Kumar (Migration)

This matter concerned an appeal by Mr Munish Kumar against a decision to affirm the refusal of his Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream for Subclass 186. The core of the dispute revolved around whether Mr Kumar was performing the nominated role of Customer Service Manager (ANZSCO Code 149212) for his employer, YABS Pty Ltd. The Department had previously found that Mr Kumar's duties did not align with the ANZSCO description for a Customer Service Manager, and that his employer had engaged in untoward business conduct.

The Tribunal was required to determine whether Mr Kumar was performing the duties of a Customer Service Manager as defined by the Australian and New Zealand Standard Classification of Occupations (ANZSCO). This involved assessing the evidence presented by Mr Kumar and his employer against the requirements of the visa subclass and relevant migration regulations, particularly subregulation 2.86(2), which mandates that a sponsored person must be employed in the occupation for which they were nominated.

The Tribunal considered evidence from departmental officers who interviewed both the business director and Mr Kumar. The director described Mr Kumar's role as handling IT, customer service, and customer complaints, but later clarified that complaints came directly to him, not Mr Kumar, and that Mr Kumar was not involved in developing policies or procedures. Mr Kumar himself described his duties as contacting customers for feedback, advising them of services, marketing the business through referrals, and relaying feedback to the director, confirming he did not develop or manage staff or develop policies. Based on this, the delegate concluded that Mr Kumar's duties were more akin to a Contact Centre Operator (ANZSCO Code: 541112) than a Customer Service Manager. The Tribunal noted that the employer had also received an adverse audit from the department and was not an approved standard business sponsor.

Ultimately, the Tribunal affirmed the decision not to grant Mr Kumar the visa. While acknowledging the availability of a Ministerial review, particularly given the alleged misconduct of the employer, the Tribunal found that the evidence did not support Mr Kumar performing the nominated role.