Singh v Immigration and Protection Tribunal
[2017] NZHC 1825
•2 August 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2017-485-116 [2017] NZHC 1825
UNDER the Judicial Review Procedure Act 2016
and section 247 of the Immigration Act
2009 and pursuant to leave granted by
Simon France J on 17 May 2017IN THE MATTER OF
a Decision of the Immigration and
Protection Tribunal, being [2017] NZIPT
203615 dated 31 January 2017BETWEEN
MANDEEP SINGH First Applicant
AND
SWASTIKA NAICKER Second Applicant
AND
IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
AND
CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
Second Respondent
Hearing: 17 July 2017 Appearances:
GDS Taylor and TR Carter for the Applicant/Appellants
IMG Clarke and LS Kean for the Second RespondentJudgment:
2 August 2017
JUDGMENT OF DOBSON J
[1] The first applicant/appellant (Mr Singh) has pursued further challenges to decisions declining to recognise him as having a skilled occupation for the purposes of qualifying for a residence application. The second applicant/appellant
(Ms Naicker) is Mr Singh’s wife and is linked to his application for a residence
SINGH & ANOR v IMMIGRATION AND PROTECTION TRIBUNAL & ANOR [2017] NZHC 1825 [2 August 2017]
permit because if his application succeeds, she would be granted the same status in reliance on her relationship with him. Accordingly in the application process he is described as the primary applicant, and she is a secondary applicant. The second respondent had been substituted as a party to the proceedings by consent, and assumed responsibility for responding to the challenges.
[2] Mr Singh’s application for residence was based on his claim to be a skilled migrant. The substance of both the original decision of the Immigration Officer and that of the Immigration and Protection Tribunal (the Tribunal) on appeal was the analysis leading to their conclusions that the nature of Mr Singh’s work did not substantially match the requisite definition in the Australian and New Zealand Standard Classification of Occupations (ANZSCO).
[3] Mr Singh applied for leave to appeal to the High Court on questions of law.1
He also commenced a separate proceeding by way of application for judicial review, for which leave is also required.2 On 16 May 2017 Simon France J granted leave to appeal on questions of law, and also granted leave to bring the application for judicial review. Directions were given that the two proceedings ought to be progressed and heard together.
The appellants’ applications
[4] Mr Singh has been employed at McDonald’s restaurant in Masterton as a manager since April 2015. He has worked at McDonald’s restaurants elsewhere in New Zealand from November 2008. Ms Naicker is also currently employed at the Masterton restaurant. As manager of the restaurant Mr Singh supervises the employment of up to 65 full time or part time staff members and has a range of managerial duties.
[5] Section 72 of the Immigration Act 2009 (the Act) provides that decisions on applications for residence class visas are to be made in terms of residence instructions that issue from time to time under the Act. Such instructions are issued
pursuant to s 22 of the Act which specifies that they are statements of government
1 Immigration Act 2009, s 245.
2 Immigration Act 2009, s 249.
policy, and not legislative instruments. Those relevant to this case at the time it was considered were SM7.10, and SM7.10.1. The first of those provided:
SM7.10 Skilled Employment
a.Skilled employment is employment that requires specialist, technical or management expertise obtained through:
i. the completion of recognised relevant qualifications; or
ii. recognised relevant work experience (see SM7.10.15 below); or
iii. the completion of recognised relevant qualifications and work experience.
b.Assessment of whether an occupation is skilled for the purposes of the Skilled Migrant Category (SMC) is primarily based on the Australian and New Zealand Standard Classification of Occupations (ANZSCO) which associates skill levels with each occupation.
[6] In terms of a determination as to whether particular employment is skilled, that employment had to meet the requirements of one of the categories in SM7.10.1, which relevantly to Mr Singh’s case provided the following:
a.The occupation is included in part A of the List of Skilled Occupations held at Appendix 6 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 ...
[7] The ANZSCO category under which Mr Singh’s application was considered is that in 142111, for retail managers. That classification is for persons who “organise and control the operations of establishments which provide retail services”. The tasks for such employment in an organising and controlling role are:
· 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
[8] Specialty types of employment that are recognised in classification 142111 include fast food manager, retail bakery manager, and newsagent. For the most part food and beverage managers and restaurateurs are subject to definition in another category, 141111. Potentially skilled employment work under that category includes canteen managers, caterers and other extensions of café or restaurant managers. The terms of 141111 explicitly exclude managers of fast food establishments, on the basis that they are included within 142111 as a form of retail manager.
[9] The applications for Mr Singh and Ms Naicker were made on their behalf by an immigration consultant in September 2015. On 5 April 2016 Immigration New Zealand (INZ) wrote to their consultant advising of a provisional view that Mr Singh’s employment did not substantially match the ANZSCO description for a retail manager. The letter set out the reasoning for that provisional view, by reference to the nature of the work content, as detailed below. The letter invited a further communication on behalf of the applicants before INZ made its decision on the applications.
[10] Promptly after receipt of that letter the owner of the Masterton McDonald’s franchise, Sitendra Singh, wrote to the applicants’ consultant providing eight pages of information and reasoning to challenge the provisional view that had been indicated (the April letter). That letter appended a further four pages of additional information about the organisation of the restaurant. The April letter was enclosed with a further letter from the immigration agent, which adopted substantial parts of the information and views in the April letter and was submitted to INZ on 20 April
2016.
[11] On 24 June 2016 INZ conveyed its decision that it was declining the application for residence because Mr Singh did not meet the requirements under the skilled migrant category.
[12] Thereafter the franchisee, Sitendra Singh, wrote to the Registrar of the Tribunal in support of an appeal by the applicants. That eight page letter (the July letter) contained detailed grounds for rejecting the conclusion INZ had come to, revisited the factual detail that had been provided in the April letter, and mounted arguments in support of a decision overturning that previously made.
[13] The July letter became an enclosure to the immigration agent’s letter to the
Tribunal advancing an appeal from the INZ decision.
[14] The Tribunal decision dismissing the appeal was issued on 31 January 2017. [15] In arguing the present appeal Mr Taylor placed significant emphasis on the
fact that statistically, the number of employees ranks the business as among the top one per cent of businesses in New Zealand by size, and its turnover of $5.71 million placed it in the top 2.2 per cent of New Zealand enterprises.3 It is unclear whether that ranking takes any account of the extent to which employees in any given business are employed full time or part time.
[16] Mr Taylor submitted that the scale of Masterton McDonald’s was such that it had to be regarded as a complex operation that demanded a high level of skill for a retail manager to operate it successfully. This criticism permeated many of the arguments on the appeal and the judicial review. In an introductory section to Mr Taylor’s submissions headed “the underlying error”, he criticised the Tribunal’s failure to treat the scale of the business as an important, or potentially determinative, factor in evaluating Mr Singh’s work skills.
[17] The second respondent criticised the inclusion of this argument. After leave had been granted for the appeal Mr Taylor sought to add a new ground of appeal which would have enabled him to raise these arguments directly. Leave to pursue that ground as a question of law was declined because it was too fact specific and
invited a consideration of the merits.4
3 These rankings depended on 2015 or 2016 data published by the Department of Statistics.
4 Singh v Immigration and Protection Tribunal CIV-2017-485-116, 2 June 2017 (Minute of Simon
France J).
[18] There is some justification for the second respondent’s protest that the specific argument on the so-called “underlying error” and the extent to which that theme is relied on in both the judicial review and the appeal grounds reflects an unauthorised challenge to factual findings that ought not to be entertained on either the judicial review or the appeal.
[19] The essential issue in both the original INZ decision and that of the Tribunal was whether Mr Singh organised and controlled the operations of the restaurant of which he is the manager in respects relevant to the work tasks detailed at [7] above. Both decisions found that he did not. The process by which the decisions were made, and the analysis of the factual material in them, is appropriately described in dealing with the grounds for the application for judicial review and the present appeal on questions of law. Challenges to the process adopted by means of the application for judicial review are appropriately dealt with first.
Grounds for review
Failure to consider relevant factors
[20] Mr Taylor characterised the Tribunal’s treatment of the April and July letters from the franchisee as breaching its obligation to consider all relevant factors. A subset of this criticism was that the consideration of factors taken into account by a decision maker had to be a genuine consideration, and that such an obligation cannot be discharged by providing a notional acknowledgement of having considered the matter when the content of that material has demonstrably not been taken into account in the decision making process.
[21] Mr Taylor argued that the April and July letters each represented one third of the appellants’ evidence. He submitted that it was mandatory for the Tribunal to take them into account. He also submitted that the Tribunal’s analysis of the content of the April letter was wrongly attributed to that letter because most of the points commented on were in fact conveyed in other communications.
[22] He treated the statement that the Tribunal had considered the July letter as unsubstantiated because the Tribunal’s reasoning did not consider whether it should
have regard to the contents of that letter as new evidence. The Act imposes a limitation on the Tribunal taking into account new information or evidence which requires an appellant to show that she or he could not with reasonable diligence have placed that information or evidence before the immigration officer. The absence of analysis on its admissibility was taken as indicating that its content had not been considered at all.
[23] The first response to these criticisms for the second respondent was that the letters could not be treated as mandatory factors. They comprised a mixture of evidence and submissions that were, in many respects, repeating points made elsewhere and which did not provide significant additional information.
[24] The second respondent also argued that the Tribunal did in any event consider the matters that were raised in the April and July letters.
[25] Both parties relied on the judgment of Cooke J in CREEDNZ for recognition of the obligation of a decision maker to have regard to factors properly characterised as mandatory.5 That is reflected in the following:6
What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the Court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the Court itself, would have taken into account if they had to make the decision.
[26] I do not accept that letters from an employer containing a mixture of advocacy and factual background constituted a mandatory consideration for the Tribunal in this case. Nor do I accept that Mr Taylor’s quantitive assessment of them as each amounting to one third of the evidence is relevant in categorising their status or relative importance. There was a significant extent of duplication in factual material that was also provided to INZ and the Tribunal in other communications, and the letters overlaid that with forthright advocacy in support of the application
and the appeal.
5 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA).
6 At [183].
[27] Specific content might have the status of a relevant consideration to the extent that the decision maker’s omission to have regard to it might lead to error. However that involves an evaluative analysis rather than the absolute nature of a criticism, where appropriately made out, that a decision maker had omitted to have regard to a mandatory consideration that must be taken into account. Mandatory considerations are generally given that status by the terms of the statute or other instrument governing the exercise of the power. Case-specific considerations that assume potential importance in the circumstances of an individual case may necessarily constitute relevant considerations, but that does not make them mandatory.
[28] Nor am I persuaded that the Tribunal’s reasoning demonstrates a failure to consider the letters to the extent that the Tribunal records that it did.
[29] In advancing this ground for judicial review when the decision maker had made important factual findings inconsistent with the appellants’ view of the merits, the appellants can reasonably be expected to identify specific passages in the reasoning in which the Tribunal has stated facts or reached views inconsistent with material in the letters that has allegedly been ignored. Without doing so the appellants cannot justify an assertion that the letters have not been taken into account when the Tribunal acknowledges having done so. That is a different matter from the decision maker having regard to relevant factual matters and reaching a decision on the letters, contrary to the appellants’ claims in respect of them.
Breach of natural justice
[30] Mr Taylor argued that the Tribunal’s decision to ignore the content of the April and July letters was deliberate. This led to his further criticism of its process that alleged an obligation on the Tribunal to warn the appellants that it intended to ignore those materials, so as to afford the appellants an opportunity of dissuading the Tribunal from adopting that course.
[31] The second respondent’s first rejoinder to this was that the Tribunal did consider the April and July letters, so that the initial premise on which the criticism depended could not be made out. The essence of the criticism was treated by
Ms Clarke as dissatisfaction with the weighting the Tribunal gave to the matters raised in those letters. In a decision making process such as that undertaken by the Tribunal, there could be no obligation as a matter of natural justice to afford a party an opportunity to dissuade the decision maker from giving any matter the weight perceived by the decision maker as appropriately attributed to it. The respondent
invited analogy with Fisher J’s reasoning in Khalon:7
… a party should normally be given the opportunity to respond to an allegation which, with adequate notice, might be effectively refuted. The converse will generally be true if the risk of an adverse finding was always foreseeable, particularly if the challenge to the finding relates to the way in which the tribunal had exercised a value judgment rather than the completeness of the material which had been placed before the tribunal. The key elements are surprise and potential prejudice. If an adverse finding is foreseeable there is no surprise. Even where there is surprise, there could be no prejudice unless better notice might have allowed the affected party to do something about it. Those principles seem applicable whether the hearing is adversarial or inquisitional.
[32] In administrative law context is everything and the extent of legitimate expectations as to process will vary depending on the nature of the decision maker’s task and the context of the issues before them. I accept the second respondent’s submissions, first that the Tribunal did have a measure of regard to the April and July letters, and secondly that there is neither surprise nor potential prejudice arising in this case from the absence of a discreet warning that the Tribunal was not prepared to take any more than it did from the April and July letters.
Failure to consider the scale of McDonald’s Masterton
[33] Mr Taylor submitted that the scale of the business in which Mr Singh is employed is so obviously relevant to an assessment of the level of skill he brought to the job that it was to be treated as a mandatory factor in the Tribunal’s assessment. He argued that policy and common sense made evaluation of the scale of the enterprise essential to the making of a proper decision. The size of the business in terms of its turnover and the number of employees were put to INZ and the Tribunal, so arguably the Tribunal ought to have appreciated the complexity of the managerial operation required for the business by virtue of its size. Mr Taylor argued that the
yardstick against which those statistics should have been measured required the
7 Khalon v Attorney-General [1996] 1 NZLR 458 (HC) at 464.
Tribunal to refer to the Statistics New Zealand website to rank this business against others throughout New Zealand.
[34] On the importance of the relative size of the Masterton McDonald’s business, Mr Taylor sought leave to adduce two further documents in evidence. The documents comprised extracts from statistics available online at Statistics New Zealand’s website. The first recorded New Zealand business demography statistics as at February 2016 showing the breakdown of the percentages of business employing certain numbers of employees. The second of the documents was an annual enterprise survey for the 2015 financial year providing a breakdown of the gross income and other details of businesses banded by the extent of that income from a first band of $0 to $100,000 to businesses of over $200,000,000.
[35] The second respondent opposed the new evidence being adduced. The orthodox view is that judicial review applications of judicial decisions ought generally to proceed on the basis of the evidence available to the decision maker at the time of the decision. Equally, in appeals it is not appropriate to provide
appellants with an opportunity to bolster their case by relying on new evidence.8
[36] I allowed Mr Taylor to include references to these documents in his submissions. Reflecting on them I do not consider they meet the general requirement for cogency and relevance. The statistics provided for the numbers of employees in various businesses did not attempt to distinguish full time and part time employees, and there was no reference to the concept of full time equivalents. Any reliance on that data would invite speculation as to the extent to which the absolute number of employees at the Masterton McDonald’s restaurant includes part time employees, with the prospect that some indeed may have been on zero hour contracts.
[37] Mr Taylor’s arguments about the paramount importance of the scale of the business are not advanced in any particular respect by reference to the relative scale
of the business when compared with others in New Zealand. The relevant
8 See for example D v Immigration and Protection Tribunal [2014] NZHC 3017; and Guo v
Immigration and Protection Tribunal [2014] NZHC 804.
assessment was correctly treated as an objective one, and cannot be made by comparisons of relativity. I accordingly decline leave for the new evidence to be adduced and assess Mr Taylor’s arguments that purported to rely on it by reference to the remainder of the materials as they were before the Tribunal.
[38] Mr Taylor argued that the failure to assess the size of the business as a reflection of the complexities involved in managing it constituted a failure to have regard to a mandatory factor. On Mr Taylor’s argument the scale of the business had to impact on the assessment of Mr Singh’s level of skills. The submission was that this consideration came within the exceptions recognised in other authorities on the scope of obligations on a decision maker.
[39] First from Butler v Attorney-General:9
It cannot be an error of law for a tribunal considering a matter … which is properly before it to fail to rule on some particular aspect of that matter if the particular aspect is not referred to by the interested party and if it does not stand out as requiring decision.
Arguably in the present case the scale of the business was so relevant that it was a matter that stood out as requiring decision.
[40] And also the following from Fernandes:10
We agree with counsel for the second respondent that the question of whether, in some exceptional cases, the IPT might have a duty to take proactive steps to make further inquiries does not arise on the facts of this case. If such a duty were to arise, it would likely only be in circumstances where “something relatively obvious is not addressed by the parent(s)”.
Similarly on this approach the scale of the Masterton McDonald’s business was characterised by Mr Taylor as something relatively obvious that INZ had not addressed.
[41] I do not consider that the scale of the business was so important to an assessment of the level of skills demonstrated by Mr Singh as to be a consideration
9 Butler v Attorney-General [1999] NZAR 205 (CA) at [215] per Keith J.
10 Fernandes v Immigration and Protection Tribunal [2014] NZCA 52, [2014] NZAR 544 at [27]
per Stevens J per curiam (citations omitted).
that stood out as requiring decision. Nor was it a matter on which the Tribunal should have appreciated it needed to make further inquiries where that comparative analysis had not been addressed by the appellants.
[42] This aspect of Mr Taylor’s argument unrealistically elevated the importance of the scale of the business being managed by Mr Singh as an influence on relevant criteria that were set out in skilled migrant classification 142111, and with which Mr Singh’s work skills had to substantially comply.
[43] In demonstrating the obviousness of the importance claimed for the scale of the business Mr Taylor contrasted different sized retail outlets. He argued that someone who managed a large department store such as David Jones would automatically be seen as someone more likely to demonstrate the skills required in the classification than a manager of a local Four Square store. The proposition may have superficial appeal, but the scale of the enterprise cannot automatically assume relevance in place of the specific criteria in the classification when the test requires the answer to be a reflection of those characteristics.
[44] In any event I am not persuaded that the Tribunal rejected the scale of the business in any general sense that prevented it from having regard to it in considering the specific characteristics that the Tribunal was obliged to assess. As the second respondent submitted the appellants’ complaint is rather at the lack of greater weight being given to the scale of the business rather than any absolute rejection of its relevance per se.
[45] A number of Mr Taylor’s arguments on both the application for judicial review and on the appeal reflected his implicit criticism that the Tribunal’s decision defied logic and common sense. When Mr Singh’s job is assessed in relative terms compared to the scope of other jobs that are likely to have sufficiently skilled components, he must surely be seen as appropriately skilled. He is a manager competently running a moderately large business employing a relatively large number of staff, so surely his work skills are sufficient to qualify him for skilled migrant status.
[46] It is understandable that Mr Singh and his advisers are frustrated at the refusal of the Tribunal to take into account the relative level of skill when compared with the range of objectively measureable skills required for running businesses of a comparable size and with comparable numbers of employees.
[47] However the structure of the ANZSCO classifications do not involve any relative evaluations. Instead the criteria require an assessment in each case of the extent to which responsibility for organisation and control are present in the conduct of the range of tasks that are specified in each classification. Those features are not made out to any greater extent because, for example, Mr Singh could claim that there are no more than say five or 10 managers in the Wairarapa who manage a business with as large a turnover and as many employees as he does. The lack of relevance of that comparison is a consequence of the way the statutory scheme is structured and cannot be raised as an error by the Tribunal.
[48] Accordingly I am not persuaded that any of the grounds for judicial review have been made out.
Grounds of appeal
[49] The questions of law on which the appeal is brought are in the following terms:
(a) Whether an immigration officer determining an application for a resident class visa on the grounds of being a skilled migrant within a specified ANZSCO classification, and the Immigration and Protection Tribunal on appeal from the refusal of such a visa, must consider each element of the relevant ANZSCO classification on a relative scale, that is, as not fulfilled in any degree, partially fulfilled to a specified degree, or fully fulfilled, and not on a binary yes/no basis.
(b) Whether an immigration officer determining an application for a resident class visa on the grounds of being a skilled migrant within a specified ANZSCO classification, and the Immigration and Protection Tribunal on appeal from the refusal of such a visa, must make a decision by standing back from the individual elements of the specified ANZSCO classification and asking whether or not overall an applicant complies with the specified ANZSCO classification.
(c) Whether the Immigration Instructions use of the ANZSCO classification system as part of the skilled migrant category for residence requires [an] immigration officer and the Tribunal on appeal to allocate an applicant to the ANZSCO classification that best fits the applicant’s actual work.
[50] Grounds (a) and (b) constitute a challenge to the approach that INZ and the Tribunal adopted in considering whether Mr Singh’s work attributes qualified him within classification 142111. The questions posed as ones of law depend on the existence of factual propositions that are contested by the second respondent.
[51] On question (a), Mr Taylor submitted that the consideration of various characteristics specified in the job classification were too confined, being made on an absolute or binary basis as to whether the characteristic was present or not. He argued that the requisite standard required the decision makers to undertake a relative assessment as to the extent, if at all, that a given characteristic was present in the work responsibilities carried out by Mr Singh.
[52] On question (b), Mr Taylor submitted that the decisions were dictated by the outcome of the binary conclusions on each of the characteristics, oversimplified as to whether or not those characteristics were made out or not on Mr Singh’s application. Instead, Mr Taylor submitted that the decision maker was obliged to stand back and make an holistic assessment of the relative extent to which each of the characteristics was present. That would enable the decision maker to make out the requirements on a more evaluative assessment than an analysis on a narrow basis of whether sufficient characteristics were present to bring the job within the relevant description.
[53] The response to these propositions was that the residence instructions being applied do not mandate any particular approach to the assessment of the work tasks so that a usual standard for fact finding and weighing the various characteristics applies. The second respondent submitted that findings on the extent of coincidence between the characteristics set out in ANZSCO and the work content of an applicant’s job reflect matters of fact that are to be determined by the Tribunal. In both its specific consideration of individual characteristics and in its overall assessment, the second respondent characterised the Tribunal as deciding matters on a relative scale.
[54] The substantive content of the Tribunal’s decision involved an assessment of whether Mr Singh’s occupation comprised skills based primarily on the ANZSCO description. In assessing whether his work skills qualified, the decision makers had to be satisfied there was a substantial match with the relevant ANZSCO description. The nature of managerial responsibilities are to reflect roles in organising and
controlling operations when participating in the range of tasks set out.11
[55] Mr Taylor treated the combination of the qualifications in these two approaches (that is, “primarily based” and “substantial match”) as not only increasing the extent of evaluative judgment that was required, but also lowering the standard of evidence that should be required. The latter proposition was advanced by analogy with the outcome of a mathematical formula: given that the assessment could be based on considerations other than ANZSCO (because that was only the primary consideration), compliance with the ANZSCO definition might, for example, comprise a 70 per cent requirement. If there then had only to be a substantial match, introducing the prospect that some components would not create a total match so that there was, say, a 60 per cent match, then the applicant should be entitled to a favourable decision where, overall the mathematical standard required was arithmetically a lower prospect in percentage terms. On the hypothetical figures Mr Singh would have to establish that he was at 60 per cent of a 70 per cent level of compliance with the requisite ANZSCO definition.
[56] The second respondent rejected any analysis along these lines. Reference to the assessment of occupational skills being based primarily on the ANZSCO characteristics is simply because, in addition to complying with those, there were other criteria that needed to be met. The reference to a substantial match reflected the reality that it would be unwieldy, and in some situations impossible, to find descriptions of skills required for particular jobs that reflected an exact or precise match of the work tasks of an applicant.
[57] I am not persuaded that such a mathematical progression of the prospects applies to afford applicants greater leeway in the extent to which they comply with
the characteristics that are required. In each aspect INZ, and the Tribunal on appeal,
11 Listed at [7] above.
must apply reasonable standards to the characteristics as intended by the statutory language and the nature of the scheme overall.
[58] Before embarking on an analysis of the extent to which the list of core tasks
for retail managers applied in Mr Singh’s case, the Tribunal noted:12
… a substantial match is a question of fact and degree in the context of the applicant’s employment. It should be determined on a holistic basis, taking into account not only the list of tasks but also the specific characteristics of an applicant’s employment.
[59] Mr Taylor’s argument amounts to a challenge that the Tribunal did not proceed as that statement indicates it intended. The Tribunal took the description of Mr Singh’s position that his principal accountabilities included responsibility for staff management, quality, service and cleanliness, workplace safety and security, food safety, and supervising and controlling expenditure.
[60] In light of that general scope the Tribunal set out a reasoned analysis of the extent to which five of the employment tasks from category 142111 as cited at [7] above were present.
[61] Under the heading “Organisation and control” the decision determined as
follows:
[52] The Tribunal accepts that an assessment of whether an applicant’s employment is a substantial match is not achieved by simply “ticking off” a certain number of tasks, but must be determined on a holistic basis, taking into account the applicant’s actual employment. It is a case-by-case assessment and depends on the level of autonomy and control that is vested in an applicant, compared to what is retained by head office and the store owner. The Tribunal must also however determine whether the appellant’s role contains a sufficient managerial component as to be properly categorised as one which “organises and controls the operations of a retail trading establishment”, taking into account the particular business operation.
[53] As Immigration New Zealand correctly observed in its letter of concern, the level of involvement by an applicant in the first two core tasks of determining product mix, stock levels and service standards and formulating and implementing purchasing and marketing policies, and setting prices, is instrumental in determining whether an applicant organises and controls the operations of an establishment. Together with the tasks of promoting and advertising goods and services and undertaking budgeting,
12 Singh v Immigration New Zealand and ProtectionTribunal [2017] NZIPT 203615 at [36].
these core tasks distinguish the ANZSCO occupation of a Retail Manager
(General) from a Retail Supervisor.
[54] The Tribunal has found above that the appellant’s involvement in those two core tasks was limited to managing stock levels and implementing local store marketing initiatives together with the operations consultant. McDonald’s’ head office had very detailed and specific standards regarding quality, service, cleanliness and food safety that the appellant was required to follow. The restaurant’s performance was closely observed and monitored by head office. The appellant’s decision-making authority was significantly constrained by its many service standards and policies.
…
[56] Having undertaken a holistic assessment of the appellant’s employment, including the nature of the franchise in which he worked, the Tribunal finds that the appellant could not be said to control and organise the operations of the restaurant. His position was not a substantial match to the occupation description, and core tasks, of a Retail Manager (General).
[62] Mr Taylor is wrong to characterise the Tribunal’s analysis as being on a binary or yes/no basis. In the Tribunal’s consideration of the extent to which any of those tasks were present in Mr Singh’s position, evaluative findings were made on the relative extent to which each task was present in an organising or controlling role. There is no justification for characterising the Tribunal’s decision as only paying lip service to its acknowledgement that the assessment could not be achieved by simply doing a ticking off of the presence or absence of a list of tasks. I am satisfied that the Tribunal did undertake the task it described for itself, that is, an holistic assessment.
[63] I also accept the concern expressed for the second respondent that there is no justification for imposing, as a matter of law, a gloss on the process by which the Tribunal should approach its decision making task. Depending on the issues raised in any given appeal, it may be appropriate for the Tribunal to approach what is correctly described as an holistic assessment, in a range of ways. Any direction as to the extent to which it must undertake an evaluative task, or one that reflects relativity, is neither appropriate nor justified.
[64] That disposes of questions (a) and (b) of the questions of law posed on the appeal. Both are to be answered affirmatively, and the Tribunal did comply with those obligations.
[65] Question (c) is, with respect, misconceived. It postulates that the ANZSCO classifications are exhaustive and that, if it is minded to reject an applicant’s claim to inclusion within one classification, the Tribunal’s task is not complete until it has fitted the applicant into another more appropriate classification.
[66] There is nothing in the structure of the ANZSCO classifications that suggest that they are to be treated as exhaustive in this way. Although there are a very large number of classifications, there is no suggestion that they are presented as exhaustive. There are likely to be an indefinable yet extensive number of specific employment situations that do not constitute a substantial fit with any of the classifications, but rather fall outside all of them.
[67] The second respondent also resisted this argument because it would involve the Tribunal going beyond the scope of an appeal before it, as provided for in s 187 of the Act. The relevant task of the Tribunal in appeals such as this is to decide whether the immigration officer’s decision was correct. Where, as here, an applicant seeks residence on the basis that he met the requirements of a retail manager, then decisions on that application focus on whether he qualifies as claimed. Unless the categories in ANZSCO were exhaustive, relevance cannot be claimed for the proposition that the Tribunal cannot reject the claim for inclusion in, say, 142111 until satisfied that the work tasks are more appropriately within another classification.
[68] It follows that there cannot be any requirement for the Tribunal or indeed an immigration officer to include in analyses of an application the specific ANZSCO classification that best fits the applicant’s actual work tasks. Question (c) is answered “No”.
Outcome
[69] Both the appeal and application for judicial review are dismissed.
[70] The second respondent is entitled to costs on a 2B basis and to recoverable
disbursements to be fixed by the Registrar.
Solicitors:
G Taylor, Barrister, Wellington
Crown Law, Wellington
Dobson J
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