Estate Agents Pty Ltd v Minister for Immigration
[2019] FCCA 3408
•27 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ESTATE AGENTS PTY LTD v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3408 |
| Catchwords: MIGRATION – Application for sponsorship of a nominee for the role of customer service manager – ANZSCO definitions – distinction drawn by Tribunal between management of employees as opposed to management of independent contractors independent contractors found to be illogical – application for review granted – decision of Tribunal quashed. |
| Legislation: Migration Act 1958 (Cth), ss.140GB, 140GBA |
| Cases cited: Cargo First Pty Limited v Minister for Immigration [2016] FCA 30 |
| Applicant: | ESTATE AGENTS PTY LTD (ACN 135 336 677) |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 116 of 2019 |
| Judgment of: | Judge Egan |
| Hearing date: | 30 October 2019 |
| Date of Last Submission: | 30 October 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 27 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Applicant: | Fisher Dore |
| Counsel for the Respondents: | Ms B. O'Brien |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That the name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
That the Further Amended Application for review filed on 30 October 2019 be granted.
That the decision of the Administrative Appeals Tribunal made on 4 January 2019 be quashed.
That a writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine according to law the applicant’s application for review of the second respondent's decision, and that the matter be remitted to the Administrative Appeals Tribunal for rehearing.
That for the purpose of the Administrative Appeals Tribunal again determining the Applicants’ application, that it be constituted by a different member than the member who handed down the decision on 4 January 2019.
That the First Respondent pay the Applicant’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 116 of 2019
| ESTATE AGENTS PTY LTD (ACN 135 336 677) |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTRUAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant operates a holiday accommodation business in and about Surfers Paradise on the Gold Coast. On 24 October 2016 the applicant applied to nominate one Rizan for a subclass 457 visa for the position of a customer service manager within its corporate structure. A letter from the applicant referred to in [14] of the Administrative Appeals Tribunal’s (The Tribunal) reasons recorded the duties of Rizan as follows:
·“Provide quality customer service and achieve revenue, cost saving and profit targets;
·Training the customer service team such as admin staff, housekeeping team and giving advice regarding customer complaints;
·Coaching and developing the Customer service teams to successfully deliver their role objectives, grow their skills and capability and strengthen staff engagement;
·Focusing on the appearance and cleanliness of establishments where people sleep, eat and enjoy their Gold Coast Holidays experience with us;
·Ensure the financial achievements of the company are maintained expanded;
·Ayesha is responsible for making sure the needs of customers are met;
·Ensuring top quality customer service;
·Developing and updating customer service procedures and policies;
·Authorising refunds or other forms of compensation to customers;
·Handling complex complaints and enquiries;
·Analysing important management information to ensure customers are being properly treated;
·Assisting important management information to ensure customers are being properly treated;
·Remaining up to date with ever changing customer service requirements;
·Required to attend meeting with senior managements on a regular basis.”
On 12 January 2017 a delegate of the Minister refused to approve the applicant’s nomination made pursuant to the provisions of s.140GB of the Migration Act 1958 (Cth) (the Act) and Regulation 2.72 of Migration Regulations 1994 (Cth) (the Regulations). Those relevant provisions respectively provide as follows:
SECTION 140GB MIGRATION ACT 1958 (Cth)
Minister to approve nominations
(1)A person who is, or who has applied to be, an approved work sponsor, or a person who is a party to negotiations for a work agreement, may nominate:
(a)an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
(i)the applicant or proposed applicant’s proposed occupation; or
(ii)the program to be undertaken by the applicant or proposed applicant; or
(iii)the activity to be carried out by the applicant or proposed applicant; or
(b)a proposed occupation, program or activity.
(2)The Minister must approve a person’s nomination if:
(a)in a case to which section 140GBA applies, unless the person is exempt under section 140GBB or 140GBC – the labour market testing condition under section 140GBA is satisfied; and
(aa)in a case in which the person is liable to pay nomination training contribution charge in relation to the nomination – the person has paid the charge; and
(ab)in any case – the person is an approved work sponsor; and
(b)in any case – the prescribed criteria are satisfied.
Note 1: Section 140GBB provides an exemption from the labour market testing condition in the case of a major disaster. Section 140GBC provides for exemptions from the labour market testing condition to apply in relation to the required skill level and occupation for a nominated position.
Note 2: See section 140ZM for when a person is liable to pay nomination training contribution charge.
(3)The regulations may establish a process for the Minister to approve a person’s nomination.
(4)Different criteria and different processes may be prescribed for:
(a)Different kinds of visa (however described); and
(b)Different classes in relation to which a person may be approved as a work sponsor.
REGULATION 2.72(10)(e) and (f) OF THE MIGRATION REGULATIONS 1994 (Cth)
Criteria for approval of nomination – Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
…
(10) If the person is a standard business sponsor – the Minister is satisfied that:
…
(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 nomination occupation listed in the ANZSCO
…
(f) the position associated with the nominated occupation is genuine; and”
The Administrative Appeals Tribunal (the Tribunal) affirmed the decision of the delegate on 4 January 2019.
The further amended application for review was filed by leave on 30 October 2019. It included the following grounds of review:
“Grounds of application
1. The Tribunal erred in its consideration of whether Migration Regulation 2.72(10)(f) was met because it misinterpreted the definition of “customer service manager” in the ANZSCO dictionary.
Particulars
(a) The Tribunal found that the cleaners under the nominee’s supervision were not relevant to her managerial role because they were contractors rather than employees.
(b) It was not necessary criterion of the supervisory role of a “customer service manager” that “staff”, or “team members” be employees as opposed to contractors or sub contractors.
2. …
3. The Tribunal erred in failing to lawfully consider and apply evidence given at hearing (at pp 30-32 of the hearing transcript) of the tasks undertaken by Ms Rizan which are consistent with those of a “customer service manager” as set out in the ANZSCO dictionary.
4. …
5. …”
The duties of a “Customer Service Manager” as stated in the ANZSCO dictionary, are as follows:
“Organise and control the operations of call or contact centres, review customer services, and maintain sound customer relations.”
The tasks listed in the ANZSCO dictionary for the position of customer service manager included the following:
“a. developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided
b. ensuring operational efficiency within a call centre
c. providing direction and feedback to team members and assisting with recruitment
d. managing, motivating and developing staff providing customer services
e. planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided
f. liaising with other organisational units, service agents and customers to identify and respond to customer expectations.
g. may work in a call centre.”
It is not in dispute that the applicant was approved as a “standard business operator” under s.140G of the Act on 14 October 2016.
At [7] of its reasons, the Tribunal recorded that the issue in the matter before it was whether the applicant met the criteria for approval of the nomination. In that regard, the Tribunal noted that it must approve the nomination if the applicant was an approved sponsor and meets the requirements of r.2.72 and s.140GB(2). It must also meet the provisions of s.140GBA as the nomination was made after 23 November 2013.
It was agreed by a director of the applicant named Loadsman that the applicant used independent contractors rather than employees to perform housekeeping services due to the convenience of such arrangement.
The Tribunal at [15] – [25] of its reasons analysed the arrangements which had been entered into by the applicant for the conduct of its business. At [20] and [21] of its reasons, the Tribunal found as follows:
“[20] Mr Loadsman agreed that the nominee has direct client interaction when customers ring the applicant's 1800 telephone number to report problems. The nominee then assigns the housekeepers to attend to those problems, for example by cleaning their accommodation. Mr Loadsman indicated that the nominee devised customer service policies (including the submitted Customer Service Procedure Guide and Guest Satisfaction Surveys) but agreed they are very basic. Mr Loadsman explained that the nominee has responsibility for engaging the housekeeping staff, managing them and developing them. The Tribunal raised the contents of the submitted organisational chart with Mr Loadsman and he agreed that the applicant company utilises independent contractors, rather than employees, to perform housekeeping services due to the convenience of this arrangement.
[21] The Tribunal raised with Mr Loadsman that the basic nature of the customer service policies devised by the nominee and her management of independent contractor housekeepers might tend to suggest that the nominee is not performing the higher level tasks of a Customer Service Manager as defined in ANZSCO, inviting his comment. He responded that he is happy with the service rendered by the nominee and that he utilises contractors for convenience as he previously outlined. Mr Loadsman reiterated that the services of the nominee are required by the applicant.”
At [22] of its reasons, the Tribunal recorded that the applicant gave evidence to the effect that she had focussed on providing efficient customer service for the guests of the applicant. It noted that Rizan had a Bachelor in Accounting and Business Management from the Central Queensland University with some human resources subjects having been studied during such course of study. It also noted that Rizan managed two employed administrative staff in addition to ten housekeepers who were independent contractors. It was recorded that Rizan spoke with guests to follow up on any complaints, and to otherwise ensure that guests were happy so that they would again book their holiday through the applicant.
During the course of the Tribunal hearing, Mr Loadsman gave evidence as to the nature of tasks which had been performed by Rizan. That evidence was relevantly as follows: [1]
[1] Pages 29.36 – 32.29 of Transcript – Annexure BTH – 1 to Affidavit of Beau Timothy John
Hartnett filed on 22 May 2019.
“MR LOADSMAN: I think that’s the – the – what – the official description of that position.
MR CHAPMAN: It is practically a sale arm. So the ANZCO, it has got a unit group, which they get the number 1492. And within that, there's call or contact centre and customer service manager. So - I know we're looking at a customer service manager here. And then the ANZCO says that there's an indicative skill level:
Most occupations in the group have a level of skill commensurate with an AQF associate degree, advanced diploma or diploma -
and then it says –
or they have at least three years of relevant experience, which may substitute for the formal qualifications and, in some instances, relevant experience and/or on the job training may be required.
MR LOADSMAN: Right.
MR CHAPMAN: And then it talks about tasks. So these include:
Developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided.
What sort of things of that nature has Ashar done that - - -
MR LOADSMAN: So Ashar developed - we didn't have a - a managed- sorry; like, a checklist or a policies and procedures manual of what people should do regarding guests and guests and expectations, because it - it all just went through me.
MR CHAPMAN: Yes
MR LOADSMAN: And it turned out that, yes, we - we were missing a lot of things. So she generated our customer service policies, which are very basic, but she's then able to discuss what's expected and what's accepted, with the people that are under her like the main - there's main people, like Jenny, Seema, Belle, of our teams that are probably the best ones that we want meeting people, and then there's others that are a little bit more "only if we need."
MR CHAPMAN: Okay. Okay. So the ANZCO tends to suggest that, you know, there's policies and procedures and so forth there. They're higher order type documents, and I've seen some things that have been submitted.
MR LOADSMAN: Yes.
MR CHAPMAN: And you've said that they're fairly basic, so that might tend to suggest she's not fulfilling that higher order level task; what would you say about that?
MR LOADSMAN: Well, from what she has implemented and from the results that we've received, as- as a- as a result of that, it has met and exceeded my expectation for that position.
MR CHAPMAN: Yes.
MR LOADSMAN: And I- her task was to turn things around and get it in such a way that it - it's not - it doesn't now just run itself smoothly, it still does need consistent management of that.
MR CHAPMAN: Yes.
MR LOADSMAN: But what she has implemented and how she does it is - has been greatly successful.
MR CHAPMAN: All right. Okay. So some of the other tasks are:
Providing direction and feedback to team members and assisting with recruitment.
MR LOADSMAN: Yes.
MR CHAPMAN: Does she get involved in that stuff?
MR LOADSMAN: Yes. That's her- she's the sole person that actually manages and recruits our people.
MR CHAPMAN: So she recruits them as well?
MR LOADSMAN: Yes.
MR CHAPMAN: Okay. Well, she engages them, doesn't - - -
MR LOADSMAN: Yes.
MR CHAPMAN: They're contractors, aren't they?
MR LOADSMAN: Correct.
MR CHAPMAN: Yes.
MR LOADSMAN: Yes.
MR CHAPMAN: Subcontractors, you said. Okay. And what about:
Managing, motivating and developing staff; providing customer services.
MR LOADSMAN: Yes. So that's the - the people - she has a regular- she has a regular meeting with the housekeeping team, down - I know because we all drove in the car today, I know they've got to meet tomorrow at 9 o'clock, down - we have storage level P4 at Hilton, which is where everyone gets all of their items and different things for, and it's up to her to go through- we were doing- back when I did it, we'd - if someone had - if ..... complain about something ..... the person. But now she has everyone there and says, you know, whether everyone's doing a good job or there's a couple of things, and if there is an issue that's been brought up by a guest or someone, she'll run through it with the group and someone will say, "That's right. We didn't do that," but others-from what she's said to me, other people say, "But we didn't know that we shouldn't do it that way."
MR CHAPMAN: Yes.
MR LOADSMAN: And she has been able to say, "Well, okay. Just to reconfirm, as your tasks are, you must do X, X, X, X."
MR CHAPMAN: Yes.
MR LOADSMAN: And they've been able to show, to the guests, what- I guess, what the penalty is to us by them not doing it, which is negative reviews.
MR CHAPMAN: Okay. All right. So one thing I will raise with you, as a concern - and I haven't made my mind up about it - - -
MR LOADSMAN: Yes.
MR CHAPMAN: - - - is that what we've discussed tends to suggest that the company actually has a small amount of employees, as it were.
MR LOADSMAN: Yes.
MR CHAPMAN: And then it has got this host of contractors - of subcontractors, that sit up off the bottom of the org chart. Now, the customer service manager, as contemplated by this ANZCO, typically involves a high-level manager who's managing employees within the one organisation.
MR LOADSMAN: Okay”
At [27] of its reasons, the Tribunal found that it was not satisfied that the position which the applicant sought to fill was ‘in fact a customer service manager role as described in ANZSCO’. Though acknowledging that the applicant had experienced growth in its operations since Rizan had been employed, and that there had been a need to fulfil a genuine vacancy within the business, it was not satisfied that the role which was filled was that of a customer service manager.
At [28] of its reasons, after having found that many lower level customer service and administrative tasks were performed by the applicant, in addition to instructing her husband to perform painting jobs, the Tribunal found as follows:
‘Accordingly, the Tribunal finds that the only employee that nominee manages is her husband and that she tasks independent contractors to perform housekeeping duties. The size and complexion of the applicant’s business point to the nominee having a limited managerial role in the sense contemplated by ANZSCO with respect to the role of a Customer Service Manager.’
At [29] of its reasons, the Tribunal found that it did not accept that the nominee’s duties were commensurate with the ANSZCO employment tasks of a Customer Service Manager. It was not satisfied therefore that the position could genuinely be classified as a Customer Service Manager, and therefore found that the requirements of r.2.72(10)(f) had not been met.
In Cargo First Pty Limited v Minister for Immigration [2016] FCA 30 at [25], the Federal Court approved the judgment of the Federal Circuit Court in Cargo First Pty Ltd v Minister for Immigration [2015] FCCA 2091 at [30] where it was said:
“[30] … what is required by sub-reg.2.72(10)(f) is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another. In light of this, the task of the Minister (and of the Tribunal on review of the Minister’s decision) is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation. To the extent that the applicant’s arguments suggested otherwise, they are rejected.”
Having regard to the definition of Customer Service Manager in ANZSCO, and further noting that the terms ‘Team Members’ and ‘Staff’ are not defined in ANZSCO, the Court finds that it matters little whether the management of people by the nominee Rizan, for the purpose of the carrying on of the applicant’s business, was management of employees of that business, or of independent contractors engaged by the business contractually, to carry out work on its behalf. The work being performed by the nominee was clearly to manage services for the benefit of customers of the applicant’s business.
The finding of the Tribunal at [28] of its reasons that the only employee the nominee managed was her husband, even if factually correct, ignored the fact that she additionally managed, for the benefit of the applicant’s business, what the Tribunal member identified as being ‘a host of contractors’. [2] Her roles included providing direction and feedback to members of a cleaning team, assisting with recruitment of such members, and managing, motivating and developing staff skills in the provision of customer services, irrespective that those with whom she interacted were not strictly staff. The term “staff skills” is generic. It can be used to refer to exactly that which the nominee was imparting to cleaning contractors when she was managing and co-ordinating them in the carrying out of their allotted duties. As such, the nominee’s duties were in compliance with sub-paragraphs (c) and (d) of the list of tasks - as contained in ANZSCO dictionary - for the position of Customer Service Manager.
[2] Transcript page 32.23.
The distinction drawn by the Tribunal between the engagements by the applicant of independent contractors, as opposed to the employment by it of people to carry out exactly the same tasks as were performed by such contractors, was inapt and superficial. It was illogical in the extreme for the Tribunal to find that a person could only genuinely be considered a Customer Service Manager if they managed employees, as opposed to managing what the Tribunal member referred to as a host of independent contractors. Such distinction, erroneously drawn by the Tribunal, was materially fundamental in its decision making process and constituted jurisdictional error.
The Court finds that the Tribunal erred in finding that the r. 2.72(10)(f) criteria had not been met. The Court further finds that the Tribunal failed to lawfully consider the evidence before it and that in doing so it fell into jurisdictional error.
The Court further finds that the Tribunal failed to have regard to relevant considerations, namely the fact that the nominee managed and co-ordinated a substantial number of contractors and sub-contractors on behalf of the applicant. In doing so, it also fell into jurisdictional error in that respect.
The findings of the Tribunal that the nominee only carried out minimal managerial tasks was material and critical to its finding that the nominee’s role as a Customer Service Manager was non-genuine. To that extent, the decision of the Tribunal was illogical. In SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210, when discussing whether jurisdictional error had been demonstrated where some factual findings had been made which were either irrational or illogical, Wigney J said at [52] and [55] as follows:
“[52] As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or rationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (at [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
[55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].”
Jurisdictional error has been established on the part of the Tribunal.
The Court orders that the decision of the Tribunal made on 4 January 2019 be quashed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 27 November 2019
0
5
3