Harmandeep Singh (Migration)

[2023] AATA 738

Harmandeep Singh (Migration) [2023] AATA 738 (22 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Harmandeep Singh
Mrs Gurpreet Kaur

REPRESENTATIVE:  Mr Virk Sultan Singh (MARN: 1467572)

CASE NUMBER:  2005206

HOME AFFAIRS REFERENCE(S):          BCC2019/4395140

MEMBER:Mary Sheargold

DATE:22 March 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled Regional Sponsored (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 489 visa:

·cl 489.224 of Schedule 2 to the Regulations.

Statement made on 22 March 2023 at 2:30pm

CATCHWORDS
MIGRATION – Skilled Regional (Provisional) visa– Subclass 489 (Temporary Graduate)) visa – Mixed Crop Farmer – applicant has achieved the score stated in the invitation to apply for the visa – applicant has achieved the score stated in the invitation to apply for the visa – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.26, Schedule 2, cl 489.224

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 27 February 2020 to refuse to grant the applicants Regional Sponsored (Provisional) (Class SP) Subclass 489 (Skilled - Regional (Provisional) visas under s 65 of the Migration Act 1958 (Cth) (the Act). This is a points based visa with two streams of which the ‘First Provisional Visa Stream’ is available to skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The first named applicant (the applicant) was invited to apply for the visa on 12 August 2019 and applied for the visa on 3 September 2019. The criteria for the grant of a Subclass 489 - Skilled - Regional (Provisional) visa are set out in Part 489 - Skilled - Regional (Provisional) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl 489.224.

3. The first named applicant appeared before the Tribunal on 21 March 2023 by MS Teams video link to give evidence and present arguments. The Tribunal also received oral evidence from Mr Karaj Singh by telephone from India.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant satisfies the points test criterion which requires that the applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act:

   ·is not less than the score stated in the invitation to apply for the visa and

   ·is not less than the ‘qualifying score’.

7. Subdivision B of Division 3 of Part 2 of the Act provides for a points system under which an applicant is given an assessed score based on a prescribed number of points for particular attributes. The qualifications and points applicable to this case are prescribed in Schedule 6D to the Regulations (reg 2.26AC). An applicant achieves the qualifying score if their assessed score is more than or equal to the applicable pass mark (s 94 of the Act), which is set by the Minister from time to time under s 96(2). The Tribunal must consider the applicant against the qualifications and points prescribed in Schedule 6D, and the pass mark as in force at the time of the delegate’s assessment and as in force at the time of this assessment, and apply whichever is more favourable to the applicant (ss 93 and 350 of the Act).

8. Some elements of the points test relate to the nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the relevant instrument as a skilled occupation; and, if a number of points are specified in the instrument as being available - for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (reg 1.15I). The relevant instrument for this purpose is Legislative Instrument LIN 19/051. In the present case, the applicant nominated the occupation of Mixed Crop Farmer, ANZSCO 121216.

   Does the applicant have the qualifying score applying the law in force at the time of the delegate’s assessment?

   Part 6D.1 – Age qualifications

9. Points are available under this Part if the applicant was aged between 18 and 44 years at the time of invitation to apply for the visa.

10. At the time of invitation, the applicant was aged 27 years.  Therefore, the applicant is entitled to 30 points under this part.

    Part 6D.2 – English language qualifications

11. Points are available under this Part on the basis of the applicant’s level of English language proficiency at the time of invitation to apply for the visa.

12. Reg 1.15D states that a person has proficient English if they undertook a language test specified by the Minister in an instrument in writing in the 3 years immediately before the application and achieved the score specified in the instrument.

13. At the time of the delegate’s assessment, the relevant instrument included the Cambridge English: Advanced (CAE) test with a minimum score of 185 in each of the 4 test components of reading, speaking, writing and listening.

14. The applicant undertook that test on 7 December 2018 and achieved scores of 205 for reading, 196 for writing, 206 for listening and 197 for speaking.  This meets the requirements in r.1.15D, and so the applicant is entitled to 10 points under this part.

    Part 6D.3 – Overseas employment experience qualifications

15. Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed outside Australia in the applicant’s nominated skilled occupation or a closely related skilled occupation for a period totalling at least 36, 60, or 96 months in the 10 years immediately before that time.

16. The delegate was not satisfied with the evidence provided by the applicant in respect of his claims to have significant overseas employment experience in the nominated occupation of Mixed Crop Farmer, and awarded the applicant no points under this part.

17. At review, the Tribunal has had the benefit of detailed written submissions from the applicant’s representative, the applicant’s oral evidence, the oral evidence from Mr Karaj Singh, a sworn affidavit made before the Punjab Government by Mr Karaj Singh, a letter from chartered accountant Mr Gurveen Narang dated 1 March 2023, copies of the applicant’s Indian taxation documents, and an advocate’s letter, Mr Gobind Pal, dated 6 June 2018 attesting to having assisted the applicant with legal matters pertaining to his farming in India and attesting to his knowledge of the applicant as a farmer in his village from 2008 to 2017.

18. The applicant’s oral evidence at hearing is that he comes from a farming family, from a village predominantly populated by farmers.  Mr Karaj Singh told the Tribunal that the village where they live homes approximately 1,500 people, all of whom work on the land.  Mr Karaj Singh held the position of village chief for a 5 year period from 2008 to 2013, and gave evidence that he would visit the applicant’s farm ‘every second day or every fourth day’ to ensure the smooth running of his business. 

19. The applicant told the Tribunal that he farmed wheat, the main grain used in the Punjab, as well as rice in the off season, and Mr Karaj Singh confirmed that this was the main farming undertaken in their village.  Mr Karaj Singh declared that the applicant was one of the best farmers in their local area.

20. The information provided by the applicant’s Indian accountant sets out clearly that the applicant has only derived income from his agricultural endeavours in recent years in India.  The Tribunal has considered the representative’s submissions and supporting evidence showing that the applicant is not liable to pay taxes on income derived from agriculture in India.  Each of the applicant’s tax returns provided show the total amount of tax that would be due on his income, and a corresponding tax rebate based on the fact that the income has been derived from agriculture.

21. Having the benefit of full consideration of a wider range of information than was afforded to the delegate at the time the delegate assessed the application, the Tribunal is satisfied that the applicant has demonstrated that he has at least 96 months of experience as a self-employed Mixed Crop Farmer in India. 

22. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 15 points under this part.

    Part 6D.4 – Australian employment qualifications

23. Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed in Australia in the nominated occupation or a closely related skilled occupation for a period totalling at least 12, 36, 60 or 96 months in the 10 years immediately before that time.

24. The applicant provided evidence that he worked full time as a Mixed Crop Farmer for M Scarfone Pty Ltd from 1 October 2017 to 12 August 2019.  The delegate afforded weight to the skills assessment provided by the applicant, noting the authority deemed his Australian work experience did not measure up to the tasks expected of a Mixed Crop Farmer as defined in ANZSCO 121216.  The Tribunal has considered the updated employment reference provided by Francesco Scarfone dated 1 March 2023, along with the applicant’s evidence at the hearing, as well as the ANZSCO descriptor for the nominated occupation.

25. ANZSCO sets out the following expected tasks of a Mixed Crop Farmer at 121216:

    ·planning and coordinating the production and marketing of crops, such as grain, cotton, sugar cane, 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 pruning, and maintaining optimal growing conditions;

    ·organising and conducting farming operations, such as collecting, storing, grading and packaging produce, and organising the sale, purchase and despatch 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; and

    ·plans, organises, controls, coordinates and performs farming operations to grow a variety of crops.

26. The applicant told the Tribunal that the farm where he works in Griffith, NSW, grows grapes, citrus and other crops.  He explained to the Tribunal that the permanent staff of the farm is very small (3 people) and that he is the manager of day to day operations, including responsibility for hiring seasonal workers.

27. However, it is not clear that the applicant had this level of management and control of his employer’s business operations at the time he was invited to apply for the visa.  Without sufficient evidence to demonstrate he worked at the level expected of a Mixed Crop Farmer in Australia at the time he applied for this visa, the Tribunal is not prepared to award any points under this part.

28. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this part.

    Part 6D.5 - Aggregating points for employment experience qualifications

29. Under this part, if an applicant has qualifications mentioned in both Parts 6D.3 and 6D.4 and the combined number of points that would be awarded under those Parts is more than 20 points, 20 points must be given under this Part for the qualifications and no points are to be given under Part 6D.3 or 6D.4.

30. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 15 points. As this is not more than 20 points, the applicant is entitled to no points under this part.

    Part 6D.6 – Australian professional year qualifications

31. Five points are available under this part if, at the time of invitation to apply for the visa, the applicant had completed a professional year (that is, a course specified in an instrument) in Australia in the nominated occupation or a closely related skilled occupation for a period totalling at least 12 months in the immediately preceding 48 months.

32. The applicant has made no claims regarding an Australian professional year.  He is therefore entitled to no points under this part.

    Part 6D.7 – Educational qualifications

33. An applicant may be entitled to points under this Part if, at the time of invitation to apply for the visa, he or she had met the requirements for the award of a specified Australian qualification or overseas qualification of a recognised standard. In determining whether an overseas qualification is of a ‘recognised standard’ (items 6D71(b), 6D72(b)), regard must be had to the matters set out in reg 2.26AC(5) which include recognition of the qualification by the relevant assessing authority, recognition of the qualification by a specified body, duration of the study and any other relevant matter.

34. Based on the evidence in the Department’s file, the Tribunal is satisfied that the applicant met the requirements for the award of at least a bachelor qualification by a non-Australian educational institution that is of a recognised standard.

35. Therefore, the applicant is entitled to 15 points under this part.

    Part 6D.7A – Specialist educational qualifications

36. Points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the requirements for the award of a specialist educational qualification, as defined in reg 2.26AC(5A). The applicant must satisfy the Minister that they have met the requirements for the award of a masters degree by research, or a doctoral degree, which included at least 2 academic years of study at an Australian educational institution in a field of education specified in the relevant instrument.

37. The applicant made no claims regarding a specialist educational qualification.

38. Therefore, the applicant is entitled to no points under this part.

    Part 6D.8 – Australian study qualifications

39. Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement, as defined in reg 1.15F of the Regulations. To meet the Australian study requirement, the applicant must satisfy the Minister that they have completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a registered course or courses, for which all instruction was in English. The applicant must have undertaken the courses in Australia while holding a visa authorising study, and completed them in a total of at least 16 calendar months as a result of a total of at least 2 academic years study.

40. The applicant has not made any claims under this part or provided any evidence to demonstrate that he has undertaken study in Australia.

41. As the Australian study requirement had not been met at the time of invitation, the applicant is entitled to no points under this part.

    Part 6D.9 – Credentialled community language qualifications

42. Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant had a qualification in a particular language awarded or accredited by a specified body, and at a specified standard for the language.

43. The applicant made no claims nor provided any evidence that he held a relevant credentialled community language qualification.

44. Therefore, the applicant is entitled to no points under this part.

    Part 6D.10 – Study in designated regional area qualification

45. Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement (as defined in reg 1.15F), the location of the campus(es) at which the study was undertaken and the location in which the applicant lived while undertaking the course of study were in a designated regional area. Distance education does not qualify as study for these purposes.

46. The applicant has not made any claims under this part or provided any evidence to demonstrate that he has undertaken study in Australia.

47. Therefore, the applicant is entitled to no points under this part.

    Part 6D.11 – Partner qualifications

48. Ten points may be awarded under this Part if the applicant does not have a spouse or de facto partner, or the applicant has a spouse or de facto partner who is an Australian citizen or permanent resident. Five points may be awarded under this Part if the applicant has a spouse or de facto partner who is an applicant for the same subclass and is not an Australian citizen or permanent resident and at the time the applicant was invited to apply for the visa, the spouse or de facto partner had competent English. Ten points may be awarded under this Part if the applicant has a spouse or de facto partner who is also an applicant for the same visa subclass and is not an Australian citizen or permanent resident and at the time the applicant was invited to apply for the visa, the spouse or de facto partner was under a specified age, nominated a specified skilled occupation, had been assessed as having suitable skills, and had competent English.

49. The only claim made by the applicant under this consideration is that his wife, the second named applicant, had competent English at the time of invitation to apply for the visa.  IELTS test results were provided demonstrating that she met the requirement for competent English, and so the applicant is awarded 5 points under Part 6D.113(c).

50. Therefore, the applicant is entitled to no points under this part.

    Part 6D.12 – State or Territory nomination qualifications

51. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) visa. The applicant in this case has not been invited to apply for such a visa and is therefore not entitled to any points under this part.

    Part 6D.13 – Designated regional area nomination or sponsorship qualifications

52. Points are available under this Part for applicants who were invited to apply for a Subclass 489 (Skilled - Regional) (Provisional) visa, where the relevant agency has not withdrawn the nomination or if the applicant was sponsored by a family member, the Minister has accepted the sponsorship. The applicant in this case was invited to apply for a Subclass 489 visa.

53. Therefore, the applicant is entitled to 15 points under this part.

    Conclusion on points

54. Based on the above assessment, having regard to the legislation in effect at the time of the delegate’s assessment, the number of points to be awarded to the applicant under Schedule 6D is:

    6D.1 - Age  30 points

    6D.2 - English language  10 points

    6D.3 - Overseas employment experience  15 points

    6D.4 - Australian employment experience  0 points

    6D.5 - Aggregated employment  0 points

    6D.6 - Australian professional year  0 points

    6D.7 - Educational  15 points

    6D.7A – Specialist educational  0 points

    6D.8 - Australian study  0 points

    6D.9 - Credentialled community language  0 points

    6D.10 - Study in designated regional area qualification        0 points

    6D.11 - Partner qualifications  5 points

    6D.12 - State or Territory nomination  0 points

    6D.13 - Designated regional area nomination/sponsorship qualifications    15 points

    Total points  90 points

1. The applicant’s assessed score under the points system is therefore 90 points.

2. At the time of the delegate’s assessment the pass mark was 65 points: Legislative Instrument LIN 19/210.  The applicant has therefore achieved the qualifying score to pass the points test.

   Has the applicant achieved the score stated in the invitation to apply for the visa?

3. It is also a requirement that the applicant’s score is not less than the score stated in the invitation to apply for the visa. The written invitation given to the applicant stated a score of 80 points. On the basis of the points assessment above, the Tribunal finds that the applicant has achieved the score stated in the invitation to apply for the visa.

4. For the above reasons, the applicant has achieved the score stated in the invitation to apply for the visa. As the applicant’s score is not less than the score stated in the invitation to apply for the visa, and not less than the qualifying score, the applicant satisfies cl 489.224, which is a prescribed criterion for the grant of the visa. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria, including in relation to the secondary applicant.

   DECISION

5. The Tribunal remits the applications for Skilled Regional Sponsored (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 489 visa:

   ·cl 489.224 of Schedule 2 to the Regulations.

   Mary Sheargold
   Member