Residence Appeal No: 14934 [2007] NZRRB 91 (19 March 2007)

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RESIDENCE REVIEW BOARD NEW ZEALAND
AT WELLINGTON	RESIDENCE APPEAL NO: 14934
Before:	G Melvin (Member)
Representative for the Appellant:	Anthony Cameron Lewis
Date of Decision:	19 March 2007
Category:	Skilled Migrant
Decision Outcome:	Section 18D(1)(f)

[1] The appellant, aged 43, is a citizen of the Republic of China who applied for residence under the Skilled Migrant category of the Government residence policy. He included his wife, aged 38, and their older son, aged 13, in the application. The appellant also has two New Zealand-born children who are not included in the application because they are New Zealand citizens.

[2] Immigration New Zealand (INZ) declined the appellant's application on the basis that he did not meet the English language requirements of the Skilled Migrant category. The principal issue for the Board is whether the appellant has special circumstances such that an exception to the Government residence policy should be considered.

[3] The appellant arrived in New Zealand in October 2001 and has remained here since. He was granted a work permit on his arrival and two days later he started employment as a full-time, Chinese cuisine chef at the [ABC] Restaurant in [Y town].

[4] In April 2002, the appellant's wife and their older son travelled to New Zealand and were granted visitor permits. They have remained in New Zealand since then.

[5] In January 2005, the appellant submitted an Expression of Interest in obtaining an invitation to apply for residence. By letter dated 14 February 2005, INZ invited the appellant to apply for residence and he submitted his application on 4 March 2005. At D1 of the application, the appellant stated that he met the minimum standard of English on the basis of having current skilled employment in New Zealand for 12 months or more. He included with his application a letter dated 20 February 2005 from his employer who confirmed the appellant's employment from October 2001 to October 2004 as a full-time Chinese cuisine chef and from October 2004 onwards as head chef.

[6] An INZ verification officer proceeded to verify aspects of the appellant's application. In a report dated 10 June 2005, she recorded that the appellant's Chinese cooking qualification was genuine and that he was in ongoing, skilled employment that had also been verified as genuine. However, she noted that the appellant's employer had stated to her that the appellant's English language ability was "OK- not excellent" and that Chinese was the spoken medium in the kitchen. The verification officer "strongly" recommended that INZ request an IELTS test from the applicant to confirm his English language ability. As to the appellant's wife, the verification officer recorded that it was unclear how she met the minimum English language requirements and that she would need to demonstrate how she did, or pre-purchase ESOL tuition.

[7] By letter dated 10 June 2005, INZ advised the appellant that everyone over 16 years of age included in a Skilled Migrant application must meet the English language requirement. It therefore required that he submit an IELTS certificate showing he achieved an overall band score of at least 6.5. It also required evidence as to how the appellant's wife met the English language requirement. The letter stated that INZ had included the relevant sections of the Government residence policy with its letter.

[8] A series of correspondence between the appellant's agent and INZ then followed in which the agent maintained that it was unfair of INZ to require an IELTS certificate after it had invited the applicant to apply for residence, while INZ reiterated its requirement that the appellant provide an IELTS certificate and denied any allegation of unfairness.

[9] In a letter dated 8 July 2005, the appellant's agent advised that the appellant "had no way" of providing an IELTS certificate with a score of 6.5, which he contented was a level required for postgraduate university study. He also enclosed a letter dated 6 July 2005 from a former employee of the [ABC] Restaurant from 2001 to 2003 who had worked alongside the appellant, and a letter dated 8 July 2005 from the appellant's local ESOL Home Tutors co-ordinator.

[10] By letter dated 11 July 2005, INZ repeated its request that the appellant provide evidence he had made an appointment for the next IELTS test assessment. On the same day, the agent provided to INZ a letter dated 8 July 2005 from the appellant's employer, together with a menu from the employer's restaurant. The Board notes that the INZ file does not have a copy of that menu. In his letter, the employer confirmed the appellant "has a reasonable command of English which enables him to communicate with other staff members of the restaurant in English". He stated that the business was designed to attract both European and Chinese clients and it employed English-speaking staff from time to time. The menu was also designed in English. The employer stated that the appellant required English knowledge to fulfil his duties as a "principal (head) chef" and that he had been performing his duties competently. The employer also stated that the appellant had been learning English by attending classes and having home tutorials for a long time. He was satisfied that the appellant's English proficiency met the requirements of working in the restaurant and that he had sufficient English competence to fulfil his duties.

[11] In its letter of 9 September 2005, INZ set out the decision to decline the application (verbatim):

"I am unable to approve your skilled migrant application which was lodged on 04 March 2005.

My colleague wrote to you on 10 June 2005 and requested that you provide an IELTS report.

Your agent replied in his letter dated 08 July 2005, stating that you have no way to meet the IELTS 6.5 requirement, that you have been in current skilled employment in New Zealand for more than a period of at least 12 months and that it is not reasonable to require a skilled worker to have IELTS 6.5.

My colleague again asked for an IELTS report in his letter of 11 July 2005. No response to that request has been made although it has been noted that these letters probably crossed in the post.

a. Applications under the Skilled Migrant Category must be declined if the principal applicant* has not met the minimum standard of English.

b. Principal applicants* under the Skilled Migrant Category meet the minimum standard of English if:

i they provide a Test Report Form (no more than 2 years old at the time the application is lodged*) from the International English Language Testing System (IELTS), showing they achieved an overall band score of at least 6.5 in the IELTS General or Academic Module; or

· was gained as a result of a course or courses of study in which English was the only medium of instruction; and

· (if that qualification was gained in New Zealand) the qualification had a minimum completion time of at least two years or it is a post-graduate qualification and the applicant has an undergraduate qualification that qualifies for points; or

iii they have current skilled employment in New Zealand for a period of at least 12 months that qualifies for points (see SM7); or

iv they provide other evidence which satisfies a visa or immigration officer that, taking account of that evidence and all the circumstances of the application, they are a competent user of English. These circumstances may include but are not limited to:

· whether members of the applicant's family speak any language other than English;

· the nature of the applicant's current or previous employment (if any) and whether that is or was likely to require skill in English language;

· the nature of the applicant's qualifications (if any) and whether the obtaining of those qualifications was likely to require skill in the English language.

c. In any case, a visa or immigration officer may require an applicant to provide an IELTS certificate in terms of paragraph (b)(i). In such cases, the IELTS certificate will be used to determine whether the principal applicant* meets the minimum standard of English.

You have been unable to meet the requirements for English language and have therefore not met the requirements of the skilled migrant policy. Your application must be declined.

"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."

[13] A new agent has represented the appellant on appeal and has made submissions on the appellant's behalf. The supporting documents submitted with the appeal are copies of documents located on INZ's file.

[14] In the course of its review, the Board, through its Secretariat, provided an opportunity for the appellant's children to express their views to the Board either directly themselves or through the appellant. At the same time, the Board invited the appellant to provide up-to-date information or evidence in support of the submission that he was attending ESOL classes and receiving private tuition in English together with information or evidence indicating his present ability in English. It also invited the appellant to provide any information or evidence relevant to whether the appellant's wife had been receiving English language tuition.

[15] In response, the Board received a letter dated 21 June 2006 from the appellant's agent who has provided additional submissions in respect of the interpretation of SM5.5, effective 17 December 2003, as well as the following documents:

(a) Two statements, one handwritten and dated 8 June 2006, the other typed and dated 12 June 2006, signed by the appellant's oldest son;

(b) A statement, dated 12 June 2006 and signed by the appellant and his wife, expressing the views of the appellant's New Zealand-born children;

(d) Two letters, each dated 8 June 2006, from the local ESOL Home Tutors co-ordinator, one relating to the appellant and the other to his wife;

[16] By letter dated 1 November 2006, the Board, again through its Secretariat, sought further information from the appellant about his employer. In reply, the Board received a letter dated 20 November 2006 from the appellant's agent and:

(a) A letter dated 14 November 2006 from the [ABC] Restaurant's chartered accountants;

(b) Copies of the [ABC] Restaurant's certificates of registration issued by the [Y town] District Council for the years starting 1 April 2004, 2005 and 2006; and

[17] In a letter dated 7 December 2006 to the appellant's agent, the Board invited the agent to comment on an apparent discrepancy between the [ABC] Restaurant's wages bill for the financial years ending 2005 and 2006 and the number of staff said to be employed there. The Board received a reply dated 16 December 2006 directly from the owner of the restaurant together with:

(a) Tradesmen's statements and invoices indicating that the [ABC] Restaurant had been renovated in mid-2005;

(b) Copies of the [ABC] Restaurant's monthly IRD schedules for May to July 2005 and November 2005 to November 2006.

[18] In another letter, dated 5 January 2007, the Board asked the appellant's agent to provide further information about the appellant's employment. It received a reply dated 16 January 2007 directly from the employer in which she provided details of staff employed at the [ABC] Restaurant and an explanation in respect of the restaurant's wages for the years ending 31 March 2005 and 31 March 2006.

[19] INZ has provided the Board with the appellant's residence application file and associated work permit application files. The Board has reviewed these files and has also considered the submissions and information the appellant has provided in support of his appeal.

[20] As the appellant made the residence application on 4 March 2005, the relevant policy criteria are those in the Government residence policy at that time.

[21] SM5.5.b. sets out a number of ways in which an applicant under the Skilled Migrant category may meet the minimum standard of English requirement. However, even where an applicant demonstrates that he or she meets the requirement by coming within one of the categories described in SM5.5.b.ii-iv, INZ retains a discretion under SM5.5.c. to require that applicant to provide an IELTS certificate in terms of SM5.5.b.i.

[22] The introductory words of SM5.5.c. are "[i]n any case". The discretion in that section is, therefore, very broad; the only limits on it are that it be exercised reasonably in the administrative law sense, and lawfully. The instances in which the exercise of the discretion would be unlawful or unreasonable would be extremely rare. They might include, for example, an instance where the exercise of the discretion was motivated by personal bias against the applicant. However, that is not the case here. Although the appellant submits that it is "unreasonable and inappropriate to insist that a restaurant chef requires postgraduate level (IELTS 6.5) English", INZ's decision to require the appellant to provide an IELTS test report form falls well short of being unreasonable in the administrative law sense, and it was not unlawful.

[23] The Board also rejects the appellant's submission that the discretion in SM5.5.c. should be exercised in exceptional circumstances only. The submission puts an unjustifiable gloss on the section. Just as it states, the discretion may be exercised in any case, whether or not the circumstances are exceptional. Furthermore, the contention that INZ should have exercised its discretion under SM5.5.c. before the appellant had applied for residence is logically flawed as SM5.5 and the discretion in SM5.5.c. apply only after a residence application has been made to INZ. As the Branch Manager stated in a letter dated 26 June 2005 to the appellant's agent, the Note to SM3.25 advises applicants that the fact they have been invited to apply for residence "does not guarantee ... a positive assessment against health, character or English language requirements ... in any subsequent application for residence". The Branch Manager might also have cited R5.10., effective 26 July 1999, which provides:

"Visa or immigration officers have a general obligation to take the steps that are necessary or appropriate to verify any documentation or information (see Z) relevant to any decision under Government residence policy, whether or not a particular provision enables or obliges them to do so."

[24] The appellant failed to provide an IELTS certificate as INZ required him to do. As a result, he did not comply with SM5.5.c. and he failed to demonstrate to INZ's satisfaction that he met the minimum standard of English requirement. In the circumstances, INZ had no option but to decline the application in compliance with SM5.5.a., above, and the Board finds that that decision was correct.

[25] Having found that INZ was correct to decline the residence application, the Board now considers whether the appellant has special circumstances that warrant consideration by the Minister of Immigration of an exception to policy.

[26] Whether an appellant has special circumstances depends on the particular facts of each case. The Board balances the relevant positive and negative factors to determine whether the appellant's circumstances, when considered cumulatively, are special.

[27] In this case, the appellant is a 43-year old man who is a citizen of China. He included in his application for residence his wife and his oldest son, both of whom are also Chinese citizens. The appellant and his wife also have two young children who were born in New Zealand and are New Zealand citizens.

[28] Apart from their own New Zealand-born children, neither the appellant nor his wife has immediate family members who live in New Zealand.

[29] The appellant applied for residence under the Skilled Migrant category of the Government residence policy. In its assessment of the application, completed on 29 August 2005, INZ awarded the appellant a total of 105 points: 60 for his skilled employment, 10 for employment outside the Auckland region, 10 for work experience, 5 for work experience in New Zealand and 20 for his age.

[30] The appellant did not claim points for qualifications, or for work experience obtained in China. However, on his medical certificate he stated that he had been a chef for 15 years and he included with his application evidence of employment as a chef in a hotel in China between mid-1998 and mid-2000. Although INZ did not verify that work experience, it did verify as genuine his Chinese cooking qualification, issued on 31 August 2000 by the Chinese Ministry of Labour and Social Security. It is therefore possible that the appellant might have been able to claim further points in addition to those INZ awarded him.

[31] The appellant relied on his current skilled employment in New Zealand in order to meet the English language requirement. However, INZ exercised its discretion under SM5.5.c (above) to require him to provide an IELTS certificate showing an overall band score of at least 6.5 in the IELTS General or Academic Module. The appellant failed to produce such a certificate and INZ declined his application on the ground that he did not meet the mandatory, minimum standard of English. INZ was correct to decline the application on that basis.

[32] The appellant's agent concedes that the appellant does not have the English language skills to obtain an IELTS certificate at the level INZ required. Nevertheless, there is evidence before the Board that the appellant has been receiving regular English language tuition since at least mid-2004, and has sufficient ability to carry out his employment, and to manage his day-to-day affairs.

[33] In her letter of 8 June 2006, the local ESOL Home Tutors co-ordinator states that the appellant's wife has been unable to attend regular English classes because of her child care commitments but "she currently has an ESOL Home Tutor who meets with her once a week at home". Further, the co-ordinator states that the appellant's wife (verbatim):

"... has a very good understanding of spoken English and a wide range of vocabulary. She is currently making good progress."

[34] The appellant's oldest son has had four years of schooling in New Zealand and is now attending intermediate school. He has provided the Board with two letters, one typed and the other handwritten, in which he expresses himself clearly and succinctly in English.

[35] The appellant's two remaining children are of pre-school age. They were both born in New Zealand and it is reasonable to assume that they would develop bi-lingually if they remained in New Zealand.

[36] In assessing the appellant's application, INZ verified that his employment was genuine and accepted that it was skilled employment in terms of the Skilled Migrant category of the Government residence policy. The employment also attracted bonus points for being in a region outside Auckland.

[37] There is a demand for qualified chefs in New Zealand and the occupation is listed in INZ's Long-Term Skills Shortage List, albeit with specified minimum qualification requirements. In this case, however, the New Zealand Qualifications Authority has not assessed the appellant's Chinese qualification and the Board does not know whether he would meet those minimum requirements.

[38] The appellant's employer stated in her letter of 18 June 2006 that it is "very difficult", particularly for businesses outside major centres, to recruit qualified chefs who can cook a la carte and "high class buffet meals". A Department of Labour assessment records that the demand for chefs in recent years has grown and continues to do so and employers are likely to face recruitment and retention difficulties, at least in the short term (see "Chef: Occupational Skill Shortage Assessment, June 2006").

[39] Since he arrived in New Zealand, more than five years ago, the appellant has worked at the same restaurant for the same employer, who holds him in high regard. For example, in her letter of 18 June 2006, the employer praises the appellant in the following terms (verbatim):

"As a principle (head) chef, [the appellant] has high level of professional skills and expertises, we see [the appellant] as a valuable asset to our business. He has been working for us very diligently, and he is honest, reliable and very willing to learn."

[40] According to the letter of 16 December 2006 from the appellant's employer to the Board, the [ABC] Restaurant provides buffet and a la carte meals and has a liquor licence. Renovations in mid-2005 increased the restaurant's size so that the combined capacity of the dining room and "buffet house" is now 156 seats.

[41] The Board has had some concerns relating to the appellant's employer and the [ABC] Restaurant, in particular the restaurant's financial viability and some apparent conflicts in the information about the restaurant's operations. In an attempt to address those concerns, the Board, through its Secretariat, has written to the appellant's agent three times specifically about matters relating to the appellant's workplace.

[42] In her most recent response of 16 January 2007 to the Board, the appellant's employer explains some apparent discrepancies between the restaurant's wage's bill for the financial years ending 31 March 2005 and 2006 and the number of staff said to be employed there by stating that she and several family members have worked in the restaurant without pay. Further, the employer states that during a three month period in 2005 when the restaurant was closed for a fit-out:

"[o]ur loyal staff agreed to take accumulated annual leave without pay, and assist with the renovations for no wages, to help achieve [our] goal. To this effect, they advised on layout and provided unskilled assistance to the builders."

[43] The Board doubts that it is lawful for employees not to be paid for their annual leave, even if they consent to such an arrangement. The employer's explanation is at least contrary to the spirit of the Holidays Act 2003, one of the purposes of which is to:

"... promote balance between work and other aspects of employees' lives and, to that end, to provide employees with minimum entitlements to—

[44] Despite the reservation the Board has about this aspect of the appellant's employment, INZ found that his employment was genuine and it has granted the appellant successive work permits since October 2001.

[45] The Government residence policy is, in differing ways, concerned with an applicant's ability to settle successfully in New Zealand. For Skilled Migrant applicants, this concern is stated expressly, for example, in SM20.1, effective 17 December 2003, which provides that such applicants "must demonstrate that they have the ability to successfully settle in and contribute to New Zealand". In this regard, relevant measures include having current skilled employment, or an offer of skilled employment (see SM20.5, effective 17 December 2003), and the ability to meet a minimum standard of English (see SM5.1.a, effective 17 December 2003).

[46] Although the appellant has been unable to meet the required standard of English for the Skilled Migrant category, the Board recognises as a positive factor the skilled employment in New Zealand which he has held for more than five years. Furthermore, that employment has been with the same employer, who regards him as a valued staff member who has sufficient English ability to perform his functions well. Other information before the Board, including the letter of 8 June 2006 from the local ESOL Home Tutors co-ordinator and a letter dated 12 June 2006 from a teacher at [DEF] Intermediate School, indicates that the appellant's wife and oldest son have settled in New Zealand with reasonable ease.

[47] The Board has given particular consideration to the circumstances of the appellant's children and is mindful of international human rights instruments, such as the Convention on the Rights of the Child, and the dicta of New Zealand courts in cases such as Tavita v Minister of Immigration [1994] 2 NZLR 257 and Puli'uvea v Removal Review Authority (1996) 14 FRNZ 322. While the interests of the children are a primary consideration, however, they are not paramount and are to be considered against all relevant considerations.

[48] The appellant's oldest son is a Chinese citizen who was eight years old when he arrived in New Zealand. He is now 13 years old. He has attended primary school here and, in 2006, was attending intermediate school. In his letter dated 8 June 2006, he states that he cannot remember any of his friends in China and that he can "only remember being a Kiwi". He states that his life is in New Zealand, where he wants to attend university and "have a good life". His schoolteacher states in his letter dated 12 June 2006 that he is "a very polite and hard working student" who is "progressing well across all of the curriculum areas that are taught". It is likely that this child would experience considerable short term disruption if he had to return to China with his parents. On the other hand, he would have the support of his family members in that transition and there is no evidence that his long-term welfare would be harmed. It is also to be remembered that, along with his parents, he has never had anything but a right to remain in New Zealand temporarily.

[49] The appellant's two youngest children, now aged four and two and a half, are New Zealand citizens by birth and have known no other environment than New Zealand. It is reasonable for the Board to suppose that they might experience short term disruption in their lives if they had to live in China with their parents, but their young age means that they are likely to adapt with relative ease to a new environment. Neither would be prevented from returning to New Zealand to exercise the rights each has as a New Zealand citizen.

[50] The Board is conscious that, officially, China operates a one-child policy and the appellant's return to China with three children would put him and his family in conflict with that policy. However, the Board is also aware that the policy is enforced unevenly throughout China and with increasing flexibility in the Guandong province, from where the appellant comes (see, for example, information provided by the office of the United Nations High Commissioner for Refugees: at http://www.unhcr.org/home/RSDCOI/42df60b628.html). The appellant has placed no evidence before the Board that the welfare of his New Zealand-born children would be in significant jeopardy if they returned with their parents to live in China.

[51] INZ's assessment sheet on the appellant's residence file records that it did not assess whether the appellant met the health and character requirements of the Skilled Migrant category. However, the Board has sighted all relevant police and medical certificates and these appear to be clear. In the course of undertaking this review, the Board also obtained updated certificates from the New Zealand police in respect of the appellant and his wife. These certificates are also clear.

[52] The Board notes that, if the Minister were to grant the appellant residence as an exception to policy, section 18A(3) of the Act empowers the Minister to impose a requirement on the grant of residence:

"Where the Minister grants a residence permit to a person as an exception to the Government residence policy applying at the time the application for the permit was made, the Minister may impose such requirements as the Minister thinks fit to impose in all the circumstances having regard to—

(a) The reasons why the holder of the permit was not eligible in terms of the applicable Government residence policy; or

(b) The reasons why the grant of the permit was made as an exception to Government residence policy."

[53] Having regard to the provisions of section 18A(3) of the Act and, in particular, the reason why INZ declined the appellant's residence application, the Minister may consider it appropriate, if he were to grant residence permits as an exception to the Government residence policy, to impose the requirement that, the appellant pre-purchase ESOL tuition. If he were to impose such a requirement, the Minister may also wish to allow the appellant a reasonable time to sit and produce an IELTS test so that the result of that test can guide the amount payable for pre-purchasing ESOL tuition. That, however, is a matter entirely for the Minister to decide.

[54] The appellant has a number of positive factors in his favour, including his employment in an occupational group that is experiencing labour shortages, the consistency of his employment at the [ABC] Restaurant, the regard in which his employer holds him, the difficulty the employer has expressed in recruiting qualified Chinese-cuisine chefs, and the fact that he and his family are well-settled in New Zealand. While the Board has no basis upon which to find that the long-term interests of any of the appellant's children would be harmed significantly if they had to return to China, the oldest child in particular would experience considerable short-term disruption and the application of China's one-child policy to the family's particular situation is uncertain, were it to return there.

[55] Taken cumulatively, the Board finds that the appellant's circumstances are special.

[56] This appeal is determined pursuant to section 18D(1)(f) 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 but considers there are special circumstances of this appellant that warrant consideration by the Minister as an exception to that policy.

[57] Pursuant to section 18E(5) of the Immigration Act 1987, the Minister is requested to make one of the two decisions set out below. Pursuant to section 18E(6) of the Act, the Minister is not obliged to give reasons in relation to any decision made as a result of a consideration of the Board's recommendation.

[Pursuant to section 18E(5), on 29 April 2007, the Minister granted a residence permit to the appellant.]

New Zealand Residence Review Board

Residence Appeal No: 14934 [2007] NZRRB 91 (19 March 2007)