J.K Tiwana & M.S Tiwana (Migration)

[2020] AATA 469

J.K Tiwana & M.S Tiwana (Migration) [2020] AATA 469 (3 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  J.K. Tiwana & M.S. Tiwana

VISA APPLICANT:  Mr Amritpal Singh Dhariwal

CASE NUMBER:  1717849

DIBP REFERENCE(S):  BCC2016/2011338

MEMBER:K. Chapman

DATE:3 January 2020  

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 03 January 2020 at 10:33am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Crop Farmer – skills, qualifications and employment background – site visit – language barrier – staffing difficulties – applicant manages family farm – possesses experience and knowledge to perform role – credible witness – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB, 359
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (‘the Act’). The visa applicant, Mr Amritpal Singh Dhariwal, applied for the visa on 10 June 2016. He was nominated for the visa by the partnership of J.K. Tiwana & M.S. Tiwana (‘the review applicant’) in the position of Crop Farmers not elsewhere classified (ANZSCO 121299).

2. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

3. The delegate refused to grant the visa on 24 July 2017 on the basis that cl.457.223(4)(da) was not met because of a lack of satisfaction that the visa applicant has the skills, qualifications and employment background necessary to perform the tasks of a Crop Farmer not elsewhere classified (ANZSCO 121299). On 14 August 2017, the review applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with their application for review.

4. On 7 August 2019, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide information concerning whether the visa applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In response the Tribunal received material including, but not limited to, a statement from the Village Sarpanch, ‘Vouchers of Seller’ regarding sales at market and a statement from Mr Gyan Singh (including a copy of his Certificate of Registration). All submitted material has been duly considered by the Tribunal.

5. The review applicant, through Mr Manjit Singh Tiwana, appeared before the Tribunal on 25 October 2019 to give evidence and present arguments. The Tribunal also took oral evidence by telephone from the visa applicant, Mr Amritpal Singh Dhariwal, who is located in India. The review applicant was represented by his registered migration agent at the review hearing. On the day of the review hearing, the review applicant submitted a copy of taxation returns, financial statements, trade magazine excerpts, a booklet concerning the ‘Basic Principles of Protected Cropping’ and a typed statement from Mr Manjit Singh Tiwana. All submitted material has been duly considered by the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicant meets the requirements of cl.457.223(4)(da).

   Skills, qualification and employment background of the applicant

8. Clause 457.223(4)(da) requires the visa applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl.457.223(4)(e), if required by the Minister, the visa applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister. In this case the nominated occupation is Crop Farmers not elsewhere classified (ANZSCO 121299). There is no evidence before the Tribunal to indicate that the Minister required the visa applicant to demonstrate his skills in accordance with cl.457.223(4)(e).

9. Mr Manjit Singh Tiwana gave evidence to the Tribunal indicating that the farming operations of the review applicant concern the growing of crops such as cucumbers and blueberries in northern New South Wales. Over time, these farming operations have grown such that over 30 acres are farmed and commercial greenhouses are utilised. Mr Tiwana outlined that the review applicant’s turnover is in excess of $1 million per annum, a figure corroborated by the submitted taxation records and financial statements.

10. Mr Tiwana advised that the review applicant often has difficulty in attracting qualified staff given the competition in the surrounding area. The review applicant requires a Crop Farmer to run the greenhouse operations with respect to the expansive cucumber crop. Mr Tiwana indicated that the farm is well regarded in the region and hosted an industry trade group as referred to in the submitted trade magazine excerpts.

11. Mr Tiwana explained that in 2016 his wife met the visa applicant through relations in India. She visited him at the family farm in India and advised Mr Tiwana that he would be a good fit for their farm in northern New South Wales, given his skills and background. Mr Tiwana also outlined that he cannot run the farm alone and requires an experienced Crop Farmer to take over the greenhouse operations so that the cucumber crop can be further expanded.  

12. Mr Tiwana advised the Tribunal that the visa applicant studied agricultural subjects in secondary school in India. Following his completion of secondary school in 2009, the visa applicant joined the family farm under the guidance of his father. Gradually the visa applicant took over the running of that farm from his father and has been in charge of all commercial activities for some years. Mr Tiwana displayed an extensive knowledge of the farming operations in India and highlighted that the visa applicant has the requisite skills, including with respect to machinery, to perform the tasks of the nominated occupation.

13. Utilising the procedure in s.359AA of the Act, the Tribunal raised with Mr Tiwana, on behalf of the review applicant, that the Department conducted a Site Visit in 2017 which suggested neighbouring farmers advised that the visa applicant played a limited role on the farm in India, in addition to the visa applicant and his father providing inconsistent responses to questions posed by the Departmental Officers. Mr Tiwana responded to this information by outlining that the visa applicant had studied an English language course and the neighbouring villagers must have been confused at the time regarding his involvement in the farm and study. Mr Tiwana also advised that the Departmental Officers interviewed the visa applicant and his father in the Hindi language, which is not their native language, and misunderstanding accounted for any discrepancies in their responses. Mr Tiwana also referred to supporting statements submitted by relevant individuals in the village attesting to the visa applicant’s role as a farmer. The Tribunal has carefully considered the response of Mr Tiwana to the s.359AA information.

14. The Tribunal also took oral evidence by telephone from the visa applicant who is located in India. He outlined his farming background and experience in a manner consistent with Mr Tiwana. The visa applicant also explained in detail his management of the family farm in India (which includes land owned by his father and that leased from other relatives) and advised that during the Departmental Site Visit he and his father were interviewed in the Hindi language which caused confusion for them.

15. The visa applicant also explained that whilst he manages the farm, he consults his father as to the crop selection and he outlined that the land owned by his father is relatively small. Pursuant to the procedure in s.359AA of the Act, the Tribunal raised with Mr Tiwana, on behalf of the review applicant, that the visa applicant’s oral evidence regarding the aforementioned matters tended to suggest the scale and complexity of his farming operations in India were not commensurate with the tasks of the nominated occupation of Crop Farmers not elsewhere classified (ANZSCO 121299). Mr Tiwana responded by outlining that the visa applicant consults with his father as to crop selection out of respect for his elder and accordingly this does not detract from his role in running the farm. He also advised that the land farmed by the visa applicant is of a reasonable size by Indian standards when the additional leased land is considered. Further, Mr Tiwana informed the Tribunal of his opinion that the visa applicant possesses the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, through having managed the family farm for some years since completing secondary school. The Tribunal has carefully considered the response of Mr Tiwana to the s.359AA information.

    Analysis

16. The Tribunal has carefully considered the available evidence pertaining to this review. Of note, a full copy of the Site Visit report was not provided by the Department to the Tribunal. Accordingly, the Tribunal has afforded low weight to the assertions of the delegate with respect to the Site Visit. Further, the Tribunal is satisfied that Mr Tiwana provided truthful evidence regarding the skills and background of the visa applicant. Additionally, the Tribunal has paid due regard to the evidence of the visa applicant and the supporting documentary evidence from India. Whilst finely balanced, the Tribunal finds that the evidence before it points to the visa applicant possessing the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Crop Farmers not elsewhere classified. For the sake of completeness, the Tribunal notes that it makes this finding upon the particular facts of the present matter, in particular its assessment of Mr Tiwana as a credible witness.

17. Following careful consideration, the Tribunal is satisfied that the visa applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Crop Farmers not elsewhere classified (ANZSCO 121299).

18. For the reasons outlined above, the visa applicant satisfies the requirements of cl.457.223(4)(da).

19. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

20. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223(4)(da) of Schedule 2 to the Regulations.

    K. Chapman
    Member

    
    

    ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

    457.223

    …

    Standard business sponsorship

    …

    (4)The applicant meets the requirements of this subclause if:

    (a)each of the following applies:

    (i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

    (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

    (ba)either:

    (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

    (ii)     each of the following applies:

    (A)the applicant is employed to work in the nominated occupation;

    (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

    (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

    (d)the Minister is satisfied that:

    (i)    the applicant’s intention to perform the occupation is genuine; and

    (ii)     the position associated with the nominated occupation is genuine; and

    (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

    (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant;

    the applicant:

    (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

    (v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

    (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

    (f)either:

    (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

    (ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

    …

    (6)This subclause applies to an applicant if:

    (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

    (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

    …

    (11)In subclause (4):

    exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.