New Zealand is facing another lockdown. It is another challenging time of the year for everyone, particularly migrants whose future in New Zealand remains uncertain. I believe there is nothing better to share than a success story of our client’s successful residence appeal.
As you may know already, since the COVID-19 lockdown in March 2020, the Government has postponed a number of visa programmes, including selections for Expressions of Interest (EOI) for the Skilled Migrant Category (SMC). This decision has left many skilled migrant workers unable to submit an SMC residence application.
An article published on stuff in April 2021 listed the latest Immigration NZ (INZ) stats for the EOI and SMC queues. Applicants are expected to wait two years for their residence applications to be decided. As of 16 August 2021, INZ currently has 11,568 unallocated SMC applications on hand for applicants who are in New Zealand. Those with an existing SMC residence application already lodged with INZ are left with two obstacles. Firstly, they have to face a two-year wait before their application is allocated. Secondly, is to have their applications approved by INZ.
Our client is one of the migrants who is in New Zealand on a temporary work visa which does not guarantee him residency. His SMC residence application was also stuck in the largest backlog of applications with a two year wait time. Therefore, when INZ declined his SMC application in February 2021, our client’s only option was to appeal his declined residence application with the Immigration and Protection Tribunal (IPT). To have the IPT overturn his SMC residence application was an important outcome for our client. By appealing, he had another shot at getting his SMC application re-assessed by INZ. He would not be able to submit another SMC application if the appeal was not successful.
Background
Our client submitted an SMC residence application with INZ in April 2019 based on his current employment as a Marketing Specialist (ANZSCO 225113). Nineteen months later, INZ conducted a phone interview with our client and his employer to verify his employment. Following the interview, INZ issued a Potentially Prejudicial Information (“PPI”) letter raising concerns relating to his skilled employment. INZ was not satisfied that our client’s employment substantially matches the ANZSCO description of the Marketing Specialist job as required by the residence instructions. A substantive response was provided to INZ addressing all their concerns.
However, INZ concluded that he did not perform the ANZSCO core Tasks and, importantly, that the job was not sufficiently skilled to equate to “skilled employment” for the award of points. Without points for skilled employment or skilled work experience, his application could not be approved under the Skilled Migrant category. When our client approached us at that stage, he knew that his last hope was to appeal INZ’s decline decision with the IPT. The IPT’s role is to determine whether INZ conducted a correct assessment of the residence application.
The Residence Appeal
Conducting a thorough review of the SMC application and the INZ decision is the most important step before submitting a residence appeal with the IPT. We needed to identify INZ’s errors with their assessment. This required conducting external research on the actual role and what it entails, in order to demonstrate that our client’s role is indeed skilled and that INZ’s assessment was flawed.
Following the thorough review and extensive research, we identified that INZ failed to consider the relevant Core Tasks for a marketing specialist properly. INZ did not engage with the evidence presented, and placed too much emphasis on the telephone interview with our client, which influenced INZ’s decision.
We provided various arguments which criticised INZ’s approach to his SMC application. The IPT accepted almost all of the arguments we presented.
There were two main errors in INZ’s decision that the IPT knocked down, which we want to highlight here:
1) Overlooking the evidence produced
The IPT found that INZ acted unfairly in their assessment by overlooking the evidence that had been provided. INZ was concerned that our client did not mention the supporting documents during his interview with INZ. For example, he provided evidence that he supported business growth and increase in sales growth. INZ’s concern that he did not refer in his interview to the evidence produced later on, overlooks the fact that the letter of concern is meant to provide an applicant with a genuine opportunity to produce further evidence supporting his application.
At no stage during the interview did INZ ask our client whether he carried out the specific core tasks of a marketing specialist. Instead, the IPT concluded that the interview of less than half an hour largely proceeded with the client providing basic information in response to elementary questions raised by INZ.
2) Focusing on the information provided at the interview
The IPT found that INZ’s focus on the information given at the interview did not respect the purpose of the letter of concern process. That is, to provide a genuine opportunity for further and better evidence to be provided. The result was that INZ did not have adequate regard to the more detailed evidence provided in response to the letter of concern. INZ failed to engage with documents provided in support of his residence application.
The Residence Appeal was successful, and the IPT returned the SMC residence application to INZ for a correct assessment. A copy of the IPT decision can be found here.
Moral of the story
Our role as immigration specialists is to find a solution. It’s all about transparency; dig deep and lay out all the facts on the table. Sometimes, focusing on INZ’s decision on its own is not enough. We need to go beyond the INZ decision to make proper arguments to the IPT as to why there are errors in the decision.
In the above scenario, we researched marketing specialists and their roles from external sources and other IPT decisions. It enabled us to demonstrate that the documents provided to INZ supported our client’s claim that he performs the ANZSCO core tasks. It was important to understand what the role entails and what the documents provided were. Otherwise, it would be difficult to argue why INZ was wrong to overlook the evidence provided. At the time of writing, we have not had feedback from INZ about the residence reassessment.
If you or someone you know is in a similar situation and needs assistance with lodging a residence SMC appeal, don’t hesitate to contact us.