H.S Husna & J.K Husna & R.S Husna & S.K Husna (Migration)

[2017] AATA 2481

H.S Husna & J.K Husna & R.S Husna & S.K Husna (Migration) [2017] AATA 2481 (9 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  H.S Husna & J.K Husna & R.S Husna & S.K Husna

CASE NUMBER:  1611489

DIBP REFERENCE(S):  BCC2015/3285569

MEMBER:Kate Millar

DATE:9 November 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 09 November 2017 at 5:03pm

CATCHWORDS

Migration – Approval of nominated positions (employer nomination) – Direct Entry Nomination stream – Primary Product Inspector – Whether nominee employed on full-time basis for at least 2 years – Whether tasks performed correspond to tasks specified for occupation

LEGISLATION

Migration Regulations 1994, r 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The partnership H.S Husna & J.K Husna & R.S Husna & S.K Husna (‘partnership’) is a partnership of Mr Harbhajan Husna, his wife Ms Jaswant Husna, their son Mr Rajan Husna and their son’s wife Ms Sarabjeet Husna.  The partnership operates a business growing bananas on four properties in Sandy Beach and Woolgoolga in the north east of New South Wales.  The partnership applied for an approval of a nomination for Mr Manpreet Singh to work as a Primary Product Inspector on 9 November 2015.

2. A delegate of the Minister for Immigration refuse to approve the nomination on 7 July 2016, as the delegate was not satisfied the requirements for the approval of a nomination under r.5.19 of the Migration Regulations 1994 (the Regulations). All of the requirements specified in this regulation must be met for the nomination to be approved. In particular, the delegate was not satisfied the partnership met the requirement in r.5.19(4)(d) that Mr Singh would be employed on a full-time basis in the position for at least 2 years.

3. Mr Husna appeared before the Tribunal on 7 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from Mr Manpreet Singh.  The partnership was represented in relation to the review by its registered migration agent.

4. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The partnership applied for approval on 9 November 2015. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

6. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.

7. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   Term of employment of the visa holder: r.5.19(4)(d)

8. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

9. In this case, the delegate was not satisfied that the partnership could afford Mr Singh’s wages.  The partnership has had a net profit of $153,224 in 2014, $141,755 in 2015 and $59,230 in 2016.   In this time, there has been a change to how distributions to the partners are recorded, with wages for the partners appearing for the first time in the 2016 financial statements.  These wages amount to $170,000. In previous years, this was recorded as a distribution to the partners from the profit.

10. The partnership bought a fourth property in December 2015, and the mortgage on this property is approximately $1.9M.  Mr Husna says that they make repayments on the mortgage monthly and pay an additional $50,000 every 2 - 3 months. 

11. Mr Husna runs his affairs frugally.  The partners all live together with the children of Rajan and Sarabjeet.  Rajan receives $200 per week in spending money and Sarabjeet receives $100 per week.  They pool their financial resources to run the household. 

12. The partnership previously employed a person as a mixed crop farmer, however that person has since left this position and was not replaced.  It is intended that Mr Singh is the sole employee of the partnership other than the partners.  The wages for Mr Singh are $1038.46 per week gross.   I consider that the partnership has the financial resources to employ Mr Singh.

13. However, I am not satisfied he will be employed for two years on a full time basis.  Mr Singh worked for the partnership from 17 October 2016 to 16 February 2017.  He left and returned to Adelaide as his parents were visiting Australia and he wanted to spend time with them.  Mr Husna said that Mr Singh’s parents wanted to arrange a wife for him. 

14. Mr Husna said he contacted Mr Singh and asked him to return to work, but he did not want to return to work when contacted.  Mr Singh eventually recommenced work with the partnership on 5 October 2017.  The invitation to attend this hearing was issued on 11 September 2017.  I asked Mr Singh if the invitation to attend the hearing for the nomination affected his decision to return to work, however he denied this was the case.

15. Mr Singh was granted a subclass 457 visa to work for the partnership on 25 August 2017.  Prior to this date he was on a bridging visa that allowed him to work, and he said there were no restrictions to him working.  He said he did not work between February and October 2017, and supported himself with his savings from driving taxis and was also helped by his brother.  Mr Singh denied that Mr Husna had asked him to return to work.  He also denied that he had said he would not return to work when asked by Mr Husna.   

16. Mr Husna was asked to respond to Mr Singh’s evidence that he had never been asked to return to work, and that he had not refused to return when asked.  Mr Husna said he had asked Mr Singh to return to work, and he was not sure why Mr Singh said he had not been asked, and that when asked he wanted instead to stay with his parents and arrange his marriage. 

17. I asked Mr Husna why I would accept that Mr Singh would remain in his employment now, when he had not done so in the past, and had refused to return to work when asked.  Mr Husna said he thinks Mr Singh will work.  This was again raised with Mr Husna towards the end of the hearing and Mr Husna said he thought it would be fine, and Mr Singh would work.  I did not find this a ringing endorsement of Mr Singh remaining in the employment of the partnership. 

18. I found Mr Husna to be an open and credible witness, who readily answered questions asked of him and did not attempt to embellish or put any gloss on his evidence.  I prefer his evidence to that of Mr Singh.  It is also consistent with the need of the partnership for another person to perform the heavier tasks, as Mr Husna said he cannot do all of the heavy work and the only other person performing heavy manual labour across the four properties is Rajan.  As a result, I find Mr Singh did not give truthful answers to questions about his return to work. 

19. Despite having no restrictions on his ability to work in Australia, and being requested by Mr Husna to return to work Mr Singh did not return to work for over 6 months.  I am not satisfied I can  accept his word that he will remain in the position for two years, and as a result I am not satisfied he will be employed in the nominated position for at least two years full-time. 

20. Accordingly, the requirement in r.5.19(4)(d) is not met.

    Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

21. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision.  These include a requirements that the tasks of the position correspond to those of an occupation specified in the IMMI 17/058 (r.5.19(4)(h)(ii)(D)).

22. The position specified is a Primary Product Inspector, which is an occupation specified in IMMI 17/058.  The tasks of this occupation are set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and are:

    ·inspecting animals, plants and agricultural produce to identify product quality issues, and providing advice to producers

    ·auditing and monitoring quality procedures at farms and food handling and processing facilities to ensure compliance with required standards

    ·testing samples of produce for quality, size and purity

    ·ensuring that required standards of hygiene are observed at storage, processing and packing facilities and in transport vehicles

    ·advising primary producers on economic aspects of disease eradication and informing producers and the general public of the health implications of diseases and impurities

    ·advising on the identification of pests and diseases and on regulations pertaining to grading, packing and loading of products

    ·examining imported plants and animals, and products, such as timber, seeds and dried fruits, and making quarantine arrangements

    ·patrolling and investigating waterways for unlawful fishing activities and the removal of protected marine life

    ·educating, advising and providing information on a wide range of topics relating to fish and their protection

    ·may initiate or assist in legal action to enforce regulations

23. The partnership provided a job description for the position.  I am not satisfied this reflects the work being done by Mr Singh.  For example, the first item on the job description is “Inspect produce and related operations for compliance with laws and regulations governing health, quality and safety.”  I asked Mr Husna if there were regulations or standards that had to be met for the bananas.  He said that while there were some regulations about transporting fruit interstate many years ago, there are no current regulations that apply.

24. The next item is “Auditing and monitoring quality procedures at farms and food handling and processing facilities to ensure compliance with required standards.”  Mr Husna said there are no quality standards that they have to meet.  He said they do check boxes to see if any ripe fruit has been included, as they only send unripe fruit. 

25. The next items is “Testing sample of produce for quality, size and purity.”  Mr Husna said they all perform packing duties and the categories in which the bananas are sorted are large, extra-large and single pack.  All those doing packing check for bananas that are cracked or have marks on them to discard.  I do not consider this involves testing samples as opposed to sorting the bananas for packing.

26. As I could not rely on the job description or the submissions that match the job description to the tasks in ANZSCO for this position, I have relied on what Mr Husna and Mr Singh said are the tasks of the position.  Mr Husna said Mr Singh’s tasks were the same as for his son; cutting bunches of bananas, spraying fertiliser, bringing bananas back to the shed, shed work packing, and working in the paddocks.  He will also bag banana, fertilise and weed the trees, as well as checking for ripe bananas in the boxes.  Mr Husna said Mr Singh will have to be capable of identifying problems with the bananas.  Mr Husna explained that as the land is hilly they cannot use tractors, and have to do everything manually.   

27. On being asked why he needed a Primary Products Inspector rather than a farm hand, Mr Husna said it makes Mr Singh responsible to check things so that the responsibility does not fall on the partners.

28. Mr Singh said since he had recommenced with the partnership he had spent most of last week picking bananas, and most of the current week packing.  He said the pickers bring the fruit, which he cuts down and puts on a water wheel to clean them.  The bananas are dried and packed in a carton.  Mr Singh said he and Rajan grade the bananas, and he is currently learning skills in grading, pruning, bagging and de-suckering the plants.  He is learning about spraying for weeds. 

29. On examining the tasks in ANZSCO with Mr Husna, he said that Mr Singh would be expected to identify problems with plants, and would provide advice on quality issues to show them, for example,  how to clean the bananas.  I do not find it credible that Mr Singh would provide advice on quality issues as Mr Husna and his son have been in the business for a long period, and have a great deal more experience with the specific crop than Mr Singh.  They have changed the variety of banana they have grown following Rajan investigating other varieties. 

30. In terms of auditing and monitoring quality procedures at farms and food handling processing facilities to ensure compliance with required standards, Mr Husna said he is required to check boxes for ripe bananas.  There is no testing of samples required in the position.

31. Mr Husna did not identify tasks involved in ensuring adequate standards of hygiene are observed at storage, processing and packing facilities and in transport vehicles.  The partnership arranges transport for the bananas through the local agricultural store. 

32. Mr Husna said there tasks did not include advising on the economic aspects of disease eradication and informing producers and the general pubic of health implications of diseases and impurities, and also did not include advising on the identification of pests and diseases and on regulations regarding grading, packing and loading of products.  The remaining tasks do not apply to the position.

33. While I am satisfied that the partnership has a need for a position to assist with the farming as they have four sites over which they farm, I am not satisfied the tasks of the position correspond to the tasks of the occupation of Primary Products Inspector. 

34. Accordingly the requirements of r.5.19(4)(h) are not met.

35. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Kate Millar
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    …

    Direct Entry nomination

    (4)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is actively and lawfully operating a business in Australia; and

    (ii)      directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

    (ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

    (h)either:

    (i)       both of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).