1508200 (Migration)

[2016] AATA 4588

1508200 (Migration) [2016] AATA 4588 (27 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jason Williams

CASE NUMBER:  1508200

DIBP REFERENCE(S):  BCC2014/3387371

MEMBER:Mary-Ann Cooper

DATE:27 October 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 27 October 2016 at 8:46am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 10 December 2014.

3. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

4. The delegate refused to grant the visa on 29 May 2015 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the applicant had the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.

5. The applicant appeared before the tribunal on 25 October 2016 to give evidence and present arguments. The tribunal also received oral evidence from his employer’s General Manager.

6. The applicant was represented in relation to the review by his registered migration agent who also attended the hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da).

   Skills, qualification and employment background of the applicant

9. Clause 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl.457.223(4)(e), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister. In this case the nominated occupation is Customer Service Manager.

10. There is no threshold legislative standard for determining the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, although in determining this question, the tribunal may be guided by the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for occupations nominated on or after 1 July 2010.

11. The tribunal notes, however, that the determination of each application requires more than a narrow matching process between an applicant's tasks and ANZSCO occupational definition. In an earlier version of this clause, the Court in Joshi v MIMIA held the sensible and correct approach requires the ascertainment of the attributes and skills of an applicant and how those attributes and skills are being applied in the workplace for remuneration.[1] 

    [1] Joshi v MIMIA [2005] FMCA 1116 (McInnis FM, 12 August 2005).

12. According to ANZSCO a Customer Service Manager comes within Unit group 1492 “Call or Contact Centre and Customer Service Manager”. In Australia most occupations in this unit group have a level of skill commensurate with the following qualifications:

    ·AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2) or

    ·At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

13. The tasks for this unit group listed in ANZSCO include:

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

    oensuring operational efficiency within a call centre

    oproviding direction and feedback to team members and assisting with recruitment

    omanaging, motivating and developing staff providing customer services

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

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

    omay work in a call centre

14. The Tribunal has had regard to the Department’s file and notes that, at time of application, the applicant provided work references confirming that he had worked as a Customer Service Manager in two organisations in England for the period covering September 2009 to August 2011 and April 2012 to September 2013.

15. As recorded in the delegate’s decision, a copy of which was provided with the review application, the role of Customer Service Manager is a high level role which would typically exist in a relatively large business operation. The delegate considered that the tasks listed by the applicant’s references indicated that his roles were of lesser complexity. On this basis, noting that the applicant did not have any of the other qualifications, the delegate was not satisfied that the applicant had at least 3 years work experience as a Customer Service Manager as described in ANZSCO. Consequently he was found not to satisfy cl.457.223(4)(da) and the visa was refused.

16. Prior to the hearing the applicant’s representative provided a submission, additional information relating to his previous work experience and a further work reference for the applicant. The work reference, from the General Manager of Telstra, covered the period January to June 2014 in which the applicant worked for Telstra. The reference outlined the tasks performed by the applicant including responsibility for the implementation and ongoing management of various Telstra “care programs”, rewriting all the staff position descriptions, day-to-day management of customer service officers, staff recruitment, management of all complaints and service issues, daily reporting and assisting with the development and implementation of new policies and procedures.

17. At the hearing the applicant said after he finished high school he started working in the telecoms field and had been employed, since 2009 as a customer service manager.  He provided a further document from this employer, Direct Response Ltd., a large UK provider of voice, data and contact centre services, demonstrating his commencement date and providing greater detail of his duties and responsibilities in the role. These duties included recruiting, selecting, orienting and training staff, strategic planning and review, identifying trends and determining system improvements, implementing change, forecasting requirements, improving customer service quality, studying, evaluating and redesigning processes and several other high-level duties consistent with those of a Customer Service Manager. He said he managed 15-20 staff as well as liaising with sales agents and also negotiating service level agreements with the company’s bigger clients. He said he left this employment, along with his then manager, and served a period of employment restraint before he commenced with Shape Networks Ltd. He gave a detailed and thorough account of his work with this organisation and the several initiatives he implemented. The applicant also provided a number of examples of strategies he had developed and implemented to improve customers relations in this role. When asked why he left this employment he said that his parents passed away and he decided he would like a fresh start. He came to Australia on a subclass 417 working holiday visa and got a job as a Customer Service Manager with Telstra which had led to his nominated role with an associated business. He said he was not currently working because of the work limitation on his visa but confirmed that he would recommence if his visa was granted. The tribunal is aware that his nominated occupation has recently been approved.

18. The tribunal then spoke to the General Manager from the Telstra Business centre and who had provided the above reference for the applicant. He said that the company had been undergoing a lot of change and they had been searching unsuccessfully for 6 months for someone to fill the Customer Service Manager role. Only the applicant, because of his employment experience in the UK telecommunications industry, had the necessary skills and background to fill the required position. He confirmed that the tasks undertaken by the applicant were at least at the level indicated in the ANZSCO description and gave a detailed account of his duties and the initiatives he had introduced. He explained that the relationship between the applicant’s nominated position and his role at Telstra and confirmed that he would undertake that position if his visa was granted. Following the hearing the applicant provided a copy of his employment contract which confirmed the nature of his employment relationship and its ongoing association with Telstra.

19. The tribunal found the applicant to be a credible witness whose oral evidence was consistent with his employer’s oral evidence.  The tribunal accepts his past experience and his nominated role are at the level of a Customer Service Manager and that the applicant is well-qualified and experienced to undertake such a role. The tribunal also accepts the employer’s confirmation that the applicant will be employed as the Customer Service Manager and has and will undertake a number of tasks commensurate with such a role.

20. On this basis, and having regard to the overall evidence before it, including the significant amount of additional material provided, the tribunal accepts that the applicant worked full time as a Customer Service Manager in England for the period September 2009 to August 2011 and April 2012 to September 2013,that is, for a period over three years. It also accepts, based on the evidence before it, that the duties he performed are commensurate with those of a ‘Customer Service Manager’ as described in ANZSCO.

21. For the above reasons it follows that the Tribunal accepts that the applicant has the skills and qualifications and employment background necessary to perform the tasks of the nominated occupation of ‘Customer Service Manager’.

22. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).

    CONCLUSION

23. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

24. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223(4)(da) of Schedule 2 to the Regulations.

    Mary-Ann Cooper
    Member

    
    

    ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

    457.223

    …

    Standard business sponsorship

    …

    (4)The applicant meets the requirements of this subclause if:

    (a)each of the following applies:

    (i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

    (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

    (ba)either:

    (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

    (ii)     each of the following applies:

    (A)the applicant is employed to work in the nominated occupation;

    (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

    (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

    (d)the Minister is satisfied that:

    (i)    the applicant’s intention to perform the occupation is genuine; and

    (ii)     the position associated with the nominated occupation is genuine; and

    (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

    (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant;

    the applicant:

    (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

    (v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

    (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

    (f)either:

    (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

    (ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

    …

    (6)This subclause applies to an applicant if:

    (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

    (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

    …

    (11)In subclause (4):

    exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.