The Trustee for Grewal Discretionary Trust (Migration)

[2020] AATA 5597

The Trustee for Grewal Discretionary Trust (Migration) [2020] AATA 5597 (16 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for Grewal Discretionary Trust

CASE NUMBER:  1912884

HOME AFFAIRS REFERENCE(S):          BCC2018/956621

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 2:18pm

CATCHWORDS

MIGRATION – nomination of a position – Direct Entry stream – position of Agricultural Technician – genuine need for the employee – task description of the role – nominee selected before for the position was advertised – process for testing the local job market – evidence of the nominee undertaking the tasks of the occupation – decision under review affirmed

LEGISLATION

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

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

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 3 May 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 28 February 2018. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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).

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 r.5.19(4)(h)(ii)(B) of the Regulations because on the assessment of the information submitted by the applicant, the application has failed to identify a need for the nominator to employ an identified person as a paid employee to work in the position under the nominator’s direct control.

   The representative for the applicant appeared before the Tribunal on 28 April 2020 to give evidence and present arguments. The Tribunal received oral evidence from the applicant’s representative Mr Grewal.  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.

5. The applicant was represented in relation to the review by its registered migration agent Mr Pickup Migration Agents Registration Number 0638435. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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.

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

8. With the application for Employer Nomination for a Permanent Appointment – Regional Sponsored Migration Scheme – visa Subclass 187, (Direct Entry) the applicant provided the delegate with the following information:

   ·Position Description – Crop Technician.

   ·Statement dated 6 February 2018 from Packhouse Coffs Harbour.

   ·Statement Dated 6 February 2018 from Packhouse Coffs Harbour

   ·Bank statement of the applicant from 1 November 2017 to 20 November 2017

   ·Applicants Australian Taxation Office itemised account from 9 May 2016 to 22 November 2017

   ·Business activity statement for July – September 2017

   ·Australian Business Number Lookup – 9 June 2016

   ·Photographs probably depicting the applicant’s farm

   ·Statement from Phil Robinson Earthmoving dated 7 October 2014

   ·Advanced Plumbing and Irrigation Pty Ltd Tax Invoice Dated 31 October 2014

   ·OzGroup Co-Op Ltd Statement Dated 31 October 2014

   ·OzGroup Co-op Ltd sale statement from 1 October 2014 to 31 October 2014

   ·Advanced Plumbing & Irrigation Invoice Payment 1 December 2014

   ·Norco Rural Stores Statement 30 April 2015

   ·OzGroup Co-Op Ltd Statement 5 May 2015

   ·OzGroup Co-op Ltd sales statement April 2015

   ·OzGroup Co-op Ltd statement 11 June 2015

   ·OzGroup Co-op Ltd sales statement May 2015

   ·Universal Drilling Worldwide Pty Ltd Tax Invoice 22 July 2014

   ·Sky’s the Limit LED & Electrical tax invoice/statement dated 3 February 2016

   ·Sky’s the limit LED & Electrical tax invoice/statement for February 2016

   ·OzGroup Co-op Ltd statement 5 February 2016

   ·OzGroup Co-op Ltd sales statement 5 February 2016

   ·Norco Rural Stores Statement 29 February 2016

   ·Abermarla Pty Ltd overdue account notice 7 April 2016

   ·Robert Whitton tax invoice/statement 11 May 2016

   ·OzGroup Co-op Ltd statement to June 2016

   ·OzGroup Co-op Ltd sale statement May 2016

   ·Robert Whitton invoice/statement a June 2016

   ·Arc Attack Engineering Pty Ltd Statement 29 July 2016

   ·Arc Attack Engineering Pty Ltd Tax Invoice 29 July 2016

   ·Robert Whitton Tax Invoice/Statement 2 August 2016

   ·Norco Rural Stores Statement 31 August 2016

   ·Golden Eagle Berry Farms Australia Management Pty Ltd 7 August 2017

   ·Golden Eagle Berry Farms Australia Management Pty Ltd 16 July 2017

   ·Golden Eagle Berry Farms Australia Management Pty Ltd 9 June 2017

   ·Employment Contract between the applicant and the nominee dated 28 February 2018

   ·Colour photograph of a tractor presumably on the applicant’s farm

   ·Mr W Borsato tax invoice 25 July 2017

   ·Letter revenue coordinator to Mr & Mrs Grewal concerning outstanding rates 14 September 2017

   ·Driscoll’s Australia Pty Ltd Tax Invoice 10 January 2018

   ·Driscoll Is Invoice/Quotation Undated

   ·Business Activity Statement April/June 2017

   ·Colour Photographs of Applicants Cucumbers

   ·Colour Photograph of Applicants Netted Crops in

   ·Colour Photograph of blueberries in growth

   ·Colour photograph of plants and picked cucumbers

   ·Colour photograph of containers on the applicant’s farm

   ·Colour photograph of an employee on the applicant’s farm (presumably the nominee)

   ·Colour photograph of cucumbers and packing boxes

   ·Colour photograph of plants under netting

   ·Black and white photograph of shed and equipment

   ·Colour photograph of netting over growing plants

   ·Tax Invoice from W Borsato 10 June 2017

   ·Clarence Valley Council Notification of Property Transfer 17 July 2017

   ·Black and white photograph of a ploughed field

   ·Profit and loss statement of the applicant July/June 2016

   ·Business Activity Statement October/December 2017

   ·Advanced Plumbing and Irrigation Pty Ltd Tax Invoice 12 March 2014

   ·Robert Whitton Tax Invoice Undated

   ·Tax Invoice/Statement May and June 2014 from Mr Murray Gray

   ·Advanced Pumping and Irrigation Tax Invoice 19 June 2014

   ·Tax Invoice/Statement from P & N Gibbins 27 June 2014

   ·Phil Robinson Earthmoving Tax Invoice 15 July 2014

   ·MitchBrook Management Pty Ltd tax invoice 25 July 2014 to 1 August 2014

   ·Mitchbrook tax invoice 30 July

   ·Mitchbrook tax invoice 31 July

   ·Mitchbrook tax invoice 1 August

   ·Mitchbrook tax invoice 25 July

   ·Mitchbrook tax invoice 29 July

   ·Mitchbrook tax invoice 26 July

   ·Phil Robinson earthmoving tax invoice 28 July 2014

   ·Phil Robinson earthmoving tax invoice 28 July 2014

   ·Advanced Pumping and Irrigation Pty Ltd Tax Invoice 31 July 2014

   ·Tutt Bryant hire statement 31 July 2014

   ·Advanced Pumping and Irrigation Pty Ltd Tax Invoice 27 August 2014

   ·Advanced Pumping and Irrigation Pty Ltd Tax Invoice 27 August 2014

   ·Phil Robinson Earthmoving Tax Invoice 19 September 2014

   ·Advanced Pumping & Irrigation Invoice Payment 23 September 2014

   ·GJ Thompson trading as ‘sky’s the limit LED and Electrical 28 September 2014 (5 pages)

   ·Advanced Pumping and Irrigation Pty Ltd Tax Invoice 30 September 2014

   ·Golden Eagle Berry Farms Australia Management Pty Ltd 30 June 2017

   ·PayScale – Quality Control Inspector Salary (Australia) 21 February 2018

   ·Organisational Chart of the Applicant Undated

   ·Bank Cheque Stub 15 November 2017 & 16 November 2017

   ·Detailed profit and loss statement for the year ended 30 June 2015

   ·Business Activity Statement October/December 2016

   ·Business Activity Statement January/March 2017

   ·Black and White Photograph of Growing Plants Black and White Photograph of Farm Equipment in a Shed

   ·Golden Eagle Berry Farms Australia Management Pty Ltd 5 July 2017

   ·Submission by Mr Grewal (Owner) concerning Supporting Application to Sponsor a Crop Technician Tax invoices from Kulwinder Kaur 13 August 2017, 11 October 2017, 27 November 2017

   ·OzGroup Co-op Ltd remittance advice 1 January 2018

   ·Financial statements of the applicant for the year ended 30 June 2017

   ·Employment contract made 28 February 2018

   ·Colour photograph of the applicant’s tractor

   ·Colour photograph of the applicant’s front-end loader

   ·Tax invoice W Borsato 25 July 2017

   ·Outstanding rates notice from the council 14 September 2017

   ·Driscoll’s Australia Pty Ltd tax invoice 10 January 2018

   ·Business Activity Statement April/June 2017

   ·Colour Photograph of Cucumbers Harvested

   ·Colour Photograph of Plants under Netting

   ·Colour Photograph Are Blueberry Plants In Situ

   ·Colour Photograph of Picked Cucumbers and Plants

   ·Colour Photograph of Containers Sheds and Water Tanks

   ·Colour photograph of the nominee presumably

   ·Colour photographs of Packing boxes and picked cucumbers

   ·Colour photograph Plants under netting

   ·black and white photograph of shed with equipment

   ·Colour photograph of plants under netting

   ·Tax invoice from W Borsato 10 June 2017

   ·Clarence Valley Council notification of property transfer to Mr and Mrs Grewal 17 July 2017

   ·Black and white photograph of a property

   ·Profit and loss statement from July 2015 to June 2016

   ·Business Activity Statement October/December 2017

   ·Advanced Pumping and Irrigation Pty Ltd Tax Invoice 12 March 2014

   ·Robert Whitton Tax Invoice Undated

   ·Murray Gray – main June 2014 tax invoice

   ·Advanced Pumping and Irrigation Pty Ltd 19 June 2014 Tax Invoice

   ·P & N Gibbins Tax Invoice 27 June 2014

   ·Phil Robinson Earthmoving Tax Invoice 15 July 2014

9. Regulation 5.19(4)(h) contains several 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 18/004), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

   ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.

10. The applicant is a corporation, incorporated on 1 July 2009, and is the trustee of the Grewal Discretionary Trust. The applicant is a family ‘concern’ growing blueberries and cucumbers on three farms the Coffs Harbour region of New South Wales. Mr Grewal is the manager and plant operator and the husband of Mrs Grewal, the sole director and administration manager of the applicant. Mr Grewal is the sole shareholder. The applicant purchased the third property to increase the applicant’s blueberry production as well as lead the business in an expansion into growing raspberries and blackberries.

11. The applicant’s history has it growing bananas in the Coffs Harbour area and then moving to North Queensland. After nine years, while retaining the original farm, it returned to Corindi and is now involved in blueberries where it accounts for about 80–90% of blueberry production in the region. Mr Grewal says the applicant now grows about 70,000 blueberry plants in various growth stages, and those plants consist of about 20 varieties. The plan is to expand on the applicant’s vision to grow blueberries, raspberries and blackberries with export in mind.

12. The applicant has two nominations before the Tribunal. Both nominees are of Indian nationality heralding from the Punjabi region. While the nominee in this application is an agricultural technician, the other position is that of a crop farmer who commenced with the applicant as a Subclass 457 visa applicant in 2013.

    Applicant’s submission of 28 February 2018

13. Mr Grewal submits that he employs only one full-time employee whose occupation is a fruit Inspector and he is the subject of a 187 application.  Mr Grewal says, ‘in desperate need for a qualified crop farmer to start work with me as soon as possible’.  Mr Grewal may mean that he needs an agricultural technician but the point he is making is that he needs the position to be filled.

14. He says that that the applicant has 13 acres at Woolgoolga, 60 acres at the upper Corindi (purchased 2014) and 500 acres at Glenugie which was purchased in 2017.  Mr Grewal proceeds to address the difficulties having in securing employment:

    ‘I have always experienced difficulties in finding skilled Australian permanent residents or citizen workers from the local area to fill these sorts of permanent positions.  I have undertaken 1 week of advertising so far, and the only qualified applicant to have applied is Inderjit Singh I have offered him full-time employment and he has accepted.  We are lodging his application now, but to satisfy you that no locally skilled Australian workers from this local area are available we will continue the advertising and lodge an application with the RCB in due course.  Evidence of the RCB support will be provided at a later date.  In the meantime, as a matter of urgency for my operations, I will commence Inderjit’s employment in this role immediately.

    My 2017 financial statement shows a very significant increase in sales from the previous year as well as a significant profit.  There can be no concern as my financial capacity to employ Inderjit.  I have sponsored workers on 457 and 187 visas previously, and I take the obligations and restriction on both employers and employees very seriously.’

    …

    ‘I require a full-time crop technician to start work as soon as possible.  This is a new role and I believe it is vital for my ongoing success.  I will rely on Inderjit’s technical and scientific skills to assist me in developing my farming practices to maximise the production of blueberries on my property, to test and inspect the land and to ensure the quality of my land is suitable for produce.  It will be a big role – I will need Inderjit to cover all three properties.  However in general I intend for him to work on one farm at a time.

    Inderjit holes a relevant Diploma level qualification.  I have employed people before on the basis of their Diploma of Horticulture qualifications and I am very confident that Inderjit will possess all of the skills necessary for this important role.  In addition, he has relevant farm work in this area so he fully understands the working conditions that will be involved.  From my communications with him thus far I am confident that he has a good work ethic and is committed to long-term employment with me.’

15. The applicant, through its representative Mr Grewal, does not set out the tasks he is required to perform other than having technical and scientific skills.

    ANZSCO description and tasks

16. ANZSCO’s ‘Unit Group’ and ‘Occupation’ of the agricultural technician are detailed:

    AGRICULTURAL TECHNICIANS perform tests and experiments and provide technical support to assist Agricultural Scientists in areas such as research, production, servicing and marketing.

    Indicative Skill Level:

    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

    In Australia:

    AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    In New Zealand:

    NZ Register Diploma (ANZSCO Skill Level 2)

    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    ·examining topographical, physical and soil characteristics of farmland to determine its most effective use and identify nutrient deficiencies

    ·assisting in developing new methods of planting, fertilising, harvesting and processing crops to achieve optimum land usage

    ·identifying pathogenic micro-organisms and insects, parasites, fungi and weeds harmful to crops and livestock, and assisting in devising methods of control

    ·analysing produce to set and maintain standards of quality

    ·inspecting livestock to gauge the effectiveness of feed formulae

    ·assisting in controlled breeding experiments to develop improved crop and livestock strains

    • arranging the supply of drugs, vaccines and other chemicals to Farmers and Farm Managers, and giving advice on their use

    ·collecting and collating data for research

    311111 AGRICULTURAL TECHNICIAN

    Alternative Title:

    Agricultural Technical Officer

    Performs tests and experiments and provides technical support to assist Agricultural Scientists in areas such as research, production, servicing and marketing.

    Skill Level: 2 Specialisations:

    Agriculture Laboratory Technician Artificial Insemination Technical Officer Dairy Technician

    Field Crop Technical Officer Herd Tester

    Horticultural Technical Officer Poultry Technical Officer

17. The applicant’s manager, Mr Grewal, gave an account of the nominee’s duties and tasks. The nominee has a Diploma of Agriculture. His experience is not known except to the extent that Mr Grewal knew that he had worked in the region around Coffs Harbour, though surprisingly, he did not know where the nominee had worked. Mr Grewal in evidence stated he was interested in the nominee’s qualifications and to a lesser extent, in the nominee’s experience, though the advertisements, both print and internet, the applicant referred to experience being a factor to be considered by the applicant in selecting the right candidate. However, Mr Grewal explained the applicant’s position; it being very difficult to secure good reliable staff and it is necessary to snap up good people as they may be employed by other potential employers.

1. This nominee responded to an advertisement on 23 February 2018 some five days before he was selected as the successful candidate and became the identified nominee in the nomination application made 28 February 2018.

2. Mr Grewal said he authorised his migration agent, Mr Trent Pickup, to undertake the advertising of the position to find and select a suitable candidate to fill the position of agricultural technician. During the hearing Mr Pickup was called upon by the applicant’s representative Mr Grewal to assist the Tribunal.  Mr Grewal did not know of the details of the advertising on the internet or in print. It was Mr Pickup who undertook the advertising on the applicant’s behalf. Therefore, Mr Pickup, who provided the information of the advertisements which were placed in the Coffs Harbour newspaper. It consisted of four advertisements placed for two weeks in the ‘Coffs Coast Advocate’. These print dates were 24 February, 28 February 2018, 3 March and 7 March 2018. The position was also advertised online for 3 weeks between 21 February and 4 March 2018.

3. Mr Grewal denied the Tribunal’s enquiry as to whether the nominee had been selected for the position before the advertising had been undertaken. He said he left it to Mr Pickup to do the advertising, interviewing and selecting the shortlist of the candidates. Mr Grewal said that they discussed the shortlist and the nominee was selected. At that time, the nominee was on a student visa and was only able to work 40 hours per fortnight. He could not work for a longer period until his student visa expired. He worked from March but ‘it was winter’ so there wasn’t much work on. In June 2018 the nominee commenced working full-time.

4. The Tribunal enquired of Mr Grewal whether he had instructed Mr Pickup to hire an Indian person, noting that the nominee responded to the online advertisement within four or five days before the making of the nomination application. Mr Grewal did not respond to the question directly, but said the applicant employed a ‘Punjabi team’ and they were a ‘hardworking people’. Expressed in other terms by Mr Grewal, they were the ‘right calibre of people’ and ‘we find that these people are hardworking people’, ‘we have a Punjabi team’. Mr Grewal added: ‘When people of the right calibre are coming through’ they are asked ‘to go and do something and they go and do it and you don’t have to worry about the job getting done’; ‘It is a very big plus’.

5. Mr Grewal noted that the nominee spoke the Punjabi language which was important.  Mr Grewal also spoke a Punjabi as he is of Indian descent.  Mr Pickup confirmed with the Tribunal that the nominee received a ‘competent’ test result through IELTS. Mr Pickup confirmed through Job Search, 25 job applicants responded, and the online advertisement expired on 14 March 2018. The nomination application was made on 28 February 2018, 14 days before.

6. The applicant had not previously employed an agricultural technician.  Mr Grewal’s evidence is that he did not inquire with local colleges, technical institutions or universities as to qualified technicians who may have been graduating, particularly when Mr Grewal was not so much concerned about the candidate’ s experience but the candidate’s qualification.

7. The applicant’s Mr Grewal wrote to the Department by letter dated 3 April 2018, supporting the nomination application for the crop technician position. He stated:

   “I have always experienced difficulties in finding skilled Australian permanent residents or citizen workers from the local area to fill these sorts of permanent positions. I have undertaken 1 week of advertising so far, and the only qualified applicant to have applied is Inderjit Singh. I have offered him full time employment and he has accepted. We are lodging his application now, but to satisfy you that no locally skilled Australian workers from this local area are available we will continue the advertising and lodge an application with the RCB in due course. Evidence of the RCB’s support will be provided at a later date. In the meantime, as a matter of urgency for my operations, I will commence Inderjit’s employment in this role immediately.

   Historically I have really struggled finding suitably qualified applicants in this local area. Initially, we undertook 1 week of online advertising (from 21 – 28 February 2018) and posted 2 newspaper ads to test the local market and we invited Inderjit to formally apply for the role. Inderjit was the only qualified applicant to apply and due to time constraints, we offered Inderjit the position at that time and lodged his application after the first week of advertising (on 28 February 2018). Another 2 weeks of online advertising was completed after the application was lodged as well as another 2 newspaper ads and as per the advertising reporting form, still no qualified candidates applied for the role”.

8. In assessing this case, the Tribunal is cognisant of the legal term ‘onus of proof’.  The term is not appropriate to inquisitorial inquiries and the decision-making process of those inquiries. The Courts have held that an applicant must supply the relevant facts in each individual case, in as much detail as is necessary to enable a decision maker to establish the relevant facts. As a result, a decision maker (in this case the Tribunal) is not required to make the applicant’s case for it. The Tribunal is not required to accept uncritically any the claims that an applicant puts forward to support the case. The Tribunal would expect to receive documents in the form of reports, diary notes, records accounting for the information and advice given by the nominee to the applicant particularly concerning fertilizer use, pesticide use and the results of infestations. The applicant has not information which an applicant would be expected to produce because of the nature of growing produce relating to a consumer market.

9. The applicant required the employment of the nominee and rather than attempt to have an advertising campaign to seek the most suitable candidate, sought out the nominee who applied for the position and was successful. The comments made on behalf of the applicant casts doubt as to what tasks and duties the applicant will be performing.

10. The Tribunal is charged with the task of qualitatively assessing[1] the position and comparing this with the occupation and comparing it with the tasks, as well as considering other relevant factors, including the applicant’s genuine attempt to fill the position.  The Tribunal is not satisfied the applicant has undertaken the process for testing the local market.

    [1] Cargo First Pty Ltd v MIBP [2016] FCA 30; Court upheld the Tribunal’s approach of qualitatively assessing the position and comparing it with the ANZSCO description and tasks.

11. The applicant provided to the Department a ‘Position Description – Crop Technician’. The applicant’s representative Mr Grewal gave account of what the nominee undertakes. He said that he tests the Ph level of the soil, which is done daily, that is once every three days but as the applicant has three farms, works out to be daily. He does this because the Ph must be within a range for the chemicals to be effective. He is the person who carries out the PRIVA computer program which is involved in creating the chemical mixtures so that the correct fertilizer mix is given to the plants. He must make sure the machine is working correctly. The nominee works with the fruit inspector and with the applicant’s co-operative OzGroup Co-Op Ltd, to send 600 blueberry checks to it, because the produce has restrictions on picking depending when the crop was sprayed. The nominee knows when to pick the fruit and what farm at the optimal time; how to identify microorganisms and knowing what chemicals need to be applied to the fruit to eradicate a fungus that may have been identified. Mr Grewal said that the testing samples are sent to the ergonomists who test the samples, as does the co-operative and sometimes an independent ergonomist. The nominee provides a produce report which is given to Mr Grewal verbally. The nominee takes the soil test to a laboratory for testing which is done every couple of months. He also checks the electrical conductivity which is completed every day.

12. The Tribunal invited the applicant via s.359(2) to provide information, including information about the roles and duties of the nominated position and how they correspond to the nominated occupation’s position description in ANZSCO:

    5)Information about the roles and duties of the nominated position and how they correspond to the nominated occupation’s position description in 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 occupation’s position description in ANZSCO (see and type the nominated           occupation’s 6 digit ANZSCO code number into the ‘Search’ function)

13. The applicant responded through its migration agent by providing to the Tribunal copies of the following documents (relating to the advertising undertaken by the applicant):

    ·Newspaper advertisements for crop technician for 24 February 2018, 28 February 2018, 3 March 2018 and 7 March 2018;

    ·employment contract;

    ·job search job advertisement and application tracker;

    ·advertising report form;

    ·Notice of Assessment of taxpayer Mr Inderjit Singh for the year ended 30 June 2018;

    ·agricultural technician salary (Australia);

    ·Business activity statements for December 2019, December 2018, June 2019;

    ·Taxation return for 2019

14. The only corroborative evidence of the nominee undertaking the tasks set out in ANZSCO is the job description provided to the Tribunal by Mr Grewal .  Evidence of a ‘working sheet’ does not make any reference to the nominee.   The Tribunal has received evidence of the applicant’s co-operative OzGroup Co-Op Ltd undertaking some testing, purchasing of chemical supplies  but without any evidence  of the nominee be involved in the process, other than the nominee being identified in that document as the technician.

15. On 22 April 2020, the applicant provided further information - ‘further supporting documents for the appeal, up-to-date evidence of the nominee’s work in the nominated occupation and the genuine need for this position relevant to the genuineness of the position of agricultural technician’. The documents tendered by the applicant consisted of the following:

    ·OzGroup Co-Op Ltd report dated 9 April 2020.  The document has ‘fertiliser recommendations and a Fertigation program: Plant maturation and bloom’.

    ·Bank statements (relating to the nominee) for the following periods:

    o   From 31 May 2019 to 2 August 2019;

    o   From 4 February 2020 to 3 April 2020;

    o   From October 2019 to 3 December 2019;

    o   From 4 December 2019 to 3 February 2020;

    o   From 3 August 2019 to 3 October 2019.

    ·Letter from OzGroup Co-op Ltd dated 20 April 2020 signed by the chairman.

    ·Payroll advice slips for the periods:

    o   From 1 July 2019 to 14 July 2019.  Cheque number 1183.  Payment date 14 July 2019.

    o   From 1 August 2019 to 14 August 2019.  Cheque number 1193.  Payment date 14 August 2019.

    o   From 1 September 2019 to 14 September 2019.  Cheque number 288725.  Payment date 31 August 2019.

    o   From 1 October 2019 to 15 October 2019.  Cheque number 288727.  Payment date 15 September 2019.

    o   From 1 November 2019 to 15 November 2019.  Cheque number 1305.  Payment date 16 October 2019.

    o   From 1 December 2019 to 15 December 2019.  Cheque number 1343.  Payment date 16 December 2019.

    o   From 1 January 2022 15 January 2020.  Cheque number 1352.  Payment date 15 January 2020.

    o   From 1 February 2022 15 February 2020.  Cheque number 1363.  Payment date 15 February 2020.

    o   From 1 March 2022 15 March 2020.  Cheque number 1383.  Payment date 15 March 2020

16. The Tribunal is not satisfied that the above documents provide information to the issue that the genuineness of the position.  The applicant did not provide commentary as to the relevance of these documents. The Tribunal is unable to establish the purpose of the bank statements other than to illustrate that to the nominee is employed with the applicant.  The report from OzGroup Co-op Ltd does not corroborate the employment of the nominee as the agricultural technician undertaking the tasks as set out in ANZSCO.  The payslips support the nominee being employed and he received a salary.  The chairman’s letter does not corroborate the nominee undertaking the tasks of an agricultural technician on the applicant’s farming properties.

17. The Tribunal is not satisfied that the position of agricultural technician is genuine.  The applicant’s advertising is inconsistent with it having a genuine desire to employ an agricultural technician advertising only days before the nomination application.  The applicant advised the Department of the need to have an agricultural technician as such a position was required in the very near future, however the applicant knew or would have known of the nominee’s student visa which would not allow him to work beyond 40 hours per fortnight for a considerable time.  The applicant the Tribunal with an Oz Group Co-Op Ltd[2] (Oz Group) which refers to a consultant and the nominee as the technician.  The applicant did not supply any information of communications between Oz Group and the nominee on the applicant’s behalf in his involvement in undertaking some of the tasks in ANZSCO.  The Chairman’s letter of 20 April 2020 only referred to ‘the difficulty of sourcing and retaining skilled employees is well demonstrated’. The chairmain did not provide any information as to why it is demonstrated.[3] 

    [2] Tribunal file folio 151 entitled 'fertiliser recommendations'

    [3] Tribunal File: Folio 177 of Folios 186.

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

19. 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

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

    Ian Berry
    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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (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 the person identified under subparagraph (a)(ii), as 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).