1603974 (Migration)

[2016] AATA 4434

1603974 (Migration) [2016] AATA 4434 (22 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  AT WASH SERVICES PTY LTD

CASE NUMBER:  1603974

DIBP REFERENCE(S):  BCC2015/2578919

MEMBER:Glen Cranwell

DATE:22 September 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 22 September 2016 at 2:16pm

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 7 March 2016 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 4 September 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.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f).

4. Mr Rakashkumar Patel appeared on behalf of the applicant before the Tribunal on 22 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Niteshkumar Patel.

5. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).

   Position must be genuine

8. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.

9. The applicant nominated Mr Niteshkumar Patel (the nominee) for the position of Customer Service Manager (ANZSCO 1492-12).  The applicant operates a truck washing business.

10. The ANZSCO description of the duties of Customer Service Manager are as follows:

    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

11. The Tribunal has used this as a guide only.

12. The contract of employment between the applicant and the nominee sets out the following statement of duties:

    ·Administer and review client services and after-sales services and responsible for maintaining effective client relations.

    ·Implement and review accounting practice, policies and procedure relating client services.

    ·Responsible for the daily operations and profitability of the truck wash facility.

    ·Maintain client status reports, call notes and relationship plans.

    ·Responsible for physical appearance of site, equipment maintenance, and chemical/supply inventories.

    ·Communicate with clients by telephone, e-mail, and facsimile or in person as needed as well as provide information and answer other general account questions on a timely and accurate basis.

    ·Management of personnel both directly and indirectly through supervisors.

    ·Handling scheduling for all truck wash person personnel.

    ·Assists in staffing and training for the car wash facility.

    ·Contributes to building of team environment.

    ·Assisting the Site Manager when needed.

    ·Oversee client service issues to ensure they are effectively resolved by relevant parties.

    ·Provide direction and feedback to Director and assist with recruitment.

    ·Liaise with Director, staff and clients to identify and respond to customer expectations.

    ·Increase client satisfaction by understanding business needs and recommending things like training classes, module usage or customer facing resources.

    ·Resolve client billing questions and transactions with accounting, financial staff or carrier discrepancies.

    ·Train, manage, motivate and evaluate staff providing client services.

13. Mr Patel told the Tribunal the applicant currently employs 13 staff.  He is the director, and is not there all the time.  He is there 2, 3 or 4 days a week and the rest of the time he is investigating other business opportunities.  The nominee is one of the onsite managers, along with Sukhvinder Singh, the operations supervisor.  The nominee works in the office.  The remaining staff members are the wash bay crew and foreman.  Mr Patel confirmed that the nominee was currently working in the position.

14. The Tribunal asked Mr Patel what the nominee does on a daily basis.  Mr Patel stated that the nominee’s duties are:

    ·talking to customers;

    ·getting new customers;

    ·processing credit applications;

    ·talking to customers regarding services;

    ·getting reviews from customers;

    ·explaining to customers what services are performed on site.

15. The Tribunal observed that it sounded like the nominee was involved in a sales role.  Mr Patel stated that this was not the case.  When a customer was not happy, the nominee would respond and make sure the customers would come back again.

16. The Tribunal noted that the list of duties contained in the contract of employment was considerably more extensive than the duties reported at the hearing.  Mr Patel stated that other duties included:

    ·reporting day to day what is happening;

    ·talking to team leaders about issues from customers.

17. The Tribunal put to Mr Patel that the position may involve elements of management and elements of customer service, but this did not make the position one of customer service manager.  A customer service manager is a specialist manager position, normally to be found in a much larger organisation.  Such a business might have other specialist managers, such as a human resources manager or a finance manager.

18. Mr Patel stated that the business has 300 accounts.  If customers do not come in, the nominee follows them up.  He resolves any issues.

19. The Tribunal put to Mr Patel that although some of the tasks involve maintaining good customer relations and ensuring customer satisfaction in the context of the applicant’s business, they appear to be carried out at a very basic level and are tasks common to many sales or supervisory positions in businesses that provide goods and services in a retail setting.

20. Mr Patel stated the business concentrates on account holders.  His wife used to be the Customer Service Manager.  He is looking for someone to replace her.  He is trying to start up a mobile truck washing business, and needs someone to be on site at all times.

21. The nominee stated that he agreed with the account of his duties provided by Mr Patel at the hearing.  He stated that he talks to crew members, and tries to sort out problems with customers.  If he is unable to sort out the problem, he talks to Mr Patel about the issue.

22. The representative stated that the nominees role also includes the following:

    ·the nominee makes sure that every employee delivers satisfactory services;

    ·the nominee’s main role is to improve the operational efficiency of the business in Mr Patel’s absence;

    ·the nominee liaises with external service providers when customers request a service the applicant is unable to offer.

23. Mr Patel confirmed the descriptions provided by the nominee and the representative.  He also added that his trying to expand the business to Sydney, Melbourne and New Zealand.

24. The Tribunal accepts Mr Patel’s evidence that the nominee is important to the ongoing success and operations of the business and that he genuinely fills a key position within the business. However, the issue in this case is not whether the position is genuine but whether it can be genuinely described as the occupation nominated, namely, Customer Service Manager (149212).

25. The Tribunal finds that the nominated position pertains to the management of a truck washing business.  The Tribunal accepts that the nominee’s position may involve elements of management and elements of customer service, but this does not necessarily make the position one of Customer Service Manager.  A Customer Service Manager is a specialist manager position, normally to be found in a much larger organisation.  Such a business might have other specialist managers, such as a human resources manager or a finance manager.  Given the nature and size of the business, the Tribunal is not satisfied that the nominee’s position is one of Customer Service Manager. 

26. The Tribunal also does not accept that a Customer Service Manager is necessary to the operation of the business.  In the Tribunal’s view, the majority of the nominee’s duties are not consistent with the types of tasks included in the ANZSCO for the occupation of Customer Service Manager.  Although some of the tasks involve maintaining good customer relations and ensuring customer satisfaction in the context of the applicant’s business, they are carried out at a very basic level and are tasks common to many sales or supervisory positions in businesses that provide goods and services in a retail setting.

27. Having carefully considered all of the evidence before it, and having regard to the ANZSCO descriptions of occupations, the nature of the business and actual tasks of the position, the Tribunal is not satisfied that the position can be genuinely described as the occupation of Customer Service Manager.  The Tribunal therefore is not satisfied the position associated with the nominated occupation is genuine.

28. For these reasons the requirements of r.2.72(10)(f) are not met.

29. 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

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

    Glen Cranwell
    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.