Khan v Minister for Immigration and Border Protection

Federal Court of Australia|2016-08-03|Before: Farrell J

The appeal is dismissed.
The appellant must pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Circuit Court of Australia ("FCCA") delivered on 19 February 2016: Khan v Minister for Immigration and Border Protection [2016] FCCA 333 ("FCCA Judgment"). The primary judge dismissed an application for judicial review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) made on 1 October 2014. The Tribunal affirmed a decision of a delegate of the Minister made on 28 August 2013 to refuse to grant Mr Khan a Long-Stay Temporary Business (UC) subclass 457 Visa ("457 visa").

Tribunal Decision 10 On 1 October 2014 the Tribunal affirmed the decision of the Minister's delegate and set out its reasons in a statement of decision and reasons ("Decision Record" or "DR"). 11 The Tribunal noted that in support of his application, Mr Khan provided: an organisational chart; a copy of his curriculum vitae; letters from Mr Khan's employer outlining Mr Khan's duties and the reasons why there was a need for the position. It also referred to the following documents at DR [12] and [14]: (1) a letter from the Consumer Sales Business Manager of Caltex outlining the importance of customer service and containing a recommendation that the business recruit a customer service manager; (2) an employment agreement outlining Mr Khans' duties which the Tribunal summarised as: developing and reviewing programs and initiatives concerning the enhancement of customer service to achieve superior customer satisfaction; assisting with staff recruitment; training, managing, motivating and monitoring customer service staff through direct observation, feedback and mystery shop results; liaising with the director, suppliers and service agents to consistently enhance in-store customer experience; conducting local area research for latest trends and practices with customer service; and responding to all customer queries/complaints; and (3) a copy of the franchise agreement with Caltex which stated, among other things, that the franchisee "must operate the Business in accordance with the standards, operating procedures, systems, instructions, requirements and any other information set out in the Caltex Manual"; that "Caltex may conduct any marketing or promotional activity in relation to its business and the Network … as it determines in its absolute discretion"; and that employees must "participate in all marketing and promotional activities and market research programs required by Caltex". 12 The Tribunal noted that in these documents Mr Khan's duties are stated to be responding to customer queries or complaints in an effective and efficient manner; ordering goods from suppliers; weekly discussions with suppliers regarding goods for sale; quarterly discussions with the Caltex Sales Business Manager regarding customer feedback and complaints and mystery shopper results; training, managing, monitoring and motivating up to three customer service attendants; assisting with staff hire at the interview stage; creating weekly staff rosters; weekly meetings with the director to discuss programs and initiatives implemented by the franchisor to achieve superior customer service satisfaction, staff rosters, supplier concerns, customer complaints and feedback and mystery shopper results; and visiting competitor businesses to compare their customer service trends and practices: DR at [13]. 13 The Decision Record at [16] and [18] sets out Mr Khan's evidence that: (1) He has been working as a customer service manager on a part-basis since December 2012 (as he was on a student visa) and on a full-time basis since December 2013. (2) There are three other employees; one part-time and two full-time; one has been there for seven years, one for two years and one started recently. (3) The store is open 24 hours a day. (4) He works from 6 am to 1 or 2 pm at the one store only. He serves customers until 10 am. When the other staff member arrives, Mr Khan orders supplies, does the staff roster, deals with customer complaints and feedback and "manages and motivates" the customer service attendants. If there is a faulty product they have to inform the supplier. If the customer wants to return an item, they have to fill out a form and provide a credit. The forms and software for this are developed by head office. Mr Khan contacts the suppliers if there are any complaints about particular goods and refers the complaints to head office. (5) When he is not there one of the other customer services attendants looks after the store but they call him if there are any problems or complaints. 14 The Tribunal asked Mr Khan to explain what he meant by "manage and motivate" the customer service attendants. Mr Khan said that he had recently trained a new staff member for one or two weeks. He explained that a "mystery shopper" from Caltex visits the store anonymously twice a month to check on customer service and whether the staff promote products correctly. The mystery shopper then provides feedback to his employer, the director of the business. Mr Khan would discuss the feedback with the director and provide his opinion on how to increase sales. Mr Khan would also discuss the mystery shopper feedback and how to increase sales with the other attendants. Sometimes he visits competitor stores to see how they provide customer service. Along with the director, he has quarterly meetings with the Caltex Business Manager to discuss mystery shop results, any incidents, complaints and store performance. Mr Khan was unable to provide any examples of policies or procedures he had developed: DR at [19]-[20]. 15 In essence, the Tribunal was not satisfied that the position associated with the nominated occupation was genuine because it was not satisfied that the activities and operations of a single Caltex station with four staff was of sufficient scale to require a full time "customer service manager" as described in the relevant ANZSCO classification. The Tribunal took into account the fact that Mr Khan supervised three staff, two of whom were experienced, and the degree of centralised control exercised by Caltex. The Tribunal found that many of the "core functions" of a customer service manager were undertaken by Caltex as franchisor including the high level planning and administrative and management decisions about customer service as well as the development of policies and procedures for new products, promotions, customer complaints and the return of goods and services. The Tribunal did not accept that the position description in the employment agreement accurately described the actual duties of that position having regard to Mr Khan's evidence at the hearing and the other documents submitted. In light of Mr Khan's evidence that he is not planning, administering and reviewing policies, programs, and procedures related to customer service; he is not implementing after-sales service to follow up customer satisfaction, ensure performance of goods purchased or modify and improve services provided; and he is not liaising with other organisational units, service agents and customers to identify and respond to customer expectations, the Tribunal found that Mr Khan is not actually performing the full range of duties of a customer service manager. In making this finding, the Tribunal noted that Mr Khan's role in managing, motivating and developing staff was "extremely limited, given the experience levels of the existing staff and low staff turnover": DR at [25]-[29], [32]. 16 The Tribunal accepted that Mr Khan's role involved providing good customer service personally and guiding other staff in relation to that principle, however, it considered that these aspects of his tasks were of a "general and basic nature that arise directly from the provision of goods and services in a retail environment": DR at [31]. The Tribunal considered that the tasks performed by Mr Khan were "more closely aligned" with the description of a "retail supervisor" in ANZSCO 621511 which provides: UNIT GROUP 6215 RETAIL SUPERVISORS RETAIL SUPERVISORS supervise and coordinate the activities of retail sales workers. … Tasks include: • ensuring that customers receive prompt service and quality goods and services • responding to customers' inquiries and complaints about goods and services • planning and preparing work schedules and assigning staff to specific duties • interviewing, hiring, training, evaluating, dismissing and promoting staff, and resolving staff grievances • instructing staff on how to handle difficult and complicated sales procedures • examining returned goods and deciding on appropriate action • taking inventory of goods for sale and ordering new stock • ensuring that goods and services are correctly priced and displayed • ensuring safety and security procedures are enforced

Federal Circuit Court Decision 17 Mr Khan applied to the FCCA for judicial review of the Tribunal's decision on 23 October 2014. The application was heard before the primary judge on 4 February 2016 and judgment was delivered on 19 February 2016. 18 The application was based on the following two grounds (as written): 1. The decision of the Migration Review Tribunal involves jurisdictional error. 2. The Tribunal ignored relevant material. 19 The primary judge found that, "on its face", the first ground failed because it was not particularised: FCCA Judgment at [30]. He then proceeded to consider the approach taken by the Tribunal: [31] In any event, I am satisfied the Tribunal understood the tasks it was required to undertake to determine whether the criterion specified in cl.457.223(4)(d)(ii) of Schedule 2 to the Regulations was satisfied: the Tribunal identified the occupation that was nominated in relation to the applicant, namely "Customer Service Manager"; it identified the description of "Customer Service Manager" contained in ANZSCO, and the tasks ANZSCO associated with that occupation; the Tribunal identified the tasks the applicant claimed he performed in the position he held with the Employer; the Tribunal considered the evidence relating to the tasks the applicant in fact performed, and made findings concerning the tasks the applicant performed; and the Tribunal assessed whether the tasks the Tribunal found the applicant performed were equivalent or substantially equivalent to the tasks ANZSCO associated with "Customer Service Manager". Further, it was reasonably open to the Tribunal to conclude, for the reasons it gave, that the tasks the applicant was employed to undertake were not equivalent or substantially equivalent to the tasks ANZSCO associated with "Customer Service Manager". 20 In respect of the second ground, Mr Khan submitted that the Tribunal had ignored his International English Language Testing System (IELTS) Test Report and Bachelor of Commerce Certificate and a Master of Professional Accounting Extended Certificate. The primary judge found that while these documents would have been relevant to the question of whether Mr Khan had the necessary skill levels, that question was not in issue before the Tribunal. Those documents were not relevant to the issue for determination before the Tribunal under cl 457.223(4)(d)(ii), namely, whether Mr Khan's tasks, as claimed, and as actually performed, were equivalent or substantially equivalent to the tasks ANZSCO associated with the position of "customer service manager". The primary judge noted that although the Tribunal did not specifically refer to those documents, it had referred to Mr Khan's curriculum vitae which had detailed his qualifications: FCCA Judgment at [32]. 21 In the result, the primary judge dismissed the application: FCCA Judgment at [33].

Appeal to this Court 22 The notice of appeal from the FCCA Judgment filed by Mr Khan on 11 March 2016 set out eight grounds of appeal. 23 Mr Khan did not file any written submissions. He made oral submissions at the hearing, some of them in English. The Court was assisted by an interpreter. 24 The Minister filed written submissions and appeared by counsel at the hearing.

Grounds One, Two and Eight 25 As written, these grounds are: 1. The Hon. Federal Circuit Court Judge made legal error in defining words such as nominated occupation, occupation, position and "genuine". 2. The Hon. Federal Circuit Court Judge made legal error in his judgement at paragraph 13 in defining meaning of prescribed criteria specified in cl.457.223(4)(d)(ii) of schedule - 2. 8. Hon. Federal Circuit Court Judge at paragraph - 31 mentioned about Tribunal reasoning but has not considered information available and duties performed are relevant to the jobs "Customer Service Manager" and made legal error. 26 These are the only complaints made by Mr Khan in relation to the decision of the primary judge. 27 Mr Khan confirmed that grounds one and two raised the same issue. Mr Khan said that he concluded that the primary judge must have erred in his approach because Mr Khan was refused a 457 visa while another person who had also been nominated by his employer for the position of "customer service manager" at another of the employer's Caltex sites was granted a 457 visa. Mr Khan pointed out that he has relevant qualifications and tenure, having worked in the same position for three years. In relation to ground eight, Mr Khan simply said that his duties were those of a customer service manager. 28 These grounds have not been made out. 29 First, the fact that a person employed at a different Caltex service station was granted a 457 visa for a nominated occupation of "customer service manager" has no legal relevance. The Tribunal and the primary judge were called upon to consider the circumstances of the appellant's application. Mr Khan's tenure and his formal qualifications were not in contention before the Tribunal and they have no relevance to grounds one and two. 30 Second, the terms referred to in ground one are the terms used in cl 457.223(4)(d)(ii). I accept the Minister's submission that at [5]-[14] of the FCCA Judgment, the primary judge gave detailed and careful consideration to the terms used in this sub-clause and the proper construction of cl 457.223(4)(d)(ii). Paragraph [13] of the FCCA Judgment is directed to the question of whether the position associated with the nominated occupation is "genuine": [13] On this analysis, the criterion specified in cl 457.223(4)(d)(ii) of Schedule 2 to the Regulations may fail to be satisfied for two possible reasons. One is that the tasks the applicant claims he has been employed to perform or will be employed to perform are not equivalent or substantially equivalent to the tasks ANZSCO associates with the nominated occupation. The second is that, although the claimed tasks are equivalent or substantially equivalent to the tasks contained in ANZSCO, the applicant has not in fact been employed to perform those tasks, or will not be employed to undertake those tasks, or a sufficient proportion of those tasks. 31 Based on this consideration, the primary judge summarised the questions relevant to determining whether cl 457.223(4)(d)(ii) has been satisfied in the FCCA Judgment at [14]: [14] Thus, when considering whether the criterion specified in cl 457.223(4)(d)(ii) of Schedule 2 is satisfied, questions along the following lines may need to be addressed: a) What is the occupation that has been nominated in relation to the applicant? b) How is the nominated occupation described in ANZSCO, and what are the tasks ANZACO associates with the nominated occupation? c) What are the tasks the applicant claims he or she has been employed or will be employed to perform? d) Are the tasks the applicant claims he or she has been employed or will be employed to perform in that position tasks that are equivalent or substantially equivalent to the tasks associated with the nominated occupation, as specified by ANZSCO? e) If (d) is answered in the affirmative, has the applicant in reality performed the tasks he or she has been engaged to perform, or will the applicant perform the tasks he or she will be engaged to perform? 32 Mr Khan identified no error in the primary judge's reasoning as to the meaning of the words referred to in ground one and none is discernible. While the Minister correctly pointed out that the FCCA Judgment at [13] should not be taken as an exhaustive statement of when cl 457.223(4)(d)(ii) will not be satisfied, I accept that it is sufficient in this case. The steps identified in the FCCA Judgement at [14] are appropriate to assist a decision maker to determine whether the position associated with a nominated occupation is "genuine" in the sense of "real or authentic". The primary judge, at [15]-[16], correctly relied on the approach taken by Judge Smith in Cargo First at [30] in relation to reg 2.72(10)(f), which employs the same words as cl 475.223(4)(d)(ii). That is, it is necessary for a decision maker to determine not only whether a position exists but also whether it is what it purports to be; that requires a "qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor". 33 It is appropriate at this point to note what the Tribunal said in the DR at [23]: The Tribunal finds that the nominated occupation is Customer Service Manager. In considering the nature of the position and the occupation, the Tribunal is guided by the skill level and tasks for a Customer Service Manager as set out in ANZSCO 149212. The Tribunal considers that it is reasonable to compare the tasks of the actual position with the tasks of the nominated occupation as listed in ANZSCO. In doing so, the Tribunal has not placed absolute reliance on ANZSCO and has used ANZSCO as a guide, rather than an exhaustive list of duties. [Emphasis added] 34 The primary judge noted this statement in the FCCA Judgment at [24] but made no further comment on it. It is not entirely clear what the Tribunal member meant by the emphasised words. Nonetheless, I perceive no error in the primary judge's approach as outlined in the FCCA Judgment at [5]-[16] or his finding at [31] (see [19] above) as to the correctness of the approach in fact taken by the Tribunal of enquiring into the tasks actually performed by Mr Khan and comparing them against the nominated occupation as set out in ANZSCO 149212.

Ground Three 35 As written, this ground is: 3. The Administrative Appeal Tribunal made legal error that "the degree of centralised control by the franchisor and the fact that many of the high level planning, administrative and management decisions about customer service are made by the franchisor". The Caltex Manual" made for many franchisees across Australia. Each business need to modify according to their need. 36 Ground three was not raised before the primary judge. In relation to this ground, Mr Khan explained that he received "proper training" from Caltex to perform administrative and planning functions. 37 Mr Khan's representative submitted to the Tribunal that Caltex had limited involvement in marketing, merchandising techniques and customer relations and it had delegated those duties to the franchisee. The Tribunal specifically rejected that submission: DR at [15] and [25]. 38 While it may be true that the Caltex Manual's prescriptions left areas of discretion to a franchisee in relation to implementation, as noted by the Tribunal in the Decision Record at [20], Mr Khan could not provide any examples of policies or procedures that he had developed himself. The policies on new products, emergency procedures, return of goods and customer complaints came from the Caltex Head Office. There was a booklet of promotions that the staff had to follow. There was a manual that sets out instructions on how to operate particular equipment and store food. The Tribunal's findings were open to it for the reasons which it gave and therefore this ground must be rejected because it invites impermissible merits review.

Grounds Four, Five, Six and Seven 39 These grounds are directed to the conduct of the Tribunal. Although Mr Khan's first ground of review by the primary judge was that the Tribunal had made a jurisdictional error, none of these grounds were argued before the primary judge. None has sufficient merit to warrant leave to raise the grounds on appeal. 40 As written, ground four is: 4. The Administrative Appeal Tribunal erred in its judgment that the degree of hardship that may be caused by the cancellation to the applicant and his other. The Tribunal has not considered this aspect. 41 As explained to Mr Khan at the hearing, the issue of hardship to him or his partner caused by the refusal of the visa is not a relevant consideration under cl 475.223(4)(d)(ii) in relation to the grant of a 457 visa. It also does not appear that Mr Khan raised this issue with the Tribunal. Accordingly, the Tribunal's failure to address that issue does not establish jurisdictional error. 42 As written, grounds five, six and seven are: 5. The Administrative Appeal Tribunal made legal error that duties are overleaping with Retail Supervisor. There are some common duties with both positions which was not consider by the AAT. 6. The Administrative Appeal Tribunal has not given enough consideration to the provided information and come to conclusion that the duties are not equivalent for the job performed and made factual and legal error. 7. The Administrative Appeal Tribunal erred in its judgment that the applicant does not meet criterion specified in cl.457.223(4)(d)(ii) under Australian Migration Act and Migration Regulation. 43 Mr Khan explained these grounds on the basis that the duties he performed were those of a customer service manager and the Tribunal failed to take into account his qualifications. He confirmed that his basic complaint was that the Tribunal was wrong. 44 Ground five is inconsistent on its face, alleging that the Tribunal erred in finding that the duties of a customer service manager and a retail supervisor were overlapping, yet some common duties were not considered. The Tribunal considered the tasks actually performed by Mr Khan and found that, although they were directed to good customer service, they were too general and basic to meet the higher order requirements of planning, organising, administering, reviewing and liaising which were expected of a customer service manager as described in ANZSCO 149212. That view was open to the Tribunal for the reasons which it gave. That it also commented that the tasks performed by Mr Khan were more accurately aligned with the tasks of a retail supervisor reveals no jurisdictional error. 45 In light of Mr Khan's explanations, I accept the Minister's submission that grounds five to seven seek impermissible merits review.

Conclusion 46 None of the grounds in Mr Khan's appeal disclose jurisdictional error by the Tribunal or appellable error by the primary judge. The appeal must be dismissed and I will order that Mr Khan pay the Minister's costs as agreed or taxed. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Migration Regulations 1994(Cth)reg 2.72, Sch

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