Dairo (Migration)

[2022] AATA 4833

Dairo (Migration) [2022] AATA 4833 (24 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr John Rownrick Del Rosario Dairo

REPRESENTATIVE:  Mrs Hildah Winnie Nyemba (MARN: 1465072)

CASE NUMBER:  2005587

HOME AFFAIRS REFERENCE(S):          BCC2020/425781

MEMBER:George Hallwood

DATE:24 November 2022

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

·cl 482.212 of Schedule 2 to the Regulations.

Statement made on 24 November 2022 at 2:28pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Pig Farmer – skills, qualifications, and employment background – at least five years of relevant experience – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212

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 Home Affairs on 28 February 2020 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 13 February 2020. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Pig Farmer.

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations because they found that the applicant does not have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

4. The applicant appeared before the Tribunal on 24 November 2022 to give evidence and present arguments. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant has the skills, qualifications and employment background necessary to perform the tasks of Pig Farmer.

   Applicant’s skills, qualifications and employment background

7. Clause 482.212(3) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl 482.212(4), 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.

8. In determining whether a person has the necessary skills, qualifications and employment background to perform the tasks of the nominated occupation, the Australian and New Zealand Standard Classification of Occupations (ANZSCO) may be used as guidance on the skill requirements of a nominated occupation.

9. Pig Farmer is listed in ANZSCO in the unit group of livestock farmers with the code 121318. According to ANZSCO a Pig Farmer plans, organises, controls, coordinates and performs farming operations to breed and raise pigs for meat and breeding stock.

10. The indicative skill level for the occupation Pig Farmer according to ANZSCO is Skill Level 1. ANZSCO states: “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”.

11. The applicant has a Certificate III in Pork Production from Central Regional TAFE in Western Australia from 29 August 2019. He has worked for over five years in the occupation of Pig Farmer with Cuballing Pork, his current, and nominating, employer.

12. On top of his work with his current employer, the applicant has worked with Hillcroft Farms, a large piggery and feed mill operation in Western Australia. He spent more than a year and a half with that employer as a farm hand.

13. The Tribunal has received a letter from Dr Kim Nairn BVMS Director of Portec Veterinary Services. Dr Nairn, who is also an adjunct senior lecturer in pig and poultry health and management at Murdoch University, vouches for the applicant’s skills and professional development. Letters of support attesting specifically to the applicant’s skills as a Pig Farmer have also been received from: Mr Dawson Bradford, a director at Hillcroft Farms dated 19 March 2020; and Mark Conley, a partner in Cuballing Pork dated 16 November 2022.

14. At the hearing Mr Conley also told the Tribunal that the applicant is the senior employee of the farms five-member workforce, training other staff members over the past couple of years. The applicant has on the occasion of the owners absence, managed the whole of farm operation.

15. At the hearing, the applicant described the tasks of his position of Pig Farmer with Cuballing Pork. He said that the senior manager has recently left and the applicant has been running the entire farm for the last few weeks.

16. The Tribunal is satisfied that the tasks of the position with the nominator coincide with the tasks of the occupation of Pig Farmer and that the applicant’s experience is directly relevant to the position.

17. Based on the information provided, and in particular the applicant’s work with Cuballing Pork and Hillcroft Farms together with his Certificate III qualification, the Tribunal is satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the occupation of Pig Farmer.

18. The Tribunal does not require the applicant to demonstrate the skills: cl 482.212(4).

19. For these reasons the applicant meets the requirements of cl 482.212(3).

    OVERALL CONCLUSION

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

    decision

21. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

    ·cl 482.212 of Schedule 2 to the Regulations.

    George Hallwood
    Member