1508272 (Migration)

1508272 (Migration) [2016] AATA 4790 (8 December 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Pure Aluminium Windows Pty Ltd
CASE NUMBER:  1508272
DIBP REFERENCE(S):  BCC2015/1133629
MEMBER:D. Dimitriadis
DATE:8 December 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 08 December 2016 at 2:02pm

CATCHWORDS
Migration – Nomination – Subclass 457 – Genuine position – Customer Service Manager – Position not necessary
LEGISLATION
Migration Act 1958, s 140GB
Migration Regulations 1994, r 2.72

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 3 June 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 16 April 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.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) which requires that the position associated with the nominated occupation of Customer Service Manager is genuine.
The applicant appeared before the Tribunal on 29 November 2016 to give evidence and present arguments and was represented by Mr Samir Al Nahoum, the director. The Tribunal also received oral evidence from Mr Adnan Mohieddine, the assistant manager.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CLAIMS AND EVIDENCE
The applicant applied to the Department of Immigration (the Department) for approval of a nomination of an occupation under s.140GB of the Act. The nominee is Akber Khan. The nominated occupation is Customer Service Manager (ANZSCO Code 149212). The applicant stated that the nominee’s base rate of pay is $54,000 and the guaranteed annual earnings are $54,000. The applicant set out the responsibilities and the main duties of the position.
The applicant provided a number of documents to the Department including copies of advertisements, employment contract and a letter from the applicant dated 2 March 2015.
The employment contract included a list of duties and responsibilities for the position of Customer Service Manager which were as follows:
a)    Helping to develop a customer service policy for an entire organisation.
b)    Managing a team of customer services staff.
c)    Handling face to face inquiries from customers.
d)    Providing help and advice to customers using the organisation’s products or services.
e)    Investigating and solving customer’s problems, which may be complex or long standing problem that have been passed on by customer service assistants.
f)    Handling customer complaints or any major incidents, such as a security issue.
g)    Issuing refunds or compensation to customers.
h)    Keeping accurate records of discussions or correspondence with customers.
i)    Developing feedback or complaints procedures for customers to use.
j)    Meeting with other managers to discuss possible improvements to customer service.
k)    Being involved in staff recruitment and appraisals.
l)    Training staff to deliver a high standard of customer service.
m) Leading or supervising a team of customer service staff.
n)    Learning about the organisation’s products or services and keeping up-to-date with changes.
o)    Keeping ahead of developments in customer service by reading relevant journals, going to meetings and attending courses.
In the letter dated 2 March 2015 the director of the applicant, Mr Samir El Nahoum, stated that the position of Customer Service Manager is genuine and an essential requirement for the operation of their business. The applicant provides a huge range of windows and doors. The business needs the position of a Customer Service Manager to meet the company’s objectives which are to provide the right advice to customers in line with the budget and aesthetic needs. “Excellent customer service and product delivery in timely manner will promote customer loyalty”. The applicant stated that the Customer Service Manager is responsible for ensuring adequate service by the fabricators and all staff involved in carrying out contractual obligations. The role of Customer Service Manager is essential to the business to ensure customer satisfaction for repetitive business. The business requires the project manager to have the necessary sales skills to ensure the growth of the business. It is envisaged that the project manager and Customer Service Manager will attend the initial meeting with the customer for the purposes of entering into a contract for work. It is the responsibility of the Customer Service Manager to ensure that the customer is kept informed of the progress and the staff is compliant with timeframe guidelines. Mr Nahoum stated that they considered a number of applicants for this position but only the nominee was found to be suitable. He has demonstrated in last year working as a Customer Service Manager that he has the necessary skills and ability to perform the duties of this role. The applicant fabricates aluminium bars, extrusions, and glass glazing to produce aluminium doors, windows, panels and frames. The position is currently occupied by the nominee on a Subclass 457 visa and they seek to continue his employment.
On 26 May 2015 the Department received from the applicant a letter dated 20 April 2015 from Mr Samir El Nahoum who stated that they found the nominee suitable for the position of Customer Service Manager because he has been working for the organisation for the last year on a Subclass 457 visa. They consider that he has the ability to perform the tasks and responsibilities of this role. Mr Nahoum has seen the nominee doing the responsibilities of a Customer Service Manager with efficiency and believes that the nominee shares the same vision as the applicant to improve business services. They found the nominee to be the most committed and suitable candidate for their business. The nominee will be offered the same terms and conditions of employment that are available to Australian permanent residents.
The delegate refused the nomination on the basis that the applicant did not satisfy r.2.72(10)(f). The delegate was not satisfied that there is a genuine need for the position of Customer Service Manager.
The application for review
The applicant lodged the application for review with the Tribunal on 18 June 2015 and provided a copy of the delegate’s decision record.
On 26 August 2016 the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting the applicant to provide information in writing, including updated information to demonstrate that the applicant meets r.2.72. This included information to demonstrate that the position associated with the nominated occupation is genuine (r.2.72(10)(f)). It also included a current organisation chart showing the nominated position and its reporting lines, together with all the other positions in the organisation.
On 9 September 2016 the Tribunal received a number of documents from the representative including copies of the following:
·Notice of decision by the Department approving the applicant as a standard business sponsor from 26 February 2015 to 26 February 2018;
·A nomination application lodged on 30 June 2015;
·Business Activity Statements for the period 1 January 2014 to 31 March 2014, 1 April 2014 to 30 June 2014, 1 January 2015 to 31 March 2015; 1 April 2015 to 30 June 2015; and 1 April 2016 to 30 June 2016;
·Profit and loss statement and balance sheet for the year ended 30 June 2014;
·Invoice from Professional Development Institute to the applicant dated 15 January 2014;
·Financial statements for the year ended 30 June 2016;
·Letter dated 13 August 2015 about the genuineness of the position;
·Minutes of meetings on 23 June 2014, 8 September 2014, 5 December 2014 and 10 March 2015;
·List of customers;
·PAYG payment summaries for the nominee for the period 12 October 2009 to 30 June 2010; 1 July 2010 to 29 January 2011; 1 July 2012 to 30 June 2013; 1 September 2013 to 30 June 2014; 1 July 2014 to 30 June 2015; and 1 July 2015 to 30 June 2016;
·Annual statements from CBUS sent to the applicant for the period 1 July 2014 to 30 June 2015:
·Pay advices issued to the nominee by the applicant;
·Photographs of the business;
·Organisation chart;
·Estimates of tax payable or refundable for the nominee;
·Contract of employment signed on 9 September 2016;
·Market salary survey;
·Statement about genuine need and genuine position;
·Comments on the case officer’s decision.
The Tribunal hearing
The Tribunal informed the applicant that in order for the nomination to be approved all the applicable criteria in r.2.72 have to be satisfied.
Mr Nahoum stated that he is the manager and sole director of the applicant. He is authorised to speak on behalf of the company. The witness, Mr Mohieddine, works in the factory and deals with the nominee more than Mr Nahoum. Mr Mohieddine has worked with the applicant for seven or eight years as a project manager and does the pricing.
Mr Nahoum stated that the nominee’s work is good. The nominee deals with customers and takes complaints. He is good with workers and customers and can fix and take care of complaints. The applicant can trust the nominee.
Mr Nahoum stated that the business manufactures windows and doors, shop fronts and glass windows. They manufacture for homes, units and businesses. The factory and the offices are at Granville. The factory is on the ground floor and the offices are above the factory. The display is on the ground floor. The nominee works between the factory and the offices. Customers come to the applicant after looking at the applicant’s website. They come to the office first for pricing and are then taken downstairs and shown the products.
Mr Nahoum stated that the nominee was at work yesterday. The nominee has worked for the applicant since 2009 and has been full-time for about three years. Before that, he was studying and was on a student visa and he worked 20 hours a week at that time. Since he has been full-time, he has always worked in the position of Customer Service Manager.
The Tribunal asked the applicant what work the nominee did yesterday. Mr Nahoum was not in the factory yesterday. He goes out to check the jobs. Mr Nahoum stated that Mr Mohieddine was there and can give evidence. Mr Mohieddine is always in the office and the factory from morning to night, Monday to Friday. Sometimes Mr Nahoum goes to the customers to see the jobs and see what they want. He meets customers on the job site and checks what the installers are doing. He is also at the factory and the offices.
The applicant sells to commercial enterprises, units, houses and shops. They sell and install the products. Builders also buy from the applicant and they install the doors and windows themselves. For commercial work, the applicant does the installations. Mr Nahoum also goes to the sites to measure and then gives the plan to Mr Mohieddine to price it.
The Tribunal asked Mr Nahoum if he does not really know what tasks the nominee carried out yesterday. Mr Nahoum stated “mmm”. Mr Nahoum stated that Mr Mohieddine can give evidence about that and can also give evidence about the tasks that the nominee normally does but did not do yesterday. Mr Nahoum stated that there are about 14 or 15 employees at the business including Mr Nahoum and they also have contractors for installation. There is also an accountant. The Tribunal informed the applicant that the organisation chart shows that they have three process workers and two installers and the helper. The applicant stated that the helper is the glazier.
The Tribunal asked the applicant who deals with the customers. Mr Nahoum stated that he and the nominee deal with customers. The nominee deals with customers who come in and complain or if there is something wrong with the job. If there is something wrong, the nominee takes care of it. Mr Nahoum stated that Mr Mohieddine and the nominee deal with customers who come in off the street. There are many small customers who come in off the street. Mr Nahoum stated that he, himself, does not take orders from people who come in off the street. He takes the big jobs and goes out and measures.
The Tribunal asked the applicant who can answer the question about what duties the nominee regularly undertakes. Mr Nahoum stated that Adnan [Mohieddine] can give evidence about this. The Tribunal asked the applicant what evidence there is that the nominee has taken orders. Mr Nahoum stated that Mr Mohieddine has a file showing orders.
The applicant stated that he is 90% sure that the financial statements and business activity statements provided to the Tribunal have all been lodged with the Australian Taxation Office.
The Tribunal brought to the applicant’s attention that the representative has provided two contracts of employment and a list of duties and responsibilities for the position of Customer Service Manager and one of those duties is “managing a team of customer services staff”. The Tribunal informed Mr Nahoum that, on his evidence, there is just the nominee and Mr Mohieddine and there is not a team. Mr Nahoum stated that Mr Mohieddine deals with pricing. The Tribunal brought to the applicant's attention that there is not a team of customer services staff. Mr Nahoum stated that there is not a team. The Tribunal brought to the applicant's attention that one of the duties is managing a team of customer services staff and yet there are just two customer services staff besides Mr Nahoum.
The Tribunal informed the applicant that ANZSCO sets out the duties, responsibilities and tasks of occupations, including a Customer Service Manager. The Tribunal informed the applicant that it is an indicative code but the Tribunal considers that it is an appropriate measure of the skills and qualifications of a Customer Service Manager.
Mr Nahoum stated that he started the business in 2009 and is the owner. The Tribunal asked the applicant who employs people, including placing advertisements and interviewing people. Mr Nahoum stated that, if he is not there, new workers see Mr Mohieddine and they speak to Mr Nahoum after. If the applicant needs employees, Mr Mohieddine would lodge the advertisement or the secretary would lodge an advertisement.
The Tribunal informed the applicant that one of the tasks of a Customer Service Manager is managing staff providing customer services, but it appears that they do not have staff who provide customer services other than the nominee and Mr Mohieddine. Mr Nahoum stated “yes”. The Tribunal informed the applicant that another role is motivating staff providing customer services but because they do not have staff doing this other than the nominee and Mr Mohieddine, this is not a task that the nominee would carry out and he would not develop staff providing customer services. The Tribunal informed the applicant that it does not appear that this task is carried out by the nominee.
The Tribunal asked the applicant about the task of providing direction and feedback to team members and assisting with recruitment. The Tribunal informed the applicant that they have not mentioned that the nominee is involved in recruitment. Mr Nahoum stated that the nominee is involved with the workers. The Tribunal asked in what way he is involved with the workers. Mr Nahoum stated that the nominee can show the workers if they are doing something wrong and show the workers the way to do the work.
Mr Nahoum stated that the nominee is not involved in advertising or interviewing workers. The Tribunal asked the applicant if the nominee supervises new workers. Mr Nahoum stated that the nominee supervises new workers who put the frames together and make the windows. Everyone does their job but the nominee has more time to check. Mr Nahoum stated that there are the process workers and the glazier and the nominee is more in the factory than him.
The Tribunal informed the applicant that one of the tasks is planning and implementing after-sales services to follow up customer satisfaction. Mr Nahoum stated that the nominee set up the after sales service. The Tribunal asked the applicant what the after sales service is. Mr Nahoum stated that the nominee checks that everything is right and working properly. Sometimes he goes to check the job, for example if there has been a complaint about a window. The nominee is the only one going to the job site to check the job. The nominee and Mr Mohieddine are the main persons dealing with customer satisfaction.
The Tribunal asked the applicant if they wish to say anything about the task of developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided. Mr Nahoum did not wish to say anything. The Tribunal asked the applicant if the nominee reviews policies concerning customer relations. Mr Nahoum stated that the nominee does a lot of things. The Tribunal informed the applicant that these are tasks of a Customer Service Manager and if the Tribunal is not satisfied that the nominee is doing these tasks, it may not be satisfied that the position is genuine. Mr Nahoum stated that he is out of the office and factory 90% of the time. Mr Mohieddine knows more than Mr Nahoum about what the nominee does.
The Tribunal informed the applicant that a Customer Service Manager plans, administers and reviews customer services and after sales services, and maintains sound customer relations. The Tribunal asked the applicant if they wanted to say anything about this. Mr Nahoum stated that the nominee does some of this. Mr Nahoum is the owner but maybe they know more than him in the factory. He again referred the Tribunal to Mr Mohieddine and indicated that the Tribunal should ask Mr Mohieddine about this. Mr Nahoum stated that the nominee checks the stock and Mr Mohieddine does the orders. The accountant deals with financial transactions.
Mr Nahoum stated that he or Mr Mohieddine prepares the work schedules. The nominee deals with customer complaints. He communicates by telephone or email. They have a lot of regular commercial customers. The customers are often recommended.
Mr Mohieddine gave evidence that he has worked for the applicant for about seven or eight years. He is the assistant manager. Mr Nahoum is always on site and sometimes he does not see Mr Nahoum all day. Mr Mohieddine is the estimator of the cost of the work. He works in the office most of the day but is also in the factory. He and the nominee both deal with customers when they first come in but it is mostly the nominee who deals with customers.
Mr Mohieddine stated that the nominee greets customers when they come to the office. He shows them around and explains the different products. He shows the colour chart, and brochures about sliding doors, windows, locking mechanisms, and other hardware. There are three types of customers. The first type of customer wants one item. The nominee sends the customer to Mr Mohieddine who prices the item. The second type of customer has the floor plan specified by an architect. The nominee asks what type of product and colour and shows the products in brochures. Then they come to Mr Mohieddine’s office with the nominee and sit together and look at the plans and Mr Mohieddine starts doing the estimate. The third type of customer is the regular customer who has his own plans.

The nominee has been influential in the way they deal with customers and greet them on the telephone. They are a small company. The nominee set it out for them to speak well and understand what the customer wants. The nominee recommended that the telephone should ring a maximum of three or four times before they answer it.
Mr Mohieddine stated that sometimes the job is almost done but they have problems. The nominee becomes involved in dealing with the problems. He is the main person between the office and the customers. There are a large number of components and problems can take place. For example, a 12 story building may have 20 different size windows. There may be defects and the builder sends the defect list and the nominee handles the defects and customer service. The nominee takes it from the complaint email and turns it into the customer complaint form. He takes the quotation and fabrication form and fills in the blanks. He then gives it to the person in charge of the warehouse/factory for the defects to be rectified.
Mr Mohieddine stated that previously, before the nominee was there, they did it on the back of a piece of paper. The nominee introduced a policy of dealing with complaints and customer service. Now they write it down and tick it off. The form has the customer’s name, mobile number and address as well as the project number and the defect or complaint. The nominee knows how things work at the business and how the products are fabricated.
Mr Mohieddine stated that the nominee was at work yesterday. He had an argument about an item not being sent to the customer. The argument was with those in the office because the customer had been promised items to be delivered on Monday but the company used a truck for another job so he organised for the truck delivery today. The Tribunal asked Mr Mohieddine if there were other tasks that the nominee usually carried out that he did not carry out yesterday. Mr Mohieddine stated that he was doing his own stuff and the nominee was probably doing other things that Mr Mohieddine was not aware of.
The Tribunal asked Mr Mohieddine if they were other duties that the nominee regularly undertakes. Mr Mohieddine stated that he has already talked about the duties that the nominee has and it is huge what he is doing.
Mr Mohieddine stated that the owner and the nominee take orders. There are no other sales staff. Sometimes the nominee manages Mr Mohieddine. If the door needs to be replaced, sometimes Mr Mohieddine takes orders from the nominee to understand what he needs to do. If Mr Mohieddine is not around, then Mr Nahoum does it.
Regarding the task of ‘developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided’, Mr Mohieddine stated that they cannot order from a supplier from 9 December 2016 and the nominee introduced a policy to update customers when they are going to close. That is his job. Mr Mohieddine stated that they are more professional now. The nominee introduced the complaint form. The details are kept on a computer as well as being printed out. He also introduced the policy of greeting customers in a better way. The nominee does not deal with recruitment. He provides direction and feedback. Sometimes he manages Mr Mohieddine and gives a sense of direction.
Regarding the task of ‘managing, motivating and developing staff providing customer services’, Mr Mohieddine stated that the nominee introduced a policy where they answered the phone when it has run three times and they answer politely. Mr Mohieddine stated that the nominee sometimes manages him and he also gives the owner a sense of direction.
Regarding the policy of ‘planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided’ Mr Mohieddine stated that the nominee has also introduced a policy of sending a postcard when the work is finished to valued customers. He has also proposed that a housewarming gift be given as a follow-up with customers although this has not yet been introduced. The nominee says business is word of mouth and they have to ensure performance of goods. The nominee or Mr Mohieddine sends the glazing certificate to the customer after the work is done.
Mr Mohieddine stated that the nominee has introduced improved services. If Mr Mohieddine has moved on to doing a new code, the nominee finishes off all complaints on previous work. The nominee follows up if there are any defects. An example is that a person, Charlie, sent an email for work to be rectified in August 2016. There was a window in the toilet that had clear glass. So the nominee followed up with the factory to make sure that this was resolved and followed it up with the customer.
Mr Mohieddine stated that his role is to place orders but he sometimes asked the nominee to follow things up such as plastic wrapping which has white powder and leaves residue.
Mr Mohieddine stated that if the nomination is not approved he thinks that business will suffer. They want to grow and the nominee understands the business culture and customer needs. They would suffer a setback. Mr Mohieddine would have to do everything and retrain someone else.
Mr Nahoum stated that the nominee always does the right thing. Mr Nahoum trusts him. It is very hard to get someone like him. They advertised for a Customer Service Manager. To get someone new, it will take six months to understand the business. If someone does not know all about the business, they will not know how to fix things.
FINDINGS AND REASONS
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).
The Tribunal will firstly consider whether the applicant meets r.2.72(10)(f).
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The applicant has provided a number of documents to the Department and the Tribunal including two employment contracts, position description, organisational chart and submissions as to the genuineness of the position. The submission to the Department about the genuineness of the position is that the applicant needs a Customer Service Manager and that the position is genuine. The Tribunal has considered whether the position associated with the nominated occupation of Customer Service Manager is genuine. The Tribunal has considered the documentary evidence on the Department’s file, the documentary evidence provided to the Tribunal and the oral evidence given at the hearing by Mr Nahoum for the applicant and by the witness, Mr Mohieddine. The Tribunal is satisfied that the applicant authorised Mr Mohieddine to give evidence on its behalf as well.
The applicant has been operating a business manufacturing aluminium doors and windows since 2009 and supplies to the public, to builders and to commercial enterprises. The applicant supplies goods and also installs for commercial enterprises, units, houses and shops. The nominee has been working for the applicant since about 2009 and has been working as a full-time Customer Service Manager for about three years.
The Australian and New Zealand Standard Classification of Occupations (ANZSCO) sets out the indicative skill level and tasks for a Customer Service Manager (included as an attachment to the decision). ANZSCO is an indicative guide. It allows for substitutions in some cases and/or in some measure and gives alternative ways that an applicant can satisfy that she or he has the skills that are necessary to perform the occupation.
The Tribunal has considered the indicative skill level of a Customer Service Manager. In considering the nature of the position and the occupation, the Tribunal is guided by the skill level and tasks for a Customer Service Manager as set out in ANZSCO. In determining whether the position is genuine, the Tribunal considers it is reasonable to compare the tasks of the actual position with the tasks of the nominated occupation as listed in ANZSCO.
The Tribunal has had regard to the list of duties and responsibilities of the nominee set out in the nomination application. The Tribunal took evidence at the hearing from the applicant about the tasks that the nominee will carry out. The applicant also asked the Tribunal to take evidence from Mr Mohieddine about the tasks that the nominee carries out. The applicant was given the opportunity of describing the tasks that the nominee carries out in his role as a Customer Service Manager. The Tribunal has some concerns about the duties listed in the material provided to the Department and the Tribunal, because the applicant gave evidence that the nominee does not carry out some of those duties. The Tribunal is satisfied on the evidence that the nominee does not carry out the task of ‘Managing a team of customer services staff’. The Tribunal is not satisfied that there is a team of customer services staff. There is Mr Nahoum, the owner and director, who is away from the office most of the day and there is Mr Mohieddine who mostly does the pricing and is referred to as a project manager in the organisation chart and an assistant manager at the hearing.
The Tribunal is satisfied, based on the evidence at the hearing, that the nominee is not ‘involved in staff recruitment and appraisals’ except to a minor degree. Mr Nahoum stated at the hearing that the nominee is not involved in advertising or interviewing workers. If the applicant needs employees, Mr Mohieddine or the secretary lodges the advertisements. If Mr Nahoum is not there, new workers see Mr Mohieddine and they speak to Mr Nahoum after that.
The Tribunal is also not satisfied that the nominee is involved in ‘training staff to deliver a high standard of customer service’ except at a basic level of instructing them how and when to answer the telephone. Although Mr Mohieddine gave evidence that the nominee provides direction and feedback and he sometimes manages and gives a sense of direction, the Tribunal is not satisfied that the nominee is involved in leading or supervising a team of customer service staff. Whilst the nominee may give some directions to the owner, the Tribunal is not satisfied that the nominee leads or supervises Mr Nahoum. Mr Nahoum confirmed at the hearing that there is not a team.
The Tribunal is not satisfied that the nominee carries out all the duties and responsibilities set out in the employment contract for the position of Customer Service Manager.
The Tribunal also has concerns about the organisation chart provided to the Tribunal. It shows that there are 10 people working at the applicant including Mr Nahoum. There are three process workers, two installers and a helper as well as Mr Mohieddine (project manager), the nominee, the accountant and Mr Nahoum (the owner and director). However, Mr Nahoum stated that there are about 14 or 15 employees at the business including Mr Nahoum and they also have contractors for installation.
The Tribunal has had regard to the evidence of Mr Nahoum and Mr Mohieddine about the tasks that the nominee undertakes. The Tribunal has had regard to the tasks set out in ANZSCO. Regarding the task of ‘developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided’, Mr Nahoum did not wish to say anything. When asked by the Tribunal if the nominee reviews policies concerning customer relations, Mr Nahoum stated that the nominee does a lot of things. Mr Nahoum stated that he is out of the office and factory 90% of the time and Mr Mohieddine knows more than Mr Nahoum about what the nominee does. Mr Mohieddine stated that they cannot order from a supplier from 9 December 2016 and the nominee introduced a policy to update customers when they are going to close. The nominee also introduced a policy of sending a postcard when the work is finished to valued customers. They are more professional now. The nominee introduced the complaint form and details are kept on a computer as well as being printed out. The nominee also introduced the policy of greeting customers in a better way. The Tribunal accepts that the nominee has been involved in developing and reviewing policies and procedures concerning customer relations and goods and services provided, although only to a minor degree.
Based on the oral evidence at the hearing, the Tribunal is not satisfied that the nominee will carry out the majority of tasks of a Customer Service Manager as set out in ANZSCO. The tasks of the position, as described by the applicant at the hearing, are to greet customers and take orders for the goods and services and also to deal with complaints and defects, and the nominee has also been involved in introducing a complaint form instead of complaints being put on a piece of paper.
The Tribunal is not satisfied that the nominee will be carrying out the position of a Customer Service Manager. A Customer Service Manager plans, administers and reviews customer services and after-sales services, and maintains sound customer relations. The Tribunal is not satisfied based on the applicant’s evidence that the nominee will perform a significant majority of the tasks of a Customer Service Manager. The Tribunal is not satisfied that the position that the nominee will undertake includes providing direction and feedback to team members and assisting with recruitment. The Tribunal is not satisfied that the nominee assists with recruitment except to a minimal degree. The Tribunal is not satisfied that the nominee provides direction and feedback to team members. This is in part because there really is not a team. There is the director, Mr Nahoum and the project manager/assistant manager, Mr Mohieddine, who mostly deals with the pricing of the jobs.
The Tribunal is also not satisfied that the nominee undertakes the task of managing, motivating and developing staff providing customer services. Whilst he may provide some direction to Mr Mohieddine and to Mr Nahoum, the Tribunal is not satisfied that he manages, motivates or develops staff providing customer services.
The evidence is that, if they hear nothing after the work is done, that means that there are no problems. The Tribunal accepts that the nominee responds to customer complaints and attempts to resolve them and to arrange for rectification of defects. The Tribunal accepts that there are a large number of components and problems can take place. The nominee has introduced a policy of dealing with complaints and customer service. Mr Nahoum stated that the nominee is the only one going to the job site to check the job if there have been complaints. According to Mr Mohieddine, before the nominee was there, they wrote down the complaint on the back of a piece of paper. Now they write it down and tick the complaint off once it has been resolved. The evidence is that the nominee knows how things work at the business and how the products are fabricated. The Tribunal is satisfied that the nominee has been involved in some planning and implementing of after-sales services to follow up customer satisfaction. The Tribunal is not satisfied that the nominee ensures performance of goods purchased, or that he modifies and improves services provided.
The Tribunal is satisfied that the nominee is involved in liaising with customers to identify and respond to customer complaints but is not satisfied that the nominee liaises with other organisational units or service agents to identify and respond to customer expectations.
The Tribunal has considered the evidence but is not satisfied that the need for a full-time Customer Service Manager is genuine. Mr Nahoum was unable to give detailed evidence about the tasks that the nominee carries out. The Tribunal was referred to Mr Mohieddine for evidence as to the tasks that the nominee carried out the day before the hearing. Mr Mohieddine stated that the nominee, on the day before the hearing, had an argument because a customer had been promised items to be delivered on the Monday but the company used a truck for another job so the nominee organised for the truck delivery today. When asked by the Tribunal if there were other tasks that the nominee usually carried out that he did not carry out yesterday, Mr Mohieddine stated that he was doing his own stuff and the nominee was probably doing other things that Mr Mohieddine was not aware of. The Tribunal found the evidence rather vague as to the tasks that the nominee carried out from day to day.
The Tribunal is not satisfied that a business that employs Mr Nahoum (the director and Manager), Mr Mohieddine (the project manager and assistant manager), and an accountant in the office would need a Customer Service Manager. The Tribunal acknowledges that there are other employees who work in the factory but they are not staff that provide customer services. Mr Mohieddine stated that the owner and the nominee take orders. The Tribunal finds that the nominee is mostly involved in dealing with sales of goods and services to customers who come to the applicant’s business although he is also involved in dealing with complaints and organising rectification of work.
The Tribunal accepts that the applicant wishes to expand and is looking for assistance in the business. However, 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 and at the skill level indicated is necessary to the operations of the business.
Based on the applicant’s evidence at the hearing, and taking into account the other written material provided to the Department and the Tribunal, the Tribunal is not satisfied that the position includes a significant majority of the range and skill level of tasks as set out in ANZSCO for the occupation of Customer Service Manager. The Tribunal does not accept that a Customer Service Manager is necessary to the operations of the business of the applicant.
On the evidence, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine. The nomination therefore does not satisfy the criteria prescribed at r.2.72(10)(f).
For the reasons given above the Tribunal finds that the applicant does not satisfy the requirements of r.2.72(10)(f), and therefore does not satisfy all the requirements for approval of the nomination.
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.
D. Dimitriadis
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994 AND ANZSCO
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.
1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.2
UNIT GROUP 1492 CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS
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.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

In New Zealand:
NZ Register Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
odeveloping and reviewing policies, programs and procedures concerning customer relations and goods and services provided
oensuring operational efficiency within a call centre
oproviding direction and feedback to team members and assisting with recruitment
omanaging, motivating and developing staff providing customer services
oplanning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided
oliaising with other organisational units, service agents and customers to identify and respond to customer expectations
omay work in a call centre

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

...

149212 CUSTOMER SERVICE MANAGER

Alternative Titles:
Client Service Manager
Service Manager

Plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.

Skill Level: 2

[2016] AATA 4790

8 December 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness