RESIDENCE REVIEW BOARD NEW ZEALAND

RESIDENCE REVIEW BOARD NEW ZEALAND AT WELLINGTON RESIDENCE APPEAL NO: 16109 Before: P Millar (Member) Representative for the Appellant: The appellant represented herself Date of Decision: 27 March 2009 Category: Skilled Migrant Decision Outcome: Section 18D(1)(e) DECISION INTRODUCTION [1] The appellant is a female citizen of the Ukraine, aged 29. [2] This is an appeal against the decision of Immigration New Zealand (INZ) declining the application because the appellant did not score sufficient points to gain residence. The principal issues for the Board are whether the appellant should have been awarded bonus points for holding a recognised qualification and work experience in an area of absolute skills shortage and, in particular, whether her recognised qualification was comparable to a New Zealand qualification majoring in computer science, a requirement for the award of bonus points. BACKGROUND [3] The appellant has been living in New Zealand since December 2005 and since that time has been undertaking a PhD in computer science at [ABC University]. [4] On 22 November 2007 she submitted an Expression of Interest in applying for residence under the Skilled Migrant category (EOI). Her EOI was selected

2 from the pool on 5 December 2007 and she was issued with an invitation to apply for residence on 19 December 2007. [5] The appellant made her residence application on 11 April 2008. In her application the appellant declared having a partner who was a New Zealand resident. However, she is recorded as subsequently advising INZ that she had separated from him. [6] In her EOI the appellant claimed 115 points (30 points for her age; 50 points for a recognised qualification; 10 points for work experience; 5 points for two years study in New Zealand towards a recognised New Zealand qualification; 10 bonus points for a qualification in an area of absolute skills shortage and 10 bonus points for work experience in an area of absolute skills shortage). The claim for bonus points the qualification [7] In her application the appellant stated that her recognised qualification was a Magister Artium in the areas of linguistics and computer science, awarded to her in December 2005 by [DEF University], Germany ( the German university ). [8] In her application the appellant claimed that this qualification was in an area of absolute skills shortage, the relevant occupation being Information Technology (IT) Professionals: Computer Application Engineer. [9] The appellant submitted the following evidence regarding her qualifications: (a) (b) (c) Certificate issued December 2005 by the German university, according to which the appellant completed a Master s degree with a thesis on [a stated topic], and according to which her major subject was German linguistics and her two subsidiary subjects were computational linguistics and computer science. Certificate issued December 2005 by the German university conferring the Master s degree on the appellant. A pre-assessment of this qualification from the New Zealand Qualifications Authority (NZQA), according to which it was comparable to the learning outcome of a qualification at Level 8 on the New Zealand Register of Quality Assured Qualifications ( the Register ).

3 (d) A Qualifications Assessment Report issued 28 July 2008 by NZQA, which again confirmed the appellant's qualification as comparable to the learning outcome of a qualification at Level 8 on the Register. INZ puts prejudicial information [10] By letter dated 11 September 2008 INZ put to the appellant that as regards the occupation Information Technology (IT) Professionals, the Long Term Skill Shortage List (LTSSL) provided that the relevant qualification was (verbatim): Degree level qualification (Level 7) majoring in computer science, information science or information technology [11] INZ stated that while the appellant's qualification had been assessed by NZQA as being at Level 8, her major subject was German linguistics and computer science was a subsidiary subject only. INZ put to the appellant that the NZQA reports did not state that her qualification was comparable to a New Zealand qualification majoring in computer science and she therefore did not meet the specifications in Column 4 of the LTSSL, as required by policy at SM16.20, to be able to be assessed as holding a qualification in an area of absolute skills shortage. The appellant s submissions [12] By letter dated 23 September 2008 the appellant stated that according to German education guidelines, when choosing subjects to study at university students choose either two majors or one major and two minor subjects that together are considered as a second major. The appellant referred INZ to the website of a German organisation regarding this. [13] The appellant submitted that while her first major was German linguistics, her two minors were computational linguistics and computer science. She stated that computational linguistics was a sub-area of computer science and so her two minors should be regarded as being a second major, equivalent to New Zealand s Computer Science. [14] The appellant added that her thesis for this degree was written in the period from December 2004 until June 2005, which she spent in the computer science department at [ABC University] under the supervision of Professor [AA], who was a worldwide-recognised scientist, the recipient of the prestigious [named award] of the Royal Society of New Zealand and the author of well-known popular books used for teaching computer science students.

4 [15] The appellant stated that her degree was equivalent to a New Zealand Master s degree in computer science and that was why she was accepted to enrol as a PhD student in the Department of Computer Science at [ABC University]. Her PhD was sponsored by Google Inc ( Google ) and she expected to graduate in June 2009. [16] The appellant offered to provide INZ with a list of the courses she undertook in her graduate studies at the German university being programming, software development projects, information retrieval and text mining papers. [17] The appellant submitted that she had recently attended a scholarship retreat at Google Sydney as a finalist of the 2008 Anita Borg Scholarship and had accepted an offer from Google New York for a 13-week internship as a software engineer later in 2008. Further evidence about the qualification [18] The appellant enclosed the following: (a) (b) (c) A document printed out from a Google website addressed to scholarship finalists for the Anita Borg 2008 Scholarship, inviting those persons to a retreat in Australia. An email from Google to the appellant confirming that she had been chosen as a 2008 Google Australia Anita Borg Scholarship finalist and was invited to attend the scholarship retreat. Letter dated 19 September 2008 from Professor [AA] who stated the appellant was highly skilled and knowledgeable in the areas of IT and computer science. He confirmed supervising the appellant's research for her Master s degree and stated that this was firmly in the field of computer science. He described her Master s project as follows (verbatim): Her Masters project developed [details of project stated]. Professor [AA] stated that the appellant was extending this work for her PhD, again regarding the creation of a computer algorithm. The appellant had authored numerous academic papers, presented them at international computer science conferences, and her work was widely respected.

5 (d) (e) Letter dated 9 September 2008 from Google to the appellant confirming her internship in the position of software engineering intern at offices in New York. Letter dated 16 September 2008 from the Acting Dean, School of Computing and Mathematical Sciences at [ABC University], who stated that the NZQA assessment did not take a holistic view of the appellant's qualification and her work experience. Her field of work was in computational linguistics that crossed the divide between computer science and linguistics, and while the appellant used linguistics in her work, she also made extensive use of computer science. The appellant was part of a world-class research team in digital libraries at the university doing IT-related work in the area of linguistics, and if a company like Google was offering her an internship, then it was clear that she had skills and knowledge in IT and computer science. The appellant's qualification and work experience were in the area of computational linguistics which required considerable knowledge, skill and expertise in computer science. [19] In an assessment dated 2 October 2008 INZ rejected the submissions made above because the NZQA assessment did not state that the appellant's qualification was comparable to a New Zealand qualification majoring in computer science. Therefore, the appellant had not met policy requirements to obtain bonus points for this qualification. INZ seeks clarification from NZQA [20] By letter dated 3 October 2008 INZ requested that NZQA confirm whether the appellant's qualification was comparable to a New Zealand Bachelor s degree majoring in computer science. [21] By email of 7 October 2008 NZQA advised INZ that the appellant s award certificate and transcript indicated that the major subject of her qualification was German linguistics and minor subjects were computational linguistics and computer science. For that reason, her qualification was not overwhelmingly a computer science qualification. While there were some elements of computer science incorporated in her qualification, it was not comparable to a New Zealand qualification in any of those three disciplines.

6 [22] By email of 20 October 2008 INZ advised the appellant of the NZQA opinion and stated that therefore she could not be awarded bonus points for a qualification in an area of absolute skills shortage. The appellant responded that same day, advising that she did not agree with that assessment and referred to the previous submissions and references from [ABC University]. Claim for points for two years of study in New Zealand toward a New Zealand recognised qualification [23] The appellant claimed points in this respect for over two years of full-time study toward her PhD at [ABC University]. INZ put to her that because she had not yet obtained this qualification, she was not entitled to points in this respect. In response, the appellant maintained her claim as stated above. Work experience [24] In her application the appellant specified her work experience as follows: (a) (b) (c) September 2000 until December 2005 as student research assistant at the German university, the appellant stating that this employment was part-time, varied between 40 to 80 hours per month except for one year when she worked elsewhere. The appellant stated that she contributed to the development of computer applications in the research group. May 2002 until August 2003 as web programmer for [GHI] ( the real estate company ), Germany, the appellant doing web design and development, including programming of web interfaces for various tasks around real estate marketing. August 2003 until November 2004 as programmer for [JKL] ( the IT company ), Germany, the appellant contributing to the development of the company s main product of software used to improve searches on the internet and in large databases, the employment being parttime 80 hours per month. [25] With the application the appellant lodged the following evidence regarding her work experience: (a) A summary of her work experience giving the periods of employment with these three organisations, the number of hours per month she

7 worked for them in these periods and giving a total of 42.23 months full-time work on the basis of a 36-hour week. (b) Employment contracts issued by the German university to the appellant confirming her employment as a research assistant over different periods of time, and documents certifying that the appellant was to be employed as a research assistant at various dates and the hours per month she was to work. INZ requests appellant to provide further evidence [26] By email of 22 May 2008 INZ requested that the appellant provide evidence from the German university confirming that she did take up the positions offered to her in the various employment documents she put forward with the application and that she remained in those positions for the full term as provided in those documents. [27] INZ requested the appellant to provide a reference from the German university listing all positions, start and finish dates, and number of hours worked in her various positions. The appellant was also requested to provide a list of duties that she was required to perform in those roles and to also provide references from the real estate company and the IT company, again giving details of her duties. [28] In response, the appellant provided the following: (a) (b) Letter dated 22 May 2008 from Professor [BB], Medical Informatics Research Group at the German university, who stated that the appellant performed various activities under his supervision in the field of natural language computing and research between 2004 and 2005, including development of a language and topic-specific web crawler; integration of search engines into a cross-language document retrieval environment programme; development of a web interface for text annotation and website administration. He stated that the appellant had broad experience with computational linguistics and information retrieval and had significant work experience in programming. Undated letter from the managing director of the real estate company, who confirmed that the appellant worked for that company

8 80 hours per month from March 2002 until July 2003 as part of the web development team, assisting with design and implementation of real estate websites. (c) Letter dated 10 March 2008 from the technical director of the IT company, who stated that the appellant was first employed as a trainee from August 2003 until March 2004 full-time and then as a student assistant from April to November 2004 full-time. INZ again seeks further information [29] By email of 27 May 2008 INZ requested the appellant to provide further information about the work she did at the German university before 2004 and clarify the total amount of time she worked there in the years 2004 and 2005. The appellant was also asked to produce evidence as to her duties with the IT company. [30] In response, the appellant provided a reference dated 27 May 2008 from the technical director of the IT company, who stated that the company developed a search platform for complex search requirements and that the appellant was employed from August 2003. A description of her tasks was provided which contained technical information referring to her use of linguistics in developing IT systems. [31] The appellant also provided a further reference dated 5 June 2008 from [CC], Professor of Computational Linguistics at the German university, who stated that the appellant worked from September 2000 until 2004 in the computational linguistics group as a student assistant under his supervision. She was mainly involved in building a web interface for natural language document annotation and various aspects of website administration. She acquired programming experience in these areas and improved it continuously. She later on also supported many of the evaluation experiments for a cross-lingual document retrieval system, work that led to a publication in a prestigious journal. Bonus points - Research Assistant not an occupation on the LTSSL [32] By letter dated 11 September 2008 INZ put to the appellant that her work experience for the German university was as a research assistant and that was not an occupation on the LTSSL.

9 [33] By letter dated 23 September 2008 the appellant submitted that in her work as a student research assistant at the German university hospital she worked on the development of a language and topic-specific web crawler and integration of search engines into the cross-language document retrieval environment Morphosaurus. At the computational linguistics group in the university, she was mainly involved in building a web interface for natural language document annotation and various aspects of website administration. [34] She submitted that her work as a research assistant was in the area of computer science (medical informatics and computational linguistics being the sub-areas of computer science) and met the specifications for the occupations of ICT Professionals (261111-263312) listed on the LTSSL. To perform all of these tasks the appellant had to have expertise in computer science at a level not less than the occupation performed at an IT company by a New Zealand computer science graduate with a Bachelor s degree. [35] As stated above, the appellant provided references from the acting dean of the School of Computing and Mathematical Sciences at [ABC University] as well as submissions from Professor [AA], her current supervisor. Both persons stated that the appellant had considerable knowledge and expertise in computer science. Bonus points qualification majoring in computer science [36] By email of 20 October 2008 INZ referred to policy at SM13.20 and the requirement that the appellant had to be qualified by training or experience to undertake the work in question, including meeting the requirements of the LTSSL, one of which was that the appellant have a qualification majoring in computer science and three years of relevant work experience. INZ stated that according to NZQA, her qualification was not comparable to a qualification majoring in computer science and so she did not meet the requirements of SM13.20 to be able to claim bonus points for work experience in an area of absolute skills shortage. The appellant s response on that issue has been discussed above. Overall findings on work experience [37] INZ was satisfied that the appellant had the equivalent of 27 months full time employment eligible for points as recognised work experience. That was made up of sixteen months of full-time work with the IT company from August 2003 until November 2004 and 48 full-time weeks for the real estate company from March 2002 until July 2003. INZ found that this work experience was

10 relevant to the appellant's recognised qualification and she was entitled to 10 points for that. INZ found that the appellant had performed 57 weeks employment for the German university but did not award her points for this. INZ stated that the appellant s job description only covered the years 2004/2005 and only 10 weeks of this employment had been explained. INZ declines the application [38] By letter dated 18 November 2008 INZ advised the appellant that her application for residence had been declined. INZ found that the appellant was entitled to 30 points for her age; 50 points for her recognised qualification; and 10 points for work experience, making a total of 90 points. As the minimum total required was 100 points, the appellant s score was insufficient for her to be granted residence. [39] INZ advised the appellant that her claim for bonus points for having a recognised qualification in an area of absolute skills shortage had been declined because according to NZQA, her qualification was not comparable to a New Zealand qualification majoring in computer science. [40] As regards bonus points for work experience, INZ stated that the appellant's position of research assistant was not comparable to the occupation of IT professional as mentioned in the LTSSL and as that occupation is described in the Australian and New Zealand Standard Classification of Occupations ( ANZSCO ). While the appellant was responsible for computer science-related duties during her employment, INZ was not satisfied that the majority of her duties were at the level required. Further, she did not hold a qualification comparable to a New Zealand qualification majoring in computer science and so she did not meet the requirements of SM13.20 to be able to be granted bonus points for work experience in an area of absolute skills shortage. [41] INZ stated that the appellant was not entitled to bonus points for two years of full-time study in New Zealand towards a recognised New Zealand qualification, because the appellant had not completed her PhD. GROUNDS OF APPEAL [42] Section 18C(1) of the Immigration Act 1987 ( the Act ) provides:

11 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) (b) 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 The special circumstances of the appellant are such that an exception to that Government residence policy should be considered. [43] The appellant appeals on the ground that the decision of INZ was not correct in terms of the applicable Government residence policy and on the further ground that, if correct, her special circumstances are such that an exception to that policy should be considered. [44] The appellant provides undated submissions. The following are also produced: (a) (b) (c) (d) Copies of documents produced to INZ before the application was declined. Letter dated 30 January 2009 from Professor [DD], Vice Chancellor, [ABC University]. Letter dated 28 January 2009 from [EE], Director, Student and Academic Services, [ABC University]. Letter dated 2 February 2009 from the Member of Parliament for the electorate in which the appellant lives. ASSESSMENT [45] 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. [46] The application was made on 11 April 2008 and the relevant policy criteria are those in Government residence policy as at that time.

12 General policy requirements [47] Selections from the pool are made first with EOI s having a total points score of 140 or more being selected automatically (SM3.15.c.i, as at 30 July 2007). EOI s having a total points score of 100 or more but less than 140 and which include points for skilled employment are then selected (SM3.15.c.ii, as at 30 July 2007). The appellant s EOI was selected from the pool on 5 December 2007 with the total points claim of 115 but this did not include a claim for points for skilled employment. Accordingly, the Board understands the EOI to have been selected on one of the bases set out at SM3.15.1.b (as at 30 July 2007), which are as follows: SM3.15.1 Additional selection criteria b. Expressions of Interest will be selected by applying the criteria in the order in which they appear in (i) (iv), to the extent necessary to satisfy any exercise of the discretion under SM3.15 (d): i ii iii iv Expressions of Interest that include 15 points for work experience in an area of absolute skills shortage (in descending order of their points total); Expressions of Interest that include 10 points for work experience in an area of absolute skills shortage (in descending order of their points total); Expressions of Interest that include 10 points for a qualification in an area of absolute skills shortage (in descending order of their points total); the points total of Expressions of Interest not meeting any of the criteria in (i) (iii) (in descending order). Effective 30/07/2007 [48] The Board notes that the appellant did claim bonus points for work experience and qualifications in an area of absolute skills shortage and on that basis her EOI was selected from the pool. [49] An application for residence under the Skilled Migrant category will be declined if the principal applicant does not meet the criteria set from time to time by the Minister of Immigration, as per SM3.15.1, on the basis of which their EOI was selected from the pool (see SM4.15, as at 21 December 2005). [50] In essence, the appellant needed to score the claimed 10 bonus points for work experience or a qualification in an area of absolute skills shortage but also score a minimum of 100 points. INZ found the appellant was entitled to 90 points and her application was declined in effect because she was not awarded bonus

13 points as claimed, those points being required as a selection criterion in SM3.15.1.b and also to enable her to score 100 points in total. Policy requirements for bonus points in an area of absolute skills shortage [51] Recognised work experience in an area of absolute skills shortage of between two to five years qualifies for 10 points (see SM13.5, as at 30 July 2007) if it meets the following requirements (SM13.20, as at 4 April 2005): SM13.20 Work experience in an area of absolute skills shortage a. Recognised work experience is assessed as being in an area of absolute skills shortage if: i ii iii it was undertaken in an occupation included on the Long Term Skill Shortage List (refer Appendix 6); and it meets the specifications for that occupation; and the principal applicant* is suitably qualified by training and/or experience to undertake that work (including any specific requirements set out on the Long Term Skill Shortage List). b. Where the Long Term Skill Shortage List specifies that occupational registration is required for a listed occupation, principal applicants must demonstrate that they held occupational registration while undertaking the work experience, if occupational registration is required in the country in which the work occurred. [52] Similarly, recognised qualifications in an area of absolute skills shortage qualify for 10 points (see SM16.5, as at 30 July 2007) if the following requirements are met (SM16.20, as at 23 January 2007): SM16.20 Qualifications in an area of absolute skills shortage a. If a principal applicant does not have skilled employment in New Zealand in an area of absolute skills shortage (see SM8.20), they will be assessed as being qualified in an area of absolute skills shortage if they meet the specifications in Column 4 of the Long Term Skill Shortage List (see Appendix 6). b. If a principal applicant does have skilled employment in New Zealand in an area of absolute skills shortage (see SM8.20) their recognised qualification will be assessed as being in an area of absolute skills shortage if the specialist, technical or managerial expertise required for that employment was obtained through the completion of that qualification. c. Recognised qualifications in an area of absolute skills shortage only qualify for points if any occupational registration requirements relating to those qualifications are met (see SM19.15). [53] The LTSSL (as at 26 November 2007) contains a number of occupations described as Information (IT) Professionals for which an applicant must have a degree level qualification (Level 7) majoring in computer science, information science or information technology. It is that degree which is one of the

14 specifications or requirements for that occupation (as required by SM13.20.a.ii-iii) and it is the degree specified at Column 4 of the relevant part of the LTSSL (as referred to in SM16.20.a). [54] To qualify for bonus points for work experience or a recognised qualification in an area of absolute skills shortage, the appellant s recognised qualification had to be assessed as a level 7 degree majoring in computer science. The INZ finding that her qualification was not one majoring in computer science was critical to her ability to meet the criteria on which her EOI was selected from the pool and her eligibility for residence. It is this finding to which the Board turns. Qualification majoring in computer science Reliance on the NZQA opinion [55] The INZ finding on this issue was based on the opinion of NZQA that the major subject of the appellant's degree was linguistics and it was not overwhelmingly a computer science qualification. The subjects of computational linguistics and computer science were taken as minor subjects only. [56] Policy makes clear that, in the first instance, the level an applicant s qualification occupies on the Register is determined by NZQA (see SM14.5.a, as at 4 February 2008). NZQA assessed the appellant's degree as being comparable to a qualification at Level 8 of the Register. However, the question as to whether the qualification is one majoring in a particular area, as required in Column 4 of the LTSSL, and is therefore a qualification in an area of absolute skills shortage, is ultimately for INZ to determine. [57] It was correct for INZ to seek an opinion from NZQA on that issue but the opinion of NZQA on that matter could only be one of a number of factors INZ needed to consider when making this assessment. It was not determinative of that issue. As regards the actual NZQA assessment, the Board notes that NZQA actually stated that the appellant's qualification was obtained on completion of course requirements specialising in German linguistics, computational linguistics and computer science. In the assessment, NZQA specifically stated that it was prepared for the purpose of assessing the level of the Register the qualification occupied and that INZ determined immigration points. [58] INZ effectively treated the opinion of NZQA as determinative of whether the qualification entitled the appellant to bonus points when there was no basis in policy for doing so.

15 Failure to consider appellant s explanations [59] The documents provided by the appellant regarding her qualification indicated that German linguistics was a major subject and computational linguistics and computer science were subsidiary subjects (or minor subjects as the appellant described them). She claimed that in Germany students could take two majors or one major and two minor subjects which, considered together, comprised a second major course of study. The appellant submitted that computational linguistics was a sub-area of computer science and the two together constituted a second major. [60] In support of this claim, the appellant gave INZ the name of a website said to contain German education guidelines. While the name of the website was in German and may not have contained information in English, given the importance of this issue to the outcome of the application, INZ should have at least consulted the website and checked the accuracy of the claim she was making. It was incorrect to reject the claim being made by the appellant without taking those further steps. Evidence from computer science academics [61] In addition, the appellant provided submissions from a professor of computer science at [ABC University], who specifically stated that the thesis undertaken by the appellant for her Master s degree was in the area of computer science, an area of that field which the appellant is continuing to research as part of her PhD. The acting dean of the School of Computer and Mathematical Sciences at that same university submitted that a holistic view of the qualification had to be taken because the appellant s field of work in computational linguistics is inter-disciplinary and crosses the divide between computer science and linguistics. The area of computational linguistics required considerable knowledge, skill and expertise in computer science. [62] This evidence from suitably qualified professionals in this technical field strongly indicates that, as the appellant claimed, a second major of her Master s was computer science (the other area of computational linguistics being, it would appear, a part of that field). That impression is confirmed by the letters submitted on appeal by the appellant from the vice chancellor of the university as well as the director of Student and Academic Services, according to which the appellant was only allowed to enrol in a PhD in computer science at that university because she was considered to have a qualification in computer science. The vice chancellor

16 submits that had the appellant taken the courses completed for her Master s in New Zealand, she would have been awarded her degree with a major in computer science. [63] INZ ignored all of the references from the appellant s doctoral supervisor and the acting dean of the school. No reasons were given why that evidence was rejected and outweighed by the opinion of NZQA. In addition, INZ could have provided this information to the NZQA and sought comment on that. Similarly INZ could have given NZQA the website address provided by the appellant said to contain explanation of what comprised a major subject in a degree in Germany and sought comment. Neither step was taken and INZ could not properly assess this issue without evaluating the opinions of qualified experts in this field provided by the appellant. Other supporting information [64] The appellant provided evidence to INZ that she is highly skilled in computer science, including work experience in that field and also recognition of her skills by her peers and a well-known information technology organisation. While not determinative by itself, it did amount to evidence supporting her claim to have majored in that field in her degree. Findings on this issue [65] The Board finds that INZ has incorrectly assessed this issue and has therefore incorrectly declined this application. There is sufficient evidence for the Board to find that the appellant's qualification is one equivalent to a Level 7 degree majoring in computer science as required in the LTSSL. The appellant should be awarded 10 points for a qualification in an area of absolute skills shortage. She is then able to meet the additional selection criteria upon which her EOI was selected from the pool, and would also be eligible for residence subject to being assessed as having the ability to successfully settle in and contribute to New Zealand (the appellant not having at present skilled employment) (see SM4.5.b.v, as at 25 July 2006). [66] The Board notes that the appellant also claimed 5 points for two years of full-time study in New Zealand towards a recognised New Zealand qualification (see SM15.5.a, as at 4 February 2008), a claim that was declined by INZ. The Board agrees that the appellant was not entitled to points on this basis as she has yet to complete her PhD. It is clear from the wording of policy that a recognised

17 qualification means one that has actually been completed and conferred on the applicant (see SM15.1 (as at 30 July 2007) the aim of bonus points for study in New Zealand being to acknowledge time spent studying in New Zealand and completing recognised qualifications). [67] Having assessed the appellant as scoring 90 points, if awarded 10 bonus points for her recognised qualification, INZ would then have to assess the appellant's ability to successfully settle in and contribute to New Zealand. On completion of the award of her Doctorate degree, the appellant could be considered to have demonstrated that ability (see SM4.20.b.iii, as at 10 April 2007). [68] It is however appropriate for the Board to also examine the findings of INZ regarding the appellant's work experience and entitlement to bonus points for work experience. Work experience [69] INZ was satisfied that the appellant could be awarded 10 points for recognised work experience, being 16 months employment with the IT company and 11 months with the real estate company. In its assessment INZ found that the appellant had completed 57 weeks of employment for the German university but only 10 weeks had been explained and so this work experience was not recognised for points. That appears to have been because INZ was not satisfied that the appellant performed tasks related to computer science. However, the references she provided from the two professors at that university clearly showed that she performed tasks that were IT related. [70] Certainly that work could be regarded as relevant to her recognised qualification as required by SM11.10.a.ii (as at 4 February 2008) and as that requirement is defined at SM11.10.5 (as at 4 February 2008). INZ should have considered this as recognised work experience eligible for points. Bonus points for work experience [71] In its decision to decline the application, INZ appear to have rejected the appellant's claim to bonus points for work experience in an area of absolute skills shortage on the basis that she was employed as a research assistant, an occupation not listed in the relevant section of the LTSSL concerning Information Technology (IT) Professionals. Further, INZ regarded the majority of the

18 appellant's duties as being computer science related but not at the level required. INZ did not explain what that comment meant and what particular level the appellant's duties were supposed to meet to be regarded as consistent with an occupation as an information technology professional. That is a defect in the assessment of this aspect of the appellant's application. [72] INZ appears to have considered the general description of the occupation of ICT Professional from the ANZSCO and possibly decided that the appellant's work for the German university hospital did not come within that description. There is no need for the Board to set out that description here but the references from the two professors show quite clearly that the appellant's work could be considered as that of an ICT Professional, and if INZ considered that was not the case, then it should have given specific grounds for reaching that finding. [73] At any rate, as already stated, two years of recognised work experience in an area of absolute skills shortage qualifies for 10 points (SM13.5) and INZ indeed found that the appellant had completed in excess of that period through her work for the IT company and the real estate company. It would appear that INZ considered that while she may have completed that amount of recognised work experience as an information technology professional in those roles, she was found not to have a degree level qualification majoring in computer science. As stated above, that finding is incorrect. Other LTSSL requirements [74] However, to be awarded bonus points for work experience the appellant also had to show that her work experience was in an occupation on the LTSSL. There are 10 different occupations in the Information Technology (IT) Professionals group on the LTSSL, all of which have descriptions set out in the ANZSCO. In her application the appellant claimed that her work experience was in the occupation of Computer Application Engineer but INZ did not examine the ANZSCO description for this occupation. To properly determine her claim for bonus points INZ had to explore with the appellant the description for that occupation and how her work experience corresponded with that. [75] Also, the LTSSL specifies as a requirement for almost all of the occupations in the Information Technology (IT) Professionals group that, in addition to having the requisite qualification, the applicant must also have three years of relevant work experience. INZ found the appellant had completed at least 27 months of recognised work experience but the Board finds that INZ should also have

19 recognised the appellant s employment with the German university. Certainly, her employment for the three organisations could be seen as meeting the three-year relevant work experience requirement in the LTSSL. Summary of findings [76] The Board finds that the appellant's recognised qualification can be considered to be the equivalent of a Level 7 degree majoring in computer science. Accordingly, she is entitled to 10 bonus points for having a recognised qualification in an area of absolute skills shortage taking her points total to 100. She therefore meets the selection criteria on which her EOI was selected from the pool and she should now be assessed for her ability to settle in and contribute to New Zealand for her to be granted residence. [77] If the appellant is actually awarded her Doctorate degree in the meantime, then pursuant to SM4.20.b.iii, she can be considered to have demonstrated the ability to successfully settle in and contribute to New Zealand. STATUTORY DETERMINATION [78] This appeal is determined pursuant to section 18D(1)(e) of the Immigration Act 1987. The Board considers the decision to refuse the permit was made on the basis of an incorrect assessment in terms of the applicable Government residence policy. However, the Board is not satisfied the appellant would, but for that incorrect assessment, have been entitled in terms of that policy to the immediate grant of a permit. [79] The Board therefore cancels the decision of INZ. The appellant's application is referred back to the Secretary of Labour for a correct assessment in terms of the applicable Government residence policy, in accordance with the directions set out below. Directions [80] It should be noted that while these directions must be followed by INZ, they are not intended to be exhaustive and there may be investigations of other aspects of the application which remain to be completed or which require updating.

20 1. This application is to be reassessed by a different INZ officer in accordance with policy in existence at the date the application was made without payment of a further filing fee. 2. INZ shall proceed to assess the appellant's ability to successfully settle in and contribute to New Zealand. 3. In doing so, INZ will consider whether the appellant has been awarded her Doctorate, in which case she will have demonstrated that ability as provided for in SM4.20.b.iii...... P Millar Member Residence Review Board