Singh Hardip & Gurpreet Kaur (Migration)

[2022] AATA 2189

Singh Hardip & Gurpreet Kaur (Migration) [2022] AATA 2189 (8 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Singh Hardip & Gurpreet Kaur

REPRESENTATIVE:  Ms Dharampreet Kaur (MARN: 1576492)

CASE NUMBER:  2017658

HOME AFFAIRS REFERENCE(S):          BCC2016/3663972

MEMBER:Bridget Cullen

DATE:8 June 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 8 June 2022 at 11.52am

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Federal Circuit Court remittal –applicant did not identify a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 5.19

CASES

Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1

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 8 February 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 3 November 2016. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(a)(ii) of the Regulations because the applicant did not identify a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

5. The matter was originally decided on 12 August 2020 by the Tribunal, differently constituted. The Federal Circuit Court remitted the application by consent, finding that the Tribunal should have considered evidence that was provided to the Tribunal Registry in the related visa refusal matter only. Given that both the nomination and related visa refusal matters had been constituted to the same member, the Federal Circuit Court deemed the failure to consider information to be a breach of the principles of s 359AA and Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 at [30]-[31].

6. The applicant was originally scheduled to appear before the Tribunal on 27 May 2022. This hearing was adjourned for two important reasons. Firstly, as the hearing was about to commence, it became apparent that the Punjabi interpreter who had been engaged to assist with the hearing, could not speak Punjabi. Although the Tribunal did request an interpreter proficient in speaking both the Punjabi and English languages, once this became apparent, the Tribunal could not fairly proceed.

7. The second reason for the adjournment was that the representative advised the Tribunal that the witness, Mr Harwinder Singh, was only able to appear by telephone. The Tribunal had scheduled the hearing as an MS-Teams video hearing. Although Mr Harwinder Singh had provided a Statutory Declaration setting out his evidence, dated 15 September 2020, a Tribunal officer advised the representative that the Tribunal did not consent to Mr Harwinder Singh appearing by telephone, and preferred that he appear by video.

8. The Tribunal then advised that applicant that the hearing would proceed on 2 June 2022, at which time the Tribunal could ensure the interpreter spoke both Punjabi and English, and at which Mr Harwinder Singh could give his evidence by video.

9. The applicant, by way of Mr Hardip Singh, one of the directors of the company, appeared before the Tribunal on 2 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the related nominee visa applicant, Mr Harchand Singh. Both gentlemen appeared together, to give evidence from the premises that Mr Hardip Singh operates a blueberry farm, in Woolgoolga, New South Wales.

10. At the commencement of the rescheduled hearing on 2 June 2022, the representative advised the Tribunal that Mr Harwinder Singh would not be appearing to give evidence for reasons relating to his employment. The Tribunal advised the representative that, as a general proposition, it could not place as much weight on a witnesses’ evidence when they did not appear before the Tribunal to respond to questions. The representative said that she understood.

11. Fortunately, on this occasion, the Tribunal’s interpreting agency sent an interpreter proficient in both the English and Punjabi languages. Mr Harchand Singh requested full interpretation. The Tribunal appreciates that a hearing can be stressful for applicants generally, particularly those who speak English as a second language, as is the case for Mr Harchand Singh.

12. Mr Harchand Singh submitted evidence to the Tribunal that he had completed the PTE Academic English language test, proving his listening, reading, speaking and writing competency in English. The representative told that Tribunal that he understood 90% but wanted to be sure he understood everything.

13. The Tribunal was careful to ensure that Mr Harchand Singh did understand the evidence and the Tribunal’s questions, checking in with him at numerous points during the hearing. Both Mr Harchand Singh and Mr Hardip Singh told the Tribunal, at the conclusion of the hearing, that they had understood all of the proceedings and interpreting.

14. The applicant was represented in relation to the review, and the representative attending the hearing and made submissions on the applicant’s behalf.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all requirements must be met.

17. The Tribunal, in considering the application for review, has the following evidence before it:

    ·The Department File, BCC2016/3663972, which contains information that was before the Delegate when they made their decision to refuse the nomination application in 2018.

    ·Tribunal file 2111430, the related case for the nominee, Mr Harchand Singh.

    ·Tribunal files 1804299 and 1806678, the previous file numbers for the Tribunal for the nominator and nominee, which contained all information before the Member at the time of their decision in 2020; and the following information received since the remit by the then Federal Circuit Court (now called the Federal Circuit and Family Court):

    oSealed Order of Judge Street, 7 December 2020;

    oPre-Hearing Submissions of the Representative with supporting attachments, received by the Tribunal on 23 May 2022. These documents were provided over 4 emails..

    §A duplicate of these submissions was received on 23 May 2022.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

18. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 16/059, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

19. The applicant, a family partnership, has operated a blueberry farm at Woolgoolga, since 2009. There are three partners in the business, Mr Hardip Singh; Gurpreet Kaur; and Japjeet Maan. The Tribunal accepts that the applicant is, in fact, in the blueberry production business, and that the business has been profitable.

20. Although significant time was devoted at the first Tribunal hearing (differently constituted), prior to remittal by the Court, to the nominee’s residential location (the suggestion being that he was not living in close proximity to Woolgoolga, on the basis of fuel receipts before the Tribunal demonstrating the nominee had obtained fuel outside Woolgoolga), this Tribunal does not draw any adverse inferences in relation to the applicant’s residence.

21. This Tribunal takes the view that there is not enough evidence before it to facilitate the drawing of an adverse inference in relation to the applicant’s claimed residential location. Although the applicant’s witness, Mr Harwinder Singh, did not appear to give evidence, the Tribunal considers that the nominee has offered a plausible explanation for his obtaining fuel in areas some distance from Woolgoolga. In the absence of any definitive evidence suggesting to the contrary, the Tribunal considers that it would be unfair to conclude that the applicant was not residing where he says he was, and it therefore accepts that the nominee was working in Woolgoolga, at the applicant’s blueberry farm.

22. This Tribunal also accepts that the nominee is now living onsite, in accommodation provided to him by the applicant. The Tribunal asked Mr Hardip Singh if the applicant paid fringe benefits tax in relation to its provision of onsite accommodation. Mr Hardip Singh told the Tribunal that the applicant did not file a fringe benefits tax return. Again, nothing turns on this issue, and the Tribunal is not in a position to step into the shoes of the Australian Tax Office and determine whether the applicant should file a fringe benefits tax return. As such, the Tribunal draws no conclusion about whether the filing is, or is not, necessary.

23. The Tribunal was told by Mr Hardip Singh that it is only the nominee visa applicant, Mr Harchand Singh, who is provided with onsite accommodation. In circumstances where there is another “Fruit Inspector/Quality Control” employee, Mr Ramandeep Kaur, who performs the same role, the Tribunal observes that Mr Harchand Singh’s accommodation affords him with a significant financial benefit that is not afforded to Mr Ramandeep Kaur.

24. The most recent financial documents before the Tribunal reveal that the applicant had gross profit from trading of $4,333,511 in 2021; and (up until 31 March 2022) of $3,660,948.00 to date in 2022.

25. The applicant provided the Tribunal with an Organisational Chart, setting out the positions that exist in the business, as well as the occupants of the positions. Mr Hardip Singh confirmed at the hearing that the Organisational Chart remained current. Mr Hardip Singh is the “General & Operations Manager”; Gurpreet Kaur is the “Farm Manager”; and Japjeet Maan is the “Crop Manager”.

26. The Organisational Chart reflects that the Crop Manager reports to the Farm Manager, who reports to the General & Operations Manager. The Tribunal asked Mr Hardip Singh to explain the different roles and reporting arrangements. Mr Hardip Singh explained that he could not spend all of his time on the farm, as there are other business related tasks to be performed. He said that despite the reporting lines reflecting that the Crop Manager reports to the Farm Manager, and the Farm Manager to him, that the partners “sometimes all work together”. Although the Tribunal was not provided with great clarity about the differences between the roles by Mr Hardip Singh, it does broadly accept his evidence that he and his partners all work in the business, and that there are a combination of business and farming tasks that need to be completed.

27. There are only two full-time employees of the business – the nominee visa applicant, Mr Harchand Singh; and Ramandeep Kaur. Both Harchand Singh and Ramandeep Kaur are employed in identical roles – that of “Fruit Inspector/Quality Control” (ANZSCO 311399). The Tribunal asked Mr Hardip Singh to explain why it required two employees performing an identical role.

28. Mr Hardip Singh told the Tribunal that it was important for the business to maintain a high level of quality control, as this impacted the rate that they would receive for the fruit. If standards dropped, and the quality of the fruit dwindled, the business would receive a lesser rate for the picked blueberries and profits would drop.

29. Mr Hardip Singh also explained that the number of hectares planted had increased, since Harchand Singh began working for the applicant in 2016. Ramandeep Kaur began working for the applicant in 2017. Mr Hardip Singh told the Tribunal that in this time, the farm had been shifting from planting blueberries in soil, to planting in substrate. The substrate required more attention with watering and irrigation. The number of planted hectares had increased from 7 to 14.75ha in the last few years. The planting in substrate, which was an investment by the business in “new ideas” to set it up for the future, also requires an increased workforce.

30. The Organisational Chart reflects that the role of Fruit Inspector/Quality Control supervises the seasonal labour engaged by the applicant. The seasonal labour consists of “Fruit pickers, packers & loaders”. The applicant also engages “Maintenance Staff & Casual Labour” – this role reports to the Crop Manager.

31. The Tribunal accepts that the applicant is planting blueberries in substrate, and also that it engages seasonal labour. However, the Tribunal does not accept that the applicant requires two “Fruit Inspector/Quality Control” (ANZSCO 311399) employees. The applicant’s submissions address in detail the role that the nominee performs but are notably silent in relation to the role performed by the other Fruit Inspector/Quality Control employee, Ramandeep Kaur. The submissions present the tasks performed by Harchand Singh as if they are performed exclusively by him. Ramandeep Kaur did not give evidence to the Tribunal. Mr Hardip Singh also did not explain why one of the positions receives onsite accommodation at no cost; and the other (occupied by Ramandeep Kaur) does not. Although the Tribunal accepts that not all employees wish to live in onsite accommodation, there is no information explaining why this disparity in benefits exists.

32. The tasks associated with the role include inspecting produce and identifying quality issues; ph soil testing; fertilising and the application of herbicides; safety compliance; labelling of chemicals; assisting with auditors; setting up signage to reduce chemical, microbial, and physical infection amongst workers; food safety; planting and pruning advice; supervising management of water sources and infrastructure; irrigation; picking supervision; and packing.

33. The Tribunal acknowledges that the nominee, Mr Harchand Singh, has completed several relevant qualifications in horticulture, as well as business, including:

    ·Diploma of Management, New England College of Technology, February 2015;

    ·Certificate III in Horticulture, Brisbane College of Horticulture, January 2016;

    ·Diploma of Horticulture, Brisbane College of Horticulture, August 2016; and

    ·Advanced Diploma of Business, Brisbane College of Horticulture, February 2017.

34. While the Tribunal accepts that the nominee has relevant knowledge, and further accepts that he may perform many of the tasks claimed, there is still not a satisfactory explanation for the duplicate role of “Fruit Inspector/Quality Control”. Although Mr Hardip Singh has told the Tribunal that the growing of blueberries in substrate requires an increased workforce, the documentation, including submissions and financial documentation does not support this assertion.

35. The Tribunal pointed out to the applicant that, on one hand, it argued that the need for two Fruit Inspector/Quality Control employees was because of the increased planting of hectares; the additional supervision needed for substrate planting. Yet, the most recent financial document revealed that packaging costs had decreased significantly ($1,760,600 in 2021 to $1,157,975 as at 31 March 2022). Mr Hardip Singh acknowledged that production had been significantly less in 2022, producing 50,000 fewer trays of blueberries; and hence packaging costs had decreased.

36. Additionally, despite the assertion that more labour was needed, the 2021 expenditure for “farm work” casual labour was $1,116,390; and as at 31 March 2022, only $680,752.00. The Tribunal explained that it would expect to see an increase in the costs of labour if there was a need for 2 persons to act as Fruit Inspector/Quality Control employees.

37. The financial data before the Tribunal suggests that there are fewer casual staff for the Fruit Inspector/Quality Control nominee to supervise. The Tribunal considers that, if there was a genuine need for 2 Fruit Inspector/Quality Control employees, the applicant would have given consideration to the remuneration package associated with the accommodation benefit. It is unusual in the Tribunal’s view for such a significant benefit to be conferred on only one of two allegedly identical roles.

38. The Organisational Chart reflects that the second Fruit Inspector/Quality Control employee, Ramandeep Kaur, has been on a Bridging Visa for the duration of his employment with the applicant, which began in 2017. Mr Hardip Singh did not provide the Tribunal with any information about the basis on which Mr Ramandeep Kaur was employed with the applicant, in response to the Tribunal’s questions asking why the applicant would need two employees (the only two full-time employees in the business) that perform identical roles. Although the information before the Tribunal suggests that the visa nominee, Mr Harchand Singh, helped “train” Mr Ramandeep Kaur, the Tribunal has not been provided with any information indicating whether Mr Ramandeep Kaur is also being employed in the role as a skilled or sponsored worker.

39. While the Tribunal appreciates that migrant labour is an important facet of the rural farming industry in Australia, it does consider it unusual that the only two full-time employees of the applicant, both on bridging visas, are employed in identical Fruit Inspector/Quality Control roles.  Only one of these roles (that occupied by the visa nominee, Mr Harchand Singh) is provided with onsite accommodation. Mr Ramandeep Kaur receives the same salary as Mr Harchand Singh, absent any consideration for the benefit conferred in relation to housing.

40. This leads the Tribunal to conclude that the applicant has not demonstrated a genuine need to employ a paid employee to work in the position of Fruit Inspector/Quality Control (ANZSCO 311399) under the nominator’s direct control.

41. Accordingly, the requirements of reg 5.19(4)(h) are not met.

42. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

   Bridget Cullen
   Senior 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

   (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; 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).