Kumar (Migration)

[2019] AATA 2140

Kumar (Migration) [2019] AATA 2140 (9 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Munish Kumar

CASE NUMBER:  1711516

HOME AFFAIRS REFERENCE(S):           BCC2016/4225219

MEMBER:Warren Stooke AM

DATE:9 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 09 April 2019 at 5:49pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent)(Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – nomination – position undertaken considered not to be Customer Service Manager (ANZSCO Code 149212)  –employer had adverse audit from department –  evidence of untoward business conduct by nominating employer – not engaged in position nominated – not approved standard business sponsor – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, rr 1.13, 2.86, cl 186.223

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 and Border Protection on 19 May 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 December 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the position undertaken by the applicant was not considered to be that of a Customer Service Manager.

6. The applicants appeared before the Tribunal on 9 April 2019 to give evidence and present arguments.

7. At the commencement of the hearing the Tribunal confirmed that the applicant had read the delegate's decision of 19 May 2019 his employer had had an adverse audit from the Department and that he was currently not in the country. The applicant responded to the Tribunal that he did not agree with the delegate’s decision because he had worked there within his field.

8. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant is performing the role of Customer Service Manager for YABS Pty Ltd.

10. The applicant gave evidence that he commenced working for YABS Pty Ltd in 2013 and the business was an integrated service organisation engaged in Law, Migration, Finance and Student visas.

11. The applicant prior to the hearing provided the Tribunal with the following extract of findings regarding an assessment by the Department of the owner’s business and the position of the nominee , as a Customer Service Manager, which was also addressed at hearing by the nominee:

    “On 20 August 2013, the department approved Munish Kumar's nomination application which specified his position as a Customer Service Manager (ANZSCO Code: 149212). In support of this application the sponsor provided a copy of Mr Kumar's employment contract which contained a position description that contained an exact copy of the wording contained in the ANZSCO position description for a Customer Service Manager except for the removal of references to "call centres".

    On 15 January 2014 departmental officers met with business director Avniesh Bhardwaj at the head office of Yabs Pty Ltd ATF Yabs Family Trust. Mr Bhardwaj described Munish Kumar's role as handling IT, customer service and customer complaints. When asked to clarify how Mr Kumar handled customer complaints, Mr Bhardwaj stated the complaints came directly to him rather than Munish Kumar who was not actually involved in the process. Mr Bhardwaj stated that he was thinking of getting Mr Kumar to do enhancements and developments for the real estate side of the business. When asked to expand on Mr Kumar's current duties, Mr Bhardwaj said Mr Kumar's main role was to make sure customers are happy by liaising directly with them.

    On 21 February 2014 a departmental officer conducted a telephone interview with Mr Kumar. During this interview Mr Kumar identified his role as marketing and customer service. He provided the full list of his duties as:

    ·contacting customers/clients to receive feedback about the service they received

    ·advising customer/clients of the Ml range of services offered by Yabs Pty Ltd ATF Yabs Family Trust

    ·marketing the business by asking existing clients/customers for referrals; and

    ·verbally relaying feedback to the director.

    Mr Kumar confirmed he does not develop or manage staff in the business. He also confirmed he does not develop policies, programs or procedures for the business.

    Based on the information obtained, the delegate was not satisfied that Munish Kumar is performing the duties of a Customer Service Manager at the level delineated by the ANZSCO position description. His duties were assessed as more commensurate with those of a Contact Centre Operator (ANZSCO Code: 541112) who "answer customer telephone, Internet and email inquiries about goods and services, and promotes the goods and services." As Mr Kumar was working in an occupation he had not been nominated and approved by the department to work in, this represented a failure of subregulation 2.86(2).

    On 31 March 2014 the sponsor provided a response to the NOMA. In its response the sponsor has refuted the departments finding that a breach of regulation 2.86 occurred for Neeraj Pandey and Sarabjit Kaur Sidhu. The sponsor stated that "Neeraj and Sarabjit were doing their jobs honestly as per their position description". However, the sponsor acknowledged that it was outsourcing its prepress work until it purchased two printers.”

    The sponsor also refuted its failure of regulation 2.86 for sponsored person Munish Kumar. The sponsor stated Munish Kumar is involved in handling some customer complaints. The sponsor stated that Munish Kumar has recently taken on additional duties with the expansion of the company to comprise an Accounting, Law, Migration and Student Services firm.”

12. The applicant provided a written submission in response to the Departmental Investigation findings, with the following comment:

    I have performed the following duties in the company as a Customer Service Manager. When I was interviewed, I have given the information to the interviewing officer about the duties what my employer wanted me to say since he was interviewed first, and he had advised me to explain the duties he had mentioned to the Department of Home Affairs. Although I have performed the following duties.

    ·    Handling, inspiring and evolving staff providing customer services

    ·    Preparation and applying after-sales services to follow up customer

    fulfilment, guarantee presentation of goods bought, and change and progress amenities provided

    ·    Coordinating with other service mediators, organisational units and patrons to recognize and reply to client hopes

    Emerging and studying strategies, agendas and measures concerning customer relations and goods and services provided

    ·    Confirming operative competence within the team

    ·    Providing way and response to team members and supporting with employment

    I have evidence till 16/3/2017 All pay slips are attached for your reference. I am happy to be interviewed on the role if need be since I have worked genuinely in the nominated position. I would consider AAT to use compelling and compassionate grounds to consider our matter as the owner is not running the business anymore, but we have worked genuinely on our 457 visa and met all the requirements for the grant of the ENS 186 VISA.

    We are a family of four and I have worked very hard to make sure we attain permanent residency and consider Australia as our home. As our employer is at fault, we should not be punished for his acts. Employers business was going down day by day and we were going to work but came back since there was no work and the employer was staying overseas most of the time. Through media and the news, we came to know that Avneish Bharadwaj (employer) has gone overseas forever. This does not mean that I did not work in the role I was given. I have genuinely performed all the duties given to me. I have third party evidence such as tax returns, pay slips, bank statements to prove my claims and I would request the case officer to interview me and use compelling and compassionate grounds to grant me and my family the ENS186 visa.

13. The applicant gave evidence to the Tribunal that he is no longer employed by YABS Pty Ltd and that he and his wife now work together.

14. The Tribunal asked the applicant if his services had been terminated and he said that his services were not terminated and that the owner of the business, Mr Bharadwaj was overseas and that he found out through watching the news that there was a complaint from India regarding fake visas being provided.

15. The applicant stated that - “He does something wrong and I am suffering.”

    Nomination of a position

16. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

17. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

18. The Tribunal is satisfied on the evidence that the applicant is neither working in the designated position of Customer Service Manager nor does he have a standard business sponsor. In this regard, the Tribunal is satisfied on the evidence that there was something untoward in the nominating employer’s business conduct that has resulted in the applicant no longer working for YABS Pty Ltd.

19. On the basis of the evidence, the Tribunal is satisfied that the applicant is not engaged by the employer in the position nominated as Customer Service Manager and that the applicant does not have an approved standard business sponsor.

20. Therefore, cl.186.223 is not met.

21. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

22. Whilst the applicant has not requested the Tribunal to consider a Ministerial reference for review, the Tribunal notes that it is available to the applicant to make such an application, particularly given the alleged misconduct of the employer in this relationship.

    DECISION

23. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Warren Stooke AM
    Member

    
    

    ATTACHMENT A

    186.223(1)      The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)      The Minister has approved the nomination.

    (3)      The nomination has not subsequently been withdrawn.

    (3A)    Either:

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

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

    (4)      The position is still available to the applicant.

    (5)      The application for the visa is made no more than 6 months after the Minister approved the nomination.