Pasricha v Minister for Immigration

[2016] FCCA 2546

FEDERAL CIRCUIT COURT OF AUSTRALIA

PASRICHA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2546

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – whether Tribunal erred in failing to have regard to entirety of ANZSCO code – whether applicant raised with the Tribunal those levels of the ANZCO code now relied on – whether Tribunal erred by concentrating on extent to which applicant’s duties directly corresponded with nominated organisation – no jurisdictional error revealed.

Legislation:

Migration Regulations 1994, cl.457.223, 2.72

Cases cited:
Talha v Minister for Immigration and Border Protection and Another (2015) 235 FCR 100
Cargo First Proprietary Limited v Minister for Immigration and Border Protection and Anor (2015) 298 FLR 138
Cargo First Proprietary Limited v Minister for Immigration and Border Protection (2016) 149 ALD 634

Applicant: KANAV KUMAR PASRICHA

Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2373 of 2014

Judgment of: Judge Burchardt

Hearing date: 12 August 2016

Date of last submission: 12 August 2016

Delivered at: Melbourne

Delivered on: 6 October 2016

REPRESENTATION

Counsel for the Applicant: Mr Aleksov

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the First Respondent: Mr Wood

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the application filed on 7 June 2016 be dismissed.

2. That the applicant pay the first respondent’s costs of the proceedings fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

No. MLG 2373 of 2014

KANAV KUMAR PASRICHA

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. By an amended application filed 7 June 2016, the applicant seeks judicial review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) dated 29 October 2014.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Temporary Business Entry (Class UC) visa.

2. The amended application has two grounds.  First, it asserts that the Tribunal's decision was affected by jurisdictional error in that the Tribunal relied on the position description in the ANZSCO code without taking into account the description of the duties under the whole of the code relevant to the position of customer service manager.  Secondly, it is asserted that the Tribunal fell into jurisdictional error by misconstruing cl.457.223(4)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) in that it wrongly focused on the proportion of the applicant's duties which constituted the work of a customer service manager, rather than focusing on whether the position was genuine by reference to whether the accepted work of a customer service manager meant that the position was genuinely required by the business.

3. For the reasons that follow, I think that the first respondent is correct to submit that these grounds of the application are not made out, and the application will be dismissed with costs.

4. Because both of the grounds of review turn, at least in part, upon the Tribunal's approach to the case the applicant put forward, and the detailed evidence in support of it, it is appropriate to commence with the materials in the court book.

The applicant's materials in the court book

1. Before commencing with the materials, it is appropriate to set out part of cl.457.223 as follows:

   “Standard business sponsorship

   (4) The applicant meets the requirements of this subclause if:

   (d) the Minister is satisfied that:

   (i) the applicant's intention to perform the occupation is genuine;  and

   (ii) the position associated with the nominated occupation is genuine;…”

2. The written submissions forwarded by the applicant's agent to the relevant departmental officer are at CB74 and following.  They plainly address and are formulated on the two facets of subclause (d);  namely, the applicant's intention to perform the occupation being genuine and the position associated with the nominated occupation being genuine.

3. At CB75, the following is set out:

   “We submit that it is essential that the business has a customer service manager who can put into operation customer service policies and establish proven processes and protocols which will build up customer relations.  It is also equally important that these policies and procedures are practiced when liaising with business contacts such as car dealers, external contractors and related entities.  It is important that the business strengthen these bonds to improve sale figures and create better profit margins.  According to the guidelines provided by ANZSCO, Customer Service Manager duties are to plan, administer and review customer services and maintain sound customer relations.  Tasks include:

   ·   Developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided

   ·   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”

4. On the same page, there followed a list of duties taken from the job description for the applicant, which were said to accord with the ANZSCO guidelines.  Having set out various duties the applicant was to undertake at CB75, the submission asserted at CB76:

   It is submitted that the job description provided in the nomination, and the tasks outlined to be undertaken by the Applicant are closely aligned with the ANZSCO requirements for the role. 

   With regard to whether the occupation is one genuinely required by the business, it is submitted that superior customer service practices are pivotal to the running of the business especially with the recent rise of competition with the car washing industry.  Good customer service practices ensure the growth and success of a business through favourable word of mouth, in turn increasing the frequency and number of times customers shop within a store, and potentially even the dollars spent by a customer per transaction.  Strong consumer service policy and practice also builds a business through improved customer satisfaction, strong customer loyalty, competitive advantage and improved market position.  A Customer Service Manager is essential in the process of building customer service to this level.

5. A position description which accompanied the written submissions is at CB104.  It is not necessary to set this out in full, although I have, of course, had regard to it.  It is certainly consistent with the sort of matters one would expect to see a customer service manager doing.

6. The decision of the delegate who refused the applicant's application is at CB113-115.  Having paraphrased the written submission forwarded at CB114, the delegate went on to say:

   I have considered all of the information submitted by the applicant.  I am not satisfied that the business genuinely requires the services of a Customer Services Manager for the following reasons:

   ·   The position of Customer Service Manager are found in large businesses that deal with a large customer base such as business call centres, and as such, is a different business structure to that which is operated by the applicant's sponsor;

   ·   As the applicant's sponsor operates a small car wash franchise and employs staff to wash and detail cars, the position does not fit with the business structure in terms of the scope and scale of the business. 

   While it is reasonable for a large business with a large customer base to require a specialist manager to manage a medium or large team of staff that deal directly with customers, small businesses with relatively small customer bases do not have the same requirements.  For small businesses, it is reasonable to expect that customer service management issues are dealt with by the general manager, supervisor or duty manager for the day.

   The size and nature of the sponsor's business indicates that it is reasonable for the business owner or supervisor on duty, to manage customer service relations and the management of the staff with the business operation.  This demonstrates that the position of Customer Service Manager is not required for this business. 

   Consequently, I do not consider the position associated with the nominated occupation to be genuine, and the primary applicant does not meet subparagraph 457.223(4)(d)(ii).

7. Further written submissions were forwarded to the Tribunal dated 9 October 2014.  At CB167 and following, the submission took issue with the delegate's finding about the importance of the size of the sponsor.  The submission asserted at CB167-168:

   “We submit that when looking to whether a business genuinely requires a Customer Service Manager, consideration should not only be given to the size of the sponsoring employer, but also to the size of the customer base of the company, as the size of the company is not always an accurate reflection of the size of the customer base, and thus whether a specific employee is required on staff to manage customer relations.  As one of the primary role’s (sic) of the Customer Service Manager is to develop customer service policies and better customer relations, we submit that the size of the customer base should be of primary consideration when assessing the need for a Customer Service Manager.”

8. The written submission went on to develop this point and noted the duties that the customer service manager was to undertake.

9. In post‑hearing submissions at CB206-209 (to which there were various annexures) much the same point was made again.  At CB207, the written submission asserts:

   “The Tribunal Member expressed concern that the bulk of the duties carried out by the Applicant were not those of a Customer Service Manager, but instead those of a Car Wash Manager, primarily because the Nominee is the only management staff member within the business.  We submit that the bulk of the tasks undertaken by the Applicant in his role are associated with the role of Customer Services Manager.  We respectfully submit that the business operations are centred solely on providing services to customers.  Any issues that arise within the business are customer focused issues.”

The transcript of the proceeding before the Tribunal

1. The transcript of the Tribunal hearing is annexed to the affidavit of Carina Ford, affirmed 8 June 2016.  The Tribunal member made it clear that he was not, at the commencement of the hearing, satisfied that the applicant had established that the applicant's position was a genuine one (T-3).  Following exchanges with the applicant, the Tribunal member said at T-12:

   “My difficulty is this.  You're managing a carwash.  The organisation chart you provided shows that you're the only manager.  The description of your duties from the carwash franchisor is that you're managing a car wash.  Because you put the name "customer service manager" on your position as the manager of the car wash, it does not make you a customer service manager.  As I see it, a customer service manager is a specialist manager.  It's a manager that would work in a team of other specialist managers, perhaps a sales and marketing manager, or an operations manager or a human resource manager.  Then those specialist managers may report to a general manager.  You are the only manager.  So you are doing all of those management roles.  You've told me that you do rostering.  You've told me that you do invoicing.  You've told me that you do selling.

   I accept some of the roles that you do are related to customer service manager.  Sorry, I accept that some of the roles you do are related to providing customer service.  Talking to your old customers, talking to your new customers, finding out if they're happy with your service, offering them special deals.  I accept that's part of your role.  I accept those are roles that are customer service.  That doesn't make your position a customer service manager.  Do you understand the difference I am drawing between a carwash manager and somebody who is a specialist customer service manager, working in a team of other managers in a relatively large business?”

2. The Tribunal member returned to this issue, and the interaction with the ANZSCO classification at T-14, and the Tribunal member went on to say at T‑18:

   “Again, the evidence before me is that he does all of those other duties of managing the car wash and that there's a business development manager in the franchise or a human resource manager in the franchise or a sales and marketing manager in the franchise would not change that on a day‑to‑day basis of the duties that Mr Pasricha knows explain he is doing much more than customer service manager.  He is managing a car wash.”

3. These remarks were made in the context of providing the applicant an opportunity for further written submissions which were provided, and to which I have already referred.

The Tribunal's decision

1. Having set out the application for review, the Tribunal turned to cl.457.223(4)(d) and noted, correctly, that this requires that the applicant's intention to perform the occupation is genuine, and that the position associated with the nominated occupation is genuine. At paragraphs 10-12, CB221-222, the Tribunal said:

   “At the hearing, the Tribunal discussed with the applicant the duties of his position with the sponsor.  He explained he commenced working in the position of the nominated occupation of customer service manager with the sponsor in March 2014 (in May he became a director and shareholder in the sponsor too.)  He last worked on the Monday prior to the hearing.  That morning, he checked his emails for customer complaints or feedback – there were none.  He then explained the services of the car wash to four new, walk‑in customers during the morning.  He walked the customers through the cars on handover showing what services had been provided and seeking feedback. In the afternoon, things were quieter.  He contacted an existing fleet customer as to whether the customer was satisfied with services received.  He contacted a former fleet customer regarding whether it would resume use of the sponsor's services.  He did some rostering and invoicing for a bulk client for the past month's work.  He explained there were 8 staff rostered that day working on two wet bays and one dry bay of the car wash.  He stated that was a normal day's work.  Elsewhere in the hearing, he sought to emphasise his role in communicating with customers.  He stated it was only by communicating and being able to speak well did he have a chance to sell the sponsor's services to the customers.  He made particular reference to selling pre-paid vouchers, offering a fifth carwash for free if pre-paying for four car washes.  He explained the sponsor's is one of three car wash businesses in the suburb. 

   The Tribunal had regard to the organisation chart he provided to the Tribunal.  He confirmed it was an accurate depiction of the way the sponsor's car wash business was organised.  The Tribunal noted he was the sole manager of the business.  He confirmed that was correct, he authored the organisation chart.  The Tribunal had regard too to the ‘customer service manual’ he provided.  He initially stated that he authored that document.  He then corrected his evidence to state it was provided by the franchisor.  The Tribunal noted the web-site of the franchisor makes reference to it having ‘operations especially easy to handle, backed by well supported business systems’, he agreed the customer service manual was part of that system.  The Tribunal had regard as well to the reference letters he provided, in particular, the letter from the business development manager of the franchisor.  That letter sets out in detail the duties of the position of customer service manager, which the Tribunal read through with the applicant.  When asked to identify which of those duties related to the duties of a customer service manager, he identified:  greeting customers, taking money from customers and trying to sell vouchers (as discussed above). 

   The Tribunal put to the applicant when having regard to the organisation chart showing him to be the sole manager, his duties as described in the reference letter from the franchisor and his own evidence regarding his duties, the Tribunal considered the applicant was not performing the position of a customer service manager, he was performing the position of a carwash manager. 

   The Tribunal stated it considered a customer service manager to be a specialist managerial position who worked with a team of other specialist managers (such as human resources, sales and marketing or operational managers) who in turn may report to a general manager within a substantial business enterprise.  The Tribunal reviewed with the applicant the description of customer service in ANZSCO, as was submitted by the migration agent.  The Tribunal accepted the applicant performed some duties of customer service in his position of car wash manager, however, those were only part of the duties he performed, even be it customer service is an important part of his overall duties.  The Tribunal accepted too that the reference letters he provided indicated he is a good carwash manager and is giving good customer service.  But the Tribunal is not satisfied his performing some customer service duties makes his position with the sponsor to be a genuine position of that of a customer service manager.”

2. Having traversed the applicant's agent's submissions about the size of the business, and the matters in both the pre‑hearing and post‑hearing submissions, the Tribunal continued at paragraphs 16-18 (CB223) and following:

   “The Tribunal is not persuaded by the submissions regarding the size of the customer base.  Were the customer base so large as to require a specialist manager doing the role of a customer service manager, the Tribunal considers it reasonable that the business would then hire such a person with the specialist managerial skills to do that role solely.  At present, on the evidence before the Tribunal, the business had just the one manager, the applicant.  The Tribunal is not persuaded by the submission regarding the other specialist managerial positions being filled by the franchise system.  No evidence was provided to support that assertion.  The Tribunal is not persuaded by the submission regarding the bulk of the applicant's role being customer service manager.  This is not consistent with the position description provided by the franchisor business development manager for the applicant's role.

   The Tribunal has had regard to the ANZSCO description of the duties of a customer service manager, which is set out in the migration agent's submissions.  The Tribunal has made reference to ANZSCO as a guide only. 

   The Tribunal is mindful the department approved the nominated occupation of customer service manager on 27 November 2013.  However, on the basis of the evidence before it, including the oral evidence of the applicant at the hearing and the reference letter from the franchisor business development manager, the Tribunal finds the applicant is the manager of a car wash.  It finds his duties include elements of customer service and elements of management.  Given the nature and size of the business, and given the wide range of duties the applicant does, which are outside the duties of a customer service manager (such as invoicing, rostering and bookings) the Tribunal is not satisfied the applicant's position is that of a customer service manager.  The Tribunal therefore is not satisfied the position associated with the nominated occupation is genuinely a customer service manager.

1. The Tribunal went on to dismiss the application accordingly.

2. It should be noted that the ANZSCO description referred to is that at CB75, which itself, it is clear from exhibit R1, is part of the Unit Group 1492 descriptor in ANZSCO.  It should be further noted that at no point did the applicant seek to bring into play, so to speak, the matters set out under Major Group 1 Managers, Sub‑Major Group 14 Hospitality, Retail and Service Managers, Minor Group 149 Miscellaneous Hospitality, Retail and Service Managers.  Only those matters in the Unit Group were emphasised before the Tribunal.

The applicant's submissions

1. The applicant's submissions concentrated, so far as ground 1 was concerned, with the alleged failure of the Tribunal to have regard to the matters set out in the three tiers, so to speak, of the ANZSCO code above the Unit Group.  The matter is perhaps best set out at paragraph 20 of the written submissions as:

   “On this assumption, the finding that the general or operational management duties performed by the applicant could not come within the occupation of “Customer Service Manager” reveals that the Tribunal had misunderstood the ANZSCO Code in a manner similar to the misunderstanding in Talha.  The Tribunal has ignored the content of the occupation of “Customer Service Manager” as found in the higher hierarchical levels, set out in paragraphs 16-17 above, and thus put out of mind the general or operational management duties of the applicant.  It was not permitted to do so, and the review accordingly miscarried.

2. Much of the force of this decision was said to arise from the decision of the Full Court of the Federal Court in Talha v Minister for Immigration and Border Protection and Another (2015) 235 FCR 100 (“Tahla”).  Counsel took the Court to substantial portions of that judgment.  The matter is perhaps best indicated by the headnote where it was held by the Court allowing the appeal:

   “ (1) In considering whether an applicant's qualifications are "closely related" to their nominated skilled occupation, the Tribunal ought to have had regard to all potentially relevant tasks which are applicable to the nominated occupation, and not simply confine itself to the tasks in the relevant unit group or specific occupation;

   “(2) In carrying out the evaluative process of determining whether an applicant's qualifications are "closely related" to their nominated skilled occupation, the whole of their Australian studies must be compared with the whole of the nominated occupation.”

3. By analogy here, counsel pointed to the parts of the ANZSCO documentation which at the major group level provide, for example, managers "directing, controlling and coordinating the activities of organisations and departments, either personally or through senior subordinate staff".

4. This, it was submitted, included taking bookings and rostering, both tasks that the Tribunal found not to be those of a customer service manager.  It was submitted that the Tribunal's conclusions as to the relevance of the size of the sponsor were incorrect as the size of the company was irrelevant.  It was submitted that the reference to invoicing showed that the Tribunal was not aware of the higher elements of the code and misunderstood it.  It was further submitted that the Tribunal fell into error in concluding that the fact that the applicant did duties additional to those of a customer service manager, meant that the position was not genuine.  It was submitted that such extra work was irrelevant.

5. Counsel was also at pains to address the decision of Judge Smith in Cargo First Proprietary Limited v Minister for Immigration and Border Protection and Anor (2015) 298 FLR 138 (“Cargo First”).  I shall return to that decision in due course.

6. So far as ground 2 was concerned, paragraph 23 of the applicant’s written submissions encapsulates the point made:

   “Accordingly, the relevant question is whether the business genuinely needs the position for which it has made a nomination; that is, does the business require the work associated with the position to be performed?”

   On this basis, it was submitted that the Tribunal erred by concentrating on whether the work performed by the applicant was exclusively that of customer service manager.

The submissions of the first respondent

1. Counsel for the first respondent likewise placed considerable emphasis on the two cases to which I have referred, but the stress was entirely reversed.

2. In Cargo First, Judge Smith was concerned relevantly with reg.2.72 of the Regulations which relevantly required that an applicant nominated for a subclass 457 visa satisfied the Minister that, "The position associated with the nominated occupation is genuine."  The gravamen of the decision might be said to be at [29] - [30], where his Honour said:

   “Another matter to note is that a number of the criteria in regulation 2.72 are that the Minister be satisfied that certain information and certifications have been included in an application for approval.  For example, sub-reg 2.72(10)(e)(i) requires the Minister to be satisfied that the applicant has certified as part of the nomination in writing that the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO.  By contrast, sub‑reg 2.72(10)(f) requires the Minister to be satisfied that the relevant position is genuine.  On its face, that criterion requires some analysis of the material before the decision‑maker rather than simply the neutral observation of whether or not something is included a form.

   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 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.”

3. It should be noted that his Honour was well aware in that case of what the applicant has described as the hierarchy in the ANZSCO from major group to particular occupations. 

4. It should also be noted that his Honour was clearly aware that the criterion "the position associated with the nominated occupation is genuine" applied equally for the sub‑class 457 visa (see his Honour at [20]).

5. At [31] and [32], his Honour said:

   “The critical reasoning of the Tribunal was that given "the nature and size of the applicant’s business as a franchisee of a Muffin Break and given to the wide range of duties of the nominated position which are not consistent with the duties of a sales and marketing manager" the position associated with the nominated occupation was not genuine: [32] of the Tribunal’s reasons.  This reasoning reveals the type of qualitative analysis required by, sub‑reg 2.72(10)(f).

   As I have noted, Mr Karp argued that the Tribunal erred by asking whether Mr Zhao’s sales and marketing activities would constitute duties required of a "specialist full‑time sales and marketing manager" and assuming that a sales and marketing manager was a specialised position in a larger organisation the Tribunal addressed the wrong question.  I accept that the Tribunal considered that the occupation of sales and marketing manager was specialist and full time (see [14] and [29] of the Tribunal’s reasons) and that would ordinarily be found in a larger enterprise than that of a Muffin Break cáfe (see [14]).  However, I do not see any error, let alone any jurisdictional error in the Tribunal’s view about that matter.  As the criterion required a qualitative analysis, and that, in turn required the application of judgment based either on experience or the material before the Tribunal, it can readily be seen to be one which falls solely within the scope of the decision‑maker’s powers and not one to be determined by the Court.”  

6. The decision of Judge Smith was upheld on appeal (Cargo First Proprietary Limited v Minister for Immigration and Border Protection (2016) 149 ALD 634).

7. In dealing with ground 2, counsel emphasised the written submissions paragraphs 37-44, to which I have had regard.  I note the reference to other cases referred to by the first respondent, but these do need to be approached with some measure of caution, as indeed do all these decisions which tend to be somewhat fact specific.

Consideration

1. The first thing to be said is that I accept the submission of the first respondent that the decision of the Full Court in Talha turned on a materially different regulation.  While of course it is the case, and I respectfully accept, that the ANZSCO has, as it were, various units of grouping, the difficulty, at least in part, that the applicant in this case faces is that he simply never advanced his case on the footing that the Tribunal should pay regard to any of the other levels of the hierarchy.  I do not see how it could be said that the Tribunal fell into error in failing to have regard to materials that the applicant made no effort to put before it, and upon which he did not rely.

2. Furthermore, and in any event, the Tribunal was, as Judge Smith pointed out in Cargo First, required to conduct a qualitative analysis to see, relevantly for these purposes, whether the position was what it was said to be, and therefore genuine in that sense.

3. Like Judge Smith, I see no error, let alone jurisdictional error, in the Tribunal contrasting what the applicant actually did with what the position was supposed to be. As the first respondent submits, cl.457.223(4)(d)(ii) forms part of a legislative scheme that is designed to enable applicants to obtain a sub‑class 457 visa only where the Minister has identified a skills shortage in respect of certain specific occupations (paragraph 33, written submissions). This being the case, to examine what the applicant was going to do against the occupation he had nominated does not strike me as involving error at all. Ground 1 is not made out.

4. Ground 2 is likewise not made out.  To an extent, it re‑traverses the matters raised under ground 1.  The real difficulty is that in my opinion, the Tribunal did, in fact, contrary to the matters asserted by the applicant, consider whether the position was genuine in the required sense.  Genuine, as Judge Smith made plain in Cargo First at [30], relevantly means a determination:

   “…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.”

5. In my view, that is what the Tribunal did in this instance.  What the Tribunal found in substance was that whereas the position nominated by the applicant was a specialist one of a kind that the Tribunal detailed both in its discussions with the applicant at the hearing and in the decision, the duties actually being performed by the applicant were those of a car wash manager.  That was not the nominated occupation.

6. This qualitative analysis, in my view, was open on the materials, and it follows that the Tribunal did not fall into error in dealing with the matter in the way that it did.

Conclusion

1. The applicant's grounds of application not being made out, the application will be dismissed with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 6 October 2016