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Residence Appeal No: 16368 [2010] NZRRB 33 (16 February 2010)

Last Updated: 13 January 2011

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DECISION

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INTRODUCTION

[1] The appellant is a citizen of China, aged 28 years. She is single. She is currently in New Zealand.

[2] This is an appeal against the decision of Immigration New Zealand (INZ) declining the application because it found that the appellant's employment was not skilled. The principal issues for the Board are whether INZ was correct to decline the application on the grounds that the position offered to the appellant was not one which required considerable specialist, technical or management expertise, and if so, whether the appellant has special circumstances that warrant consideration by the Minister of Immigration of an exception to policy.

BACKGROUND

[3] The appellant lodged her expression of interest under the Skilled Migrant category on 5 December 2007. She was invited to apply for residence by letter dated 12 December 2007, at which time the minimum selection criteria was 100 points.

[4] The appellant tendered her application for residence on 22 January 2008. She claimed 60 points for skilled employment as a Retail and Shop Manager (New Zealand Standard Classification of Occupations (NZSCO) Code 12263). She stated that her job title was Deputy Store Manager and her main duties included supervising and training other shop staff, reporting, marketing of products, establishing and managing the shop, and running the shop within the requirements of the city council and other authorities. She noted that her employment was consistent with her tertiary qualification, a Diploma in Business.

[5] In addition to 60 points for skilled employment, the appellant claimed 30 points for her age, 50 points for her qualification, 5 bonus points for her New Zealand qualification and 5 points for her New Zealand work experience, making a total of 150 points.

First Offer of Employment

[6] On 12 August 2008, INZ wrote to the appellant's employer requesting that it complete an employer questionnaire and provide various documents and information. The employer responded by letter dated 22 August 2008 enclosing the completed questionnaire and requested material.

[7] On 11 September 2008, an INZ verification officer conducted a telephone interview with the appellant to verify her employment. The verification officer questioned her in detail about her employment and her duties, asked her to explain the duties set out in her job description and to address how her role related to the key tasks set out for a Retail Manager in the NZSCO.

[8] In the verification report, dated 12 September 2008, the officer recorded that, while the appellant was working at the store, her role had been inflated and she did not carry out many of the duties set out in her job description, nor those listed in the NZSCO for a Retail Manager. The appellant was unable to answer many of the questions put to her, particularly those relating to her job description and the tasks of a Retail Manager set out in NZSCO. The verification report notes that this appeared to relate to unfamiliarity with the terms and phrasing used in her job description rather than her ability with the English language as she was able to understand and be understood in general conversation.

Potentially prejudicial information put to the appellant

[9] By letter dated 27 November 2008, INZ put to the appellant that her employment did not appear to be skilled and referred to policy at SM7.10.1.a.ii. INZ asserted that the appellant's position title and job description described a position primarily focused on the supervision of staff and assisting in the operation of a retail store under the direction of the director of the company employing her. She was not therefore responsible for the overall planning and organising of a retail business as described in NZSCO Code 12263. She was invited to comment or provide additional information by 18 December 2008.

Second Offer of Employment

[10] On 10 December 2008, INZ received a new offer of employment made to the appellant by her existing employer as a Personal Assistant to the director, with an increase in salary from $32,000 per annum to $50,000 per annum, commencing on 7 December 2008. In response, on 10 December 2008, INZ wrote to the appellant's employer noting that the offer of employment was made two days after its letter of 27 November 2008, and asking how the offer of employment came about and why the position was required at that time. INZ also invited the employer's comments on why the appellant's position included directorship authority in the director's absence and requested a copy of the appellant's employment agreement and position description.

[11] The appellant's employer responded on 12 December 2008 enclosing her employment agreement and position description and explained that due to expansion of the business, the appellant had taken on extra responsibilities and that was why she was offered the new position as the director's Personal Assistant.

[12] The appellant departed New Zealand on 24 January 2009 and returned on 9 March 2009.

[13] On 2 April 2009, an INZ verification officer conducted a further telephone interview with the appellant to verify her employment. At the time of interview, the appellant had been in her new role for approximately four months, but had spent approximately six weeks of that period outside of New Zealand. Once again, she was questioned about her current role and the tasks set out in her job description.

[14] The verification officer recorded that it still appeared to be the case that the appellant was not carrying out many of the tasks specified in the job description. The verification report, dated 2 April 2009, noted that the appellant continued to work as Deputy Store Manager four days per week while spending two days at another location undertaking duties as the director's Personal Assistant and that the appellant was very vague about what she did, particularly in relation to her new role.

[15] Specifically, the verification report recorded that the appellant did not appear to understand, or be able to explain, a number of the tasks set out in her new job description. These tasks included establishing and managing retail stores in New Zealand, monitoring customer service philosophy in all service lines within group operations and deputising for the director and making decisions and delegating work to senior managers in the director's absence in all retail stores in Auckland. Further, in relation to some tasks in her job description, specifically "supporting and marketing of [the company's] products" and "meeting expected standard and relevant requirements from City council and other authorities", the appellant indicated that they were not part of her role. The verification officer's notes record that when the appellant was asked what she did that was different from her previous role, she responded that she emailed and faxed suppliers and scheduled appointments with her boss.

Potentially prejudicial information put to the appellant

[16] On 5 May 2009, INZ wrote to the appellant again advising that it did not consider her employment to be skilled and drawing her attention to SM7.10.1.a.ii. In its assessment, INZ found that the role of Personal Assistant fell under NZSCO Code 41141 and was not included on the list of skilled occupations (Appendix 11). In addition, INZ found that the appellant's current role included duties from two other occupations: Sales Assistant and Duty Manager/Supervisor. Her role as "Duty Manager/Supervisor" had previously been assessed as unskilled. Sales Assistant fell under NZSCO 52111 and was also not on the list of skilled occupations.

[17] INZ set out in detail the information garnered from the verification officer's interview with the appellant, including her responses to questions regarding the tasks set out in her job description. INZ asserted that the tasks undertaken by the appellant in her role did not require considerable specialist, technical or management expertise. The appellant was invited to comment or provide additional information by 26 May 2009.

[18] The director of the appellant's employer responded on 25 May 2009. He indicated that the appellant's continuing role as Deputy Store Manager was temporary and was a consequence of the business's expansion combined with the current economic climate and the need for staff to be flexible. The director stated that he had plans to recruit more store assistants for the four new shops the company had opened. He asserted that the appellant had misunderstood the interview questions about her job as she thought INZ was asking about "the current role she was working on" and that she worked closely with the senior management team, involved herself in marketing, inventory management, staff training and purchasing planning.

[19] INZ subsequently received an undated letter from the employer's marketing manager addressing the appellant's role in marketing, including attending monthly meetings, having input into marketing campaigns, product promotions and advertising material and communicating marketing plans to store managers.

INZ Decision

[20] By letter dated 11 August 2009, INZ declined the appellant's application for residence because it was not satisfied that her offer of employment met the requirements of SM7.10.1.a.ii (effective 13 December 2004) for the reasons addressed above.

GROUNDS OF APPEAL

[21] 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."

[22] The appellant appeals on the ground that the decision of INZ was not correct in terms of the applicable Government residence policy.

[23] The appeal form was accompanied by a letter from the appellant's employer dated 15 September 2009. No additional documents are produced to the Board.

ASSESSMENT

[24] The Board has been provided with the INZ file in relation to the appellant and has also considered the submissions and documents provided on appeal. 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. This is followed by consideration as to whether the appellant's special circumstances warrant consideration of an exception to policy.

[25] The application was made on 22 January 2008 and the relevant policy criteria are those in Government residence policy as at that time.

Skilled Migrant Policy

[26] The relevant provisions of skilled migrant policy are set out below.

"SM7.10 Skilled Employment

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

i obtained through the completion of recognised qualifications; or

ii obtained through work experience that has enabled a person to gain a comparable level of skill to that which would have been gained through the completion of a relevant recognised qualification; or

iii developed through work experience in which that expertise was a key component.

SM7.10.1 Assessment of whether employment is skilled

An offer of employment or current employment in New Zealand will therefore be assessed as skilled if:

a.

i it is relevant to the principal applicant's* recognised qualification; and

ii it requires considerable specialist, technical or management expertise; ...

...

Effective 13/12/2004"

[27] The employment on which the appellant relies must be skilled employment as defined in policy. SM7.10 "Skilled Employment", set out above, indicates that to be skilled, employment must require "considerable specialist, technical or management expertise". That expertise can be obtained in one of three ways.

[28] The appellant asserted that she had obtained the expertise through the completion of her Diploma in Business. INZ accepted that the appellant's qualification was relevant to her employment and as such she met the requirements of SM7.10.1.a.i. However, it found that her employment
did not require considerable specialist, technical or management expertise (SM7.10.1.a.ii).

[29] In Residence Appeal No 14873 (8 June 2006), the Board stated that the word "considerable" set a high threshold. At paragraphs [37]-[38] the Board stated (verbatim):

"[37] The Board finds that the wording of the policy establishes a high threshold, appropriate to the intent of the policy. The word "considerable" clearly signals that something above average is envisaged; something notable and important, something not "run of the mill" or insignificant. In order to be "skilled employment", the position under assessment must require a level of expertise, in one of the three areas identified, that is above the average, that is "notable", and "significant"; expertise that is "worth consideration" because it is more than ordinary (see Concise Oxford Dictionary, Eighth Edition).

[38] "Considerable expertise", then, can be regarded as a high threshold, setting the benchmark for skilled employment at a level requiring something more than an ordinary employment opportunity."

[30] In assessing both the appellant's first and second offers of employment, INZ found - based on the two verification interviews with the appellant - that the tasks she undertook in the course of her employment were substantially less skilled than those set out in the job descriptions for each role. INZ concluded that the appellant's employment was not skilled.

[31] The appeal turns on whether the appellant's second offer of employment required considerable specialist, technical or management expertise. The title of the appellant's role was "Personal Assistant". This suggests a secretarial/administrative role. The key responsibilities are set out briefly in one paragraph in the employment agreement and repeated verbatim in the job description without further elaboration. The job description states:

"Key responsibilities of the position will include

‹› Establish and manage the retail stores in New Zealand (including the health & safety) under the director's supervision

‹› Supervising and training of other store staff.

‹› Supporting and marketing of [the company's] products

‹› Meeting expected standard and relevant requirements from City council and other authorities

‹› Liaising with clients, suppliers and other staff;

‹› Deputizing for the director, making decisions and delegating work to senior managers in the director's absence in all retail stores in Auckland

‹› To provide personal secretarial and administrative assistance to the Director.

‹› Monitoring customer service philosophy in all service lines within group operations

‹› To organize the staff meetings, promotions and events as delegated."

[32] A number of the responsibilities sit uncomfortably with the title of the position and with each other. In particular, the mix of secretarial and administrative assistance with management responsibility is perplexing. During the verification interview, the appellant was unable to explain or elaborate on three of the responsibilities and stated that two of them were not part of her role.

[33] It is not possible for the Board to determine, based on the key responsibilities, job title and salary, whether the role described is skilled. Nor is it necessary for it to do so because, as discussed below, the Board concurs with INZ's conclusion that the appellant was not in fact undertaking many of the tasks set out in the job description.

[34] With regard to INZ's assessment of the appellant's second offer of employment, her employer asserted that the appellant had misunderstood the verification interview questions about her job as she thought INZ was asking about "the current role she was working on". It is clear from the record of interview dated 2 April 2009 that the focus was on the appellant's role as a Personal Assistant to the director. The preliminary questions put to the appellant established that she had started a new role, with a new salary, and new title in November 2008. The subsequent questions addressed each of the tasks set out in the job description for that role. The Board is not persuaded that the appellant's duties and answers at interview were the consequence of a temporary staffing shortage experienced by the employer. The appellant simply had little understanding of the job description.

[35] The Board finds that INZ's assessment, that the actual tasks undertaken by the appellant varied considerably from those set out in her job description and were less skilled than those set out in her job description, is correct.

[36] Further, the Board finds that the appellant's employment does not require considerable specialist, technical or management expertise. It is clear from INZ's record of the verification interviews with the appellant that her role was primarily that of a Retail Sales Assistant and Supervisor. Her management role was limited and there was nothing about the tasks she actually undertook in her role as a Personal Assistant that required considerable specialist, technical or management expertise.

[37] The Board notes that INZ's decline letter wrongly records that the appellant's employer failed to respond to its email of 10 December 2008. In fact, the employer responded on 12 December 2008. However, nothing turns on this error. The Board is satisfied that INZ's assessment of whether the employment was skilled would not have differed had it taken into account the employer's response.

[38] The Board finds that the INZ decision to decline was correct in terms of the applicable Government residence policy.

New Evidence on Appeal

[39] The appellant's employer has written to the Board in support of her appeal. The letter, dated 15 September 2009, addresses inter alia aspects of the history of the appellant's employment, INZ's assessment of whether her employment is skilled, and her achievements subsequent to her promotion to the position of Personal Assistant. The letter contains submissions made on behalf of the appellant, information previously provided to INZ during the course of the residence application, and new information, including reference to changes in the business since May 2009.

[40] The extent to which the Board is able to take into account new information and evidence on appeal is constrained by the provisions of sections 18F(4) to (9). In particular, section 18F(4)(b) provides:

"(4) Subject to subsections (4A) to (7), the Board, in determining the appeal, -

(a) may seek and receive such information as it sees fit, and consider information from any source; but

(b) May not consider any information or evidence adduced by the appellant that was not provided to the visa officer or immigration officer before the time at which that officer made the decision on the application for the residence visa or residence permit that is the subject of this appeal."

[41] With regard to the new information set out in the appellant's employer's letter, the Board finds that it does not fall within any of the exceptions set out in sections 18F(4A) to 18F(7). In particular, any relevant information contained in the letter which existed prior to the INZ decision could, by reasonable diligence, have been placed before INZ at the time of the decision. With regard to information concerning matters subsequent to the INZ decision, the Board finds that it does not relate to a particular event that has occurred after the time of the INZ decision and which materially affects the appellant's eligibility for residence.

[42] The Board may, and does, take into account the employer's letter for the purpose of considering whether the appellant has special circumstances, in accordance with section 18F(4A)(b).

Special Circumstances

[43] The Board has power pursuant to section 18D(1)(f) of the Act to find, where it agrees with the decision of INZ, that there are special circumstances of an appellant that warrant consideration by the Minister of Immigration of an exception to policy.

[44] Whether an appellant has special circumstances will depend on the particular facts of each case. The Board balances all relevant factors in each case to determine whether the appellant's circumstances, when considered cumulatively, are special. Special circumstances are "circumstances that are uncommon, not common place, out of the ordinary, abnormal"; He v Chief Executive of the Department of Labour (High Court, Wellington CIV 2008-485-1300, 13 November 2008, Ronald Young J) at [42].

Personal information

[45] The appellant is a 28 year-old citizen of China. She is single. Her parents reside in China and she has no siblings.

[46] The appellant's residence application was declined because her employment was not skilled. INZ concluded that she was not in fact undertaking many of the more skilled tasks set out in her job description.

Health and character

[47] INZ found that the appellant met the health and character requirements of policy.

Qualifications and work experience

[48] The appellant first arrived in New Zealand in October 2001 as the holder of a student visa. Since then, she has spent time in New Zealand as the holder of a student permit, visitor's permit and work permit. In 2006, she completed a New Zealand qualification, specifically a Diploma in Business with a major in marketing. The appellant studied for one year to obtain her Diploma. It is a New Zealand Qualifications Authority level 5 qualification. It is not clear from the material before the Board whether the appellant completed any additional qualifications during her other periods of study in New Zealand.

[49] The appellant has held a work permit since December 2006. She has been with her current employer since September 2007. The appellant is clearly valued by her employer who has supported her application for residence and supports her appeal. In his letter of 15 September 2009, the appellant's employer refers to her performance and achievements in her new position and her good understanding of the New Zealand health product market. No further evidence has been produced to demonstrate to the Board that the appellant is currently undertaking the tasks set out in the job description provided with her second offer of employment.

[50] The appellant's skills are not on the Immediate Skill Shortage List or the Long Term Skill Shortage List. There is nothing in the evidence submitted to suggest that the appellant has any special skills or particular contribution to make to the New Zealand workforce or community.

Nexus to New Zealand

[51] The Board recognises that the appellant has spent much of the preceding nine years in New Zealand as a student, visitor and worker. The completion of a one year Diploma in Business and her employment for approximately three years demonstrates that she has made some progress towards settling in New Zealand. However, other than her periods of study and employment here, the appellant has not demonstrated any particular nexus to New Zealand.

Discussion of special circumstances

[52] The appellant wishes to remain in New Zealand, is employed here and has made progress toward settling, but no feature of her circumstances is uncommon or out of the ordinary. She has no family nexus to New Zealand, nor does she have any special skills or particular contribution to make.

[53] Considered cumulatively, the Board finds that the appellant's circumstances are not special and do not warrant the Board recommending that the Minister consider making an exception to policy in this case.

STATUTORY DETERMINATION

[54] This appeal is determined pursuant to section 18D(1)(a) of the Immigration Act 1987. The Board confirms the decision of INZ to decline the appellant's application for residence as correct in terms of the applicable Government residence policy. The Board does not consider that special circumstances exist which warrant consideration by the Minister of Immigration as an exception to that policy under section 18D(1)(f) of the Act.

[55] The appeal is unsuccessful.

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J Donald

Member

Residence Review Board