1510437 (Migration)

[2015] AATA 3829

1510437 (Migration) [2015] AATA 3829 (7 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr LORENZO VESCO

CASE NUMBER:  1510437

DIBP REFERENCE(S):  BCC2015/1425319

MEMBER:Fraser Syme

DATE:7 December 2015

PLACE OF DECISION:  Brisbane

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

Statement made on 07 December 2015 at 1:10pm

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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 18 May 2015.

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 visa on 14 July 2015 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupations of crop farmer - fruit or nut grower. He was nominated for that occupation by Dhillon Enterprises Pty Ltd (“DE”). The applicant included the delegate’s decision record with the review application.

5. The applicant was represented in relation to the review by his registered migration agent.

6. On 10 November 2015 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicant to give oral evidence and present arguments at a video conference hearing in Coffs Harbour on 7 December 2015 at 12pm (NSW time). On 30 November 2015, the applicant requested the Tribunal reschedule the hearing to be in person before the Tribunal in Brisbane. The Tribunal agreed to that request and re-invited the applicant to give oral evidence and present arguments at a hearing in Brisbane on the same date as the original hearing was scheduled, 7 December 2015 but at the earlier time of 10am (Qld time). The review applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without further notice. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Tribunal staff attempted to contact the applicant’s migration agent via telephone, however, the call went to his message bank and the migration agent did not reply to the request he contact the Tribunal about the non-appearance of the applicant at the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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

9. 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. As noted above, in this case the nominated occupation is crop farmer - fruit or nut grower. An extract of the relevant criteria is annexed to this decision.

10. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable a decision maker to establish the relevant facts. A decision maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70. The Tribunal was unable to seek clarification or additional detail regarding the applicant’s claims as to his skills qualifications and employment background, as the applicant did not attend the hearing. The right to give oral evidence is an applicant's to exercise or waive as he or she chooses and no adverse inference can be drawn from a decision to forgo that right. However, where an applicant does not attend a hearing, the Tribunal has only the material in the departmental file before it from which to make a determination.

11. The delegate’s decision makes reference to the ANZSCO description of crop farmer – fruit or nut grower 121213. The Tribunal has had regard to ANZSCO too, as a guide. The indicative skill requirement set out in ANZSCO for a crop farmer is a bachelor degree or at least five years relevant experience may substitute for a formal qualification.

12. The delegate’s decision record sets out that in reply to an invitation to demonstrate he had the skills, qualifications and employment background, the applicant provided a letter from Ms Gabarini. That letter stated the applicant: had worked on his grandfather’s farm since boyhood; in May 2005 obtained a diploma in agriculture and environmental sciences; upon the illness of his grandfather had taken over management of the farm in 2007 and worked full-time on the farm during the period January 2008 to February 2013 (when the applicant came to Australia).

13. Prior to the hearing, the applicant provided two additional letters to the Tribunal. The first letter is from Mr Gabarini. It too states the applicant worked on his grandfather’s farm since boyhood. After his grandfather became ill, the applicant: cultivated the fields (forage/corn/wheat); cared for vines and livestock; used and maintained agricultural machinery; managed seasonal workers and irrigations systems, and helped Mr Gabarini with gardening. There are no dates and no reference to the applicant holding any qualification. The second letter is from the applicant’s father. It too states the applicant worked on his grandfather’s farm since boyhood. It states the applicant became the manager of the farm in 2012 when his grandfather died. He remained in that position until February 2013.

14. All three letters differ to the information the applicant included in his online application for the visa. Therein he claimed he was a farmhand on his grandfather’s farm from 1992 until he became farm manager in January 2006. The online application details too the applicant’s work experience in Australia. At four different premises (including for two months at DE), the applicant had worked for 14 months either as a fruit packer or a farm hand. The online application details his qualifications as an intermediate vocational diploma in agriculture and environmental sciences. The decision record indicates the applicant did not provide a copy of that qualification. He has not provided a copy to the Tribunal either. The Tribunal is therefore unable to ascertain the number of years the applicant had to study to earn that qualification.

15. The department file includes several photographs of pieces of agricultural machinery and of a boy (presumably the applicant) on farm. There is a statutory declaration of a  Mr Dhillon, (presumably associated to DE) which states Mr Dhillon found the applicant to have shown evidence of farming experience and the applicant is someone who he can trust to work for him full-time with minimal training.

16. In the absence of sufficient evidence of the applicant’s formal qualifications, the Tribunal is unable to be satisfied that he has a bachelor degree. Due to the inconsistencies in the evidence before it as to when he began working full-time at his grandfather’s farm and what the nature of his duties were at that farm and on the farms at which he has worked in Australia, the Tribunal is unable to be satisfied the applicant’s has five years of relevant work experience.

17. For those reasons, the Tribunal is unable to be satisfied the applicant possess the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of crop farmer – fruit or nut grower for the purpose of cl.457.223(4)(da). Because the applicant did not attend the hearing, therefore the Tribunal finds it reasonable in the circumstances not to require him to demonstrate his skills for the purpose of cl.457.223(4)(e). As the applicant does not meet an essential criterion for the visa, the decision under review must be affirmed.

    CONCLUSIONS

18. 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

19. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    Fraser Syme
    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.