1513073 (Migration)

[2016] AATA 3232

1513073 (Migration) [2016] AATA 3232 (4 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Paramjeet Singh
Mrs Rajpreet Kaur
Master Ansh Thind

CASE NUMBER:  1513073

DIBP REFERENCE(S):  BCC2013/943067 BCC2015/2922652

MEMBER:Bruce Henry

DATE:4 February 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

· cl.187.234 of Schedule 2 to the Regulations; and

· PIC 4020 for the purposes of cl.187.213 of Schedule 2 to the Regulations.

Statement made on 04 February 2016 at 4:40pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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).

2. The applicants applied to the Department of Immigration for the visas on 28 June 2013. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. 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.

4. 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 Dairy Cattle Farmer (ANZSCO 121313) for the nominator, Barambah Organics. 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.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.234 of Schedule 2 to the Regulations because the first named applicant, Mr Singh, had no qualifications listed in ANZSCO as being necessary to perform the tasks for the occupation of Dairy Cattle Farmer as required under clause 187.234(c).

6. The applicants appeared before the Tribunal on 3 February 2016 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether Mr Singh has the necessary qualifications listed in ANZSCO as being necessary to perform the tasks for the occupation of Dairy Cattle Farmer as required under clause 187.234(c).

10. Given the issues raised by the delegate in rejecting the application, the Tribunal has also considered whether public interest criterion 4020 (PIC 4040) applies.

    Skills and qualifications

11. 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.

12. For this criterion, the relevant classes of exempt persons have been specified in IMMI 12/060[1], and the occupations and relevant assessing authorities have been specified in IMMI 12/096[2]. As neither of these instruments applies to this application, the applicant must have the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

    [1] IMMI12/060, Classes of persons (exempt from the skill criteria) (subclause 186.234(3) and paragraph 187.234(a)), 12 June 2012

    [2] IMMI 12/090, specification of occupations and assessing authorities (paragraph 187.234(b)), 17 September 2012

13. ANZSCO describes the position as follows:

    UNIT GROUP 1213 LIVESTOCK FARMERS

    LIVESTOCK FARMERS plan, organise, control, coordinate and perform farming operations to breed and raise livestock.

    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:

    obreeding and raising livestock for the production of honey, meat, milk, skins, eggs and wool

    omonitoring and maintaining the health and condition of livestock

    oproviding pastures and fodder to maintain appropriate nutritional levels

    omoving livestock to optimise feeding opportunities

    oorganising and conducting farming operations such as catching, drenching and milking livestock, sterilising machines, and collecting, grading and packaging produce

    odirecting and overseeing general farming activities such as maintaining pens, sheds and cages, fertilising, controlling pests and weeds, and growing fodder

    omaintaining fences, equipment and water supply systems

    oorganising the sale, purchase and transportation of livestock and produce

    omaintaining and evaluating records of farming activities, monitoring market activity and planning production accordingly

    omanaging business capital including budgeting, taxation, debt and loan management

    omay select, train and supervise staff and contractors

    Occupations:

    121311 Apiarist
    121312 Beef Cattle Farmer
    121313 Dairy Cattle Farmer
    121314 Deer Farmer
    121315 Goat Farmer
    121316 Horse Breeder
    121317 Mixed Livestock Farmer
    121318 Pig Farmer
    121321 Poultry Farmer
    121322 Sheep Farmer
    121399 Livestock Farmers nec

    121313 DAIRY CATTLE FARMER
    
    Alternative Title: Dairy Cattle Farm Manager
    
    Plans, organises, controls, coordinates and performs farming operations to breed and raise dairy cattle for milk, meat and breeding stock.

    Skill Level: 1
    Specialisations:

    Share Dairy Farmer (Aus) / Sharemilker (NZ)
    Stud Dairy Cattle Farmer

14. Information on the departmental file confirms that the applicant has completed a Certificate IV in Business and a Diploma in Management, involving a total of one year of study from August 2010 to August 2011, while in Australia. The file also contains information provided by the representative from Dairy Australia and the University of Queensland regarding the skills and qualifications required to work in the industry in Australia.

15. Information on the file also confirms that the applicant has worked for Barambah Organics since November 2011, initially as a ‘Production Crew Leader’ and subsequently in a farm management role since February 2013. His employment contract for his current role appears on the departmental file, and it is clear from this document that he has a role in the management of the farm as well as in the dairy production activities on the farm.

16. The applicant also provided to the Department documentary evidence of his studies for a Bachelor of Arts degree at the University of Bikaner after studying at the N.M. (P.G.) College campus in his home town. He finished these studies in 2005. On the Form 80 that appears on the departmental file he states that until coming to Australia in 2008 he worked on his family farm.

17. As is apparent from the decision record of the delegate, the application was refused on the basis of information from a site visit conducted by representatives of the Department to the applicant’s family farm in India in June 2015. The decision record states:

    B. On the following submissions and attachments, the visa applicant claimed to have the necessary working experience as follows:

    ·Migration Agent’s submission dated 13 March 2015

    ·Employment certificate from the nominator dated 13 March 2015

    ·Visa applicant’s statutory declaration signed on 17 April 2015

    ·Signed affidavits of the main applicant’s father and grandfather.

    C. Both the agent submission and employment certificate were given due consideration; however, it was assessed that these documents do not give a clear and valid indication that the visa applicant has a full five year relevant work experience. The statutory declaration was also considered, however, the statements were vague and not quite credible given that nothing of such work experience was originally declared on his form 80, and was given little weight.

    A site-visit referral was made to the overseas Post in New Delhi to verify the contents of the signed affidavits and the statutory declaration, and ensure validity of the applicant’s claims.

    D. The site-visit came back with a ‘non-genuine’ outcome. The Post concluded the following:

    “We accept that PA (Paramjeet Singh) has assisted his family in agriculture sometime, however he hasn’t worked at the agriculture field/farms for full time as he was studying Bachelor of Arts and after that went for IETLs coaching and then went to Australia. We do not believe that PA has performed the activities indicated in the reference letter nor as per the ANZSCO.

    E. In accord to natural justice, the non-genuine outcome was presented to the man applicant for him to address and provide clarification/s.

    F. In response to the natural justice letter, the main applicant provided the following:

    - Migration Agent submission dated 26 August 2015

    - New signed affidavits of the main applicant’s father, 2- brothers, a cousin, a neighbour and several townmates.

    G. The new submission and supporting affidavits were given due consideration and weight.

    Of more significance were the alleged facts that during the claimed work-period, the main applicant's father was driving fulltime, the older brother was working in another company and the younger brother was still in school, which leaves the main applicant as the one to look after the business, and oversee the farming operations as mentioned in his statutory declaration.

    H. However, while the new submissions have added more clarification and evidences in contrast to the site-visit outcome, I still find that the overseas Post's findings and conclusion far outweigh all the information provided by the main applicant, based on the Post's actual interviews, observations and evaluation of facts.

    I. Based on the foregoing particulars, I find that the main visa applicant has no qualifications listed in ANZSCO as being necessary to perform the tasks for the occupation of Dairy Cattle Farmer, as required under clause 187.234(c).

    Documents provided by the Department

18. Under ss.352(4) of the Act, the Secretary of the Department must, as soon as practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision. The file that was provided to the Tribunal in purported compliance with this requirement contains numerous completely blank pages, and others which appear to have been heavily redacted.

19. The Department has the power to proscribe the Tribunal from divulging information to an applicant (see ss.375A and 376 of the Act). Indeed, in this case the delegate has seen fit to use the power under s.375A of the Act to prevent the Tribunal from divulging to the applicant information contained in folios 284-296 of the departmental file. These folios contain material actually submitted by the applicant’s representative and the nominator, and include the information provided by the representative from Dairy Australia and the University of Queensland that is referred to above, and information in folios 393-396, which are completely blank pages other than folio 394, which is largely blank other than a list of dates and times the relevance of which to anything at issue in the case is unclear.

20. The pages that appear at folios 284-296 of the file are identical to the documents at folios 416-428, which are not subject to a certificate under s.375A.

21. The basis for the s.375A certificate is said by the delegate to be that:

    Folios 284 to 296 and 393 to 396 contain information which would normally be exempt from disclosure under Part 4 of the FOI Act and do not fall within s.375.

22. Section 375 provides for the Minister to withhold documents or information from the Tribunal on national security or cabinet secrecy grounds. Otherwise, s.375A provides for documents to be produced to the Tribunal subject to the proviso that ‘the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review’ (s.375A(2)(b)).

23. As stated above, the documents which appear at folios 284 to 296 of the departmental file are documents which were provided by the applicant himself to the Department, and also appear elsewhere on the file. Further, the documents are from the public domain, and there is no basis for a finding that they would be exempt from disclosure under the FOI Act. Accordingly, the Tribunal is satisfied that the certificate, insofar as it relates to these documents, is invalid.

    The evidence produced to the Tribunal

24. During the review the applicant’s representative provided submissions addressing the matters raised by the delegate in rejecting the application, accompanied by a statutory declaration from the applicant and numerous Affidavits from members of his family and other people from their village regarding his role in working on his family’s farm.

25. The applicant confirmed at the hearing that he worked on his family’s farm in India until he came to Australia in 2008. He said that as well as growing crops of wheat, rice and vegetables on their land the family had about 15 cows which they used for the production of milk for sale in the local markets. The applicant said that his family’s land was shared with his grandfather and his father’s brothers and their families, and that all members of the family worked when they could. He grew up on working on this farm, and after he finished school he continued to work on the farm whenever his studies at college permitted him to do so. He said that he had attended IELTS preparation courses part time for about 2-3 months.

26. In relation to the information gathered during the ‘site visit’ to his village, the applicant said that by the time the departmental officers visited the village in 2015 he had been in Australia for more than seven years, and his brother Avtar Singh had been working on the farm for many years. He said that in these circumstances it was not surprising that people interviewed by the Department saw his brother Avtar as the main person responsible for the farming, but noted that all of the people interviewed had told the Departmental officers that he (the applicant) had worked on the farm when he was not studying before he went to Australia.

27. The Tribunal found the applicant to be open and honest in his evidence, and considers that the explanation he provided as to the information provided to the Department’s representatives during the site visit is reasonable. He was prompt in responding to questions about his work on the family farm, and the Tribunal accepts his evidence that before coming to Australia in 2008 he had spent many years working on the farm and tending the family’s cattle, including more than two years fulltime.

28. On the basis of the materials from Dairy Australia and the University of Queensland and the records of the applicant’s studies in Australia, the Tribunal is satisfied that the courses completed by the applicant are relevant to some aspects of the work of a Dairy Cattle Farmer. Given that the applicant had worked for the nominator for about a year and a half before the application was lodged, the Tribunal is satisfied that his work and study in Australia, combined with his work experience in India, mean that he meets the skill level for the occupation for which he has been nominated as set out in ANZSCO.

29. Therefore, the Tribunal is satisfied that cl.187.234 is met.

    Public Interest Criterion 4020

30. Clause 187.213 requires, inter alia, that the applicant satisfy PIC 4020.

31. PIC 4020(1) requires that there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: cl.4020(1).

32. The term ‘information that is false or misleading in a material particular’ is defined in cl.4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act. In contrast to the definition of ‘information that is false or misleading in a material particular’ in cl.4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Batra v MIAC [2013] FCA 274.

33. The requirement in cl.4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: cl.4020(3). It also applies whether or not the document was provided by the applicant knowingly or unwittingly. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

34. As set out above, the Tribunal found the applicant to be an honest and open witness, and accepts his explanation for the confusion that arose about his work on the family farm before coming to Australia.

35. The Tribunal notes that the applicant was employed as a Production Crew Leader by the nominator in 2011. At that time, his only relevant work experience in the dairy industry had been gained on his family farm in India. In Australia he had worked as a taxi driver, a car detailer and a kitchenhand. The nominator, a well-known Queensland dairy producer, was sufficiently satisfied with his experience to appoint him as a crew leader and has seen fit to subsequently promote him to the position for which he has been nominated for the purposes of this application. It is difficult to see how he could have been able to perform the work he has done for the nominator if his claims as to his work experience in India were untrue.

36. Accordingly, notwithstanding the findings from the site visit, the Tribunal is satisfied that the information that the applicant has provided to the Department and to the Tribunal about his work experience is true, and that he has not provided any bogus documents or misleading information to the Minister, an officer, or the Tribunal. Clause 4020(1) is therefore satisfied.

1. In addition to the requirement set out in cl.4020(1), cl.4020(2) also requires the Tribunal to be satisfied that the applicant (and each member of their family unit) has not been refused a visa because of a failure to satisfy cl.4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused.  There is no evidence that this provision applies to the present applicants.

2. In addition to the requirements relating to the provision of bogus documents and false or misleading information, an applicant must satisfy the Tribunal as to his or her identity: cl.4020(2A). Further, during the period starting 10 years before the visa application was made, and ending when the visa is granted or refused, neither the applicant, nor any member of his or her family unit, must have been refused a visa because of a failure to satisfy the identity requirements in cl.4020(2A): cl.4020(2B). There is no evidence that these provisions apply to the present applicants.

3. On the basis of these findings, the Tribunal is satisfied that the applicant satisfies PIC 4020 for the purposes of cl.187.213.

4. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

   DECISION

5. The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

   ·cl.187.234 of Schedule 2 to the Regulations; and

   ·PIC 4020 for the purposes of cl.187.213 of Schedule 2 to the Regulations.

   Bruce Henry
   Member