新西兰百伦移民留学,100%免中介费留学签证,新西兰创业移民,新西兰投资移民...
 

 
 
导航中心
 

政策通知

最新政策
百伦通知
院校新闻

留学申请与签证

留学签证 * 100%免中介费
大学推荐
大学预科
理工学院
名牌中小学
特色移民课程
语言课程

签证辅导

旅游签证
技术移民
工作签证
投资移民
创业移民
家庭团聚
假日工作签证
银蕨签证
疑难案例
资料下载
常见问题

旅游行程安排

中国驾照翻译
商务考察
房地产考察
夏冬令营
住宿推荐
旅游保险
特价机票

投资项目推荐

房地产
生意买卖
新西兰产品
新西兰投资
新西兰生活
 
新西兰留学概括
 
新西兰留学概况
新西兰留学优势
新西兰留学条件
新西兰留学程序
 

新西兰移民留学资讯第一权威网站

官方微信平台:byron2005 客服微信号:jim-ni-2

上诉案例分析:无中介申请,西厨技能移民,本人上诉不成功
由 百伦移民留学 编辑于 2012-05-30 06:23:40 阅读:6511次

Residence Appeal No: 16307 [2010] NZRRB 9 (22 January 2010)

Last Updated: 12 January 2011

RESIDENCE REVIEW BOARD
NEW ZEALAND
AT WELLINGTON
RESIDENCE APPEAL NO: 16307
Before:
A M Clayton (Member)
Representative for the Appellant:
The appellant represented himself
Date of Decision:
22 January 2010
Category:
Skilled Migrant
Decision Outcome:
Section 18D(1)(a)

________________________________________________________________

DECISION

________________________________________________________________

INTRODUCTION

[1] The appellant is a citizen of China, aged 26. His application for residence includes his partner, also a citizen of China, aged 28.

[2] This is an appeal against the decision of Immigration New Zealand (INZ) declining the appellant's residence application because it did not consider his occupation, described as Assistant Chef, as skilled in terms of the requirements of Skilled Migrant category policy, in particular because it does not appear in Appendix 11 of the INZ Operational Manual. The principal issue for the Board is whether INZ was correct to decline the application.

BACKGROUND

[3] The appellant declares his mother and father are both doctors living in China. The appellant has been living in New Zealand, with a few visits out, since early 2002. He attended high school here and after attending English language courses and attempting other courses, he enrolled to study for a Certificate in Professional Cookery Level 4. His studies commenced on 9 February 2006 and ended on 6 December 2006. He was awarded his Level 4 Certificate on 8 December 2006.

[4] The appellant held student permits until 29 March 2007 when he was granted a work permit for "practical experience post study", working as a Chef at a food bar. In April 2008 he applied for and obtained a variation of the conditions of his work permit so that he could work as an Assistant Chef for [ABC] Restaurant. On 18 June 2009 he was granted a further work permit valid to 18 June 2010, this time as a Chef for [ABC] Restaurant.

[5] The appellant and his partner say they have been in a relationship since 2002. His partner, described as mini-bar attendant in the residence application and as a waitress on her medical certificate (in September 2008), declares that her parents reside in Great Britain. Like the appellant, she does not declare any siblings.

The Appellant's Expression of Interest

[6] Following receipt of the appellant's Expression of Interest an INZ case officer wrote to the appellant on 13 August 2008 and advised that because his qualification was at Level 4 but was not a National Certificate, it did not meet policy.

[7] On 20 August 2008 a representative for the appellant replied to INZ, advising that he had been employed full-time as a Chef "since July 2006".

[8] Enclosed was a letter (14 August 2008) from the director of the group owning [ABC] stating that the writer had been advised that the appellant's employment contract records him as a Kitchen Hand whereas it should state that he is a Chef. With 150 employees, the director submitted that errors such as this do occur.

[9] Also supplied was a letter from NZQA (12 June 2008) advising that the appellant's Certificate was "comparable to the National Certificate in Hospitality (Professional Cookery) Level 4".

The Appellant's Application

[10] On 25 August 2008 the appellant was invited to apply for residence. On 23 September 2008 he did so.

The Application and Attached Documents

[11] With his application INZ received a further copy of the letter from the appellant's employer (14 August 2008, see above) and also a copy of an employment agreement dated 25 March 2008, which states the appellant is a Chef, on $13.50 per hour, amended to $14.50 per hour as at 15 August 2008. There is no job description attached to the employment agreement and it is signed by a "[AA]" on behalf of the employer.

[12] On the INZ file is another employment agreement between the appellant and [ABC], like the first dated 25 March 2008, but completed in different handwriting and signed by another person on behalf of the employer, this time "[BB]". In this contract the appellant is described as "Assistant Chef" on $13.50 per hour. Once again no job description is attached.

[13] The appellant did not claim any recognised work experience on his application form.

Processing of the Application

[14] On 13 January 2009 the case officer assigned to the appellant's residence application wrote to him advising that while he had claimed employment as a Chef, his job description revealed his role was more that of a Cook than a Chef (the Board cannot locate the job description to which INZ refers here, unless it is the self-reported description on the appellant's residence application form).

[15] Copies of the Australian and New Zealand Standard Classification of Occupations (ANZSCO) codes for Chef and Cook were supplied by INZ. To qualify as a Chef the appellant was advised he had to hold a Level 5 Diploma or have three years' work experience as a Chef. He met neither of those requirements.

[16] The INZ also appeared to indicate that the appellant's employment could not qualify as a Cook, because he did not have at least three years' relevant recognised work experience in addition to his Level 4 qualification (which had to be a National Certificate), nor did he have at least three years' relevant recognised work experience (without a qualification) with an annual base salary of at least $45,000.

[17] On 16 February 2009 the appellant's representative responded, saying the appellant had been employed full-time as a Chef since March 2007. He had a qualification equivalent to a Level 4 National Certificate and there was no specific culinary National Certificate or Diploma at Level 5. He enclosed a letter from NZQA (16 February 2009) which confirmed that the only Level 5 National Diplomas in Hospitality were in Business Management, Management and Operational Management. The representative submitted that a person trained specifically in Professional Cookery is more qualified as a Chef than one who has studied managerial disciplines.

[18] The representative also noted that an alternative to the requirement for a Diploma was for an applicant to have at least three years' relevant experience to substitute for the formal qualification. It was submitted that the appellant had had:

"... at least three years of relevant experience during his two year intensive studies of the subject then followed by real world on the job training and experience ...".

[19] The representative quoted the Restaurant Association of New Zealand 'Remuneration Survey' April 2008 showing the average hourly rates of a Chef de Partie at $16.06, Commis Chef $14.68, Qualified Head Chef $20.42, and Sous Chef $17.32. He enclosed an "updated" (undated) job description for the appellant, signed by [BB], Venue Manager, describing the appellant's job title as Chef de Partie, responsible to the Head Chef and for "kitchen under staff". The job description set out the appellant's specific duties in nine bullet points.

INZ Decision

[20] On 9 June 2009 INZ responded, advising that the additional information set out in the 16 February 2009 letter did not meet the concerns raised in the case officer's first assessment of the application. This was because the appellant's employment contract stated that he was employed as an Assistant Chef, an occupation not contained in Appendix 11 of the Skilled Migrant category policy.

GROUNDS OF APPEAL

[21] 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."

[22] The appellant appeals on the ground that the decision of INZ was not correct in terms of the applicable Government residence policy. He provides a submission on his appeal form (received by the Board on 20 July 2009), and produces in evidence: copies of some of the correspondence already referred to in the Background section of this decision; ANZSCO code descriptions of Chef and Cook; copies of the two work permits entered in his passport; and a letter from the Executive Chef at [ABC] Restaurant (10 October 2009).

[23] In this letter the Executive Chef sets out his own work experience and describes the appellant as a "very valuable member of my team". On the Executive Chef's two days off per week the appellant is in charge of the kitchen and on those days reports directly to the Restaurant Manager. In the Executive Chef's absence he orders produce and liaises with suppliers if there are any delivery problems; he is in charge of one other Chef and trains him on new dishes; he is directly responsible for food quality and portion control, food hygiene and safety standards. In the Executive Chef's opinion, the appellant's level of responsibilities "... exceed the duties of a Chef de Partie".

ASSESSMENT

[24] The Board has been provided with the INZ file in relation to the appellant's residence application 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. This is followed by consideration as to whether the appellant's special circumstances warrant consideration of an exception to policy.

[25] The application was made on 23 September 2008 and the relevant policy criteria are those in Government residence policy as at that time. The policy relating specifically to the determination of whether employment is skilled is contained in SM7.10 and SM7.10.1:

"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.

__________________________________________________________________

...

Effective 28/07/2008"

Was the Appellant a Chef in terms of SM7.10.1.a and the ANZSCO Code?

[26] The occupation of Chef is included in Part A of Appendix 11 and therefore for the appellant's employment to be assessed as skilled, it had to substantially match the ANZSCO description for that occupation and meet the other requirements of SM7.10.1.a.

[27] The ANZSCO description for Chefs is as follows:

"UNIT GROUP 3513 CHEFS

CHEFS plan and organise the preparation and cooking of food in dining and catering establishments.

...

Indicative Skill Level:

Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

...

In New Zealand:

NZ Register Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification."

[28] Tasks include:

"‹› planning menus, estimating food and labour costs, and ordering food supplies

‹› monitoring quality of dishes at all stages of preparation and presentation

‹› discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff

‹› demonstrating techniques and advising on cooking procedures

‹› preparing and cooking food

‹› explaining and enforcing hygiene regulations

‹› may select and train staff

‹› may freeze and preserve foods"

[29] The Board recognises that the title given by an employer to a residence applicant undertaking a particular job is not determinative of the true nature of the applicant's occupation. In this case it did not matter whether the appellant was described as Chef or Assistant Chef if in fact his tasks substantially matched those of a Chef as listed on the ANZSCO.

[30] What INZ failed to identify was that the appellant supplied it with two employment contracts, both dated 25 March 2008, one which described him as a Chef and the other as an Assistant Chef, the second amended to show his pay had increased by $1.00 to $14.50 as at 15 August 2008. While, as already noted, the description of the appellant's occupation is not determinative, this anomaly should have been investigated to ensure it did not raise credibility issues.

[31] INZ was not entitled to come to a conclusion that the appellant's job was not skilled simply because "Assistant Chef" did not appear on the ANZSCO code independently of Chef or Cook. Specialisations of Chef are listed in the ANZSCO as Chef de Partie, Commis Chef, Demi Chef, Second Chef and Sous Chef. INZ should have assessed the appellant's job description (as already noted, it is not clear what, if any, job description INZ referred to - see paragraph 14), or even conducted a site verification, in order to assess the appellant's tasks against the task descriptions in the ANZSCO codes for Chef and Cook.

[32] On a prima facie basis the Board accepts that the appellant did undertake some of the core tasks of a Chef but, without further information, it cannot make a determination in that respect. In any event, the fact that his employment at [ABC] might have substantially matched the description for the occupation of Chef in the ANZSCO is immaterial, because he did not hold a relevant recognised qualification at or above the indicative skill level (a New Zealand Register Diploma - see following paragraph) described for a Chef in ANZSCO (as required by SM7.10.1.a.i).

[33] The ANZSCO Unit Group 3513 Chefs states that most occupations in this Unit Group have a level of skill commensurate with, in terms of New Zealand qualifications, a New Zealand Register diploma (ANZSCO Skill Level 2), or at least three years of relevant experience in substitution for a formal qualification. The appellant did not hold a New Zealand Register diploma and it is immaterial that a specifically culinary diploma is not on offer. The other Hospitality diplomas offered have direct relevance to the tasks of a Chef which include planning, monitoring and management duties.

[34] In the alternative, the appellant would have had to have the relevant work experience that the ANZSCO indicated might be substituted for the required qualification, that is three years' relevant work experience (as required by SM7.10.1.a.ii). He commenced working for [ABC] in or around March 2008 and therefore, in the absence of evidence of any other relevant experience, he did not have the requisite three years' experience.

[35] Finally, as to the second alternative set out in SM7.10.1.a.iii, the occupation of Chef is included on the Long Term Skill Shortage List (28 July 2008), but the appellant does not meet the requirements specified in column 3 of that List. That is, while he has the equivalent of a National Certificate in Hospitality (Professional Cookery Level 4) he does not have, in combination with that:

"a National Certificate in Hospitality (Professional Cookery) Level 4 AND a minimum of five years' combined experience in establishments offering á la carte, buffet/banqueting or commercial catering, with a minimum of two years at Chef de Partie (Section Leader) level or higher".

[36] Therefore, until the appellant has at least three years' relevant work experience or has obtained a relevant Level 5 qualification, his occupation cannot be classed as skilled, even if his employment substantially matches the description for the occupation of Chef, because he cannot meet the requirements of SM7.10.1.a.i or ii or iii.

Was the Appellant a Cook in terms of SM7.10.1.c and the ANZSCO Code?

[37] The occupation of Cook is included in Part C of Appendix 11 and therefore if the appellant could meet the ANZSCO code requirements for that occupation, together with the requirements of SM7.10.1.c.i or ii, his employment could be considered 'skilled'. The Unit Group 3514 Cooks puts the indicative skill level required in New Zealand as a New Zealand Register Level 4 qualification (ANZSCO Skill Level 3) or, in substitution, at least three years' relevant work experience.

[38] The appellant does hold a Level 4 Certificate, but does not have a New Zealand Register Level 4 qualification which is a National Certificate, which appears to be required by SM7.10.1.c.i. Even if the NZQA statement of comparability sufficed to meet this requirement, (that is, that the appellant's qualification can be taken to equal a National Certificate) in order to meet the second part of SM7.10.1.c.i the appellant needed, in addition, at least three years' relevant recognised work experience. As already noted, he did not have the requisite number of years' experience.

[39] As an alternative (SM7.10.1.c.ii) he needed at least three years' relevant work experience and his present employment would need to have an annual base salary of at least $45,000. At $14.50 per hour (less than any of the hourly rates for chefs, including a Chef de Partie at $16.06, as supplied by the Restaurant Association of New Zealand - see paragraph [19] above) for 40 hours per week, the appellant's annual salary would be a little over $30,000. He could not meet that requirement either.

Work Experience

[40] In effect the appellant's application was premature as he could not succeed under any of the provisions of SM7.10.1 because he did not have three years' work experience. The appellant did not claim any work experience on his relevant residence application, other than his work at [ABC]. INZ records reveal he had his work visa varied to work at [ABC] in April 2008. Therefore, he could not have three years' relevant work experience unless he could show that he did work as a Chef or a Cook for a food bar (see paragraph [4] above), and for an extended period. The representative's submission (see paragraph [18] above) that the appellant's "two year intensive study" together with his actual work experience amounted to three years, is not accepted. Nor, on the evidence to hand, is the claim that the appellant has worked full-time as a Chef "since July 2006" (see paragraph [7] above).

Conclusion

[41] As discussed above, to decline the application on the basis that Assistant Chef is not an occupation independently listed on Appendix 11 was technically incorrect. INZ should have assessed the appellant's job description against the task descriptions in the ANZSCO codes for Chef and Cook, and/or undertaken a site visit, rather than rely on descriptors supplied by the appellant and his employer. However, INZ's failure to do so is not fatal to the validity of its decision because the appellant could not meet the qualification and/or work experience requirements under the ANZSCO codes for Chef or Cook or under any of the various provisions of SM7.10.1. His employment could not therefore be claimed as skilled according to policy.

[42] Without points for skilled employment the appellant could not meet the required number of points for employability and capacity building requirements in the Skilled Migrant category. The Board finds that INZ's decision to decline the application, while not particularly well expressed in its decline letter, was correct.

Special Circumstances

[43] The Board has power pursuant to section 18D(1)(f) of the Act to find, where it agrees with the decision of INZ, that there are special circumstances of an appellant that warrant consideration by the Minister of Immigration of an exception to policy.

[44] Whether an appellant has special circumstances will depend on the particular facts of each case. The Board balances all relevant factors in each case to determine whether the appellant's circumstances, when considered cumulatively, are special. Special circumstances are "circumstances that are uncommon, not common place, out of the ordinary, abnormal"; He v Chief Executive of the Department of Labour (High Court, Wellington CIV 2008-485-1300, 13 November 2008, Ronald Young J) at [42].

[45] The appellant and his partner are 26 and 28 respectively and have lived in New Zealand for approximately eight years, a considerable time given their ages. Their parents have paid for their education and understandably they wish to stay on and obtain permanent employment here. While they both work in the hospitality industry and will undoubtedly have a network of friends and acquaintances, little information has been provided as to the real extent of their settlement in New Zealand. Neither have any siblings and both sets of parents live in China or Great Britain; thus neither of them have any family nexus to New Zealand.

[46] Both the appellant and his partner met character and health checks. However, their English language ability was never put to the test. The case officer dealing with the application accepted that they both met English language requirements on the basis that they had studied in New Zealand. However, INZ noted, at least in 2005, that the appellant was having difficulty with his studies because of the level of his English and INZ records also indicate that his partner enrolled in a number of different language schools before eventually obtaining a work permit, as the appellant's partner, in March 2007.

[47] The Board notes that the Executive Chef of [ABC] regards the appellant as a very valuable member of his team who takes charge of the kitchen on his two days off. The Board also notes that Chefs are on the Long Term Skill Shortage List. However, the appellant does not currently qualify as either a Chef or a Cook under Skilled Migrant category policy. His potential contribution to New Zealand cannot therefore be realistically assessed.

[48] As for his partner's possible contribution, the latest information as to her occupation is that she was a waitress (medical certificate, September 2008). Certainly the appellant did not claim any points for his partner's employment, qualifications or work experience on his residence application.

[49] The appellant and his partner have been in New Zealand for a lengthy period and the appellant has come relatively close to meeting the requirements of policy. Nonetheless, there is nothing special about their circumstances as disclosed to the Board that warrants a recommendation to the Minister that the appellant's case be considered as an exception to policy.

STATUTORY DETERMINATION

[50] This appeal is determined pursuant to section 18D(1)(a) of the Immigration Act 1987. The Board confirms the decision of INZ to decline the appellant's application for residence as correct in terms of the applicable Government residence policy. The Board does not consider that special circumstances exist which warrant consideration by the Minister of Immigration as an exception to that policy under section 18D(1)(f) of the Act.

[51] The appeal is unsuccessful.

..................................................

A M Clayton

Member

Residence Review Board


 


报名或索取更多资讯,电邮:中国办公室:3681588@3681588.com 新西兰办公室:3681588@gmail.com

 百伦移民留学咨询师团队

   

电话:中国+86 21 6095 6827 新西兰+649 3681588

获得新西兰的移民局通知和最新的信息,关注我们的官方微信 平台:byron2005

关注我们客服Jim Ni的个人微信号:jim-ni-2 ,请添加好友。

 

 

关注 新西兰百伦的 微博

关于百伦 | 合作伙伴 | 代理加盟 | 诚征英才 | 联系我们 | 学生通道
©2005-2015 ★百伦移民留学★ 新西兰●澳大利亚 Byron International
 

 

 ICP备 管理入口  微刊管理入口  客服