WONG LEE PTY LTD (Migration)
[2021] AATA 297
•4 January 2021
WONG LEE PTY LTD (Migration) [2021] AATA 297 (4 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: WONG LEE PTY LTD
CASE NUMBER: 1809845
HOME AFFAIRS REFERENCE(S): BCC2017/1147170
MEMBER:De-Anne Kelly
DATE:4 January 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 04 January 2021 at 4:17pm
CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition – tasks to be performed do not meet requirements – ANZSCO 149212 Customer Service Manager – only 53% of tasks correspond with requirements – issue of financial viability – underpayment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, Schedule 2, rr 2.72, 5.19STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 March 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 24 March 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations, which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f)(i) and (ii) of the Regulations because the applicant had not demonstrated meeting their training obligations for the first and last of their sponsorship periods and it was not reasonable to disregard the failure to meet r.5.19(3)(f)(i) and find that it met r.5.19(3)(f)(ii).
The applicant appeared before the Tribunal on 25 November 2020 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.
The applicant was represented in relation to the review by its registered migration agent, Mr Yuri Anthony Marshall, MARN: 0320165 of Brisbane Qld 4000.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
On 24 March 2917 the applicant, Wong Lee Pty Ltd ABN: 64010185770, which operates from Acacia Ridge Qld 4110, lodged an Employer nomination scheme – visa Subclass 186 application in the Temporary Residence Transition stream for the position of Customer Service Manager on $54,996 per annum in favour of Mr Ashneel Kant Singh.
Mrs Agnes Chaw, a director, represented the company. She stated that the company wholesales packaging materials; it started in 1988 and has been in business for more than 30 years. They sell to Darwin, the Northern Rivers, Sydney, Melbourne, northern Queensland, and the Gold and Sunshine Coasts. They have lots of customers. There are 15 staff. They went through COVID-19 and it was fine, and they did not need Job Keeper.
Mrs Chaw advised that the business had been sold in August 2019 and her son now runs the business for the new owners. The business is growing all the time. The new owners, Bonson Savpac Pty Ltd, are previous suppliers of theirs from NZ. Bonson Savpac Pty Ltd wanted to expand into Australia and the directors did not want them as competitors so it suited well to sell them the business. Bonson Savpac Pty Ltd are renting their warehouse and Mrs Chaw and her husband have retired. Her son has been made the General Manager.
The Tribunal noted the following financial figures for the business up to FY 2019:
Financial Statement
2019
2018
2017
Income 6,479,153 6,981,762 1,546,473 Wages 678,732 645,107 606,799 Total Expenses 1,305,895 1,314,994 1,523,458 Profit 226,068 244,250 23,015
Section 359AA of the Act
At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from their registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.
Section 359AA provides as follows:
(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Previous employment of the nominee: r.5.19(3)(c)
Broadly speaking, to meet the requirement in r.5.19(3)(c), either:
·the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least two of the three years preceding the nomination application; or
·the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least two years in the three years immediately before the application.
Regulation 5.19(3)(c) has two streams the applicant can meet, namely (i) or (ii) as shown below:
(c) either:
(i) both of the following apply:
(A) in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 (Temporary Work (Skilled)) visa identified in subparagraph (a)(ii) has:
(I) held one or more Subclass 457 visas for a total period of at least 2 years; and
(II) been employed in the position in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa for a total period of at least 2 years (not including any period of unpaid leave);
(B) the employment in the position has been full-time, and undertaken in Australia; or
(ii) all of the following apply:
(A) the person holds the Subclass 457 (Temporary Work (Skilled)) visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);
(B) the nominator nominated the occupation;
(C) the person has been employed, in the occupation in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application … (Emphasis added.)
For an applicant to meet r.5.19(3)(c)(ii), they must have a nomination that was mentioned in either r.2.72(10)(d)(iii)(B) or r.2.72(10)(e)(iii)(B). The former regulation refers to a nomination made before 1 July 2010 and does not apply to the present nomination, which was made in 2017. Regulation 2.72(10)(e)(iii)(B) applies to nominations made after 1 July 2010 and is applicable to the time frame in which this nomination was made. It is this regulation that the Tribunal must consider.
Regulation 2.72(10)(e)(iii)(B) provides as follows:
(B) the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph.
The instrument in writing at that time was Migration Regulations 1994 – Specification of Occupations for Nominations in Relation to Subclass 457 (Temporary Work (Skilled)) for Positions other than in the Business of the Nominator – IMMI 13/067. The instrument lists the position of General Manager and the balance are medical occupations, including a list of specialist medical occupations. Customer Service Manager, which is the nominated occupation for this case, is not on this list. The Tribunal finds the applicant cannot meet r.2.72(10)(d)(iii)(B) or r.2.72(10)(e)(iii)(B) since their nominated occupation is either not in the required time frame or not in the instrument in writing for this regulation and therefore cannot meet r.5.19(3)(c)(ii).
The applicant must therefore seek to meet r.5.19(3)(c)(i). The first requirement to meet is as follows:
(i) both of the following apply:
(A) in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 (Temporary Work (Skilled)) visa identified in subparagraph (a)(ii) has:
(I) held one or more Subclass 457 visas for a total period of at least 2 years; and
(II) been employed in the position in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa for a total period of at least 2 years (not including any period of unpaid leave);
(B) the employment in the position has been full-time, and undertaken in Australia
The employer nomination was lodged on 24 March 2017 and therefore the nominee must have worked full time as a Customer Service Manager for two of the three years immediately prior to 24 March 2017 or during the period from 22 March 2014 to 23 March 2017.
The nominated position is the one referred to in r.5.19(3)(a)(iii)(A) and (B) and is ANZSCO 149212 Customer Service Manager.
The Tribunal noted the organisation chart submitted with the employer nomination application on 24 March 2017 appears to show that the nominee was employed as a Sales Assistant 621111, because no one reports to the nominee and there are no other sales staff. It appears that from 2014, when the nominee was employed by the applicant, and certainly from 22 March 2014 to 23 March 2017, the nominee was working as a Sales Assistant rather than a Customer Service Manager.
In the hearing the Tribunal put to Mrs Chaw, under s.359AA of the Act, the fact that the organisation chart submitted at the time of the application and the subsequent job description show that the higher level tasks related to managing staff appear not to have been undertaken because there were no staff reporting to the nominee and there were no other sales staff. If the Tribunal gave consideration to that information, it may find that the nominee was not working as a Customer Service Manager but rather as a Sales Assistant in the three years prior to the employer nomination being lodged, and that the application does not satisfy r.5.19(3)(c).
Mrs Chaw chose to respond in the hearing and said she had cancer around 2012, was taking a lot of medication and had to step back from the business. The answer was to get someone to do what she was doing. The nominee stepped in and could liaise with everyone and make sure that things were running properly and go and see the customers and show them the products. If the delivery was wrong, he could liaise with the transport and he could find the mistakes and try to rectify them. It was all those little things. With big organisations it is different, but in a small business, they have to do everything.
The nominee asked to provide evidence and said there was an error in the management chart because he does engage with the staff and provide an adequate level of customer service. The chart does not reflect what he actually does. The staff respond to the managers and the managers respond to him. He develops the policies and they are handed down to the staff and then he monitors them. If there are new staff being hired or recruited, he is on the panel with Mrs Chaw and the directors to select the staff. The nominee said they were not so good at writing the job description.
The Tribunal said if he did all those things, they were not in the job description, which was signed by Mrs Chaw and signed by the nominee. The Tribunal asked why the information submitted in support of the application would be incorrect. He maintained that the business functions as a small family and they function in a group and he liaises with the warehouse staff; the directors and other managers. The nominee said he would prepare an updated organisation chart and send that to the Tribunal. The Tribunal advised Mr Singh that it had a concern about credibility and his claims that the organisation chart and job description were incorrect because the organisation chart was submitted with the original application in 2017 and there was ample opportunity in the intervening three and a half years to amend the organisation chart if it was incorrect and submit it again but this was not done.
On 18 August 2020 the Tribunal wrote to Mrs Chaw asking for more information. The request asked for an organisation chart which showed all of the applicant’s current and proposed employees, their position, position titles, duties and their immigration status. It asked for information about the roles and duties of the nominated position and how they correspond to the nominated positions description in ANZSCO. It asked for job descriptions, and the job description referred to above was submitted at that time. In the hearing, the Tribunal said this request for information was made only some three months ago, and if the job description was inaccurate that was the time to amend it and prove an accurate job description.
The nominee said it was not an error and he wanted to retract that assertion. When they wrote the job description, they only wrote in layman’s terms and were under the impression that training was the only problem with the employer nomination.
The Tribunal gave Mrs Chaw 14 days to make further submissions.
After the hearing Mrs Chaw submitted a letter dated 7 December 2020 in which she recounted her long and difficult cancer treatment and subsequent ill health. She explained that the nominee was engaged as a Customer Service Manager and has successfully retained the profitability of the business. He was able to liaise with all the staff in the company, communicating with the warehouse and office employees to endeavour to keep the high standards of customer care with all customers. It was important to retain professional relationships and goodwill with the customers in order to grow the business in a very competitive market. The products had to change to meet customer requirements, so the nominee would look out for new products and opportunities to expand the product range and market share. He would update the staff such that they were familiar with the new inventory. He also sourced new and existing inventory products from reliable manufacturers and suppliers so that the company could stay competitive.
Their customers and staff speak highly of his commitment, and his friendliness and happy attitude towards them. Mrs Chaw has been very happy with his service and commitment to the company. He has been diligent, creative, and professional when administering his duties. Mrs Chaw sees her employees as part of a family where everyone does everything and helps everyone. They frequently communicate verbally rather than in written form due to the busy schedules and workload. The nominee has always happily carried out any tasks that were necessary and has worked beyond his duties to execute the tasks at hand. His willingness to attack any tasks no matter how difficult was a bonus to the business and would be a bonus to any company he may work for in the future.
Mrs Chaw explained the circumstances of the sale of the business in August 2019. They transferred all their staff to the new owners with the exception of the nominee. Under advice from their migration agents, they had to retain the nominee in their employment so as not to invalidate his 457-visa grant. Since the visa was from 2014, Mrs Chaw felt obligated to continue the commitment to the nominee. As soon as his visa status is confirmed, the nominee would then move over to Bonson-Savpac Pty Ltd on a permanent employment contract.
The Tribunal has carefully considered this letter and the submissions made by Mrs Chaw and the nominee in the hearing.
ANZSCO tasks of the Customer Service Manager
It is relevant to consider the ANZSCO 149212 tasks of a Customer Service Manager from the Australian Bureau of Statistics website, which are as follows:
1)developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided
2)ensuring operational efficiency within a call centre3)providing direction and feedback to team members and assisting with recruitment
4)managing, motivating and developing staff providing customer services
5)planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided
6)liaising with other organisational units, service agents and customers to identify and respond to customer expectations
7)may work in a call centre.The Tribunal has removed tasks (2) and (7) as they are not germane to the role under consideration. It is noted that two of the high-level tasks, (3) and (4), involve managing other staff in the retail organisation.
The organisation chart submitted with the original application shows: two directors; a warehouse manager with delivery drivers and store persons under this position; an office manager with office staff and accounts staff under this position and the position of customer service manager. It is clear there are no sales staff reporting to or under the position of customer service manager and this is the only position related to customer service in the organisation. The Tribunal does not accept the nominee’s assertion that this organisation chart is inaccurate because no other organisation chart has been submitted in the intervening years from March 2017 onwards and neither Mrs Chaw nor the nominee mentioned any other customer service or sales staff ever having been employed by the company. The Tribunal finds the organisation chart is an accurate representation of the roles of staff in the company.
The Tribunal will now compare this chart with the job description provided in September 2020, since this appears to be the only description provided. It is not unreasonable to consider that this job description applied back in 2014 when the nominee was first employed since neither Mrs Chaw nor the nominee have stated that the position’s responsibilities or tasks have changed since he was first employed:
a) Develop and Review Policies (20%)
b) Create and amend policies for continuous improvement
c) Review policies and implement procedures concerning customer relations when goods and service are being provided.
d) Feedback and Recruitment (20%)
e) Collect feedback from customers and analyse
f) Follow up customer satisfaction when products and services have been provided.
g) Provide assistance in the recruitment of new staff.
h) Organising and Monitoring (20%)
i) Monitoring calls from customers to and from WL Synergy Pty Ltd
j) Monitoring staff when communication with customers
k) Research any new products in demand or requested by customers.
l) Handling Complaints (20%)
m) Handle problems in accordance with company guidelines and polices
n) Ensure customers are satisfied when issues arise and resolve them effectively.
o) Record customer complaints and review them with staff and other parties involved.
p) Assist in Sales and Training (20%)
q) Liaise with staff about new and existing products
r) Generating sustainable relationships with manufacturers and suppliers
s) Provide assistance when current and new staff are being trained.
The next question the Tribunal must consider is whether this job description and its tasks correspond to the tasks of the ANZSCO 149212 position of Customer Service Manager.
The Tribunal will approach the question of whether the person (the nominee) was employed on a full-time basis in the position of Customer Service Manager for at least two years in the three years immediately preceding the lodgement of the employer nomination, in the following manner. Firstly, the Tribunal will determine whether all the tasks in the Job Description are actually undertaken by the nominated position, and of those tasks that are found to be undertaken by the nominated position it will undertake a qualitative analysis of whether those tasks correspond to the tasks of the 149212 position of Customer Service Manager.
The Tribunal is mindful that ANZSCO is not prescriptive, however, the Tribunal is also aware of the need for qualitative analysis as stated by Judge Smith in Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091 at [30]. His Honour was referring to r.2.72(10)(f) of the Regulations; nonetheless the statement is applicable to the Tribunal’s decision-making regarding r.5.19(3)(d):
what is required … 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…
The spreadsheet below compares the actual tasks of the nominated position that align with the ANZSCO 149212 tasks of the position of Customer Service Manager. The Tribunal has given a weighting of 1.00 to 0.00 or part thereof where the nominated positions tasks respectively align, do not align or partially align with those of the ANZSCO 149212 position of Customer Service Manager:
Task
ANZSCO 149212 Customer Service Mgr.
Tasks of nominated position
Weight
1 developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided a) Develop and Review Policies (20%).
b) Create and amend policies for continuous improvement.
c) Review policies and implement procedures concerning customer relations when goods and service are being provided.0.00 2 ensuring operational efficiency within a call centre3 providing direction and feedback to team members and assisting with recruitment d) Feedback and Recruitment (20%).
g) Provide assistance in the recruitment of new staff.0.66 4 managing, motivating and developing staff providing customer services a) Organising and Monitoring (20%).
j) Monitoring staff when communication with customers.
p) Assist in Sales and Training (20%).
s) Provide assistance when current and new staff are being trained.0.00 5 planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided e) Collect feedback from customers and analyse.
f) Follow up customer satisfaction when products and services have been provided.
i) Monitoring calls from customers to and from WL Synergy Pty Ltd.
k) Research any new products in demand or requested by customers.
p) Assist in Sales and Training (20%)1.00 6 liaising with other organisational units, service agents and customers to identify and respond to customer expectations l) Handling Complaints (20%).
m) Handle problems in accordance with company guidelines and polices.
n) Ensure customers are satisfied when issues arise and resolve them effectively.
o) Record customer complaints and review them with staff and other parties involved.
q) Liaise with staff about new and existing products.
r) Generating sustainable relationships with manufacturers and suppliers1.00 7 may work in a call centre.5 Tasks in total Total weighting 2.66 % of nominated tasks corresponding to ANZSCO 53% Task 1 of the ANZSCO
Task 1 of the ANZSCO is ‘developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided’ and is three sub-tasks, namely: ‘developing and reviewing policies concerning customer relations and goods and services provided’; ‘developing and reviewing programs concerning customer relations and goods and services provided’; and ‘developing and reviewing procedures concerning customer relations and goods and services provided’.
The tasks of the nominated position that appear to align with Task 1 are: ‘a) Develop and Review Policies (20%)’; ‘b) create and amend policies for continuous improvement’; and c) ‘Review policies and implement procedures concerning customer relations when goods and service are being provided’.
The Oxford Online Dictionary has the following definitions:
Policies - A course or principle of action adopted or proposed by an organization or individual.
Programs - A set of related measures or activities with a particular long-term aim.
Procedures - An established or official way of doing something.
It is evident that the nominated position must have: developed a ‘course or principle of action’ to be adopted by the company; developed a set of related measures with a long-term aim; and developed an official way of doing something. These measures would be recorded in some manner such as a Policy Manual that would be available to the company personnel.
It is noted that in the hearing the nominee stated that he develops the policies and they are handed down to the staff and then he monitors them.
The Tribunal has carefully examined the documents and cannot find evidence of a Policy Manual or similar document in paper or digital form developed or reviewed by the nominated position. Mrs Chaw and the nominee have not referred in the hearing or in evidence submitted to such a document being developed or reviewed by the nominee. There is scant evidence of any Policy Manual or anything similar developed or reviewed by the nominated position other than the reference to policies in the job description. It is also implausible that the nominated position would develop a Policy Manual or similar document relating to customer relations when goods and services are provided if he is the only employee attending to customer service or sales since he would be preparing a manual for himself.
For these reasons, the Tribunal considers that the nominated position does not undertake the three sub-tasks that correspond to Task 1 of the ANZSCO and gives a weighting of 0.00.
Task 2 of the ANZSCO
Task 2 of the ANZSCO is not germane to this nominated position as it is not in a call centre.
Task 3 of the ANZSCO
Task 3 of the ANZSCO is three sub-tasks, namely: ‘providing direction to team members’; ‘providing feedback to team members’; and ‘assisting with recruitment’.
The only team members would potentially be the two directors; the warehouse manager with delivery drivers and store persons; the office manager with office staff and the accounts staff. It is implausible that the nominated position would be providing direction or feedback to these positions since the directors are senior in the organisation chart to the nominated position; the warehouse manager and office manager are peers having the same seniority and the other staff report to either the warehouse manager or the office manager not to the nominated position. It is noted that there are no other sales staff employed who could be provided direction or feedback by the nominated position.
It is noted that the job description does not refer to ‘providing direction’ to team members so this sub-task of the ANZSCO is not undertaken by the nominated position. It is noted that the job description refers to providing feedback and assisting with recruitment which has been spoken about by the applicants in the hearing.
The Tribunal finds that two of the three sub-tasks of Task 3 of the ANZSCO are undertaken by the nominated position and gives a weighting of 0.66.
Task 4 of the ANZSCO
Task 4 of the ANZSCO is ‘managing, motivating and developing staff providing customer services.’ (Emphasis added.)
The likely tasks of the nominated position that may align with the ANZSCO task are: ‘a) Organising and Monitoring (20%)’; ‘j) Monitoring staff when communication with customers’; ‘p) Assist in Sales and Training (20%)’; and ‘s) Provide assistance when current and new staff are being trained’.
It is noted that there are no staff providing customer service other than the nominee and it is implausible that he would be managing, motivating and developing himself. The Tribunal has considered the evidence given at hearing by the nominee that he does engage with the other staff and the staff respond to the managers and the managers respond to him. The Tribunal finds it implausible that the Warehouse Manager and Office Manager, which are managerial level positions in their own right, would be managed, motivated and developed by the nominated position. The organisation chart does not show the nominee has these other managers reporting to him, and it is not in the job description which was attached to an employment contract dated 25 March 2019 and signed by both Mrs Chaw and the nominee.
It is further noted that Mrs Chaw and the nominee refer to the staff being more like a family or a group and that the nominated position liaises with the warehouse staff, the directors and other managers. It is noted that the Oxford Dictionary Online defines ‘liaise’ as ‘Cooperate on a matter of mutual concern’ and does not define it as ‘manage, motivate and develop other staff’. It may be that the staff are like a family or a group but this does not change the fact that the organisation chart does not show any staff reporting to the nominated position and there has been scant evidence at hearing or in the documents provided that there are other customer service staff or sales staff.
For these reasons the Tribunal finds that none of Task 4 of the ANZSCO are undertaken by the nominated position and gives a weighting of 0.00.
Task 5 of the ANZSCO
Task 5 of the ANZSCO is ‘planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided.’
The likely tasks of the nominated position that may align with the ANZSCO task are: ‘e) Collect feedback from customers and analyse’; ‘f) Follow up customer satisfaction when products and services have been provided’; ‘i) Monitoring calls from customers to and from WL Synergy Pty Ltd.’; ‘k) Research any new products in demand or requested by customers’; and p) ‘Assist in Sales and Training (20%)’.
The Tribunal finds that the tasks of the nominated position align with Task 5 of the ANZSCO and gives a weighting of 1.00.
Task 6 of the ANZSCO
Task 6 of the ANZSCO is ‘liaising with other organisational units, service agents and customers to identify and respond to customer expectations.’
The likely tasks of the nominated position that may align with the ANZSCO task are: ‘l) Handling Complaints (20%)’; ‘m) Handle problems in accordance with company guidelines and polices’; ‘n) Ensure customers are satisfied when issues arise and resolve them effectively’; ‘o) Record customer complaints and review them with staff and other parties involved’; ‘q) Liaise with staff about new and existing products’; and ‘r) Generating sustainable relationships with manufacturers and suppliers’.
The Tribunal finds that the tasks of the nominated position align with Task 6 of the ANZSCO and gives a weighting of 1.00.
Task 7 of the ANZSCO
Task 7 of the ANZSCO is not germane to this nominated position as it refers to a call centre.
Overarching responsibility
The remaining task to consider is the overarching responsibility of the ANZSCO 149212 Customer Service Manager, namely ‘Plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.’
The Tribunal accepts this is the overall responsibility of the ANZSCO position but believes because it is listed in the ANZSCO it must be considered. Implicit in this overarching responsibility is that the position’s tasks correspond to the tasks listed in the ANZSCO. It would be unreasonable to find that a significant proportion of the nominated position’s tasks, particularly the higher level tasks, do not correspond to the ANZSCO but that the position fulfils the overarching responsibility of a Customer Service Manager who ‘Plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.’
The Tribunal found that the higher level tasks which carry more responsibility and would be associated with managerial responsibility, namely: ‘developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided’ and ‘managing, motivating and developing staff providing customer services’ are not aligned with the nominated position.
The Tribunal therefore finds that the nominated position does not have overarching responsibility for ‘Plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.’.’ It is noted that the nominated position’s tasks correspond to 53% of the ANZSCO tasks. As such, the Tribunal gives this overall responsibility a weighting of 0.53.
The Tribunal will now return to the tasks of the position that correspond to the tasks of an ANZSCO 149212 Customer Service Manager. The table below shows the weighting given to each task and the overarching responsibility by the Tribunal:
Tasks of Customer Service Mgr. Weighting Overarching responsibility 0.53 Task 1 0.00 Task 2 Task 3 0.66 Task 4 0.00 Task 5 1.00 Task 6 1.00 Task 7 6 Tasks in total 3.19 % of tasks that correspond to 6 ANZSCO tasks 53%
The Tribunal finds that of the six tasks to be performed in the nominated position, only 3.19 or 53% of the tasks align with the six tasks including the overarching responsbility of the ANZSCO 149212 Customer Service Manager.
The Oxford Dictionary online provides the following definition of ‘correspond’: ‘Have a close similarity; match or agree almost exactly’. A 53% alignment would not reasonably be said to be a ‘close similarity’ or to ‘match or agree almost exactly’.
Therefore, the tasks to be performed in the nominated position do not correspond to the tasks of the occupation ANZSCO 149212 Customer Service Manager, specified by the Minister in writing.
The relevant period from 22 March 2014 to 23 March 2017
The relevant period is from 22 March 2014 to 23 March 2017, since this is the three years immediately prior to the lodging of the employer nomination. The nominee commenced employment in 2014 and the Tribunal has found, based on the reasoning above, that he has not worked as a Customer Service Manager during his employment with the applicant.
The holder of the Subclass 457 visa was the nominee and he has not been employed in the position of Customer Service Manager in respect of which he holds the Subclass 457 visa for a total period of at least two years in the period of three years immediately before the nominator made the application, or 22 March 2014 to 23 March 2017. Therefore r.5.19(3)(c)(i)(A)(II) is not met.
Given the above findings, the requirement in r.5.19(3)(c) is not met.
Future employment of the visa holder: r.5.19(3)(d)
Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full-time basis for at least two years on terms that do not expressly preclude the possibility of an extension.
Mrs Chaw explained that she had contracted cancer and the nominee was employed to help her with all the Customer Service Management work, and then last year the business was sold. The new owners Bonson Savpac wanted all the staff transferred over to them, but Mrs Chaw was aware that they could not change ABN numbers or that would affect the nominee’s application. They could not transfer him over and he remains employed by Wong Lee Pty Ltd, which is still active and lawfully operating. It was difficult and it was complicated, and she did not know what to do and was very unwell. Bonson Savpac wanted everything, and they wanted it to be smooth and they wanted to build on what Mrs Chaw and her husband had established.
She advised that Wong Lee Pty Ltd contracts the nominee to Bonson Savpac, who pay an amount equal to his salary. They are satisfied that the arrangement will continue when they know what the nominee’s visa status will be. They cannot show a profit and cannot do anything else. The nominee has been a good employee and Mrs Chaw just wants to retire in peace and wants to see him get his visa; it would be sad if it does not work out for him.
The Tribunal noted the following figures submitted as business activity statements (BAS) from 2017 to the present.
It was noted that there was only $23,088 shown as the total wages bill for FY 2020 and the Tribunal, while acknowledging that only the nominee’s wages would have been paid for the majority of the FY 2020, asked Mrs Chaw why the amount shown as wages was considerably less than the nominee’s wages, which were $54,996. Mrs Chaw responded that she did not know, and it would have been prepared by the accountant.
BAS
Sales
Wages
Q3 2017 1,891,608 69,883 Q4 2017 1,966,531 47,757 Q1 2018 1,366,114 78,139 Q2 2018 1,610,342 47,151 FY 2018 6,834,595 242,930 Q3 2018 1,884,174 46,628 Q4 2018 1,808,930 51,013 Q1 2019 1,391,077 50,400 Q2 2019 1,451,059 53,385 FY 2019 6,535,240 201,426 Jul - Dec 2019 537,031 5,015 Oct - Dec 2019 12,037 5,015 Jan - Mar 2020 14,028 6,958 Apr - Jun 2020 13,638 6,100 FY 2020 576,734 23,088
The Tribunal had misgivings about the future employment of the nominee and whether he would be employed by the applicant, and whether they had the financial viability to pay his wages for at least another two years given the apparent underpayment shown on the BAS for FY 2020. It was also a concern that he may be employed by Bonson Savpac Pty Ltd and their ABN number 38 617 527 385 rather than by Wong Lee Pty Ltd and ABN: 64010185770. This would not satisfy r.5.19(3)(d)(i).
However, the Tribunal has made a finding under another regulation and is not basing a decision on this regulation.
Given the above findings, the requirement in r.5.19(3)(d) is neither met nor not met.
For the above reasons, the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in the Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
De-Anne Kelly
MemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
Temporary Residence Transition nomination
(3)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i) is made in accordance with subregulation (2); and
(ii) identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii) identifies an occupation, in relation to the position, that:
(A)is listed in ANZSCO; and
(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 … visa; and
(b)the nominator:
(i) is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii) is actively and lawfully operating a business in Australia; and
(iii) did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and
(c)either:
(i) both of the following apply:
(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:
(I)held one or more Subclass 457 visas for a total period of at least 2 years; and
(II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);
(B)the employment in the position has been full-time, and undertaken in Australia; or
(ii) all of the following apply:
(A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);
(B)the nominator nominated the occupation;
(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d)for a person to whom subparagraph (c)(i) applies:
(i) the person will be employed on a full-time basis in the position for at least 2 years; and
(ii) the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position 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 in the same workplace at the same location; and
(f)either:
(i) the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii) it is reasonable to disregard subparagraph (i); and
Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.
(g)either:
(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
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