GREWAL DISCRETIONARY TRUST (Migration)

[2020] AATA 5631

GREWAL DISCRETIONARY TRUST (Migration) [2020] AATA 5631 (16 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  GREWAL DISCRETIONARY TRUST

CASE NUMBER:  1718622

DIBP REFERENCE(S):  BCC2017/2132249

MEMBER:Ian Berry

DATE:16 November 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

STATEMENT MADE ON 16 NOVEMBER 2020 AT 1:42PM

CATCHWORDS

MIGRATION – nomination of a position – Temporary Residence Transition stream – position of Crop Farmer – financial capacity to employ the nominee for two years full-time – actively and lawfully operating in Australia – roles and duties of the nominated position – terms and conditions of employment – evidence of the nominee undertaking the tasks of the occupation – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 245, 359, 360, 363
Migration Regulations 1994, r 5.19

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 approve a nomination under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval of the nomination on 16 June 2017. The delegate decided not to approve the nomination on the basis that the applicant did not provide to the Department any information relevant either to the nomination or the nominee. In the absence of any information (as there were no documents) the delegate decided that the applicant had not shown, at the least, the applicant’s capacity to employ the nominee for two years full-time.

3. The applicant appeared before the Tribunal on 2 occasions (later explained in this decision) 27 April 2020 and 8 October 2020, to give evidence and present arguments. The Tribunal received oral evidence from the applicant’s duly appointed representative Mr Robert Grewal who is the sole shareholder of the trustee the applicant in this case, with his wife Mrs Grewal being the sole director.  The Tribunal exercised its discretion to hold the hearing by telephone. During the COVID-19 pandemic, special circumstances exist for the telephone hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by telephone achieved this end.

4. The applicant was represented in relation to the review by its registered migration agent Mr P Sandhu MARN 0963599.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition stream set out in r.5.19(3), which requires all requirements must be met for the nomination to be approved.

7. The applicant is a blueberry farmer in the Northern New South Wales region around or near the Coffs Harbour. It was incorporated on 17 June 2002. Mr Grewal gave a history of the business conducted by the applicant. It is the trustee of a discretionary trust, which originally grew bananas but decided to move north to Queensland to grow bananas where it did so for about ten years.  A tropical cyclone greatly affected its business operation, so it decided to return to New South Wales and recommence operating its farm business growing blueberries and cucumbers. It has since purchased two more farms, now three in all. It is now concentrating its efforts in growing blueberries, setting aside cucumbers for raspberries and blackberries in the future.

8. The applicant advertised in India to fill the position of crop farmer because of the lack of response by candidates to fill the vacant position. Enquiries in the local area did not result in finding a candidate.  The nominee responded to the advertisement in the Indian newspaper, the nominee was then employed.

9. The nominee is the holder of a Subclass 457 visa. Mr Grewal said the nominee started working in 2013 and ceased working for the applicant on 23 September 2017.  The evidence of Mr Grewal is the nominee telling him that his 457 visa was either cancelled or it had expired. Mr Grewal is uncertain of the exact conversation. Mr Grewal confirmed that the applicant was the only sponsor nominator of the nominee.

10. Though invited to do so[1], the applicant did not provide any corroborating information or documents explaining and corroborating the tasks which had been undertaken by the nominee while in the employ of the applicant.   

    [1] the Tribunal invited the applicant to provide information about the roles and duties of the nominated position and how they correspond to the nominated occupations position description and ANZSCO.  For example, job descriptions, work samples, emails, correspondence and other examples of the daily tasks to be performed in the nominated position, and also the nominated occupations position description and ANZSCO.

    Invitation under s. 359(2) to provide information

11. The Tribunal invited the applicant on 12 February 2020 to provide information relevant to the application for review. Relevantly, the following information pertinent to the review was as follows:

    ·ASIC information relevant to the applicant;

    ·The applicant’s business operating actively and lawfully in Australia with its financial position for at least two financial years prior to the lodgement of the nomination application and/or financial years after the nomination was lodged. Such information included and was not limited to tax returns, financial statements, Business activity statements

    ·Information of the applicant’s current organisational structure including where the nominee is placed the applicant’s current and proposed employees including citizenship residency status, job position and at time of employment, details of employees whose positions were made redundant or the employee or employees who were terminated.

    ·Information of the roles and duties of the nominated position and how they correspond to the nominated occupation’s position in ANZSCO[2]. Supplying examples of job descriptions, work samples, emails, correspondence and other examples of the daily tasks to be performed in the nominated position, and the nominated occupations position description in ANZSCO.

    ·Information about the terms and conditions of employment in the nominated position and whether those conditions were more or less favourable than those provided for an Australian citizen or permanent resident performing equivalent work in the same workplace and occupation. For example, an employment contract or letter of engagement that complies with the relevant awards for the nominated position (if any).

    ·Information about the nominee being employed full-time in Australia in the position for which the nominee holds a 457 visa for at least two years of the three years preceding the nomination application; the employment of the nominee in that position been full-time and in Australia; and

    ·The nominee holding a 457 visa based on the nominee being identified in the nomination of a specified occupation for that visa, the applicant nominated that occupation and the nominee has been employed in that occupation for at least two years in the three years immediately before the nomination application. Example is the previous or proposed employment contracts for the nominee including details about the employer and the nominee’s roles, duties and terms and conditions of employment.

    [2] Australian New Zealand Standard Classification of Occupations.

12. On The applicant accepted the Tribunal’s invitation by providing the following documents prior to the hearing on 27 April 2020:

    ·Activity statements for July/September 2018, profit and loss financials for 2017, 2018 and 2019;

    ·Tax returns for 2017, 2018 and 2019;

    ·Business activity statement for July/September 2018;

    ·Evidence of business operations including tax invoices relating to contractors carrying out earthworks;

    ·Current & historical company extract of the applicant;

    ·Employment contract of the nominee relevant to his employment post 457 visa application approval;

    ·job description;

    ·organisation chart;

    ·letter dated 26 February 2020 submitting the above-described documents to the Tribunal with ANZSCO summary;

    ·annual market salary rate for a crop farmer in regional New South Wales;

13. The applicant provided further documents after the hearing:

    a.   Letter dated 2 March 2016, from the Department of the approval of sponsorship from 2 March 2016 to 2 March 2021;

    b.   Letter from the Department date 23 September 2013 approving the 457 visa application on 23 September 2013;

    c.   Sponsorship approval email for the applicant dated 14 November 2012 – sponsorship approval commenced 13 November 2012;

    d.   Qualifications and experience personal profile of nominee Mr Harmesh Singh

    e.   Letter from the Department re sponsorship dated 23 September 2013;

    f.    Undated and unauthored position description of Crop Farmer.

    Invitation under s. 359(2) to provide further information

14. On 4 August 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide (in writing) information about the matters set forth in that letter about the issues under consideration by the Tribunal:

    ·Information regarding the approval of Mr Harmesh Singh (the Nominee) as a 457 visa holder.

    ·Information regarding the approval of the Grewal Discretionary Trust (the applicant) as a sponsor for the nominee’s 457 visa.

    ·The terms of the approval of the applicant’s sponsorship where the nominee is identified as a crop farmer.

    ·The nominee’s qualifications, experience and skill as a crop farmer.

    ·The reasons and the evidence relied on by the applicant supporting the need for the applicant to employ the nominee as a crop farmer.

    ·The nominee’s duties and tasks as a crop farmer, including the applicant’s position description.

    ·The income paid by the applicant to the nominee from the commencement of his employment until the date he ceased employment with the applicant.

    ·Confirmation the nominee has been employed by the applicant as a full-time employee, including the annual leave taken by the nominee in his employment.

    ·Upon the nomination being approved, the terms and conditions of the employment of the nominee with the applicant.

    ·The terms and conditions of employment of other employees of the applicant who are Australian citizens or Australian permanent residence who are performing equivalent work as the nominee.

    ·The applicant’s payment or contributions to the training benchmark requirements during its most recent approval as a standard business sponsor.

    ·The applicant’s compliance with its obligations under Division 2.19 (attached).

15. On 18 August 2020, the applicant responded the information and documents:

    ·Letter of 2 March 2016, regarding the sponsorship approval 2 March 2016;

    ·Visa grant letter dated 23 September 2013;

    ·Email dated 14 August 2020, concerning the sponsorship approval dated 14 November 2012;

    ·Nominees resume undated;

    ·Departmental letter dated 23 September 2013;

    ·Undated position description of a crop farmer.

    Nominee performing the role of Crop Farmer

16. The applicant employed the nominee in the position of crop farmer.  It is a position that requires at least a bachelor degree. The nominee does not have a bachelor degree with his experience before he commenced with the applicant limited to farm work in India. The nominee confirmed that his education only extends to high secondary (grade 11). Asked about his tasks while working for the applicant, says that he can drive a tractor, put nets on, prepare land for planting, irrigation management, plant the plants and check the crops for disease.

17. Considering the work and tasks he required by ANZSCO, as set out below, the nominee has neither the qualifications nor experience to undertake the occupation of crop farmer:

    ·Planning and coordinating the production and marketing of crops, such as grain, cotton, sugarcane, fruit and nuts, vegetables, turf and flowers, from soil preparation to harvest taking into account environmental and market factors.

    ·Selecting and planting seeds, seedlings and bulbs, and grafting new varieties to root stocks

    ·Maintaining crop production by cultivating, de-budding and preening, and maintaining optimal growing conditions.

    ·Organising and conducting farming operations, such as collecting, storing, grating and packaging produce, and organising the sale, purchase and dispatch of produce.

    ·Directing and overseeing general farming activities such as fertilising and pest and weed control.

    ·Maintaining farm buildings, fences, equipment and water supply systems.

    ·Maintaining and evaluating records of farming activities, monitoring market activity, and planning crop preparation and production to meet contract requirements and market demand.

    ·Managing business capital including budgeting, taxation, debt and loan management.

    ·May select, train and supervise staff and contractors.

18. In view of the lack of detail provided by Mr Grewal at the first hearing, the Tribunal convened a second hearing. At the second hearing, the Tribunal asked Mr Grewal to comment on the tasks undertaken by the nominee. Mr Grewal was vague as to the tasks undertaken by him but did say that he undertakes irrigation and maintenance work, maintains equipment and does tractor driving. Asked as to who had been doing all the tasks of the crop farmer before the employment of the nominee, Mr Grewal said he was the person who did those tasks. He is approaching or is 60 years of age and is struggling in do all these tasks, combined with his industry becoming more specialised, he needs for these people to keep coming through, to assist in with the farm.

19. Examining the tasks of a crop farmer as set out in ANZSCO and detailed in this decision, the Tribunal is not satisfied the nominee has undertaken tasks detailed as follows

20. The Tribunal is not satisfied that the applicant has put forward evidence which credibly shows the applicant’s nominee had undertaken the following tasks, as described in ANZSCO : -

    ·Planning and coordinating the production and marketing of crops, such as … fruit… from soil preparation to harvest taking into account environmental and market factors;

    ·Selecting and planting seeds, seedlings and bulbs, and grafting new varieties to root stocks;

    ·Maintaining crop production by cultivating, de-budding and pruning and maintaining optimal growing conditions;

    ·Organising and conducting farming operations, such as collecting, storing, grating and packaging produce, and organising the sale, purchase and dispatch of produce;

    ·Directing and overseeing general farming activities such as fertilising and pest and weed control;

    ·Maintaining and evaluating records of farming activities, monitoring market activity, and planning crop preparation and production to meet contract requirements and market demand;

    ·Managing business capital including budgeting, taxation, debt and loan management;

    ·May select, train and supervise staff and contractors.

21. The applicant sets out in its submission[3] which is undated under the heading ‘OUR JOB DESCRIPTION’ sets at the following: -

    [3] Tribunal file Folio 167

    “Grewal Discretionary Trust is involved in farming activity.  Our business is involved in growing blueberries and cucumber.  Hence, we need farmers on regular basis.  We need crop farmer to perform the following duties:

    ·Manage overall operations of the farming land

    ·Manage complete “life circle” of cultivating the crops including selecting seeds and planting activities.

    ·Must be expert in farming techniques including soil preparation, planting, cultivating, grafting, harvesting, fertilising, storing and packing

    ·Must have sound knowledge and soil, environment, temperature and climate conditions

    ·Must operate farming equipment like tractors, movers, farm truck, sprayer, sprinklers, wheelbarrow, sickles, shovel etc.,

    ·Must operate effectively and efficiently irrigation system.  Maintain fences and farm machinery

    ·Must involve in production and marketing of produce.

    ·Must maintain most favourable growing conditions in all weathers/climates

    ·All maintain accurate records

    ·Ensure soil is fertilised and plants are free of pests and fungus

    ·Must collect the produce and store as per required standards.

    ·Assist in packing and dispatch for wholesalers and retailers.

    ·Oversee all other farming operations such as picking, grating and packaging of products

    ·Oversee all other farming operations such as picking, grating and packaging of products

    ·Ensure feels are maintain properly in non-growing seasons

    ·Capable of operating farming machinery

    ·Knowledge of crop rotation & knowledge of growing and soil conditions for the area

    ·Physically able to withstand extremely hot, windy and stormy conditions

    ·Hire, train and supervise farming staff.

    ·Train junior farmers, handymen, pickers and packers”

22. The Tribunal accepts that the nominee drives a tractor, can repair and replace netting the growing plants, and is involved in irrigation.  The applicant’s operation is growing blueberry plants and watering under nets.  However, the applicant has not provided evidence in the nominee involved in the substantial majority of the applicant’s tasks.

23. The Tribunal is not satisfied the applicant has provided evidence that its nominee is performing a significant number of tasks of a crop farmer.

24. The applicant has not sought to satisfy the criteria under r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

25. The Tribunal affirms the decision under review to refuse the nomination.

    Ian Berry
    Member