1509153 (Migration)

[2016] AATA 3432

1509153 (Migration) [2016] AATA 3432 (8 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Albert Anthony

CASE NUMBER:  1509153

DIBP REFERENCE(S):  BCC2015/562888

MEMBER:Carolyn Wilson

DATE:8 March 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 08 March 2016 at 10:12am

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 20 February 2015.

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 3 July 2015 on the basis that cl.457.223(4)(da) was not met because the applicant did not have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

5. The applicant appeared before the Tribunal on 10 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from his employer Dr Peter Coleman and his manager Ms Emily Steinbach.

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

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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)(d) and (da).

   Genuine intention

9. Clause 457.223(4)(d) requires that the applicant’s intention to perform the occupation is genuine and the position associated with the nominated occupation is genuine.

10. The nominated occupation is that of Customer Service Manager.  The applicant works for Public Outreach Consultancy Pty Ltd, a fundraising organisation that recruits ‘donors’ for charities.  This is achieved by fundraisers working on streets or in shopping malls approaching people to entice them to sign up for regular monthly donations.    

11. An issue for the Tribunal is whether the role of Customer Service Manager is genuine. 

12. The ANZSCO defines a Customer Service Manager (149212) as someone who:

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

    Tasks Include:

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

    ·Ensuring operation efficiency within a call centre

    ·Providing direction and feedback to team members and assisting with recruitment

    ·Managing, motivating and developing staff providing customer service

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

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

    ·May work in a call centre

13. The applicant described his role as being ‘responsible for crafting the customer’s journey with a focus on high quality donor interactions’.  He listed the responsibilities in his role as follows:

    ·Developing and ensuring quality and client/donor care standards met

    ·Conducting public interaction and client/donor care training for new and existing team members

    ·Managing a team with direct client contact, motivating staff and monitor staff KPIs

    ·Reviewing and responding to client/donor issues including questions, expectations and complaints

    ·Strategising improvements for office performance

    ·Assist the training officers to provide client training for all new team member.[1]

    [1] Department file f.20

14. The Tribunal accepts the applicant is managing a team of people working as fundraisers.  The Tribunal has doubts about whether such a role fits with the occupation Customer Service Manager. 

15. The Tribunal put to the applicant that the customers of the business are in fact the charities who contract with them to find donors.  The Tribunal considers the general public being approached on the street are not customers as they are not looking to buy goods or services, but are instead being asked to give something to Public Outreach Consultancy.  The applicant says the charities who contract with Public Outreach Consultancy are not their customers.  He identified these charities as the clients of the business, and it is the donors who are the customers.  When asked to identify the difference between the terms ‘client’ and ‘customer’ the applicant was unable to.

16. The Tribunal gives the terms client and customer their ordinary meaning, as defined in the Australian Macquarie Dictionary.  The term ‘client’ is defined, inter alia, as a customer.[2]  The term customer is defined as ‘someone who purchases goods from another; a buyer; a patron’.[3]   The Tribunal has considered these definitions, and maintains its view that the charities engaging Public Outreach Consultancy fit the definition of client or customer better that the general public.

    [2] >

    The applicant submits the donors are the customers of Public Outreach Consultancy because they are offering them a service.  That is, facilitating their desire to donate to the charity of their choice.  However, the Tribunal considers it likely that many people approached by the fundraisers in the streets do not go on to sign up as donors.  There is no customer relationship at that point, even if it could be said that the people who sign up to donate are ‘customers’.  The focus of the role is to manage the people working on streets or in shopping malls trying to find donors.  The focus of the role is not to plan, administer and review customer services offered to the main customers of the business (i.e. the charities), as the applicant has minimal contact or input into this side of the business. The role also has limited input into the customer service provided to the signed up donors, because the applicant’s only input after a person signs on as a donor appears to be responding to complaints.

17. The Tribunal concludes the nominated role involves training and managing fundraisers working on the street, and assisting them to meet their KPIs.   The Tribunal is not satisfied such a position fits with the occupation Customer Service Manager, and is not satisfied it is a genuine position for a Customer Service Manager.

18. The Tribunal accepts the applicant genuinely intends to work for Public Outreach Consultancy.  However for the reasons given above, the Tribunal does not accept the position associated with the nominated occupation is genuine.

19. For these reasons the requirements of cl.457.223(4)(d) are not met.

20. Given this finding, it is not necessary to consider whether the applicant meets cl.457.223(4)(da)

21. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

    DECISION

22. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    Carolyn Wilson
    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

    (ea)if:

    (i)    the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and

    (ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant 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 by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

    the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and

    (eb)if:

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

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

    (iii)    at least 1 of subparagraphs (ea) (i) and (ii) does not apply;

    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.