Dimeo Cleaning Services (Aust) Pty Ltd ATF The DCS Trust (Migration) - [2021] AATA 3727

Dimeo Cleaning Services (Aust) Pty Ltd ATF The DCS Trust (Migration) [2021] AATA 3727 (6 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dimeo Cleaning Services (Aust) Pty Ltd ATF The DCS Trust
CASE NUMBER:  1827257
HOME AFFAIRS REFERENCE(S):          BCC2017/171177
MEMBER:Karen McNamara
DATE:6 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 06 July 2021 at 11:04am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Customer Service Manager – tasks of nominated position – alignment with ANZSCO – national based cleaning company – operational requirements – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
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 Home Affairs on 13 September 2018 to reject the application by Dimeo Cleaning Services (Aust) Pty Ltd ATF the DCS Trust (the applicant) for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 13 January 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the application did not demonstrate that the tasks to be performed in the position correspond to the tasks of an occupation that is specified in the relevant instrument for sub sub-paragraph 5.19(4)(h)(ii)(D).
The applicant applied to the Tribunal on 18 September 2018 for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
On 22 June 2021, the applicant represented by Mr James Gifford (referred to below as the applicant) appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Ms Diana Paola Acero Bohorquez (the nominee) in the related matter for the subclass 187 visa (AAT Case file 1830331) and Ms Sophie Macguire, Dimeo ACT Executive Manager. The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.
On 30 June 2021, the Tribunal received submissions from the applicant addressing matters raised by the Tribunal during the hearing of 22 June 2021.
The applicant was represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Background
The applicant is a national based cleaning company, established approximately forty years ago. The business was purchased by the current operator approximately twenty-two years ago and has since undergone considerable growth and expansion. The business specialises in all aspects of the cleaning industry including waste and sanitary management, building and facility management, maintenance and specialised and forensic cleaning services. Nationally the business employs over 3,000 staff, the majority of whom are from a migrant background.
On 13 January 2017, the applicant lodged an application for an employer nomination approval for the position of Cleaning Services Manager (occupation Customer Service Manager - ANZSCO 149212) under the Regional Sponsored Migration Direct Entry stream. On 9 February 2018, the nominator notified the Department of changes in circumstances advising that the position was now located in Mitchell, ACT and the nominated base rate and guaranteed earnings is $60,000 per annum.
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958, declared and signed by the applicant. Accordingly, the requirements of r.5.19(4)(a)(i) are met.
In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by Mr James Gifford and Ms Sophie Macguire. In support of the need for the position, the applicant has provided evidence in the form of various references for the nominee, representatives submission dated 22 April 2021 and oral evidence provided at the hearing on 22 June 2021.
The applicant told the Tribunal, the need to employ a paid employee to work in the nominated position arose when the business expanded its operations into the ACT after being awarded numerous cleaning contracts including Australian Parliament House, Pwc and ACT Public Schools.
Accordingly, the requirements in r5.19(4)(a)(ii) are met.
As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal accepts on the evidence before it that the applicant is a national based cleaning company with a regional office located at Mitchell, ACT. Based on the material provided to the Tribunal, including; financial statements, BAS returns, ASIC details, and workers compensation policy details, the Tribunal is satisfied the applicant is actively and lawfully operating a cleaning business in Australia and directly operates that business.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
In considering whether the business has the financial capacity to pay the nominee, the nominated full time salary of $60,000 per annum for at least two years, the Tribunal has taken into consideration evidence before it including the applicant’s most recent financial statements, documents submitted to the ATO and information which show the applicant has met payroll and operating costs.
The Tribunal has also taken into consideration evidence before the Tribunal to support that the nominee has been continuously employed by the applicant in the nominated position since July 2017. The nominee’s bank account statements and PAYG’s support the nominee has received regular salary payments in excess of the nominated salary amount and employer superannuation contributions have been paid.
The Tribunal notes that the applicant’s financial statements show that the business has reported substantial revenue with proportionally aligned profit. In 2019/20 financial year the business reported revenue in excess of $166 million, net equity in excess of $15 million and cash at bank exceeding $10 million. The Tribunal is satisfied that the financial evidence before it, supports that the applicant’s revenue can sustain the ongoing employment of the nominee.
At the hearing the Tribunal discussed with the applicant the impact of the COVID -19 pandemic on the business. The applicant told the Tribunal that revenue did not grow at the predicted rate due to reduced services attributable to reduced occupancy of CBD managed facilities as people worked from home. The business however, gained work in regional areas including the ACT, which compensated for the reduced revenue from City CBD sites. The Applicant told the Tribunal that the largest impact has been on staffing numbers as the company is reliant upon student workers and with the closure of international borders, they are struggling to fill casual cleaning positions.
The Tribunal additionally notes the Accountant’s notes to the 30 June 2020 consolidated financial statements which states: ‘ The coronavirus disease 2019 (COVID-19) outbreak occurred subsequent to the group's period end. In the current environment it is challenging to predict with certainty the expected impact of COVID-19 on the results of the group for the period ending 30 June 2021. However, the directors have concluded that there is no impact from COVID-19 on the group's financial statements for the period ended 30 June 2020.’
The Tribunal has afforded consideration to the financial evidence before it and is satisfied the applicant has the financial capacity to pay the nominee a full-time salary of $60,000 per annum and maintain the employment of the nominee on a full time basis for two years.
Accordingly, the requirement in r.5.19(4)(d)(i) is met.
The Tribunal has had regard to the nominee’s contract of employment signed and dated 14 April 2021. The contract sets out the terms and conditions of employment and indicate that the period of employment is a minimum of two years but is not restricted to a two-year period. The contract stipulates the remuneration package is $85,000 with a salary component of $77,625.60 and superannuation $7,374.43 per annum and motor vehicle with an annual value of $16,000. The contract stipulates the normal working hours will be 8:30 am to 5:30 pm Monday to Friday. There is no term excluding an extension of the contractual engagement.
The Tribunal is satisfied based on the contract of employment signed and dated 14 April 2021 and other material before it, that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.
Accordingly, the requirement in r.5.19(4) (d) (ii) is met.
As the criteria in both r.5.19(4)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(d) are met.
No less favourable terms and conditions of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The contract of employment dated 14 April 2021 sets out the terms and conditions of employment. The contract indicates that the nominee’s remuneration package includes salary of $77,625.60, superannuation of $7,374.43 per annum and a motor vehicle with an annual value of $16,000. Hours of work are 8.30 am to 5.30pm Monday Friday ( approx. 40 hours per week). The nominee’s leave entitlements include annual, long service, personal/carers leave.
The Tribunal has received copies of the nominee’s PAYG’s and payroll information confirming that the nominee has been paid by the applicant, in excess of the nominated salary amount of $60,000 per annum. Superannuation information provided to the Tribunal support that the nominee has received superannuation payments. The Tribunal is therefore satisfied based on the evidence that the nominee will be paid in accordance with the terms of employment.
The Tribunal is satisfied on the totality of the evidence before it that the terms and conditions applicable to the position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
The meaning of adverse information is defined in r.1.13A as follows
(1) Adverse information is any adverse information relevant to a person's suitability as:
(a)       an approved sponsor; or
(b) a nominator (within the meaning of regulation 5.19 ); or
(c) a maker of a nomination in accordance with a labour agreement ; and includes information that the person, or a person associated with the person:
(d) has been found guilty by a court of an offence under a Commonwealth, State or Territory law that relates to one or more of the matters referred to in subregulation (2); or
(e) has, to the satisfaction of a competent authority, acted in contravention of such a law; or
(f) has been the subject of administrative action (including being issued with a warning), by a competent authority, for a possible contravention of such a law; or
(g) is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law; or
(h) has become insolvent within the meaning of subsections 5(2) and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001 .
(2) The matters are the following:
(a)       discrimination;
(b)       immigration;
(c)       Industrial relations;
(d)       occupational health and safety;
(e)       people smuggling and related offences;
(f)        slavery, sexual servitude and deceptive recruiting;
(g)       taxation;
(h)       terrorism;
(i)        trafficking in persons and debt bondage.
(3) The conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(d) to (h) must have occurred within the previous 3 years.
(4)       In this regulation:
competent authority has the meaning given by subregulation 2.57(1) .
There is evidence before the Tribunal regarding the applicant that may be considered adverse. The information relates to the applicant on the 14 August 2019 being issued an infringement notice for $12,600 and being barred as a sponsor for a period of three months.
In submissions to the Tribunal dated 22 April 2021, the applicant disclosed the circumstances regarding the adverse information. Details pertaining to the adverse information have been discussed before this Member in previous matters (AAT case files 1732053 and 1820293).
Evidence before the Tribunal shows that the Department’s actions were the result of a pay matter in which the Department, as a result of an audit, found that the business had underpaid a sponsored employee. The applicant told the Tribunal that the pay discrepancy had arisen through a clerical error following an employee’s request to reduce his shifts. The applicant has provided to the Tribunal a copy of the Infringement Notice dated 14 August 2019, which shows that ABF found that the applicant contravened regulation 2.79 for underpayments occurring on 12 March 2019 and 26 March 2019. A penalty of $12,600 was imposed which was subsequently paid by the applicant.
The Tribunal has considered the applicant’s evidence and notes based on records from the Department’s files and information provided by the applicant to the Tribunal, that on the 14 August 2019 the applicant was issued an infringement notice by ABF for breach of regulation 2.79. On 16 September 2019, the applicant was barred from sponsoring more people for three months (from 16 September 2019 until 16 December 2019), as it was found the applicant failed to satisfy sponsorship obligations, specifically regulations 2.79 and 2.86.
The Tribunal finds that this sponsorship bar and the issuing of an Infringement Notice, falls within the definition of adverse information as the applicant being the nominator (1.13A(1)(b)), has been subject to an administrative action (1.13A(1)(f)) relating to Immigration (1.13A(2)(b)) that has occurred within the previous 3 years.
It follows that there is adverse information known to Immigration about the nominator or a person associated with the nominator. The applicant therefore does not satisfy the requirements of r.5.19(4)(f)(i).
As the Tribunal has found that adverse information is known to Immigration about the nominator it must consider whether it is reasonable to disregard this information.
Under Departmental policy, factors which may be taken into account in deciding whether it is reasonable to disregard the adverse information include but are not limited to:
·the nature of the adverse information
·how the adverse information arose, including the credibility of the source of the adverse information
·in the case of an alleged contravention of a law, whether the allegations have been substantiated or not
·whether the adverse information arose recently or a long time ago whether the applicant has taken any steps to ensure the circumstances which led to the adverse information did not recur
·information about relevant findings made by a competent authority in relation to the
·adverse information, and the significance attached by the competent authority to the adverse information.

Based on the evidence before it, the Tribunal acknowledges that the action taken by the Department was in relation to finding the applicant breached their sponsorship obligations concerning an underpayment of a nominated salary amount.
Evidence before the Tribunal supports that the applicant took steps to rectify the breach immediately upon it being brought to their attention.
The applicant has provided a detailed submission and supporting documentation to the Tribunal including a submission to Australian Border Force dated 3 September 2019 and written policy titled “DIMEO Employee Sponsorship Policy and Procedures”. The Tribunal has considered this documentation and oral evidence provided by the applicant in regard to the adverse information and notes the following:
The applicant was subject to a three-month bar. On 16 September 2019, Australian Border Force issued a Notice of Decision to the applicant. The decision under section 140M(1) of the Migration Act 1958, is a bar for a period of three months from sponsoring more people under the terms of the approved standard business sponsorship and from sponsoring more people under the terms of the approved temporary activities sponsorship.
The applicant told the Tribunal that the underpayment was identified when the Department conducted an audit. The underpayment occurred after an employee had requested to reduce his own hours. The employee’s supervisor permitted the reduced hours but did not inform the administrative staff and hence the applicant was not aware of the implications to the visa sponsorship. Immediately when the matter was raised by the Department the applicant took corrective action to rectify the breach including the payment of outstanding monies due to the nominee.
The Department during the audit, also identified that two sponsored employees were not working in their nominated positions. The applicant told the Tribunal that the employees were working in their respective nominated positions and that the issue had resulted due to the word “cleaning” appearing on their payslips which refers to the job sector and not the actual position. Immediate steps were taken by the applicant to rectify this matter with a review undertaken of the applicant’s payroll system and updates implemented to ensure the wording used on payslips reflects accurately the employee’s position.
The Tribunal notes the applicant’s evidence that they have sought to mitigate the contravention by taking action including, undertaking payroll and administrative reviews of their sponsored employees to ensure the applicant is compliant with sponsorship obligations, updating and modifying payroll systems and the development and implementation of a visa sponsorship management policy.
Based on the evidence before it, the Tribunal accepts that the sponsor did not deliberately attempt to underpay the employees and that the applicant has demonstrated its commitment to the employment of sponsored employees, through the implementation of preventative measures to ensure no further breaches occur and that the applicant is compliant with its sponsorship obligations.
The Tribunal has considered the information before it in regard to the action taken by Australian Border Force in barring the applicant under 140M(1) for a period of three months (effective from 16 September 2019) and has given weighting to the nature of the adverse information, the circumstances contributing to the Department’s decision and the subsequent action taken by the applicant to rectify the matter.
Based on the information before it, the Tribunal finds that the underpayments were not intentional and that the applicant cooperated with the Department during the monitoring process, has paid the infringement notice and undertook immediate action to rectify the underpayments.
The Tribunal has further placed weighting on the applicant’s history of sponsorship and notes Department records, which show this is first sanction imposed by the Department against the applicant during the applicant’s history of sponsorship approval. Department records show that the applicant paid the Infringement Notice on 6 September 2019.
The Tribunal therefore finds on the information before it, that the applicant did not intend to underpay the sponsored employees and has demonstrated a commitment to ensure its employees are valued and remunerated in accordance with their sponsorship and legislative responsibilities as an employer. In consideration of the circumstances which contributed to the Department’s actions, full disclosure by the applicant prior to and at the hearing, of the adverse information and action taken by the applicant to rectify the pay anomaly, the Tribunal finds in this instance it is reasonable to disregard adverse information about the nominator. Accordingly, the Tribunal is satisfied it is reasonable to disregard the information and therefore the requirements in r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
Evidence before the Tribunal shows that the applicant had been audited by the Fair Work Ombudsman in November 2019. During the audit the applicant submitted over 35,000 documents to the Fair Work Ombudsman. After reviewing the documentation, the Fair Work Ombudsman did not identify underpayments to employee’s or any other breach by the applicant of National Employment Standards. However, an issue was identified regarding how the penalty rates were recorded on employee’s pay slips. The applicant recorded the dollar hourly base rate plus the multiplier required to achieve the total rate on the pay slips.
The Fair Work Ombudsman advised this was incorrect and that the applicant should have represented the final dollar hourly rate after allowing for the multiplier effect. The applicant stated that this had no impact on the employee’s salary payments and required purely an administrative and formatting change to the pay slip. The applicant was issued an infringement notice for contravention of Subsection 536(2) of the Fair Work Act 2009: – pay slip not in prescribed form and/or not containing prescribed information. A penalty of $6,300 was imposed.
On 30 April 2020 the Fair Work Ombudsman advised the applicant via email that once the infringement was paid that no further action would be taken in relation to this matter. The applicant has advised that to date no subsequent communication has been received by the Fair Work Ombudsman.
The Tribunal has considered the action taken by the Fair Work Ombudsman and notes evidence before the Tribunal that the Fair Work Ombudsman was satisfied that the applicant had taken appropriate remedial action to remedy the contravention and that no further action would be taken by the Fair Work Ombudsman. The Tribunal therefore on balance is satisfied that the nominator has a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.
Accordingly, the requirement in r.5.19(4)(g) is met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii). The Tribunal has considered each of these requirements as follows;
The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position are located in Mitchell, ACT, postcode 2911 which is a postcode specified in the relevant instrument as being in regional Australia, accordingly r.5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal next considered whether there is a genuine need for the applicant to employ a Customer Service Manager (ANZSCO 149212) and for the tasks of that position. The evidence before the Tribunal indicates the applicant operates a national based cleaning company with a regional office located in Mitchell (Canberra). The applicant gave evidence at the hearing that the position is key to the operational requirements of the business, in so far as the nominated position is responsible for the ensuring the provision of service delivery to major clients within the ACT. The growth in the applicant’s Canberra and ACT client base resulted in the business need to employ a dedicated cleaning services manager to oversee the provision of cleaning services and manage customer liaison and services. The nominee has been employed full time in the nominated position since July 2017.
The Tribunal is satisfied on the evidence presented by the applicant that there is a genuine need for a paid employee to work in the position of Cleaning Services Manager under the occupation of Customer Service Manager (ANZSCO 149212) under the nominator’s control. Accordingly, the requirement of r.5.19(4)(h)(ii) (B) is met.
The Tribunal is satisfied that the material and evidence provided by the applicant, supports the applicant’s claims that they have made efforts to fill the position locally by an Australian citizen or an Australian permanent resident. The applicant provided evidence that they have been unsuccessful in sourcing an experienced and qualified Australian citizen or an Australian permanent resident to the position.
The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally. On the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen/permanent resident living in the same local area. Accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations. The delegate formed the view that the tasks to be performed in the position did not correspond to the tasks of a Customer Service Manager as specified by the Minister in an instrument in writing for sub-subparagraph 5.19(4)(h)(ii)(D).
The Tribunal has formed a different view and accepts the evidence presented by the applicant attesting to the tasks and duties of the position.
The Tribunal notes that a more comprehensive suite of evidence was presented to it than was given to the delegate in the original application. The Tribunal has had the opportunity to discuss with the applicant and the nominee at the hearing, the precise tasks and responsibilities of the nominated position and how these tasks align with the nominated occupation under ANZSCO.
For nominations made on or after 1 July 2015, regulation 5.19(4)(h)(ii)(D) requires the tasks to be performed in the position correspond to the tasks of an occupation specified in an instrument.[1] This requires a qualitative analysis of whether the position is what it really purports to be in a practical sense, which is more than a line by line comparison of the tasks for example in the employment contract and the tasks of ANZSCO description.[2] It is a question of fact and the weight the decision maker gives to various considerations and evidence is a matter for it.[3]
[1] reg 5.19(4)(h)(ii)(D) as amended by SLI 2015, No 103.
[2] Vishvam Pty Ltd as Trustee for the Vishvam Unit Trust v MICMSMA [2021] FCCA 758 at [34]–[37]. The Court accepted that the qualitative analysis required for reg 2.72(10)(f) (whether the position associated with the nominated occupation is genuine) endorsed in Cargo First Pty Ltd v MIBP [2015] FCCA 2091 was applicable to reg 5.19(4)(h)(ii)(D) assessment of whether the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument.
[3] In Kartar Investments Pty Ltd v MICMSMA [2020] FCCA 5, the Court found that it was open for the Tribunal to consider not only the documentary material but the oral evidence at hearing concerning the nominee’s role, and the Tribunal was not bound to treat the description in the contract as definitive but was open to take preference for one evidence over another (at [66]-[69]).
In their decision of 13 January 2017, the delegate noted the following;
‘ According to the ANZSCO, a Customer Service Manager plans, administers and reviews customer services and after-sales services, and maintains sound customer relations. the role of a Customer Service Manager is a high level role typically responsible for the customer service management of organisations with a customer support team and customer base large enough to support such a function. It would generally be a position relevant within relatively large business operations with complex client interactions, and would not be concerned with general administrative and operational duties.
Virtually all organisations, in the course of providing goods or services, deliver some level of customer service. However it does not follow that a supervisory or management position involved in the provision of a product or service to customers is a Customer Service Manager. Provision of customer service may be the core function of some organisations, or specialised departments within larger organisations. But for many businesses, while customer service is an important factor, it is secondary to the main function of the business”.
The representative in their submission dated 22 April 2021 submits;
‘ The documents provided with this submission clearly show that the nominator is an extremely large services provider with a customer support team and customer base large enough to support the function of a customer service manager at both the national and state level. The organisational chart provided with this submission shows that the nominee is not a cleaning supervisor. In fact, it shows that she holds a high level position responsible for the delivery of customer service across a notable portfolio of clients in the Australian Capital Territory (150 sites).
Furthermore, the decision record states that a customer service manager would not be concerned with general administrative and operational duties. However, the duties in the ANZSCO descriptor state that a customer service manager would in fact ensure operational efficiency, would provide feedback to team members and would liaise with the organisational units, service agents and customers. The ANZSCO does not state that the manager just sits at a high level writing policies all for most part of the job. As a result, we submit that the job description provided corresponds with the tasks of the nominated occupation of Customer Service Manager.
To further support this fact, we have provided a number of letters from clients confirming that the nominee is the manager responsible for ensuring the delivery of the service and overall satisfaction of the client at their relevant location.’[4]
[4] Transcribed as prepared and submitted by the representative on behalf of the applicant
The Tribunal has afforded careful consideration to the representative’s submission and discussed with the applicant and nominee at the hearing the precise tasks and responsibilities of the nominated position and how these tasks align with the nominated occupation under ANZSCO. In undertaking its assessment as to whether the tasks to be performed in the position correspond to the tasks of an occupation specified in an instrument, the Tribunal has also afforded consideration to the industry in which the business operates, the size of the applicant’s business and operational requirements and how the tasks of a Customer Service Manager (as undertaken in the nominated position) are relevant to meeting these requirements.
Having afforded consideration to the evidence before it, the Tribunal is therefore satisfied that the tasks to be performed in the position, correspond to the tasks of a Customer Service Manager. Accordingly, the requirements of r.5.19(4)(h)(ii)(D) are met.
Department records show that the nominee whilst studying in Australia, attained a Diploma of Marketing, Diploma of International Business, Certificate IV in International Trade and Certificate II in Transport and Logistics. The nominee attained a bachelor’s degree in International Economic Relations from Colombia. The applicant has been employed by the applicant in the position of Cleaning Services Manager since July 2017.
Having considered the evidence attesting to the nominee’s experience and qualifications the Tribunal is satisfied that she is suitably qualified for the position and that the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation. Accordingly, the requirements of r.5.19(4)(h)(ii) (DA) are met.
The Tribunal notes the advice dated 18 February 2018 from the relevant RCB, Skills Canberra, indicating that they are satisfied regarding the matters specified in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C). On this basis, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.
Accordingly, the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Karen McNamara
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position 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 in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).