FEDERAL COURT OF AUSTRALIA

Pasricha v Minister for Immigration and Border Protection [2017] FCA 779

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to amend his notice of appeal to rely on the two additional grounds set out in the proposed amended notice of appeal provided with his submissions on 27 February 2017.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant, a citizen of India, applied on 29 October 2013 for a Temporary Business Entry (Class UC) — Temporary Work (Skilled) (Subclass 457) visa. His application related to the position of Customer Service Manager at a carwash franchisee operating under the name Magic Hand Carwash.

2    His employer, Toor MB Pty Ltd (Toor MB), nominated this occupation in relation to the appellant under the relevant provision. That nomination was approved by the Department of Immigration and Border Protection (the Department) on 27 November 2013.

3    The criteria for the grant of the visa included, under cl 457.223(4)(d)(ii) of Sch 2 to the Migration Regulations 1994 (Cth) as in force at the date of the relevant determination (the Regulations), that the Minister is satisfied that “the position associated with the nominated occupation is genuine”.

4    On 6 February 2014, a delegate of the first respondent (the Minister) decided that the position of Customer Service Manager was not required for the business. Consequently, the delegate did not consider the position associated with the nominated occupation to be genuine and concluded that the appellant did not meet the requirements of cl 457.223(4)(d)(ii) of Sch 2 to the Regulations.

5    The appellant applied to the Migration Review Tribunal (the Tribunal), now the Administrative Appeals Tribunal, for review of the delegate’s decision.

6    On 15 October 2014, a hearing took place before the Tribunal. The appellant was represented by a migration agent at the hearing.

7    On 29 October 2014, the Tribunal decided to affirm the decision of the delegate. In the course of its decision, the Tribunal referred to the ANZSCO description of the duties of a Customer Service Manager (described in more detail below), which had been set out in submissions of the appellant’s migration agent. The Tribunal noted that it had made reference to ANZSCO “as a guide only”. Ultimately, the Tribunal found that “on the basis of the evidence before it, including the oral evidence of the applicant at the hearing and the reference letter from the franchisor business development manager … the applicant is the manager of a car wash”. The Tribunal accepted that some of the appellant’s duties included elements of customer service and elements of management. But given the nature and size of the business and the wide range of duties undertaken by the appellant, the Tribunal was not satisfied that the appellant’s position was that of a Customer Service Manager. Accordingly, the Tribunal concluded that the requirements of cl 457.223(4)(d)(ii) were not met.

8    The appellant applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. Both the appellant and the Minister were represented by counsel and solicitors at the hearing before the Federal Circuit Court. The appellant relied on two grounds in his amended application in that Court. The first ground (which is reflected in the first ground of appeal to this Court) was that the decision of the Tribunal was affected by jurisdictional error in that the Tribunal relied on the position description in the ANZSCO Code without taking into account the description of the duties under the whole of the ANZSCO Code relevant to the position of ‘Customer Service Manager’. The second ground is not relevant for present purposes. The Federal Circuit Court rejected both of the appellant’s grounds and dismissed the application for judicial review.

9    The appellant appeals to this Court from the decision of the Federal Circuit Court. The appellant’s notice of appeal as filed contained one ground of appeal, which reflected the first ground in the Federal Circuit Court proceeding. At the hearing of the appeal, at which both the appellant and the Minister were represented by counsel and solicitors, the appellant made an oral application to add two further grounds. This was opposed by the Minister. Both sides presented arguments on the merits of the two further grounds, in the event that leave to amend were granted.

10    For the reasons that follow, in my view, the appellant has not established error in the decision of the Federal Circuit Court with respect to the first ground in the notice of appeal. In relation to the proposed second and third grounds, I will grant the appellant leave to rely on these grounds. However, I do not consider either of these grounds to be established. Accordingly, the appeal is to be dismissed.

Background facts

11    The following statement of the background facts is based on the documents in the Appeal Book, which includes the Court Book from the hearing before the Federal Circuit Court.

12    On 29 October 2013, the appellant applied for a Temporary Business Entry (Class UC) —Temporary Work (Skilled) (Subclass 457) visa. The application related to the position of Customer Service Manager at Magic Hand Carwash Plenty Valley in Mill Park, Victoria.

13    On 27 November 2013, the Department approved Toor MB’s nomination of the occupation of Customer Service Manager for a Subclass 457 visa in respect of the appellant (AB, tab 6, pp 174-177). The approval indicated that the nominated occupation was “149212 – Customer Service Manager”. The number 149212 was a reference to the code assigned to that occupation in the Australian and New Zealand Standard Classification of Occupations published by the Australian Bureau of Statistics, referred to in these reasons as “ANZSCO”. ANZSCO had been specified for relevant purposes by the Minister in a legislative instrument (IMMI 13/066).

14    On 23 January 2014, the appellant’s migration agent provided a submission to the Department in support of the appellant’s application. This submission was provided in response to a request for further evidence as to the genuineness of: (i) the appellant’s intention to perform the occupation; and (ii) the position associated with the nominated occupation (for the purposes of cl 457.223(4)(d) of Sch 2 to the Regulations). In the submission, the migration agent addressed each of these matters in turn. In relation to the latter, the submission included the following:

According to the guidelines provided by ANZSCO, Customer Service Manager duties are to plan, administer and review customer services and maintain sound customer relations. Tasks include:

•    Developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided

•    Providing direction and feedback to team members and assisting with recruitment

•    Managing, motivating and developing staff providing customer services

•    Planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided

•    Liaising with other organizational units, service agents and customers to identify and respond to customer expectations

The job description for the Applicant, provided with the nomination application included the following duties:

•    Providing excellent customer service as well as lead a small customer service team;

•    Assist with recruiting and training staff as well as performance reviews;

•    Developing and reviewing policies, programs and procedures concerning customer service and goods provided within the store;

•    Effective management of team rosters;

•    Ability to handle customer complaints and implement solutions;

•    Assess customer satisfactions and review and implement procedures concerning customer service;

•    Analyse delivery performance data to identify opportunities for improvement;

•    Assist with the implementation of key business strategies and compliance requirements;

•    Monitor, review and continuously improve performance of the services provided;

•    Build good rapport and liaise with product suppliers and service providers.

…

It is submitted that the job description provided in the nomination and the tasks outlined to be undertaken by the Applicant are closely aligned with the ANZSCO requirements for the role.

15    On 6 February 2014, the delegate decided to refuse the application for the visa. The delegate did not consider the position associated with the nominated occupation to be genuine. Consequently, the appellant did not meet the requirements of cl 457.223(4)(d)(ii). In the course of the delegate’s reasons, the delegate expressed the view that the position of Customer Service Manager is “found in large businesses that deal with a large customer base such as business call centres”. This was considered to be a different business structure from the small car wash franchise operated by Toor MB.

16    The appellant applied to the Tribunal for review of the delegate’s decision.

17    On 9 October 2014, the appellant’s migration agent provided a submission to the Tribunal. This submission was largely directed to the concern that had been expressed by the delegate as to the size of the franchisee’s business. In the submission, the migration agent acknowledged that the business was “not an overly large company”, but contended that “the business itself does have a substantial customer base”. The submission went on to note that, when looking at whether the business genuinely requires a Customer Service Manager, the Tribunal “should give regard to the tasks performed by the Applicant”. These were then described in some detail. After this description, the submission stated: “We submit that the primary tasks and duties that the Applicant undertakes are in accordance with the nominated occupation as per ANZSCO.” The submission continued as follows:

As such, we submit that not only is the role of a Customer Service Manager one genuinely required by the business, but it is also a role genuinely undertaken by the Applicant. The Applicant actively participates in the amendments of policies and procedures within the business in order to achieve desirable results for the business. The Applicant also manages staff recruitment and staff training in all aspects of the business operation and customer service policies. A dedicated manager is required for this role as opposed to simply a supervisor, due to the level of qualifications, skills and experience required to maintain high standards of customer service within the business.

18    Annexed to the appellant’s submission to the Tribunal was a letter dated 6 October (2014) from the Business Development Manager of Magic Hand Carwash. (It appears from the Tribunal’s decision that the author of this letter was the Business Development Manager of the franchisor.) This letter stated:

Kanav Kumar Pasricha has been working as a Customer Service Manager at Magic Hand Car Wash Plenty Valley since March 2014

Kanav’s job duties include -

-    Being responsible for following ‘The 5 steps to Magic Service’ when serving customers.

-    Being responsible for taking customer bookings.

-    Being responsible for taking customer payments.

-    Resolving customer complaints and supporting programs to prevent recurrence.

-    Assessing customers cars to determine what service will best suit the customers’ needs.

-    Gaining trust from customers to convert them to our brand.

-    Training senior staff on ‘The 5 steps to Magic Service’, Customer bookings & Customer Payments.

-    Interviewing and hiring staff.

I have personally worked with Kanav over the last six months, and have found all areas of his job specifications met to an excellent standard. Kanav is highly respected by staff and managers, and has proven to be an asset to operations at the Plenty Valley site.

19    Also provided to the Tribunal was an organisational chart for Toor MB (AB, tab 6, p 202). This showed the appellant, as Customer Service Manager, reporting to the company. Reporting to the Customer Service Manager were four categories of the business, namely: Bookings; Vacuum Bay; Washing Bay; and Finishing Bay.

20    The hearing before the Tribunal took place on 15 October 2014.

21    After the hearing, and pursuant to leave granted by the Tribunal, the appellant’s migration agent provided a further submission. This was dated 22 October 2014. A section of the submission headed “The Tasks and Duties of the Applicant” included the following:

The Review Applicant has been employed by the business as Customer Service Manager commencing in March 2014. We submit that the Review Applicant has a level of skill commensurate with the qualifications and experience outlined in the employment agreement.

The Tribunal Member expressed concern that the bulk of the duties carried out by the Applicant were not those of a Customer Service Manager, but instead those of a Car Wash Manager, primarily because the Nominee is the only management staff member within the business. We submit that the bulk of the tasks undertaken by the Applicant in his role are associated with the role of Customer Service Manager. We respectfully submit that the business operations are centered solely on providing services to customers. Any issues that arise within the business are customer-focused issues. Should problems arise with regard to equipment on the premises, the complex in which the business is located provides the required maintenance manager. As per our previous submissions, the Nominee spends the majority of his day following up and liaising with current and potential client and customers for the business. The Applicant actively participates in the amendments of policies and procedures within the business in order to achieve desirable results for the business. The Applicant also manages staff recruitment and staff training in all aspects of the business operation and customer service policies. Given the nature of the business, its management almost entirely encompasses issues pertaining to customer service.

…

As such, a majority of the tasks associated with the Nominee’s management role have a customer service focus. Whilst there are a minority of tasks carried out by the Applicant, such as organizing staff rosters, these types of tasks do not make up the bulk of the daily activities of the Nominee.

The Tribunal’s decision

22    On 29 October 2014, the Tribunal decided to affirm the decision of the delegate to refuse the visa. The Tribunal set out, at [10] of its reasons, the appellant’s description of his daily work on a recent day. At [11], the Tribunal referred to the organisational chart that had been provided to the Tribunal and noted the appellant’s evidence confirming that it was an accurate depiction of the way the carwash business was organised. The Tribunal also recorded that it had noted at the hearing that the appellant was the “sole manager of the business”, and the appellant had confirmed that this was correct.

23    The Tribunal then referred (at [11]) to the letter from the Business Development Manager of the franchisor and noted that, when the appellant was asked during the hearing to identify which of the duties itemised in that letter related to the duties of a Customer Service Manager, he had identified: greeting customers; taking money from customers; and trying to sell vouchers.

24    The Tribunal noted, at [12] of its reasons, that it had put to the appellant that, having regard to the organisational chart (showing him to be the sole manager), his duties as described in the letter from the Business Development Manager, and his own evidence regarding his duties, he was not performing the position of a Customer Service Manager but, rather, that of a Carwash Manager. The Tribunal recorded that it had indicated during the hearing that it considered a Customer Service Manager “to be a specialist managerial position who worked with a team of other specialist managers (such as human resources, sales and marketing or operational managers) who in turn may report to a general manager within a substantial business enterprise”. The Tribunal then stated (at [12]):

The Tribunal reviewed with the applicant the description of customer service manager in ANZSCO as was submitted by the migration agent. The Tribunal accepted the applicant performed some duties of customer service in his position of carwash manager, however, those were only part of the duties he performed, even be it customer service is an important part of his overall duties. The Tribunal accepted too that the reference letters he provided indicated he is a good carwash manager and is giving good customer service. But the Tribunal is not satisfied his performing some customer service duties makes his position with the sponsor to be a genuine position of that of a customer service manager.

25    The Tribunal referred, at [14] of its reasons, to the pre-hearing submissions of the appellant’s migration agent. The Tribunal noted that the submission “lists the duties of customer service manager from ANZSCO and submits why the applicant performs those duties”. The Tribunal then referred, at [15], to the migration agent’s post-hearing submissions. The Tribunal stated:

The migration agent repeats her earlier submission regarding the size of the customer base being an indicator of the need for a customer service manager. She submits the bulk of the applicant’s tasks are that of customer service and that the business operations centre solely on providing services to customers.

26    At [16], the Tribunal stated that it was not persuaded by the appellant’s submissions regarding the size of the customer base. It further stated that it was “not persuaded by the submission regarding the bulk of the applicant’s role being customer service manager” and that this was not consistent with the appellant’s role as described in the letter from the Business Development Manager. The Tribunal concluded, at [17]-[19], as follows:

17.    The Tribunal has had regard to the ANZSCO description of the duties of a customer service manager, which is set out in the migration agent submissions. The Tribunal has made reference to ANZSCO as a guide only.

18.    The Tribunal is mindful the department approved the nominated occupation of customer service manager on 27 November 2013. However, on the basis of the evidence before it, including the oral evidence of the applicant at the hearing and the reference letter from the franchisor business development manager, the Tribunal finds the applicant is the manager of a car wash. It finds his duties include elements of customer service and elements of management. Given the nature and size of the business and given the wide range of duties the applicant does which are outside the duties of a customer service manager (such as invoicing, rostering and bookings) the Tribunal is not satisfied the applicant’s position is that of a customer service manager. The Tribunal therefore is not satisfied the position associated with the nominated occupation is genuinely a customer service manager.

19.    For those reasons, the requirements of cl.457.223(4)(d)(ii) are not met.

The Federal Circuit Court decision

27    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The appellant’s first ground in his amended application has been described above. It is not necessary to refer to the appellant’s second ground in the Federal Circuit Court proceeding, as this is not pursued on appeal.

28    The Federal Circuit Court rejected both grounds. Having discussed the judgment of the Full Court of this Court in Talha v Minister for Immigration and Border Protection (2015) 235 FCR 100 (Talha) and the judgment of Judge Smith of the Federal Circuit Court in Cargo First Pty Ltd v Minister for Immigration and Border Protection (2015) 298 FLR 138 (Cargo First) (appeal dismissed: Cargo First Pty Ltd v Minister for Immigration and Border Protection (2016) 242 FCR 87), the primary judge said at [34]-[36]:

34.    The first thing to be said is that I accept the submission of the first respondent that the decision of the Full Court in Talha turned on a materially different regulation. While of course it is the case, and I respectfully accept, that the ANZSCO has, as it were, various units of grouping, the difficulty, at least in part, that the applicant in this case faces is that he simply never advanced his case on the footing that the Tribunal should pay regard to any of the other levels of the hierarchy. I do not see how it could be said that the Tribunal fell into error in failing to have regard to materials that the applicant made no effort to put before it, and upon which he did not rely.

35.    Furthermore, and in any event, the Tribunal was, as Judge Smith pointed out in Cargo First, required to conduct a qualitative analysis to see, relevantly for these purposes, whether the position was what it was said to be, and therefore genuine in that sense.

36.    Like Judge Smith, I see no error, let alone jurisdictional error, in the Tribunal contrasting what the applicant actually did with what the position was supposed to be. As the first respondent submits, cl.457.223(4)(d)(ii) forms part of a legislative scheme that is designed to enable applicants to obtain a sub-class 457 visa only where the Minister has identified a skills shortage in respect of certain specific occupations (paragraph 33, written submissions). This being the case, to examine what the applicant was going to do against the occupation he had nominated does not strike me as involving error at all. Ground 1 is not made out.

The appeal to this Court

29    As noted above, at the hearing of the appeal, the appellant applied orally to rely on two additional grounds of appeal. These were in addition to the one ground of appeal in his notice of appeal as filed. The three grounds set out in the proposed amended notice of appeal are as follows:

1.    The Federal Circuit Court erred in not accepting that the decision of the Tribunal was affected by jurisdictional error because the Tribunal relied on the position description in the ANZSCO Code without taking into account the description of the duties under the whole of the ANZSCO Code relevant to the position of “Customer Service Manager”.

2.    The Tribunal failed to apply the correct test, in treating the ANZSCO Code as a “guide only”.

3.    The Tribunal failed to deal with a clearly articulated argument advanced by the applicant:

Particulars

a.    The appellant argued that although he did perform some tasks which were outside the scope of the role of a customer service manager, the bulk of his time was spent doing tasks within the scope of the role of customer service manager and only a small amount of time was spent doing other duties.

b.    The Tribunal understood the argument to be to the effect that a majority of the particular tasks performed by the appellant (no matter how much time each task consumed) were associated with the role of customer service manager, rather than that the majority of his time being spent performing those tasks which fell within the scope of the role as conceived by the Tribunal.

c.    In basing its decision upon this misunderstanding, the decision of the Tribunal is affected by jurisdictional error.

30    As noted above, the Minister opposes the appellant being granted leave to rely on the proposed additional grounds. In my view, each of these grounds is arguable. There is no prejudice to the Minister in the grounds being raised now. Each of the grounds is closely related to the matters to be considered in any event in connection with the first ground in the notice of appeal. Accordingly, I will grant leave to the appellant to amend his notice of appeal to include these grounds and for the appellant to rely on these grounds even though they were not argued below.

ANZSCO

31    Before addressing the appeal grounds, it is necessary to say something further about ANZSCO. Reg 2.72 of the Regulations (as they stood at the relevant time) dealt with criteria for the approval of a nomination of an occupation in relation to an applicant for a Subclass 457 (Temporary Work (Skilled)) visa. Relevantly, reg 2.72(8A) provided that if the nomination was made on or after 1 July 2010, the criteria included that the Minister was satisfied that the person had provided certain information as part of the nomination, including: “if there is a 6-digit ANZSCO code for the nominated occupation—the name of the occupation and the corresponding 6-digit ANZSCO code”. Reg 2.72(10)(aa) provided, as a further criterion, that if the person was a standard business sponsor, the Minister was satisfied that: “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”.

32    Relevantly for present purposes, by IMMI 13/066, the Minister, acting under reg 2.72(10)(aa), specified certain occupations and their corresponding 6-digit codes in the schedules to that instrument. These included Customer Service Manager, with the ANZSCO code 149212.

33    A copy of relevant extracts from ANZSCO was provided in the Minister’s folder of authorities. The extracts include the explanation: “In ANZSCO, occupations are organised into progressively larger groups on the basis of their similarities in terms of both skill level and skill specialisation” (extract titled ‘Conceptual Basis of ANZSCO’, page 2 of 9). The headings for the various levels are:

    Major Group;

    Sub-major Group

    Minor Group;

    Unit Group; and

    Occupation.

34    It is explained that ‘occupations’ are: the most detailed level of ANZSCO; subdivisions of the unit groups; distinguished from other occupations in the same unit group on the basis of detailed skill specialisation; and sets of jobs which involve the performance of a common set of tasks (extract titled ‘Conceptual Basis of ANZSCO’, page 3 of 9).

35    It is also explained that: ANZSCO is primarily a statistical classification designed to aggregate and organise data collected about jobs or individuals; the definitional material describing each occupation “is intended primarily as an aid to interpreting occupation statistics classified to ANZSCO”; and the descriptions are therefore “only a guide to the tasks undertaken and skills involved in various occupations and are not a definitive statement of what is required” (extract titled ‘Interpreting ANZSCO Occupation Definitions’, page 1 of 2).

36    The ANZSCO extracts indicate that the levels above the occupation of Customer Service Manager are:

    Major Group – Managers;

    Sub-major Group – Hospitality, Retail and Service Managers;

    Minor Group – Miscellaneous Hospitality, Retail and Service Managers; and

    Unit Group – Call or Contact Centre and Customer Service Managers.

37    The description in ANZSCO for Customer Service Managers is:

Plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.

Consideration

First appeal ground

38    The appellant, in his written submissions, sets out extracts from the Major Group description for Managers and the Sub-major Group description for Hospitality, Retail and Service Managers in ANZSCO.

39    The appellant’s contention, both before the Federal Circuit Court and this Court on appeal, is that the Tribunal’s decision was affected by jurisdictional error because the Tribunal relied on the position description for Customer Service Manager in ANZSCO without taking into account the description of the duties under the whole of ANZSCO relevant to the position of Customer Service Manager, namely the matters referred to in the relevant Major Group and Sub-major Group.

40    The appellant submits that: the Tribunal’s findings in relation to the content of the appellant’s occupation were principally made by reference to the letter from the Business Development Manager of Magic Hand Carwash; in particular, it is implied in [18] of the Tribunal’s reasons that the Tribunal accepted that “invoicing”, “rostering” and “bookings” were part of the appellant’s role; but the Tribunal went on to state that these tasks were not part of the role of a Customer Service Manager. However, the appellant contends that these duties would appear to fall squarely within the scope of that role, having regard to the matters set out in the upper hierarchies of ANZSCO. For example, invoicing falls squarely within “directing, controlling and coordinating the activities of organisations and departments, either personally or through senior subordinate staff” (as found in the ANZSCO description for Managers). Likewise, rostering and bookings fall squarely within “directing and coordinating the allocation of assets and resources” (as also found in the ANZSCO description for Managers).

41    The appellant further submits that: the best inference to draw is that the Tribunal did not appreciate that ANZSCO was to be read as a whole, as explained by the Full Court in Talha at [50]-[62]; the Tribunal was required to have regard to the content of the occupation at the higher levels of ANZSCO; and this failure leads to the conclusion that the decision of the Tribunal was affected by jurisdictional error.

42    In my view, for the reasons that follow, the primary judge was correct to reject ground 1 of the grounds below (reflected in ground 1 on appeal). In summary, the appellant’s reliance on Talha, which concerned a substantially different visa criterion, is misplaced. The Tribunal’s approach is consistent with a substantial body of case law regarding cl 457.223(4)(d)(ii) and equivalent clauses in the Regulations.

43    A substantial body of case law has considered the meaning of the phrase “the position associated with the nominated occupation is genuine”, which features as a criterion for the grant or cancellation of a visa in cl 457.223(4)(d)(ii) of Sch 2, and in regs 2.43(1)(kb)(iii) and 2.72(10)(f), of the Regulations.

44    In Cargo First, Judge Smith explained that the expression “the position associated with the nominated occupation is genuine” cannot be understood without reference to the statutory context, including the extrinsic materials accompanying the relevant legislative amendments (at [21]-[22]). His Honour noted that the relevant provisions of the Migration Act 1958 (Cth) (the Act) and the Regulations were introduced “to provide a framework for a temporary sponsored work visa program in order to address genuine skills shortages and to do so without displacing employment and training opportunities for Australian citizens and Australian permanent residents” (at [23]).

45    Consistently with that purpose, Judge Smith observed that: “the introduction of a ‘genuineness test’ to be conducted by departmental officers [was] to ensure that the position associated with the nominated occupation is genuinely required to address skilled shortages in Australia” (at [24]); the scheme gives the Minister “the ability to determine which occupations are those in which there is a genuine skills shortage as referred to in s 140AA of the Act” (at [27]); accordingly, consideration of whether the position associated with the nominated occupation is genuine involves “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” (at [30]); and this analysis “necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor” (at [30]).

46    As noted above, an appeal from Judge Smith’s decision was dismissed: Cargo First Pty Ltd v Minister for Immigration and Border Protection (2016) 242 FCR 87. Consistently with the explanation of the scheme given by Judge Smith, Flick J observed on appeal that reg 2.72(10)(f) (equivalent to cl 457.223(4)(d)(ii)) entrusts to the Minister the responsibility of being satisfied that the position is genuine, and that the word ‘genuine’ “invites factual inquiry as to whether the ‘position’ is ‘real or true’” (at [23]). The decision of Judge Smith in Cargo First has been applied in Khan v Minister for Immigration and Border Protection [2016] FCA 877 and Bakri v Minister for Immigration and Border Protection [2016] FCA 396.

47    The decision of the Full Court in Talha concerned a different criterion for a visa, being the criterion in cl 485.213(b) that “each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation”. In its reasons, the Full Court explained the scheme of ANZSCO at [19]. The Full Court held that, in considering whether the applicant’s qualifications were “closely related” to his nominated skilled occupation of “Engineering Technologist”, the Tribunal had erred by confining its approach to the tasks described at the most detailed level of classification for “Engineering Technologist” without considering the “other potentially relevant tasks” described in the larger groups within which that occupation was located (at [52]). The Full Court noted that some of the tasks in the larger groups included matters which, on their face, had a relationship with the course completed by the applicant and that “[t]hat was the essential point which [the applicant] made in his written statement, which was considered by the Tribunal, but which then failed to appreciate the significance to its task of the information in the higher groupings” (at [52]).

48    In the present case, in contrast, the Tribunal did not fail to consider any claim made by the appellant, or fail to appreciate the significance of his claim. The appellant did not invoke any “tasks” identified in any of the “higher groupings” in ANZSCO in his submissions to the Tribunal (including his submissions to the delegate). Rather, the appellant sought to rely on the tasks described in the ANZSCO description for Customer Service Manager (see, in particular, the 23 January 2014 submission, quoted above at [14], which picks up almost exactly the description of this occupation in ANZSCO, also quoted above at [37]). The appellant’s claim, in effect, was that his position involved the performance of tasks belonging to a Customer Service Manager, and that those tasks represented such a substantial part of his position that it could genuinely be regarded as a Customer Service Manager position.

49    More fundamentally, the nature and purpose of the evaluative exercise required by cl 457.223(4)(d)(ii) differs from that required by cl 485.213(b), which was in issue in Talha. For the reasons explained by Judge Smith in Cargo First, cl 457.223(4)(d)(ii) forms part of a legislative scheme designed to enable applicants to obtain Subclass 457 visas only in circumstances where the Minister has identified a skills shortage in respect of certain specific occupations. The legislative scheme is designed to prevent persons from obtaining Subclass 457 visas for positions associated with other occupations, being occupations for which there are not skills shortages (even though those occupations might be seen as “related” or even “closely related” to those occupations for which there are skills shortages).

50    In this context, it is unsurprising that the Tribunal would focus on the detailed tasks in ANZSCO that distinguish the specific occupation of Customer Service Manager from other occupations within the broader group in ANZSCO. Those other occupations may include occupations that the Minister has not decided are the subject of a skills shortage.

51    In the circumstances, including the way in which the appellant put his submissions to the Tribunal, the Tribunal did not err in having regard to the tasks set out in ANZSCO for the specific occupation. This is not to say that the general tasks set out in the higher groups are necessarily irrelevant. Depending on the circumstances, it may be proper to have regard to the higher level descriptions. However, in the present case, no error is shown in the way that the Tribunal had regard to ANZSCO.

Second appeal ground

52    The appellant submits that, in referring to ANZSCO as a “guide only” (Tribunal’s reasons, [17]), the Tribunal adopted the wrong approach, leading to the decision being affected by jurisdictional error. The appellant submits that: ANZSCO was a “legal standard to be applied in the determination of the review”, rather than merely a policy document to be applied as a “guide only”; this error meant that the Tribunal went about its task by searching for the content of the occupation ‘Customer Service Manager’ from sources other than ANZSCO; this can be inferred from the Tribunal’s statement about the nature of the appellant’s role in [12] of the Tribunal’s reasons, reflecting the matters raised during the Tribunal hearing; and there is no foundation in the ANZSCO description of Customer Service Manager for the Tribunal’s observation that it is a role that could only be performed within a team of other managers, reporting to a general manager (Tribunal’s reasons, [12]).

53    In my view, this appeal ground is not established. The appellant’s migration agent described ANZSCO as providing “guidelines” (see the submission dated 23 January 2014, quoted above at [14]). ANZSCO itself states that it provides “only a guide” to the tasks undertaken and the skills involved in various occupations (also quoted above at [35]). In stating, at [17] of its reasons, that it had given regard to the ANZSCO description of the duties of a Customer Service Manager (as set out in the migration agent’s submissions) “as a guide only”, it seems that the Tribunal was not regarding that description as exhaustive. It was open to the Tribunal to conduct the evaluative judgment required of it (as described above) in that way.

Third appeal ground

54    The appellant submits that, in his post-hearing submission dated 22 October 2014, the appellant argued that, although he did perform some tasks that were outside the scope of the role of a Customer Service Manager, the majority of his time was spent doing tasks within the scope of the role of a Customer Service Manager, and only a small amount of his time was spent doing other duties. The appellant submits that the argument put to the Tribunal was that, when viewed quantitatively, the additional duties were peripheral and should not displace a conclusion that the role was genuine. The appellant contends that the Tribunal misunderstood that argument as relating to the majority of the tasks performed by the appellant, rather than the majority of his time. In basing its decision upon this misunderstanding, the appellant submits that the decision of the Tribunal is affected by jurisdictional error: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63].

55    In my view, this appeal ground is not established. The Tribunal, at [16] of its reasons, said that it was “not persuaded by the submission regarding the bulk of the applicant’s role being customer service manager”. The language used by the Tribunal correlates quite closely to that actually used in the post-hearing submission, namely: “We submit that the bulk of the tasks undertaken by the Applicant in his role are associated with the role of Customer Service Manager”. To the extent that the appellant seeks to emphasise the references in the post-hearing submission to “spends the majority of his day” and “almost entirely encompasses”, these need to be read in the context of the earlier reference to “the bulk of the tasks” and the later reference to “a majority of the tasks”. The appellant’s post-hearing submission, taken as a whole, did not draw a clear distinction between the majority of the appellant’s time and the majority of the tasks that he performed. In these circumstances, the Tribunal fairly summarised and responded to the argument as put, and no error is shown.

Conclusion

56    For these reasons, the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, there will be an order that the appellant pay the Minister’s costs of the appeal.

Associate:

Dated:    12 July 2017