Syed v Minister for Immigration

[2015] FCCA 1846

FEDERAL CIRCUIT COURT OF AUSTRALIA

SYED v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1846

Catchwords:
MIGRATION – Migration Review Tribunal – Temporary Business Entry (Class UC) visa – whether the position associated with the nominated occupation was genuine – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.338(d), 476

Migration Regulations 1994 cl.457.223(4)(d)(ii)

Applicant: TOUQEER AHMED SYED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 929 of 2015

Judgment of: Judge Street

Hearing date: 3 July 2015

Date of Last Submission: 3 July 2015

Delivered at: Sydney

Delivered on: 3 July 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr T. Galvin
Minter Ellison

ORDERS

1. The amended application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 929 of 2015

TOUQEER AHMED SYED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision made by the Tribunal on 6 March 2015 affirming a decision of the delegate not to grant the applicant a Temporary Business Entry (Class UC) visa. The critical issue in the case was whether the applicant met the requirements of cl.457.223(4)(d)(ii) which requires that the position associated with the nominated occupation is genuine.

2. On 19 November 2013 the delegate found that the nominated position of customer service manager did not appear to be a position necessary for the operations of the business where the delegate identified the nature of the business. The delegate relevantly found that he did not consider the position associated with the nominated occupation to be genuine and that, accordingly, the applicant did not meet the requirements of cl.457.223(4)(d)(ii).

3. The applicant appeared before the Tribunal on 18 November 2014 to give evidence and present arguments and the Tribunal also received oral evidence from the owner of the sponsoring employer and the applicant was assisted by representation relating to the review by his registered migration agent.  It was also apparent the Tribunal took into account submissions received on 17 November 2014 and 24 November 2014. 

Amended Grounds Of Application

1. The applicant filed an amended application which raised the following grounds:

   The Tribunal made a wrong issue of the applicant's review application. The Tribunal wrongly mentioned that, 'The issue in the present case is whether the applicant meets the requirements of cl.457 (4)(d)(ii) which requires that the position associated with the nominated occupation is genuine'. The Tribunal did not mention clearly in its decision what is the task include and its indicative skill level of supervisor. The Tribunal mentioned it paragraph 29 of its decision that, 'However the Tribunal considers these aspects of the applicant's tasks to be in nature and common to a number of sales or supervisory positions in business'.

   2. The Tribunal made a procedural mistake that the Tribunal rejected the representative of the applicants submission. The Tribunal mentioned that the Tribunal notes that the representative has referred to a number of factors in Departmental policy, but the Tribunal is not bound by policy and has formed its own view. The applicant is fully capable to understand and operate the Tribunal's noted Task Include descriptions in page 5 of its decision. The applicant also has skills for indicative skill level. The applicant does not have any idea what the Tribunal mention in paragraph 33 of its decision. The review applicant did not know about the concerns raised by the Tribunal in its decision in paragraphs 33.

   3. The Tribunal made a procedural mistake that the Tribunal did not understand the requirements of a convenience store particularly three convenience stores. The own view made by the Tribunal in paragraph 27 of its decision is a mistake. The applicant submits that the Tribunal findings are wrong and is not acceptable. The Tribunal does not have sufficient experience to make findings in this case.

   Particulars:

   The Tribunal does not accept that a business that operates 3 convenience stores requires a full time CSM, even if it is considering expanding to a fourth store.

   The Tribunal considers that CSMs typically work in larger business (growing business will be a larger business).

   The Tribunal does not accept the written position description accurately describes those actual duties of the position. The Tribunal finds that the description of the duties has been exaggerated to meet the description in ANZSCO.

   The position involves carrying out the full range of tasks at the skill level of a CSM, which is located within the ANZSCO Group 1 of Managers.

   The sponsor's failure to give the applicant the full range of duties.

   4. The Tribunal made a procedural mistake that the Tribunal did not review the decision properly. The Tribunal used its own view to reject the application. The Tribunal failed to provide any kind of evidence in support of its rejection. The Tribunal diverted the applicant's claim for the nominated position as a supervisor position which made very difficult for the applicant to accept.  The applicant is a qualified CSM, the Tribunal's findings in this regard are not acceptable. The applicant thinks the Tribunal used excessive power and knowledge to reject the review application. The Tribunal did not consider the applicant's experience, education, ability and assessment capacity. The time spent by the applicant in Australia to gain this position was not considered by the Tribunal. The Tribunal was not fair and the applicant was denied procedural fairness. The applicant dispute the decision of the Tribunal. The findings are made in paragraph 33 is to made to reject the application despite the applicant has got required full knowledge, education and experience to act a CSM. The Tribunal made a mistake. The applicant does not agree with the Tribunal's decision.

Applicant’s Submissions

1. The applicant provided both written and oral submissions in support of his application.  The substance of the written submissions was, in essence, to repeat what was set out in the grounds of the application and did not raise any further issue.  The applicant’s oral submissions identified that he was not happy with the decision made and that the Tribunal had not understood the importance for the three convenience stores or the role of the customer service manager. 

2. The applicant also complained that the Tribunal was in essence advancing that it was not bound by policy and the applicant rhetorically asked, “What policy is the Tribunal bound by?”  The applicant said his position was not a made-up position and that it was a genuine position at which he had been working for six years with the company.  The applicant maintained that there were a number of Australian citizens that he had trained and maintained that the Tribunal had erred in its decision.

First Respondent’s Submissions

1. The first respondent submitted that there was no jurisdictional error.  The first respondent submitted that the Tribunal had correctly identified the relevant question.  The first respondent noted that the requirements of cl.457.223(4)(d) were set out at Court book 38 as follows:

   Assessment of Paragraph 457.223(4)(d)

   Paragraph 457.223(4)(d) in full:

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

   (d) the Minister is satisfied that:

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

   (ii) the position associated with the nominated occupation is genuine.

2. The first respondent submitted that the Tribunal performed the task it was required to undertake in respect of the review and the dispositive issue identified by the Tribunal.  The first respondent submitted that the Tribunal had regard to the extensive documentary evidence provided in support of the application as well as having regard to the oral evidence and that this was apparent from the reasons of the Tribunal. 

3. The first respondent also noted that the Tribunal put its concerns to the applicant at paras.18-21 of the decision of the Tribunal.  The first respondent submitted that the Tribunal made findings of fact that the Tribunal was not satisfied as to the scale and activities supporting the customer service manager position being genuine and that this was a finding open to the Tribunal to make.  The first respondent submitted that the ground identified in para.1 was, in substance, an assertion that the Tribunal had not addressed the correct question.  The first respondent submitted that it was clear from para.8 of the Tribunal’s reasons that it had correctly identified the relevant question as follows:

   8. The issue in the present case is whether the applicant meets the requirements of cl.457.223(4)(d)(ii) which requires that the position associated with the nominated occupation is genuine

4. The first respondent submitted that there was no error of a kind asserted in ground 1.  In relation to ground 2 the first respondent noted that it advanced an allegation of procedural mistake and error in rejecting the applicant’s submissions.  The first respondent submitted that it was a matter for the Tribunal to make findings and to determine what evidence the Tribunal accepted.  To the extent that ground 2 identified the procedural obligation arising under Division 5 of Part 5, the first respondent submitted that there was no identification of any particular provision that was not complied with and that there is no substance in relation to ground 2. 

5. In relation to ground 3, it was alleged that the Tribunal did not understand the requirements of the three convenience stores. The first respondent pointed out, it was apparent that the Tribunal had regard to the oral and documentary material, and that this was apparent from in particular, paras.5, 8, 9, 10, 12 and 18-21 of the Tribunal’s reasons. It was further submitted that it was a matter for the Tribunal to make the findings of fact on the dispositive issues, that the findings were open on the material before the Tribunal, and that it was clear that the three convenience stores were taken into account, as also identified in para.27 of the Tribunal reasons, and that the applicant’s challenge was, in substance, an impermissible challenge to the adverse findings of fact made by the Tribunal.

6. In relation to ground 4, the first respondent noted that it appeared to be an allegation that there had been a procedural mistake by the Tribunal in not properly conducting a review.  The first respondent submitted that there was, again, no particularisation of any failure by the Tribunal to comply with Division 5, Part 5 and that, in substance, the issues raised by ground 4 were a complaint in relation to the adverse findings made by the Tribunal that were open on the material before the Tribunal.

7. To the extent that the matters raised in ground 4 suggested the Tribunal had used its own view, that appeared to be a complaint in respect of the adverse finding by the Tribunal and that the application failed to identify any jurisdictional error.  To the extent that it was alleged the Tribunal had used its excessive power and knowledge, it was again submitted that this was a challenge to the adverse findings of fact and failed to identify any jurisdictional error.  In relation to the proposition in ground 4 that there was a denial of procedural fairness, the first respondent submitted that there was no identification of any specific failure to support an assertion of noncompliance with the requirement of procedural fairness, nor as earlier put any identification of a failure to comply with Division 5 of Part 5.

8. The first respondent maintained that the Tribunal had provided the applicant with a genuine hearing and had complied with the obligations of procedural fairness.  To the extent that it was advanced that the Tribunal had failed to take into account relevant considerations, being the applicant’s knowledge and experience, the first respondent submitted that was without substance and that it was clear from paras.14, 29-30, and 32, that the knowledge and experience of the applicant had been taken into account by the Tribunal.

9. The first respondent also noted that, to the extent that it might otherwise have been suggested that the Tribunal lacked jurisdiction, this was a case in which the first respondent submitted there was appropriate jurisdiction under s.338(d)(i). The first respondents also submitted that the substance of the applicant’s submission appeared to be that he disagreed with the decision and that this did not identify any jurisdictional error.

10. The Court raised with the first respondent the policy referred to by the applicant, and the first respondent pointed out that this was clearly a reference to the provisions of PAM3 concerning subcl.457.223(4)(d) as set out on pages 132-133 of the Court book. The first respondent submitted that, having regard to the headings, relevantly including Positions Not Consistent with the Nature of the Business, it was apparent that the Tribunal had had regard to that policy in coming to the findings of fact, specifically as identified in paragraph 26, where the Tribunal said:

    26. The Tribunal does not accept that the position is consistent with the scale and activities of the business or necessary to the operations of the business. …

Applicant in Reply

1. In reply, the applicant identified that the nomination for this occupation was approved, which is a matter that was clearly taken into account by the Tribunal as identified in para.11.  The applicant maintained that he had been performing the role for the last five years that fell within the nominated decision and that this was a customer service manager within the ANZSCO 149212.

Tribunal’s Reasons

1. The Tribunal identified in its reasons the nature of the visa application applied for by the applicant on 30 April 2013 and the criteria that was to be applied.

2. The Tribunal identified that on 19 November 2013, the delegate refused the application because the delegate was not satisfied the position associated with the nominated occupation was genuine.  The Tribunal carefully set out the claims and evidence of the applicant and identified the applicant’s attendance at the hearing on 18 November 2014 and the giving of oral evidence by the applicant and others as well as identifying submissions received by Tribunal.  Materially, the Tribunal put concerns it had to the applicant in paragraphs 18-21 as follows:

   18. The Tribunal put to the applicant that one of the key tasks of a CSM, as set in ANZSCO, was to develop and review policies, programs and procedures concerning customer relations and goods and services provided. The Tribunal asked the applicant if he had done anything in this regard. The applicant stated that he has a policy that every customer who comes to the store must come with a smiling face and leave happy. The applicant described how he personally behaved towards customers who came to the store. He had not actually prepared any written policies or procedures for dealing with customer complaints or relations.

   19. The Tribunal put to the applicant that the position of CSM may be aimed at larger businesses, where a person can solely work on customer relations. Given that this business comprised three small convenience stores, a business of this size and type may not need a CSM, and the position associated with the occupation may not be genuine. The Tribunal explained that where a person is serving customers in the ordinary course of their work, they may not be classified as a CSM. The Tribunal put to the applicant that his duties appeared to fall within the role of a Retail Supervisor (ANZSCO 621511) rather than a CSM.

   20. The applicant disputed this and said that a CSM was essential for the business. They are in direct competition with Coles and Woolworths. If he was not working in the role the owner would not have been able to open up the other two stores. His job was not that of a Retail Supervisor as he was directly involved with the customers. He knows many of them personally and knows their stories.

   21. The applicant’s employer, Mr Wassim Doureihi, told the Tribunal that the business has now expanded and he has 3 stores, he needs someone dedicated to the role of CSM. The main part of the role is to respond to particular customer needs in each store. The product requirements in each store are quite different. He needs someone who can select appropriate products for each store and deal with staff and customers directly on the ground. The applicant is the ‘go to point’ for staff if any problems arise. At the current time, the job may involve elements of a retail supervisor but if the position were approved it would be a dedicated CSM role, given the expansion in the business.

3. It was in those circumstances that the Tribunal made the following findings:

   26. The Tribunal does not accept that the position is consistent with the scale and activities of the business or necessary to the operations of the business. The business consists of 3 convenience stores, with a possible fourth store to be acquired at some point it the future. Each store is managed by its own Retail Manager. In addition, there are 3 full time Store Supervisors and some casual check out operators. The products sold are limited to basic food and grocery items and other items such as telephone cards and Opal Card top ups. The dealings with customers are at a basic level. There is a limited requirement for after sales service.

   27. The Tribunal does not accept that a business that operates 3 convenience stores requires a full time CSM, even if it is considering expanding to a fourth store. In this case, each store is already managed by a full time Retail Manager who will already be dealing with customer complaints and issues relating to customer service. The business has 3 other full time staff members and some casual staff members. The Tribunal does not accept that a position which involves training and supervising front-line service staff to ensure they provide good customer service and which involves responding to customer complaints can be properly described as a CSM. The Tribunal has had regard to the ‘industry’ evidence referred to by the representative, but the Tribunal considers that CSMs typically work in larger businesses where they can solely work on customer relations and standard of service issues either in one business, retail or wholesale, or across many, depending on the business size.

   28. The Tribunal has had regard to the position description provided by Mr Doureihi. The Tribunal accepts that the position description includes some of the tasks of a CSM described in ANZSCO 149212. However, based on the applicant’s evidence at the hearing and the evidence before it, the Tribunal does not accept the written position description accurately describes the actual duties of the position. The Tribunal finds that the description of the duties have been exaggerated to meet the description in ANZSCO.

   …

   31. At the hearing, the applicant told the Tribunal that he personally deals with customer complaints and follows up with suppliers if there are faulty products or services. He authorises credit refunds. He also serves customers; plans and prepares staff work schedules; recruits and trains new staff when required; orders stock and checks inventory levels; advises staff on dealing with difficult customers or situations; and ensures that goods and services are correctly priced and displayed. Having regard to the nature and size of the business and the actual duties and responsibilities of the position as described by the applicant at the hearing, the Tribunal considers the position to be more closely aligned with that of a Retail Supervisor (ANZSCO 621511) than a CSM.

   32. The Tribunal has considered the claim from the applicant and his employer that while the applicant’s duties may currently encompass some aspects of the role of a Retail Supervisor, the position would encompass all the duties of a CSM if it were approved. The Tribunal does not accept this claim. The applicant told the Tribunal at the hearing that he had been working as CSM since 2009 and had been performing all the duties of that position since that date. The Tribunal gives more weight to the applicant's oral evidence, which it considers gives a more accurate description of the tasks of the position, rather than the submission which was provided only after the Tribunal raised concerns that the duties may not be at the level of a CSM.

   …

   34. For the reasons set out in paragraphs 25 to 33, the Tribunal does not accept that the position associated with the nominated occupation is genuine. Therefore, the Tribunal finds the applicant does not meet cl.457.223(4)(d)(ii). For these reasons the requirements of cl.457.223(4)(d) are not met.

   35. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

Consideration and Findings

1. I accept the submissions of the first respondent in relation to ground 1.  I find the Tribunal did not apply the wrong question, and that the Tribunal was correct in its identification of the dispositive issue as referred to in para.8 of the Tribunal’s reasons referred to above.  I find there is no substance in relation to ground 1, and it fails to identify any jurisdictional error.  In relation to ground 2, I accept the first respondent’s submissions.  It was a matter for the Tribunal to determine what submissions it accepted and what submissions it rejected.

2. The generalised assertion of a failure to comply with the procedural obligations did not specify any noncompliance with a particular provision of Division 5 of Part 5, and it is apparent from the Tribunal’s reasons that it properly addressed the applicant’s claims and evidence, that the applicant had a genuine hearing, and that the Tribunal properly conducted its review.  There is no substance in relation to ground 2.

3. In relation to ground 3, it is clear that the Tribunal took into account the applicant’s evidence and understood that it involved a provision of services to three convenience stores and that in substance the alleged mistake contended by the applicant in relation to para.27 is a dispute by the applicant as to the adverse findings of fact made by the Tribunal.

4. Relevantly, the Tribunal found in para.27:

   27. The Tribunal does not accept that a business that operates 3 convenience stores requires a full time CSM, even if it is considering expanding to a fourth store. In this case, each store is already managed by a full time Retail Manager who will already be dealing with customer complaints and issues relating to customer service. The business has 3 other full time staff members and some casual staff members. The Tribunal does not accept that a position which involves training and supervising front-line service staff to ensure they provide good customer service and which involves responding to customer complaints can be properly described as a CSM. The Tribunal has had regard to the ‘industry’ evidence referred to by the representative, but the Tribunal considers that CSMs typically work in larger businesses where they can solely work on customer relations and standard of service issues either in one business, retail or wholesale, or across many, depending on the business size.

5. The adverse finding does not identify any jurisdictional error and it is clear that the Tribunal took into account the matters raised by the applicant, both orally and in the as to the nature of the business and the role of duties undertaken by the applicant.  Accordingly, there is no jurisdictional error of the kind identified in ground 3.

6. In relation to ground 4, I accept the first respondent’s submissions that there is no substance in the contention that the Tribunal did not properly conduct its review.  I accept the first respondent’s submissions that in substance the applicant’s complaint is that the Tribunal made adverse findings.  I accept the first respondent’s submission that it was open to the Tribunal to make those adverse findings.

7. To the extent that it was suggested that the Tribunal used its own view, the making of adverse findings is not a basis upon which a fair-minded person might believe that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.  There is no substance in the criticism of the Tribunal as identified in ground 4. To the extent that there is an assertion of a denial of procedural fairness, I accept the first respondent’s submissions that the Tribunal properly conducted its review and afforded the applicant procedural fairness consistent with the statutory regime.

8. I also accept the first respondent’s submission that the Tribunal did take into account the applicant’s evidence including as to his experience, education, ability and assessment capability and that there was no failure to take into account a relevant consideration.  For these reasons there is no substance in relation to ground 4.

Conclusions 

1. I am satisfied that there is no jurisdictional error as alleged in the amended application or in the conduct of the review by the Tribunal.  The amended application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 9 July 2015