1504839 (Migration)

[2016] AATA 4596

1504839 (Migration) [2016] AATA 4596 (31 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  THE TRUSTEE FOR A1 JETPORT PARKING UNIT TRUST

CASE NUMBER:  1504839

DIBP REFERENCE(S):  BCC2015/701417

MEMBER:L. Hawas

DATE:31 October 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 31 October 2016 at 1:02pm

STATEMENT OF DECISION AND REASONS

INTRODUCTION

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 March 2015 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 4 March 2015. 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 nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination because the applicant did not satisfy r. 2.72(10)(f). The delegate found that a customer service manager was not necessary for the operation of the applicant’s business, and was not ultimately satisfied that the position associated with the nominated occupation was genuine.

4. A director of the applicant company Emad Ghali appeared before the Tribunal on 6 September 2016 and gave evidence and presented arguments. The Tribunal also received oral evidence from Jashan Tusharbhai Shah, who is the applicant's nominee and current employee.  

5. The applicant was represented in the review by its registered migration agent. The representative attended the hearing.

6. The issue in this review 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).

7. For the reasons set out below, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine, or that the requirements of r. 2.72(10)(f) have been satisfied. The Tribunal has decided to affirm the delegate’s decision to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE – POSITION MUST BE GENUINE

   The relevant test

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

9. In Cargo First Pty Ltd v MIBP[1] the Federal Circuit Court examined the operation of clause 2.72(10)(f) and expressed the relevant test at [30] as follows:

   ‘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.’

   [1] [2015] FCCA 2091 at [30] per Judge Smith. The decision at first instance was upheld on appeal in Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30, and the construction of r. 2.72(10)(f) at first instance was endorsed at [36].

10. The approach then to determining whether the position is genuine under r. 2.72(10)(f), or in the words of the court in Cargo First determining whether the position really is what it purports to be, requires the Tribunal to undertake a qualitative analysis of the duties and tasks the nominated employee actually discharges (or is to discharge) in the nominated position, and to compare that to the occupation described in ANZSCO. The necessary qualitative analysis requires more than just examining whether the duties and tasks the employee discharges include the majority of those referred to in ANZSCO.  

    ANZSCO – What is a customer service manager?

11. In its nomination application, the applicant has nominated the nominee as a customer service manager.

12. The concept of a ‘manager’ is central to the occupation of a ‘customer service manager’. That is evident from the name of the occupation.

13. The Shorter Oxford Dictionary[2] relevantly defines a manager as follows:

    ‘A person whose office it is to manage an organisation, business establishment, or public institution, or part of one; a person with a primarily executive or supervisory function within an organisation.’

    [2] The New Shorter Oxford English Dictionary, Oxford University Press, 4^th ed 1993.

14. The online edition of the Oxford Dictionary defines a manager as follows:

    ‘A person responsible for controlling or administering an organisation or group of staff.’[3]

    [3] >

    The dictionary definitions of a manager describe largely executive functions that entail control and supervision as opposed to say functions with an operational emphasis.

15. In ANZSCO the occupation of customer service manager (149212) is set out in the unit group 1492 Call or Contact Centre and Customer Service Manager.

16. 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.’

17. The following tasks are listed for that unit group:

    ‘Tasks Include:

    •  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

    Occupations:
    149211 Call or Contact Centre Manager
    149212 Customer Service Manager’

18. 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.’

19. The focus of a customer service manager as defined in ANZSCO, and as it is understood in ordinary English usage, is on supervising, controlling, administering, and planning the relevant customer service functions of the business. The ANZSCO description contemplates a business that entails relatively complicated or high volume customer interactions with an element of ongoing after sales service sufficient to justify a genuine need for a manager focusing on customer service functions.

    The delegate’s decision and summary of the Tribunal’s ultimate decision

20. In the decision record, which was given to the Tribunal in the review, the delegate found that on the organisational chart submitted with the application, the proposed customer service manager would be supervising only one full time employee, being a full time customer service officer. The other 21 employees the customer service manager was to supervise were casual customer service officers, parkers, and drivers. The delegate noted – correctly in the Tribunal’s view – that in many small or medium size enterprises such as the applicant, the necessary customer service functions were ordinarily performed by general managers or employees charged with a more general function. Often, the small scale of the business does not justify a genuine need for a specialised customer service manager. Here, according to the organisational chart, the applicant had a general manager, an operations manager, a marketing and advertising co-ordinator, and one full time and nine casual customer service officers who could discharge the necessary customer service functions. The applicant did not genuinely require a dedicated customer service manager in addition to those other positions. The delegate also noted that the relatively simple operation of a car park, which provided a more customised valet service, did not support a genuine need for a dedicated customer service manager. The business was not sufficiently complex to justify such a relatively high level role, which contemplated more complicated customer interactions.

21. For the reasons set out below, the Tribunal agrees with the delegate’s conclusion that the position associated with the nominated occupation is not genuine within the meaning of r. 2.72(10)(f), and the Tribunal agrees with most of the delegate’s reasons for the conclusion.

    The applicant’s operations and the duties of the nominated position

22. The applicant company A1 Jetport Parking Pty Ltd acts as the trustee of the A1 Jetport Parking Unit Trust, and it has brought this application in that trustee capacity. The applicant has two directors, Emad Ghali and Emir Ghali. They are the general manager and the operations manager of the applicant respectively.

23. In 2011, the applicant purchased land in Tullamarine upon which it proposed to establish a long and short term car park business to service airline travellers using the nearby Melbourne airport. The applicant subsequently performed asphalting and concreting works on the land, erected large shade cloths to cover the proposed parking areas, installed fencing, gates and lighting, and constructed an office. The applicant’s car park business commenced in 2011 under the name ‘A1 Airport Parking’.

24. The applicant’s car park operates 24 hours a day, seven days a week. It offers valet parking, a shuttle bus service to and from Melbourne airport, and an optional car wash service performed while customers’ cars are in the applicant’s possession.

25. Emad Ghali (the director who appeared at the hearing) described the operation of the applicant’s business as follows:

    (a)A customer usually books parking online using the applicant’s online booking portal for parking sometime in the future (usually corresponding with the customer’s proposed air travel);

    (b)The customer arrives at the applicant’s carpark at the nominated parking time and leaves the car in a dedicated drop zone at the front of the applicant’s carpark;

    (c)The customer then enters an office at the front of the applicant’s premises and speaks to the reception staff. The reception staff take the customer’s keys and check in the customer’s car;

    (d)The customer then returns to the front of the premises where other staff assist the customer to load luggage on to a shuttle bus to the airport;

    (e)The customer is bused to the airport and the car is parked. The parking of customers’ cars is organised according to the proposed date of customer collection. The parking is not random and requires some coordination;

    (f)The applicant’s shuttle bus will then collect the customer at the nominated return time and drive the customer back to the applicant’s carpark;

    (g)Before the customer arrives to collect the car, the applicant’s staff will have retrieved the customer’s car from the carpark and parked it in the collection zone at the front of the applicant’s premises. The applicant’s staff then assist the customer to load the luggage into the car;

    (h)The customer finalises the transaction with the reception staff in the applicant’s office before driving away; and

    (i)The customer has an option to have the car washed and cleaned while it is parked with the applicant. If the customer chooses this option, all washing and cleaning is performed on the applicant’s premises by the applicant’s staff.

26. During the hearing, the Tribunal discussed the applicant’s organisational chart with Mr Ghali, being the same chart that was before the delegate and the Tribunal at the hearing. With reference to the organisational chart Mr Ghali said that:

    (a)The general manager’s primary role (which he discharged) was to ‘make sure everything ran smoothly’. The general manager oversaw accounts, generally communicated with Melbourne Airport and the local council about the applicant’s business operations, and entered into the supply and other agreements necessary for the operation of the applicant’s business. The general manager also made decisions about the future direction of the business such as deciding on areas of expansion;

    (b)The operations manager sits under the general manager on the organisational chart. Mr Ghali’s brother Emir Ghali was the operations manager. The operations manager administers the staff rosters, oversees the payroll and employee pay, monitors car wash stock levels and orders stock when necessary, monitors the operations of the business website and ensures that it remains current, and generally oversees the operations of the applicant’s business;

    (c)The applicant no longer employed a marketing and advertising co-ordinator. That role was necessary for the start-up phase of the business. The business has been trading since 2011, and a marketing co-ordinator is no longer necessary;

    (d)The customer service manager sits under the operations manager on the organisational chart. The duties of the customer service manager (the nominee) will include the following:

    (i)Bus drivers were the main interface with customers. The customer contact with the reception staff (or the customer service staff) was transient and limited to checking customers in and out and taking phone calls from customers. The drivers spent 10 to 15 minutes with customers on the trips back and forth from the airport. Accordingly, a large part of the nominee’s focus would be on training drivers to deal with customers properly;

    (ii)Dealing with customer complaints such as complaints about damaged cars. In the instance of a damaged car, the nominee will take details of the complaint, speak to management about the issue, retain a panel beater to undertake repairs, and follow up on whether the customer is satisfied;

    (iii)In instances of customer complaint, the customer service manager will be ‘the link’ between the customer and management;

    (iv)Oversee the operations of the business when the general manager and the operations manager are absent;

    (v)Advise on and formulate customer service policies to be introduced. But Mr Ghali struggled to describe in detail what kind of specific customer service policies the nominee could formulate for a car park that the general or operations manager could not easily formulate and implement. Mr Ghali gave the example of a ‘feedback box’, which the nominee had suggested. Customers can make written complaints or comments on the applicant’s service and leave them in the feedback box;

    (vi)Speak to customers to make sure they are content with the applicant’s service and ‘massage things’ where necessary;

    (vii)Oversee the performance of customer service staff, and advise customer service staff how to improve their customer interaction where the customer service manager considers the officer’s interaction with the customer was not proper or could be improved;

    (viii)Seek feedback from customers about their experience and report the feedback back to management; and

    (iv)Train the customer service staff.

27. Mr Ghali said that the organisational chart that was before the delegate, and before the Tribunal at the hearing, was no longer accurate. He gave some evidence about how the applicant’s business was now organised. After the hearing, the representative submitted a new organisational chart that was consistent with the evidence Mr Ghali gave about how the business was now organised. Mr Ghali’s evidence and the new organisational chart provided that the applicant now employed (or would employ if it succeeds on review):

    (a)One full time general manager;

    (b)One full time operations manager who sits below the general manager;

    (c)One full time customer service manager (being the nominee) who will sit below the operations manager;

    (d)Sitting below the customer service manager are:

    (i)Twelve casual bus drivers who drive the shuttle buses back and forth from the airport;

    (ii) Nine casual front office staff who greet customers, check in their cars, and check out customers when they collect their cars; and

    (iii)Seven casual parkers who park customer cars on customer arrival, and then retrieve customer cars to have them ready for collection at the nominated time.         

28. According to Mr Ghali, the nominee currently worked casually for 20 hours a week. He trained staff, took feedback from customers about their experience with the applicant, reported the feedback from customers back to management, and followed up with any action to be taken in response to customer complaints and feedback. Other than some reference to formulating customer service policies such as the ‘feedback box’ (referred to above), Mr Ghali was not able to describe with any clarity what the nominee would do as a full time customer service manager that was materially different to what he was doing now.

29. The nominee’s proposed role as customer service manager as Mr Ghali described it is a broad operational role with some focus on customer service, and with some supervisory dimensions.  Tellingly, during his evidence, Mr Ghali said that the nominee had been with the applicant since 2011 when the applicant commenced business, and he knew the operation of the applicant’s business intimately. Mr Ghali said that the applicant needed the nominee to make sure that its business operated properly when he (as general manager) and his brother (the operations manager) were not there. Mr Ghali gave evidence that he needed the nominee to be at work when ‘we’ were not.

30. The applicant no longer employed a dedicated customer service officer who would report to the nominee as customer service manager as was depicted on the old organisational chart. Mr Ghali described the role of the former full time customer service officer (‘Christine’) in strikingly similar terms to the role the nominee would be performing as the customer service manager. When pressed, Mr Ghali said that if the nomination were to be approved, the nominee would perform ‘Christine’s’ former tasks as the full time customer service officer as well as the role of customer service manager.

31. The Tribunal asked Mr Ghali why employing the nominee as a full time customer service manager was necessary for the applicant’s valet airport parking business, and how the nominee would improve the applicant’s business. Mr Ghali said that customer service was an important component of the applicant’s business and the applicant had high customer service reviews. Employing the nominee as a full time customer service manager to focus on the existing customer base would keep those customer reviews high. The general manager and operations manager would then be free to pursue new customers and corporate accounts.

32. After the hearing, the representative submitted to the Tribunal the applicant’s 2015 profit and loss statement. That document stated that the applicant turned over $2,616,655.56 in 2015 from which it earned $486,713.69 in profit.

1. Mr Ghali said that if the nomination were to be approved, the nominee will work full time (38 hours per week) across all shifts (morning, afternoon, and night) according to a roster.

2. Mr Ghali said that the applicant was yet to establish the proposed car hire business referred to in the delegate’s decision. The applicant was in negotiations to purchase the adjoining land. The applicant would establish a car hire business if it can secure the adjoining land.

3. At the conclusion of Mr Ghali’s evidence, the Tribunal heard evidence from the nominee.

4. During the hearing, the representative tendered a resume on the nominee’s behalf. The nominee confirmed that the resume was accurate. According to the resume, in 2006 the nominee graduated from Gujarat University in Ahmadabad in India with a Bachelor of Commerce. He obtained a Diploma in Hospitality Management from Holmes College in Melbourne in 2009, and a Diploma in Business Management from the Australian Training and Education Centre in Melbourne in 2013.   

5. The nominee started work with the applicant in 2011 as a car parker. Since then he has worked as a bus driver, on the reception desk, and in customer service.

6. The nominee said that in his current role, he mans the front reception desk from time to time. He looks after customer complaints and trains the reception (or customer service) staff in proper customer service. He briefs the reception staff on the products, packages, and promotions (or deals) the applicant can offer, and he gives them guidance on how to offer the products to customers. He deals with day-to-day customer issues and complaints. If the applicant receives a complaint from a customer, the applicant will follow up on the complaint.

7. The Tribunal asked the nominee to describe what he understood he would do day-to-day as a full time customer service manager. The nominee said that he would look after customer issues and complaints. In the instance of customer complaint, he would take feedback from the customer, deal with or resolve the complaint and then report back to management. The nominee said he would instruct staff that in the event of customer complaint, they should not try and resolve the complaint themselves but ask him to intervene to ensure the complaint is resolved properly. 

8. On questioning from the Tribunal about current customer service policies, the nominee said that the applicant did not currently have any written customer service policies. The Tribunal asked the nominee what kind of customer service policies he would look to formulate and implement as a full time customer service manager. The nominee struggled to identify customer service policies he might formulate. His answers were focused more on formulating products to be offered to customers. The nominee said that he would determine what products, packages, and discounts the applicant should offer to particular corporate customers and customers generally in order to secure their business. He would then instruct the reception staff about the detail of the products and discounts, and instruct them how to offer those products to customers. The nominee said that he did not propose to produce any written documents describing those products, policies, or procedures.

9. The nominee said that he would report to the general manager and the operations manager. Ten or 11 reception staff would report to him. The drivers would also report to him in the sense that he would train them in proper customer service. That training would be focused on instructing the drivers how to speak to customers during trips to the airport (be pleasant etc).

10. The nominee would not be hiring staff himself (or interviewing potential employees). The managers above him would do that. However, he would recommend to senior management whether further staff should be hired.

11. According to the nominee, he knew every part of the applicant’s business intimately, and that it was important to the applicant for him be allowed to remain employed there.

12. Like Mr Ghali, the description the nominee gave about his current day-to-day role was similar to the role he described as the proposed customer service manager as he understood it. But unlike Mr Ghali, the role(s) that the nominee described had some focus on formulating packages and products to offer to customers.

13. During the hearing, the applicant submitted a table setting out how many cars the applicant parked monthly since 2013. According to the table, in July 2016, being the latest monthly figure on the table, the applicant parked 30,674 cars. In July 2015, the applicant parked 24,908 cars. It is not necessary to analyse the table in any detail. It goes to showing that the applicant parks cars on a relatively large scale, and that the applicant’s volume of cars parked is growing over time. 

    The salary for the position

14. Mr Ghali said that the applicant would pay the nominee a salary of $53,900 per annum (plus superannuation). That was confirmed in the documents the representative sent to the Tribunal after the hearing. During the hearing, the Tribunal told Mr Ghali that according to the Job Outlook website the average salary for a customer service manager was a little under $62,000 per annum (plus superannuation). Mr Ghali said that the applicant’s accountant had researched the appropriate salary and recommended the salary to the applicant as appropriate.

15. The documents submitted to the Tribunal after the hearing suggested that the appropriate salary for a customer service manager working in Melbourne was anywhere between $43,060 and $93,936 (plus superannuation).

16. The Tribunal considers that on the evidence available to it, a salary of $53,900 is slightly lower than that commensurate with the salaries of other customer service managers. The Tribunal considers though that the proposed salary is not so far below an appropriate salary for a customer service manager so as to render the proposed position relevantly disingenuous for the purpose of r. 2.72(10)(f). Given the findings set out below, the proposed salary being slightly less than what it ought to be did not feature much in the Tribunal’s final analysis. The Tribunal considers that in the end the role that the nominee will discharge with the applicant is not genuinely that of a customer service manager as ANZSCO describes it for reasons other than salary.

    Findings on genuine position

17. On the evidence before it, the Tribunal is not satisfied that the position the nominee proposes to discharge with the applicant will genuinely be that of a customer service officer as ANZSCO describes that occupation.

18. ANZSCO contemplates a business operation with relatively high volume and complicated customer interactions, which require some level of ongoing customer service after the good or service has been provided. The role of the customer service manager within such a business entails specialised management responsibilities focused on planning, reviewing, and organising customer service policies and procedures, which staff are then to follow in order to provide the levels of customer and after sales service the business requires. 

19. On the evidence, the applicant’s business does not entail complicated customer interactions sufficient to justify a genuine need for a specialised full time customer service manager as contemplated in ANZSCO. Further, on a qualitative analysis of the nominee’s proposed position with applicant, the proposed position is not that of a specialised manager focused on formulating and implementing customer and after sales service policies and procedures for other staff to follow. The proposed position is a more general one. Those two matters are taken up below.

20. The analysis begins with the nature of the service the applicant provides. Mr Ghali described a service that involved relatively simple, brief and transient customer interactions and limited ongoing after sales service. On arriving at the applicant’s premises, the customer has a brief encounter with the reception staff to check in the car. The customer then spends 10 or so minutes on a bus with a driver on the way to the airport. While the customer is away, the applicant provides a passive service to the customer. The applicant simply provides a place for the customer to park, and the applicant takes on the legal obligations of a bailee for reward. If the customer choses to have the car washed while parked, the applicant’s service becomes active for that customer but not significantly. When the customer returns to Melbourne, he or she spends another 10 or so minutes with a driver on the way back to the applicant’s car park. The customer then has a further brief encounter with either the applicant’s parking or reception staff before driving away.

21. The applicant’s aftersales service or care for the particular parking (or washing) service that it supplied to the customer ordinarily ends once the customer leaves the applicant’s premises. The applicant’s only further contact with the customer ordinarily would be to deal with discrete matters such as a specific complaint about say a damaged car, to obtain feedback on the customer’s experience, or to offer future (or fresh) services to the customer. But for the instance of a damaged car (or something similar), such after sales contact is not necessary for the ongoing maintenance of the parking (or wash) service the applicant has supplied to the customer. The after sales contact is largely optional and focused on enticing the customer to purchase new or fresh services from the applicant. To the Tribunal’s mind, after sales service refers primarily to ongoing care or support for a good or service that the business has already supplied. Conduct with a view only (or largely) to procuring more business after the good or service has been provided is not really after sales service in the relevant sense.[4] Accordingly, the after sales service the applicant provides to customers as part of its operations is necessarily limited by the nature of the service it provides.  

    [4] See which defines ‘aftersales’ as ‘offered or provided by a manufacturer or retailer after the sale of an item. The only problem with this brand is its aftersales service.’

22. Although the Tribunal accepts that the applicant operates a profitable business, which parks cars on a relatively large scale, the Tribunal does not accept that the applicant’s operations justify a genuine need for a full time customer service manager as described in ANZSCO, or that the applicant genuinely needs a full time customer service manager for the proper operation of its business. The relatively simple customer interactions the applicant’s business entails can easily be discharged by an employee tasked with duties more general than the specialised managerial duties focused on customer service described in ANZSCO.

23. So much was borne out in Mr Ghali’s evidence. The nominee’s current general role, as Mr Ghali described it, was similar to the role he described for the nominee as the proposed customer service manager. Further, the role the former customer service officer (Christine) discharged was similar to the one the nominee was to discharge as the customer service manager, and the nominee was now to discharge both roles. On the evidence, there was little relevant difference between the two roles. Moreover, Mr Ghali said that he required the nominee to take on some of the tasks he (as the general manager) and his brother (as the operations manager) ordinarily discharged to free them up to do other things. The tasks Mr Ghali described for himself and his brother were largely general and operational and not specialised customer service management tasks. On that evidence, the nominee is to take on more general tasks with a supervisory dimension as opposed to specialised customer service management tasks.   

24. By those findings, the Tribunal does not suggest that a business offering a car parking service can never genuinely require a full time customer service manager as ANZSCO describes it. Each case must be determined on its merits. For example, if the applicant offered the car hire service referred to in the evidence, which by its nature might involve more complicated customer interactions requiring specialised customer service policies to be formulated and implemented, the position might be different.[5] But on the evidence of the applicant’s current operations, the Tribunal is not satisfied that the applicant’s current business operations genuinely necessitate a full time specialised customer service manager.

    [5] The planned care hire business was referred to in the delegate’s decision. By the time the matter came before the Tribunal for hearing, the applicant was yet to acquire the land necessary for the business, and had not progressed the business plan much from the position before the delegate.

25. Turning to the nominee’s proposed role with the applicant, the written submission the representative sent to the Tribunal after the hearing described a role that satisfied some of the ANZSCO description of a customer service manager. However, the ANZSCO description found little support in Mr Ghali’s oral evidence to the Tribunal.

26. As noted above, Mr Ghali said that the nominee had been with the applicant from the time it commenced business in 2011, that the nominee knew the applicant’s business operations intimately, and that he needed the applicant to oversee the applicant’s business operations when he or his brother were not there. The nominee was also to discharge the role of the former customer service officer as well as that of the customer service manager. When pressed on what specific duties the nominee would perform that would satisfy the ANZSCO description of a customer service manager – such as what kind of customer service policies and procedures the nominee could implement or to what matter such policies could be directed – Mr Ghali was not able to articulate the duties with any precision. Mr Ghali referred primarily to the need to train drivers in how to deal with customers properly and politely, and introducing a ‘feedback box’. Although those matters have a customer service dimension, the Tribunal does not accept that they are sufficient to satisfy the ANZSCO description of a genuine customer service manager, or that it is necessary to have a customer service manager to discharge those relatively simple functions.

27. The nominee’s evidence did not take Mr Ghali’s evidence much further. The nominee described his proposed customer service manager role as a general operational one with some supervisory functions. Although the role described had some customer service dimensions such as dealing with customer complaints, the role overall was broader. When the Tribunal asked the nominee what kind of customer service policies and procedures he contemplated formulating as a manager, his answers focused on products and packages to be offered to customers as an incentive to purchase more of the applicant’s services.

28. The job description that Mr Ghali and the nominee spoke of was broadly that of a general operations officer or even an assistant manager or supervisor charged with general oversight duties with some focus on sales and business development. Those duties have some customer service dimensions but are not those of an employee formulating and implementing specialised customer service policies and procedures at a management level as ANZSCO contemplates.

29. Further, ANZSCO provides that a customer service manager should have an Associate Degree, Advanced Diploma or Diploma (ANZSCO skill level 2). Although the applicant may be so qualified, the relatively simple role for the nominee that Mr Ghali and the nominee described does not require such qualifications. On the role described in the evidence, a working knowledge of the applicant’s business operations would be of more value than formal educational qualifications. ANZSCO skill level 2 includes as a substitute to formal qualifications at least three years of relevant experience. Again, on the relatively simple role for the nominee described, the Tribunal does not consider three years’ experience to be necessary to discharge the role. 

30. The Tribunal accepts that the nominee’s proposed role with the applicant entails some of the customer service functions that ANZSCO describes. But in the end, when the evidence is considered in its entirety, it was insufficient to establish that the applicant genuinely requires somebody to discharge the specialised customer service management functions that ANZSCO contemplates, or that the nominee would genuinely be discharging those specialised management functions as part of his day-to day role with the applicant.

31. Accordingly, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine or that the requirements of r.2.72(10)(f) have been satisfied. It finds that the applicant has not met the applicable criteria for the nomination to be approved and affirms the decision under review.

    DECISION

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

    L. Hawas
    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.

    (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.