Truong (Migration)

[2019] AATA 3613

Truong (Migration) [2019] AATA 3613 (3 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Minh Thien Truong
Ms Thanh Trinh Hong

CASE NUMBER:  1721934

DIBP REFERENCE(S):  BCC2016/4009561

MEMBER:Nicola Findson

DATE:3 July 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named 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 July 2019 at 9:59am

CATCHWORDS
MIGRATION– 457 (Temporary Work (Skilled)) visa – vegetable grower – applicant has the skills, qualifications and employment background necessary to perform the job – documentary evidence provided – extensive work experience in Australia – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.75, cl 457.223

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 Immigration on 11 September 2017 to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 28 November 2016. At the time the 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet cl.457.223(4)(da) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

4. The applicant appeared before the Tribunal on 22 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Ly Bui, a Director of the sponsoring company, Van Dien Le trading as Le Van Dien Family Trust.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

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 this case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da).

8. The Tribunal notes that Departmental records reflect that Van Dien Le trading as Le Van Dien Family Trust was approved as a standard business sponsor on 28 April 2015 for a period of five years.  In addition, the nomination for the occupation was most recently approved on 3 August 2017.  During the review process, the applicant’s representative made a submission that the applicant’s application for review is covered by transitional arrangements, and that the nomination in respect of the applicant has not ceased to be in effect.  Under cl.6704(15) of Schedule 13 to the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Amending Regulations), r.2.75(2)(b) – which provides for cessation 12 months after nomination approval - does not apply to a nomination made before 18 March 2018 (as is the case here given the nomination was approved on 3 August 2017) if the person identified in the nomination applied for a 457 visa before 18 March 2018 and they applied to the Tribunal for a review of the decision to refuse to grant that visa within 12 months after the day on which the nomination was approved. In this case the applicants applied for their visas on 28 November 2016 and for the review on 15 September 2017, falling within the requisite 12 month period after the nomination approval. On the basis of the explanatory statement which introduced it, this ‘savings’ provision was designed to account for situations in which an applicant was successful in their review, but their employer would be prevented from making a further related nomination after 18 March 2018 by operation of the Amending Regulations. The Tribunal therefore accepts the applicant’s submission relating to the nomination remaining on foot as it appears this savings provision only has effect for nominations which had not yet ceased by operation of r.2.75(2)(b) as at 18 March 2018.

   Skills, qualification and employment background of the applicant

9. Clause 457.223(4)(da) requires the 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 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 vegetable grower.

10. The Tribunal assessed whether the applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of vegetable grower (ANZSCO 121221), as nominated in the most recent nomination approval dated 3 August 2017.

11. The Tribunal discussed with the applicant at the hearing his qualifications and work experience in order to assess whether the applicant meets the requirements in cl.457.223(4)(da). After careful consideration of the Departmental policy, the documentary evidence and the oral evidence of the applicant, the Tribunal was satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, vegetable grower.

12. The Tribunal took into consideration the policy of the Department set out in PAM 3.  The Tribunal observes that whilst it may be guided by policy it is not bound to follow it.[1] The Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations.  The Tribunal notes that in Drake and MIEA [1979] AATA 179 Brennan J (as he was then made the following comments:

    When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.

    [1]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

13. In the interests of consistency in decision-making the Tribunal considered that it should have regard to the policy in this case. The policy notes, amongst other things, that the qualifications and experience of the applicant should be commensurate with the qualifications and experience specified for the occupation in the relevant ANZSCO Code. It goes on to state that the ANZSCO should be referred to as the principal source of information on the normal tasks or duties and skill requirements for occupations in Australia.  It notes that ANZSCO skill level references represent the entry level skill required for a particular occupation. In all cases, case officers must be satisfied that the applicant has the skills to be able to perform the nominated occupation. ANZSCO provides guidance as to the level of qualification required and/or the number of years of experience a person should have in order to be able to perform the occupation.

14. The ANZSCO Code guidelines outline the Unit Group of Crop Farmer and vegetable grower is a subset of the unit group. The relevant guidelines are attached. ANZSCO Guidelines states, in part:

    CROP FARMERS plan, organise, control, coordinate and perform farming operations to grow crops.

    Indicative Skill Level:
    In Australia and New Zealand:

    Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

15. The Tribunal finds that the ANZSCO code indicates that a vegetable grower is an occupation that is assessed as an ANZSCO Skill Level 1 occupation and has a level of skill commensurate with a bachelor degree or higher qualification or at least five years of relevant experience may substitute for the formal qualification. The Tribunal is not bound by these indicative skill specifications but the Tribunal took them into consideration in this matter.

16. At hearing, the applicant told the Tribunal that he completed his primary schooling in 1997 in Vietnam.  After this, his evidence was that he worked as a vegetable and rice grower on a plot of land his father had inherited from his paternal grandfather.  He indicated that he did this work each morning for five days a week, from the time he left school and up until the time he left Vietnam to come to Australia in 2012.  He indicated he actively managed and oversaw the farming of the property because his father’s primary job was working on boats in their coastal village.  He said he prepared the land and oversaw the planting, maintenance and harvesting of the vegetables and rice to sell in his village.

17. The applicant told the Tribunal that he was recognised to be a farmer in his village.  He said that on occasion he was called on by the local authorities to help prepare communal land in order to grow crops.  He also indicated that he was invited by the authorities, on an annual basis, to attend at a government office to “learn what’s new and how to grow better”. 

18. The applicant has provided documentary evidence to verify the work he carried out in Vietnam, including a Membership card issued by the ‘Vietnamese Association of Farmers Central Executive Board’ in 2000, as well as certification from the Vietnam Association of Farmers of Song Doc acknowledging his business efforts and for completing classes in diversified vegetable growing offered by the Department of Agriculture and the Town Association of Farmers since 2004.  The Tribunal observes that the occupation of vegetable grower is nominated on the applicant’s marriage certificate and his curriculum vitae.

19. The Tribunal finds that the applicant’s work experience in Vietnam demonstrates that he obtained several years’ experience as a vegetable grower, cultivating vegetables, overseeing the operation and management of the family land, which included, vegetable and crop planting, maintaining crop production, organising and conducting farming operations and planning crop preparation and production. 

20. The applicant arrived in Australia on 7 December 2012 as the holder of a Subclass 457 visa (granted on 29 November 2012).  From the time of his arrival until 28 November 2016, he worked for his sponsoring employer - VL Thach and NT Tram - as a vegetable grower on a full time basis. VL Thach and NT Tram operate a vegetable growing business in Carnarvon, Western Australia. 

21. Since 2016, the applicant has worked on a full time basis as a vegetable grower for his sponsoring employer.  Van Dien Le trading as Le Van Dien Family Trust has been operating a vegetable growing business since 2004 in Carabooda, Western Australia.

22. The Tribunal questioned the applicant about his activities and responsibilities for VL Thach and NT Tram as well as Van Dien Le trading as Le Van Dien Family Trust.  The Tribunal accepts the applicant’s evidence and finds that the applicant was, and continues to be, involved in:

    ·Planning and co-ordinating the production of fruit and vegetables, including tomatoes, melons, chillies and pumpkins, strawberries, eggplants and zucchinis;

    ·Selecting and planting seeds and seedlings, and grafting new varieties to root stocks;

    ·Maintaining crop production by cultivating, pruning and maintaining optimal growing conditions;

    ·Planning crop preparation and production to meet market demand;

    ·Monitoring and overseeing the maintenance of various machinery, fences and water supply systems used in the vegetable production processes;

    ·Organising and conducting farming operations, such as collecting and grading produce;

    ·Directing and overseeing general farming activities such as fertilising and pest and weed control;

    ·Overseeing and supervising the part time staff and contractors; and

    ·Reporting to the general manager about the operations and maintenance of the vegetable growing.

23. The Tribunal observes in passing that the delegate’s decision was given on 11 September 2017, some 22 months ago.  Since that time, the applicant has continued to work as a full time vegetable grower for his current sponsoring employer.

24. Ms Ly gave evidence that she and her husband supervise the applicant’s work and communicate with him daily in relation to his duties and responsibilities.  She told the Tribunal that the applicant is a hard working, skilful and valuable employee.  She indicated that he is important to the business. 

25. After having regard to the evidence of the applicant and his sponsoring employer, the Tribunal is satisfied that the applicant has developed extensive experience in Australia over the last seven years (whilst full time) in the role of vegetable grower.  The applicant has expertise and experience in planning and co-ordinating the production of vegetables, maintaining vegetable production, organising and conducting the vegetable production operations, directing and overseeing watering and temperature controls, ensuring the general machinery is working at optimum levels, and ensuring production is meeting customers’ orders.

26. After considering the applicant’s qualifications and work experience Australia (since 2012) as well as in Vietnam, the Tribunal is satisfied that the applicant has the skills , qualifications and employment background necessary to perform the tasks of the nominated occupation.

27. For these reasons, the Tribunal is satisfied that the applicant satisfies the requirements of cl.457.223(4)(da).

28. 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.

29. As discussed with the applicant at the hearing, the visa application must meet various requirements set out in Part 457 before being eligible to be granted a visa.

    DECISION

30. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

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

    Nicola Findson
    Member