also gets assistance from another relative. Mr Gurpartap Singh orders seeds, fertilisers and pesticides and sends the visa applicant or other labourers to pick up the material. Mr Gurpartap Singh makes all the decisions on what seed variety and pesticides to use on the farm and he deals with Artiya (a commission agent) for the sale of crops. The visa applicant or another relative deliver the crops to Artiya. The visa applicant is not paid any fixed salary but is paid when he needs money. When asked by the Departmental officers about the affidavit referred to above, Mr Gurpartap Singh advised that he was not aware of the contents of the affidavit reference signed by him, but believed it said something about the visa applicant working for him. The Departmental officers spoke to other villagers in Mirpur Lakha who could not recognise the visa applicant’s photograph. They advised that Mr Singh does all the farming himself with the help of labourers.

13.    Departmental fficers also interviewed the visa applicant on 5 September 2014. In that interview, he was not aware of the cost of seeds, fertilisers, pesticides or the sale price of crops. The crops are sold by his relative and his role is to deliver the crops to the buyer.  The visa applicant assists the referee to look after the fields but only occasionally when he needs help. The delegate formed the view the visa applicant is neither farming as a partner nor as a full time employee for the referee. He did not accept the visa applicant’s employment claims indicating he had worked in agriculture for the last 8 years.

14.    The Department provided the visa applicant with an opportunity to comment on its preliminary view that the affidavit by Mr Gurpartap Singh and the visa applicant’s employment claims were not genuine. In response the visa applicant provided several affidavits from various people claiming to know that the visa applicant had been undertaking agricultural work. These included an affidavit from Mr Gurpartap Singh attested on 3 October 2014 claiming the visa applicant has a full knowledge of agriculture and farming operations, drives machinery, manages and controls farm labour, and has knowledge of pesticides and fertilizers. Mr Gurpartap Singh claims he has been doing this for 6-7 years.

15.    The delegate was not satisfied the affidavits adequately addressed the problems arising from the verification undertaken by Departmental officers. He was not satisfied the applicant has the skills, qualifications and employment background necessary to perform the tasks of a Mixed Crop Farmer.

16.    Prior to the scheduled hearing the Tribunal wrote to the review applicants under s.359A of the Act inviting their comments on the information regarding Mr Gurpartap Singh’s affidavit reference, and the information obtained from Mr Gurpartap Singh and the visa applicant during the verification checks undertaken by Departmental officers. The review applicant was advised that the information may be relevant to affirming the decision under review, as it indicates that the visa applicant may not have undertaken the duties at the skill and level of a Mixed Crop Farmer (ANZSCO 121216) while working for Mr Gurpartap Singh. The Tribunal explained that it may not accept that the affidavit/work reference contains true information about the visa applicant’s work experience. 

17.    The Tribunal also explained that it may find that the visa applicant has not demonstrated that he has the skills, qualifications and employment background that the Tribunal considers necessary to perform the tasks of a Mixed Crop Farmer (ANZSCO 121216) and if so it may find that the visa applicant does not meet cl.457.223(4)(da) and it may then affirm the decision to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas.

18.    The review applicant’s representative asserted that the visa applicant’s employer is the owner of the farm but has too much work so needs the visa applicant to work as a farm manager, and that the visa applicant undertakes the majority of the duties set out in ANZSCO. He claims agricultural work in India is tax free so it is difficult to show evidence of such experience. He claims that due to local language differences there may have been misinterpretation. He claims the visa applicant has extensive experience. He provided evidence that the sponsor had lodged new sponsorship and nomination applications for the position. He provided affidavits from a neighbour and Mr Gurpartap Singh stating the visa applicant has worked in agriculture as claimed. He also provided a Statutory Declaration from the first named review applicant stating he has known the visa applicant since he was a child and has witnessed him working in agriculture. He claims the visa applicant’s duties include preparing the fields and informing Mr Gurpartap Singh about the supplies needed, managing land in surrounding villages, and using products to increase yields. He knows about irrigation, pesticides and fertilization. He claims people in the village are very innocent and this is why they did not recognise the visa applicant because they did not want to interfere in someone else’s business. There was a misunderstanding when Mr Gurpartap Singh implied he did not know what had been written in the reference.

19.    At the hearing the Tribunal discussed with the review applicant the requirements of cl.457.223(4)(da), the visa applicant’s skills, qualifications and employment background and the issues arising from the Department’s verification process. It also discussed the ANZSCO definition for the occupation Mixed Crop Farmer. The following is a summary of the review applicant’s oral evidence.

20.    The review applicant told the Tribunal that he has a 250 acre farm. During the busy season, from July to December, he employs about 20-25 people, and at other times he employs about 4-5 workers. He grows a range of crops including bananas, blueberries and avocadoes. His income last financial year was about $1.5 million. His wages and salaries expenditure is about $300,000.

21.    The Tribunal asked the review applicant about his role on the farm. He indicated he looks after the farm, pays the bills and purchased items such as sprays. If it is busy he does some work using machinery. There are 3 tractors, 4 irrigation spray pumps and other machinery. If there is produce in the shed he transports it to the depot. He also transports other items to and from the depot. He works as a Mixed Crop Farmer, along with 4 others; his 2 sons, his son-in-law and a Subclass 457 visa holder.

22.    The Tribunal asked the review applicant how he knows the visa applicant. He said he is a relative, his father’s cousin’s son. He sees him at work when he visits India. The visa applicant is Mr Gurpartap Singh’s cousin.  When asked about the visa applicant’s skills, qualifications and employment background, the review applicant said he is not educated but he started farming in his childhood on the family farm. When asked if there was anything else he wanted to say about the visa applicant’s skills, qualifications and employment background, he said he has worked as a farmer all his life, he has had no other job. He confirmed that he does not have English, apart from being able to read a little. He visits India every year and stays 3-4 weeks. He sees the visa applicant at work while he is there.

23.    The Tribunal noted that it had written to the review applicants and set out the concerns about the Department’s verification checks. It asked if he had any further comment about the Department’s verification checks and records that Mr Singh and the visa applicant gave different evidence to that which was recorded in the reference. The review applicant indicated that he thought there had initially been some confusion and the Department was given the wrong evidence.

24.    The Tribunal asked the review applicant to describe the duties the visa applicant will undertake on the farm. He indicated he will look after the labourers, pick fruit and do whatever needs to be done. The Tribunal noted that the occupation Mixed Crop Farmer requires the person to undertake management duties. It asked how the visa applicant will undertake those duties if he does not have English. The review applicant indicated he will not need English to look after the labourers. The Tribunal questioned how he will manage people if he has no English. He said if, for example, the bucket is full, he will take it to the shed. Also his boys work on the farm and they will interpret for him if he needs to say something to the labourers. He said, in farming, one does not need to speak much, except to say ‘move grass, drive tractor, pick up bucket’.

25.    The Tribunal noted that the nominated occupation is a skill level 1 position, which has a managerial component. It explained that it may not be satisfied that the visa applicant will play a managerial role, given the review applicant’s role and the review applicant’s description of the visa applicant’s skills, qualifications and employment background. The Tribunal read the ANZSCO description to the review applicant and indicated it may not be satisfied he can perform those duties, as his oral description of the visa applicant does not indicate he has the skills and experience in performing the duties of a Mixed Crop Farmer. The review applicant said that may fruit pickers have come here and they can do the job. His boys will interpret for the visa applicant. He will be able to work as a Mixed Crop Farmer as he has done all of that work in India. When asked to expand on this he indicated the visa applicant prepares land for sowing. He has a good knowledge of farming and he will help the review applicants. He has experience in growing crops including sugar, wheat, rice, potato and peas. He had nothing further to add.

26.    The Tribunal took oral evidence from the visa applicant. He confirmed he grows sugar, wheat and rice. He has experience in ploughing, driving the tractor, using fertilizers, insecticides and pesticides, and irrigation. Before sowing he ploughs the land, applies pesticides and irrigates. He has a good knowledge of pesticides and other things.

27.    The representative requested further time to provide more evidence. The Tribunal asked what evidence he wished to provide given the issue is whether the visa applicant has the skills, qualifications and employment background to perform the duties of a Mixed Crop Farmer. He indicated the review applicant has purchased more land and intends to expand his business. The Tribunal then asked the review applicant about this issue. He confirmed that the business has bought land, about 15 kms away, but he has no-one to work on it. He needs someone to stay there and work on that land. He is now 60 and he wants to retire soon. His sons need help. He believes the visa applicant has the skills and he is honest so the review applicant can rely on him. If he is granted the visa, the review applicant will pay him the wages stated in the visa application.

Assessment of the evidence

28.    Although not bound by this definition the Tribunal has considered the description of the tasks of the positions Crop Farmers and Mixed Crop Farmer as outlined in ANZSCO which relevantly states as follows:

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

121216 MIXED CROP FARMER

Plans, organises, controls, coordinates and performs farming operations to grow a variety of crops.

Skill Level: 1

29.    The review applicant has confirmed that the visa applicant does not have a formal qualification. In the visa application the visa applicant claims that he has worked as an Agriculturalist for about 8 years, sowing and harvesting, maintaining pest management, managing irrigation systems and operating large machinery.  He seeks to rely on his employment experience to demonstrate he has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, Mixed Crop Farmer. In a statement provided with his visa application he has claimed that he has worked in agricultural and farming operations, has driven all agricultural machinery and implements, including ploughing, sowing and harvesting implements. He claims he has managed and controlled farm labour, and that he has a good command of farming activities. He provided a reference from Mr Gurpartap Singh claiming that the visa applicant has worked for him for 7 years and is fully experienced and has knowledge in agricultural and farming operations. The Department’s verification checks raise concerns about whether in fact the visa applicant has the depth of experience indicated. Mr Singh provided another statement claiming that the visa applicant is fully experienced in farming operations which the Tribunal has taken into account. However for the reasons given below it has some doubts as to whether this is the case.

30.    The Tribunal notes the nominated occupation is a Skill Level 1 managerial role which involves planning, organising and decision-making in regard to various aspects of crop farming activities.  Given the concerns raised by the verification process as to whether the visa applicant meets cl.457.223(4)(da), the Tribunal asked the review applicant about the visa applicant’s skills, qualifications and employment background. He acknowledged that he is not educated but said that he started farming in his childhood. When asked about the visa applicant’s skills and employment background, he said he has worked as a farmer all his life, and he has had no other job. He confirmed that he does not have English, apart from being able to read a little. The review applicant visits India and has observed him working on the farm. The Tribunal has taken into account that the review applicant may not have been able to express in detail the visa applicant’s skills and employment background. However, even taking this into account, it considers the oral description of the visa applicant’s background is not at all reflective of experience and skill commensurate with a farmer who is able to plan, organise, control and coordinate farming operations. Also his evidence in regard to managing farm labourers is concerning as it appears it will be limited to being able to instruct, with an interpreter, basic directions such as moving grass, driving a tractor or picking up a bucket. In the Tribunal’s view these are the types of instructions that a farm supervisor may issue, and are not at the level of detail and complexity as instructions that may be issued by a crop farmer. Even if the Tribunal accepts that the visa applicant has had a limited supervision role, the Tribunal is not satisfied that the visa applicant’s experience is at a sufficient skill level that would have equipped him to perform the duties of the nominated occupation. Having considered all of the written and oral evidence the Tribunal is of the view that, at best, the visa applicant has worked as a farm labourer with some supervisory experience. 

31.    The Tribunal accepts the visa applicant’s oral evidence that he has ploughed, driven a tractor, used fertilizers, insecticides and irrigated. However it has formed the view that he has not planned, organised, controlled or coordinated these functions. It has formed the view he has undertaken these tasks as a farm labourer. It is not satisfied he has had the responsibility to make decisions about these functions. The Tribunal is not satisfied that the visa applicant has had experience in maintaining farm buildings, fences, equipment and water supply systems, as the evidence indicates he has operated machinery such as tractors. The visa applicant does not claim to have any experience in record keeping. The Tribunal is also not satisfied that the visa applicant has had any experience in maintaining and evaluating records of farming activities, monitoring market activity, or in planning crop preparation and production to meet contractual requirements and market demand, or in managing business capital including budgeting, taxation, debt and loan management.

32.    The Tribunal notes that the visa applicant has claimed that he worked on the family farm with his parents before working for the referee. It accepts that the visa applicant may have undertaken work on the family farm. However there is no persuasive evidence before the Tribunal to indicate he was responsible for planning, organising, controlling, coordinating and performing the farming operations for the family farm. On the evidence before it, the Tribunal is not satisfied his work on the family farm involved the level of skill required by the nominated occupation.

33.    Having considered all of the evidence before it, the Tribunal accepts that the visa applicant has experience working on farms growing crops in India. However it is not satisfied his level of experience is at a skill level sufficient to equip him to perform the duties of the nominated occupation. 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, Mixed Crop Farmer.

34.    The Tribunal has taken into account the evidence that the review applicants have purchased more land. While it accepts that they may have a genuine need to fill a position in relation to that land purchase, and they may need a Mixed Crop Farmer, it is not satisfied the visa applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

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

36.    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

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

Denise Connolly
Member

ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

457.223

…

Standard business sponsorship

…

1. 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.

   …

2. 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.

   …

3. 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.