D K Smallholme (Member) Date of Decision: 14 December 2015 RESIDENCE DECISION

Transcription

1 IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2015] NZIPT AT AUCKLAND Appellant: GL (Skilled Migrant) Before: D K Smallholme (Member) Representative for the Appellant: The appellant represents herself Date of Decision: 14 December 2015 RESIDENCE DECISION [1] The appellant is a 27-year-old citizen of Russia, whose application for residence under the Skilled Migrant category was declined by Immigration New Zealand. THE ISSUE [2] Immigration New Zealand declined the appellant s residence application because it was not satisfied that her role as a cafe manager substantially matched the Australian and New Zealand Standard Classification of Occupations (ANZSCO) description, including core tasks, of a Cafe and Restaurant Manager; and because her employment was not sustainable. Without points for skilled employment, the appellant did not meet the minimum selection criteria of the Skilled Migrant category. [3] The principal issue for the Tribunal is whether Immigration New Zealand was correct when it concluded that the appellant did not organise and control the operations of the cafe at which she worked, because of the extent of the owner s involvement in its day-to-day operations. [4] For the reasons that follow, the Tribunal finds that Immigration New Zealand s decision to decline the application was correct. The extent of the

2 2 owner s role in the cafe significantly diminished the appellant s opportunity to organise and control the operations of the cafe. [5] As the appellant s role was not a substantial match to the ANZSCO description of the occupation of a Cafe or Restaurant Manager, it is not necessary for the Tribunal to determine whether the appellant s employment at the cafe was sustainable, as required by instructions; nor whether she was entitled to points for her work experience or bonus points for work experience in New Zealand. [6] The Tribunal also finds the appellant does not have special circumstances, arising from her qualifications and employment, such that warrant consideration by the Minister of Immigration of an exception to the residence instructions. BACKGROUND [7] The appellant made her application for residence under the Skilled Migrant category on 7 January She claimed 50 points for skilled employment in New Zealand for less than 12 months, as she considered her position as a cafe manager substantially matched the ANZSCO description, including core tasks, of a Cafe or Restaurant Manager. In total, the appellant claimed 165 points. [8] In support of her application, the appellant provided a copy of her employment agreement and the job description for her position as cafe manager at a fully licensed cafe serving European food. The primary functions of the appellant s role were to oversee the running of the cafe, ensure its efficient management, and to be responsible for all cafe service staff. The appellant reported to the cafe owner. She was paid a salary of $40,000. Assessment of Application [9] On 2 March 2015, the sole director of the company that employed the appellant ( the owner ) completed an Immigration New Zealand questionnaire. [10] The owner stated the appellant had control over all of the day-to-day operational business matters of the cafe. She interviewed and hired staff, and arranged meetings, rosters and training; completed daily checks of food, beverage and equipment supplies; made coffee, ordered and served food; took orders and bookings and operated the till; communicated with customers, suppliers and staff; and priced items and prepared analytical reports.

3 3 [11] The owner stated he performed the same tasks as the appellant but, as he was in charge, he had additional responsibilities and tasks for accounting, payroll and company tax obligations. He was at the cafe mostly daily, but could be away for business meetings with suppliers, sometimes several times a day, and was on site for the entire day on Mondays, which was the appellant s day off. [12] The owner provided an organisational chart for the cafe which showed there were three employees; the appellant, the head chef and chef. [13] On 6 March 2015, Immigration New Zealand conducted a telephone interview with the appellant about the nature of her role. Immigration New Zealand s record of the telephone interview indicates the appellant stated she ran the cafe, managed staff, and prepared financial and sales reports for the owner. She gave examples of how she planned menus with the chef, organised special functions, and purchased and priced some menu items. Together with the owner, she maintained stock levels and records of financial transactions. [14] The owner set the budget and was also involved (but to a lesser degree than the appellant) in purchasing goods, recording stock levels, maintaining records of financial transactions, taking reservations and orders, and in selecting and hiring staff. The owner was around every weekend, and worked on Mondays (her day off); but he did not stay on other days. When the owner was around they shared responsibility for the operations of the cafe equally. The owner had the final say in decision making. [15] There were two chefs and two casual staff, who reported to the appellant. The two casual staff members were volunteer[s]. The appellant spent about 50 per cent of her time on the floor. [16] On 9 and 11 March 2015, the owner responded to Immigration New Zealand s request that he clarify the employment status of the two casual staff members. The owner explained the cafe participated in the Gateway Programme (a secondary school student-training programme) and participating students attended in school hours as part of the school hospitality course; and that his friend worked casually at the cafe, as a volunteer, in order to gain confidence and work experience in the hospitality sector.

4 4 Immigration New Zealand s Concerns [17] On 17 March 2015, Immigration New Zealand wrote to the appellant with its concerns about whether her role was a substantial match to the ANZSCO description, including core tasks, of the Unit Group of Cafe and Restaurant Managers. It also raised concerns as to whether her employment was ongoing and sustainable, and whether she was entitled to points for her work experience. [18] The appellant responded to Immigration New Zealand s concerns on 29 March She considered that Immigration New Zealand had not correctly understood the information she had provided about her role during the telephone interview. She provided more information about her responsibilities, particularly in relation to each of the core tasks. Immigration New Zealand Decision [19] On 7 April 2015, Immigration New Zealand declined the appellant s application because it was not satisfied her role was a substantial match to the ANZSCO description, including core tasks, of the occupation of a Cafe or Restaurant Manager. While it accepted that the appellant performed some aspects of the ANZSCO core tasks of the Unit Group for Cafe and Restaurant Managers, the owner s role in the day-to-day operations of the cafe limited the appellant s ability to organise and control the cafe. Immigration New Zealand also found the appellant s employment was not sustainable. [20] The appellant was awarded 85 points, being: 30 points for her age, 50 points for her qualification and 5 bonus points for her New Zealand qualification. Immigration New Zealand did not award the appellant any points for skilled employment, for work experience or bonus points for New Zealand work experience. However, even had the appellant been awarded the additional points she claimed for work experience, she did not meet the minimum selection criteria for the Skilled Migrant category without points for skilled employment.

5 5 STATUTORY GROUNDS [21] The appellant s right of appeal arises from section 187(1) of the Immigration Act 2009 (the Act). Section 187(4) of the Act provides: (4) The grounds for an appeal under this section are that (a) (b) the relevant decision was not correct in terms of the residence instructions applicable at the time the relevant application for the visa was made; or the special circumstances of the appellant are such that consideration of an exception to those residence instructions should be recommended. [22] The residence instructions referred to in section 187(4) are the Government residence instructions contained in Immigration New Zealand s Operational Manual (see THE APPELLANT S CASE [23] On 22 May 2015, the appellant lodged this appeal on the ground that the decision of Immigration New Zealand was not correct in terms of the applicable residence instructions. [24] In support of her appeal, the appellant provided written submissions and copies of the correspondence exchanged with Immigration New Zealand. A number of documents containing information not previously provided to Immigration New Zealand were produced in support of the appeal. These included letters from a supply sales manager, the chef, the company accountant and a further letter from the owner. [25] The Tribunal cannot consider this further evidence when determining whether or not Immigration New Zealand's decision was correct, because it was not before Immigration New Zealand when it made its decision and no reasons were advanced by the appellant as to why it could not have been placed before Immigration New Zealand with reasonable diligence (section 189(1) and (3)(a) of the Act). However, this evidence is taken into account when determining whether the appellant has special circumstances (as per section 189(3)(b) of the Act).

6 6 ASSESSMENT [26] The Tribunal has considered the submissions and documents provided on appeal and the file in relation to the appellant s residence application which has been provided by Immigration New Zealand. [27] An assessment as to whether the Immigration New Zealand decision to decline the appellant s application was correct in terms of the applicable residence instructions is set out below. Although not relied upon as a second ground of appeal, the Tribunal also assesses whether the appellant has special circumstances which warrant consideration of an exception by the Minister of Immigration. Whether the Decision is Correct [28] The application was made on 7 January 2015 and the relevant criteria are those in residence instructions as at that time. Immigration New Zealand declined the application because the appellant s employment was not a substantial match to the description of the ANZSCO description, including core tasks, of a Cafe or Restaurant Manager (ANZSCO ). It considered that the owner s role in the day-to-day operations of the cafe limited the appellant s duties to customer service, with some supervisory responsibilities. [29] The relevant instructions in this case are SM7.10 and SM a. Paragraph SM7.10 states that skilled employment requires specialist, technical or management expertise. The assessment of whether an occupation is skilled is primarily based on the ANZSCO. [30] Paragraph SM a states that employment will be assessed as skilled if there is a substantial match between an applicant s employment and the ANZSCO description, including core tasks, for a skilled occupation: SM 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 6 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:... Effective 14/05/2013

7 7 [31] The occupation of a Cafe or Restaurant Manager is included in Part A of the List of Skilled Occupations at Appendix 6 of Government residence instructions. The ANZSCO describes a Cafe or Restaurant Manager as someone who: Organises and controls the operations of a cafe, restaurant or related establishment to provide dining and catering services. [32] The Unit Group 1411, Cafe and Restaurant Managers, under which the occupation of Cafe or Restaurant Manager is included, outlines eight core tasks as follows: 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 [33] A substantial match is a question of fact and degree in the context of the applicant s employment (Residence Appeal No (20 November 2009) at [48]). It should be determined on a holistic basis, taking into account not only the list of tasks but also the specific characteristics of an applicant s employment (Residence Appeal No (29 September 2009) at [47]). [34] The appellant worked as the manager of a small cafe serving European food. It offered breakfast and brunch, and also dinner on some days of the week. Other than the appellant, there were two permanent staff members who were chefs; two casual staff members, who were not paid for their work; and occasionally, secondary school students on vocational training. [35] The appellant divided her time equally between providing customer service (for example, by taking orders for food, making coffee, and serving food), and organisational tasks (such as purchasing stock, maintaining records and preparing reports for the owner). The owner of the business was actively involved in the day-to-day operation of the cafe. Substantial match [36] The appellant undertook the core tasks of ensuring dining facilities complied with health regulations, and were clean, functional and of suitable appearance; conferring with customers to assess their satisfaction with meals and service; and took reservations, greeted guests and assisted in taking orders.

8 8 [37] As to the remaining core tasks, Immigration New Zealand was not satisfied the appellant planned menus or arranged the purchasing and pricing of goods according to budget. It concluded that planning and organising special functions; maintaining records of stock levels and financial transactions; and selecting, training and supervising waiting and kitchen staff, were not core aspects of the appellant s role. [38] The owner stated he planned menus, together with the appellant and the chef. The appellant s evidence, as to her part in menu planning, was that she had made minor adjustments to the existing menu (for example, adding avocados to the eggs benedict and changing the presentation of the beef goulash dish) after discussion with the chef; she had developed a new dessert menu in March 2015; and she placed some daily menu items on special after she discussed the food supplies with the chefs. However, in reality the appellant s role in planning menus was limited. In conjunction with the chefs, she made only minor adjustments to the ingredients and presentation of existing menu items and occasionally put some meal items on special. [39] As to the core task of planning and organising special functions, the appellant stated she had organised a Christmas function for 32 people and various, smaller functions; for example, for a wedding anniversary. She stated she planned and organised the functions, in conjunction with the owner and the chefs. The owner stated they both organised these functions. Immigration New Zealand was correct to determine that planning and organising special functions was not a core aspect of the appellant s role. [40] The owner stated that either he or the appellant arranged the purchasing and pricing of food and beverages, maintained stock records and records of financial transactions. The appellant s evidence was that she placed orders with the suppliers; she entered every product into the computer software system, identified the pricing (with the assistance of the system and by comparing it with the price of similar products offered by other companies); and then discussed these prices with the owner. The Tribunal finds there was evidence that the appellant had a role in purchasing and pricing goods, and maintaining records of stock levels and financial transactions. However, the owner arranged the suppliers and set the budget for that expenditure. [41] The appellant stated, during the telephone interview, that she had interviewed and then selected a new kitchen staff member, but no corroborative evidence was provided. She had no involvement in the selection of the volunteers

9 9 or the casual staff who worked at the cafe from time to time. The volunteers were determined through the student-training programme in consultation with the owner. The appellant stated she supervised the volunteer staff as part of her day-to-day responsibilities by informing them about customer service, handling payments, and the cafe s policies and procedures. However, the arrangements with these volunteer staff lacked the formality of an employment agreement, and the fact they were infrequently present means the appellant s role in training and supervising staff was minimal. [42] Immigration New Zealand s conclusion that the appellant had a limited role in the remaining core tasks of the occupation of Cafe or Restaurant Manager was correct, for the reasons above. Organisation and control [43] Consideration must also be given to whether the appellant s role contains a sufficient managerial component as to be properly categorised as one which organises and controls the operations of the cafe, restaurant or related establishment to provide dining and catering services, as per the description for a Cafe and Restaurant Manager, taking into account the specific characteristics of the cafe in which the appellant worked. [44] The appellant was engaged in the day-to-day running of the cafe. She liaised with the owner and the chef about the meals offered and served, both generally and at special functions, and shared the responsibility for purchasing the food and beverage items with the owner. [45] However, the owner s involvement in the day-to-day operations of the cafe was significant. He was present at the cafe every day and, together with the appellant, he took reservations, greeted guests, placed food orders, planned menus, arranged the purchasing and pricing of food and beverage supplies, and maintained records of stock levels. He held sole responsibility for setting the budget, the level of remuneration for the paid staff, and for the company s accounting and taxation obligations. He had a financial interest in the performance of the business and, to this end, he organised and controlled the operations of the cafe. The extent of the employer s involvement significantly diminished the appellant s ability to organise and control the operations of the cafe.

10 10 [46] While the appellant performed a number of core tasks, the Tribunal finds that the organisation and control of the operations of the cafe rested with the owner. Conclusion on substantial match [47] Immigration New Zealand s finding that the appellant s position was not a substantial match to the ANZSCO description, including core tasks, of a Cafe or Restaurant Manager was correct. Procedural fairness [48] The appellant submits there were procedural flaws in the manner in which Immigration New Zealand s processed her application. She maintained the telephone interview was conducted during the extremely busy time [of] the breakfast rush hour and Immigration New Zealand had misunderstood her evidence. The appellant stated she had requested a copy of the voice record of the interview, but Immigration New Zealand was unable to provide her with any such record. [49] Immigration New Zealand is required to make decisions having regard to principles of fairness and natural justice (instruction A1.5, effective 29 November 2010). This includes considering only relevant information, providing the appellant with a reasonable opportunity to respond to harmful information, and giving appropriate reasons for declining an application. [50] Immigration New Zealand s written notes of the telephone interview indicate it lasted 50 minutes, commencing at 9.10 am and ending at am; and that 22 questions were asked of the appellant about different aspects of her role. The questions were almost all open-ended questions (designed to elicit information), rather than closed questions (asked with the purpose of confirming the information contained in the questions, usually with a yes or a no answer). One example of an open question asked of the appellant was recorded as: 3. Can you briefly explain the purpose of your role? [51] In terms of eliciting information about her role and whether it matched the ANZSCO description, including core tasks, of a Cafe or Restaurant Manager, the appellant was asked further, specific questions with reference to the core tasks of the occupation of a Cafe or Restaurant Manager. Examples of such questions were:

11 11 6. Who plans the menu? 7. Is there a menu that you have planned? By yourself? Explain? How do you come up with it? When was the dish incorporated into the menu? 8. Does the cafe hold special functions? Example? What was involved in the planning and organising? Who was in charge of which duties? [52] The written notes of the telephone interview demonstrate the appellant gave detailed responses to each of the questions, providing substantial information about the extent of her involvement in the day-to-day operations of the cafe. Having considered the detail contained in the written notes of the telephone interview, the Tribunal is not persuaded that Immigration New Zealand failed to correctly record the evidence given by the appellant; or that, if the interview was conducted when the appellant was busy, this affected her ability to provide a full response to the questions asked of her. [53] Finally, on this point, in concluding the appellant s role was not a substantial match to the ANZSCO description, including core tasks, of a Cafe or Restaurant Manager, Immigration New Zealand did not solely rely only on the information gathered during the telephone interview. It also relied on the information in the appellant s job description, the information provided by the owner when he completed the questionnaire, and the information provided by the appellant in her letter of 29 March 2015, written in response to Immigration New Zealand s concerns. [54] The appellant also submits Immigration New Zealand s decision was unfair because it failed to provide appropriate reasons for declining her application and incorrectly applied the relevant instructions. However, consideration of Immigration New Zealand s file establishes that it considered all relevant information including the relevant instructions; informed the appellant of its concerns; and provided appropriate reasons for its decision based on the evidence presented to it, when declining her application. [55] On appeal, the appellant submits another employee of the cafe had successfully obtained residence as a skilled migrant, relying on his or her employment at the cafe. She submits this demonstrates Immigration New Zealand failed to complete a fair and genuine assessment of her application. The Tribunal agrees that Immigration New Zealand s decisions should be consistent

12 12 and correct in terms of residence instructions (as required by A1.5.a of instructions). However, the Tribunal is confined to an assessment of the relevant facts and instructions in the appellant s case. The Tribunal cannot comment on Immigration New Zealand s actions in determining other applications for residence. [56] In terms of the appellant s application, the Tribunal is satisfied Immigration New Zealand considered all of the evidence presented in support of her application. Conclusion on procedural fairness [57] The Tribunal finds Immigration New Zealand s process was not unfair to the appellant and that it gave proper consideration to her application. Conclusion on correctness [58] Immigration New Zealand s decision was correct. The appellant s employment was not a substantial match to the ANZSCO description, including core tasks, of a Cafe or Restaurant Manager, and was not skilled employment. Without points for skilled employment, the appellant was entitled to only 85 points and did not meet the minimum selection criteria for the Skilled Migrant category. Whether there are Special Circumstances [59] The Tribunal has power pursuant to section 188(1)(f) of the Act to find, where it agrees with the decision of Immigration New Zealand, that there are special circumstances of an appellant that warrant consideration by the Minister of Immigration of an exception to the residence instructions. [60] Whether an appellant has special circumstances will depend on the particular facts of each case. The Tribunal balances all relevant factors in each case to determine whether the appellant s circumstances, when considered cumulatively, are special. [61] Special circumstances are circumstances that are uncommon, not commonplace, out of the ordinary, abnormal ; Rajan v Minister of Immigration [2004] NZAR 615 (CA) at [24] per Glazebrook J.

13 13 Personal and family circumstances [62] The appellant is a citizen of Russia, aged 27 years, who arrived in New Zealand in September 2009 as a visitor. She obtained a student visa in August 2010, and has held work visas since April The appellant has remained in New Zealand since her arrival, apart from short periods out of the country. She currently holds a work visa valid to 1 May [63] According to her application form, the appellant s parents and brother reside in Russia. [64] The appellant s application for residence was declined because her employment was not a substantial match to the ANZSCO description, including core tasks, of the occupation of a Cafe or Restaurant Manager. English language, health and character requirements [65] Immigration New Zealand was satisfied the appellant had an acceptable standard of health and met the English language requirements of residence instructions. The appellant presented clear police certificates from Russia and New Zealand. Qualifications and work experience [66] The appellant holds two Level 5 qualifications, being a Diploma in Tourism (Management) and a Diploma in Business, obtained from a New Zealand institute in November 2011 and December 2011 respectively. She worked as a crew trainer for McDonalds from November 2010 to April 2014, initially part-time; as the assistant manager for the cafe in which she presently works from April 2014; and she has worked in her present position as the cafe manager from 20 October The appellant s current annual salary is $40,000. [67] The appellant s contribution to the cafe in which she works is valued by the owner. He describes the appellant as very approachable, organised and respected. He considers her work has dramatically improved the productivity of the cafe. [68] One of the chefs who works at the cafe states the appellant s approach to her work is highly professional and greatly respected. She gives comprehensive instructions and takes on all issues with enthusiasm and dedication.

14 14 Settlement in New Zealand [69] No information about the appellant s settlement in New Zealand has been provided to the Tribunal; however the Tribunal accepts that after six years in New Zealand she will have made friends and connections here. Discussion of special circumstances [70] The appellant has lived in New Zealand for over six years. During this time she has completed two qualifications and held steady employment (both part-time and full-time). Her skills and work ethic are valued by her employer and her work colleague, who respect her for her professionalism in her work as the manager of the cafe. She makes a modest economic contribution to New Zealand through her employment. However she has no familial nexus here; her parents and brother remain in Russia. [71] The Tribunal has considered the appellant s circumstances including her qualifications, her contribution to her employer s business, the length of time she has lived in New Zealand, and her desire to remain here. These characteristics are not uncommon or out of the ordinary, when considered individually and cumulatively. The Tribunal finds the appellant does not have special circumstances, such as to warrant a recommendation that the Minister of Immigration consider an exception to residence instructions. DETERMINATION [72] This appeal is determined pursuant to section 188(1)(a) of the Immigration Act The Tribunal confirms the decision of Immigration New Zealand to decline the appellant's application for residence as correct in terms of the applicable residence instructions. The Tribunal does not consider that the appellant has special circumstances which warrant consideration by the Minister of Immigration as an exception to those instructions under section 188(1)(f) of the Immigration Act [73] The appeal is unsuccessful. Certified to be the Research Copy released for publication. D K Smallholme D K Smallholme Member D K Smallholme Member