1413688 (Migration)

1413688 (Migration) [2016] AATA 3579 (21 March 2016)
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DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dullard Sartori Pty Ltd ATF Dullard Sartori Unit Trust
CASE NUMBER:  1413688
DIBP REFERENCE(S):  BCC2014/969319
MEMBER:Miriam Holmes
DATE:21 March 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 21 March 2016 at 12:14pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 July 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).
The applicant applied for approval on 11 April 2014. 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.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because the delegate was not satisfied that the position associated with the nominated occupation is genuine.
Mr Carl Dullard, Director of Jetport Security Parking appeared on behalf of the applicant before the Tribunal on 11 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Jaswinder Singh, the nominee.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
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
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
In the nomination application the nominated occupation associated with the position is Customer Service Manager – night shift.
The delegate was not satisfied that the position associated with the nominated occupation of Customer Service Manager was genuine because
·The applicant position did not appear to have any staff reporting to the position and could not confirm that there is a management function with the role;
·The position reports to the Director/operations manager and taking into consideration the size of the business it is more likely the Director/operating Manager (or one of the 3 directors) would complete the duties associated with the occupation;
·On the information presented, the position would be mainly looking after the customers directly and answer and assist with customer queries. These duties do not indicate the nominated position would undertake the duties set out for a Customer service manager as described in ANZSCO.
·The contract does not include any duties to indicate the nature of the role as a Customer service manager;
·There is no evidence that the position will be involved in any managerial capacity within the business.
The Tribunal notes that in Cargo First Pty Ltd v MIBP [2015] FCCA 2091 the Court considered the meaning of r.2.72(10)(f). The Court held;
With those matters in mind, and in particular, the purpose of div.3A of the Act, what is required by sub-reg.2.72(10)(f) is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another. In light of this, the task of the Minister (and of the Tribunal on review of the Minister’s decision) is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation.
The Tribunal had regard to the tasks of the nominated occupation as specified in ANZSCO where the occupation of Customer Service Manager (ANZSCO 149212) is set out in the unit group 1492 Call or Contact Centre and Customer Service Manager.
The ANZCSO Code describes the role for the occupations in that unit group as follows:
CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS organise and control the operations of call or contact centres, review customer services, and maintain sound customer relations.
In relation to that Unit group the following tasks are listed:
Tasks Include:
odeveloping and reviewing policies, programs and procedures concerning customer relations and goods and services provided
oensuring operational efficiency within a call centre
oproviding direction and feedback to team members and assisting with recruitment
omanaging, motivating and developing staff providing customer services
oplanning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided
oliaising with other organisational units, service agents and customers to identify and respond to customer expectations
omay work in a call centre

Occupations:
149211 Call or Contact Centre Manager
149212 Customer Service Manager
Further, ANZSCO lists under the Customer Service Manager occupation the following tasks:
Plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.
The Tribunal had regard to the nature of the business, the information regarding the tasks of the position and the ANZSCO information regarding the tasks for the nominated occupation of customer service manager.
Operations of the business and duties of the nominated position
The applicant is a family owned business with 3 directors, Mr Carl Dullard, Mr Marcus Dullard and Mr Sartori. The applicant was originally operated by Mr Dullard senior and his sons took over the business about 5 years ago. The applicant operates a 7 day a week, 24 hour car park near to Tullamarine airport known as Jetport Airport Parking and Europcar Parking. Prior to February 2015 the applicant operated three car parks but they have now consolidated on to one site. There are approximately 15 similar businesses operating in competition in the same vicinity near Tullamarine airport. The site holds approximately 2800 cars. The business provides valet parking service and free shuttle service to and from the airport. The car park offers short term and long term car parking. The car park has approximately 300 cars coming in per day and 300 cars going out per day. There is also a cafe on site as well as a car and bus hire business on site.
In brief, Mr Dullard explained that the car park operated in the following way. A customer drives to the car park facility and is greeted by staff to assist with taking any luggage out of the customer’s car to the courtesy bus. The business operates 12- 15 seater buses which run on demand taking persons to and from the car park to the airport. After arrival at the premises, the customers are greeted to take out their luggage to the courtesy bus, the customer then goes on to the reception area. In the reception area there are a number of staff on the desk. The reception staff take the details of the customer’s booking registration and details of the likely return. The car is then taken by a staff member who parks the car in the car parking area. The customer will then take the courtesy bus and will be dropped at the airport. There would be approximately four or five staff working on the reception desk. When a person returns back to Melbourne, they ring the office to be collected by the courtesy bus. The staff will arrange the courtesy bus to travel to the airport to pick up the customer and bring the customer back to the car park. One of the car park attendants will then bring the car back to the reception area for the customer to drive away. During the day there will also be a fleet controller on the front desk who oversees the numerous buses that are running to and from the airport, the buses have GPS trackers on them. The business operates three shifts each day including the night shift which operates from 10pm to 6am.
Mr Dullard stated that the role that he is seeking to have approved is a customer service manager for the night shift. Mr Dullard explained that on the night shift, between 10pm and 6am, there are four staff working at the car park site in total. There is one staff member who is responsible for moving cars, there is one staff member who is responsible for driving the bus and also moving cars in the car park, and there are two staff on the reception desk undertaking desk duties. The nominated position is one of the staff that would be on the reception desk duties. Mr Dullard explained that there are two staff on the desk on Friday, Saturday, Sunday and Monday nights, but only one staff member on the desk on night shift on Tuesday, Wednesday and Thursday nights. Mr Dullard explained that on the Tuesday Wednesday and Thursday nights there was less customer traffic, and therefore only one person was required on the desk. He stated that the role of the customer service manager on the night shift would be located at the desk to greet late-night arrivals customers and late-night departure customers, to monitor other staff - the car park and the bus driver and the other person on the desk. He said the persons on the desk were responsible also for other administrative work, such as preparing paperwork for the next day, dealing with email bookings and bookings online. The duties of the customer service manager include transferring email bookings to their booking systems as they can have up to 120 bookings per day. He said they also have general office duties, such as rounding off the cash register, organising corporate accounts and ensuring there in order, and providing information for the bookkeeper for the corporate accounts. Mr Dullard explained that both persons who are on the desk at night are customer service managers and they share the role. He stated there is a need for the two of them from Friday to Monday nights, although one is the primary manager and the other one helps out, for example undertaking extra duties on the bus if they need extra bus services. He stated that one customer service manager would be more responsible for the office work related to the bookings and the transfers and organising the computer system for the morning, whilst the other one would be responsible for driving the bus as required. He stated that the customer service manager would also do a hand over to one of the directors when they started the morning shift at around 6am. He stated that the customer service manager reported to the two directors for hand over. Mr Dullard stated that the directors of the business were responsible for monitoring the performance of the customer service managers.
In the original organisation chart, the business was split into two divisions a car park division and a car rental division. In the car rental division there are 2 directors, Mr M Dullard and Mr Sartori (both directors). Mr Sartori oversees 20 bus drivers, 5 minor managers and 10 car wash staff. In the car park division there were 2 directors – Carl Dullard (director) who oversees a motor mechanic (who is awaiting a sc457 visa) and Sam Dullard (director) who oversees the 2 customer service managers. One of the customer service managers (Mr Singh) oversees 10 car park attendants and 10 parkers. In the original organisation chart the nominee (Jaswinder Singh) did not over see any staff. In the revised organisational chart provided to the Tribunal in October 2015 the chart is very similar. The most significant change is that the position held by the nominee is now responsible for the 10 car park attendants and the 10 parkers. At the hearing, the Tribunal sought to clarify why there was this change in the nominee’s responsibilities depicted in the organisation charts.
The Tribunal asked Mr Dullard about the organisation charts that had been provided during the review process and the application process. Mr Dullard stated that the organisation charts were not accurate and were misleading and needed to be updated. He said the charts reflected arrangements during the day shift. During the hearing, Mr Dullard stated that Mr Sam Dullard had recently passed away and that there was no longer a person in that position. He stated that the persons on the desks during the dayshift were classified as minor managers on the organisation chart. Mr Dullard stated that he believes the organisation chart was prepared for the purposes of an application for another customer service manager. He said there were 10 car parking attendants during the day, however at night there was only one car parking attendant. He stated that car park attendants are responsible for taking the cars from customers and moving them out the back to the car park and then when required by a customer bringing them from the car park back to reception. The role of the parker was to move cars as required in the back of the car park. At night there was only one parker who also was the bus driver.
After the hearing a new handwritten organisation chart was provided showing the three directors and 5 customer service managers, who were responsible for 20 bus drivers and 20 car park valet and attendants. The Tribunal did not consider this organisation chart accurately reflected the supervisory arrangements in the business, after having regard to the oral evidence of Mr Dullard. Further, in light of the oral evidence of Mr Dullard, the Tribunal did not accept that the Customer service manager – night shift, had management responsibility for 20 bus drivers and 20 car park attendants and valets.
The applicant has provided a number of contracts of employment in relation to the position. The contract dated 9 April 2014 and headed Employment Agreement refers to the duties in the job description – which is discussed in more detail below.
On 4 November 2015 the Tribunal received a contract of employment dated 28 October 2015. The contract of employment dated 28 October 2015 listed the duties of the position. These duties were different to the duties listed in the position description provided to the Department and to the Tribunal. Whilst it lists duties in the ANZSCO task list, it also included a duty to ensure to maintain records of stock level and financial transactions, and a duty to be able to arrange and purchase and price of goods according to budget. Mr Dullard was unable to explain to the Tribunal about the creation of this document. At first he stated that it was a photocopy of an old document. The Tribunal noted that the document was very different to the previous contract that had been provided to the Department. Mr Dullard said that he was out of his depth and he would have photocopied something on file but he was not sure where the signature came from and it appeared to be an old signature. He stated he did not contact the nominee about signing this new contract dated 28 October 2015. He believes that document reflects what the conditions would be going forward. In relation to the duties in the contract which included ensuring to maintain records of stock level and financial transactions and the ability to arrange and purchase and price goods according to budget, Mr Dullard said he had no idea about what these items were about and could not explain why they had been included as duties in the document. In light of Mr Dullard’s evidence in relation to this document, the Tribunal placed no weight on the contract dated 28 October 2015.
After the hearing, on 20 November 2015, the Tribunal received another contract of employment dated 28 October 2015, described as the revised agreement. The revised document has some changes, notably removing the duties to ensuring to maintain records of stock level and financial transactions, able to arrange and purchase and price of goods according to budget, although retains a duty to “ensure to maintain records financial transactions”.
The Tribunal had regard to the position description that was provided with the nomination application to the Department and to the Tribunal on review as the position description. The position description provided during the nomination application process and the review application process lists a range of duties including – greeting customers, ensuring the special needs of the customer are considered, select and train and supervise personnel, plan and implement after sales service to follow up satisfaction, review compliance procedures and report on faulty products, follow occupational health and safety, perform frequent checks of customer service, resolve complains concerning service, develop and review policies programs and procedures ensure operational efficiency within car parking facility, provide direction and feedback to team members, manage, motivate and develop staff providing customer services, liaise with organisational units , service agents and customers. The Tribunal notes that a number of the duties are described in identical terms to the tasks listed in the ANZSCO Code for the occupation of customer service manager.
The Tribunal asked Mr Dullard about this position description.
·In relation to the duty of ensuring special needs of customers is considered Mr Dullard explained this involved if a customer questioned where toilet was, that the customer service manager would advise him, he would also liaise with the customer about any car washing or car service options that are available, any dog or cat drop-off service required.
·In relation to the ability to select and train and also supervise personnel duty, Mr Dullard explained that if he needed a person to work on the night shift then he would need someone to have to train them and it would be the responsibility of the customer service manager on the night shift to train a person, either in his own job or in other tasks that were undertaken on the night shift.
·In relation to the duty to plan and implement after sales services and to follow-up customer satisfaction, Mr Dullard explained that the customer service manager at night does not do that and it is not relevant.
·In relation to the reviewing of compliance procedures and reporting on faulty products and deficient services, Mr Dullard explained that this related to checking that the car wash that had been undertaken that the customer was happy with the car wash. Further if there was a complaint, then the customer service manager was required to document the complaint for the director’s attention and where possible to deal with complaints at the time. For example, if there is a complaint about the quality of the car wash to offer a free car wash on the next visit to the car park. Mr Dullard explained if the complaint was serious then the matter would be referred to a director, and the director would be responsible for taking over and looking after the issue. For example, if there was damage to a vehicle whilst it was in the car park then the director would take responsibility for this.
·In relation to the health and safety requirements this was applicable to all staff.
·In relation to the requirement to perform frequent checks to ensure consistent high quality of service, Mr Dullard explained that the customer service manager’s role in this regard was to keep an eye on the bus pickup and drop-off times to ensure that persons were picked up within five minutes and there was a timely service, and to assure the presentation of the car was up to standard, including that the car had been washed down, noting that when cars are parked under cover they did have issues with birds and dust on the cars.
·In relation to the item of developing and reviewing policies, programs and procedures concerning customer relations and services provided, Mr Dullard stated that at night time there was a different service. He said during the day there was a lot more service and they had to provide a fast service. He said at night, as a director, he was concerned that the service would drop-off and the role the customer service manager was to ensure that service was up to standard and customers were handed well. He stated that he wanted to ensure that the business was operated and standards were maintained and the customer service manager was overseeing this. He hoped that the customer service manager would operate as a director in this regard.
·In relation to the item about ensuring operational efficiency within the car parking facility, Mr Dullard described that the responsibility of the customer service manager is to make sure that the person moving the cars and the person driving the bus on night shift were operating efficiently.
·In relation to the item regarding providing direction and feedback to team members and assisting with recruitment, Mr Dullard explained that if there was someone who required to be trained at night then the customer service manager would be responsible for this and to give feedback about their performance to the directors.
·In relation to the item of managing, motivating and developing staff, Mr Dullard explained that the responsibility would be to keep an eye on the staff and if there is an issue then one of the customer service managers would have to take a step forward and take control. He stated although, on Tuesday through to Wednesday, there would only be one customer service manager on duty.
·Finally in relation to the item of liaising with other organisational units, service agents and customers to identify and respond to customer expectations, Mr Dullard said that they do have travel agents come in and provide feedback, and so it would be to talk to those travel agents and customers regarding their experience.

In relation to the dayshift, Mr Dullard explained that there would be four persons on the desk including one director and the fleet controller, and two staff undertaking check ins and managing the bookings, and taking phone bookings. Mr Dullard explained that if a director was not available at the desk, then the fleet controller would take responsibility for controlling the desk.
When the Tribunal asked Mr Dullard about the nominee’s employment in 2015. Mr Dullard was unable to recall when the nominee had worked in 2015, although knew the nominee had travelled back to India in May 2015. Mr Dullard stated that in the period that the nominee has not been in Australia they have not filled the position of customer service manager with another person rather they have asked the others on the night shift to step up. He stated that they have advertised though they have not found any one suitable. The Tribunal notes that the nominee was offshore at the time of the hearing.
The Tribunal spoke with the nominee by teleconference in relation to the role. The nominee explained that over time after working at the business, he was given responsibility as a manager. The nominee stated that he did work on the night shift, however he later moved to the morning shift. He stated that he worked on the night shift for approximately 3 to 4 months and that he last worked with the business in May 2015 as customer service manager on the morning shift. He stated that he worked on the morning shift for about a month after returning from his marriage in India. He describes the morning shift as working between 6am and 2pm. He stated his role as a manager was to greet customers, and supervise other workers when cars came in to the site. The nominee confirmed that he stopped working for the business in May 2015 as he returned to India as his father passed away. He also stated that earlier in 2015 he returned to India for his wedding and did not work for approximately 2 ½ months. The nominees stated that if he returned to Australia in the customer service manager role he would be working on the morning shift or whatever time is required. The nominee described the role of the customer service manager as follows - to provide service to customers, to deal with any car accidents, to greet customers, to deal with special needs, help resolve complaints, ensure a high quality of service, compare rates with other car parks to give a good price to customers, to supervise car park attendants and provide feedback about other workers to the directors. He stated that his main role was to ensure that customers are satisfied.
Under the procedure in section 359AA, the Tribunal invited Mr Dullard to comment on the evidence by Mr Singh that he had worked the morning shift prior to leaving Australia. After a short break, Mr Dullard responded and stated that the nominee did work both morning and night shifts in the previous periods. However going forward the role is a role as a customer service manager at night. Mr Dullard stated that he had spoken with the nominee about the role and the nominee had indicated that he would do any hours that were required Mr Dullard indicated that perhaps it was his fault, that he had not made clear to the nominee the offer they would be making to him was to be employed in the night shift role and perhaps he has not made this clear to the nominee in their discussions.
During the hearing, the Tribunal expressed its concern that the role as described by Mr Dullard as a customer service manager role was more in the nature of a night supervisor role. Mr Dullard replied that it was a family business, and they keep it much in-house. He stated that the brothers manage the business themselves and there was enough of them to get through. He stated that they needed someone to look after the night shift and this is a person that they can rely on in the customer service manager role. He stated this role is shared between Friday and Monday night but Tuesday to Thursday night there was only one customer service manager. He needs someone to fill the role and there was no one doing the job. The Tribunal again expressed its concern as to whether the role as described by Mr Dullard was in reality a manager role. Mr Dullard explained the customer’s experience was important and the only person really monitoring and providing feedback is the customer service manager, as there is no director on-site at night. He stated the really big decisions do come back to the directors and there would be no new management decision, such as structure made at night without the director’s okay. He stated that the nominee was good at the job and they would like to have him back. Mr Dullard went onto state that the job was pretty simple but he needed someone with good skills and someone who they can trust to run the business overnight.
Skills
In ANZSCO the following skills are listed under the Unit Group for Customer Service Managers;
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
In relation to the skills and qualifications for the position Mr Dullard gave evidence that the position was not a difficult role and it required basic computer skills, driver’s license, good English and communication skills, ability to direct staff and also honest and have integrity. Later in the hearing Mr Dullard said it was not a highly skilled role, he said it was about parking cars and he needed someone with honesty and integrity. He referred to having been previously robbed.
The Tribunal did not consider the skills described by Mr Dullard demonstrated that a suitable person for the nominated position required a degree, diploma or advanced diploma, as set out in ANZSCO as an indicative skill level.
Efforts to recruit
The Tribunal took into account the efforts to recruit a person for the position. Mr Dullard stated that he did advertise the position for quite a while and that he had no success. He advertised through Matchworks (job service recruiter), the Leader newspapers and advertisements at local universities in Glenroy and Broadmeadows. He stated that he had a lot of trouble and the previous person who held position had robbed the business over an extended period. Mr Dullard stated that the nominee came along and asked for employment and they discuss sponsorship and he decided that he would sponsor the nominee for the position. Mr Dullard spoke positively about workers with an Indian ethnicity and their reliability and honesty. Mr Dullard stated that this role of night shift manager was not a new position but had been in existence prior to the nominee occupying the role.
Salary
The contract of employment sets the annual wage at $54,000.
The Tribunal had regard to the salary as set out in the Australian Government’s job outlook website which indicates the average income for a customer service manager is approximately $66,000 per annum. The Tribunal asked why this position was paid $54,000 per annum under the contract and Mr Dullard explained that he did not pay above the award and this was based on award rates. He said that he paid in accordance with the Car Park award but could not provide any further detail regarding the pay rate of the nominee or any other staff member and said these details were known to Ms Cummins, the payroll officer. Mr Singh confirmed to the Tribunal that his salary was $54,000 per annum.
During the hearing the Tribunal contacted Ms Cummins. Ms Cummins, stated she was the HR and payroll officer and confirmed that the nominee was paid $54,000 per annum. She could not advise the Tribunal which classification under the Car Parking Award that the nominee was paid, although described the award as MA00098. She said she they did not list the Award classification on the computer system. Ms Cummins could not tell the Tribunal, without regard to the computer system, the level of pay of the other staff on the night shift. The Tribunal looked up the Fair Work Commission website and notes that award number MA 000098 pertains to the Ambulance and Patient Transport Industry Award 2010 whereas MA00095 was the reference to the Car Park award 2010.
Mr Dullard was unable to tell the Tribunal what the fleet controller was paid. Mr Dullard stated that during the day there were two staff who were working on the desk and they are on about the same pay about $54,000 per year. Mr Dullard stated that he paid the award rates under the car parking award and he thinks they are a category two but he is not sure what wages were paid and under what category as he is not responsible for this but leaves it to the HR Officer. Mr Dullard stated that two women on the day shift were casual staff and he think one is paid $57,000 per annum.
After the hearing, the applicant provided information regarding the Car Parking Award 2010. The Tribunal notes that the Award sets out the pay for car parking officers levels 1 – 3 at various rates. The classifications are explained in Schedule B to the Award and lists the tasks associated with each classification and it does not appear to cover the duties as described by Mr Dullard for the position of Customer Service Manager – night shift.
The Tribunal also received, after the hearing, details of another employee of the business employed as a customer service manager and notes that she is paid $57,121, although this amount includes additional pay for additional duties not described to the Tribunal.
The job outlook website indicates the usual range for salary in the position of customer service manager is $12790 per week (or $66,040 per annum). The applicant provided 2 advertisements – one dated 2 October 2013 on the Seek website for a client liaison executive/customer service co-ordinator offering a position in Melbourne for $50,000 to $64,999 working in the construction industry. The customers were to be managed from deposit to handover of the residence. The other advertisement from Seek website was for a customer service manager for an on line business offering between $55000 to $60,000 per annum plus superannuation and bonuses. The customers were from lobbyists to small medium businesses. The Payscale website provided that the salary for a customer service manager in Australia ranged from $45,789 to $87,567 with a bonus up to $9,954.
Other materials
In the genuine position explanation letter dated 14 June 2014 the applicant explained that the main priority was to have customer service managers who can look after customer satisfaction. The customer service managers are employed to keep customers happy. These officers will pay attention to the customer needs and ensure they are attended and dealt with in the correct manner. He states they are necessary and the “backbone” of the business. Mr Dullard notes “ It’s really hard to operate with customer service manager as they look into many components of my business which ensure the business runs effectively and is a success. From basic, answering questions to assisting customers in their queries.”
In the submission lodged with the Tribunal after the hearing, the representative notes that the sponsor considers the nominee will be acting in the place of the directors of the business when he is undertaking the role and submits the nominated position is a management position as opposed to a supervisory position. The representative refers to the size of the business and its 24/7 daily operation and with 2800 car spaces and thousands of customers per month. The representative also refers to the competitive nature of the industry and the importance of customer service to the success of the business. The representative submitted that where the sponsor is able to make a business case for the genuine need for the position within the business, it is unreasonable to deny it opportunity to fill the role to further its business – Mr Dullard is merely trying to fill an important vacant position with an employee whom he knows and trusts and who is suitably qualified to undertake the responsibilities of the position.

Overall assessment
The Tribunal has considered the duties of the position, the salary of the position, the skills for the position and the operation of the business and is not satisfied that the position is a customer service manager as described in ANZSCO.
The duties as described by Mr Dullard indicate that the position the applicant is seeking to be approved is more of a night supervisory role and not a manager position. The Tribunal did not consider that the role had the aspects of a management position involving planning and controlling the customer services, rather the role was to supervise staff and to ensure customer satisfaction including service delivery being maintained to customers at night, and to responding to any complaints where possible and referring any significant matters to the directors. The role also involves paperwork such as transferring bookings to the booking system, ensuring the corporate accounts are in order and general office duties. The Tribunal did not consider that the role had attributes applicable to a manager, such as developing and reviewing policies related to service delivery or providing direction and assisting with recruitment, planning and implementing after- sales service or liaising with other organisational units. The Tribunal notes the tasks in the job description were the same as the AZSCO code, however after discussion with Mr Dullard it is clear that the position did not perform some of the listed duties (for example, planning and implementing after sales service to follow up customer satisfaction, and modify and improve services provided) and other responsibilities of the position were at a lower level, and essentially related to customer service and staff monitoring, and sometimes training new staff. They were not higher level responsibilities involving planning, reviewing and organising the operations for customer service and relations. Further Mr Dullard himself said the job was not a highly skilled job and the skills he described to the Tribunal did not involve the skills required of a manager and were skills more in the nature of a supervisor or customer service officer. There was no evidence to indicate that a higher level qualification including a diploma was required to perform the duties of the position. Further the Tribunal notes that this occupation is grouped as part of the major group one manager to be a higher level occupation, but on the Tribunal’s assessment the duties and skills for the position as described by Mr Dullard do not fall within that category.
The Tribunal acknowledges the position is necessary to the operation of the business and that Mr Dullard believes the nominee is the appropriate person for the position. Further, the proposed salary is similar to the salary paid to another person in the role of customer service manager, although the salary is substantially less than the occupational average as set out in the Job outlook website and at the lower end of the salary range as set out in Payscale. The Tribunal had regard to the submission that the person in the customer service manager – night shift position on the night shift was on the premises in place of the director, however the Tribunal does not consider that being placed in a position of trust by the applicant to supervise the night shift elevates the role to a customer service manager occupation.
After having regard to the matters above, on balance, the Tribunal is not satisfied the position is the nominated occupation of customer service manager as described in ANZSCO. The Tribunal is not satisfied that the position is truly what it purports to be. Therefore, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine.
For these reasons the requirements of r.2.72(10)(f) are not met.
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
The Tribunal affirms the decision not to approve the nomination.
Miriam Holmes
Senior 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).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
Note   The meanings of adverse information and associated with are explained in subregulations 2.57 (2) and (3).
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination 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 at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2016] AATA 3579

21 March 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Natural Justice

Procedural Fairness