Khan v Minister for Immigration
[2016] FCCA 333
•19 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHAN v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 333 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision (Tribunal) – application for Long-Stay Temporary Business Entry (Class UC) subclass 457 visa – whether the position and tasks for which the applicant claimed he was employed were associated with the nominated occupation in relation to the applicant – whether, if such position was associated with the nominated occupation in relation to the applicant that position was genuine – whether the Tribunal understood the tasks it was required to undertake to determine those questions – whether, on the material before the Tribunal, it was reasonably open to the Tribunal not to be satisfied that the applicant’s position was a position associated with the nominated occupation – if the applicant’s position was associated with the nominated occupation whether it was reasonably open to the Tribunal not to be satisfied the applicant’s position was genuine – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.140GB, 140GB(1), 140GB(2) Migration Act 1958 (Cth), pt.2, div. 3A Migration Regulations 1994 (Cth), reg. 2.72, 2.72(8A), 2.72(10)(aa), 2.72(1)(f) Migration Regulations 1994 (Cth), sch.2, cls.457.223(2), 457.223(4), 457.223(4)(a)(i), 457.223(4)(a)(ii), 457.223(4)(ba)(ii)(B), 457.223(4)(d)(ii). |
| Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091 |
| Applicant: | MUHAMMAD IRFAN KHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2946 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 4 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 19 February 2016 |
REPRESENTATION
| Applicant in person assisted by an interpreter. |
| Solicitors for the Respondents: | Ms M Stone of DLA Piper |
ORDERS
The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2946 of 2014
| MUHAMMAD IRFAN KHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of Pakistan, seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Long-Stay Temporary Business Entry (Class UC) subclass 457 visa (457 visa).
Background
The applicant applied for a 457 visa on 7 January 2013. To have been entitled to a 457 visa, the applicant had to satisfy, at the time of decision, a number of criteria. These included either the criteria specified in cl.457.223(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), or the criteria specified in cl.457.223(4) of Schedule 2 to the Regulations. The applicant elected to satisfy the criteria specified in cl.457.223(4).
Under cl.457.223(4)(a)(i) and (ii) of Schedule 2 to the Regulations, the applicant had to satisfy the Minister that a nomination of an occupation in relation to the applicant had been approved under s.140GB of the Migration Act 1958 (Cth)(Act), and that that nomination was made by a “standard business sponsor” at the time the nomination was approved. There was no issue before the Tribunal that the applicant satisfied these two criteria. The “standard business sponsor” was the applicant’s employer, “M M Shakil & M T Rana trading as Caltex” (Employer), who owns three Caltex franchises, one of which is located at Cambridge Park. And the Employer nominated an occupation in relation to the applicant, that occupation being “Customer Service Manager” at the Employer’s Cambridge Park store. What was in issue before the Tribunal was whether the applicant satisfied the criterion specified in cl.457.223(4)(d)(ii) of Schedule 2 to the Regulations which required that the Minister be satisfied that “the position associated with the nominated occupation is genuine”. The Tribunal was not satisfied the position associated with the nominated occupation was genuine.
To understand why the Tribunal was not so satisfied and, therefore, to be in a position to determine whether the Tribunal made any jurisdictional error in not being so satisfied, it will be necessary to set out the materials and matters on which the applicant relied before the Tribunal, and the reasons for which the Tribunal did not accept the position associated with the nominated occupation was genuine. Before I undertake those tasks, however, it would be useful to explore the meaning of cl.457.223(4)(d)(ii).
Construction of cl.457.223(4)(d)(ii)
There are a number of words and expressions to consider. First there is the expression “nominated occupation”. That is a reference to an occupation nominated by an approved sponsor in relation to an applicant that has been approved under s.140GB of the Act. Subsection 140GB(1) relevantly provides that an approved sponsor may nominate an applicant or proposed applicant for a visa of a prescribed kind in relation to “the applicant or proposed applicant’s proposed occupation”. Subsection 140GB(2) provides that the Minister must approve the approved sponsor’s nomination if, among other things, “the prescribed criteria are satisfied”. The criteria prescribed for the purpose of s.140GB(2), at least to the extent they apply to 457 visas, are contained in reg.2.72 of the Regulations. Sub-regulation 2.72(8A) provides that, when making a nomination, if made on or after 1 July 2010, the sponsor must provide “the name of the occupation and the corresponding 6‑digit ANZSCO code”.[1] And reg.2.72(10)(aa) provides that, if the application for 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”. As was noted by Judge Smith in Cargo First Pty Ltd v Minister for Immigration & Anor:[2]
ANZSCO is the Australian and New Zealand Standard Classification of Occupations which is a classification system that provides for the standardised collection, analysis, and dissemination of occupation data and replaced the former Australian Standard Classification of Occupations which had previously been used in respect of business visas and sponsors. The classification in ANZSCO is by reference to major group, sub-major group, minor group, unit group and occupation. Each level has a code with a specific number of digits. For example the major group has one digit whereas the occupation has six digits.
[1] Assuming there is such a code – see reg.2.72(8A) of the Regulations
[2] [2015] FCCA 2091 at [5]
Thus, the expression “occupation”, as it appears in cl.457.223(4)(d)(ii) of Schedule 2 to the Regulations, means one of the occupations specified in an instrument in writing made by the Minister pursuant to reg.2.72(10)(aa) of the Regulations, and to which there is assigned an ANZSCO Code; and the expression “nominated occupation” is the name of an occupation together with a six digit number nominated by an approved sponsor that corresponds to the name of an occupation and associated six digit number that is contained in the ANZSCO as specified in an instrument in writing made by the Minister. In addition, the “nominated occupation” must bear the description and tasks associated with that occupation that is specified by ANZSCO. To make proper sense of the descriptions of occupations in ANZSCO, and tasks ANZSCO associates with those occupations, however, it is necessary to understand the principles on which ANZSCO relies for the classifications it makes. Those principles are stated in ANZSCO itself.[3]
[3] accessed 17 February 2016
The starting point is the structure of ANZSCO:
The structure of ANZSCO has five hierarchical levels - major group, sub-major group, minor group, unit group and occupation. The categories at the most detailed level of the classification are termed ‘occupations’. These are grouped together to form ‘unit groups’, which in turn are grouped into ‘minor groups’. Minor groups are aggregated to form ‘sub-major groups’ which in turn are aggregated at the highest level to form ‘major groups’.
Relevant to the issues that arise in these proceedings are the concepts of “unit group” and “occupations”. “Unit groups” are subdivisions of the minor groups, and are “distinguished from other unit groups in the same minor group on the basis of a finer application of skill specialisation and, where necessary, skill level”. “Occupations”, on the other hand, are subdivisions of the unit groups and are “categories at the most detailed level of the ANZSCO”. An “occupation”:
is defined as a set of jobs that require the performance of similar or identical sets of tasks. As it is rare for two actual jobs to have identical sets of tasks, in practical terms, an ‘occupation’ is a set of jobs whose main tasks are characterised by a high degree of similarity.
Thus, an “occupation” denotes one of the occupations specified in ANZSCO consisting of a set of jobs whose main tasks are characterised by a high degree of similarity. What distinguishes one occupation from another is the set of tasks associated with each occupation.
The next word to consider is “position”. That is a reference to the tasks it is claimed the applicant in relation to whom an occupation has been nominated under s.140GB has been or will be employed to perform by the approved sponsor. That is made clear by the use of “position” in the phrase “employed to work in a position in the person’s business” that appears in cl.457.223(4)(ba)(ii)(B) of Schedule 2 to the Regulations.
The third expression to consider is “associated with”. The word “association” suggests some sort of link or connection between two or more things. It also suggests that the link or connection must be such that the things are “joined in companionship” or “combined in . . . classification” or “occurring in combination”.[4] Thus, “associated with”, as used in cl.457.223(4)(d)(ii), requires that the “position” of the applicant – that is, the tasks the applicant claims he has been employed to perform or will be employed to perform – is equivalent or substantially equivalent to the tasks assigned by ANZSCO in relation to the occupation the approved sponsor had nominated in relation to the applicant. In other words, the words “associated with” require that the tasks the applicant claims he has been employed to perform or will be employed to perform in “the position” reflect or will reflect the tasks of the occupation, as specified in ANZSCO, the approved sponsor had nominated in relation to the applicant.
[4] Oxford English Dictionary online
What do the words “is genuine” add? Only this: that the claims the applicant makes about the tasks he has been employed to perform or which he will be employed to perform by the approved sponsor are true.
On this analysis, the criterion specified in cl.457.223(4)(d)(ii) of Schedule 2 to the Regulations may fail to be satisfied for two possible reasons. One is that the tasks the applicant claims he has been employed to perform or will be employed to perform are not equivalent or substantially equivalent to the tasks ANZSCO associates with the nominated occupation. The second is that, although the claimed tasks are equivalent or substantially equivalent to the tasks contained in ANZSCO, the applicant has not in fact been employed to perform those tasks, or will not be employed to undertake those tasks, or a sufficient proportion of those tasks.
Thus, when considering whether the criterion specified in cl.457.223(4)(d)(ii) of Schedule 2 is satisfied, questions along the following lines may need to be addressed:
a)What is the occupation that has been nominated in relation to the applicant?
b)How is the nominated occupation described in ANZSCO, and what are the tasks ANZSCO associates with the nominated occupation?
c)What are the tasks the applicant claims he or she has been employed or will be employed to perform?
d)Are the tasks the applicant claims he or she has been employed or will be employed to perform in that position tasks that are equivalent or substantially equivalent to the tasks associated with the nominated occupation, as specified by ANZSCO?
e)If (d) is answered in the affirmative, has the applicant in reality performed the tasks he or she has been engaged to perform, or will the applicant perform the tasks he or she will be engaged to perform?
At this point, it would be appropriate to refer to the judgment of Judge Smith in Cargo First. In that case, his Honour considered the meaning of the expression “the position associated with the nominated occupation is genuine” as it appeared in reg.2.72(10)(f) of the Regulations. His Honour said that the qualification of “position” by the words “associated with the nominated occupation” “is not immediately comprehensible without reference to the context in which it is found”.[5] The context which his Honour considered was relevant to rendering the qualification comprehensible is Division 3A of Part 2 of the Act, and the purposes for which that Division was introduced into the Act by the Migration Legislation Amendment (Sponsorship Measures) Act2003 (Cth).[6] Having made a number of observations about the purposes of Division 3A of Part 2 of the Act, his Honour said:[7]
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. To the extent that the applicant’s arguments suggested otherwise, they are rejected.
[5] [2015] FCCA 2091 at [21]
[6] [2015] FCCA 2091 at [22]
[7] [2015] FCCA 2091 at [30]
Although his Honour did not arrive at this conclusion by reference, or at least exclusively by reference to, an analysis of the text of the expression “the position associated with the nominated occupation is genuine”, the approach his Honour held should be taken when applying sub-reg.2.72(10)(f) of the Regulations is in substance the same approach which, on my analysis of the text of cl.457.223(4)(d)(ii) of Schedule 2 to the Regulations, I have concluded should be taken when applying that provision.
The use of the same expression in reg.2.72(10)(f) of the Regulations can potentially lead to odd outcomes. It may be that the expression will be satisfied at the time the sponsor submits a nomination application, yet it will not be satisfied at the time the applicant, relying on the approval of that nomination, applies for a 457 visa. That is what, on the Tribunal’s findings, has occurred in this case.
The applicant’s case before the Tribunal
As I have already noted, the occupation the Employer nominated in relation to the applicant was “Customer Service Manager”. That is one of the occupations specified in IMMI 14/048, being the instrument the Minister made pursuant to reg.2.72(10)(aa) of the Regulations that was in force at the time the Tribunal made its decision, and to which there was assigned the code 149212. The description of the occupation, and the tasks associated with it, are described in ANZSCO 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:
§developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided
§ensuring operational efficiency within a call centre
§providing direction and feedback to team members and assisting with recruitment
§managing, motivating and developing staff providing customer services
§planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided
§liaising with other organisational units, service agents and customers to identify and respond to customer expectations
§may work in a call centre
Occupations:
149211 Call or Contact Centre Manager
149212 Customer Service Manager149211 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
From this information, it will be seen that a “customer service manager” is a person who “[p]lans, administers and reviews customer services and after-sales services, and maintains sound customer relations”; that the occupation of “customer service manager” is one of two occupations that belong to “Unit Group 1492 Call or Contact Centre and Customer Service Managers”, the other occupation being “call or contact centre manager”; and that both occupations require a common skill level and involve overlapping sets of tasks. It follows, therefore, that the occupation the Employer nominated in relation to the applicant - “Customer Service Manager (ANZSCO 149212)” – was one in which a person “[p]lans, administers and reviews customer services and after-sales services, and maintains sound customer relations” and who, in engaging in these activities, regularly undertakes tasks that include at least some of the tasks listed in ANZSCO.
The applicant provided the following evidence to the Tribunal in support of his claims: Certificate of Registration of Business Name – Caltex Cambridge Park;[8] an organisation chart;[9] a Bachelor of Commerce Certificate and Master of Professional Accounting Extended Certificate;[10] an International English Language Testing System (IELTS) Test Report;[11] an employment contract outlining the applicant’s duties and responsibilities;[12] two letters dated 16 September 2014 from the sponsor listing the applicant’s duties and reasons why there was a need for the position;[13] a letter from the Consumer Sales Business Manager of Caltex outlining the importance of customer service and recommending the Caltex Star Mart Cambridge Park recruit a customer service manager;[14] a copy of the applicant’s curriculum vitae;[15] PAYG payment summaries;[16] and a copy of the franchise agreement with Caltex.[17]
[8] CB124
[9] CB125
[10] CB126-127
[11] CB128
[12] CB129-142
[13] CB143; CB145
[14] CB146
[15] CB147-148
[16] CB149-150
[17] CB153-280
At the hearing before the Tribunal, the applicant, who was represented by a migration agent, gave evidence that he has been in the position of Customer Service Manager since December 2012, initially working part time until December 2013 and since that time, working full time. The applicant said he worked from 6 am to 1 or 2 pm and that there are 3 other customer service attendants who work in the store. The applicant said his main duties were to service customers until 10am and after the other staff member arrives, to order supplies, complete staff rosters, deal with customer complaints and feedback, manage and motivate the customer service attendants, inform suppliers about faulty products, process customer returns and refer complaints to the head office.
The Tribunal summarised the applicant’s duties as set out in the documents the applicant provided. The duties, as summarised by the Tribunal, were: [18]
“responding to all customer queries or complaints in an effective and efficient manner, ordering goods from suppliers; weekly discussions with suppliers regarding goods for sale; quarterly discussions with Caltex Sales Business Manager regarding customer feedback and complaints and mystery shopper results; training, managing, monitoring and motivating up to 3 customer service attendants; assisting with staff hire at the interview stage; creating weekly staff rosters; weekly meetings with the director to discuss programs and initiatives implemented by the franchisor to achieve superior customer service satisfaction, staff rosters, supplier concerns, customer complaints and feedback and mystery shopper results; visiting competitor business to compare their customer service trends and practices”.[19]
[18] CB291, [13]
[19] CB291, [13]
In addition, the Tribunal specifically referred to the applicant’s duties as set out in his employment contract. These were: [20]
“developing and reviewing programs and initiatives concerning the enhancement of customer service to achieve superior customer satisfaction; assisting with staff recruitment, training, managing, motivating and monitoring customer service staff through direct observation, feedback and mystery shop results, liaising with the director, suppliers and service agents to consistently enhance in-store customer experience; conducting local area research for latest trends and practices with customer service; responding to all customer queries/complaints”.[21]
[20] CB291-292, [14]
[21] CB291-292, [14]
Tribunal’s decision
The Tribunal found that the nominated occupation was “Customer Service Manager”. It said that in considering the nature of the applicant’s position with the Employer and the nominated occupation, it would be guided by the skill level and tasks for a “Customer Service Manager” as set out in ANZSCO 149212. The Tribunal further said, however, it “has not placed absolute reliance on ANZSCO and has used ANZSCO as a guide, rather than an exhaustive list of duties”.[22] The Tribunal then noted it had “several concerns in relation to whether the position associated with the nominated occupation is genuine”.[23]
[22] CB293, [23]
[23] CB293, [24]
First, the Tribunal did not accept that “the position” was consistent with the scale and activities of the business in which the applicant was employed or necessary to the operations of that business.[24] The Tribunal’s use of “the position” appears to be a reference to the position as claimed by the applicant. The business consisted of a single Caltex franchise outlet that employed three staff, excluding the applicant; and many of the core functions of a Customer Service Manager were being undertaken by the franchisor.[25]
[24] CB293, [25]
[25] CB293, [25]
Second, the franchise agreement the applicant provided to the Tribunal indicated that all standards, operating procedures, systems, instructions and requirements were set out in “the Caltex Manual” which the franchisee – that is, the Employer – was required to follow. The prescriptive nature and the standardised procedures did not leave any scope for the applicant to develop and review policies, procedures, and programs concerning customer relations and goods and services provided.[26] Given “the degree of centralised control by the franchisor, and the fact that many of the high level planning, administrative and management decisions about customer service are made by the franchisor”, the Tribunal did not accept that the Employer’s business required a full time customer service manager.[27]
[26] CB293, [26]
[27] CB294, [27]
Third, the Tribunal found that the actual duties the applicant performed were more closely aligned with the duties of a “Retail Supervisor (ANZSCO 621511).[28] The duties the Tribunal found the applicant in fact performed were responding to customers’ inquiries and complaints, preparing work schedules, hiring and training staff, instructing staff on handling difficult and complicated sales, ordering new stock, examining returned goods and deciding on appropriate action, and ensuring goods were correctly displayed. Although the Tribunal accepted the applicant’s role involved him providing good customer service personally, and guiding other staff, the Tribunal was of the view that this aspect of the applicant’s tasks were of a general and basic nature that arose directly from the provision of goods and services in a retail environment; the Tribunal did not accept these tasks were “at the level of a Customer Service Manager which is located within the ANZSCO Group 1 of Managers or that they include the full range of duties and responsibilities of a Customer Service Manager”.[29]
[28] CB294, [31]
[29] CB294-295, [31]
The Tribunal, therefore, did not accept the position associated with the nominated occupation in relation to the applicant was genuine and concluded the applicant did not meet the requirements of cl.457.223(4)(d)(ii) of Schedule 2 to the Regulations.[30]
[30] CB295, [33]
Grounds of application
The application filed in this Court contains the following grounds of review:
1.The decision of Migration Review Tribunal involves jurisdictional error.
2.The Tribunal ignored relevant material.
The applicant, who is not legally represented, made no submission directed to the first ground. On its face, that ground only asserts jurisdictional error without articulating any matter that could reasonably be taken to be a claim of jurisdictional error. On its face, therefore, the ground fails.
In any event, I am satisfied the Tribunal understood the tasks it was required to undertake to determine whether the criterion specified in cl.457.223(4)(d)(ii) of Schedule 2 to the Regulations was satisfied: the Tribunal identified the occupation that was nominated in relation to the applicant, namely “Customer Service Manager”; it identified the description of “Customer Service Manager” contained in ANZSCO, and the tasks ANZSCO associated with that occupation; the Tribunal identified the tasks the applicant claimed he performed in the position he held with the Employer; the Tribunal considered the evidence relating to the tasks the applicant in fact performed, and made findings concerning the tasks the applicant performed; and the Tribunal assessed whether the tasks the Tribunal found the applicant performed were equivalent or substantially equivalent to the tasks ANZSCO associated with “Customer Service Manager”. Further, it was reasonably open to the Tribunal to conclude, for the reasons it gave, that the tasks the applicant was employed to undertake were not equivalent or substantially equivalent to the tasks ANZSCO associated with “Customer Service Manager”.
As for the second ground, at the hearing the applicant submitted the Tribunal ignored two documents. One was the applicant’s IELTS Test Report, and his academic qualifications. It is true the Tribunal did not specifically refer to these documents. The Tribunal did, however, refer to the applicant’s curriculum vitae that refers to the applicant’s qualifications.[31] The documents could have been relevant to whether the applicant had the necessary skill levels. That question, however, was not in issue so far as the Tribunal was concerned. The issue was whether the applicant’s tasks, as claimed, and as actually performed, were equivalent or substantially equivalent to the tasks ANZSCO associated with “Customer Service Manager”. The applicant’s IELTS Test Report and his formal qualifications, therefore, could not reasonably have been considered relevant to the grounds on which the Tribunal concluded the applicant did not satisfy cl.457.223(4)(d)(ii) of Schedule 2 to the Regulations.
[31] CB291, [12]. The applicant’s curriculum is at CB147-148
Conclusion and disposition
The applicant has not succeeded in establishing the Tribunal made a jurisdictional error. I propose, therefore, to order that the application be dismissed. I will also order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 19 February 2016
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