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Residence Appeal No: 16361 [2010] NZRRB 17 (29 January 2010)

Last Updated: 12 January 2011

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DECISION

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INTRODUCTION

[1] The appellant is a citizen of China, aged 25 years. The application for residence includes her partner, also a citizen of China, aged 27 years.

[2] This is an appeal against the decision of Immigration New Zealand declining the application because the appellant's employment was found to be not skilled employment. The principal issue for the Board is whether Immigration New Zealand conducted a proper assessment of the appellant's role.

BACKGROUND

[3] The appellant made her application on 13 November 2008. Her Expression of Interest had been selected from the pool and, at the time it was being assessed, Immigration New Zealand expressed some concern about her role, as a Restaurant Manager for [ABC]. She claimed that this was the equivalent of ANZSCO 141111, Cafe or Restaurant Manager. Her employment contract describes the position as "Hourly Manager".

[4] Notwithstanding those concerns, Immigration New Zealand issued an invitation to apply.

Residence Application

[5] The appellant claimed 145 points. She had a qualification, a National Diploma in Hospitality Management obtained on 1 December 2007 from a polytechnic institute of technology in New Zealand. She had completed 18 months of study to achieve that Diploma. The Diploma is recognised as a Level 5 qualification. The appellant also claimed points for her employment as a Restaurant Manager.

[6] She indicated that she satisfied the English language requirements through study for a recognised qualification conducted entirely in English.

[7] The appellant claimed no points for her partner but later on request provided a letter from the university he was attending confirming he was in his final year of study for a Bachelor of Commerce degree. This was to establish that he met the English language requirements through study for a recognised qualification conducted entirely in English.

Request for Further Evidence

[8] On 22 January 2009, Immigration New Zealand wrote to the appellant asking her to provide a job description, pay slips from [ABC] and an organisational chart for the restaurant. On 10 February 2009, Immigration New Zealand received the evidence sought.

[9] On 5 June 2009 it wrote to the appellant advising that her employment at [ABC] had "not been assessed as skilled" as outlined by policy. The relevant policy, SM7.10, was set out, as was SM7.10.3, SM7.10.5 and SM7.10.10. The immigration officer then stated:

"I am not satisfied that your present employment as an Hourly Manager requires considerable specialist, technical or management expertise, as also indicated by your salary level.

Your duties are mainly assisting the Management Team. Your job description also states that you report to the Assistant Restaurant Manager/ Restaurant Manager. Reporting to an Assistant Restaurant Manager shows that your job is not that of a Manager. We are not satisfied that your employment meets the requirement of a Restaurant Manager as outlined in ANZSCO."

[10] Immigration New Zealand advised that it had assessed her as being entitled to 90 points only, below the minimum points for selection from the pool.

[11] On 23 June 2009, Immigration New Zealand received submissions in reply. The representative expressed the shock he said he and the appellant experienced upon receiving the letter. He set out at some length the history of the application, going back to the time at which she submitted her Expression of Interest. He expressed the shock the appellant was experiencing at being required yet again to demonstrate that her employment was skilled, particularly as she was aware of people in positions "exactly identical" to hers who had been granted permanent residence. The representative asked that Immigration New Zealand go through the correspondence with the immigration officer who had handled her Expression of Interest, to note that all of the matters had been previously traversed.

[12] Turning to the issues set out in Immigration New Zealand's letter of 5 June 2009, the representative addressed the three points which "they concluded" were the reasons for the employment not being skilled. The representative reiterated that the appellant's job description clearly stated that she was responsible for managing her shift. Her duties were not to assist the management team; they were to manage the restaurant for the duration of her shift.

[13] Nowhere in the job description was there a duty described as assisting the management team. She was a part of the management team and the fact that she was accountable to someone higher up the management chain did not mean that she was not management herself. The representative then stated:

"However, a Restaurant Manager, using [ABC]'s job titling system is what the ANZSCO Occupational List states 'CAFÉ AND RESTAURANT MANAGER, whose job it is 'to organise and control the operation of cafes, restaurants and related establishments to provide dining and catering services', but the skill level 1 management position as set out in ANZSCO Occupation 111211, CHIEF EXECUTIVES and GENERAL MANAGERS.

A restaurant manager is described in ANZSCO as a Skill Level 2 occupation and such a position holder is not required to 'organise and control the operation of the establishment', that task is however required of a Skill Level 1 manager - 'ANZSCO Occupation 111211, CHIEF EXECUTIVES, GENERAL MANAGERS - plan, organise, direct, control and review the overall operations of organisations and their major programs and plan, organise, direct, control and review the day-to-day operations and major functions of commercial, industrial, government and defense organisations through departmental managers and subordinate executives.'

The applicant holds an ANZSCO Skill Level 2 position and in that position she does not, and there is no requirement that she should, 'plan, organise, direct, control and review the overall operations of [the] organization, but she does 'organise and control the operation of [the] restaurant to provide dining and catering services.'

Please refer to the ANZSCO Occupational List for descriptions and the 'Tasks include' list for 111211 CHIEF EXECUTIVES, GENERAL MANAGERS and 14111 CAFÉ AND RESTAURANT MANAGERS, which are attached. Please note that the qualification requirement for such a manager is a Bachelor Degree, while the qualification requirement for a Level 2 Restaurant Manager is a Diploma, which also reflects the different skill levels involved."

[14] The representative noted that the appellant was not required to demonstrate that she performed all of the tasks listed for the position; the policy required only that the tasks performed by an applicant substantially match those listed for the employment. He contrasted the appellant's position, in a restaurant where she managed eight to ten staff each day, with those of a manager of a small restaurant with a much smaller staff. The restaurant the appellant managed had a strict management structure identical in every [ABC] restaurant across the country. The appellant advised that the tasks she performed required a much higher level of management competence, specialist and technical experience and skills and that her training was ongoing and ever adapting.

Immigration New Zealand Decision

[15] In a letter dated 4 August 2009, Immigration New Zealand advised the appellant of its decision to decline her application on the basis that her role did not substantially match the tasks outlined for a position of Café and Restaurant Manager, that the reporting line established that she was not a Café or Restaurant Manager and that her salary as a Restaurant Manager was the same as when she was scheduled to work as an elite crew member.

GROUNDS OF APPEAL

[16] 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."

[17] The appellant appeals on the ground that the decision of Immigration New Zealand was not correct in terms of the applicable Government residence policy.

[18] The representative provides submissions, dated 10 September 2009. Those submissions will be addressed below.

ASSESSMENT

[19] The Board has been provided with the immigration files in relation to the appellant and has also considered the submissions and documents provided on appeal. An assessment as to whether the Immigration New Zealand decision to decline the appellant's application was correct in terms of the applicable Government residence policy is set out below.

[20] The application was made on 13 November 2008, and the relevant policy criteria are those in Government residence policy as at that time.

"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.

b. The occupation is included in part B 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, level four on the Register (see SM14.5) (a qualification at level four on the Register must be a National Certificate); or

ii 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.

c. The occupation is included in part C 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 has either:

i at least three years of relevant recognised work experience and a relevant recognised qualification which is at, or above, level four on the Register (see SM14.5) (a qualification at level four on the Register must be a National Certificate); or

ii at least three years of relevant recognised work experience and that current employment or the position in which the employment is offered, has an annual base salary of at least NZ$45,000.

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Note: For the avoidance of doubt, the annual base salary excludes employment related allowances (for example overtime, tool or uniform allowances, medical insurance, accommodation) and must be calculated on the basis of 40 hours' work per week.

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d. Where a principal applicant's* offer of employment or current employment in New Zealand does not meet the requirements of (a), (b), or (c) above they may nevertheless qualify for points for skilled employment if:

i their employment in the occupation will enhance the quality of New Zealand's accomplishments and participation in that occupational area because the principal applicant has an international reputation and record of excellence in that field; and

ii the required expertise for the occupation has been gained through relevant recognised qualifications or work experience.

Effective 28/07/2008"

[21] Immigration New Zealand accepted that the appellant had a relevant recognised qualification in the form of a Level 5 National Diploma in Hospitality Management.

[22] As will be clear from the foregoing, the issue was whether the role the appellant held at [ABC] was in fact skilled employment. The appellant claimed the position was Café or Restaurant Manager. The Australian and New Zealand Standard Classification of Occupations First Edition (ANZSCO) provides:

"UNIT GROUP 1411 CAFE AND RESTAURANT MANAGERS

CAFE AND RESTAURANT MANAGERS organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.

Indicative Skill Level:

Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

In Australia:

AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

In New Zealand:

NZ Register Diploma (ANZSCO Skill Level2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

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

Occupation:

141111 Cafe or Restaurant Manager

141111 CAFE OR RESTAURANT MANAGER

Alternative Titles:

Food and Beverage Manager

Restaurateur

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

Skill Level: 2"

[23] Café or Restaurant Manager is listed as a Skill Level 2 position in Part A of Appendix 11. The appellant was also required to demonstrate that her employment substantially matched the description for that occupation set out in the ANZSCO.

[24] The Board is not satisfied that Immigration New Zealand has ever conducted a proper assessment of the appellant's role as lifted from the position description, against the Café and Restaurant Managers task list in the ANZSCO.

[25] Two things are apparent to the Board. First, Immigration New Zealand has focussed almost exclusively on the one line in the position description which records the people to whom the appellant must report, namely the Assistant Restaurant Manager and the Restaurant Manager. It appears little or no attention has been given to the rest of the two-page position description, which includes a statement of purpose, a list of eleven core competencies and a list of six (with multiple bullet-point sub-details) primary responsibilities and activities.

[26] In the final assessment, a document headed "SMC Case Summary", the immigration officer noted:

"The job description provided with her employment contract does not substantially matched (sic) the description for the occupation under ANZSCO 141111 - Café and Restaurant Manager. According to her job description she leads, implements, identifies, recommends, resolves issues in conjunction with the management team. I am therefore not satisfied that her job is that of a Manager."

[27] The penultimate sentence is a poor representation of the factors listed under the first primary responsibility, which is "leads shift operations". To merely repeat the first word of each sub-task, without reproducing the entire list or the rest of the task description in a meaningful way, suggests that Immigration New Zealand has not properly turned its mind to a true comparison of the appellant's responsibilities and activities with the tasks in the ANZSCO list.

[28] Rather than concentrating on the question of who the appellant answers to, proper consideration should also have been given to the list of tasks in Unit Group 1411; for example, does the appellant plan menus, arrange the purchasing and pricing of goods or select, train and supervise the "waiting" and kitchen staff?

[29] The other matter of concern is that, in the letter of 5 June 2009, the immigration officer stated that he was not satisfied that the appellant's present employment "requires considerable specialist, technical or management expertise". See above at paragraph [9]. The requirement for the specified expertise to be "considerable" was a part of previous policy and is not relevant in terms of this appellant's application. Although the immigration officer applied the correct policy, the Board is concerned that what was required to be demonstrated by the appellant was not entirely clear to the immigration officer. The appellant is entitled to be confident that her application has been fairly assessed.

[30] With respect to the appellant's expectations, the Board notes that her representative has addressed at length his view that the assessment of her application has been in some respects unfair, as, in his view, she has been required to establish the same fact or facts over and over again.

[31] In fact, the appellant was required to address the question of whether her employment was skilled or not at the time of the assessment of her Expression of Interest. However, as the representative noted, the processing of an Expression of Interest is a different exercise from that of assessing an application for residence. Even if the first immigration officer, on balance, regarded it as appropriate to proceed to the next stage, an invitation to apply, that does not relieve the appellant of the obligation under residence policy to satisfy Immigration New Zealand that she meets policy in all respects.

[32] The assessment of the residence application cannot be bypassed, truncated or in any way compromised by the previous process of assessing the Expression of Interest. To do so would be to undermine the purpose of having a promulgated residence policy and would be at odds with the intent and purpose of both the Act and the policy.

STATUTORY DETERMINATION

[33] 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.

[34] The Board therefore cancels the decision of Immigration New Zealand. 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

1. The application is to be assessed by an immigration officer with no previous association with the file and with no further lodgement fee payable by the appellant.

2. Immigration New Zealand is to assess the appellant's position description as provided with the offer of employment against the provisions in the ANZSCO relating to Café and Restaurant Managers. When that assessment has been completed in a thorough manner, the appellant is to be put on notice of any shortcomings Immigration New Zealand considers may exist. The comparison is to be based on the entirety of the position description, and not simply the fact that the appellant is said to report to an assistant manager and the manager or on an abbreviated assessment of the responsibilities in her job description.

3. Immigration New Zealand is to give full and appropriate consideration to the representative's explanation of the roles of the assistant manager and manager within the [ABC] management structure.

4. Immigration New Zealand should also address the question of the appellant's hourly rate, which is identified in the schedule to her contract of employment as being the same whether she is employed as [a] crew member or an hourly manager. That matter was raised with the appellant but, because the focus of the final assessment fell almost exclusively on the ANZSCO task list, was not satisfactorily resolved.

[35] The appeal is successful in these terms. The appellant is to understand that the reassessment does not guarantee a successful outcome; the Board is directing a reassessment to ensure that the particular aspect of Immigration New Zealand's decision that was not conducted properly is now properly executed.

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M A Poole

Member

Residence Review Board