Residence Appeal No: 47533  NZRRB 129 (18 November 2010)
Last Updated: 20 January 2011
RESIDENCE REVIEW BOARD
RESIDENCE APPEAL NO: 16351
A M Clayton (Member)
Representative for the Appellant:
M F Young
Date of Decision:
30 June 2010
INTRODUCTION The appellant is a citizen of China, aged 26. She made an application for residence under the Skilled Migrant category on 21 November 2008.  This is an appeal against the decision of Immigration New Zealand (INZ) declining the application because she was not eligible for points for skilled employment. INZ did not consider her role at a sushi bar to substantially match that of Retail Manager, an occupation on Appendix 11. Instead, INZ considered her role comprehensively matched that of Retail Supervisor, which is not on Appendix 11. She did not therefore qualify for sufficient points.  The issue on appeal is whether INZ was correct in its assessment of the appellant’s role, and whether it was skilled employment.
BACKGROUND The appellant has lived almost continuously in New Zealand since November 2002. Initially a student here, she obtained diplomas in business and marketing.  In August 2007 she began working for Foodmaster Limited trading as [ABC], which then had three sushi outlets. She trained until the [named] shop opened in October 2007 and then began work there as the Store Manager.  The appellant made an application for residence on 21 November 2008 and categorised her Store Manager job as Australian and New Zealand Standard Classification of Occupations (ANZSCO) code 133512 Production Manager (Manufacturing).  With her application the appellant supplied an employment agreement (1 March 2008) which described her as Store Manager on $15.00 per hour; an organisational chart showing the Director at the top and then the four shops, each with a Store Manager; and a job description.
 The job description states that the primary purpose of the appellant’s role is to plan and organise the running of the retail outlet. The Store Manager is to ensure that hygiene, safety and other relevant standards are met, to train and employ staff and maintain standards in regards to customer service, prepare budgets and cash flow, provide reports to the owner of the business, look after marketing and public relations, ensure accurate records are kept of the operation of the business, ensure that the business is well presented and product is of a high standard, receipt and reconcile cash and EFTPOS transactions, and ensure the premises are secure at the end of each business day. On 16 April 2009 an INZ verification officer made an unannounced site visit to [ABC] in [location stated] and identified the appellant at the counter. The interview notes record that the appellant said there are four individuals employed at the [named] outlet, herself as Store Manager, one Assistant Manager who works 20 to 30 hours per week and two part-time students (20 hours per week each) who make sushi and clean the floors. There are normally two people on each shift and sometimes the Manager from Wellington helps when she is away. The appellant works 40 hours per week at $15.00 per hour; she receives $31,200 per annum.  At this point the verification officer recorded that the average salary for a Production Manager 133512, according to the Career Services website, is $58,900; the appellant’s salary was significantly below that.  At the interview the appellant went on to describe her duties. She said she is responsible for checkout, controlling the quality of product and training all the new staff. She shows them how to make sushi and teaches them to be clean and friendly. She handles customers’ complaints. She writes down staff hours.  If she feels more staff are required, she will talk to the employer and then put them on a trial period. She faxes a list every week to Foodmaster to order stock but orders local products, such as avocado, herself and forwards the invoices to the employer.  The appellant is in charge of paying staff, using the computer which records staff hours and wages, and banking.  While she prepares a report every month on the internet from the bank statement, the company’s accountant accesses that information and looks after the GST returns and Employer Monthly Schedules.  The appellant talks to the employer about promotions, and markets the business using a membership card and other special shop promotions such as Mother’s Day.  The appellant monitors the temperatures of the fridge for food hygiene and makes sure the store is well presented and that stocks are full. Computer records indicate which sushi is selling the best and she or her employer can decide to change products or create new flavours for customers.  The appellant advised the verification officer that the Assistant Manager gives the money to the appellant to bank, and does not order stock.  In the conclusion of her report the verification officer acknowledged that the appellant was undertaking some management duties, but doubted whether she met the substantial requirements of the ANZSCO description of a Retail Manager. While the appellant undertook hiring, training and promotion of the business, she did not have authority to order stock, the finances were maintained by the accountant and, given the size of the business and number of employees, it was questionable whether the business required a Store Manager or an Assistant Manager. The verification officer’s opinion was that the appellant’s wage and position was more comparable to a supervisory role.  On 5 June 2009 INZ wrote to the appellant advising it was not satisfied that her role substantially matched the tasks outlined in either the ANZSCO code for Production Manager (Manufacturer) or for Retail Manager. Based on her job description and duties, it appeared her role comprehensively matched the requirements of Retail Supervisor, ANZSCO 621511, which is not on Appendix 11. This would mean she could only achieve a total of 90 points which was insufficient to meet policy.  The appellant’s agent responded on 22 June 2009, submitting that the appellant’s position “fully met” the requirements of Retail Manager. A letter from Foodmaster Limited (16 June 2009) set out the appellant’s tasks in detail and confirmed that she (verbatim):
“… was responsible for all areas of store operations, which including production and quality control, food costing and all other elements such as stocking, ordering and budgeting and any performance that might increasing the store’s turnover and maximising profitability. She is also in charge other retail activity: human resources; customer care; marketing; information technology; and administration.”
INZ Decision On 21 July 2009 INZ declined the appellant’s application on the basis that she did not organise and control the operations of the establishment, a responsibility that was reserved for “the boss at Foodmaster”. Her role at [ABC] did not substantially match that of Retail Manager but comprehensively matched that of Retail Supervisor, which meant she did not have sufficient points to meet policy.
GROUNDS OF APPEAL Section 18C(1) of the Immigration Act 1987 (“the Act”) provides:
“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) 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
(b) The special circumstances of the appellant are such that an exception to that Government residence policy should be considered.” The appellant appeals on the ground that the decision of INZ was not correct in terms of the applicable Government residence policy. The representative provided a submission dated 7 September 2009 and produced the following documents:
(a) A letter of support from the director of Foodmaster Limited (31 August 2009) stating that the appellant has been operating the [named] store without supervision or direction from him since October 2007 and was “vital to the success of the business”. She had managed the purchasing, budgets, expenses, stock control, business planning, sales forecasts and transactions. She had also promoted the business and arranged all business requirements and registration.
(b) [ABC] business plan (undated).
(c) Foodmaster Limited staff training manual in foreign script (one-and-a-half pages; signed by the appellant as Store Manager).
(d) Computer-generated lists of sushi products.
(e) [ABC named] store cleaning schedules.
(f) [ABC named] store sickness policy.
(g) Proof of a number of purchases in the appellant’s name from three different grocery suppliers and a chicken supplier.
(h) Local Council certificates of registration (July 2008, July 2009) under the Food Hygiene Regulations, with the appellant described as Manager.
(i) Promotional material and feedback from customers.
(j) [ABC named] branch application for employment which the appellant states she created.
(k) [ABC named] branch staff performance reviews signed by the appellant as reviewer.
(l) Customer research report (September 2008) created by the appellant.
(m) Three budget forecasts, six-monthly stock item sales reports, and three- monthly expense records, signed by the appellant.
(n) Computer-generated journal history enquiries.
(o) Handwritten staff hours.
ASSESSMENT The Board has been provided with the INZ file in relation to the appellant’s application for residence and has also considered the submission 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.  The application was made on 21 November 2008 and the relevant policy criteria are those in Government residence policy as at that time.
Skilled Migrant Category Policy The policy relevant to the assessment of whether the appellant’s employment was skilled was that in effect as at 28 July 2008:
“SM7.10 Skilled employment
a. Skilled employment is employment that requires specialist, technical or management expertise:
i obtained through the completion of recognised relevant qualifications; or
ii obtained through recognised relevant work experience; or
iii obtained through the completion of recognised relevant qualifications and work experience.
b. Assessment of whether an occupation is skilled for the purposes of Skilled Migrant Category (SMC) policy is primarily based on the Australian and New Zealand Standard Classification of Occupations (ANZSCO) which associates skill levels with each occupation.
Note: The ANZSCO is available at www.immigration.govt.nz/ANZSCO
SM7.10.1 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 11 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:
i the applicant holds a relevant recognised qualification which is at, or above, the qualification level on the Register (see SM14.5) that corresponds to the indicative skill level described for that occupation in the ANZSCO; or
ii the applicant has the relevant work experience that the ANZSCO indicates may substitute the required qualification; or
iii the employment is in an occupation included on the Long Term Skill Shortage List and the applicant meets the relevant requirements specified in column three of the Long Term Skill Shortage List for that occupation.
b. The occupation is included in part B of the List of Skilled Occupations held at Appendix 11 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:
i the applicant holds a relevant recognised qualification which is at, or above, level four on the Register (see SM14.5) (a qualification at level four on the Register must be a National Certificate); or
ii has the relevant work experience that the ANZSCO indicates may substitute the required qualification; or
iii the employment is in an occupation included on the Long Term Skill Shortage List and the applicant meets the relevant requirements specified in column three of the Long Term Skill Shortage List for that occupation.
c. The occupation is included in part C of the List of Skilled Occupations held at Appendix 11 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 has either:
i at least three years of relevant recognised work experience and a relevant recognised qualification which is at, or above, level four on the Register (see SM14.5) (a qualification at level four on the Register must be a National Certificate); or
ii at least three years of relevant recognised work experience and that current employment or the position in which the employment is offered, has an annual base salary of at least NZ$45,000.
Note: For the avoidance of doubt, the annual base salary excludes employment related allowances (for example overtime, tool or uniform allowances, medical insurance, accommodation) and must be calculated on the basis of 40 hours’ work per week.
d. Where a principal applicant’s* offer of employment or current employment in New Zealand does not meet the requirements of (a), (b), or (c) above they may nevertheless qualify for points for skilled employment if:
i their employment in the occupation will enhance the quality of New Zealand’s accomplishments and participation in that occupational area because the principal applicant has an international reputation and record of excellence in that field; and
ii the required expertise for the occupation has been gained through relevant recognised qualifications or work experience.
Effective 28/07/2008″ For the appellant’s employment to be classified as skilled, she had to meet the requirements of SM7.10.1.a, b, or c. (Her employment clearly fails to meet the threshold of SM7.10.1.d.)  SM7.10.b states that skilled employment is primarily based on the ANZSCO classification of an occupation. The appellant needed to demonstrate that her employment substantially matched the description of Retail Manager, including the core tasks of that occupation, as it is included in the List of Skilled Occupations in Appendix 11.
Retail Manager or Retail Supervisor? On appeal the appellant maintains that her role at the [named] branch of [ABC] substantially matches that of Retail Manager ANZSCO code 142111. INZ declined her application on the basis that her role substantially matched that of Retail Supervisor 621511, which is not on Appendix 11.
“Organises and controls the operations of a retail trading establishment.” Under the Unit Group 1421 Retail Managers, of which Retail Manager (General) is a subset, tasks include:
“‹› determining product mix, stock levels and service standards
‹› formulating and implementing purchasing and marketing policies, and setting prices
‹› promoting and advertising the establishment’s goods and services
‹› selling goods and services to customers and advising them on product use
‹› maintaining records of stock levels and financial transactions
‹› undertaking budgeting for the establishment
‹› controlling selection, training and supervision of staff
‹› ensuring compliance with occupational health and safety regulations”
The Unit Group 1421 stipulates that most occupations in this Unit Group have a level of skill commensurate with a New Zealand Register Diploma (ANZSCO Skill Level 2). The ANZSCO code for a Retail Supervisor 621511 describes the role as:
“Supervises and coordinates the activities of retail sales workers.”
“‹› ensuring that customers receive prompt service and quality goods and services
‹› responding to customers’ inquiries and complaints about goods and services
‹› planning and preparing work schedules and assigning staff to specific duties
‹› interviewing, hiring, training, evaluating, dismissing and promoting staff, and resolving staff grievances
‹› instructing staff on how to handle difficult and complicated sales procedures
‹› examining returned goods and deciding on appropriate action
‹› taking inventory of goods for sale and ordering new stock
‹› ensuring that goods and services are correctly priced and displayed
‹› ensuring safety and security procedures are enforced” The information the appellant supplied INZ to support her application comprised: her job description; the comments she made at the site visit on 16 April 2009; her submissions and those of her employer supplied to INZ on 22 June 2009; her employment contract and an organisational chart of the business.  On the [ABC] business plan (undated and unattributed, although it may possibly have been generated by the appellant), the appellant’s title is “[Named] Branch Store Manager”.  The business plan records that Foodmaster Limited trading as [ABC] was a concept established in 2006. There are four stores in the Wellington region, each managed “by an individual store manager and is run independently from all other stores”.  The appellant’s role is set out in her job description (see paragraph ). Along with the information about her job gained from the INZ site visit, evidently the appellant is one of two workers on any one shift, she employs and trains staff, and oversees food production, serving and cleanliness. She is authorised to purchase (some) food products. She is responsible for banking and recording expenses, hours worked and receipts, records which she presents monthly to the company’s accountant who attends to GST and PAYE. She handles any customers’ complaints and, in consultation with her employer, promotes sushi products through marketing campaigns such as membership cards and special occasion promotions (such as Mother’s Day).  Comparing her tasks to those of Retail Manager ANZSCO code 14211, the appellant would appear to perform many of those tasks on some scale or another. The two about which the Board has doubt are whether she in fact “determines” product mix, stock levels and service standards or “formulates and implements” purchasing and marketing policies, and sets prices.  Comparing her tasks to those of a Retail Supervisor ANZSCO code 621511 (see paragraph ), she appears to perform all those tasks which are, in the main, customer and staff focused.  In cases such as these, it is evident that a task for task comparison does not automatically reveal which occupation the appellant’s employment substantially matches. Perusing the tasks detailed in the two ANZSCO occupation codes, one can see the overlap of the tasks of a Retail Manager and a Retail Supervisor. ‘Management’ is a generic term, the meaning of which ranges from the ‘micromanagement’ of cleaning and locking up a takeaway food bar each day to, say, the management of a large company and a large number of staff. It is therefore a term that in the Board’s view must be construed relatively narrowly when considering whether an appellant’s position “substantially matches” a management position.  Turning to the reason INZ gave for declining the appellant’s application, INZ determined that she did not “organise and control the operations of a retail trading establishment” (see Retail Manager role, paragraph  above). It found that the final organisation and control was reserved for “the boss at Foodmaster”.  Several aspects of the decline decision need to be explored. A Retail Manager organises and controls the operations of a “retail trading establishment”. The establishment in this case is not the [ABC] ‘concept’ or company, it is the [named] branch. The business plan states that each branch of [ABC] operates independently of the other, but that does not take into account that in chains of this kind, many of the even day-to-day operations are organised and controlled by the parent company to some degree. For instance, membership cards will be a promotional tool used by all branches. The appellant buys some of the sushi ingredients but is not responsible for purchasing bulk items like rice. Effectively, much of the organisation is precast by umbrella policies and rules.  Because of the breadth of concepts such as ‘management’, ‘organisation’ and ‘control’, INZ is entitled to take into account the scope and scale of the operation in which the appellant is engaged on a daily basis. In the case of the [named] outlet, the operation is small. There are four individuals employed; the appellant, an “Assistant Manager” for 20 to 30 hours per week and two part-time students making sushi and cleaning, at 20 hours per week.  INZ needed to look at the appellant’s position holistically, and was entitled to compare it with other similar positions. INZ was also able to take into account wages, as salary can be an indicator of a position’s level of responsibility although not necessarily a trump factor. The appellant’s salary of just over $31,000 per annum is significantly lower than that of a ‘Production Manager’ of $58,900, but it is not known whether it is lower than that of a Retail Manager, as that comparison was never made.  The Board acknowledges that the appellant is described as a Store Manager and that her name appears as Manager, for example, on the business plan and on health regulation licensing, but this is not determinative. Also, the ‘substantial match’ must be proportionate in that if the appellant spends say 80% of her time serving at the counter and 20% of her time “managing”, she is not necessarily a Retail Manager. While the appellant’s job has aspects of retail management, that does not mean it must be so.  Of concern to the Board, however, is that despite exploring a number of these factors in its verification report, INZ did not articulate its reasons for declining the application on any basis other than that the appellant’s “boss at Foodmaster” was a Retail Manager, not the appellant. In its letter of 5 June 2009, INZ warned the appellant that it considered her role to substantially match that of Retail Supervisor, not Production Manager as she had claimed. In its decline it simply reiterated that her role substantially matched that of Retail Supervisor, not Retail Manager, because the responsibility for the organisation and control of the business was reserved for her “boss at Foodmaster”.  The Board is not convinced that the appellant is a Retail Manager but neither is it sure that the decision that she was not, was made correctly. INZ’s decline of her application, on the simple basis that she was not the one with the responsibility for the organisation and control of the operations of the establishment, which was “reserved for the boss at Foodmaster”, is simply not sufficient.
STATUTORY DETERMINATION 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. The Board is not satisfied the appellant would, but for the incorrect assessment, have been entitled in terms of that policy to the immediate grant of a permit.  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 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.
1. A correct assessment shall be undertaken by a case officer who has not been previously associated with the appellant’s file, on the basis of the Government residence policy effective when the appellant made her application, and with no requirement of an additional lodgement fee.
2. INZ will consider all the documentation lodged on appeal by the appellant and visit her at her job at [ABC] at a pre-arranged time to discuss her role and responsibilities. It shall also talk again to her employer separately.
3. INZ is entitled to enquire about average salaries for Retail Managers and Retail Supervisors and put that information to the appellant.
4. If INZ is not satisfied that the appellant’s role is that of a Retail Manager, it must put its reasons to her, in as much detail as is possible, and allow her to comment.
5. INZ will then make a final decision on the basis of all the information given to it by the appellant. The appeal is successful in these terms.
A M Clayton
Residence Review Board