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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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 from Mr Mark Sefein, the other director of the applicant.

6. For the following reasons, the Tribunal has decided to affirm the decision not to approve the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).

Evidence before the Tribunal

1. The evidence before the Tribunal included the following.

2. First, the materials that were before the delegate. These included:

   (a)a contract of employment between the applicant and Ms Turalde dated 18 September 2014. The contract provides for employment in the position of Customer Service Manager, and a pro rata salary of $54,000 based on the 38 hour working week. There was a was a probation period of three months. The contract does not include a position description for the responsibilities of the particular job.

   (b)a bundle of advertisements for Customer Service Manager in other industries

   (c)submissions of the applicant’s agent dated 26 February 2015. The submission states that the applicant had been unsuccessful in seeking a Customer Service Manager to work in its business.

   (d)An organisational chart for the Marrickville Road preschool. This shows that MsTuralde as customer service manager has one direct report, namely a customer service representative. Ms Turalde reports to both Ms Daniele Horth, the preschool director, and Mr and Mrs Sefein, the preschool owners (and directors of the applicant).

   (e)A job description, undated, of the Customer Service Manager. The job description consists of seven areas, namely: Customer Service, Duty Management, Commercial, Administration, Maintenance, Staff Management and Health and Safety.

3. Secondly, at the hearing, the Tribunal was provided with an undated statement per pared by Mrs Sefein. In relation to Ms Turalde’ position, Mrs Sefein relevantly states:

   [Ms Turalde] was employed to support a new service. We were new in the area and we needed an employee with a Qualification in Psychology as well is Children’s Services management to ensure a comprehensive understanding of the requirements to manage and expand our business through effective customer service.

   After an extensive search for a suitable candidate within Australia we were unable to find someone to fulfil the requirements of this role. [Ms Turalde] did meet our requirements for qualifications and experience and successfully carried out this role.

   Being in a service based industry, managing our customers is key to our success. We are a small business and now got depend greatly on the relationships that [Ms Turalde] has built with our customers. Customers are often referred to our business based upon the interactions that the acquaintances they have had with [Ms Turalde]. We recently went through an accreditation process and a success in this process was very much hinged on the relationship management systems that has established in our business.

   [Ms Turalde] has created marketing materials that are personalised and have promoted our services to our customers . . . [she] also engages in our quality assurance process to further our success in customer satisfaction.

   We have recently been able to expand our services to a new site and we are depending on [Ms Turalde] to manager customer relations in the same way she has in the last year and a half to ensure our ongoing success.

4. Thirdly, the oral evidence before the Tribunal evidence that was given at the hearing.

5. At the commencement of the hearing, Mrs Sefein, confirmed that she was a director of the applicant, and was by training a speech pathologist. She said that the applicant had operated childcare centres for about five years and currently had centres in Leichhardt, Marrickville and Dulwich Hill. They had first opened in 2012 in Ashfield, but this was later sold. As director, and owner, of the applicant, Mrs Sefein works with two Centre Directors, one who manages the Centres at Marrickville and Dulwich Hill, the other who manages the Centre at Leichardt. She explained that each was an independent profit centre for accounting purposes.

6. Mrs Sefein explained that Ms Turalde’s role was established because the Dulwich Hill centre had taken two years to build, and that she and the Director Danielle could not focus on the needs of the families at the Marrickville centre at the same time. She needed someone to manage the relationships with the families. She said that finding an employee who understood could both care for the families and the children and understand the business.

7. Mrs Sefein said that Ms Turalde provide written reports to Centre Directors, and constant oral reports; she co-ordinates feedback from parents. Mrs Sefein said that Mr Turalde was involved in policy and program development; and that she was involved in the constant policy review and development process the applicant undertakes. Mrs Sefein and said that Ms Turaldi was particularly involved in review of marketing policy, and gave an example of Ms Turalde of modifying Department of Education posters with photos of the Centre children. Ms Turalde is involved in editing the fortnightly newsletter which is sent to parents. Ms Turalde also coordinates feedback from Centre educators and gives feedback to them.

8. Ms Sefein said that Ms Turalde also contributes to the recruitment process.

9. The Tribunal asked Mrs Sefein whether Ms Turalde worked with the children. Mrs Sefein said that she did both worked with the children and managed customer service. Mrs Sefein said all staff had to be able to both work with children and undertake their other responsibilities. The Tribunal asked whether or not it was in fact part of Ms Turalde’s role that she had to  work with the children, and how many hours a week this would be. Mrs Sefein said that Ms Turalde’s customer service role occupied 15 to 20 hours per week, but this included the “meet and greet” of the children and parents every morning. The Tribunal noted that this would suggest, accepting that Ms Turalde’s customer service role occupied 15 to 20 hours a week, that her “carer’s” role occupied 18 to 23 hours a week. Ms Sefein said that she was not completely certain. The Tribunal explained that it would be allowing her time to provide further documents addressing its concerns.

10. Mrs Sefein was also not sure if Ms Turalde’s salary had increased since she had been hired; she assumed that it had, as salaries were reviewed on a yearly basis.

11. The Tribunal asked whether, in advertising for the Customer Service Manager role, the applicant considered seeking a Child Care Centre Manager. Mrs Sefein said that would have meant “stepping on the toes” of her Director, Ms Horth, who was in fact the manager. Mrs Sefein said that, to an extent, the two roles overlapped. Mrs Sefein said that, looking back on things now, perhaps she should have created a Centre Manager role. Mrs Sefein said that she understood why the delegate may have thought that it was not a genuine position, but she wanted someone to talk to and work with the families. But she also said that she wanted someone to build up the business, which Ms North was not able to achieve as she was “bogged down” in the day to day running of the business.

12. The Tribunal noted that Child Care Centre Managers had to hold a Bachelors degree, whereas a Customer Service manager did not. The Tribunal noted that Ms Turalde did not hold a Bachelor’s degree, and Mrs Sefein confirmed that Ms Horth held both a Bachelor’s degree and a Master’s degree. The Tribunal asked whether those requirements influenced the designation of Ms Turalde’s position as Customer Service Manager. Mrs Sefein responded that she needed someone to look after the customers, and needed Ms Horth to manage the Centre. She said that she understood it was a “blurry line”, but emphasized that the success of the applicant’s business was based on the relationships that Ms Turalde had formed with the parents of the children attending the Centres.

13. (The Tribunal notes that it was mistaken in suggesting to Mrs Sefein that she did not hold a bachelor’s degree. In fact, the evidence before the Tribunal contained in Ms Turalde’s file was that she had graduated with a bachelor of science in Psychology from the Ateneo de Naga Ms University, Naga City, in the Philippines on 3 April 2004. In addition she has a Diploma of Children’s Search Services (Early Childhood Education and Care, with Distinction), from New South Wales TAFE, a Certificate III in Children’s Services, also from New South Wales TAFE.)

14. It appeared that the Tribunal was missing documents and information which Mrs Sefein had instructed the applicant agent to provide to the delegate this included amongst other matters, the advertisement for Ms Turalde’s role. Without meaning any disrespect to Mrs Sefein, she was not properly prepared for the hearing on 23 August 2016. The Tribunal allowed her time to provide further documents to it, and proceeded as best it could with taking evidence from her about the salient aspects of the application. One of the issues was whether a particular job description for Customer Service Manager that was before the delegate was the document referred to in the contract of employment as the position description which was to be provided to Ms Turalde. Mrs Sefein confirmed that it was, but noted that this job description did not refer to managing and reviewing the applicant’s policies and procedures which was now undertaken by Ms Turalde as the applicant sought Commonwealth government accreditation. She explained that this now quite an extensive role for Ms Turalde.

15. The Tribunal also heard brief evidence from Ms Turalde. In summary, Ms Turalde told the Tribunal that she started at the Marrickville Centre just before Christmas 2014. She identified her contract of employment dated 18 September 2014 and agreed that she signed it. The Tribunal noted that the contract provided that the duties of her position would be set out in a position description. The Tribunal enquired whether she had a copy of that position description. Ms Turalde did not answer that question directly, but showed the Tribunal a document, provided to her by Mrs Sefein, but with her Ms Turalde’s annotations on it. These annotations outlined her actual duties under the various headings set out in the document.

16. When Ms Turalde’s said that when her position commenced said that the essential part of the job was to connect with families, to look for ways to build the customer service and look for ways for that to become part of each staff member’s role. Her role included welcoming families is influenced and responding to emails.

17. Ms Turalde explained that her background was a Senior Technical Customer Service Representative in a Call Centre in the Philippines the role involved both customer service and technical support. Ms Turalde assumes that Mrs Sefein wanted her in  Customer Service Manager role because of her marketing and customer service background and her understanding of the role of childhood educators. Ms Turalde indicated that that was her educational background, together with psychology. The Tribunal asked Ms Turalde whether, when she first started working as the Customer Service Manager the role involved childcare. Ms Turalde, explained, as did Mrs Sefein, that staff to child ratios had to be observed, this applied to all staff, including the Director, so that if one of the child carers was absent for some reason her role had to be filled. The Tribunal asked her to estimate of her 38 hour week, how many hours per week was not administration of customer service, but was childcare, or helping out “on the floor”.

18. Ms Turalde agreed that a component of her role in involved minding children. She said that on average per week it might be an hour. She said that it would not be approximately half of her time. She said that she prepared loss of written reports on a variety of matters including the QIP needed for accreditation, on the newsletters, creating posters, articulating Centre policy and curriculum.

19. The Tribunal asked her if she was involved in policy program and development. She said she wasn’t the main person but help the Director in doing so. She said that she provided regular feedback to the child educators who worked in the Centres.

20. Ms Turalde said that now there were two centres which she services, which meant more work, exacerbated by her participation in the Quality Improvement Plans (QIP) which had been filed with the Australian Children’s Education & Care Quality Authority. She said that this had involved a large amount of work. Ms Turalde confirmed that her salary was still $54,000 per annum. She gave some examples of introducing policies and procedures to address concerns of parents, one concerning education.

21. The Tribunal asked Ms Turalde about the discrepancy between what Mrs Sefein had said about the number of hours a week Ms Turalde minded children (that is 15 to 20 hours a week), and Ms Turalde’s own estimate (less than one hour). Ms Turalde said that she could not spend that amount of time (that is approximately three hours a day) with the children, although maybe there was a high degree of childcare involved in the early days.

22. The Tribunal also asked Mrs Sefein the same question, and explained what it had been told by Ms Turalde. The Tribunal explained was trying to determine what the reality was of Ms Turalde’s childcare responsibilities. Mrs Sefein explained that, since Marrickville had opened, the last seven or eight weeks she had spent virtually all her time at Dulwich Hill, whereas Ms North was the one who was working with Ms Turalde at Marrickville.

23. In those circumstances, the Tribunal invited Mrs Safari and to obtain a statement from Ms Horth. At the conclusion of the hearing the Tribunal indicated the other materials that the applicant should consider providing to the Tribunal. The Tribunal indicated that this material could include the following:

    ·the original position description provided to Ms Turalde;

    ·Ms Turadle’s own notes of what she actually does, which notes she had shown the Tribunal during the hearing;

    ·financial statements for the applicant;

    ·information of the history and development of the childcare operations;

    ·examples of reports or other plans or procedures prepared by Ms Turalde (even examples by email);

    ·Supervision of staff.

24. For the reasons set out above, the Tribunal gave Mrs Sefein the opportunity to provide further materials after the hearing. Materials were provided including the following:

    (a)a company profile of the applicant which appears to have been obtained from the FindThe Company website (see The profile states that the applicant is a childcare service company in Ashfield, New South Wales which employs 22 people. The applicant’s director is Mr Mark Sefein, its Secretary, Mrs Geraldine Sefein.

    (b)the financial statements of the applicant for the financial year ended 30 June 2016. In summary, these statements show that;

    ·     as that 30 June 2016 the total income of the applicant was $2.16 million, an increase from $1.93 million the previous year.

    ·     in the 2016 financial year salaries constituted approximately $825,000, a decrease from $840,000 the year before.

    ·     in the 2016 financial year profit from ordinary activities before income tax was approximately $401,000, a rise from approximately $243,000 the year before.

    ·     in 2016 the total assets of the applicant was approximately $370,000, an increase from the previous year amount of possibly $33,000 (the increase in assets was constituted by a loan in the sum of approximately $240,000 from the SEF Trust to the applicant).

    ·     in 2016 the total net assets of the applicant was approximately $570,000, an increase from approximately $168,000 the year before.

    (c)a document titled “Sefnet Pty Ltd Our Story”. This document is neither signed nor dated, but its language suggests it was written by Mrs Sefein. In summary, she states that she and her husband bought their first child care centre in Ashfield in July 2010. She describes this childcare centre as being very rundown when she and her husband purchased it, but after six months of “intense work” they turned the centre “around and it was operating at 100% with an enviable reputation in the area”. After six months, the applicant decided to open another childcare centre in Marrickville. This childcare centre opened in May 2014. Mrs Sefein states:

    Staffing was hard to find as we opened in the middle of the year. I embarked on a sales journey, training my centre director to sell our services to anyone who showed interest. We couldn’t afford to just sit back and advertise ourselves as a regular childcare centre, we built the service up to those who visited and convinced them it was a better service and anything else they could experience anywhere else.

    At the same time this was happening the applicant found another property to lease in Dulwich Hill. The first child centre was sold and the funds used to pay off the debts and build Dulwich Hill. By September, the centre director and Mrs Sefein had finalised the design for Dulwich Hill, as well running Marrickville. They hired:

    an admin assistance/customer service rep, a customer service manager (to take the pressure off us in managing the customer relationships and admin) and 4 new staff. This full compliment [sic] allowed us to manage the day-to-day running of the services, and adherence to the centre philosophy in decision-making and continue shaping the direction of the services.

    At the conclusion of this document, Mrs Sefein states that “good staff continued to be hard to find”, but the existing management team is “doing a fabulous job of ensuring that our relationships with our existing and future customers are maintained”.

    (d)a document titled “Kristine Turalde Customer Service Manager” which is described in the covering email as Ms Turalde’s job description “with notes of actual work performed”. The job description is divided into seven sections namely Customer Service, Duty Management, Commercial, Commercial, Maintenance, Staff Maintenance, and Health and Safety. Relevantly:

    (i)the Customer Service section, which consists of seven criteria, being:

    ·     to manage the administration and staff to lead the implementation of a customer service program;

    ·     to improve our customer service quality by analysing the results, reporting analysis to centre director then managing the customer service representative in implementing the agreed changes to processes;

    ·     communicating to the volunteers and students the expectation of customer service required keeping up-to-date the knowledge and training needs of the customer service representative and educators in order for them to deliver the highest possible standard of service;

    ·     researching and identifying opportunities to enhance customer satisfaction, experience and education and reporting these to centre manager;

    ·     contributing customer service information to other services;

    ·     keeping up-to-date with job knowledge by attending training opportunities maintaining best practice and really professional literature;

    (ii)the (first) Commercial section which has two criteria, being:

    ·to identify and implement, with reference to the Centre Owner, any new areas of business likely to enhance the profitability of the centre;

    ·two help meet the centre’s financial objectives by delivering strategies for increasing income generation through analysis of data collected by customer service representatives on desires of customers;

    (iii)the (second) Commercial section[1] consists of six criteria:

    [1] This heading is probably an error, and should probably be “Administration” as this job description appears to be a fuller and much more detailed version of the earlier job description which was before the delegate.

    ·to identify strategies/ideas to the Centre Director for fundraising for the preschool or selected charities;

    ·to undertake some administration in relation to the program delivery;

    ·to understand and have a working knowledge of Microsoft Outlook and the Word;

    ·to understand and have a working knowledge of the current legal requirements of current childhood services;

    ·to manage the customer service representative in responding promptly to all correspondence relating to general enquiries;

    ·to report of the Centre Owner and Director on the status of customer satisfaction and manage the customer service representative to ensure ongoing satisfaction.

(e)a statement of Ms Daniele Horth, the director of the Dulwich Hill and Marrickville preschools. In summary, she states:

The preschool’s daily routine dictates the time Khristine spends working directly with children and families. An integral part of Khristine’s role is greeting and conversing with families each morning and afternoon, as this enables her to gain feedback from families about all aspects of service delivery. This, in turn, enables Khristine to gain valuable information about the preschools strengths as well as areas that can be improved upon. As such Khristine spends approximately 1 – 3 hours each day working directly with families, which are split between the morning drop-off and afternoon pickup periods.

This information is decimated to the Director through verbal and written feedback. Khristine then works in consultation with the Director to provide feedback to staff about their strengths, as well as areas upon which the service can be improved to increase customer satisfaction, taking into consideration existing families, as well as the preschools reputation within the community. This is presented to staff on an ongoing basis, as well as during staff meetings. This information guides the services Quality Improvement Plan, identifies the services strengths, as well as areas for improvements . . .

Khristine monitors social media to gain insight about the preschools reputation within the local community. . .

Khristine also monitors social media specifically targeted towards early childhood professionals to gain insight about how other early childhood services operate. This information is then analysed in regard to “best practice” and can sometimes influence changes within the preschools service delivery.

1. It is to be noted that none of the materials provided address the issue of the number of hours worked by Ms Turalde as a child minder. Nor do the additional materials provided do not include any examples at all examples of reports or other plans or procedures prepared by Ms Turalde (even examples by email as suggested by the Tribunal),

2. The Tribunal discussed these documents with Mrs Sefein at a brief hearing held by telephone on 25 January 2017. Mrs Sefein explained that since the last hearing the Dulwich Hill centre was now full, and that Ms Turalde divided her time equally between it and Marrickville. Mrs Sefein said that Ms Turalde was now fulfilling the role that she had envisaged for her from the beginning. She said that Ms Trualde was now spending less time with families, and that Ms Horth’s estimate that “Khristine spends approximately 1 – 3 hours each day working directly with families” was lower. Mrs Selfein also said that Ms Turalde now had two direct reports, being a customer service representative, for each centre.

3. At this hearing, the Tribunal also discussed the training requirements in r.5.19(4)(h)(i)(A) and the relevant instrument IMMI 13/030 which sets out the requirements relating to training. The applicant commenced operation in 2012. The Tribunal accordingly finds that the nominator has operated for over 12 months and is therefore required to demonstrate it meets the requirements relating to training. Broadly speaking, this can be done by one of two ways:

   (a)recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business; or

   (b)Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

4. The amount appearing as “salaries – ordinary” in the 2016 financial statements was $824,910.99. The Tribunal observed that the amount for “staff training” appearing in the accounts was $1,145.46, which was far short of either 1% of the company’s payroll (which would be approximately $8,249.00), far less 2%. Mrs Sefein said that figure for training was incorrect, and asked if she could ask her husband about this. The Tribunal agreed, and Mr Sefein, the other director of the applicant gave some brief evidence to the Tribunal.

5. Mr Sefein indicated that the company met its training obligations by a combination of both (a) and (b) above, but agreed that amount for training in the accounts was not representative of the amount actually spent on training. He said that because related entities of the company, such as trusts, had incurred the expenditure. He needed to talk to his accountants about this, and indicated that he would ask them to prepare a document addressing this issue.

6. Shortly after this hearing the Tribunal received a bundle of materials from the applicant addressing this issue. These materials included the financial statements for the year ended 30 June 2016 for the SEF Trust;[2] including the profit and loss statement, balance sheet depreciation schedules; a spreadsheet, and two hand written documents. A covering letter signed by Mr Mark Sefein, states that has attached information “regarding the dollar value that the whole SEFNET Group spends on training”, and that also attached are figures that he is required to report to the Department of Education and what the value of the training that has been completed.

   [2] The Tribunal assumes, but there is no information before it, that the SEF Trust is the trustee of the applicant, Sefnet Pty Ltd

CONSIDERATION OF CLAIMS AND EVIDENCE – POSITION MUST BE GENUINE

38.Regulation 2.72(10)(f) requires the position associated with the nominated occupation to be genuine.

1. In Cargo First Pty Ltd v MIBP [2015] FCCA 2091 the Federal Circuit Court examined the operation of cl 2.72(10)(f) and expressed the relevant test at [30] as follows:

   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 of that 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.

2. This decision was upheld on appeal in Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30, and the construction of r. 2.72(10)(f) at first instance was endorsed at [36].

3. The approach then to determining whether the position is genuine under r. 2.72(10)(f), or in the words of the court in Cargo First, determining whether the position really is what it purports to be, requires the Tribunal to undertake a qualitative analysis of the duties and tasks the nominated employee actually discharges (or is to discharge) in the nominated position, and to compare that to the occupation described in ANZSCO. The necessary qualitative analysis requires more than just examining whether the duties and tasks the employee discharges include the majority of those referred to in ANZSCO.

4. The starting point for the Tribunal is the tasks set out in the relevant ANZSCO classification. The relevant ANZSCO classification is 149212 Customer Service Manager.  The tasks of a Customer Service Manager include the following:

   (a)developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided;

   (b)ensuring operational efficiency within a call centre;

   (c)providing direction and feedback to team members and assisting with recruitment;

   (d)managing, motivating and developing staff providing customer services;

   (e)planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided;

   (f)liaising with other organisational units, service agents and customers to identify and respond to customer expectations;

   (g)may work in a call centre.

5. Matters (b) and (g) are not relevant to the Tribunal’s deliberations.

6. Given the evidence summarised above the Tribunal is satisfied the business operates two child care centres, one at Dulwich Hilll, the other at Marrickville.  The Tribunal accepts the applicant’s evidence that the nominee is important to the ongoing success and operations of the business and that she genuinely fulfils a role within the business. However, the issue in this case is not whether the business genuinely needs an employee but whether the position can be genuinely described as the occupation nominated, that is, Customer Service Manager.

7. The Tribunal has had regard to the descriptions of the position’s duties, provided orally and in writing. It notes that the written descriptions tend to reflect the duties described in ANZSCO. However, the applicant’s oral description of the position’s duties, provided at the hearing, indicates that the position is primarily involved in direct customer service, liaising with customers about their children, and dealing with enquiries and complaints. The Tribunal also notes that, particularly when the business is particularly busy, the position may include child minding. The Tribunal notes that, while the written descriptions indicate the position will develop and review policies, programs and procedures, no corroborative evidence of the writing of such policies was provided to it.

8. As Mrs Sefein conceded at the hearing, the applicant considered seeking a Child Care Centre Manager when it nominated the position of Customer Service Manager. Mrs Sefein said that would have meant “stepping on the toes” of her Director, Ms Horth, who was in fact the manager. Mrs Sefein said that, to an extent, the two roles overlapped. Mrs Sefein said that, looking back on things now, perhaps she should have created a Centre Manager role. Mrs Sefein said that she understood why the delegate may have thought that it was not a genuine position, but she wanted someone to talk to and work with the families. But she also said that she wanted someone to build up the business, which Ms North was not able to achieve as, she was “bogged down” in the day to day running of the business.

9. The Tribunal is not satisfied that Ms Turalde’s duties are consistent with the types of tasks included in the ANZSCO definition for the occupation of Customer Service Manager . Although some of the position’s tasks involve maintaining good customer relations and ensuring customer satisfaction, in the context of the applicant’s child care centre business, the Tribunal considers that they are carried out at a basic level and are tasks common to many customer service or supervisory positions in businesses that provide goods and services in a retail setting. The Tribunal acknowledges that the applicant wishes to expand its business and needs the nominee to ensure that customers are provided with the highest level of service. However, providing good customer service, supervising and training the two direct reports and ensuring quality services are not, in the Tribunal’s view, sufficient to classify the position as Customer Service Manager.

10. As noted, in particular, there was no evidence before the Tribunal that the Customer Service Manager role included the tasks of developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided. Despite being told that Ms Turalde provided written reports to Centre Directors, and constant oral reports, and was involved in policy and program development; when given the opportunity to produce such documents, none were produced, not even a document as informal as an email between Ms Turalde and one of her direct reports. The Tribunal considers that this matter militates against a finding that the role occupied by Ms Turalde is that of Customer Service Manager.

11. In relation to the ANZSCO task of providing direction and feedback to team members and assisting with recruitment, the Tribunal accepts that Ms Turalde provides direction and feedback to her two direct reports. However, while the Tribunal also accepts that she participates in the recruitment process, this is in a very limited way. The Tribunal finds that she does not interview potential staff; rather, she observes their chiding minding abilities and provides feedback to the Centre direct about her observations.

12. The Tribunal considers that Customer Service Managers  typically work in larger businesses where they focus on customer relations and standard of service issues, which involve planning, administering and reviewing customer services, after-sales services and maintaining sound customer relations.

13. The Tribunal considers the tasks needed to be undertaken in the businesses the subject of the application to be more consistent with tasks included for a supervisory front line role, such as a retail supervisor. They do not, in the Tribunal’s view, demonstrate that the position involves developing, reviewing and implementing customer service policies, programs and procedures at the level described in the ANZSCO.

14. The Tribunal has taken into account all of the written material provided before and after the hearings and the oral evidence at the hearings. Having carefully considered all of the evidence before it, and having regard to the ANZSCO description of occupation, the nature and size of the business and actual tasks of the position, the Tribunal is not satisfied that the position can be genuinely described as a Customer Service Manager .

15. Given the above, the Tribunal is not satisfied that the position associated with the nominated occupation of Customer Service Manager is genuine. For these reasons the Tribunal finds that requirements of r.2.72(10)(f) are not met.

16. Having found that r.2.72(10)(f) is not met the Tribunal did not consider it necessary to consider any of the requirements in r.2.72.

17. For the reasons given above, the Tribunal is not satisfied that the applicant meets the all applicable criteria for the nomination to be approved.

18. Accordingly, the decision under review must be affirmed.

DECISION

1. The Tribunal affirms the decision not to approve the nomination.

R. C. Titterton
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

2.72 Criteria for approval of nomination — Subclass 457…

(1)This regulation applies to a person who is:

(a)a standard business sponsor; or

(b)a party to a work agreement (other than a Minister);

who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].

(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

(4)The Minister is satisfied that the person is:

(a)a standard business sponsor; or

(b)a party to a work agreement (other than a Minister).

(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:

(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and

(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

(7A)In addition to subregulation (6):

(a)if:

(i)     the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

(ii)     the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and

(b)if:

(i)     the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

(ii)     the person has listed on the nomination a person described in paragraph (6) (a); and

(iii)    the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;

(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);

(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;

(d)the location or locations at which the nominated occupation is to be carried out.

(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;

(b)if:

(i)     there is no 6-digit ANZSCO code for the nominated occupation; and

(ii)     the person is a standard business sponsor;

the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

(c)if:

(i)     there is no 6-digit ANZSCO code for the nominated occupation; and

(ii)     the person is a party to a work agreement;

the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

(d)the location or locations at which the nominated occupation is to be carried out.

(9)The Minister is satisfied that either:

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

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

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

(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and

(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and

(b)if required by the instrument mentioned in paragraph (a)  or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and

(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions that:

(i)     are provided; or

(ii)     would be provided;

to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and

(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:

(i)     are provided; or

(ii)     would be provided;

to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and

(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

(i)     the tasks of the position include a significant majority of the tasks of:

(A)the nominated occupation listed in the ASCO; or

(B)the nominated occupation specified in an instrument in writing for paragraph (a); and

(ii)     if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

(A)the nominated occupation is a position in the business of the standard business sponsor; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

(iii)    if the person lawfully operates a business in Australia:

(A)the nominated occupation is a position with a business, or an associated entity, of the person; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

(iv)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

(A)for the occupation in the ASCO; or

(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and

(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

(i)     the tasks of the position include a significant majority of the tasks of:

(A)the nominated occupation listed in the ANZSCO; or

(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and

(ii)     if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

(A)the nominated occupation is a position in the business of the standard business sponsor; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

(iii)    if the person lawfully operates a business in Australia:

(A)the nominated occupation is a position with a business, or an associated entity, of the person; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

(iv)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

(A)for the occupation in the ANZSCO; or

(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).

(f)the position associated with the nominated occupation is genuine; and

(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:

(i)     the requirements in subclause 457.223(6) of Schedule 2 continue to be met;

(ii)     if:

(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and

(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;

(iii)    the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;

(iv)    unless subparagraph (ii) applies—the holder:

(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and

(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

(h)either:

(i)     the person will:

(A)engage the visa holder, the applicant for a visa or the proposed applicant for  a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and

(B)give a copy of that contract to the Minister; or

(ii)     the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:

(a)the terms and conditions of employment; and

(b)the base rate of pay, under the terms and conditions of employment;

that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.

(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:

(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

(c)the Minister considers it reasonable to do so.

(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:

(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and

(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

(i)     the tasks of the position include a significant majority of the tasks of:

(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or

(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and

(ii)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and

(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:

(i)     the tasks of the position include a significant majority of the tasks of:

(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or

(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and

(ii)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.