1507979 (Migration)

[2016] AATA 3392

1507979 (Migration) [2016] AATA 3392 (29 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  VISTAR PERTH PTY LTD

CASE NUMBER:  1507979

DIBP REFERENCE(S):  BCC2014/2421338

MEMBER:Christopher Smolicz

DATE:29 February 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 29 February 2016 at 8:41am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 May 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 24 September 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.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72.

4. Mr Myung Hoon Song appeared before the Tribunal on 4 February 2016 to give evidence and present arguments on behalf of Vistar Perth Pty Ltd (Vistar). The Tribunal also received evidence from Mr Juhwan Lee, the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 have been met.

7. The nominated position is that of Customer Service Manager (ANZSCO 149212). 

8. The ANZSCO dictionary states that the position of Customer Service Managers organise and control the operation of call or contract centres, review customer services and maintain sound customer relations. 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; and

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

   ·may work in a call centre.

9. The Tribunal is not bound by that description but accepts that the position would involve the type of duties outlined above.

10. In support of the application the following documents were submitted: an employment contract, subcontract agreements, position description and organisational chart; evidence of market salary rate; and a statement from the sponsor with regard to the genuine need for the position.  In post hearing submissions the Tribunal was provided with the applicant’s 2015 profit and loss statement, company Income Tax Return and PAYG Payment Summary statements issued by the applicant.

11. The Tribunal explained to Mr Song that although the delegate found the applicant could not satisfy r.2.72(10)(aa), however, the Tribunal was of the view that the issue in the matter is whether the position associated with the nominated occupation is genuine: r.2.72(10)(f).

12. According to information contained on the Department’s file, Vistar is a Perth based commercial and industrial cleaning business established in October 2012. Mr Daewon Kim is the Managing Director. Mr Kim did not attend the hearing. Mr Song said that he was authorised to speak on behalf of the applicant.

13. The Tribunal questioned Mr Song about his duties. Mr Song said that he is responsible for recruitment of staff, training staff and also attends to some of the Customer Service duties such as visiting clients and dealing with some complaints face to face.

14. Mr Song said that Vistar employs about seven cleaners to undertake cleaning work and also engages three subcontractors. Currently Vistar has about 23 clients and its total sales for the 2015 financial year was $1,069,508.

15. Mr Song said that Vistar does not advertise or deal directly with customers in negotiating cleaning contracts. Vistar secures the majority of its work through third party external contracting companies such as TJS Services, PHS and CORE. Mr Song said that about 90 per cent of its work comes from TJS. Currently Vistar only has one customer (Perth based restaurant) that it has contracted directly.

16. Mr Song explained that TJS is a large business with offices all around Australia. TJS advertises and secures customers who require cleaning work. Customers enter into a cleaning contract with TJS direct and pay TJS for the cleaning work. Mr Song said that Vistar does not know the negotiated contract price between the customer and TJS and must enter into a separate agreement with TJS if it wants to do the cleaning work. Vistar is subsequently paid directly by TJS for the cleaning work.

17. The Tribunal notes that according to the organisational chart the Customer Service Manager is responsible for the cleaners and trade persons. Mr Song explained that most of Vistar’s cleaners are Korean and it is important that the Customer Service Manager is able to speak Korean and communicate with the cleaners. It was submitted that the previous Customer Service Manager left Vistar in December 2014 and there is a genuine need to employ the nominee.

18. Mr Song said that the nominee commenced working in the position of Customer Service Manager in December 2014 and is paid about $58,000 per annum. The Tribunal questioned Mr Song about the duties of a Customer Service Officer. Mr Song said that the main duties were to maintain quality control, training and deal with complaints. Mr Song said that even though the customer enters into a cleaning contract with TJS, the customer often may want to deal direct with Vistar about complaints or performance issues. According to Mr Song the Customer Service Officer must train staff, report on the quality of cleaning work undertaken, the level of customer satisfaction and ensure that Vistar cleaners and contract staff are undertaking a proper job according to job specifications.

19. Mr Song said that TJS also employ their own Customer Service Managers as is evident from the Service Agreement between Vistar and TJS located on the Department’s file. The Tribunal noted that there appears to be an overlap between the role of the TJS Customer Service Manager and the nominated position. Mr Song said that TJS have hundreds of jobs and only two to three Customer Service Managers and are not able to attend to all issues.

20. The Tribunal questioned Mr Song about the following Customer Service Manager duties which were provided to the Department in support of the application:

    Reporting to Director, the Customer Service Manager will deliver the highest standards of customer engagement, contract management, operations management and team leadership for some of our most prestigious customers.

    Liaising with customers, cleaning and other onsite operational teams, the Customer Service Manager is responsible for ensuring that all areas of the property are always presented to the highest possible standards. Similarly, the Customer Service Manager will lead the development and engagement of all frontline cleaning teams, ensuring open communication, compliance to all safe workplace standards, customer service and presentation standards.

    The duties and responsibilities of a Customer Service Manager include but are not limited to:

    ·     Prepare and conduct initial briefing with customers to create a tailored cleaning program with Vistar Perth Cleaning Services.

    ·     Track service performance to contract requirements

    ·     Ensure all frontline cleaning teams are appropriately skilled, qualified and eligible to work onsite.

    ·     Conduct training and site inductions to ensure that cleaning teams are informed and comply with required standards. Our focus on quality and detail means that each team member has detailed training records, work instructions, and risk assessment kept accessible for our customers.

    ·     Act as point of contact for customers. This includes around the clock, throughout the year telephone support, email correspondence, customer portal login and remote tracking of cleaner attendance. All communication and requests are captured in real time and escalated to the appropriate receiver.

    ·     Manage Rapid Response Team. This highly mobile service is orchestrated using our unique GPS tracking and dispatch system. The Rapid Response Team responds urgently to any emergencies or difficulties that customers may be experiencing.

    ·     Identify operational risk, non-compliance and/or service issues and resolve whilst ensuring impacts to operation are minimized.

    ·     Manage environmental concerns. We use only environmentally safe, PH neutral chemicals and the most up-to-date equipment that meets detailed safely standards and achieves less electrical and water consumption with the use of various innovative cleaning techniques.

    ·     Ensure compliance to WH&S policies and all regulatory requirements.

    ·     Maintain a positive and professional relationship with customers at all times

    ·     Handle customer complaints including hygiene and cleaning issues and keep accurate records for discussions or correspondence with customers.

    ·     Ensure resources are aligned to operational, customer requirements and budget.

    ·     Prepare reports as required by customer and Vistar Perth Cleaning Services.

21. The Tribunal told the applicant that it appeared that although some of the duties listed above may be relevant to “customer service” the position does not appear to be a dedicated Customer Service Manager position.

22. In the Tribunal’s view the task and responsibilities described by Mr Song primarily involve supervision and quality control of work undertaken by Vistar employees and sub-contractors. The Tribunal also finds that many of the duties detailed above appear to relate to day-to-day administrative, operational and staffing issues and are not relevant to the position of Customer Service Manager. For example the Tribunal does not accept that management of the Rapid Response Team, ensuring compliance with WH&S policies, sourcing environmental cleaning products, ensuring frontline cleaning teams are appropriately skilled and qualified, training staff and identifying operational risks are core duties of a Customer Service Manager.

23. The Tribunal notes that the tasks for Customer Service Manager in ANZSCO include specialised tasks such as “providing direction and feedback to team members and assisting with recruitment” and “managing, motivating and developing staff providing customer services”. The Tribunal notes 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 relevant to the applicant’s business model where the vast majority of customers enter contracts with TJS and not Vistar. The Tribunal finds that TJS would have ultimate responsibility to its customers in such situations. As stated above, Vistar does not enter into contracts or accept payment from the vast majority of its clients and TJS have their own Customer Service Managers who undertake weekly site visits and monitor job progress and prepare relevant management reports.

24. In conclusion, having regard to the size and scope of the business the Tribunal is not satisfied that Vistar’s business model of securing customers through third party contracting agencies such as TJS is such that it requires a designated full-time Customer Service Manager performing the range of duties as described in ANZSCO.

25. The Tribunal is not satisfied that the tasks in the position as described by Mr Song 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 position associated with nominated occupation is genuine. For these reasons the requirements of r.2.72(10)(f) are not met.

26. 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

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

    Christopher Smolicz
    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.