Date of Decision: 29 July 2016 RESIDENCE DECISION

Transcription

1 IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2016] NZIPT AT AUCKLAND Appellant: QG (Skilled Migrant) Before: D K Smallholme Counsel for the Appellant: J Strickett Date of Decision: 29 July 2016 RESIDENCE DECISION [1] The appellant is a 28-year-old citizen of the People s Republic of China ( China ), 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 employment, as an accountant, substantially matched the occupation of Accountant (General) in the Australian and New Zealand Standard Classification of Occupations (ANZSCO). Without points for skilled employment, the appellant did not meet the minimum selection criteria for the Skilled Migrant category. [3] The principal issue for the Tribunal is whether the appellant held sufficient strategic oversight in her role, such that her employment substantially matched the ANZSCO occupation of an Accountant. [4] The Tribunal finds that Immigration New Zealand s decision to decline the application was correct and procedurally fair. The Tribunal also finds that the appellant does not have special circumstances, arising from her qualification and employment, such as to warrant consideration by the Minister of Immigration of an exception to residence instructions.

2 2 BACKGROUND [5] On 4 March 2015, the appellant made her application for residence. She claimed 140 points including 50 points for skilled employment as an accountant. [6] In support of her application, the appellant provided a copy of her individual employment agreement and the job description for her role. The job description set out the appellant s responsibilities, as follows: Accounting Tasks: Examine company s income and expenditure Provide assurance about the accuracy of information contained in financial reports and compliance with statutory requirements Maintain accounting systems, and advise on the selection and application of computer based accounting systems Day to day accounting general process, including MYOB data entry and processing A/P management and reconciliations Payroll and PAYE Monthly financial report and internal management and analysis reports Prepare financial statements for presentation to director and management IR4 return calculation and provisional tax return Monthly Broker and AE commission calculation New Clients accounts background checking and opening accounts Physical foreign currency conversion process in system while it occurs Appraise cash flow and financial risk of capital investment project General administration task Compliance Tasks: Guide and oversee the compliance duties in [the company] Step in [to] staff training when it is needed As discussed at interview, because this is a new position, these duties may be amended or increased following discussion between [the company] and [the appellant]. [7] The appellant s employment agreement stated that she reported to the office manager and director. She earned an annual salary of $40,000. Assessment of Application Employment context [8] Immigration New Zealand explored the business arrangements of the company which employed the appellant in two telephone interviews with the office manager, and by obtaining an organisational chart and flow chart of the relationship between the companies, and details of the employees and the positions they held in the companies. The business structure of the employing

3 3 company and its related companies was somewhat complex and lacking in clarity. It appeared that a holding company owned by the director controlled three companies, being the company which employed the appellant, a company which offered brokerage services ( the brokerage company ), and a property company. The director also owned ABC business, which the office manager referred to as the franchise retail business. [9] The company which employed the appellant was described as providing crowd funding and self-media services, and as an international player and broker. The brokerage company provided brokerage services for foreign exchange margin, stock and futures products trading. The property company appeared to offer some form of property consulting service. The three companies all operated from the same office location. [10] In terms of the appellant s position, the company which employed the appellant ran a marketing department, in which there were two employees; the appellant and a marketing manager. The appellant was also shown as working in the brokerage company, in the back office where she reported to the office manager and appeared to be responsible for an assistant accountant. The appellant s role [11] On 30 June 2015, Immigration New Zealand conducted a telephone interview with the office manager. The office manager indicated that she was responsible for all accounting work for the holding company. She stated that the appellant was responsible for the tax returns and accounts payable and receivable for the franchise retail business. The appellant processed the payroll, accounts payable and receivable, and customer deposits (which were used to calculate brokerage commissions). She also assisted the office manager with compliance tasks and other administrative tasks including HR work, when this was required. The office manager stated that, in addition to the appellant, there were nine other staff members who worked in the office; eight account executives, who undertook brokerage work, and the director. [12] On 3 July 2015, Immigration New Zealand conducted a further telephone interview with the office manager. The immigration officer asked the office manager to address each of the tasks listed in the appellant s job description and to explain how the appellant performed them. In response, the office manager stated that the appellant prepared financial statements and reports for the brokerage company and the franchise retail business, which were then signed off

4 4 by the office manager and presented to the director of the companies. The appellant completed the payroll and PAYE for the two businesses and entered data into the MYOB accounting system. She created new accounts when required, establishing the structure of the accounts including lines of expenditure that were specific to each account. She controlled the credit accounts by ensuring payments were made in a timely manner and calculated the cost of any proposed financial projects including [any] portfolio and finance capability. She ensured the brokerage company complied with its obligations under anti-money laundering legislation. [13] The appellant also calculated income from brokerage fees, in the company s platform, and reconciled the income with funds held in the bank accounts, using a formula specific to the brokerage company. The appellant could amend the formula having regard to the interest rate set by the Reserve Bank. Query as to membership of professional body [14] Throughout the verification process Immigration New Zealand sought information from the appellant and her representative as to whether the appellant had made an application for provisional membership of Chartered Accountants Australia and New Zealand or, alternatively, an explanation for why she had not made any such application. However, it is not clear to the Tribunal what the basis of those concerns were, and as they have no bearing on the outcome of the appeal, they are not addressed further in this appeal decision. Immigration New Zealand s Concerns [15] On 17 July 2015, Immigration New Zealand wrote to the appellant s representative with its concerns about her application. Relying on the information from the office manager, it had determined that the appellant was responsible for reconciling accounts (payable and receivable), data entry, preparing payroll, commission payments and PAYE, paying company accounts, assisting with compliance work and other clerical tasks, and collating and presenting data in a report for review and signing by her superiors. Immigration New Zealand considered that the tasks listed in the appellant s job description were inflated and that her role was comparable to the occupations found in ANZSCO Unit Groups Accounting Clerks (5511) and Bookkeepers (5512), which were not included in the List of Skilled Occupations found in Appendix 6 of instructions.

5 5 [16] Without points for skilled employment, the appellant s application would not meet the minimum selection criteria of the Skilled Migrant category. Response to Immigration New Zealand s Concerns [17] On 29 July 2015, the appellant responded to Immigration New Zealand s concerns. The appellant submitted that her tasks were consistent with those required of an Accountant (in the ANZSCO). She observed that her job description required that she examine income and expenditure, maintain accounting systems, calculate and file tax returns, and prepare financial statements and reports. The appellant stated that she performed accounting work for the company which employed her and also for the brokerage company and the franchise retail business. As the company which employed her did not have very frequent transactions, unlike the brokerage company and the franchise retail company, she generated a financial statement for the company annually. [18] The appellant produced a letter (28 July 2015) from the director of the companies. The director stated that the appellant was responsible for the accounting tasks of all of his companies. The appellant completed daily profit and loss reports for the brokerage company; maintained the daily transaction records and generated monthly financial reports, annual financial statements and sales forecasts for the franchise retail business; and prepared financial statements and annual sales forecasts, when necessary, for the company which employed her. [19] The director stated the appellant s main tasks were to examine the companies income and expenditure and generate financial statements and reports for his consideration. The appellant also had other general accounting tasks such as filing GST and PAYE returns, calculating and paying commission, and processing payroll payments. She was required to research and study capital investment projects and to generate internal risk analysis reports. She had recommended an upgrade of the accounting system, from MYOB to Xero, and he intended to upgrade the accounting system in the near future. [20] In addition, the appellant provided: (a) a business forecast and analysis, and PAYE records, for the company which employed her;

6 6 (b) (c) monthly commission calculations and daily profit and loss summary reports for client deposits for different periods from December 2014 to July 2015, for the brokerage company; and a balance sheet, financial analysis report, sales forecast, monthly expenses, IR4 and GST returns from April 2014 to March 2015, and financial statements for the franchise retail business. Immigration New Zealand Decision [21] On 24 August 2015, Immigration New Zealand declined the appellant s application because it had concluded that the accounting work she performed was substantially clerical in nature. It was not at a level intended by the description of an Accountant in the ANZSCO. The financial reports provided by the appellant were generated for her superiors to review, analyse and sign-off. The reports did not involve researching, formatting and developing the data and reports. [22] Without points for skilled employment, the appellant s application did not meet the minimum selection criteria for the Skilled Migrant category. STATUTORY GROUNDS [23] 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. [24] The residence instructions referred to in section 187(4) are the Government residence instructions contained in Immigration New Zealand s Operational Manual (see

7 7 THE APPELLANT S CASE [25] On 9 October 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. [26] In support of the appeal, the appellant s new counsel makes written submissions dated 24 May Counsel submits that Immigration New Zealand s process was flawed, and its conclusions about the appellant s role were therefore inaccurate and incorrect, because it failed to discuss the appellant s position with the most appropriate person, namely the director of the business. A written statement (26 May 2016) is produced from the office manager. The office manager states that she was not the appellant s supervisor and that there are inaccuracies and oversights in Immigration New Zealand s record of the information she provided during its telephone interviews with her. [27] Counsel also submits that Immigration New Zealand did not specifically address the core tasks of the ANZSCO Unit Group 2211 Accountants in its letter of concern and that it was incorrect to focus on the appellant s job description. Immigration New Zealand also failed to consider whether the appellant s position was a substantial match to the description of an alternative ANZSCO occupation, Management Accountant (ANZSCO ); had it done so, it would have concluded that the appellant s position met the description of that occupation. [28] In addition to documents already held on the Immigration New Zealand file, counsel produces: (a) (b) (c) (d) the annual report for the year ended 2015 and monthly management reports for period July to November 2015, for the franchise retail business; the annual report for the year ended 2015 and Budget Analysis Notes for the company which employed the appellant; screen shots of what were described as complex accounting system structures the appellant has built for different clients ; and evidence of analysis of [two different] financial products (of which the author is not revealed nor is the date on which the analysis was completed).

8 8 [29] Section 189 of the Act constrains the Tribunal s ability to take into account new information and evidence on appeal. New evidence is inadmissible when considering the correctness of Immigration New Zealand s decision (section 189(1)) unless it falls within one of the exceptions contained in section 189(3)(a) or under section 189(6) of the Act. [30] The Tribunal cannot take the new evidence produced on appeal into account when determining whether Immigration New Zealand s decision was correct. The information contained in the written statement from the office manager and the annual reports was in existence prior to the decision to decline the appellant s application and no explanation has been provided as to why this information could not have been produced to Immigration New Zealand by the exercise of reasonable diligence. The budget analysis notes were not in existence at the time the Immigration New Zealand decision was made. None of the documents fall within section 189(6) as they do not establish that a particular event has occurred that materially affects the appellant s eligibility under the Skilled Migrant category of instructions. ASSESSMENT [31] 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. [32] 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 on as a ground of appeal, as required by the Tribunal s jurisdiction because the decision is found to be correct, the Tribunal also assesses whether the appellant has special circumstances such as to warrant consideration of an exception by the Minister of Immigration. Whether the Decision is Correct [33] The application was made on 4 March 2015 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 the appellant s employment was a substantial match to the ANZSCO occupation of Accountant (General) (ANZSCO ).

9 9 Substantial match [34] Paragraph SM a provides that employment will be assessed as skilled if there is a substantial match to the ANZSCO description, including core tasks, of an occupation listed in Part A of the List of Skilled Occupations at Appendix 6 of instructions: 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 [35] A substantial match is a question of fact and degree in the context of an applicant s employment (Residence Appeal No (20 November 2009) at [48]). Whether an applicant s employment is a substantial match should be determined on a holistic basis, taking into account not only the list of core tasks but also the specific characteristics of the applicant s employment. Accountant (General) [36] The occupation of Accountant (General) is found in Part A of the List of Skilled Occupations. someone who: The ANZSCO describes an Accountant (General) as Provides services relating to compliance-based financial reporting, auditing, insolvency and accounting information systems; and advises on associated recordkeeping requirements. Registration or licensing may be required for certain services such as auditing. [37] The Unit Group 2211 Accountants, under which the occupation of Accountant (General) and Management Accountant are included, outlines the following core tasks: assisting in formulating budgetary and accounting policies preparing financial statements for presentation to boards of directors, management, shareholders, and governing and statutory bodies conducting financial investigations, preparing reports, undertaking audits and advising on matters such as the purchase and sale of businesses, mergers, capital financing, suspected fraud, insolvency and taxation examining operating costs and organisations' income and expenditure providing assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements providing financial and taxation advice on business structures, plans and operations

10 10 preparing taxation returns for individuals and organisations liaising with financial institutions and brokers to establish funds management arrangements introducing and maintaining accounting systems, and advising on the selection and application of computer-based accounting systems maintaining internal control systems may appraise cash flow and financial risk of capital investment projects. [38] The appellant undertook general accounting tasks in relation to the day-today trading activities of three companies: the company which employed her, the brokerage company and the franchise retail business. She processed the payroll payments, completed tax returns, attended to PAYE and GST payments, created accounts using the MYOB accounting system and entered data, paid accounts as they fell due, and calculated commission payments due to dealers. She prepared financial statements and reports on the progress of the businesses for consideration by the director. [39] When considering the ANZSCO description of an Accountant, the Tribunal (differently constituted) found in UR (Skilled Migrant) [2015] NZIPT at [28] that: The occupation description and core tasks of an Accountant involve a degree of decision making in relation to measuring, controlling and managing the financial health and direction of his or her clients. The core tasks, in particular, demonstrate the degree of strategic oversight required. For example, an Accountant will report to statutory bodies, provide assurance about the accuracy of information and compliance with statutory requirements, provide financial and taxation advice on business structures, plans and operations, and give advice on significant business ventures such as the purchase and sale of businesses, mergers and capital financing. While core tasks such as the preparation of taxation returns reflect work that is more routine, this is not the focus of an Accountant s work. [40] While the tasks set out in the appellant s job description suggested that she had responsibility at a strategic level for the accounting activities of the company she worked for, this was not borne out by the information given by the office manager and the director as to the nature of her work. That information established that the appellant largely performed routine accounting tasks required to support the day-to-day trading operations of the three companies. As the director stated in his letter, the appellant completed daily profit and loss reports for the brokerage company; maintained the daily transaction records and generated monthly financial reports, annual financial statements and sales forecasts for the franchise retail business; and prepared financial statements and annual sales forecasts, when necessary, for the company which employed her. She also calculated income payments for staff of the franchise retail business and commissions due to the dealers of the brokerage company, and paid accounts for those two businesses in a timely manner.

11 11 [41] While the appellant prepared financial statements for the director and taxation returns for the companies, she did not perform many of the core tasks of the Unit Group 2211 Accountants, under which the occupations of Accountant and Management Accountant are included. [42] The appellant did not assist in formulating budgetary and accounting policies or examine operating costs and income and expenditure. She opened accounts and entered data in the MYOB operating system and kept records of business transactions. The appellant did not provide financial and taxation advice on business structures, plans and operations. She had given a presentation to the director of the benefits of upgrading to the Xero accounting system; however, as the Xero system had not been installed, she had not introduced or maintained an accounting system. [43] There was no evidence the appellant appraised the cash flow and financial risks associated with the trading activities of any of the companies. The appellant prepared financial statements and reports for the director and provided assurance about the accuracy of information contained in them. However, she was not involved in decisions made as to the strategic direction of the businesses nor did she have any involvement in, or give advice on, the business structures which underpinned the director s business activities. While the appellant prepared summaries of the financial performance of the companies for the director, on which he relied when making decisions, the reports did not make recommendations as to any changes which could be made to the business structures, plans and operations nor did they provide advice on the development of the businesses. The contents of some of these reports were signed off by the office manager before they were presented to the director. [44] The appellant s tasks were a better fit with the core tasks of the occupations of either Accounts Clerk (ANZSCO ) or Bookkeeper (ANZSCO ). For example, one of the core tasks of an Accounts Clerk is preparing and processing documentation related to accounts payable and receivable, and another is summarising expenditure and receipts. Some of the core tasks of a Bookkeeper are also relevant to the appellant s work, such as keeping financial records, and maintaining and balancing accounts using manual and computerised systems, monitoring cash flow and lines of credit and preparing and producing financial statements, budget and expenditure reports and analyses using account books, ledgers and accounting software packages. However, neither of those occupations is on the List of Skilled Occupations at Appendix 6.

12 12 Management Accountant [45] Counsel submits on appeal that Immigration New Zealand failed to consider whether the appellant s employment was a substantial match to an alternative ANZSCO occupation, of Management Accountant (ANZSCO ). asserts that the appellant provided information to the director to assist him in making informed decisions as to the operation and management of his businesses, as opposed to assisting the businesses in meeting external legal obligations, such as reporting to the Inland Revenue Department and paying tax. [46] The ANZSCO describes a Management Accountant as someone who: Provides services relating to performance-based financial reporting, asset valuation, budgetary systems, cost management, pricing, forecasting and the strategic governance of organisations. Provides advice on financial planning, risk management, carbon sequestration projects and carbon pricing and provides management with reports to assist in decision-making. May provide insight into cost performance and support the implementation of benchmarking and quality improvement initiatives. Registration or licensing may be required. She [47] The Tribunal has consistently found that, where a position more clearly fits a different ANZSCO occupation to that chosen by an applicant, Immigration New Zealand is obliged to consider the alternative occupation and give the applicant an opportunity to demonstrate whether their employment substantially matches the more appropriate occupation (OK (Skilled Migrant) [2013] NZIPT at [33]). However, in the appellant s case there was no evidence to demonstrate that she was involved in the strategic governance of the financial performance of any of the director s companies or that she provided advice on financial planning or risk management. While the appellant prepared reports for consideration by the director, she did not have any strategic and managerial oversight of the financial performance of the businesses. Her role was therefore not a substantial match to the ANZSCO description of a Management Accountant. Procedural fairness [48] The Tribunal does not accept counsel s submission that Immigration New Zealand s process was unfair because it relied on information from the office manager when determining the specific characteristics of the appellant s role. [49] The appellant s individual employment agreement provided that she reported to the office manager and the director. The organisational chart showed that the appellant worked under the office manager in the back office of the platform and finance management arm of the brokerage company. It was

13 13 reasonable of Immigration New Zealand to conclude that the office manager was well placed to provide information as to the tasks performed by the appellant. [50] The office manager indicated that she oversaw all accounting work of the holding company. On two different occasions she provided specific details of the tasks performed by the appellant. The detailed nature of this information established that the office manager understood the work performed by the appellant for the brokerage company and the franchise retail business. The information provided by the office manager is also consistent with that given by the director about the appellant s tasks. [51] Immigration New Zealand informed the appellant in its letter of concern that, in forming its views, it had relied on the information from her employer s representative (the office manager). It provided the appellant with a summary of the information it had gathered from the office manager which was to the effect that her tasks involved reconciling accounts (payables and receivables); paying off company accounts in timely manner; data entry including use of MYOB, preparing payroll, commission pay, PAYE; assistance with compliance work and other clerical tasks. When responding, the appellant did not express any concern that the information had been gathered from the office manager. She simply stated that she considered that her tasks were consistent with those required for an Accountant in the ANZSCO. [52] Finally, it is correct that Immigration New Zealand focussed on the tasks listed in the appellant s job description, rather than the core tasks of the ANZSCO Unit Group 2211 Accountants. However, while it may have been helpful had Immigration New Zealand referred to the core tasks, it is apparent from its letter of concern that consideration had been given to the core tasks of the Unit Group. In any event, the onus was on the appellant to provide all information to demonstrate she fit the category of residence instructions under which the application was being made (section 58 of the Act and R2.40.d.v of instructions (effective 17 November 2014)). Conclusion on correctness [53] The Tribunal finds that Immigration New Zealand s decision was correct. The appellant s employment did not substantially match the ANZSCO description of either an Accountant (General) or a Management Accountant. There was also no procedural unfairness in the manner in which Immigration New Zealand processed the appellant s application. Without points for skilled employment, the

14 14 application failed to meet the minimum selection criteria of the Skilled Migrant category. Whether there are Special Circumstances [54] 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. [55] 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. [56] 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. Personal and family circumstances [57] The appellant is a 28-year-old citizen of China. She arrived in New Zealand in February 2009, initially as a student. She was granted a work visa in November She then held student visas between July 2012 and March Her current work visa, granted in February 2016, is valid to February [58] The appellant s parents reside in China, as do her grandparents. There is no indication that she has family in New Zealand. Health, character and English language [59] Immigration New Zealand was satisfied that the appellant met the health, character and English language requirements of instructions. Settlement and contribution [60] The appellant has lived in New Zealand for seven-and-a-half years. No evidence has been produced about the degree to which she has settled and integrated into New Zealand, however the Tribunal accepts it is likely that she has made friends and connections here.

15 15 [61] The appellant makes a modest economic contribution to New Zealand, through her employment. Qualifications and work experience [62] The appellant obtained a Level 7 Bachelor of Business in Accountancy in September 2011 from a New Zealand tertiary institution. [63] The office manager informed Immigration New Zealand in the first telephone interview that the appellant had commenced work as her assistant, in June The appellant was then employed as an accountant from 1 December [64] The director of the company which employed the appellant stated in his letter of 28 July 2015 that she had very good knowledge and skills which were relevant to her work. He considered that she was hard-working and had a pleasant personality, and that she had gained a very good reputation among her colleagues. Discussion of special circumstances [65] The appellant arrived in New Zealand in February She successfully studied, completing a Bachelor s Degree in Accounting, and she went on to find employment here. The appellant s contribution to the trading activities of the companies is highly regarded by the director. [66] The Tribunal accepts that during her time spent in New Zealand the appellant will have settled here to some degree. [67] Nevertheless, there is nothing about these circumstances to distinguish the appellant from many other individuals who come to New Zealand to work and wish to stay and establish themselves more permanently. While the evidence demonstrates that the appellant holds a tertiary qualification and her work for the group of companies is valued by the director, this is not uncommon or out of the ordinary. [68] When all of the appellant s circumstances are considered, there is nothing about them which is out of the ordinary or uncommon. The Tribunal finds that the appellant s circumstances are not special such as to warrant a recommendation to the Minister for a consideration of an exception to residence instructions.

16 16 DETERMINATION [69] 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 [70] The appeal is unsuccessful. Order as to Depersonalised Research Copy [71] 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 K Smallholme D K Smallholme Member Certified to be the Research Copy released for publication. D K Smallholme Member