Pure Aluminium Windows Pty Ltd v Minister for Immigration

[2018] FCCA 84

FEDERAL CIRCUIT COURT OF AUSTRALIA

PURE ALUMINIUM WINDOWS PTY LTD v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 84

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – refusal of approval of a nomination of an occupation under s.140GB of the Act – whether the Tribunal erred in its consideration of the ANZSCO – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.140GB, 476

Migration Regulations 1991 (Cth), reg.2.72

Cases cited:

Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091; (2015) 298 FLR 138

Pasricha v Minister for Immigration and Border Protection [2017] FCA 779
Cargo FirstPty Ltd v Minister for Immigration and Border Protection [2016] FCA 30; (2016) 242 FCR 87

Applicant: PURE ALUMINIUM WINDOWS PTY LTD (ACN 163 201 394)

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 107 of 2017

Judgment of: Judge Nicholls

Hearing date: 13 July 2017

Date of Last Submission: 13 July 2017

Delivered at: Sydney

Delivered on: 25 January 2018

REPRESENTATION

Counsel for the Applicant: Mr J Gormly

Solicitors for the Applicant: Aditum Legal

Solicitors for the Respondents: Mr K Eskerie of Sparke Helmore

ORDERS

1. The application made on 12 January 2017 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 107 of 2017

PURE ALUMINIUM WINDOWS PTY LTD (ACN 163 201 394)

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 12 January 2017, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 8 December 2016, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse the nomination by Pure Aluminium Windows Pty Ltd ACN 163 201 394 (“PAW”) for an employee to be employed in the role of a Customer Service Manager (“CSM”) (“the occupation”) under s.140GB of the Act.

2. The evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).

3. There was no dispute between the parties that at the relevant times, PAW carried on the business of the manufacture, supply and installation of aluminium doors, windows panels and frames, from its business site in Granville, New South Wales.

Background

1. PAW was approved as a Standard Business Sponsor for the period 26 February 2015 to 26 February 2018 (CB 123). PAW subsequently applied for approval of a nomination of an occupation under s.140GB of the Act on 16 April 2015 (CB 1 to CB 8). PAW provided further documents to the Minister’s department in relation to the nomination (CB 13 to CB 32). The Minister’s department requested further information from PAW by letter sent to its representative authorised to receive correspondence on its behalf, dated 2 May 2015 (CB 33 to CB 38). PAW’s representative responded by email on 26 May 2015 attaching certain information (CB 39 to CB 43).

2. The delegate refused the application for the nomination on 3 June 2015, on the basis that the delegate “did not consider the position associated with the nominated occupation to be genuine”, and therefore PAW did not meet reg.2.72(10)(f) of the Migration Regulations 1994 (Cth) (“the Regulations”) (CB 57.3). PAW was notified of the decision by letter of the same date, and sent to its representative authorised to receive correspondence on its behalf (CB 44 to CB 57).

3. PAW applied for review to the Tribunal on 18 June 2015 (CB 58 to CB 59). The Tribunal invited PAW to provide further information to it by 9 September 2016, by letter dated 26 August 2016, and sent by email to PAW’s representative authorised to receive correspondence on its behalf, on the same date (CB 64 to CB 68). PAW’s representative responded to the request with three emails dated 9 September 2016 and attaching relevant documents (CB 69 to CB 124 and CB 125 to CB 212 and CB 213 to CB 259).

4. PAW was invited to, and the director of PAW attended (see [4] at CB 276), a hearing before the Tribunal on 29 November 2016. Another employee of PAW, Mr Mohieddine, also attended the Tribunal hearing to give evidence (CB 260 to CB 271). The Tribunal refused the application for the nomination of the occupation on 8 December 2016, and PAW was notified by letter dated 9 December 2016 and sent to its representative authorised to receive correspondence on its behalf on the same date (CB 272 to CB 292).

5. I am satisfied, on the evidence before the Court, that the Minister’s written submissions filed in this matter on 6 July 2017 are an accurate summary of the relevant reasoning and findings of the Tribunal, and for the purposes of this judgment I adopt the relevant paragraphs as follows ([3] – [7] of the Minister’s written submissions):

   “[3] The Tribunal noted that the applicant [PAW] nominated the occupation of Customer Service Manager (Australian and New Zealand Standard Classification of Occupations ‘ANZSCO’ number 149212) (at [7]).[1] In assessing whether the nominated occupation was genuine, the Tribunal had regard to the indicative skill level and tasks set out in ANZSCO for the unit group 1492, to which group the nominated occupation of Customer Service Manager belongs (at [28], [57]-[59]). The relevant tasks for unit group 1492, and those specifically relating to the occupation of Customer Service Manager, are set out in an attachment to the Tribunal’s decision record (Court Book ‘CB’ 292).

   [1] Which was a specified occupation in IMMI 14/048 (in force at the time of the visa application and delegate’s decision) for the purposes of reg 2.72(10)(aa).

   [4] The Tribunal noted that ANZSCO was an indicative guide (at [57]), and it was guided by the skill level and tasks for a Customer Service Manager set out therein (at [58]). The Tribunal further noted that it considered it reasonable to compare the tasks of the actual position with those listed in ANZSCO (at [58]).

   [5] The Tribunal had some concerns about the duties specified in the material provided to the Department and the Tribunal (see [9]), given the evidence of Mr Samir Al Nahoum, the director of the applicant, that the nominee did not carry out some of those tasks (at [59]). Further, the Tribunal found the evidence to be ‘rather vague as to the tasks that the nominee carried out from day to day’ (at [70]).

   [6] In considering the tasks of a Customer Services Manager as set out in ANZSCO compared to those purportedly undertaken by the nominee, the Tribunal relevantly found as follows:

   (a) It was not satisfied that the nominee carried out the task of ‘managing a team of customer services staff’, as it was not satisfied that there was a team of customer services staff. In particular, the Tribunal noted the evidence of Mr Al Nahoum that there was not a team, and that there were no staff members providing customer services other than the nominee and Mr Adnan Mohieddine, the assistant manager (at [61], see also [27], [31] and [59]). It accepted that the nominee might provide some direction to Mr Al Nahoum or Mr Mohieddine, but was not satisfied that he ‘managed, motivated or developed staff providing customer services’ (at [67]).

   (b) It was not satisfied that the nominee was ‘involved in staff recruitment and appraisals’ except to a minor degree, noting Mr Al Nahoum’s evidence that the nominee was not involved in advertising or interviewing workers, and that this was done by Mr Mohieddine (at [60], see also [45]).

   (c) It was not satisfied that the nominee would ‘provide direction and feedback to team members’, in part because there was no team (at [66]). In particular, the Tribunal noted Mr Al Nahoum’s evidence that the applicant’s involvement with the workers extended to showing the workers if they were doing something wrong and correcting way to do it (at [31]).

   (d) It was not satisfied that the nominee was involved in ‘training staff to deliver a high standard of customer service’ except at a basic level of instructing them how and when to answer the telephone (at [61], see also [30]). Further, whilst accepting that the nominee might give some directions to the owner, it was not satisfied that the nominee led or supervised the director of the applicant.

   (e) It accepted that the nominee had been involved in ‘developing and reviewing polices…,’ but only to a minor degree (at [64], see also [34]).

   (f) It was satisfied that the nominee liaised with customers to identify and respond to customer complaints, but was not satisfied that he liaised with other organisational units or service agents to identify and respond to customer expectations (at [69]).

   (g) It was satisfied that the nominee had been involved in some ‘planning and implementing of after sales services to follow up customer satisfaction,’ but was not satisfied that the nominee ensured performance of goods purchased, or that he ‘modified and improved services provided’ (at [68], see also [33] and [35]).

   [7] Based on the oral evidence at the hearing, the Tribunal was not satisfied that the nominee carried out the majority of tasks of a Customer Service Manager (at [65]-[66]). The Tribunal was not satisfied that the position included a significant majority of the range and skill level of tasks set out in ANZSCO for the occupation of Customer Service Manager, and did not accept that the position was necessary to the operations of the business of the applicant (at [72]-[73]). Accordingly, the Tribunal was not satisfied that the position associated with the nominated occupation of Customer Service Manager was genuine and found that reg 2.72(10)(f) was not met. The Tribunal affirmed the decision under review.”

The Application to the Court

1. The sole ground of the application to the Court is in the following terms:

   “The decision of the second respondent Tribunal was affected by jurisdictional error in that the Tribunal misunderstood and wrongly applied certain tasks of the nominated occupation of Customer Service Manager set out in the ANZSCO Unit Group 1492.

   Particulars

   a. In comparing the position of the nominee with the nominated occupation as required by sub-reg 2.72(10)(f) Migration Regulations 1994 the respondent Tribunal construed the tasks for the nominated occupation set out in ANZSCO: ‘providing direction and feed back to team members …’ and ‘managing, motivating and developing staff providing customer services’ as meaning that the ‘team members’ and ‘staff providing customer services’ meant either staff dedicated full time to customer service, and/or staff who dealt with clients directly.

   b. As a result of this misunderstanding, the comparison the Tribunal was required to make between the nominee’s position and the nominated occupation miscarried as the Tribunal failed to take into account the nominee’s management role in relation to those workers generally involved from time to time in the ‘customer service’ of the provision of after sale services such as rectification of defects and late delivery.”

Consideration

1. At the relevant time, s.140GB of the Act was in the following terms:

   “Section 140GB

   Minister to approve nominations

   (1) An approved sponsor may nominate:

   (a) an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:

   (i) the applicant or proposed applicant’s proposed occupation; or

   (ii) the program to be undertaken by the applicant or proposed applicant; or

   (iii) the activity to be carried out by the applicant or proposed applicant; or

   (b) a proposed occupation, program or activity.

   (2) The Minister must approve an approved sponsor’s nomination if:

   (a) in a case to which section 140GBA applies, unless the sponsor is exempt under section 140GBB or 140GBC -- the labour market testing condition under section 140GBA is satisfied; and

   (b) in any case-- the prescribed criteria are satisfied.

   (3) The regulations may establish a process for the Minister to approve an approved sponsor’s nomination.

   (4) Different criteria and different processes may be prescribed for:

   (a) different kinds of visa (however described); and

   (b) different classes in relation to which a person may be approved as a sponsor.”

2. At the relevant time, reg.2.72(10)(f) of the Regulations was in the following terms:

   “Regulation 2.72

   Criteria for approval of nomination – Subclass 457 (Temporary Work (Skilled)) visa

   …

   (10) If the person is a standard business sponsor -- the Minister is satisfied that:

   …

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

3. The issue raised by the applicant’s ground is whether the Tribunal misunderstood two of the “tasks” of the nominated occupation “Customer Service Manager” (“CSM”), as those tasks are set out in the Australian and New Zealand Standard of Classification of Occupations (“ANZSCO”) unit group 1492 (Call or Contact Centre and Customer Service Managers). 

4. The assertion is that the Tribunal’s misunderstanding led to error first in its assessment of which of PAW’s staff provided “customer services”, and second, as to how the relevant tasks applied to the nominated occupation.

5. I agree with the parties that the description of ANZSCO classifications was helpfully set out by Judge Smith in Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091; (2015) 298 FLR 138 (“Cargo First”) at [5] as follows:

   “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…”

6. As set out above, s.140GB(2) of the Act provides that the Minister must approve the nomination in any case, if the “prescribed criteria are satisfied”. In the current case, reg.2.72(10)(aa) of the Regulations required that the Minister be satisfied that the nominated occupation (and the relevant code) correspond to an occupation (and its relevant code), as specified by the Minister in a relevant instrument.

7. This must be read for current purposes with reg.2.72(10)(f) (see above at [11]) of the Regulations which provides that for a standard business sponsor (as in the current case), the Minister must be satisfied that “the position associated with the nominated occupation is genuine”.

8. Therefore, the Tribunal’s task in conducting the review involved, amongst other things, a comparison between what was required by reg.2.72(10)(f) of the Regulations, and the position for which PAW had nominated the proposed employee.

9. In short, PAW’s argument now is that the Tribunal erred in this comparison because it misconstrued the tasks set out in ANZSCO for a CSM. The tasks relevant to ANZSCO unit group 1492 are as follows (see CB 292):

   “- 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”

   [Emphasis added.]

10. The particular tasks that the applicant submits were misconstrued are emphasised above at [18].

11. PAW’s argument can be illustrated with reference to the difference in the ANZSCO between the tasks said to be relevant to a CSM, and the tasks relevant to a Call or Contact Centre Manager (see ANZSCO 149211 (Call or Contact Centre Manager) and ANZSCO 149212 (Customer Service Manager) at the relevant time).

12. In short, PAW’s argument is that although the Tribunal said it was focused on the tasks relevant to a CSM, it considered those tasks as requiring management of a team engaged in “direct” customer service as would be relevant to a Call or Contact Centre Manager.

13. PAW argued that the nominee for the position was carrying out, and would continue to carry out, management of workers who provided customer services in the form of “after sale services”. That is, staff who provide services such as “rectification of defects” after sale, and “late delivery” of products ([21] of the applicant’s written submissions).

14. The assertion is that the Tribunal’s error was that it did not consider that such tasks, and the management of such tasks, were customer services and customer service management tasks respectively.

15. PAW’s argument as to the relevant task confronting the Tribunal was based on the proposition that what was required was a “strict” comparison between all that is relevantly set out in the ANZSCO for a CSM, and the evidence provided by PAW as to the tasks of the nominated position. The tasks of a Call or Contact Centre Manager were not relevant.

16. I agree with the respondent that such an approach is too narrow in light of the relevant statutory and regulatory requirements.

17. As was, in my respectful view, made clear in Pasricha v Minister for Immigration and Border Protection [2017] FCA 779 (“Pasricha”) at [44] – [46] per Moshinsky J (with reference to Cargo First):

    “[44] In Cargo First, Judge Smith explained that the expression ‘the position associated with the nominated occupation is genuine’ cannot be understood without reference to the statutory context, including the extrinsic materials accompanying the relevant legislative amendments (at [21]-[22]). His Honour noted that the relevant provisions of the Migration Act 1958 (Cth) (the Act) and the Regulations were introduced ‘to provide a framework for a temporary sponsored work visa program in order to address genuine skills shortages and to do so without displacing employment and training opportunities for Australian citizens and Australian permanent residents’ (at [23]).

    [45] Consistently with that purpose, Judge Smith observed that: ‘the introduction of a ‘genuineness test’ to be conducted by departmental officers [was] to ensure that the position associated with the nominated occupation is genuinely required to address skilled shortages in Australia’ (at [24]); the scheme gives the Minister ‘the ability to determine which occupations are those in which there is a genuine skills shortage as referred to in s 140AA of the Act’ (at [27]); accordingly, consideration of whether the position associated with the nominated occupation is genuine involves ‘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’ (at [30]); and this analysis ‘necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor’ (at [30]).

    [46] As noted above, an appeal from Judge Smith’s decision was dismissed: Cargo First Pty Ltd v Minister for Immigration and Border Protection (2016) 242 FCR 87. Consistently with the explanation of the scheme given by Judge Smith, Flick J observed on appeal that reg 2.72(10)(f) (equivalent to cl 457.223(4)(d)(ii)) entrusts to the Minister the responsibility of being satisfied that the position is genuine, and that the word ‘genuine’ ‘invites factual inquiry as to whether the ‘position’ is ‘real or true’’ (at [23]). The decision of Judge Smith in Cargo First has been applied in Khan v Minister for Immigration and Border Protection [2016] FCA 877 and Bakri v Minister for Immigration and Border Protection [2016] FCA 396.”

1. In short, the relevant task for the Tribunal is more nuanced than as suggested now by PAW. As was made clear by Judge Smith in Cargo First, “what is required by sub-reg.2.72(10)(f) [of the Regulations] 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” (Cargo First at [30]).

2. I respectfully understand his Honour to further explain the requirements of the sub-regulation by stating that (Cargo First at [30]):

   “[T]he 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”.

3. PAW’s approach now is to argue that the relevant task is to consider, and determine, simply whether the duties relevant to the nominated position are those set out in the ANZSCO. This is with reference to the nominated position description and the corresponding code. That however, in my respectful view, is inconsistent with the totality of the Tribunal’s task as explained by the relevant authorities, and as directed by the regulatory requirement that the position associated with the nominated occupation is genuine.

4. In this light, I also agree with the Minister that what is set out in the ANZSCO is not meant to be treated as some inflexible “check list” against which the proposed tasks of a position are to be considered. In its qualitative analysis, the Tribunal is required, by the relevant statutory and regulatory framework, to consider the evidence before it in light of the requirement that the relevant position is genuine, and to form a view, albeit using the ANZSCO as a guide, as to whether the regulatory requirements for the approval of the nomination are satisfied.

5. This then directs attention to the relevant evidence before the Tribunal.

6. The starting point must be PAW’s own description of the occupation as put before the Tribunal. First, the “position details” were described by PAW in the application for the nomination as (CB 5.9 to CB 6.2):

   “Responsibilities           Develop a customer service policy for the entire organization. Managing team of customer services staff. Face to face enquiries from customers. Providing help and advice to customers. Handling customer complaints or major incidents.

   Main dutiesKeeping accurate records of discussions with customers. Issuing refunds or compensation to customers. Developing feedback or complaints procedures for customer use.

   Other information     Meeting with other staff to discuss possible improvements to customers services. Involved in staff recruitment and appraisals.”

   [Emphasis added.]

7. Second, that description was further explained in the employment contract relevant to the position. The “duties and responsibilities” were said to be (CB 27 to CB 28 and as confirmed in the letter from PAW to the delegate dated 2 March 2015 at CB 41 to CB 43):

   “4. Duties and responsibilities

   a) helping to develop a customer service policy for an entire organization.

   b) managing a team of customer services staff.

   c) handling face-to-face enquiries from customers.

   d) providing help and advice to customers using your organization’s products or services.

   e) investigating and solving customers’ problems, which may be complex or long-standing problems that have been passed on by customer service assistants.

   f) handling customer complaints or any major incidents, such as a security issue.

   g) issuing refunds or compensation to customers.

   h) keeping accurate records of discussions or correspondence with customers.

   i) developing feedback or complaints procedures for customers to use.

   j) meeting with other managers to discuss possible improvements to customer service.

   k) being involved in staff recruitment and appraisals.

   l) training staff to deliver a high standard of customer service.

   m) leading or supervising a team of customer service staff.

   n) learning about the organization’s products or services and keeping up to date with changes.

   o) keeping ahead of developments in customer service by reading relevant journals, going to meetings and attending courses.”

   [Emphasis added.]

8. Third, that the nominated occupation was said to be a “Customer Service Manager” was confirmed by PAW’s letter of 20 April 2015 (see CB 31).

9. Fourth, on 7 September 2016, PAW made written submissions to the Tribunal (CB 126 to CB 259 with annexures). The following parts are relevant to the current consideration.

10. As reproduced at Court Book page 130, the written submissions confirmed the job description outlined above (at [32] – [33]).

11. As reproduced at Court Book 138 to 141, the written submissions sought to address the delegate’s decision. In this regard, the written submissions also made a number of statements about the nominated occupation.

12. Before the Court, the applicant emphasised (CB 139.3):

    “It is once again pertinent to mention here that our Customer Service Manager makes policies, programs and procedures and the team of Customer Service Assistants will execute these policies.”

13. However, the Minister emphasised the following (CB 139.6):

    “POINT NO.3

    While most organisations may require some degree of customer service, in general local level and day-to-day operations of customer service functions are typically carried out by a range of staff. This may include clerical or office administrators, supervisors and general managers, and where the business is of a sufficient size and operation, a customer service representative.

    In response to the above concern, the local level and day-to-day operations of customer service functions are typically carried out by the separate team of customer service staff and the role of the Customer Service Manager is only to supervise this team of the customer service staff and ensure that a high quality of customer service is provided by the organisation.

    As said before, the role of Customer Service Manager is Policy Making and the role of team (customer service assistants) is Policy Executing.”

14. PAW also directed attention to the organisational chart for PAW (CB 131). Relevantly, the organisational chart reveals the nominee as the CSM, but there are no staff for whom he had direct management responsibility.

15. Fifth, before the Tribunal, PAW, through its managing and sole director (Mr Nahoum), and the Assistant Manager (Mr Mohieddine), gave the following evidence. As a preliminary point I note there is no transcript of the Tribunal hearing in evidence before the Court. The only evidence of what occurred at the hearing are the Tribunal’s references in its decision record.

16. One, Mr Nahoum gave evidence that ([19] at CB 279)

    “…The nominee works between the factory and the offices. Customers come to the applicant after looking at the applicant’s website. They come to the office first for pricing and are then taken downstairs and shown the products.”

17. Two, that the nominee worked full-time in the position of CSM ([20] at CB 279):

    “Mr Nahoum stated that the nominee was at work yesterday. The nominee has worked for the applicant since 2009 and has been full-time for about three years. Before that, he was studying and was on a student visa and he worked 20 hours a week at that time. Since he has been full-time, he has always worked in the position of Customer Service Manager.”

18. Three, the Tribunal asked Mr Nahoum what the nominee had done at work “yesterday” ([21] at CB 279). After listening to his answer, the Tribunal expressed its doubts about whether he actually knew what the nominee had done. Mr Nahoum directed the question to Mr Mohieddine (see [23] at CB 279 to CB 280).

19. Four, Mr Nahoum was asked to give evidence about the number of employees of the business. When directed to the organisational chart (see [40] above), Mr Nahoum gave evidence that PAW had about 14 to 15 employees ([23] at CB 279). It is to be remembered that the nominee was to occupy the position of CSM. The Tribunal’s questions were relevant to the matter of what staff he was to manage as a CSM (with the emphasis on “management”).

20. Five, Mr Nahoum gave evidence that the nominee, and Mr Mohieddine, dealt with customers. Again, this was relevant to the position of CSM (with the emphasis on “customer”). That is, the director and principal of PAW, Mr Mohieddine the project manager, and the nominee, were the only persons who dealt with customers. On the basis of the organisation chart, and not disputed by any other evidence, neither Mr Nahoum nor Mr Mohieddine were “managed” by the nominee, let alone took direction from him in relation to dealing with customers (see [24] at CB 280).

21. Six, it is clear that at the hearing, the Tribunal focused on the actual tasks and duties of the nominee’s position (in addition to the above at [27] – [28]).

22. In this context, the Tribunal put to the sole director of PAW, that he had provided two contracts of employment, and a list of duties and responsibilities relevant to the nominee’s position. That is, as a CSM ([27] at CB 280).

23. The Tribunal pointed out to Mr Nahoum that the documents provided by PAW state that one of the duties of the CSM was “managing a team of customer services staff”. Yet his evidence was that there is no customer service team, let alone a customer service team to be managed by a CSM ([27] at CB 280 and see further below).

24. Seven, the Tribunal then addressed the evidence before it in light of the ANZSCO. The Tribunal put to Mr Nahoum that the ANZSCO indicated that one of the tasks of the CSM is “managing staff providing customer services”. Yet the evidence before it appeared to be that there were no such staff who provided customer services, other than himself, Mr Mohieddine and the nominee, none of whom could be said to be in a team managed by a CSM ([30] at CB 280). Mr Nahoum agreed with this ([30] at CB 280).

25. Eight, the Tribunal described the ANZSCO as an “indicative code” (at [28] at CB 280), but nonetheless considered that it provided “an appropriate measure of the skills and qualifications of a [CSM]”.

26. There is no legal error in the Tribunal’s characterisation of the ANZSCO. There is also no legal error in its reliance on it for the purposes of its analysis. Further, in light of the applicant’s submissions before the Court, it is also necessary to note that the ANZSCO is not a definitive expression of the requirements of a position for the purposes of the Tribunal’s task.

27. Nine, with obvious reference to the tasks set out in ANZSCO, the Tribunal asked Mr Nahoum about the task of “providing direction and feedback to team members and assisting with recruitment” (see at [31] at CB 280). The evidence given by Mr Nahoum was as follows ([31] at CB 280 to [32] at CB 281):

    “[31] … Mr Nahoum stated that the nominee is involved with the workers. The Tribunal asked in what way he is involved with the workers. Mr Nahoum stated that the nominee can show the workers if they are doing something wrong and show the workers the way to do the work.

    [32] Mr Nahoum stated that the nominee is not involved in advertising or interviewing workers. The Tribunal asked the applicant if the nominee supervises new workers who put the frames together and make the windows. Everyone does their job but the nominee has more time to check. Mr Nahoum stated that there are the process workers and the glazier and the nominee is more in the factory than him.”

28. In a similar light, the Tribunal raised the issue of after sales service with Mr Nahoum ([33] at CB 281):

    “The Tribunal informed the applicant that one of the tasks is planning and implementing after-sales services to follow up customer satisfaction. Mr Nahoum stated that the nominee set up the after sales service. The Tribunal asked the applicant what the after sales service is. Mr Nahoum stated that the nominee checks that everything is right and working properly. Sometimes he goes to check the job, for example if there has been a complaint about a window. The nominee is the only one going to the job site to check the job. The nominee and Mr Mohieddine are the main persons dealing with customer satisfaction.”

29. Mr Mohieddine’s evidence was that he was the Assistant Manager, and although he and the nominee both dealt with customers when they first come on to the business premises, “it is mostly the nominee who deals with customers” ([37] at CB 281).

30. The Tribunal also discussed with Mr Mohieddine what the nominee did on a daily basis (see at [38] at CB 281 to [44] at CB 282).

31. In relation to the task of “providing direction and feedback” to team members Mr Nahoum stated ([45] at CB 282):

    “…The nominee does not deal with recruitment. He provides direction and feedback. Sometimes he manages Mr Mohieddine and gives a sense of direction.”

32. The applicant’s ground and submissions direct particular attention to various parts of the Tribunal’s analysis and findings. As the Minister submitted at the hearing, of the analysis and findings, the following is of relevance to the ground:

    a)At [59] (at CB 284) of its decision record the Tribunal stated that it had:

    “…some concerns about the duties listed in the material provided to the Department and the Tribunal, because the applicant gave evidence that the nominee does not carry out some of those duties. The Tribunal is satisfied on the evidence that the nominee does not carry out the task of ‘Managing a team of customer services staff’…”

    b)At [60] (at CB 284) of its decision record the Tribunal stated that it was:

    “… satisfied, based on the evidence at the hearing, that the nominee is not ‘involved in staff recruitment and appraisals’ except to a minor degree…”

    c)At [61] (at CB 284) of its decision record the Tribunal also stated that it was:

    “… not satisfied that the nominee is involved in ‘training staff to deliver a high standard of customer service’ except at a basic level of instructing them how and when to answer the telephone…”

    d)At [63] (at CB 284) and [64] (at CB 285) of its decision record the Tribunal expressed concerns about the organisation chart and the oral evidence received at the hearing, and accepted that ([64] at CB 285):

    “…the nominee has been involved in developing and reviewing policies and procedures concerning customer relations and goods and services provided, but only to a minor degree.”

    e)At [65] (at CB 285) of its decision record the Tribunal made findings as follows:

    “Based on the oral evidence at the hearing, the Tribunal is not satisfied that the nominee will carry out the majority of tasks of a Customer Service Manager as set out in ANZSCO.  The tasks of the position, as described by the applicant at the hearing, are to greet customers and take orders for the goods and services and also to deal with complaints and defects, and the nominee has also been involved in introducing a complaint form instead of complaints being put on a piece of paper. 

    f)At [66] (at CB 285) of its decision record the Tribunal found that it was:

    “…not satisfied that the nominee will be carrying out the position of a Customer Service Manager.”

    g)At [67] (at CB 285) of its decision record the Tribunal found that:

    “Whilst [the nominee] may provide some direction to Mr Mohieddine and to Mr Nahoum, the Tribunal is not satisfied that he manages, motivates or develops staff providing customer services.”

    h)At [70] (at CB 286) of its decision record the Tribunal also stated that it:

    “…considered the evidence but is not satisfied that the need for a full-time Customer Services Manager is genuine.”

    i)

    The Minister submitted that the finding that the need for a

    
    

    full-time CSM be genuine, is about the genuine necessity for such a role, which was also a “plank” of the reasoning of the Tribunal in Cargo First and Pasricha.  Further, the Minister submitted that the basis of that Tribunal finding was, to some extent, the quality of the oral evidence to it, such that ([70] at CB 286):

    “Mr Nahoum was unable to give detailed evidence about the tasks that the nominee carries out. The Tribunal was referred to Mr Mohieddine for evidence as to the tasks that the nominee carried out the day before the hearing … The Tribunal found the evidence rather vague as to the tasks that the nominee carried out from day to day.”

    j)At [71] (at CB 286) of its decision record the Tribunal stated that it was:

    “…not satisfied that a business that employs Mr Nahoum (the director and Manager), Mr Mohieddine (the project manager and assistant manager), and an accountant in the office would need a Customer Service Manager.  The Tribunal acknowledges that there are other employees who work in the factory but they are not staff that provide customer services…The Tribunal finds that the nominee is mostly involved in dealing with sales of goods and services to customers who come to the applicant’s business although he is also involved in dealing with complaints and organising rectification of work.”

    k)At [72] – [73] (at CB 286) of its decision record the Tribunal found it was:

    “[72] … not satisfied that the scale and activities of the business are such that a designated Customer Service Manager performing the range of duties as described in ANZSCO and at the skill level indicated is necessary to the operations of the business.

    [73] Based on the applicant’s evidence at the hearing, and taking into account the other written material provided to the Department and the Tribunal, the Tribunal is not satisfied that the position includes a significant majority of the range and skill level of tasks as set out in ANZSCO for the occupation of Customer Service Manager. The Tribunal does not accept that a Customer Service Manager is necessary to the operations of the business of the applicant.”

33. As Justice Flick, with respect, made clear in Cargo FirstPty Ltd v Minister for Immigration and Border Protection [2016] FCA 30; (2016) 242 FCR 87 (“Cargo First on Appeal”) on appeal from Judge Smith, the Tribunal’s task was to conduct a “factual inquiry” of the evidence before it to determine “whether a person in fact discharges the functions of a nominated occupation” (Cargo Firston Appeal at [24]). Further, as was said by Judge Smith in Cargo First (at [30]), a “qualitative analysis”, and a comparison of that analysis with the nominated occupation is required.

34. On the evidence before the Court, the Tribunal’s findings arose from the “factual inquiry” outlined above. The Tribunal’s “qualitative assessment” was as revealed in, and by, the various findings set out at [52] (at CB 283) to [77] (at CB 286) of the Tribunal’s decision record.

35. The applicant’s complaint about the Tribunal’s analysis does not reveal jurisdictional error.

36. First, the essence of the applicant’s argument was that the Tribunal’s consideration miscarried because the Tribunal misunderstood the ANZSCO classification. The crux of this complaint was that the Tribunal took the view that a CSM needed to have a team with direct contact with customers, before it could be said that the position was a customer services position.

37. As against that proposition, the applicant took issue with the Tribunal’s finding that there was no “team” of people providing customer services. The applicant argued that addressing customer satisfaction by attending to after-sales “defects” and “complaints” was a customer service. Given that there were workers who performed these tasks, the nominated position can be properly described as a Customer Service Manager position.

38. That indeed may be the case. But the applicant’s argument, when reduced to its essence, reveals that the applicant really seeks to cavil with the factual findings made by the Tribunal. Another Tribunal member may have reasoned in the way the applicant urges. But the issue now is whether it was reasonably open to the Tribunal to make the findings that it did on the evidence before it. The answer is that it was.

39. Second, the applicant sought to rely on the distinction said to be made in ANZSCO between “Call or Contact Centre Manager” (ANZSCO 149211) and “Customer Service Manager” (ANZSCO 149212).

1. The essence of the applicant’s argument was that the Tribunal did not distinguish between the different “modes” of customer service as the different ANZSCO classifications did. That is, and relevant to the current case, the Tribunal considered the applicant’s case by proceeding to view a CSM within the “paradigm of the call centre”, that is, managing staff with direct face-to-face “customer contact”.

2. Therefore the applicant argues that given PAW’s operations as put in evidence, there was a need for a manager who could direct workers in the task of after-sales service, that is, attending to defects and dealing with complaints. In short, a CSM did not need to only be concerned with the management of employees’ tasks relating to face-to-face customer contact, as in the call centre context.

3. Again, a different Tribunal member may have reasoned, and found, that in the circumstances presented, the nominated position was a CSM position because of these tasks.

4. However, the current Tribunal, after conducting a qualitative assessment of the matters before it, and in particular, of the oral evidence given to it, found that it was not satisfied that the nominee would carry out the “majority of tasks of a [CSM] as set out in ANZSCO” (see [65] at CB 285).

5. It was reasonably open to the Tribunal to find that on the evidence given to it at the hearing, the nominee would not be performing the majority of the tasks of a CSM ([65] at CB 285 to [70] at CB 286).

6. It is important to note that the Tribunal’s analysis and its findings did not say that the nominee would not perform some of the functions, but simply would not be performing the majority, such as to make the position a genuine CSM position.

7. In this light, it was reasonably open to the Tribunal to find, as it noted with Mr Nahoum at the hearing, that the documentary evidence provided by PAW itself revealed that there was no customer service team, let alone a CSM.

8. On a fair reading, I do not accept the submission that the Tribunal confused, or proceeded on the basis that the CSM position was synonymous to, or derived from, a Call or Contact Centre manager (ANZSCO 149211). As set out above, the Tribunal proceeded to qualitatively evaluate the evidence, both documentary and oral, given to it by PAW.

9. In all, and as set out above, PAW is aggrieved with the findings of fact made by the Tribunal and seeks to cavil with them. PAW’s ground seeks impermissible merits review. The ground is not made out.

Conclusion

1. The application to the Court should be dismissed. I will make the appropriate order.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  25 January 2018