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由 百伦移民留学 编辑于 2012-05-30 06:29:07 阅读:6434次

Residence Appeal No: 16321 [2010] NZRRB 14 (29 January 2010)

Last Updated: 12 January 2011

RESIDENCE REVIEW BOARD
NEW ZEALAND
AT WELLINGTON
RESIDENCE APPEAL NO: 16321
Before:
A M Clayton (Member)
Representative for the Appellant:
P W Kündig
Date of Decision:
29 January 2010
Category:
Skilled Migrant
Decision Outcome:
Section 18D(1)(a)

________________________________________________________________

DECISION

________________________________________________________________

INTRODUCTION

[1] The appellant is a citizen of China, aged 27. She made an application for residence under the Skilled Migrant category on 17 July 2008.

[2] This is an appeal against the decision of Immigration New Zealand (INZ) which declined the application because it did not consider that the appellant's employment substantially matched the occupation of a Sales and Marketing Manager, and therefore did not accept that it was skilled in terms of Skilled Migrant category policy. The principal issue for the Board is whether that was a correct decision and, if so, whether the appellant has special circumstances such as to warrant an exception to policy being recommended to the Minister.

BACKGROUND

[3] In her application lodged with INZ on 17 July 2008, the appellant claimed 50 points for her current skilled employment in New Zealand for less than 12 months. With her position described as a "Market Development Manager", for a small [A city] export company, she claimed that her occupation fell into ANZSCO Code 131112 Sales and Marketing Manager.

[4] In the job description she supplied, her key responsibilities were described as (summarised by the Board):

1. Understanding and familiarising herself with the products available in New Zealand for sale to purchasers in China, her employer's primary business being purchasing and selling recyclable waste from New Zealand. This involved planning, developing and relationship-building with Chinese purchasers.

2. Carrying out research on new types of recyclable waste required by purchasers in China and their availability in New Zealand; creating promotion strategies to reach target markets in China and in particular creating purchasers' awareness of the attributes of goods from New Zealand.

3. Travelling to China and around New Zealand to carry out research duties on potential demand, collecting and analysing data and other statistical information.

4. Reporting to the employer on research and communications with potential buyers and suppliers after analysing consumer patterns and preferences.

5. Advising the employer on all elements of marketing, including product mix where necessary, pricing, advertising and sales promotion and distribution channels in China.

6. Together with the International Trade Manager, dealing with buyers and suppliers and using market strategies to enhance business growth.

[5] The key results identified in the job description were to ensure that more recyclable products are purchased and exported from New Zealand and that relationships are maintained with buyers in China.

[6] The appellant also claimed 50 points for her [ABC] University Bachelor of Commerce and Management majoring in Marketing (April 2008). The appellant did not claim points for any work experience other than her employment at the [A city] company since 1 November 2007.

[7] On 14 January 2009, an INZ verification officer made a site visit to the appellant's employing company. It was confirmed that the appellant had a permanent full-time position there, on $35,000 per annum.

[8] The company director stated that he had offered the position to the appellant after advertising two positions, but that he had already known her and her flatmate, another young Chinese woman who became the company's Export Manager, for four years before that. The interviewer noted that while the director had formerly stated the appellant's position was as the Market Development Manager, he described her as the Operations Manager in the interview. The director also called the appellant's colleague, formerly described as Export Manager, the Marketing Manager. The interviewer was concerned that there was some confusion as to the respective positions of the appellant and her colleague, who had both been employed at the same time, lived together as flatmates, and had applied for residence at the same time.

[9] The director outlined the appellant's duties as "doing all documents and financials", tax invoices and customs clearance, dealing with shipping and transport, and dealing with all clients in New Zealand and overseas companies when English is required as her English is better than his. He speaks Chinese with their Chinese clients. She also does research on recycling demand and is required on a weekly basis to do an on-line check of the movement of oil prices, which affect plastic prices. She is required to send reports and prices to clients and reports to the director about this. She must also talk to clients about possible business and had gone to China in October 2008 for that purpose. She also assists her colleague with dealing with buyers and sellers and with company billing.

[10] At the time of the interview the appellant and her colleague were not present and the director advised the interviewer that they were away packing a container. The appellant's colleague had to go to make sure that the containers had the correct products and the appellant was assisting her doing that. Packing containers would take up between six to eight hours per week.

[11] The director explained that the appellant's role was to get new business whereas her colleague's role was to organise and finalise that business. The interviewer's concern was that the tasks of the two employees seemed to overlap. The company had previously been run by the director with an office manager; the director still had an active involvement in the company and the interviewer considered that only one position was required.

[12] As to the sustainability and financial position of the company, the interviewer had no concerns. S/he did have a concern, however, over the genuineness of the appellant's employment offer, given that the director had known both the appellant and his other employee for four years prior to employing them, had employed them at the same time and they had applied for residence at the same time.

[13] INZ received a completed employer questionnaire on 3 February 2009. Financial statements relating to the business and to salary payments were also provided. Other than the director, who maintains an active role in the company, the only employees are the appellant, her colleague who is Export Manager, and a part-time administrative person.

[14] Following the site verification, INZ wrote to the appellant on two occasions (11 February and 4 May 2009). The appellant's representative responded on 23 April, 18 May and 5 June 2009.

[15] INZ declined the application on 15 June 2009. Referring to the responses it had received, INZ's letter stated:

"‹› Your employment contract and job description state you are employed as a Market Development Manager with [DEF] Limited. In order to be considered skilled under Skilled Migrant policy, the occupation needs to be listed on Appendix 11 of our policy, as well as meeting all the requirements set out at SM7.10 and SM7.15 (as enclosed). It also needs to meet the requirements set out by the Australian and New Zealand Standard Classification of Occupations (ANZSCO). As the occupation of Market Development Manager does not appear on Appendix 11, it is not considered to be skilled for the purposes of this policy.

‹› However, the occupation Sales & Marketing Manager (ANZSCO code 131112) appears on Appendix 11 and we have considered your employment against the requirements of this ANZSCO code. We acknowledge that some of the tasks you perform match this category, but you do not carry out the majority of these tasks. In addition, the fact that you are tasked with a lower level of managerial responsibility is reflected in the level of pay you receive, which does not correspond with the market rate for sales and marketing managers with a high level of managerial responsibility.

In conclusion, whilst it is not disputable that you are involved in aspects of sales and marketing for your company, the fact remains that the level of management that your role occupies at present does not meet Skilled Migrant policy requirements for skilled employment."

GROUNDS OF APPEAL

[16] 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."

[17] The appellant appeals on the grounds that the decision of INZ was not correct in terms of the applicable Government residence policy and in the alternative that, if the decision was correct, her special circumstances are such that an exception to policy should be considered.

[18] The representative provides a submission in support of the appeal which was lodged on 31 July 2009.

ASSESSMENT

[19] The Board has been provided with the INZ file in relation to the appellant's application for residence and has also considered the submission 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 a recommendation to the Minister that he consider an exception to policy.

[20] The application was made on 17 July 2008 and the relevant policy criteria are those in Government residence policy as at that time. To obtain sufficient points for employability and capacity building requirements in the Skilled Migrant category, the appellant's employment had to meet the requirements of SM7.10 and SM7.10.1. These are the provisions which dictate whether employment is considered skilled, and therefore acceptable to INZ:

"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.

...

Effective 04/02/2008"

[21] In order for an applicant's occupation to be considered skilled their occupation has to be listed on Appendix 11. It is accepted by the appellant's representative that there is no specific entry within the ANZSCO codes for "Market Development Manager". It has been submitted throughout that the most relevant ANZSCO code to the appellant's job title is that of Sales and Marketing Manager (ANZSCO Code 131112).

[22] The occupation of Sales and Marketing Manager is included in Part A of Appendix 11 List of Skilled Occupations (effective 4 February 2008). Therefore for the appellant's employment to be assessed as skilled, it had to substantially match the ANZSCO description of that occupation, plus meet the other requirements of SM7.10.1.a.

[23] The ANZSCO Unit Group 1311 Advertising and Sales Manager describes the tasks associated with those occupations as including:

"‹› formulating and implementing policies and plans for advertising, public relations, sales and marketing in consultation with other Managers

‹› directing the development of initiatives for new products, marketing and advertising campaigns

‹› organising and controlling sales activities by setting product mix, geographical sales areas and customer service standards

‹› directing merchandising methods and distribution policy by coordinating the work of salespersons, and organising agents and distributors

‹› directing sales methods and arrangements by setting prices and credit arrangements"

[24] Specifically, ANZSCO Code 131112 Sales and Marketing Manager describes that person's tasks as:

"Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation."

[25] INZ approached this application correctly in that it did not determine that simply because Market Development Manager did not appear on Appendix 11, it could not be considered skilled. It went on to assess whether the appellant's actual role in the business substantially matched that of a Sales and Marketing Manager.

Assessment of Substantial Match

[26] The Board has considered the exchange of correspondence between INZ and the appellant's representative on the subject of whether the appellant's employment substantially matched (including core tasks) the position of Sales and Marketing Manager as set out in ANZSCO. The representative made the point that the fact that the appellant did not undertake one of the ANZSCO core tasks did not determine that her employment did not "substantially match". He made that submission with specific regard to the fact that the appellant did not actively manage junior staff. This, he said, was simply because the business was small and there was no requirement for individuals to be subordinate to the appellant.

[27] The Board agrees that simply because one core task is not undertaken by an applicant, this does not mean that their occupation necessarily fails to meet an ANZSCO code. Nonetheless, while the Board does not rule out the possibility of a Sales and Marketing Manager position which does not involve the immediate supervision of other employees, the small scale of the business in this case, and the reality of the appellant's tasks must be considered.

[28] If one were to look for instance at ANZSCO Unit Group 6113 Sales Representatives, which is not an Appendix 11 occupation, the appellant's position matches almost all the tasks listed. These include: promoting and selling the company's goods and services, acquiring and updating knowledge of employer's and competitors' goods and services and market conditions, using directories and other sources to compile lists of prospective business clients, visiting clients, quoting prices and credit terms, following up clients and ensuring satisfaction, monitoring clients' changing needs and competitor activity and reporting on these developments to sales and marketing management, preparing sales reports and maintaining and submitting records of business expenses incurred.

[29] It is accepted that the appellant has visited China once during her employment and she has produced a photograph of her and a client there. However, this does not particularly support a finding of any managerial responsibility. The obtaining of new clients does not mean that she must be a Sales and Marketing Manager; it could equally mean she is a Sales Representative.

[30] Another relevant consideration is the overlap of the appellant's position with the role and job title of her colleague. As the company's sole concern is exporting recyclable material to China and her colleague had evidently obtained residence on the basis of being the Export Manager, then INZ rightfully had suspicions about the true nature of the appellant's job, or the extent to which she was in a managerial position.

[31] While the director differentiates between his two full-time staff members by saying the appellant brings in the business while the other finalises it, this is too fine a line given the descriptions of what both staff actually do. There is evidence too of elevation of their position titles, given that both spend some hours each week overseeing the packing of containers.

[32] It is also relevant that the director maintains a high level of responsibility for and supervision of the day-to-day details of the business. For instance, he said at the interview that he spoke to the company's Chinese clients whereas the appellant spoke to the English-speaking ones.

[33] While, on their face, many of the tasks performed by the appellant could be said to be included in the bullet points under the ANZSCO Code for Advertising and Sales Manager (see paragraph [23] above), on an overall assessment, the appellant's position has little 'managerial' responsibility. In reality, those tasks associated with the sales she makes are administrative, not managerial.

The Appellant's Salary

[34] INZ also found that the salary earned by the appellant as a Market Development Manager was well below the average income for a "Sales Manager" in New Zealand. The immigration officer used the Government's Career Services website to determine that the average income for a Sales Manager in New Zealand was $68,900.

[35] It is conceded by the representative that the officer was able to take the appellant's salary issue into account but it is submitted nonetheless that the appellant's salary of $35,000 per year was appropriate and reasonable. This was because the business was, according to the representative, a relatively small one run from a small office in [A city]; it did not have a large corporate structure with a great number of employees of subordinate positions; and the appellant was a relatively recent graduate who was only in the second year of employment. While all that may be true, the relatively modest salary does not assist the appellant's claim that her job is managerial.

Claim of Prejudice and Predetermination

[36] The representative submits that the decline decision in the appellant's case was predetermined and inconsistent with the INZ decision to approve her colleague's application lodged at approximately the same time. It is submitted that for whatever reason INZ perhaps considered it inappropriate to approve both applications.

[37] Each residence application submitted to INZ has to be judged on its own merits. Perhaps because the appellant's colleague's application was considered first she may have received the benefit of the doubt which was not as readily extended to the appellant. As already noted, if it had been accepted by INZ that the company had an Export Manager, it would be more difficult for it to accept that the appellant's tasks as they were described do not coincide with her colleague's tasks. Once again, if it were indeed the case that the appellant's colleague had obtained residence only recently on that basis, the INZ case officer was entitled to take this into account.

[38] As to the predetermination aspect, the representative submits that in a document "Summary Notes for Applications made under Skilled Migrant Category" there is a clear "decision" by INZ made on 28 April 2009 to decline the application, whereas a second letter setting out potentially prejudicial information was sent out only on 4 May 2009. A response by the representative followed on 5 June 2009. It is submitted that this reveals that the case officer had effectively "closed her mind" on 28 April to any further relevant submissions.

[39] This interpretation is not accepted by the Board. It is common practice for INZ to summarise a case, listing concerns and coming to a conclusion before putting those concerns to the appellant for further comment and/or rebuttal. The fact that a tentative decision, based on the information and conclusions reached to date, is recorded at an earlier stage is not a procedural flaw and does not mean that the final decision reached is consequently unfair.

Conclusion on INZ Decision

[40] The Board finds that the INZ decision was not unreasonable and took into account, in a holistic way, not only the actual tasks the appellant performed but the extent of her actual responsibility. While she clearly does well and is supported by her employer in a sales and administration role, the role she fulfils does not substantially match the ANZSCO description for Sales and Marketing Manager.

[41] With no points for skilled employment in New Zealand, the appellant had insufficient points to meet the employability and capacity building requirements of the Skilled Migrant category. Her application was therefore correctly declined.

Special Circumstances

[42] 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.

[43] 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].

[44] The appellant is 27 years old and has been in New Zealand since late 2004, over five years. She is said to have excellent English language skills and has achieved a Bachelor's degree in Commerce and Management (majoring in Marketing) from [ABC] University. Her representative submits she holds secure employment with a relatively good salary and thus has a strong nexus with New Zealand.

[45] It is acknowledged that the appellant has achieved a tertiary qualification in New Zealand and that she has been motivated to obtain employment in a related field. Her present employer is pleased with her efforts and supports her application for residence. However, other than her employment in New Zealand, she appears to have no other nexus. Her only declared family are her parents in China. She has not declared any family or partner here.

[46] The appellant met health and character requirements and evidently has good English. It may well be that she will be able to make a successful application for residence in the future when she has employment that can meet ANZSCO code requirements. In the meantime, there is nothing uncommon or out of the ordinary about her circumstances which would warrant making a recommendation to the Minister for her case to be considered as an exception to policy.

STATUTORY DETERMINATION

[47] 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.

[48] The appeal is unsuccessful.

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

A M Clayton

Member

Residence Review Board


 


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