Bhullar Steel Distribution Pty Ltd (Migration)

Bhullar Steel Distribution Pty Ltd (Migration) [2017] AATA 71 (11 January 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Bhullar Steel Distribution Pty Ltd
CASE NUMBER:  1511949
DIBP REFERENCE(S):  BCC2015/1711710
MEMBER:Catherine Carney-Orsborn
DATE:11 January 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 11 January 2017 at 2:24pm
CATCHWORDS
Migration – Nomination – Subclass 457 – Genuine position – Customer service manager – ANZSCO classification – Inconsistent evidence

LEGISLATION
Migration Act 1958, s.140GB, s359A
Migration Regulation 1994, r 2.72, r 2.73

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 12 August 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 15 June 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 2.72(10)(f) because the delegate was not satisfied the job description closely resembled the ANZSCO description of the same occupation. He was not satisfied the nominated position was genuine.
The Tribunal held a combined hearing on the 23 November 2016 with the applicant and the subject of the nomination for the 457 visa.
The applicant appeared before the Tribunal on 23 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Chumber the subject of the nomination application.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
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).
Evidence before the Tribunal
The applicant gave oral evidence to the Tribunal. A summary of that evidence is as follows. The company is a family company that started in 2006. It specialises in making pre-fabricated steel and steel processing. It is a specialised area and their markets are Australia and New Zealand.
The director who represented the company is the son of the founder of the business. His evidence is that the company produces a specialised product. He wants to sponsor Mr Chumber for the position of Customer Service Manager.
The applicant gave detailed evidence about the company and the work that it does. He described how it is expanding. He claimed at hearing that the customer service manager position is not a generic position and as such it does not exactly match ANZSCO guidelines. He claimed that the position was specific to the company.
The applicant stated that Mr Chumber applied for a job that was advertised. He said that he did not know Mr Chumber before he applied.
He said that Mr Chumber started with the company as a general hand. He said he had this position for about 6-8 weeks and transitioned to customer service manager.
He said that Mr Chumber has a diploma in customer service management. He said he started work in January 2013. He said he was still on a student visa so could not work unless nominated.
When asked about Mr Chumber’s actual role he said it is not a generic position. He has no sales staff as customer service manager.
He is updating and liaising with clients with issues such as delivery issues. He needs to have a good understanding of manufacturing.
He said the business is expanding and they are now in a factory of 4,000 square metres. He said the number of employees was growing.
He said he has 14 employees full-time and also has sub-contractors he uses when necessary.
The Tribunal went through the organisational chart provided at the hearing with the applicant. The Tribunal pointed out that there already appeared to be sufficient managers to deal with the work of the company and number of employees. The applicant then went through the duties of the managers.
The Tribunal commented that the duties of the other managers seem to overlap with the duties he described that are part of Mr Chumber’s position.
The Tribunal pointed out that it uses the ANZSCO classification of customer service manager as a guide and it does not appear on the evidence that Mr Chumber’s role involves many of the duties listed. The Tribunal gave the applicant an opportunity to expand on the duties performed by Mr Chumber.
He said that Mr Chumber makes sure that deliveries are on time, trucks are booked in and checks if there are any issues with delivery. He makes sure that that work is performed and he reports to the Manager (the applicant).
Mr Chumber
Mr Chumber then gave evidence. He stated that he had a friend who worked at the company and he applied for a job there.
He said he has a Diploma in Accounting and Business. He claims he first started with the company in January 2013. He started work at the company as a customer service manager. He communicates with customers. He said he checks with customers and sends purchase orders and he sends quotations, he said he will liaise with customers and change things according to their needs. He said they now have a bigger workshop at Auburn.
The Tribunal asked who the largest customer was. The Tribunal asked him to spell the name of the customer. He seemed hesitant and then said it was Paceip Steel.
He said the business was construction beams and non-standard beams. He said that he deals with 5-6 customers in one day. The Tribunal asked whether he has any other duties, such as reviewing policies, programs and procedures concerning customer relations and goods and services provided. He replied that he does do this. He did not expand on this.
The applicant then responded to Mr Chumber’s evidence. He said that his customers were large and listed some well-known companies. He did not list Paceip Steel as a customer.
The Tribunal put to the applicant that Mr Chumber’s evidence seemed very vague. He evidence did not appear convincing for someone who claims to have been customer service manager for three years. The applicant again went through the expansion of the business and his new customers.
After the hearing the Tribunal sent a s359A letter to the applicant listing its concerns with Mr chumber’s evidence.
The applicant responded to the concerns set out in the letter and the Tribunal has taken those responses and further submissions into account.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The position of customer service manager is a high level managerial position. It involves planning, administering and reviewing customer services and after sales services as well as maintaining sound customer relations. A smaller organisation would have many of these duties performed by the director of the company. The day to day operations of these functions can be carried out by a range of staff or supervisors.
The position would not be concerned with general administrative or operation duties.
The evidence of nominee, Mr Chumber, was vague. He appeared unable to speak with any authority. When asked to name the company’s largest customer he had difficulty doing so. In response to the 359A letter sent by the Tribunal the applicant stated that Mr Chumber misunderstood some of the questions. He further stated that he was unable to spell the name of the customer. He stated that the Mr Chumber had provided the name of a customer which was Pacific Steel which was the one he spelt for the Tribunal. He stated that this customer had recently had a small order.
The Tribunal accepts that he may not have been able to spell the name of the customer however if it was the largest customer Mr Chumber was dealing with the Tribunal does not accept that he would be unaware of the spelling of the name given he has claimed to be working as a customer service manager for some time. He was unable to speak with any authority on the number and who the company’s largest customers were. In submissions the applicant stated that they had recently acquired a large contract at Barangaroo site which Mr Chumber will devote 70% of his time. The Tribunal would have expected that Mr Chumber if he was working as a customer service manager for some time would have been able to give clear and detailed evidence about the customers he worked with and certainly new customers as outlined in the applicant’s submissions.
In the response to the 359A letter the applicant did not adequately address the issue of him not knowing the qualifications that Mr Chumber had except to state that he was focused on his business skills rather then his accounting skills or qualification.
The Tribunal does not accept that Mr Chumber could not understand questions as the Tribunal took some time to ascertain that he did not need an interpreter. Mr Chumber was clear that he did not need any assistance from the interpreter who was present. The Tribunal did not discern that he was having any difficulties with the understanding the questions.
At hearing the applicant stated he had fourteen employees and some sub-contractors.
The organisational chart provided to the Department listed by name eight employees and positions which were casual or had no name attached to them. There were seven roles which were listed as management. The applicant claimed that the position he was nominating was not a generic customer service manager position. The duties as outlined by Mr Chumber did not align with duties as listed in ANZSCO. In submissions provided in writing after the hearing the applicant provided a list he had compiled of the duties required for the position of customer service manager which he has nominating Mr Chumber for. The new list aligned with ANZSCO however was inconsistent with the evidence previously given by the applicant and Mr Chumber. The Tribunal prefers the evidence given at hearing by the applicant and Mr Chumber as to what the duties of Mr Chumber are.
At hearing Mr Chumber was not able to give persuasive evidence of his role or duties with the company he claimed he had worked in customer service for some time and in other roles since. In response to the Tribunal’s concerns that Mr Chumber gave a different year from the applicant in relation to when he started work at the company the applicant responded that he misunderstood the question. The Tribunal does not accept that he misunderstood such a simple question.
On the evidence before it the Tribunal is not satisfied that the number of employees in relation to managers within the company would indicate that the position of customer service manager is a genuine position. The role of customer service manager in the nominating company’s organisational chart had no staff answering to it and no management of staff. When the Tribunal put to Mr Chumber at hearing whether he performed other duties such as policy he answered yes and did not expand or give any convincing or persuasive details.
After considering and reviewing all the evidence before it including Mr Chumber’s evidence, his lack of knowledge of the position and any convincing evidence in relation to who the customers are the Tribunal is not satisfied that the position is genuine.
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.
Catherine Carney-Orsborn
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.

[2017] AATA 71

11 January 2017

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Natural Justice