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Residence Appeal No: 16344 [2010] NZRRB 2 (12 January 2010)

Last Updated: 11 January 2011

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DECISION

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INTRODUCTION

[1] The appellant, a single woman, is a citizen of the People's Republic of China, aged 26.

[2] This is an appeal against the decision of Immigration New Zealand (INZ) declining the application because it did not consider that her employment as a Duty Manager was skilled. There are two principal issues for the Board. First, whether INZ correctly addressed if there was a substantial match between the appellant's current employment and the description of the tasks and responsibilities of a Restaurant Manager and, second, whether INZ's assessment was consistent with a previous decision regarding one of the appellant's colleagues who held exactly the same position as the appellant and was found to be a skilled migrant.

BACKGROUND

[3] The appellant lodged her Expression of Interest (EOI) in the Skilled Migrant category on 17 November 2008. Her EOI was selected on 19 November 2008. In her EOI and in her application the appellant claimed 145 points as follows: 30 points for her age, then 25; 50 points for current skilled employment in New Zealand as a Duty Manager at the [ABC] Restaurant ("the restaurant" or "the business"); 10 bonus points for skilled employment in a region outside Auckland; 50 points for holding two recognised qualifications, one a National Diploma at Level 5 in Hospitality (Management) awarded in August 2007 and the other a National Diploma in Business also at Level 5 awarded in August 2004; 5 bonus points for a recognised basic New Zealand qualification.

[4] The appellant's EOI had been subject to some preliminary verification by INZ. It had questioned whether her current employment was skilled employment and in response had received a letter dated 18 December 2008 from the General Manager of the restaurant, with a detailed position description for the role of a Duty Manager. The appellant had been appointed to that position on 6 December 2008, having previously been appointed as a trainee Duty Manager in March 2008.

[5] On 8 January 2009, the appellant was issued an invitation to apply for residence. She made her application for residence on 4 February 2009. In doing so she provided evidence as to her identity, qualifications, health, character and employment. The appellant selected as her main occupation from the Australian and New Zealand Standard Classification of Occupations (ANZSCO) that of Cafe or Restaurant Manager (code 141111).

[6] In addition to her academic qualifications, the appellant provided evidence that she held a General Manager's Certificate under section 117 of the Sale of Liquor Act 1989 issued by the relevant District Licensing Agency in August 2008 which authorised her to manage any licensed premises.

Verification of Employment

[7] An INZ case officer sought to have the appellant's position verified to establish whether her role met the ANZSCO requirements of a Cafe or Restaurant Manager (code 141111).

[8] A verification officer made an unannounced visit to the appellant's place of work on 9 June 2009 and spoke to the General Manager of the business.

[9] The verification officer's report dated the same day stated the General Manager confirmed that the appellant ran the restaurant five nights per week; she was employed for evening shifts only and worked Wednesday to Sunday from 3:30 pm to 12:30 am.

[10] The General Manager was shown the task list for Restaurant Managers from ANZSCO code 141111 and, on reading the list, had confirmed that the appellant undertook seven of the nine tasks listed there (exactly which tasks were not specified). Further, the General Manager added the appellant was capable of performing her role as well and that included "rostering and reconciliation of four P.O. sales". The appellant managed between one to six front of house staff and three to five kitchen staff if the Head Chef was not on-site.

[11] The only area of concern identified in the report was the appellant's rate of pay. Her employment agreement had stated her hourly rate was $14.50 per hour, but the General Manager had said the rate had been increased to perhaps $15.50 per hour, as far as she could recall. The verification officer's concern stemmed from the latest Restaurant Association of New Zealand salary survey, which showed that an average hourly rate for a Restaurant Manager across New Zealand was $17.83. In the region where the appellant worked, the average hourly rate was $19.00 per hour. The concern was that the appellant's hourly rate was considerably lower than the surveyed rate.

[12] The report concluded that the relevant case officer needed to assess whether the appellant's wages were comparable to the market rate for New Zealand workers in that occupation.

Employment Not Skilled

[13] In a letter dated 13 June 2009, INZ stated it had completed a first assessment of the appellant's application, noting she had claimed points for skilled employment as a Duty Manager in terms of ANZSCO code 141111. INZ enclosed a copy of the verification officer's report and stated that concerns had been raised about her position.

[14] These concerns were that her role did not substantially match the description of her occupation and it had been indicated that she was second-in-charge on her evening shifts; therefore, she did not appear to be in control of the cafe/restaurant. The control appeared to lie with the General Manager. There was concern also about her rate of pay. INZ said remuneration could be used to determine the skilled nature of a position and referred to the policy at SM7.15.

[15] The appellant did not meet the requirements of policy at SM7.10 and as a result was not entitled to points for her current employment or for skilled employment outside Auckland. Therefore, she could be awarded only 85 points.

[16] She was invited to make comment or provide further information by 6 July 2009.

Response from the Representative

[17] The appellant's representative responded by letter dated 22 June 2009.

[18] As to whether the appellant's position was skilled, the representative referred to the fact that at the EOI stage INZ had already questioned her level of skill. In response INZ had received a further explanation about the appellant's position and an updated position description for her role as a Duty Manager. After that material had been provided INZ issued her with an invitation to apply for residence. In the representative's opinion it seemed that the concerns regarding whether the appellant's position was skilled had been dealt with at the stage before she was invited to apply for residence.

[19] The representative pointed out that the verification officer's report did not raise any issues concerning the skilled nature of the appellant's position.

[20] From this, the representative concluded the INZ case officer had made some "incorrect assumptions" from the fact that the General Manager of the business was sometimes present during the appellant's shifts. The General Manager had, in fact, been unequivocal that the appellant was in charge of the restaurant during her shift. He pointed out that the description of Restaurant Managers in ANZSCO did not state that they were required to manage the business side of the restaurant. Rather, Restaurant Managers were those who took care of the running of the restaurant to provide dining and catering services. The General Manager had the role of overseeing the business of the restaurant.

[21] By way of clarification, he stated that the appellant not only managed the restaurant but was also second-in-charge to the General Manager. It was the appellant who had the sole responsibility for her shift. Her name appeared on the Duty Managers' board, which meant if there was any breach of the liquor licence she would be held accountable even if the General Manager was on the premises at the time. The General Manager had clearly stated to the verification officer that she was not in charge when she worked on the floor of the restaurant; rather she undertook the task of wait staff as directed by the appellant or whichever manager was on duty at the time.

[22] As to the appellant's rate of pay at $15.50 an hour, it was slightly less than the market rate, but above the minimum wage rate and, as such, it was perfectly legal. However, the representative advised that the employer had raised the appellant's level of pay to $17.50 an hour bringing her within the average range which had to be acceptable. As evidence of this he provided a copy of a letter dated 17 June 2009 from the General Manager to the appellant. It recorded that due to an oversight her rate of pay had not been reviewed after six months and effective immediately her rate of pay had increased. A copy of the appellant's most recent payslip dated 21 June 2009 was provided which showed the increased rate of $17.50 per hour.

[23] The representative also noted that the appellant was one of two Duty Managers at the restaurant. The other Duty Manager, who was named, worked the day shift. He had obtained residence under the Skilled Migrant policy holding exactly the same position and duties and the same rate of pay as the appellant. The representative stated the other Duty Manager had had:

"... absolutely no problems with either his EOI or his application and it could therefore be assumed that the position is good enough to meet policy requirements".

INZ Decision

[24] In a letter dated 10 July 2009 INZ advised the appellant, through her representative, that her application was declined.

[25] INZ acknowledged that the issue of the appellant's rate of pay had been addressed, but the concerns about her position had not been alleviated. INZ was not satisfied that the appellant's employment met the requirements of ANZSCO code 141111. In her role of Duty Manager she did not have overall responsibility for the running of the establishment as a Restaurant Manager would. The appellant's position description stated her role was to assist in the organisation and control of operations. Even though it was clear that the appellant was a valued employee, she did not meet the requirements stipulated in ANZSCO. As a result she could not meet the policy at SM7.10 and was not awarded points for her employment or bonus points for skilled employment in an area outside Auckland.

GROUNDS OF APPEAL

[26] Section 18C(1) of the Immigration Act 1987 ("the Act") provides:

"Where a visa officer or immigration officer has refused to grant any application for a residence visa or a residence permit, being an application lodged on or after the date of commencement of the Immigration Amendment Act 1991, the applicant may appeal against that refusal to the Residence Review Board on the grounds that -

(a) The refusal was not correct in terms of the Government residence policy applicable at the time the application for the visa or permit was made; or

(b) The special circumstances of the appellant are such that an exception to that Government residence policy should be considered."

[27] The appellant appeals on the ground that the decision of INZ was not correct in terms of the applicable Government residence policy and on the further ground that, if correct, her special circumstances are such that an exception to that policy should be considered.

[28] The representative provides undated submissions. In addition, also provided are a letter dated 24 August 2009 from the appellant's employer and a faxed copy of a consent form dated 20 August 2009 from the appellant's co-worker, a Duty Manager who obtained New Zealand permanent residence on 21 October 2008 under the Skilled Migrant category. He gave consent to the release of all forms and information held by INZ relating to his Skilled Migrant residence application to the representative and to the Residence Review Board.

[29] The submissions and documents on appeal are considered below.

ASSESSMENT

[30] The Board has been provided with the INZ file in relation to the appellant and has also considered the submissions provided on appeal. The Board has perused the INZ file of the appellant's colleague, a fellow Duty Manager, who obtained residence under the Skilled Migrant category.

[31] An assessment as to whether the INZ decision to decline the appellant's application was correct in terms of the applicable Government residence policy is set out below.

[32] The application was made on 4 February 2009 and the relevant policy criteria are those in Government residence policy as at that time.

Skilled Migrant Category Policy

[33] The policy relevant to the assessment of whether the appellant's employment was skilled was that in effect on 8 December 2008 and it is set out below:

"SM7.10 Skilled Employment

a. Skilled employment is employment that requires specialist, technical or management expertise:

i. obtained through the completion of recognised relevant qualifications; or

ii. obtained through recognised relevant work experience; or

iii. obtained through the completion of recognised relevant qualifications and work experience.

b. Assessment of whether an occupation is skilled for the purposes of Skilled Migrant Category (SMC) policy is primarily based on the Australian and New Zealand Standard Classification of Occupations (ANZSCO) which associates skill levels with each occupation.

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Note: The ANZSCO is available at www.immigration.govt.nz/ANZSCO

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SM7.10.1 Assessment of whether employment is skilled

An offer of employment or current employment in New Zealand will be assessed as skilled if it meets the requirements of (a), (b) or (c) below.

a. The occupation is included in part A of the List of Skilled Occupations held at Appendix 11 and the principal applicant can demonstrate that their offer of employment or current employment substantially matches the description for that occupation (including core tasks) as set out in the ANZSCO and:

i. the applicant holds a relevant recognised qualification which is at, or above, the qualification level on the Register (see SM14.5) that corresponds to the indicative skill level described for that occupation in the ANZSCO; or

ii. the applicant has the relevant work experience that the ANZSCO indicates may substitute the required qualification; or

iii. the employment is in an occupation included on the Long Term Skill Shortage List and the applicant meets the relevant requirements specified in column three of the Long Term Skill Shortage List for that occupation.

iv. notwithstanding (a) (ii), applicants with Skill Level One Occupations can substitute the required qualification with five years of relevant work experience.

...

Effective 08/12/2008"

Restaurant Manager - ANZSCO Code 141111

[34] The ANZSCO code states that a Restaurant Manager (verbatim):

"Organises and controls the operations of a cafe, restaurant or related establishment to provide dining and catering services.

Tasks include:

‹› planning menus in consultation with Chefs

‹› planning and organising special functions

‹› arranging the purchasing and pricing of goods according to budget

‹› maintaining records of stock levels and financial transactions

‹› ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance

‹› conferring with customers to assess their satisfaction with meals and service

‹› selecting, training and supervising waiting and kitchen staff

‹› may take reservations, greet guests and assist in taking orders"

[35] The appellant's position description stated the following:

"Description of Position

Duty Manager

GENERAL DUTIES:

To assist in the organisation and control of the operations of the restaurant and bar.

SPECIFIC DUTIES:

‹› To ensure that a high standard of service and presentation is maintained at all times

‹› To ensure the smooth running of the shift

‹› To open and set up the bar to facilitate the days business

‹› To close the bar, ensure all furniture is securely locked away, all doors are locked, all monies are placed in the safe and the alarm is set

‹› To reconcile tills on a daily basis, analyse breakdown of sales and report of any balancing or cash discrepancies

‹› To roster and supervise staff when required and to ensure that a high standard of staff presentation and training is maintained at all times

‹› To oversee and supervise staff where applicable

‹› To deal with any complaints during the shift

‹› To replenish the stock in preparation for the next shift

‹› To account for and order stock for restaurant and bar as and when required

‹› To be responsible for adherence to the Sale of Liquor Act and ensure that all staff members adhere to them

‹› To ensure that all staff maximise sales at all times"

[36] Policy states that skilled employment is primarily (meaning mainly or in large part, but not solely) based on the ANZSCO classification of an occupation (see SM7.10.b). On the basis the occupation is in the List of Skilled Occupations, an applicant must then demonstrate that their current employment substantially matches the description for the occupation they have chosen, including the core tasks of that occupation.

[37] INZ focused its attention, in declining the application, on the words in the appellant's position description which said her role was to "assist in" the organisation and control of the operations of the restaurant and bar. Those words led it to conclude she was not a Restaurant Manager as she did not "organise and control" the restaurant.

[38] The restaurant/bar operation was of such a scale that it ran two shifts, morning and afternoon, for which it employed three Duty Managers, each Duty Manager being responsible for the running of the entire premises and holding the relevant liquor licence during their shift.

[39] In its first letter to the appellant, INZ focused on the fact that there was no substantial match between her position description and that of the ANZSCO code for a Cafe or Restaurant Manager because INZ stated that the appellant was:

"... second in charge on her evening shifts and therefore was not in control of the operation of the restaurant".

[40] In response, the representative made it clear that the appellant was in charge of the restaurant. The representative outlined that the General Manager was responsible for the business of the restaurant and other premises. The appellant was not second-in-charge to the General Manager in terms of being responsible for the restaurant, which was the appellant's responsibility, rather she also acted as second-in-charge to the General Manager in that overall role. The representative went on to clarify that the General Manager was not in charge when she worked on the floor of the restaurant and instead took direction from the appellant or whichever Duty Manager was in charge at the time as to what she was required to do. The point being that it was the appellant who was in control of the restaurant and the bar, held the liquor licence and would be held accountable even if the General Manager was present.

[41] This information was not factored into INZ's analysis of the appellant's role in controlling and organising the restaurant. INZ should not have focussed only on the wording of general description of the position, without considering what the appellant actually did.

[42] If the appellant did not have "overall" responsibility for running the restaurant during her shift, it is hard to know from the information provided to INZ who would have that responsibility. If INZ had concerns as to the structure and organisation of the business, because it considered that impacted on the degree to which the appellant controlled the restaurant it should have sought clarification of that matter.

[43] In focusing narrowly on a few words in the position description, INZ omitted to analyse whether there was a substantial match between the tasks entailed in the appellant's role and the ANZSCO description. Whether the tasks substantially matched is a question of fact and degree in the context of the appellant's employment. As stated in Residence Appeal No 16221 (29 September 2009) at paragraph [47]:

"A substantial match should be determined on an holistic basis, taking into account not only the listed tasks but also the specific characteristics of an applicant's particular offer of employment."

Consistency in Approach

[44] In response to INZ's first letter the representative raised the fact that the appellant's co-worker, a fellow Duty Manager, had made a successful application for residence under the Skilled Migrant category. That person, who did the day shift while the appellant did the afternoon/evening shift at the restaurant, obtained residence under the same policy, on the basis of the same job description and with the same rate of pay.

[45] On appeal the representative raises this issue again and submits that INZ's decision in the appellant's case is not consistent with its decision in respect of her colleague and so is not fair. He points to the lack of consistency as a breach of the policy on Fairness at A1.5.a (with effect 26 July 1999).

[46] As far as consistency of approach is concerned, the Board notes there is no evidence on the INZ file that it turned its mind to this issue when it was raised by the representative during the assessment process.

[47] The Board confirms from reviewing the INZ file of the colleague that he had exactly the same job description as the appellant. His application was made in August 2008. The policy relevant to his application was that in force on 28 July 2008 and the only difference between that policy and the policy which applied to the appellant's application is the addition of the provision policy at SM7.10.1.a.iv. That provision was not material to either application.

[48] Like the appellant, her colleague claimed 145 points, had a Level 5 qualification obtained in New Zealand (not in hospitality but in business) and was paid $14.50 per hour, when he obtained residence on the basis of his employment as a Duty Manager.

[49] INZ must assess each case against the relevant policy in terms of the facts and circumstances of the presenting case - it has no discretion to do otherwise. However, as a matter of fairness (see A1.5.a) it must keep an open mind to all relevant information presented by an applicant. In this case it was relevant for INZ to have considered the circumstances of the appellant's colleague as, prima facie, they did the same job for the same employer. The representative raised this matter early in the assessment. INZ could then have considered the issue of consistency in its approach to the two cases.

Conclusion on Correctness

[50] The Board finds the INZ decision to decline the application was not correct. First, INZ failed to make any assessment as to whether there was a substantial match between the appellant's position in terms of actual tasks and responsibilities, her position description and the relevant ANZSCO code and second, INZ failed to consider the relevance or otherwise of the fact that one of the appellant's colleagues had obtained residence under the Skilled Migrant category on the basis of exactly the same position description as that of the appellant.

[51] INZ's failure to address both these matters means that the Board cannot be satisfied that INZ's decision to decline was as the result of a proper assessment which was fair in all the circumstances.

[52] Accordingly, the decision to decline the application must be set aside and the application must be reassessed.

STATUTORY DETERMINATION

[53] This appeal is determined pursuant to section 18D(1)(e) of the Immigration Act 1987. The Board considers the decision to refuse the permit was made on the basis of an incorrect assessment in terms of the applicable Government residence policy. The Board is not satisfied the appellant would, but for the incorrect assessment, have been entitled in terms of that policy to the immediate grant of a permit.

[54] The Board therefore cancels the decision of INZ. The appellant's application is referred back to the Secretary of Labour for a correct assessment in terms of the applicable Government residence policy, in accordance with the directions set out below.

Directions

[55] It should be noted that while these directions must be followed by INZ, they are not intended to be exhaustive and there may be other investigations or other aspects of the application which remain to be completed or which require updating.

1. A correct assessment shall be undertaken by a case officer who has not previously been associated with the appellant's case, on the basis of Government residence policy effective when the appellant made her application, with no requirement for an additional filing fee.

2. The appellant may update her application as she sees fit.

3. INZ is to reassess the appellant's current employment with the restaurant and determine whether her duties and responsibilities substantially match the description for the occupation of a Cafe and Restaurant Manager (including core tasks) as set out in ANZSCO.

In doing so INZ shall consider the information provided by the appellant and her employer in the course of the assessment of her application and the additional submissions made on appeal by the appellant's employer as to the current structure of the business. If necessary, INZ shall obtain from the employer a copy of the business's current management and organisational structure.

4. INZ is to put any potentially prejudicial information that arises in the course of its reassessment to the appellant for comment, before determining the application in a manner that is supported by clear decision-making and reasons.

5. If INZ is satisfied that the appellant's position is skilled, it shall then complete its assessment of the application, including the Health assessment.

[56] The appeal is successful in the above terms.

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V J Vervoort

Member

Residence Review Board