Around this time last year, New Zealand entered into lockdown, and we all faced a challenging year due to the global pandemic of Covid-19. However, today we share a success story that has given hope to nine clients who thought their future in New Zealand was almost over. 

We have recently secured the approval of nine almost identical Skilled Migrant Category Residence (SMC) Appeals for staff at a major insurance company. All nine of our clients had their declined SMC residence applications turned around by the Immigration & Protection Tribunal (IPT) with a strict set of guidelines – for a correct reassessment.

Background

In August 2020, we have been approached by a group of employees who work for a major insurance company in New Zealand. Almost all of them work in the same large call centre, which has multiple New Zealand offices. Their SMC applications required them to get points for “skilled employment” as an Insurance Agent (code 611211 in the ANZSCO). Some of the applications were submitted two years ago. Interestingly, the immigration officers for three of those applications had recommended an approval of the SMC application in their initial assessment.

Then something changed. From mid-late 2019, Immigration NZ (INZ) decided to conduct further verifications of their employment, including phone interviews and a site visit in November 2019. From July 2020 onwards, INZ began sending decline letters to all those employees. They were long letters, and they were all the same – so much the same that we were able to file a single Appeal submission for all nine people.

INZ declined the residence applications because it was not satisfied that their employment substantially matched the ANZSCO description, including core tasks, of an Insurance Agent. It also was not satisfied that they qualified for points for skilled work experience. Without points for skilled employment or skilled work experience, their applications did not have enough points to be approved under the Skilled Migrant category.

The Slam Dunk Approach

The staff worked in a call centre environment, taking inbound enquiries, proposing insurance products, calculating premiums using the company’s bespoke system, and so on.  INZ accepted that the staff of this company carried out 5 of the 9 Core Tasks listed under the relevant ANZSCO Unit Group 6112. However, INZ concluded that they did not perform the other Tasks and, importantly, that the job was not sufficiently skilled to equate to “skilled employment” for the award of points.

We provided various arguments which criticised INZ’s approach to these cases. The IPT accepted almost all of the arguments we presented.  The IPT identified many defects in the decisions, including:

• reliance upon a generic site visit (which INZ claimed not to rely upon) which did not address the specific work of the appellants concerned, and which influenced the outcome;
• a failure to consider the job in the context of the working environment, and assumptions made about the job which coloured its conclusions about whether the employees performed certain Tasks.

There were two significant errors in INZ’s decision that the IPT knocked down, which we want to highlight here.

1.Use of Knowledge Management (“KM”) Systems

Core Task 4 of Unit Group 6112 states that Insurance Agents are involved in “calculating premiums and establishing a method of payment”. The insurance staff in this case used the employer’s IT applications to input data to generate the necessary premium calculations. In INZ’s view, having a pre-set calculation system limits the skill level required for calculating premium.  INZ concluded that they did not perform this task because it was done for them by the use of technology.  

The IPT pointed out that INZ’s own site visit report and other evidence on file showed that, in fact, employees needed to have, and to apply, knowledge of numerous products and processes to carry out this aspect of the work. The mere fact of using a computer system to help with that did not invalidate their performance of this task. It cited an earlier decision of JC (Skilled Migrant in which the IPT made two key points:

• It is unrealistic to suggest that any employee will not be constrained to a greater or lesser extent by their employer’s technology choices. To hold otherwise would be to ignore the reality of most employment in a corporate environment; and
• Company-specific KM systems are often inextricably intertwined with companies’ everyday operations and their employees’ roles. While in-house company systems might provide some assistance, such a situation should not necessarily mean that an applicant’s ability to perform the relevant core tasks is constrained because an applicant has to use their own expertise to use such systems.

2. Importing Skill Level into Substantial Match Assessment

A repeated refrain in INZ’s decisions for those employees was that their work did not “demonstrate any specialist, technical or management expertise or the level of skills or expertise required of an Insurance Agent.”  This view was supported by the fact that the entry requirements of the job did not specify prior insurance-related qualifications or work experience.  Such a view influenced the erroneous finding that the employees did not perform Core Task 4 of calculating premiums mentioned above.

INZ concluded that each of the Core Tasks associated with Insurance Agent did not require a level of skill equivalent to a diploma or three years’ prior experience. However, in order to work out if someone had “skilled employment”, two separate questions apply:

1. Is their job a “substantial match” to the ANZSCO description for the listed occupation, including Core Tasks? – then
2. Does the employee have the qualifications or experience expected for that occupation code?

INZ had applied the second ‘quals/experience’ criterion to the first “substantial match” assessment.  The IPT rejected INZ’s assessment of this by referring to the Residence Instructions which stipulate what qualifies for skilled employment, including the substantial match between the job and the corresponding ANZSCO description. The SMC Instructions also require that the applicant is “suitably qualified by training and/or experience for that occupation”, – meaning that they meet the indicative skill level for the ANZSCO occupation, such as having a degree or diploma.

The IPT confirmed in its decision that none of the requirements in the residence instructions state that an applicant must be undertaking work of a certain difficulty or with a minimum skill level. Also, the Residence Instructions do not specify that an applicant must be solely responsible for undertaking a task without limitations or have a certain level of seniority or responsibility to be considered to be undertaking the tasks. In the words of the IPT:

Immigration New Zealand imported a skill level requirement into its substantial match inquiry that it was not entitled to do. 

Previous SMC Group Appeal Decisions

This SMC Group Appeal cases shared striking similarities with another group of employees of another industry our firm worked for three years ago. We expected that, by having a significant group of visa decisions overturned by the IPT, it would have prompted INZ to guide their staff on how to assess future applications, which raised the same points of contention.   However, this was not the case. INZ sent a templated form of decisions letters which showed that some thought and planning had gone into seeking to defeat the insurance employees as a group in what was ultimately a doomed exercise. 

The role of the IPT is to guide decisionmakers at first instance, and that INZ should follow such guidance. In this instance, the failure to do so has led to a wasted effort by the applicants, INZ staff and members of the IPT.

What now?

The IPT determined that INZ’s assessment of whether the applicants performed an insurance agent’s occupation was flawed for multiple reasons and referred the applications back to INZ for reassessment. The IPT ordered INZ to reassess every one of our cases. At the time of writing, we have not had feedback from INZ about the Residence reassessments. This story may not be over, and INZ might try to find other ways to defeat the applications.

However, we have learned something about this industry’s dynamics. You may know someone in the same situation who needs help; let them contact us.