SEFNET PTY LTD (Migration) - [2017] AATA 152

SEFNET PTY LTD (Migration) [2017] AATA 152 (31 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  SEFNET PTY LTD
CASE NUMBER:  1506264
DIBP REFERENCE(S):  BCC2015/637384
MEMBER:R. C. Titterton
DATE:31 January 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 31 January 2017 at 5:19pm

CATCHWORDS

Migration – Employer Nomination – Customer service manager – ANZSCO definitions – Scale of the business – Childcare centres – Reviewing and implementing customer service policies – Nominated occupation inconsistent with actual role

LEGISLATION

Migration Act 1958, s 140GB
Migration Regulations 1994, r.5.19, r 2.72, r.2.73

CASES

Cargo First Pty Ltd v MIBP [2015] FCCA 2091
Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 April 2015 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 26 February 2015. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy regulation 2.72 (10) as:
·the two statements provided by the applicant showed that the nominee was not involved in developing and reviewing policies, programs and procedures concerning customer relations and the goods and services provided;
·the nominee would not be performing the duty of managing, motivating and developing staff or providing customer service because the applicant’s organisation chart showed that the nominee had no subordinate staff that provide customer service and therefore it was more likely that the nominee performed the duty of the customer service staff member rather than as a Customer Service Manager;
·the delegate was not satisfied that the tasks of the position were consistent with the tasks of the nominated occupation is listed in the ANZSCO;
·the applicant had not provided sufficient evidence to demonstrate the position fit fitted within the scope and scale of the business.
The applicant was represented at a hearing on 23 August 2016 by its director Mrs Geraldine Sefein who appeared before the Tribunal to give evidence and present arguments. The Tribunal also received brief oral evidence from Ms Khristine Turalde, the applicant’s Customer Service Manager.
The applicant was represented at a further hearing on 25 January 2017 by its director Mrs Geraldine Sefein who appeared before the Tribunal to give evidence and present arguments. The Tribunal also received brief oral evidence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: SEFNET PTY LTD (Migration) [2017] AATA 152
Case: [2017] AATA 152
Decision Date: 31 January 2017

CaseChat Overview and Summary

The applicant, SEFNET PTY LTD, sought judicial review of a decision made by the Minister for Immigration and Border Protection concerning a nomination for a customer service manager position. The core of the dispute revolved around whether the nominated occupation accurately reflected the actual duties performed by the proposed employee within SEFNET's business operations, which involved childcare centres. The matter was heard by R. C. Titterton.

The central legal issue before the court was whether the delegate of the Minister had erred in finding that the nominated occupation of customer service manager was inconsistent with the actual duties performed by the proposed employee. This required the court to consider the relevant ANZSCO definitions for customer service manager and assess the scale and nature of SEFNET's business, particularly in relation to the implementation and review of customer service policies.

The court's reasoning focused on the evidence presented regarding the applicant's business and the nominated role. It was determined that the delegate had not erred in their assessment. The court found that the duties described in the nomination, particularly those relating to reviewing and implementing customer service policies, were not consistent with the typical responsibilities of a customer service manager as defined by ANZSCO, especially within the context of a childcare business. The scale of the business and the specific operational context were crucial factors in this determination.

Consequently, the application for judicial review was dismissed.

Orders