Al Arab (Migration)

[2017] AATA 2226

Al Arab (Migration) [2017] AATA 2226 (6 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Osama Al Arab

CASE NUMBER:  1513631

DIBP REFERENCE(S):  BCC2015/823879

MEMBER:Hugh Sanderson

DATE:6 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 06 November 2017 at 12:57pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) – Subclass 457 – Customer service manager – Not subject to an approved nomination – Sponsorship application refused

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl.457.223

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 13 March 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 30 September 2015 on the basis that cl.457.223(4)(a) was not met because the applicant was not subject to an approved nomination.

   Background

5. The applicant is a citizen of Lebanon. He applied for the visa on the basis of a sponsorship by Hamze Meats Pty Ltd (hereinafter Hamze Meats) for the position of a customer service manager (ANZSCO 149212). In the application, his base rate of pay was stated to be $60,000. The sponsorship application of Hamze Meats was refused by the Department on 29 July 2015. As the sponsorship application was refused, the delegate found that the applicant was not subject to an approved nomination and therefore refused the application.

6. Both the applicant and Hamze Meats sought a review of the Department’s decision to refuse the application and the sponsorship application.

   The first hearing

7. The applicant appeared before the Tribunal on 13 December 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Hamze. The applicant was represented in relation to the review by his registered migration agent.

8. The applicant said that his role in the business was to ensure that satisfactory customer service is effectively given at the Liverpool shop of Hamze Meats. He said that he would be taking care of, receiving and handling customer complaints. He said that there was about three or four customer complaints each day. He said that as he spoke both Arabic and English this would be of advantage as the store sold Halal products. He said that he would be supervising the four people at the retail shop. He said that Hamze Meats had three shops and that he would be managing the one at Westfield Liverpool. He said that his pay would be $62,000 per annum.

9. Mr Hazme stated that he planned to expand the business into ordering online. He said that the applicant would be working from the Liverpool shop and he would be the person working in the store or doing online orders. He said that he was ideal for the position because he spoke both Arabic and English.

10. After the hearing, the Tribunal set aside the decision not to approve the application of the sponsorship by Hamze Meats and substituted a decision to approve Hamze Meats as a standard business sponsor. As a nomination of the applicant had been made by Hamze Meats the Tribunal took no further steps, at that time, pending approval of the nomination of the applicant by Hamze Meats.

11. Changes to the list of nominated occupations was made by the Minister in IMMI 17/060 Specification of Occupations – Subclass 457 Visa. The changes applied to all nominations of occupations made but not finally determined before 1 July 2017, regardless of whether, for a nomination in relation to an applicant for a visa, the application was made before, on or after 1 July 2017.

12. In respect of the nominated occupation of Customer Service Manager (ANZSCO 149212) the occupation was not applicable where the nominated position;

    ·has nominated base salary of less than AUD $65,000; or

    ·is based in a front-line retail setting; or

    ·predominantly involves direct client transactional interaction on a regular basis; or

    ·is in a business that has an annual turnover of less than AUD $1,000,000.

13. The Department issued a decision on 12 September 2017 refusing the nomination application of Hamze Meats on the basis that one or more of the restrictions specified above applied to the nominated position. The delegate found that the nominated position was based in a retail butcher shop which was a frontline retail setting where the sponsoring business was selling goods directly to the public. Accordingly, the delegate found that reg.2.72(10)(aa) was not met and refused the nomination application. The applicant has provided to the Tribunal a copy of that decision. Hamze Meats has since filed an application for a review of that decision with the Tribunal.

    The second hearing

14. The applicant appeared before the Tribunal on 26 October 2017 at a second hearing to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

15. The Tribunal explained to the applicant the requirement in cl.457.223(4)(aa) that the applicant must show that the nominated occupation is specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect. The Tribunal noted that the nominated occupation of Customer Service Manager (ANZSCO 149212) was now subject to the above caveats. An issue was whether the occupation for which the applicant was being nominated was based in a front-line retail setting or predominantly involves direct client transactional interaction on a regular basis.

16. The applicant said that he was aware of the restrictions now associated with his nominated occupation.

17. The applicant said that Hamze Meats had three shopfront locations. He said that he would be managing the one at Liverpool. He said that there were customer service managers at the other two shops and they were relatives of Mr Hamze. He said that as the customer service manager he would be handling the complaints at the Liverpool shop. He said that he believed that there would be a maximum of two complaints per day.

18. The applicant said that he was not currently working at Hamze Meats but was working 20 hours a week in a security business. He said Mr Hamze was currently in the Liverpool shop doing the job that he had been nominated for. He said that he did everything himself as the customer service manager at Liverpool and has other people working at the other two stores.

19. The applicant said that the Liverpool store is a high traffic area compared to the other two stores. He said that as the other two stores are not high traffic areas the people who manage those stores multitask and see customers at the shop front. He said that he would not do this in Liverpool. The Tribunal put to the applicant that if the Liverpool store was a high traffic area then this would mean that it would be more likely that any customer service manager would be predominantly involved with direct client transactional interaction on a regular basis rather than quieter stores. The applicant denied this saying that he would be in the office doing his job and would not be helping out the front.

20. The Tribunal asked the applicant to provide details of the work that he would be expected to do. The applicant said that he would be paying for stuff, every week he would collect data to see what products are selling good or bad and would be doing marketing stuff. He gave the example that if they were selling a new product, such as a new cut of steak from Western Australia he would have to tell the staff about it. He said that they had a staff meeting once per week. He said that sometimes Westfield has promotions and he would be involved with that as well.

21. The Tribunal put to the applicant that the work he described would not appear to take any significant time and that it was not plausible that he would be involved in that on a full-time basis and would not be involved with direct client transactional interaction. The applicant claimed that he would be staying in the office and not being involved in the business. He said that he had not worked previously in any butcher shop and had no experience as a customer service manager. He said the only experience he had in a shop was when he worked in a pharmacy in Lebanon in their sales staff.

22. The applicant said that Mr Hamze was currently doing the work of the customer service manager in the Liverpool shop. He said that he was doing all the things, including all the bookwork and also seeing the clients because he liked to do it. He said that if Mr Hamze had any organisational plans then the applicant would be required to tell the staff. The Tribunal put to the applicant that it was not plausible that if Mr Hamze was present in the shop that he would be telling the applicant to tell the staff what he wanted to tell them about organisational plans. The applicant said that this was the way it was because Mr Hamze has problems with dealing with staff as he gets angry.

23. The applicant provided further material after the hearing including the following:

    ·Submissions provided to the Department from the applicant’s agent as to whether the  applicant met the revised definition of Customer Service Manager;

    ·Revised contract of employment between the applicant and the sponsor with a stated annual salary of $65,000;

    ·Balance sheet of the sponsor showing a trading turnover in excess of $1.6 million for the half-year;

    ·Updated organisation chart showing the applicant as the customer service manager for the “online store” and the Liverpool store with the applicant supervising three other workers, relatives of the owner of the business who were employed as “customer service representatives”; and

    ·Photos of the Liverpool store showing a small office associated with the shop at Liverpool and a sign purportedly dated 8 March 2017 stating “Order online… coming soon”.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4). The basis of the Department’s decision was that the applicant was not subject to an approved nomination. Since the Department’s decision, the nominated occupation of the applicant has been subject to a change in definition pursuant to IMMI 17/060. This change applies in relation to nominations of occupations made and not finally determined before 1 July 2017. Accordingly, in order to meet the criteria in cl.457.223(4)(aa), which requires the nominated occupation is specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect, the applicant must meet the revised criteria.

26. The specification of occupations in IMMI 17/060 includes the occupation of customer service manager (ANZSCO 149212) which is the occupation for which the applicant has been nominated. This occupation is subject to three inapplicability conditions. These are as follows:

    ·(2) The position has a nominated base salary of less than AUD $65,000;

    ·(11) The position:

    ois based in a front-line retail setting; or

    opredominantly involves direct client transactional interaction on a regular basis; and

    ·(19) The position is in a business that has an annual turnover of less than AUD1,000,000.

27. Evidence has been provided that the business has an annual turnover of more than $1,000,000. Based on this information condition 19 is satisfied.

28. In his application, the applicant claimed that he would have a base salary of $60,000. In the first hearing before the Tribunal this was amended and he claimed that he would have a base salary of $62,000. The contract was provided dated 18 November 2016 confirming that his remuneration would be an annual salary of $62,000. The applicant has now provided a new Contract of Employment with the sponsor dated 21 August 2017 stating that he would be paid an annual salary of $65,000.

29. Based on the applicant’s current proposed Contract of Employment, condition 2 is satisfied.

30. The applicant has claimed that the position it is intended he will occupy is not based in a front line retail setting or predominantly involving direct client transactional interaction on a regular basis. The Tribunal does not accept this claim.

31. The position the applicant would be involved with is in a relatively small operation. Although the sponsor has a number of outlets, the applicant would be based at the Liverpool shop of the sponsor. Currently, this is where the director of the business, Mr Hamze, is based. He is described in the organisational chart as the Director/Butcher. In the organisational chart provided by the applicant, there are only three other people employed at the Liverpool shop, Jinan Hamze, Obeida Hamze and Saleh Hamze. They are described as customer service representatives. The applicant said that the Liverpool shop was the busiest store of the sponsor with “high traffic”. The photos provided of the store showed a large frontline retail shop front and display area together with meat processing areas and storage areas and a small office with a desk and chair. The shop is located in Westfields Liverpool shopping complex with other retail stores.

32. At the first hearing, the applicant claimed that his main role would be taking care of, receiving and handling customer complaints. He said that his role was to ensure that satisfactory customer service was provided in the Liverpool shop. At the second hearing the applicant again claimed that his main role would be dealing with and taking care of customer complaints. He then minimised how many customer complaints he would have to deal with. He then said that his main role would be store research, including managing stock and also providing information to the staff about products that Mr Hamze would consider introducing. This would take place during weekly or daily staff meetings. No evidence was provided which would indicate that this activity would take any significant time or, if he did undertake this role, that it would only form a very small proportion of his working week.

33. The director of the applicant’s sponsor, Mr Hamze, currently undertakes the role that it is proposed the applicant will be employed in. It is noted that the applicant stated that he was currently employed “in security” and is not involved in the business at all. Mr Hamze was described by the applicant as regularly having direct customer interaction as he enjoyed doing this. It was stated that he would be remaining based at the Liverpool shop. If this was the case, it is difficult to understand how Mr Hamze and the applicant would have been able to work together in the very small office which was shown in the photo provided by the applicant to be present in the Liverpool shop.

34. The applicant said the current managerial requirements of Mr Hamze did not take up his full time. He was described as being involved in direct client interaction as he enjoyed dealing with clients. The applicant claimed that Mr Hamze was a very angry person who would get angry with his staff. This seems to be in contradiction with his enjoying client interaction and the success he has had in establishing the family business, employing various family members.

35. The evidence of the applicant was that there were other customer service managers employed in the other shops, however, they were also engaged in direct client transactional interaction on a regular basis. The applicant claimed that this would not be the case in the Liverpool store as it was a busy store with high traffic. The Tribunal does not accept that if the Liverpool store was the busiest store of the sponsor with the highest traffic that this would reduce the direct client transactional interaction of the applicant in his business. The Tribunal finds that the position of the applicant at the Liverpool store would include higher direct client transactional interaction if that store did have “high customer traffic”.

36. The above evidence clearly indicates that the occupation of the applicant based in the Liverpool shop would predominantly involve direct client transactional interaction on a regular basis.

37. It was claimed that the sponsor was planning to develop an online business. This claim was made at the first hearing before the Tribunal. A photo of a sign claiming that an online business would be “coming soon” purportedly taken on 8 March 2017 was provided. No evidence, however, was provided that apart from an idea, the sponsor has done anything to develop an online business. There is no information which would indicate that the applicant would be involved in the online business or that he would have any qualifications or experience to manage any online business of the sponsor.

38. The Tribunal does not accept the claims made by the applicant that the nominated occupation would have any involvement in any online business.

39. The Tribunal finds that the nominated position of the applicant is based in a front-line retail setting and that it predominantly involves direct client transactional interaction on a regular basis. As such, the Tribunal finds that the nominated occupation of the applicant is subject to the inapplicability condition 11 for a customer service manager. As the inapplicability condition applies to the applicant’s nominated occupation, the Tribunal finds that the nominated occupation is not specified in the appropriate instrument. Accordingly, the Tribunal finds that the criteria in cl.457.223(4)(aa) is not met.

40. 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

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

    Hugh Sanderson
    Member

    
    

    ATTACHMENT - CLAUSE 457.223 (EXTRACT)

    457.223

    …

    Standard business sponsorship

    …

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

    (a)each of the following applies:

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

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

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

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

    (ba)either:

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

    (ii)    each of the following applies:

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

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

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

    (d)the Minister is satisfied that:

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

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

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

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

    (eb)if:

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

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

    the applicant:

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

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

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

    (f)either:

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

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

    …

    (6)This subclause applies to an applicant if:

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

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

    …

    (11)In subclause (4):

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