1410606 (Migration)

[2015] AATA 3348

1410606 (Migration) [2015] AATA 3348 (1 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  DESHI BAZAAR PTY LTD

CASE NUMBER:  1410606

DIBP REFERENCE(S):  BCC2013/1923389

MEMBER:Filip Gelev

DATE:1 September 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 01 September 2015 at 11:10am

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 2 June 2014 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 22 November 2013. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For visa applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because the tasks of the nominee Mr K M Marufur Rahman are inconsistent with the nominated occupation of customer service manager.

4. Mr Goni Mohamme Osman appeared before the Tribunal on behalf of the applicant on 9 June 2015 to give evidence and present arguments.

5. The applicant was represented in relation to the review by its registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).

   Position must be genuine

8. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.

9. In the present case the nominated position is customer service manager. The ANZSCO description of customer service manager is

   ·Developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided

   ·Ensuring operational efficiency within a call centre

   ·Providing direction and feedback to team members and assisting with recruitment

   ·Managing, motivating and developing staff providing customer services

   ·Planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided

   ·Liaising with other organisational units, service agents and customers to identify and respond to customer expectations

   ·May work in a call centre.

10. Together with the application the applicant provided to the Department of Immigration an Executive Summary which set out the business’s and the application background. Deshi Bazaar is described as a wholesale importer and distributor of Asian, Indian and Middle Eastern food products since 2006. It has a warehouse and a retail outlet in two different locations but within the same suburb of Noble Park. The company imports more than 1,300 different ‘items’ and distributes not only in Melbourne, but Sydney, Adelaide, Brisbane and Perth. They have their own ‘Deshi Bazaar’ brand name food. The business sells as rice, yoghurt and various frozen foods with the brand name Deshi Bazaar.

11. The Executive Summary explains that the reason the business is seeking to employ a customer service manager is because ‘the grocery industry suffers from a chronic shortage of competent or highly skilled managers, assistants and a multitude of other occupations’. The applicant needs ‘more skilled people, who are qualified in dealing with International Business and talk more regional languages and provide excellent Customer service to our clients’.

12. According to the Executive Summary the applicant was ‘introducing’ – no specific date was provided – Deshi TV, a streaming media TV. A customer service manager would, according to the Executive Summary, contribute his skills greatly to the expansion of this side of the business. The Executive Summary continues:

    ‘The Director … now also getting into the service industry.

    Their analysis indicates that a typical customer will spend $350 per media box.

    The Sales Forecast is based on an average spend of $350 per customer.

    -     Cost of Sales is estimated at 45%.

    -     First month sales = (100 customers * 350) = $35,000

    -     Seventh month = (148 customers * 350) = $51,82112 [sic]’.

13. The Executive Summary includes a brief description of the nominee’s tasks:

    ·Developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided

    ·Ensuring operational efficiencies within a call centre for Deshi TV and to provide technical and after sales support

    ·Providing direction and feedback to team members in sales and assisting with recruitment

    ·Managing, motivating and developing staff providing customer services and support

    ·Planning and implementing after-sales services to follow up customer satisfaction, ensure performance of the streaming media box, and modify and improve services provided.

14. According to an organisational chart provided by the applicant to the Department of Immigration, the business has a director (Mr Goni), a customer service manager (the nominee), a retail supervisor (part-time position) and an ‘order picker’ (part-time position). According to the chart the position of ‘importer’ is full-time but vacant at the time when the chart was prepared.

15. According to an undated submission to the Department, the nominee has been working with the company since 2007.[1] According to a contract of employment, the nominee was to be paid $55,000 a year and be employed full time as a customer service manager, with a commencement date ‘on approval from DIAC’.[2]

    [1] Folio 18 of DIBP file.

    [2] Folios 19-20 of DIBP file.

16. The delegate concluded that the applicant does not require a dedicated customer service manager, because it is a relatively small business particularly in terms of the number of staff, the nominee would not have any personnel working under him, and the nominee’s tasks appear to be of a lower level than those in the ANZSCO description.

17. After the applicant applied for review of the delegate’s decision, the only ‘submissions’ provided to the Tribunal before the hearing were one page long. They simply asserted that the nominee’s position description and the ANZSCO classification seemed to be 90% similar. Therefore, it was clear that the position of customer service manager is necessary to operate the business.

18. At the Tribunal hearing Mr Goni said that his occupation was business owner of Deshi Bazaar as well as Rosh Sweet and Restaurant Pty Ltd which he opened about a year ago.[3]

    [3] According to the ABN register, the business was registered on 23 December 2013.

19. He said that Deshi Bazaar employs ‘at least’ 10 people – his wife is the manager and accountant; the nominee works part-time as customer service manager; Himel Rahman (brother of the nominee) also works as customer service manager; Fahrid does ‘shelving and other things’ and deliveries on a part-time basis; Shehlim is another employee whose job is similar to Fahrid’s; Lokman is a warehouse manager, employed full-time; other employees are employed part-time, for example, one person’s job is to clean fish.

20. Deshi Bazaar the wholefood business mainly imports rice from India. It also imports spices, frozen fish and vegetables, snacks and so on. He said that because they import Bangladeshi specialties such as a particular type of fresh water fish (Hilsa fish) and customers come from hundreds of kilometres away. The business also sells wholesale to retailers in other states.

21. The Tribunal inquired about Deshi TV. The applicant said it started about one year ago and there are about 100 customers at present. They are people who watch TV at home. The service involves a digital box: individual customers pay $350; Deshi Bazaar buys them for about $200 each. The box allows customers to stream about 12 Bengali TV channels. Some of the channels are paid cable TV channels so there is an annual subscription of about $100; Deshi Bazaar makes a profit of about $20 per customer, because it pays someone in Bangladesh about $80 a year per customer.

22. Later on during the hearing the applicant claimed that there may be close to 200 customers. He explained that he knew this because he had bought 200 digital (streaming) boxes and he was almost sold out.

23. The applicant acknowledged that another business, Mexim Australia, provides the technical support for serious problems. He said that Mr Rahman, the nominee, installs the set top boxes and deals with simple customer problems, tasks such as plugging in HDMI cable in the right place or checking there is a wi-fi connection.

24. When asked who subscribes to Deshi TV, the applicant said that the customers are mostly people who are already customers of the shop. Deshi TV is advertised inside the store. The applicant said that they also advertise Deshi TV by sending text messages to existing customers whose mobile phone numbers they have.

25. The Tribunal asked when the nominee started working with the business. He said 2-3 years ago. When asked why he had written in one of the submissions that he started in 2007. Mr Goni then said he did start in 2007. The applicant said that the nominee is his nephew – he is the son of the applicant’s elder brother’s son.

26. When the Tribunal specifically inquired about the nominee’s working hours at the business, the applicant said that the nominee works at Toyota from Monday to Friday. That is why he only works at Deshi Bazaar on weekends. Sometimes he works 10, sometime 15, sometime 20 hours a week.

27. The Tribunal invited the applicant to describe the nominee’s tasks. Mr Goni said he checks that all stock is in the shop and orders more as required; he deals with customers and customer complaints (including people bringing back goods); he dispatches stock interstate; and, as already discussed, he also deals with Deshi TV customers.

28. The applicant said that on weekends there are only one or two people, including the nominee, working  in the shop. The nominee is allowed or has been delegated all the powers that the applicant himself possesses, because it’s a small family business.

29. The applicant said that he pays the nominee $25 an hour, considerably more than what he pays others. He pays as little as $16 an hour to some employees. The nominee’s younger brother also does things that require a lower qualification/skill level: his tasks include serving customers and stacking shelves; he gets paid only $18 an hour.

30. The nominee deals with customers interstate as well. For example, he can give a discount to customers who buy goods in bulk. Because it is a community based shop and there are people coming from a long way (e.g. 500 km away) who buy large amounts of stuff (above $1,000, restaurant owners and shop owners) get about 10%. The applicant said that goods that are on ‘special’ attract a discount of 5% even if bought in small amounts. When asked, the applicant insisted that it was the nominee who had come up with this policy and he decides discounts, because he (the nominee) knows the price of everything.

31. The Tribunal asked the applicant about the nominee ‘developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided’. The applicant said that the nominee would ensure that customers’ needs are satisfied. For example, a Bangladeshi customer would ask for fish; an Indian customer for something else; Burmese clients started learning about the business and started patronising the business.

32. He claimed that it was the nominee’s idea to start importing fish as well as rice (which is now sold in the name Deshi Bazaar). It is mostly the applicant’s wife and the nominee who deal with exporters overseas (who sell to Deshi Bazaar). However, the applicant added that a brother of his (not the nominee’s father, but another brother) has an export business in Bangladesh.

33. The Tribunal asked about one of the other tasks as listed by the applicant in the nominee’s position description: Ensuring operational efficiencies within a call centre for Deshi TV and to provide technical and after sales support. He said there was no call centre as such. The nominee does deals with calls (an issue already discussed earlier in the hearing).

34. The Tribunal invited the applicant to talk to the third task listed in the Executive Summary: Providing direction and feedback to team members in sales and assisting with recruitment. The applicant said that it was mainly his wife who deals with recruitment. The applicant then added that the nominee is involved in the sense that he would give feedback as to who is good and who is not, because he interacts with employees. Later on the applicant’s evidence changed and he said that ‘everyone’ together (the applicant, his wife and the nominee together) would interview job applicants. Finally, he said that it was mainly the nominee and the applicant’s wife or one of them alone who would interview.

35. In relation to the fourth task listed – managing, motivating and developing staff providing customer services and support – the applicant reiterated once again that this is a family business and whatever the applicant can do, Mr Rahman has been authorised to do as well.

36. The Tribunal asked about task number 5, which relates to Deshi TV: Planning and implementing after-sales services to follow up customer satisfaction, ensure performance of the streaming media box, and modify and improve services provided. The applicant said that sometimes the nominee would decide which cable goes into the digital box and the TV, ie, a wi-fi cable or a different type of cable.

37. The applicant explained that the nominee was very bright and had given the business a lot of ideas which have benefited the business. For example, he suggested that Deshi Bazaar offer a discount to people who come from regional Victoria to buy goods in bulk for themselves and for up to 10 other families living in their area.

38. The applicant said that it was the nominee’s idea to open a restaurant in Noble Park and it is doing very well. All the ministers who have come to visit from Bangladesh have been to the restaurant because the chef is very good.

39. Finally, the applicant told the Tribunal that the business had been recognised as the best business working for MoneyGram in the southern hemisphere and they had a holiday to the Cricket World Cup in the UK fully paid for by MoneyGram to reward their efforts. Once again, it was the nominee’s idea to start this part of the business.

40. The Tribunal accepts that the nominee is in charge of the business on weekends, while Mr Goni runs Deshi Bazaar from Monday to Friday. As the elder of the two brothers (Mr Goni’s nephews) he has more powers delegated to him, including giving discounts or offering refunds. The Tribunal accepts that he gets paid more than any other employee.

41. However, the nominee has been working for the business for a considerable length of time now, that is, almost 8 years and the business not only survives but thrives with the nominee only working on weekends. According to Mr Goni’s own evidence the nominee works as little as 10 hours some weekends.

42. Further, just because Mr Goni likes and trusts the nominee and adopts many of his business ideas, it does not follow that the nominee is a customer service manager. As Mr Goni admitted, this is a small family run business and people’s tasks and responsibilities are not clearly delineated.

43. If the business were larger, with more employees, the Tribunal might have concluded that the nominee’s occupation is part-time retail supervisor. The ANZSCO description of retail supervisor is as follows:

    ·ensuring that customers receive prompt service and quality goods and services 

    ·responding to customers' inquiries and complaints about goods and services 

    ·planning and preparing work schedules and assigning staff to specific duties 

    ·interviewing, hiring, training, evaluating, dismissing and promoting staff, and resolving staff grievances 

    ·instructing staff on how to handle difficult and complicated sales procedures 

    ·examining returned goods and deciding on appropriate action 

    ·taking inventory of goods for sale and ordering new stock 

    ·ensuring that goods and services are correctly priced and displayed 

    ·ensuring safety and security procedures are enforced

44. However, Mr Goni’s evidence was that on weekends, when the nominee works, the nominee sometimes works by himself or with one other person at best. Thus, at most the nominee supervises one person.

45. The Tribunal finds that the nominee’s occupation is to assist on weekends in the running of his uncle and aunt’s (Mr and Mrs Goni) shop. He performs many different tasks and he deals with customers and suppliers. He also deals with the installation of, and simple inquiries relating to, Deshi TV. His uncle and aunt trust him and pay him more than other employees or his brother.

46. However, the food shop ‘arm’ of the business does not need a dedicated customer service manager; Deshi TV does not need a customer service manager either. Once a box is sold to a customer they pay their annual subscription fee and they do not require anything else; when a Deshi TV customer has a more difficult technical problem another company deals with the customer.

47. For these reasons the requirements of r.2.72(10)(f) are not met.

48. For the reasons given above, the Tribunal is not satisfied that the applicant meets the all applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

49. The Tribunal affirms the decision not to approve the nomination.

    Filip Gelev
    Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    2.72 Criteria for approval of nomination — Subclass 457…

    (1)This regulation applies to a person who is:

    (a)a standard business sponsor; or

    (b)a party to a work agreement (other than a Minister);

    who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].

    (2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

    …

    (f)the position associated with the nominated occupation is genuine

    …