LIAO (Migration)

[2019] AATA 5231

LIAO (Migration) [2019] AATA 5231 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms PI-HSIA LIAO
Mr ANDREW J YANG
Mr JEN-SAN YANG

CASE NUMBER:  1703121

HOME AFFAIRS REFERENCE(S):           BCC2015/3152990

MEMBER:Karen McNamara

DATE:26 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 26 September 2019 at 12:11pm

CATCHWORDS
MIGRATION – Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Customer Service Manager – applicant not working in approved nominated position – role involves overall management and control business’s operations – tasks of position align with Retail Manager – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 375A
Migration Regulations 1994 (Cth), rr 1.13, 5.19, Schedule 2, cls 186.223, 186.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 February 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 28 October 2015. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant Ms Pi-Hsia Liao (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager (ANZSCO 149212).

5. On 6 February 2017, the delegate refused to grant the visas because the applicant did not meet cl.186.223(1) of Schedule 2 to the Regulations because the delegate found that the applicant was not working in the position to which the application relates and nominated in an application for approval.

6. Ms Pi-Hsia Liao (AKA Amy) appeared before the Tribunal on 12 September 2019, on behalf of the applicants, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the first named applicant meets the requirements of cl.186.223.

   Nomination of a position

10. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

11. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

    Background

12. The applicants provided the Tribunal a copy of the delegate’s decision record. While the first named applicant had been nominated by the nominator (ASPG Pty Ltd) for the position of Customer Service Manager (ANZSCO 149212), the delegate formed the view that the applicant was not working in the nominated position and was carrying out the role of a Receptionist. The delegate was therefore not satisfied that the first named applicant met cl.186.223(1) which in summary requires the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

13. On 28 October 2015 the applicant lodged a visa application for Employer Nomination Scheme (Class EN) visa, in relation to an appointment of Customer Service Manager (ANZSCO 149212).

14. On 30 September 2015 the nomination lodged by ASPG Pty Ltd was approved by a delegate of the Minister for Immigration and Border Protection, being the nomination applicable to cl.186.223(1).

15. On 10 June 2016 while assessing the applicant’s visa application, the Department identified some concerns in regard to the nominee’s nominated position and a site visit was conducted at the nominator’s business premises. The applicant was not present at the time of the visit and other employees were interviewed by Officers of the Department.

16. Following the site visit the Department wrote to the applicant on 16 December 2016 affording the applicant opportunity to comment on the findings of the visit in so far as the Department was of the view that the applicant was working as a Receptionist. The prescribed period of 28 days was provided and at the time the delegate made their decision, no response from the applicant had been received by the Department. This was later disputed by the applicant who claimed that a response had been provided to the Department.

17. On 6 February 2017, the delegate found that the applicant was working in a different position to that of the approved position of Customer Service Manager and refused the visa on the grounds that the applicant did not meet the criteria of cl.186.223(1).

18. On 22 February 2017, the applicants lodged a review application with the Tribunal.

19. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

20. Prior to appearing before the Tribunal, the applicant provided evidence to the Tribunal including Customer satisfaction surveys, Financial Reports for periods ending 30 June 2017 and 30 June 2018, a letter dated 28 August 2019 from Central Accounting & Taxation Advisory signed by Andy Wang, two Statutory Declarations from an employee dated 17 and 18 December 2016, a Statutory Declaration from a client dated 24 August 2019, a Statutory Declaration from an employee dated 16 December 2016 and a submission from Platinum Engine (undated).

21. Following the hearing on 12 September 2019 the applicant submitted to the Tribunal photographs of the applicant’s business card and name badge and letters to clients dated 10 and 12 September 2019. 

    ADVERSE INFORMATION – Invitation to comment

22. At the hearing the Tribunal told the applicant that a non-disclosure certificate has been issued pursuant to s.375A of the Migration Act 1958 (the Act) in relation to certain material which is on the Department’s case file.

23. The Department has sought to restrict the disclosure of information on the Department’s file. The reason stated for non-disclosure is that to disclose the information would be contrary to public interest because the information, is information received by the Department where the author is known and may be identified. The Tribunal considers that the s.375A certificate is valid and told the applicant that the Tribunal would not disclose the name of the person subject of the s.375A certificate. The applicant did not provide specific comment and accepted that the certificate is valid

24. The Tribunal asked the applicant if she was aware of any adverse information known to the Department of Immigration about the applicant. The applicant told the Tribunal that there was information. The Tribunal asked the applicant what this information was, to which the applicant responded that she works hard and tries to do the job well and that the previous owner had talked to Immigration and told them that she wasn’t qualified.

25. There is evidence before the Tribunal regarding the applicant that may be considered adverse. In accordance with s.359AA of the Act, the Tribunal put to the applicant information before the Tribunal that suggests there is adverse information known to the Department about the applicant. The Tribunal explained that under s.359AA of the Act, the Tribunal is required to invite the applicant to comment on or respond to certain information which the Tribunal considers would, subject to the applicant’s comment or response, be the reason, or part of the reason, for affirming that decision under review.

26. The Tribunal told the applicant particulars of the information. The information relates to allegations made to the Department in August 2016 that the applicant was not engaged in full time work and when she did attend the workplace she worked as a Receptionist and not as a Customer Service Manager. The information claimed that the business at which the applicant works, is now operating as a brothel and that the applicant has taken over the business.

27. The Tribunal confirmed with the applicant that the Tribunal must be satisfied the application meets cl.186.223 (3A).

    (3A)Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

28. The Tribunal told the applicant that this information is relevant, because it suggests that there is adverse information known to Immigration about the applicant and that at the time of the hearing there was no information currently before the Tribunal to suggest it is reasonable to disregard this adverse information. If the Tribunal relies on this information, it may not be satisfied the applicant meets the requirements of cl.186.223 (3A) and as such the Tribunal may then find that the applicant does not meet the requirements for approval of the application and the decision under review may be affirmed.

29. The Tribunal invited the applicant to comment on this information. The applicant chose to respond orally. The applicant told the Tribunal that she works full time and has been the Customer Service Manager since 2010. The Receptionist role is not part of her job and the tasks she undertakes cannot be done by a Receptionist. The applicant told the Tribunal that she looks for staff, sends and responds to emails advertising for staff. The applicant’s representative requested the Tribunal to allow her to consult with her client as she believed her client had not fully addressed the adverse information. The Tribunal afforded her this opportunity. 

30. Following consultation with her representative the applicant told the Tribunal that she doesn’t really know what happened and that her former employer wanted her to take over the business and that she didn’t reply to such a request. Her role in the business is Customer Service Manager and that she doesn’t know about the other things. The business provides massage services, not other things. The applicant expressed her feelings in so far as she feels that it is unfair, the allegations are untrue and that she is upset.

31. The Tribunal acknowledges the applicant’s response and has not relied on the allegations adversely as the allegations were made over three years ago and there is no persuasive evidence before the Tribunal to support the allegations. 

    Consideration of cl.186.223(1)

32. Clause 186.223 (1) provides:

    The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.”

33. The applicant told the Tribunal that she has been employed as a Customer Service Manager in the business since 2010. The applicant told the Tribunal that the business is a healthy massage shop which has a big spa and that many of the customers come from overseas and that she has developed a good relationship with the customers. The business operates from 12pm to 4 am with 8pm to 4am the busiest times, hence why she works at night.

34. The Tribunal discussed with the applicant her role and responsibilities. The applicant told the Tribunal that she is responsible for developing and reviewing procedures, consulting about customer service and recommending services to the customers. The applicant told the Tribunal that she identifies the customer needs by conducting surveys and solving customer complaints by providing solutions. She is responsible for training the staff and ensuring the smooth operations of the business.

35. The Tribunal asked the applicant who is responsible for controlling the operations of the business. The applicant responded by telling the Tribunal that she is responsible for training the staff. The Tribunal asked the applicant who is responsible for setting the fees and types of services to be provided by the business. The applicant responded by telling the Tribunal that the previous owner set the fees, but in 2016 the previous owner ran away and at the time the applicant did not have the confidence to take over the business so the applicant’s husband took over the business. The Tribunal repeated the question and the applicant responded by telling the Tribunal that she decides what type of service staff provide to the customers, she trains staff on how to do massage and how to identify what service a customer wants. 

36. The applicant told the Tribunal that she monitors customer satisfaction by asking customers to complete a survey following their massage. The applicant then reviews the surveys and will call the satisfied customers to thank them and encourage them to come back again. If a customer complains she will try to connect with the customer to understand how she can provide more customer service for them and recommend improvements to the owner (her husband). The applicant told the Tribunal that she owns 49% of the business and that her husband owns 51%.

37. The applicant in response to the Tribunal’s questions relating to the day to day management of the business told the Tribunal that it is part of her job to replenish stock, undertake the marketing and promotion of the business, double check the cash at closing time and is responsible for OH&S compliance. When asked by the Tribunal if she is the Manager the applicant told the Tribunal “ Yes, I am the Manager.”

38. The Tribunal referred to the ANZSCO definitions for Retail Manager (ANZSCO 142111) and Customer Service Manager (ANZSCO 149212) and explained to the applicant that it may form the view that the evidence provided by the applicant suggests that tasks of the position are similar to the description for the occupation Retail Manager.

39. The ANZSCO definitions for Retail Manager (ANZSCO 142111) and Customer Service Manager (ANZSCO 149212) provide as follows: 

    UNIT GROUP 1421 RETAIL MANAGERS

    RETAIL MANAGERS organise and control the operations of establishments which provide retail services.

    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.

    Registration or licensing may be required.

    Tasks Include:

    odetermining product mix, stock levels and service standards

    oformulating and implementing purchasing and marketing policies, and setting prices

    opromoting and advertising the establishment's goods and services

    oselling goods and services to customers and advising them on product use

    omaintaining records of stock levels and financial transactions

    oundertaking budgeting for the establishment

    ocontrolling selection, training and supervision of staff

    oensuring compliance with occupational health and safety regulations

    
    142111 RETAIL MANAGER (GENERAL)
    Organises and controls the operations of a retail trading establishment.

    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

    
    149212 CUSTOMER SERVICE MANAGER

    Plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.

40. The applicant told the Tribunal that she did not agree and that she is the Customer Service Manager and that she provides customer service and is responsible for resolving issues, promoting the business to improve business turnover, after sales service, solving issues and formulates statements on how the business is growing and that these roles are not included in Retail Manager and that Retail Manager is narrowing her role.

41. The Tribunal asked the applicant what specific customer service the staff provided, apart from massage. The applicant told the Tribunal that they do their job and organise what the customer requires for example the customer may want to go to the spa. In regard to managing a typical complaint the applicant told the Tribunal a customer may complain that they have to wait, the applicant resolves this by telling the customer they can make an appointment and come back at another time.

1. The Tribunal notes that the delegate in their decision of 6 February 2017 found that the applicant was working in the position of Receptionist. The Tribunal has considered whether or not the applicant is working in the position of Receptionist and finds that there is no compelling evidence before it to support that the applicant’s position is that of Receptionist. The issue before the Tribunal is whether the applicant is performing the duties of the approved nominated position of Customer Service Manager. 

2. The Tribunal has carefully considered the written and oral evidence provided by the applicant and her representative. It has taken into consideration the applicant’s evidence of the actual duties and responsibilities she undertakes in the position and the written evidence from customers and the applicant’s accountant. At the hearing the Tribunal told the applicant that the evidence before it suggests that whilst her title is Customer Services Manager, the duties that she is performing are that of Retail Manager.

3. When asked by the Tribunal if she was the manager of the business, the applicant told the Tribunal that she is the manager. The applicant also told the Tribunal that she performs duties such as replenishing stock, managing the business’s finances, marketing and promotion of the business, and is responsible for OH&S compliance. Whilst both job titles contain the term ‘manager’ the Tribunal considers that the evidence before it suggests that the duties performed by the applicant accord with the position of Retail Manager and that the applicant’s actual responsibilities reflect the overall management and operations of the  business and are not limited to one aspect of the business, that being customer service.

4. The Tribunal has placed considerable weighting on the evidence before it which suggests that the applicant’s role involves the overall management and control of the business’s operations. This evidence includes the applicant’s description of her tasks and responsibilities coupled with the written evidence provided by the applicant. The written evidence incudes a Statutory Declaration from a client stating “ Amy is the Manager of E studio”, customer satisfaction surveys stating : “Manager Amy provides very good service and is very nice” “very good Manager”, “Amy Manager is nice, “…..and the Manager Amy she is also to[sic] good”. The Business’s financial reports show the applicant is a Director and shareholder of the business and a letter from the business’s accountant states “ Amy is the only manager of the business and controls all business operations.”  The applicant told the Tribunal that she is known as Amy.

5. The Tribunal invited the applicant to respond to this evidence in so far as customers and the business’s accountant have stated in writing that she is the manager, in particular the accountant has stated that she controls all business operations. The applicant told the Tribunal that her previous boss (the one who ran away) told her to communicate with the accountant and that the accountant “knows every detail.”

6. The Tribunal acknowledges that the applicant’s position has responsibilities that involve dealing with customer complaints and ensuring customer satisfaction, however considering the evidence overall the Tribunal is of the view the ANZSCO occupation which best describes the tasks undertaken by the applicant are that of Retail Manager. The Tribunal does not accept that the ANZSCO definition for Customer Service Manger describes the tasks undertaken by the applicant. It therefore finds, on the evidence before it that the applicant is working in the position of Retail Manager and therefore is not working in the nominated position of Customer Service Manager.

7. The Tribunal therefore finds that the position to which the application relates is that of Retail Manager and is not the position (that being Customer Service Manager), nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and Is not the position in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and is not the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

8. Accordingly, the applicant therefore does not satisfy the criteria of cl.186.223(1).

9. As the first named applicant does not meet an essential criterion for the grant of a subclass 186 visa, cl.186.223 is not met.

10. There is no evidence before the Tribunal to indicate that the second applicant and third named applicant meet the primary requirements for grant of the visa.

11. As the first named applicant is found not to have met the prescribed criteria for a subclass 186 visa, the second named  applicant Mr Andrew J Yang and third named applicant Mr Jen-San Yang as members of Ms Pi-Hsia Liao’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named and third named applicants do not satisfy cl.186.311.

12. The applicants have only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

DECISION

1. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

   Karen McNamara
   Member

   
   

   ATTACHMENT A

   186.223(1)      The position to which the application relates is the position:

   (a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

   (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

   (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

   (2)      The Minister has approved the nomination.

   (3)      The nomination has not subsequently been withdrawn.

   (3A)    Either:

   (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

   (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

   (4)      The position is still available to the applicant.

   (5)      The application for the visa is made no more than 6 months after the Minister approved the nomination.