1505813 (Migration)

1505813 (Migration) [2016] AATA 3151 (1 February 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Win Solar Energy Pty Ltd
CASE NUMBER:  1505813
DIBP REFERENCE(S):  BCC2015/717404
MEMBER:Lesley Hunt
DATE:1 February 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 01 February 2016 at 11:40am

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 28 April 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).
The applicant applied for approval on 5 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 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 regulation 2.72(10)(f) because the delegate found that the position associated with the nominated occupation was not genuine.
The applicant appeared before the Tribunal on 20 October 2015 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
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.
The information provided with the application, and confirmed by the applicant at the hearing, indicates that the business was registered on 12 August 2010. It operates as a wholesale business and has four full-time staff and, at the time of application, an annual turnover of $3,974, 497.
The nominated position is that of Customer Service Manager (ANZSCO 149212). The ANZSCO dictionary states that the position of Customer Service Manager is responsible for:
·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; and
·liaising with other organisational units, service agents and customers to identify and respond to customer expectations.
In support of the application the following documents were submitted: an employment contract, position description and organisational chart; evidence of market salary rate; price list of the goods and services provided; customer care charter and a statement from the sponsor with regard to the genuine need for the position.
The delegate was not satisfied that the position was genuine because the delegate assessed that the ANZSCO dictionary definition indicates that the position of Customer Service Manager is relevant to a large business operation with complex client interactions and in the case of Win Solar Energy, there are no subordinates for the customer service manager to manage; there are already a number of employees working in various managerial positions; and the nature of the business, its staffing, size and scale does not demonstrate a need for a full time customer service manager.
Prior to the hearing, the applicant submitted a profit and loss statement for the financial year ending 30 June 2015 which showed total payroll expenditure of $323,078.27, a gross profit of $1,081,799.90, and net income of $94,365.84.
At the hearing, the business director, Ms Ying Liu, clarified that the business imports solar energy parts, panels and other related goods. She stated that Win Solar Energy has become a brand in regional Queensland and has expanded its services to include areas north of the Sunshine Coast, Sunshine and Gold Coasts, South-East Queensland and northern New South Wales. She clarified that the company services both residential and commercial sectors. She stated that it’s common for related industries to have customer service managers to cover after-sales service including answering queries and concerns regarding parts warranties and project warranties and that warranties vary from one to ten plus years. She stated that the company has an existing client base numbering more than 500 and deals with more than 10,000 different parts. She clarified that the responsibilities of the customer service manager was previously handled by herself, as the Director, and the office manager. She clarified that the company has eight full-time employees and a number of sub-contractors in different locations.
Ms Liu stated that the company’s main office is located in Maroochydore on the Sunshine Coast and there is another office on the Gold Coast. She clarified that the company has permanent employees in the positions of sales manager, purchasing Manager, warehouse manager, secretary, accountant and 3 permanent sales persons and a number of casual employees. She stated that all employees are Australian residents / citizens residing in the local area.
Ms Liu emphasised that the business required a customer service manager who speaks Mandarin and English and knows western law and western culture. She stated that she has been doing this role herself as well as trying to explore other commercial avenues for the business. She clarified that she has direct contact with customers.
Ms Liu stated she advertised the position in March or April 2015 however it was difficult to fill the position in the Sunshine Coast. She stated that customer service is required before, after and during the sales and installation processes. She wants to establish a website with all product information so that any customer can ask questions through the website as not all questions can be explained by the installer. She clarified that there is a 20 year warranty on solar installations and there are factory warranties and importer warranties. The customer service manager should be able to deal with all these matters as well as after sales service inquiries and concerns. It is important that the customer service manager knows western culture and Australian law and can speak English and Chinese languages as all the parts are imported from China.
The Tribunal put to the applicant that the manufacturer would be responsible for the warranty on parts, rather than the installer. She responded that if there is a problem with a part the factory manufacturing the part has to be contacted very quickly. For this reason the company needs a Chinese speaker. There is generally only one person in the factory in China who speaks English and this causes delays.
The Tribunal discussed with the applicant the tasks of a Customer Service Manager outlined in the ANZSCO dictionary. In relation to the task of “developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided”, the applicant responded that the company is relatively new and as the company develops and improves these policies and procedures will be developed and improved.
The Tribunal referred the applicant to the Customer Care Charter submitted to the Tribunal. The applicant stated that she was not familiar with it.
The Tribunal referred to the tasks of “providing direction and feedback to team members and assisting with recruitment” and “managing, motivating and developing staff providing customer services” and put to the applicant that these tasks imply that the customer service manager is head of a team of people who deal with after sales service and customer care and this does not appear to be the case for Win Solar Energy. She responded that there is staff involved in processing orders.
The Tribunal put to the applicant its concern that the term manager involves managing others and it appears that the business requires someone to deal directly with customer service, rather than to manage others who are dealing directly with customer service.
The applicant stated that the business has to look to the future and requires a person to look after customer service independently, and to make decisions with all relevant staff. She does not need a person to assist her as that would mean she still has to make the decision. She does not have the time for that. She needs a person who can multi-task, manage and make decisions independently regarding customer service. She does not want to be involved in customer service herself as there are too many other aspects to her role as Director. She stated that factories in China want to invest in Australia, and in Queensland. Her job is to focus on sales, not on customer service. However customer service is very important to the business. She needs someone who can act independently and be independently responsible for customer service.
Subsequent to the hearing the applicant provided a written submission and a number of emails as examples of recent complaints and issues regarding product warranty and product liability insurance. In the submission the applicant provides the following information regarding the need for a Customer Service Manager at Win Solar Energy.
With the current business operations, we receive reports of product or item defects through sales who were the initial contact point with the customers. There are currently 1 full-time salesperson and other casual / part / commission-based sales. These enquiries are then diverted to me, who are currently handling all customer service related matter with communication with overseas suppliers. We require someone to replace this role as the customer service manager, who can then develop policies and managing existing sales in customer service related matters.
A customer service team is in the progress of being developed, and currently the roles of these customer services are overlapped on salespersons.
Please understand we are seeking the government’s assistance in this matter as we are located in regional Australia. This is not a mere creation of a job title. It is a real need in the business, thus we decided to seek government’s assistance to source overseas skilled person.
The need is fact and true. The business team members are now all covering multiple jobs (i.e. sales and customer service related matter; and Director covering decision making and customer service management and liaise with suppliers).
Our financial capacity does allow such expansion as what we had provided to you.
We enclosed with this submission samples of recent complaints or customer service related emails on product warranty and our Product liability insurance.
The Tribunal acknowledges that the business has the need for a person to deal with complaints and issues arising in relation to the parts imported from overseas factories to Australia. The Tribunal acknowledges that the Director has other responsibilities and that dealing with these complaints and other issues is time consuming. The Tribunal appreciates the business has a need for a person who speaks Chinese and English and has an understanding of Australian law in relation to these matters. The Tribunal also acknowledges that the business is relatively new and is expanding into new locations and markets. Whilst the Tribunal accepts that the business needs a person to deal with the issues and take on the responsibilities described by the Director, in the Tribunal’s view the tasks and responsibilities described by the Director primarily involve servicing customers directly, liaising directly with the manufacturer and overseas factories, dealing with complaints and concerns directly. It does not involve managing others who are dealing with customer complaints, concerns and issues regarding faulty and incorrect parts.
The Tribunal is not satisfied that the scale and activities of the business are such that a designated Customer Service Manager performing the range of duties as described in ANZSCO is necessary to the operations of the business at this stage. The Tribunal is not satisfied that the tasks in the position as described by the Director focus on the development and review of specific policies and procedures relating to customer relations, and the planning and implementing of after sales services in the context of customer relations, at the range and skill level that is indicated by the description of the occupation in ANZSCO. The Tribunal is not satisfied that the tasks relating to customer service are at the level and range of a Customer Service Manager or include the full range of responsibilities of a Customer Service Manager as described in ANZSCO.
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 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.
Lesley Hunt

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.

[2016] AATA 3151

1 February 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice