SKILLED MIGRANT CATEGORY
Lexis Nexis Conference
June 2007
The Skilled Migrant Category:
1. Introduction
1.1 The focus of this paper is on legal and interpretive problems within the current Skilled Migrant Category contained within current residence policy, focusing particularly on cases and developments over the last twelve months. Written policy is binding on immigration officers and on appeal, though the Residence Review Board has a discretion to recommend an out-of-policy exception to the Minister of Immigration (section 18D(1)(f))). The Minister also has the power to make an exception in the first instance (section 13C(2)). That power currently cannot be delegated.
1.2 The Minister of Immigration’s 6 June 2007 announcement contains a promise to introduce a change by November this year to the policy definition of “skilled”, which will go some way, it is believed, towards reducing the high threshold arising out of the use of the word “considerable” (and prior to that “significant”) from the definition, and the return to a more transparent system involving occupation classification. Intending overseas students about to embark on an enormously costly project, and workers considering whether to uproot their families to come and work in New Zealand, will again be able to sensibly and safely predict whether their work experience and/or their job offer will be defined as skilled and residence will be ultimately achievable. For thousands of people that is the primary question. A concern is that government officials may not be aware of the amount of harm, heartache and frustration that the current policies and the changes that have occurred mid-stream have caused. Further there is no explanation why the current arrangement was allowed to arise in the first instance.
1.3 For a more detailed examination of the controversy see Immigration Practitioners Bulletin 2007, (Issue 2, p35), the author’s article “When is skilled too skilled?”. The de-establishment of a presumption (Appendix 11) that a given occupation is skilled that took place in the 13 December 2004 policy changes has to have been ill-considered. It forces each immigration decision-maker to focus on an assessment of each actual job offer with of course the obvious conclusion that straight-out-of-tertiary graduates working in even high-shortage occupational groups are unlikely to pole-vault over the bar created by “considerable, specialist, technical or managerial (or management) expertise”. One might ask, when does a new graduate reach the level required by “considerable expertise”? I have argued elsewhere, but repeat here, that this is not the outcome that those who have assiduously consulted Immigration New Zealand’s promotional material are led to expect. Moreover this must surely be a (if not the) major factor in the downturn of overseas fee-paying student numbers. It is not a matter that should wait until November 2007, and further, the change needs to be retrospective. A full policy re-think or re-shaping of Appendix 11 can wait but an immediate deletion of the word “considerable” and the reinstatement of the Appendix 11 presumption by changing the inter-clausal connectors back to the way they were previously prior to the December 2004 amendment, can be achieved overnight.
1.4 Currently the system requires an immigration officer to go on a fact-finding mission to interrogate the applicant and his or her employer (often unannounced) and to find out (sometimes by surprise) what the functions of the newly graduated employee are. This creates a largely unhealthy focus on the current functions in a work environment that the immigration officer is neither trained nor qualified to assess, and encourages little or scant regard be paid to the employment potential of the employee as they progress through a (skilled) career path. A focus on occupational definition rather than on what job the graduate has been lucky enough to land for him or herself (it would appear this is the particular focus in Australia) is clearly a far more equitable way to proceed. The reason the policy reached the current point is, in the writer’s view, a result of reactive policy changes that were driven by and large as a response to the immigrants-without-jobs controversy in turn largely driven by an ill-informed media (and at times parliamentarians capitalising on electorate concerns about immigration).
1.5 The definitional change mooted by the 6 June 2007 Ministerial announcement is a welcome relief. The remaining concern is that those who have fulfilled what they thought was their part of the bargain and have forked out $40,000 to $60,000 in student fees (or their parents have), got their job offer and have poured themselves into their job on a graduate work permit for six months, have an application pending or on appeal that is absolutely bound to fail, because even if their job offer is “skilled” it probably will not reach the high threshold of “considerable expertise”.
2. Case law : The definition of “skilled”
2.1 Residence Appeal 14873 (8 June 2006) M A Poole Bank officer (Customer Service consultant) skill held not to be “considerable”. See Immigration Practitioners Bulletin, 2006, (Issue 2, p35) for an in-depth discussion. A bank officer but arguably on a career path - residence refused. Considerable means “notable and important”.
2.2 Residence Appeal 15325, 31 May 2007, M A Poole Bookkeeper. Position not skilled. Job essentially involved that of an entry level accounts clerk.
2.3 Residence Appeal 15294 (19 April 2007) P Millar. Husband purchased construction sites and provided a job offer to his wife to work as administrative manager. Held that as the work was clerical in nature, it did not reach the high threshold of finance manager or office manager which it was held require functions involving the planning, organising and coordinating through subordinate managers or supervisors, and strategic planning within an organisation (para 31). (Query: It is doubted that a hierarchy of managers is required to meet the definitional requirement of “considerable expertise”).
2.4 Residence Appeal 15208 (13 April 2007) V S Vassiliadis – declined – Office manager.
2.5 Residence Appeal 15114 (23 March 2007) V S Vassiliadis. Marketing manager. A position is not skilled simply because the person has qualifications or skills. Payment was below the market rate for a marketing manager. A large part of the role was in serving customers.
2.6 Residence Appeal 15075 (31 January 2007) M A Poole, Church Pastor. Minimum wages not met (contract was in fact unlawful). Not skilled. (Query: It is not clear why remuneration is a necessary component of a skilled occupation – what about doctors and teachers working for VSA or any other charitable organisations for no reward).
2.7 See also Residence Appeal 15131, E M Riddiford, Pastoral Assistant and Assistant Chaplain. No finding that the position was not skilled but minimum wages were not met (see discussion below). A new job offer had been provided on appeal and the matter referred back leaving open the question of considerable expertise.
2.8 Residence Appeal 15104 (30 January 2007) B H Slane, Shop Manager. Shop manager for a fast food chain – not skilled. This case was filed when the policy required “significant” rather than “considerable”. Equated “significant” with “considerable” and held to be similar to Residence Appeal No 14873 (8 June 2006) above. Appeal unsuccessful.
2.9 Residence Appeal 15107 (19 March 2007) B H Slane, Practice Managers. Patient co-ordinator for optometry practice not skilled. More in line with receptionist and sales assistant.
2.10 Residence Appeal 15111 (30 March 2007), Halal Slaughterman Not skilled, requires six months to learn. But special circumstances (loss of home in Fiji and an ongoing shortage in New Zealand, family well settled). Minister approved the exception.
2.11 Residence Appeal 14981 (27 September 2006) A M Clayton Internet Customer Service Administrator. INZ had failed to place the revised job description before ITANZ for comment. Appeal upheld, referred back.
3. Work experience
3.1 Residence Appeal 15333 (30 April 2007) G Melvin. Must be for remuneration. The Board argued that experience in home-schooling could not be work experience as it was not for remuneration. Stated that a common element to both self-employment and employment is remuneration. (Query: the case does not however examine the many circumstances where work could be skilled but not for remuneration – but for example voluntary. Voluntary service abroad (Médecins Sans Frontières), charitable work, eg, religious orders to name but a few. It is arguable (in the writer’s view) that “employment” does not always require remuneration and to impose such a concept as a necessary element in the writer’s view is an error of law, though the ultimate decision in this case may be correct (possibly on credibility grounds).)
4. Occupations that require registration
4.1 Where the applicant has a general degree but work experience is in an occupation requiring registration, it is not possible to link the general degree (rather than the subsequent vocational degree) to the work experience in order to circumnavigate the registration requirements: Residence Appeal 15201 (10 April 2007) S Pearson (Bachelor of Arts and work as an architect after a Bachelor of Architecture). Appeal dismissed.
5. Settlement and contribution capability
5.1 Residence Appeal 15227 (30 March 2007) A M Clayton. Error to work backwards from SM20.10.d and require that a person have a high potential to readily obtain “skilled” employment, ie, does not have to be a job which requires “considerable, specialist, technical or management expertise”. Other factors must also be given meaningful weight. Appeal upheld, referred back. (Comment: A good example of “policy leakage”.)
5.2 Residence Appeal 15159 (19 March 2007) V J Vervoort. Failure to provide reasons why the appellant had not demonstrated potential to settle. Interview report was not complete. Appeal upheld, referred back.
5.3 Residence Appeal 14900 (22 August 2006) The matrix rules form no part of the policy relating to settlement and contributions requirements. (Cf the author’s complaint at the Lexis Nexis 2005 Conference re “Proposal Assessment Tool” used in assessing LTBV applications for a period of time.)
5.4 Residence Appeal 15165 (16 March 2007) V J Vervoort. Appellant from India. Not correct to conclude that work experience etc had to be from a comparable market, in order for that work experience to be counted as a positive settlement factor. (Comment: again, policy leakage at the INZ level.)
5.5 Residence Appeal 15139 (28 November 2006) P Millar. Failed to put the grounds of failure to meet the settlement criteria to the appellant. INZ had failed to question the appellant on his extensive work experience (20 years). The appellant was an engineer and on the LTSSL (Long Term Skills Shortages List). No evidence on the file INZ considered the occupational shortage issues (surely a relevant mandatory consideration). Questions put at the interview were cursory and brief.
5.6 Residence Appeal 14869 (28 July 2006) M A Poole. The settlement and contribution interview needs to look broadly at the past work experience and to explore relevant considerations.
6. Whether job offer is sustainable
6.1 Residence Appeal 15263 (29 March 2007) G Melvin. Work permit as a cameraman, job offer as a “video editor, graphics and cameraman”. Position not sustainable owing to evidence the employer could not pay the worker’s salary. The company was not on a sound financial footing and employment of the appellant when the work permit permitted employment for a different employer indicated the employer was not immigration-law-compliant. (Query whether this is another type of example which indicates that ultimately a focus on the actual job offer rather than the applicant’s attributes is inherently unfair – it may not be the fault of the hapless would-be immigrant that he occasioned upon a company or employer in the throes of collapse. What makes this employee less worthy than the next one who struck it lucky and obtained a job offer from an employer deemed by INZ to be more worthy?)
6.2 Residence Appeal 15232 (29 March 2007) A M Clayton. Employee had been paid. INZ assessment that employment was not sustainable. Prejudicial information relating to the financials had not been put to the employer. Appeal upheld. (Comment: the employer could have, outside the business, major assets and be in a position to inject cash into the business, or perhaps the financials for tax reasons were designed to show a loss as a result of accounting policies used. Who knows!) See also Residence Appeal 15236 (22 May 2006), and discussion in Residence Appeal 15371, (31 May 2007), P M Millar.
6.3 Residence Appeal 15119 (28 November 2006) P Millar. INZ found job offer not genuine because no work permit application had been made and employer was not making an effort to fill the position. The fact that the employer was willing to keep the position open to the appellant did not mean it was not genuine. INZ said that since the appellant was not of “international reputation” and had no record of excellence it was not believable the position would be held open. (Comment: passages from Alice in Wonderland spring to mind). Appeal upheld.
Fairness: Employer’s vagueness
6.4 Residence Appeal 15092 (9 November 2006) S Joe. Decline had stated that the major issue was the employer’s vagueness. The officer stated she was not convinced by the representative’s submissions, but gave no reason why she was “not convinced”. Appeal upheld and referred back.
6.5 Residence Appeal 15230 (24 October 2006) M A Poole. Position not sustainable. Employer was not paying the employee the amount stated in the contract, financial report indicated employee’s wages unsustainable. (Comment: poorly capitalised businesses should refrain from sponsoring immigrants – but is it the immigrant’s fault?)
7. Remuneration below the market rate.
7.1 Query whether it is correct that employment below the market rate means that the requirements of New Zealand Immigration Law is not being met. Appeal declined: Residence Appeal 15114 (23 March 2007) V S Vassiliadis.
8. Skilled Migrant category medical waivers
8.1 Residence Appeal 15102 (29 March 2007) B H Slane. Child deaf and would require special schooling at a School for the Deaf at $15,000 per year. The child was highly intelligent however and potentially could be eventually mainstreamed. There was no basis for the finding of $15,000 per annum. Appeal upheld and remitted.
8.2 Residence Appeal 15195 (31 January 2007) G Melvin. – Hepatitis CINZ failed to advise medical waiver factors and failed to consider relevant factors. INZ had argued that potential contribution to New Zealand was thwarted as the applicant would not be able to find employment and contribute. The appellant was asymptomatic and had been in continuous employment since 1991. Appeal upheld, and remitted.
8.3 Residence Appeal 14906, P Millar. Applicant’s wife had renal disease. Opinion of consultant physician brief and cursory. Appeal upheld and remitted.
8.4 Residence Appeal 15065 (19 December 2006). Daughter with spinal muscular atrophy – confined to a wheelchair. Mainstream education in South Africa, above average academically. Consultant Physician had not considered the applicant’s present state, the prospective need for support services (mother did not work), etc. Appeal upheld. Some discussion of the fact that INZ has no discretion to accept undertakings as to cost though the Minister can impose any requirements under S18A(3) when making an exception.
9. Chefs
9.1 The absence of a qualification is not fatal. The assessment must still be made as to whether the position is skilled (SM7.10.1.b, (i) or (v)): Residence Appeal 15185 (30 March 2007) E M Riddiford.
9.2 Residence Appeal 15190 (15 January 2007) A M Clayton. Policy that applied was that prior to inclusion of the occupation in Appendix 11. Conclusion that the employment was not comparable (SM7.10.1.b.iv – the employment will contribute to New Zealand’s future growth) but with no reasons as to why that conclusion was reached, meant the decision was flawed. Level 3 did not necessarily mean the person was not skilled. Appeal upheld and remitted.
10. Good character issues
10.1 Residence Appeal 15141 (31 January 2007) G Melvin. Wrong information on EOI. Intention is required for an error to amount to a good character breach (Chiu v Minister of Immigration [1994] 2 NZLR 541 (CA)). Discussed whether the jurisdiction of the Board is ousted because the invitation would not have issued but for the putative misrepresentation, ie, whether a mens rea element is implicit in s18C(2A)(b)(i). Held that intention is required. The case involved a mismatch between the job title in the EOI and the actual job. The matter had not been adequately addressed and no adverse character- finding had been made. Appeal upheld.
10.2 Residence Appeal 14840 (11 May 2006) G Melvin. False information arose because name used on the EOI was different from the name used on work references. Chiu applied, appeal upheld, no intention established (and held that there must be evidence that establishes on the balance of probabilities that the person has deliberately and dishonestly mislead or provided false information). (Author’s note: it is quite common for persons in some cultures to be known by a name other than their official name – in any event the use of more than one name does not create a presumption of dishonesty.)
10.3 Residence Appeal 14978 (29 May 2006) D Plunkett. Failure to advise on the EOI work that was unlawful meant section 18C(2A) applied and the Board had no jurisdiction to hear the appeal. An informant had advised that the applicant had been working outside of the authorisation of his temporary permits. The Board concluded unauthorised work whilst on a temporary permit was information that was required to have been given to the officers processing the temporary permits and the applicant consequently had failed to give advice on his EOI that he had misled or withheld material information in the course of a previous (permit) application. Jurisdiction was withheld on the theory that had the information (the information about working without the correct permit) been correctly inserted on the EOI, the invitation to apply would never have been issued. The difficulty with this decision is that it rests on a hypothetical finding that the required confession would have led to a permit refusal.
10.4 The fact that a person works outside of policy requirements is however not necessarily fatal. It would be important to remind ourselves that working without a correct authorisation, whilst a breach of immigration policy requirements, is not an offence under immigration law (whereas for an employee to employ someone without authorisation is). Although unauthorised work cannot be condoned or encouraged, the foundation upon which the Board rests its decision is based on an obligation to provide information in circumstances in which no question has been put. The EOI form does not ask whether the person has ever worked without proper immigration authorisation. There is also no question on any of the temporary permit application forms requiring that information. Neither is it the case that the ordinary applicant would necessarily anticipate that such information would be a relevant fact, or find it necessary to volunteer such information. In addition, further temporary permits are regularly granted notwithstanding such information. An employee for example might be left impecunious by the actions of a former employer, or an unexpected tragedy, or any number of mitigating circumstances. It is arguable that a requirement to provide information which might be of use in a permit decision-maker’s risk assessment or a requirement to provide all potential information which might be of relevance will create a far too heavy burden on the applicant. Where does it stop? Is a student permit applicant required to advise a permit officer that he or she has commenced relations with a New Zealander, and is toying with the idea of trying to stay permanently misleading, if he does not disclose the information? Is every visitor who has in the back of his/her mind a goal to reside misleading by not venturing this information at the border? At the end of the day everything is material but to varying degrees. The requirement to provide information where no question has been asked ought not for policy reasons be made too onerous.
10.5 See also Residence Appeal 15015 (16 October 2006) G Melvin. The appellant it was held knew that one of his children had mild autism at the time of his application. No question on the EOI was answered incorrectly (but the medical form on the residence application was) and the Board held that the appellant had not withheld relevant information on the EOI (and so had jurisdiction to entertain the appeal). Further, the fact that the child had assaulted a female child sexually at intermediate school was not a change of circumstances event that would require disclosure and the failure of which would oust the Board’s jurisdiction under 18C(2A)(b)(ii). However autism had not been referred to in answer to one question on the medical form submitted with the residence application although the condition was in fact referred to in another document filed with the application (a Family Court decision). The question then remained whether the incorrect information on the medical form was intentional. Chiu was applied and the appeal upheld, leaving the good character waiver issues to be determined.
10.6 In the good character context reference should be made to a High Court case: Janjua v Chief Executive of the Department of Labour, unreported CIV 2003-404-472, 24 Feb 2004, Heath J. The Court held that on the facts the applicant had been warned sufficiently of the good character issue in correspondence and that in those circumstances there was no breach of natural jurisdiction in not enumerating (cutting and pasting) the waiver factors. (Comment Janjua is confined to its facts; normally INZ is required to provide advice in relation to good character waiver issues, but the mark of a good advocate will be to address the issues when they arise and to avoid unnecessary appeals (provided there is an explanation or mitigating factors).)
11. Age requirements
11.1 Residence Appeal 15020 (3 November 2006) B H Slane. The appellant nurse turned 56 between invitation to apply and lodgement. Invitation to apply was issued with a deadline of four months. Application was filed within the four months but after the birthday. Board exercised special circumstances jurisdiction (and Minister concurred).
12. Job offer: applicant having ownership in the employing company:
12.1 Residence Appeal 14980 (4 October 2006) M A Poole.
13. Conclusion
13.1 The above discussion suggests that in general the Board takes a literalist view of policy provisions (the definition of “considerable”) however looks carefully at natural justice procedural issues. The approach taken in Residence Appeal No 14978 (29 May 2006) is of concern but other cases do not yet seem to have arisen, so it may be too early to tell whether other Members will follow the lead. The Board’s approach to “considerable skill” appears to be uniform but it has been argued is too severe.
13.2 On a wider note, changes to policy where policy has been relied upon remain reviewable in the High Court on a case by case basis (and arguably by way of class action). Arguably the shift in the way in which post-study job offers were treated is one such instance. In other cases appeal rights to the High Court against decisions of the Residence Review Board, left unexercised, may mean that some cases determined by the Residence Review Board ought not to be followed.
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