ITALIAN QUALITY COATINGS PTY LTD ATF ITALIAN QUALITY COATINGS UNIT TRUST (Migration)

ITALIAN QUALITY COATINGS PTY LTD ATF ITALIAN QUALITY COATINGS UNIT TRUST (Migration) [2017] AATA 1029 (23 June 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  ITALIAN QUALITY COATINGS PTY LTD ATF ITALIAN QUALITY COATINGS UNIT TRUST
CASE NUMBER:  1506094
DIBP REFERENCE(S):  BCC2014/3520828
SENIOR MEMBER:  Miriam Holmes
DATE:23 June 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 23 June 2017 at 12:46pm
CATCHWORDS
Migration – Nomination – Subclass 457 – Genuine position – Customer Service Manager – Duties do not correspond with ANZSCO – Lower level position
LEGISLATION
Migration Act 1958, s 140GB
Migration Regulations 1994, r 2.72, r 2.73
CASES

Cargo First Pty Ltd v MIBP [2015] FCCA 2091

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 15 April 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 22 December 2014. 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 r.2.72(10)(f) because the delegate was not satisfied that the position associated with the nominated occupation was genuine.
Mr Fiorentino, a Director of Italian Quality Coatings Pty Ltd, attended and appeared on behalf of the applicant before the Tribunal on 6 December 2016. Mr Fiorentino appeared to give evidence and present arguments. The Tribunal also received oral evidence from Mr Bartolotta (the nominee) and Mr Barbera.
The applicant was represented in relation to the review by its registered migration agent, Mr Italiano.
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).
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. The nominated occupation is a customer service manager. The nominee is Mr Bartolotta.
The Tribunal notes in Cargo First Pty Ltd v MIBP[1] the Federal Circuit Court examined the operation of clause 2.72(10)(f) and stated at [30]:
‘With those matters in mind, and in particular, the purpose of div.3A of the Act, 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.’
[1] [2015] FCCA 2091 at [30] per Judge Smith. This reasoning was upheld by the Federal Court, see [2016] FCA 30.
In light of the case law, the Tribunal considered whether the position associated with the nominated occupation is genuine, in that it exists and whether it really is a customer service manager position.
The Tribunal had regard to the occupational description in ANZSCO. The occupation of customer service manager is described as follows:
UNIT GROUP 1492 CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS

CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS organise and control the operations of call or contact centres, review customer services, and maintain sound customer relations.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

In New Zealand:
NZ Register Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
odeveloping and reviewing policies, programs and procedures concerning customer relations and goods and services provided
oensuring operational efficiency within a call centre
oproviding direction and feedback to team members and assisting with recruitment
omanaging, motivating and developing staff providing customer services
oplanning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided
oliaising with other organisational units, service agents and customers to identify and respond to customer expectations
omay work in a call centre

Occupations:
149211 Call or Contact Centre Manager
149212 Customer Service Manager

149211 CALL OR CONTACT CENTRE MANAGER

Organises and controls the operations of a call or contact centre. May work in a call centre.
Skill Level: 2

149212 CUSTOMER SERVICE MANAGER

Alternative Titles:
Client Service Manager
Service Manager

Plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.
Skill Level: 2
Italian Quality Coatings Pty Ltd (IQC) is the trustee for the Italian Quality Coatings Unit Trust. Mr Fiorentino and Mrs Fiorentino are the sole shareholders and directors of IQC. IQC commenced operating about 20 years ago, according to Mr Fiorentino’s statement dated 17 December 2014. IQC is a family owned and operated business. IQC supplies various varnishes and coatings for various wood products including floor, furniture and glass. IQC imports the coating products from Italy and provides advice to customers about appropriate products, including matching colours to existing furnishings and fixtures. IQC has supplied advice and coating products to various construction projects, including the casino and hospitals. IQC does not apply its coating products but does provide advice and assistance to customers as to how to apply the product to achieve the best results. IQC imports approximately 10 to 15 containers of Italian coatings from Italy each year. IQC has a few hundred customers.
IQC has a distributor in Western Australia and a distributor in Queensland who supply customers in those States. IQC also provides product to customers in Sydney, although there is no distributor in New South Wales.
IQC operates out of Melbourne and has a warehouse in Melbourne. Mr Fiorentino and Mrs Fiorentino work in their business. IQC has 5 employees, including Mr and Mrs Fiorentino.
Mr Fiorentino has responsibility for the operation of the business and for the sales of products to customers. Mr Fiorentino will visit customers at their offices and negotiate prices and any deals, including for large projects, for example the Melbourne casino. He regularly meets with customers to talk about the pricing of products and whether better prices can be negotiated. He described that IQC supply and advise on large projects, including a project in Japan, a Melbourne-based hospital, Monash University and advising Lend Lease. He described that he was recently approached by Lend Lease to provide advice regarding coatings and repairs to substantial fixtures supplied from China where there had been damage and they wished to match and repair the coatings on the kitchen fixtures. Mr Fiorentino is the only person in IQC who discusses and decides the pricing for the supply of products to customers.
Mrs Fiorentino works in the business, although not every day, and oversees the financial aspects pertaining to the operation of the business. For example, Mrs Fiorentino monitors that payments have been made to suppliers and that customers have paid their invoices. Mrs Fiorentino is also responsible for any online banking transactions, including employee payments.
Mr Fiorentino’s daughter, Linda, has worked in the business since she left school, for approximately 16 years. Linda is responsible for all the paperwork associated with running the business. Her duties are as a secretary and she is responsible for the preparation and distribution of invoices to customers, taking orders from customers, maintaining the computer database as to all orders and stock deliveries, sending paperwork to distributors regarding stock consignments, sending product orders to suppliers to ensure new stock is delivered and other related paperwork. Linda will follow up any customers who have failed to pay their invoices within time.
Mr Barbera is the warehouse manager. His responsibilities include undertaking colour matching on computer programs to match particular colours or stains, as required, for particular jobs. He is also responsible for managing the warehouse and ensuring that the stock orders are prepared for delivery each day by the couriers to clients and to distributors. He monitors stock levels and advises Linda if further supplies should be ordered from the Italian suppliers. Mr Barbera keeps track of all the stocks of product to ensure they have sufficient levels to meet client orders and interstate distributor’s requirements.
Mr Fiorentino explained to the Tribunal that the business is in transition regarding the products being sold by IQC and the industry is moving away from solvent based coating products to water-based coating products. Mr Fiorentino commented that there are potential harmful side effects to the solvent based coating products and his business is now developing its markets in selling water-based Italian coating products. He stated that this change to more environmentally friendly coating products has occurred over recent years. He stated that there are only a few people with the skills and knowledge to understand the attributes of the water-based coating products and it is an advantage to have someone with that knowledge and experience to explain this to customers. He commented that Mr Bartolotta (the nominee) has the knowledge and technical expertise in relation to these water-based products.
The Tribunal discussed with Mr Fiorentino and Mr Bartolotta the circumstances regarding the creation of the nominated position, the duties of the nominated position, the salary for the nominated position and the recruitment of Mr Bartolotta to undertake the nominated position.
After speaking with Mr Fiorentino and Mr Bartolotta the Tribunal made the following findings.
Prior to 2009 Mr Bartolotta had been working in Italy for approximately 2 years in the coatings industry. In 2009 Mr Bartolotta travelled to Australia on a working holiday (subclass 417) visa. Whilst in Australia, Mr Bartolotta attended English classes and attempted to improve his English skills. During his time in Australia Mr Bartolotta met a person that was a friend of Mr Fiorentino. Mr Fiorentino’s friend worked in the real estate industry and asked Mr Fiorentino about his business. During that discussion Mr Fiorentino mentioned that he required additional assistance in operating the business. Mr Fiorentino’s friend suggested that he speak with Mr Bartolotta, as Mr Bartolotta had relevant experience. Mr Fiorentino’s friend gave the contact details to Mr Bartolotta. Mr Bartolotta and Mr Fiorentino met and in about March 2010 Mr Bartolotta commenced working for Mr Fiorentino. Mr Bartolotta worked for Mr Fiorentino for about 5 or 6 months, until the expiration of his working holiday (subclass 417) visa. Mr Fiorentino stated that at that time he trained Mr Bartolotta and Mr Bartolotta learnt the ropes about what they were doing in Australia. He stated that Mr Bartolotta had experience in relation to different products from Italy and therefore Mr Fiorentino showed Mr Bartolotta how they use the different Italian coating products in Australia.
At the time in 2010 they discussed Mr Fiorentino sponsoring Mr Bartolotta to Australia, however Mr Bartolotta’s English language skills were low and they did not consider he would be eligible for a visa so they decided to just “remain friends”.
Mr Bartolotta then travelled to the United Kingdom and commenced working in his own business providing contract services to an Italian coating supplier in Italy. He provided contract services providing customer advice to customers in the United Kingdom, Honduras and Guatemala regarding Italian coating products produced by the Italian producer. Mr Bartolotta was able to enter into this contractual arrangement with the Italian producer after Mr Fiorentino contacted the Italian producer in Italy. Mr Bartolotta was self-employed and sent invoices to the Italian producer for his services. The Italian producer had a distributor in the United Kingdom but required the services of Mr Bartolotta to provide advice to the distributor and provide after sales service to customers. Mr Bartolotta would follow up with customers to confirm that they had purchased the right product and provide alternative product advice if necessary and advise distributors about alternative products. Mr Bartolotta undertook this work for 6 months, however the Italian producer was declared bankrupt and therefore Mr Bartolotta could not continue in that role. However Mr Bartolotta was able to secure another contractual arrangement with another Italian coating producer, Renner Italia and so provided a similar service to Renner Italia customers and distributors located in India, Sri Lanka, Algeria, France, United Kingdom Poland and other countries.
After many trips Mr Bartolotta asked the Italian producer if he could change and work in Australia however the company advised that they did not sell product to Australia. He suggested that the company liaise with Mr Fiorentino and supply Mr Fiorentino and then Mr Bartolotta could provide after sales service in Australia for the company. However the Italian producer did not agree to this proposal.
Mr Bartolotta subsequently contacted Mr Fiorentino and asked if they could work together. Mr Fiorentino advised him that he buys his Italian coatings product from Sirca and if Mr Bartolotta was interested Mr Fiorentino could put him in contact with Sirca. Mr Bartolotta contacted Sirca and Sirca agreed that Mr Bartolotta could provide the after sales service to Australian customers of Mr Fiorentino. After that Mr Bartolotta and Mr Fiorentino consulted their migration agent, Mr Italiano, to make an application for a subclass 457 visa.
When the Tribunal asked Mr Fiorentino why there was a delay of 4 years between Mr Bartolotta working for Mr Fiorentino in 2010 and the visa application being made in 2014, Mr Fiorentino explained that Mr Bartolotta needed to learn English, consequently the Italian supplier engaged Mr Bartolotta and sent him to the United Kingdom and other countries where he could learn and speak English. Mr Fiorentino commented he could not have a person working for him who could not communicate and understand what the customers were saying and if he was unable to communicate the person could do damage to the business.
In July 2016, almost 2 years after the visa application was made, Mr Bartolotta travelled to Australia. Shortly thereafter Mr Bartolotta commenced working for IQC. Mr Fiorentino stated that Mr Bartolotta decided to come to Australia before the visa application was approved as the Italian producer was putting pressure on him to increase sales in Australia. Mr Fiorentino stated that he has an exclusive distributorship in Australia for the Italian producer and they want him to sell more products in Australia. Mr Fiorentino stated that he needed somebody to assist him who understands the product. He stated that Mr Bartolotta now understood English and he did not do it earlier because he wanted Mr Bartolotta to be ready.
Mr Fiorentino gave evidence that the nominated position has not been advertised. Mr Fiorentino stated that normally when he is seeking a new person he speaks with other persons and he does not place a formal advertisement. Mr Fiorentino referred to previous difficulties when he engaged the services of a sales representative who took clients away. He further commented that the nominee had been part of the industry in Italy and it made sense to recruit him.
Mr Bartolotta has been working for IQC for the last 3 to 4 months (as at December 2016); however he is only working part-time 20 hours a week as he is on a student visa. Mr Bartolotta works from Wednesday afternoon to Friday afternoon each week.
Prior to July 2016 Mr Fiorentino was responsible for liaising with customers for any after sales service issues. He has undertaken this work for a long time. A few years ago the paint business did employ another person to provide after sales service to assist Mr Fiorentino however according to Mr Fiorentino this person tried to rip off Mr Fiorentino as he thought Mr Fiorentino was too old and tried to take part of his business (customers) away.
The Tribunal asked Mr Fiorentino what the customer service manager position duties entailed. Mr Fiorentino explained that because they are changing their products from solvent based coatings to water-based coatings he is seeking to expand his business. In this transitional phase he requires a person who understands about the differences in the products. Mr Fiorentino is still responsible for all the sales of products however the nominee, in the role of customer service manager, will be responsible for the after sales service to customers. The nominee will be responsible for speaking with clients to see if they have received the right coating product. If the customer advises that there is a problem with the coating product then the nominee would come back to Mr Fiorentino with advice as to solutions to solve the problem and recommend an alternative coating product. Mr Fiorentino explained that the nominee will have contact with clients after the sale has been made and will undertake follow-up with clients to see if they have received the correct product. Mr Fiorentino commented that he believes that with these new products and the nominee’s knowledge of the products it will be beneficial to the business and the business will be able to survive longer. He stated that it will be of assistance to have a person in such a small business that can promote products and know about the products. Mr Fiorentino confirmed that the nominee will be promoting products and utilising his knowledge of products after the sale has been made and will assist clients to ensure that the appropriate product has been chosen and that it has been correctly applied and what to do with any problems and correct those. For example, if the product was applied when it was too hot, or alternatively it was too cold.
Mr Fiorentino also explained that he has distributors in Queensland and Western Australia and the nominee would assist as a technician to provide advice in relation to appropriate products. In relation to interstate distributors, Mr Fiorentino explained that Mr Bartolotta will assist clients who need assistance with his particular technical knowledge regarding the various products. Mr Fiorentino suggested that once a month Mr Bartolotta might visit distributor’s interstate to discuss the various products and any related issues. He stated Mr Bartolotta can discuss with distributors the structure of products.

Mr Fiorentino also stated that Mr Bartolotta will travel to Italy to meet with the Italian producers to communicate any problems and to liaise with the chemistry departments regarding the technical detail and application of products. This is particularly important where they have the exclusive distributorship in Australia. Mr Fiorentino explained that he anticipates that Mr Bartolotta will represent the paint business in meetings in Italy in relation to any new products being sold by the business or if there are meetings for distributors to meet with the producer. Mr Fiorentino commented that he was too old and tired to return to Italy, although he had returned earlier this year for a meeting, and because Mr Bartolotta speaks Italian and knows the paint business.
The Tribunal had regard to the position description that was provided to the Department and to the Tribunal. The Tribunal notes that 5 duties on the list of duties for the position description appear to be copied from the ANZSCO code. The Tribunal discussed this position description document with Mr Fiorentino. The Tribunal noted that the evidence given by Mr Fiorentino regarding the duties of the nominated position was different to the list of duties set out in the position description. Mr Fiorentino commented that things change, just as the chemicals they use change, and if they did not change they would stand back. Mr Fiorentino did not know who wrote the list of duties, he could not recall if he had written the list of duties or if it had been written by somebody else. The Tribunal again noted that the position description did not describe the duties that Mr Fiorentino had described that the nominee would perform. In response Mr Fiorentino commented that he was 5 years younger and tomorrow the role may be different again. He commented it’s not that he needs someone to come for no reason, he does need someone to come to the business for the company to continue, and otherwise he could close up and retire.
The Tribunal noted that the position description and ANZSCO list the duties to include providing direction and feedback to team members and that this was not something that Mr Fiorentino had described to the Tribunal as part of the nominee’s duties. Mr Fiorentino commented that he came to Australia to work and today person’s need to be an expert, that it was not like 30 or 40 years ago in the workplace where a bricklayer could also be a butcher. The Tribunal commented that it appeared from Mr Fiorentino’s evidence that there was no management aspect to the nominee’s role as would be expected of a customer service manager and queried if there was a management aspect. In response Mr Fiorentino commented that the nominee’s role is not only to have knowledge of the product but also to have knowledge of how to apply the product. This is because the client could say I have the product but how do I use it. He stated perhaps there have been mistakes in the products formulated and the client may have purchased the wrong formulation and the nominee would go along and see if there is another product or the application needs to be changed to achieve the desired result.
Mr Bartolotta gave evidence similar to Mr Fiorentino regarding his duties in the business in 2016. Mr Bartolotta told the Tribunal that Mr Fiorentino or Mrs Fiorentino advise him which customers to follow-up. Mr Bartolotta stated that he follows up customers to see if there’s anything else the business can do. He commented that the business is trying to change from solvent based products to water-based products which are more environmentally friendly. He commented that it is not easy to understand the structure of the new products. He stated that currently he visits clients in the Melbourne market, although because he has limited time he has telephone contact with the distributors and customers interstate. He commented on the difficulty in providing advice over the telephone regarding coatings difficulties without being able to see the results of the application of the product. Mr Bartolotta explained that he always follows up after sales and sees clients to view the application of the product to see the results. He said the result is fully dependent on the product and the fixture to which it was applied, including the type of wood. Mr Bartolotta explained if the client is not happy he will show them different products and will advise IQC to supply a different product and will give different preferences to the client. If the client chooses an alternative product he will then go back to see if the product was better or not. Mr Bartolotta explained that he has no involvement in the setting of prices or the variation of prices if there has been change to the products used on a particular job. He stated that it is the sole responsibility of Mr Fiorentino who is responsible for discussing and negotiating prices. Mr Bartolotta made clear that his role is to give service to customers, to look for something better or cheaper and advise of solutions for the client to use. Mr Bartolotta commented that the products evolve over time as new materials are developed and consequently technical knowledge evolves and he needs to relate with producers to understand the developing technologies regarding the evolution of the various products. Mr Bartolotta also commented that his duties involve working with the distributors and the final users and assisting in building those relationships to provide proper after sales service advice.
The Tribunal asked Mr Fiorentino whether the Italian producer had requested that IQC employ Mr Bartolotta. Mr Fiorentino stated that when he went to Italy he asked the Italian producer if they would agree to hire Mr Bartolotta for the purposes of this project relating to the transitioning from solvent based products to water-based products. The Italian producer stated they agreed with him. The producer did not ask him to employ Mr Bartolotta but Mr Fiorentino asked them if he could hire Mr Bartolotta to work in his business.
Mr Fiorentino told the Tribunal that the nominee is not a family relation and Mr Bartolotta is not related to any persons that Mr Fiorentino knows, including his friend the real estate agent who recommended Mr Bartolotta.
Mr Fiorentino confirmed there is no other member of staff who is an Australian citizen or Australian permanent resident undertaking the position of customer service manager.
Mr Fiorentino told the Tribunal that the nominee was currently working part-time and earning approximately $500 or something for working 20 hours per week. The Tribunal noted that the first contract of employment provided to the Department included a salary for the nominated position of $66,040 plus superannuation. In contrast, the second contract of employment provided to the Tribunal provided a salary for the nominated position of $61,568 plus superannuation. The Tribunal was troubled about this reduction in the salary in such a short period from 2014 to 2016. The Tribunal asked Mr Fiorentino how they determined the salary of $66,040 plus superannuation in the contract of employment dated 2014. Mr Fiorentino replied because the person that had been the sales representative previously and who undertook a similar role had earned an amount more than that. He stated that Mrs Fiorentino would know how the salary was determined. When the Tribunal asked Mr Fiorentino about the reduced salary of $61,568 plus superannuation he commented it may be the amount had been reduced because the Italian producer had offered to support the business and offered a discount.
The nominee gave evidence that the salary amounts in the contracts had been related to the visa requirements. Mr Bartolotta stated that he is paid $565 net per week approximately $28 net per hour plus superannuation tax. Mr Bartolotta stated that he had not checked the changes to the contracts of employment and the reduction in his salary and confirmed that the salary amount had been related to the visa requirements.
Ultimately Mr Italiano (the representative) gave evidence that his staff had discussed with Mrs Fiorentino about the salary and they knew they had to meet the requirement in the migration regulations regarding terms and conditions. The salaries had been set after Mr Italiano’s staff had consulted the job outlook website which gave the average salary for a customer service manager position. He stated that that the job outlook website salaries fluctuate and go up and down. He stated that to be fair to the paint business they used the information in job outlook which they knew was acceptable to the Department as to the market rate for the salary. As job outlook had reduced the salary for the position they offered a contract at a reduced rate. This was discussed with Mrs Fiorentino and it was decided that these amounts were a fair salary amount. Mr Italiano submitted that the nominee is currently a student and only working part-time and the directors have paid him approximately $28.50 per hour, which the directors feel is reasonable for the position. Mr Italiano commented that when the position becomes full time it will be more demanding and he submits that the relatively marginal reduction in the hourly rate as a part-time worker was not indicative of whether the position was genuine or not.
Mr Barbera gave evidence consistent with the evidence of Mr Bartolotta and Mr Fiorentino about the role of Mr Bartolotta in providing after sales service to clients.
Mr Italiano made the following submissions regarding the operations of the business and the duties of the nominated position. He stated that the business is trying to promote the reduction in carbon dioxide emissions and is moving from solvent based products to water-based coating products. He stated the position is unusual as there are no commissions and there are no bonuses which would be indicative of a sales position. However the business is investing in developing a niche market and seeking to obtain and give feedback when introducing the new product line. He stated that the business had a duty under consumer law to ensure the products it sells were fit for purpose. He stated that the business has been consulted by Lend Lease and by hospitals to find solutions to issues pertaining to coating products. He submitted that ANZSCO does not have statutory force and is a guideline only and should not be applied slavishly but flexibly. He stated that decision makers can accept the greater range of tasks and not use the code inflexibly and not think the description is at variance. He is aware that the Department considers that the role of customer service manager is for large enterprises such as Myers and do not consider that it can be used in a small business environment. However he submits that the ANZSCO Code should be used flexibly. He disputes that the nominated position does not provide direction or feedback to team members because the paint business works as a small team with all staff involved and the nominee does provide feedback. He states that the business operates as a team. He submitted that they worked as a collaborative team and shared the intellectual property. He stated that whilst the duties listed in ANZSCO referred to managing it is not necessary that the person as a customer service manager needs to manage staff. For example, the customer service manager could deal with and manage feedback in relation to a program. Mr Italiano gave a further example where a person was employed as a quality assurance manager. He stated that a person who was a quality assurance manager may not be managing staff but will be providing feedback to others in relation to quality control issues. He submitted that the Tribunal not look at of the duties with a fine eye for detail but consider flexibly the duties of the position and that the nominated role does undertake the substantial tasks related to the position. He stated that in terms of managing procedures, the nominated position is a technical expert and without the technical expertise would be unable to speak with distributors, customers or Mr Fiorentino. He submitted that this was a niche business and that the nominated position did undertake the duties of a customer service manager in that context.
After carefully considering the evidence and the submissions above, the Tribunal is not satisfied that the nominated position is a customer service manager position. The Tribunal agrees that it should not apply ANZSCO as a checklist but only as a guideline. However as noted in Cargo First Pty Ltd v MIBP, it was settled that r.2.72(10)(f) requires a qualitative analysis of the position that is the subject of the nomination to determine whether it is ‘genuine’. The Court confirmed that in considering whether the position associated with the occupation was genuine the decision maker was entitled to go behind the certification of matters required in r.2.72(10)(e) and reach a state of satisfaction as to whether or not there was a ‘position’ of the kind identified in the nomination, the person occupying that position was in fact required to undertake ‘tasks’ of the kind set forth in ANZSCO, and the ‘tasks’ required to be undertaken included a significant majority of the tasks set forth in ANZSCO.[2]
[2] Cargo First Pty Ltd v MIBP [2016] FCA 30 (Justice Flick, 3 February 2016) at [34].
The Tribunal finds that the nominated position does involve technical expertise and provides after sales service to customers related to the sales of coating products in Australia. The Tribunal finds that the position’s substantive duty is to interact with customers after sales to determine their satisfaction as to the coating product purchased and to find solutions where a customer is dissatisfied with the coating product. The Tribunal accepts that it is a niche market and there are limited persons who have the technical knowledge to interact with customers and to provide advice regarding alternative product solutions. Further, the Tribunal accepts that the nominee will travel to Italy to enhance their knowledge and to communicate with the producer about the range and attributes of products and the application of products. However, the Tribunal does not accept that the nominated position has the management duties related to the occupation of a customer service manager. Whilst the nominated position provides after sales services and provides feedback and assists in maintaining sound customer relations, the Tribunal does not consider that there is any planning aspect or overall reviewing aspect to the nominated role. The Tribunal considered that integral to the role of a manager is that they undertake management functions and duties. In ANZSCO the nominated occupation is listed in the Major Group of Managers and it is noted at the beginning of the occupation description as follows: “ Call or contact centre and customer service managers organise and control operations of call or contact centres, review customer services and maintain sound customer relations.” Further the ANZSCO tasks include developing and reviewing policies and programs and procedures concerning customer relations, managing motivating and developing staff, planning and implementing after sales service to follow-up customer satisfaction and modify and improve services provided. The name of the occupation “customer service manager” and the duties as described in ANZSCO and the listing of the occupation in the occupations Major Group 1 Managers clearly envisage that there must be a management component to the nominated position, to be properly described as a customer service manager. The Tribunal considered the evidence provided and is not persuaded that the management aspect of customer sales is a significant component of the responsibilities of the nominated position. There are no planning aspects to the role, nor any development and reviewing of policies or program aspects to the role, nor is the position managing and motivating and developing staff in the role. The role does not appear to have any “control” of sales or sales staff in any way.The Tribunal considered that Mr Fiorentino performs the management functions of the customer service manager position. For these reasons the Tribunal did not accept that the nominated position is a customer service manager role. The Tribunal accepts that it is a small team environment and that the owners of the business, Mr Fiorentino and Mrs Fiorentino, work closely with all their employees including the person in the nominated position. The Tribunal also accepts that there is a need for a person to be engaged in the after sales role to facilitate and develop the growth of business and the expansion in transitioning to water-based coating products. However the Tribunal did not consider that the nominated position was at the level of a customer service manager but at a lower level position without management responsibilities. The Tribunal considers there has to be some correlation to the duties of the nominated position to the duties as described in ANZSCO, and whilst they may not be identical in all respects, the duties of the nominated position must be equivalent to or substantially equivalent to the tasks associated with the nominated occupation as specified by ANZSCO[3]. The Tribunal is not satisfied that the duties of the nominated position at IQC are equivalent to or substantially equivalent to the duties associated with the nominated occupation as specified by ANZSCO. Further, the Tribunal is not satisfied that the tasks required to be undertaken include a significant majority of the tasks set forth in ANZSCO.
[3] Khan v MIBP [2016] FCCA 333
For these reasons the Tribunal is not satisfied that the requirements of r.2.72(10)(f) are 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.
Miriam Holmes
Senior 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 1029

23 June 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Natural Justice