D Smallholme (Member) Representative for the Appellant: Date of Decision: 22 February 2018 RESIDENCE DECISION

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1 IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2018] NZIPT AT AUCKLAND Appellant: NB (Skilled Migrant) Before: D Smallholme (Member) Representative for the Appellant: W Delamere Date of Decision: 22 February 2018 RESIDENCE DECISION [1] The appellant is a 30-year-old citizen of India 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 he had full-time employment with a single employer. As he was not entitled to points, and bonus points, for skilled employment, the appellant did not have sufficient points to succeed under the Skilled Migrant category. [3] The principal issue for the Tribunal is whether Immigration New Zealand s decision was correct. [4] The Tribunal finds that Immigration New Zealand s decision was not correct. The evidence established that the appellant was employed by a single employer, namely ABC Ltd. As it incorrectly focussed on whether the appellant worked for a single employer, Immigration New Zealand did not properly investigate the nature of his employment position. It therefore failed to assess whether the appellant s employment substantially matched the Australian and New Zealand Standard Classification of Occupations (ANZSCO) occupation group of Hospitality, Retail and Service Managers NEC.

2 2 [5] The application is returned to Immigration New Zealand for a correct assessment. BACKGROUND [6] The appellant made his application for residence under the Skilled Migrant category on 26 September The appellant claimed 160 points including 50 points for skilled employment of less than 12 months and 30 bonus points for employment outside the Auckland region. [7] In support of his application, the appellant provided a copy of his individual employment agreement (6 September 2016) with ABC Ltd for his employment as a hospitality, retail and service manager. The job description was set out as follows: Providing high level administrative, strategic planning and operational support, research and advice to senior management on administrative matters such as staff management, financial planning and facility management. Managing the total budget of ABC Ltd and DEF PVT Ltd. Manage expenses of the organization with effective cost saving decision and control. Providing information and support for the preparation of budget and investment. Work with all personnel and outside contacts to satisfy clients and achieve company goals. Identify areas of improvement in the business units and maintain quality of the organization. Coordinates with and/or works as an integral part and/with various department heads and restaurant manager. Recruitment and hiring of staff. Consider complaints and take actions. Execution for training of staff whenever required. Accountable for responsibility of departments head in the absence. Prepare financial statement and management of invoices. Ensuring compliance with relevant legislation, regulations and standards. Leading internal and external meetings. Monitor and implementation of health and safety regulation and implementation. Fulfil regulation of the employment. [8] The appellant was required to work 40 hours per week. He was paid an annual salary of $55,000 and reported to the company director. Assessment of the Application [9] On 7 February 2017, the company director responded to an Immigration New Zealand questionnaire. The director explained that he owned two companies. ABC Ltd operated a restaurant and also had a retail business selling Indian sweets and snacks. The appellant reviewed the performance of the restaurant. He kept

3 3 employee records and was responsible for to health and safety matters, any repairs and maintenance, and for purchase orders, suppliers bills, and copies of licenses. He had employed and trained a new restaurant manager and was arranging the importation of hospitality equipment. The director stated that he was considering opening another restaurant. The appellant had prepared a financial forecast and obtained quotes for the purchase of equipment. He would be responsible for liaising with the builder and local council if the company proceeded with the project. The second company, DEF Ltd, was an IT company that worked in conjunction with a company in India. The appellant worked on coordinating three projects which involved a digital payment software system, a goods (trading) portal and a job portal. [10] The director stated that he had hired the appellant to oversee the businesses as he wished to pursue another project. The appellant allocated his time according to the business requirements of the two companies. [11] Together with an organisational chart addressing the business structure and employment positions within the two companies, the following evidence was provided: (a) (b) (c) (d) (e) (f) the appellant s time and wages records (payslips) from 2 September to 18 December 2016 and his bank account statements from 13 October to 12 December 2016; the Employer Monthly Schedules and Employer Deductions for ABC Ltd for the periods ended 31 October 2016, 30 November 2016 and 31 December 2016; the profit and loss account for the year ended 31 March 2016 for ABC Ltd; various documents concerning the proposed new restaurant including the financial forecast, equipment list, two design plans, the appellant s correspondence with an engineer, and the appellant and director s flight itinerary for their visit to the premises; the appellant s correspondence with two banks concerning the digital payment software system being designed by DEF Ltd; and photographs of the existing restaurant.

4 4 Immigration New Zealand s Concerns [12] On 6 June 2017, Immigration New Zealand wrote to the appellant s former representative with its concerns about the application. [13] Immigration New Zealand considered that the information about the appellant s role was not credible. The appellant appeared to be employed by two different companies. It was not established that he spent an average of 30 hours per week on his claimed employment with ABC Ltd. He appeared to be in breach of his work visa conditions by working for DEF Ltd. Immigration New Zealand was also concerned about the possible inflation of staff roles. The organisational chart indicated that the companies had a heavy management bias and very few lower level roles. The Appellant s Response [14] On 19 June 2017, the former representative responded to Immigration New Zealand s concerns. [15] The former representative submitted that the appellant s job description and the Employer Monthly Schedules and Employer Deduction forms demonstrated that the appellant was employed by ABC Ltd. DEF Ltd was a registered company and had a bank account, but it had no employees or trading history. [16] The appellant provided a statement (12 June 2017) in which he outlined the nature of his duties for the two companies. Immigration New Zealand Decision [17] On 11 August 2017, Immigration New Zealand declined the appellant s application because it was not satisfied that he had employment with a single employer. The appellant worked for DEF Ltd in an analysis role, collecting and transferring data and information regarding New Zealand businesses to a company in India. However, he had been employed to ensure the financial viability of ABC Ltd. Accordingly, Immigration New Zealand was not satisfied that the appellant was working 40 hours per week for ABC Ltd. [18] Without points for skilled employment and employment outside Auckland, the appellant s application did not have sufficient points to succeed under the Skilled Migrant category.

5 5 STATUTORY GROUNDS [19] 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. [20] 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 [21] On 20 September 2017, the appellant lodged this appeal on both grounds in section 187(4) of the Act. In support of the appeal, the appellant s new representative provides written submissions (20 September 2017). [22] The representative submits that Immigration New Zealand misinterpreted the definition of work (as it is defined by the Act) and therefore incorrectly concluded that the appellant was employed by two companies. The evidence establishes that the appellant is working for one company in a full-time role. [23] New evidence is produced on appeal, being the appellant s bank statements (13 December 2016 to 11 August 2017), Inland Revenue Income Tax earnings information (1 August 2016 to 31 July 2017) and time and wages records (7 March 2016 to 3 September 2017). Given the outcome of the appeal, it is not necessary for the Tribunal to determine the admissibility of this new evidence (section 189 of the Act). ASSESSMENT [24] The Tribunal has considered the submissions and documents provided on appeal and the file in relation to the appellant s residence application which have been provided by Immigration New Zealand.

6 6 [25] 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. Whether the Decision is Correct [26] The application was made on 26 September 2016 and the relevant criteria are those in residence instructions as at that time. Immigration New Zealand declined the application because it was not satisfied that he had full-time employment with a single employer. [27] The relevant instructions are set out as follows: SM7.15 Additional requirements for skilled employment a. Skilled employment only qualifies for points if the employment is: i. full time (employment is full-time if it amounts to, on average, at least 30 hours per week); and b. Employment must be ongoing and sustainable. Ongoing and sustainable employment is: i. an offer of employment or current employment, with a single employer, that is permanent or indefinite, and of which the employer is in a position to meet the terms specified; or Effective 25/08/2014 Employment with a single employer [28] The Tribunal finds that Immigration New Zealand was incorrect when it found that the appellant did not have full-time employment with a single employer. [29] The individual employment agreement set out the terms and conditions of an employment relationship between ABC Ltd and the appellant. Those terms and conditions included that the appellant was required to perform work for DEF Ltd. [30] The parties records confirmed the terms and conditions of that relationship. In particular, ABC Ltd had produced wage and time records setting out the appellant s employment and it had provided Employer Monthly Schedules and Employer Deductions to Inland Revenue as it was required, in respect of its employment of the appellant. The appellant s bank statements showed that ABC Ltd made wage payments into his bank account.

7 7 [31] The fact that the appellant performed duties for DEF Ltd was not relevant to determining the identity of his employer. While he allocated his time according to the business requirements of the two companies, the other party to the employment agreement was ABC Ltd. The appellant performed the duties that were required of him, which included performing specific tasks for DEF Ltd. His employment therefore met the additional requirements for skilled employment in that it was with a single employer; SM7.15.b.i of instructions. Nature of the appellant s duties [32] Because it focused on whether the appellant worked for a single employer, Immigration New Zealand failed to conduct a thorough investigation into the nature of his employment position. It did not ascertain, with any clarity, the exact nature of the different duties that he performed for the two companies or the time he spent on performing those different activities. [33] Without an understanding of the appellant s duties, Immigration New Zealand was unable to determine whether the appellant s employment was a substantial match to any of the occupations listed in the occupation group of Hospitality, Retail and Service Managers NEC, having regard to the characteristics of those occupations. It did not address whether the appellant had the required level of managerial authority demonstrated through an ability to organise and control the business operations or the extent to which the services provided by the companies fell within the hospitality, retail or service sectors; see BM (Skilled Migrant) [2017] NZIPT , at [49] to [53]. Conclusion on correctness [34] The Tribunal finds that Immigration New Zealand s decision was not correct. The evidence established that the appellant was employed by a single employer, namely ABC Ltd. DETERMINATION [35] This appeal is determined pursuant to section 188(1)(e) of the Immigration Act The Tribunal considers the decision to refuse the visa was made on the basis of an incorrect assessment in terms of the applicable residence instructions. However, the Tribunal is not satisfied the appellant would, but for that incorrect

8 8 assessment, have been entitled in terms of those instructions to the immediate grant of a visa. [36] The Tribunal therefore cancels the decision of Immigration New Zealand. The appellant s application is referred back to the chief executive of the Ministry of Business, Innovation and Employment for a correct assessment by Immigration New Zealand in terms of the applicable residence instructions, in accordance with the directions set out below. Directions [37] It should be noted that while these directions must be followed by Immigration New Zealand, they are not intended to be exhaustive and there may be other aspects of the application which require further investigation. 1. The application is to be reassessed by an Immigration New Zealand officer not previously associated with the application in accordance with instructions in existence at the date the residence application was made. No further lodgement fee is payable. 2. As the appellant no longer holds a work visa and is not in current employment, Immigration New Zealand is to invite him to update his application within a reasonable timeframe, including by producing evidence of an offer of ongoing employment. 3. If the appellant is offered new employment with ABC Ltd as its hospitality, retail and service manager, then Immigration New Zealand may wish to consider interviewing the appellant or the company director to obtain an understanding of the appellant s duties and the nature of any hospitality, retail and service operations in which ABC Ltd and DEF Ltd are engaged. Immigration New Zealand is then to consider whether the appellant s employment substantially matches any of those occupations listed in the ANZSCO occupation group Hospitality, Retail and Service Managers NEC, by addressing the services offered and whether the appellant has responsibility for controlling and organising the business operations. 4. If a different offer of employment is provided, Immigration New Zealand is to assess his application in terms of the relevant instructions.

9 9 5. Immigration New Zealand is to inform the appellant of any potentially prejudicial matters in clear and concise terms with reasons. The appellant is to be given a reasonable opportunity to respond. [38] The appellant is to understand that the success of this appeal does not guarantee that his application will be successful, only that it will be subject to reassessment by Immigration New Zealand. [39] The appeal is successful in the above terms. Order as to Depersonalised Research Copy [40] Pursuant to clause 19 of Schedule 2 of the Immigration Act 2009, the Tribunal orders that, until further order, the research copy of this decision is to be depersonalised by removal of the appellant s name and any particulars likely to lead to the identification of the appellant. D Smallholme D Smallholme Member Certified to be the Research Copy released for publication. D Smallholme Member