JPH INVESTMENTS LTD & GILL v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2018] NZHC 1707

JPH INVESTMENTS LTD & GILL v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENT [2018] NZHC 1707 [11 July 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-2078[2018] NZHC 1707UNDER Judicial Review Procedure Act 2016IN THE MATTER of a decision under the Immigration Act2009BETWEEN JPH INVESTMENTS LTDFirst ApplicantJAGMEET GILLSecond ApplicantAND CHIEF EXECUTIVE OF THE MINISTRYOF BUSINESS, INNOVATION ANDEMPLOYMENTRespondentHearing: 27 April 2018Counsel: D J Ryken and P P Sundar for ApplicantsS M Earl for RespondentJudgment: 11 July 2018JUDGMENT OF BREWER JThis judgment was delivered by me on 11 July 2018 at 3:30 pmpursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors:Ryken and Associates (Auckland) for ApplicantsMeredith Connell (Auckland) for RespondentIntroduction[1] Mr Gill came to New Zealand as a student. He obtained Level 5 and Level 6National Diplomas in Business Management. As a result, he was offered a job asassistant manager at an Indian restaurant. He applied to Immigration New Zealand fora further temporary visa to enable him to take the job. There is a special temporaryvisa category aimed at transitioning people who have obtained qualifications inNew Zealand, to a level of practical experience in their chosen field which might allowthem to apply for permanent residence as skilled migrants.1[2] An immigration officer, Ms Fifita, declined Mr Gill's application. In her view,the job of assistant manager at the restaurant is not sufficiently connected to theBusiness Management diplomas to come within the visa category. Putting it shortly,Ms Fifita did not consider the assistant manager's job would gain Mr Gill sufficientpractical experience in the area of his study.[3] Mr Gill disagrees. He applies for judicial review of Ms Fifita's decision onthree grounds:2(a) The decision to decline Mr Gill's visa application is unfair and/orunreasonable.(b) Ms Fifita failed to consider evidence provided by the first applicant(Mr Gill's employer) and submissions by Mr Gill's lawyer.(c) Ms Fifita made an error of law in interpreting relevant ImmigrationInstructions.[4] The only potentially viable ground for review is whether Ms Fifita erred in herinterpretation of the relevant Immigration Instructions. If Ms Fifita erred, then reliefwill be influenced by whether the outcome is unfair or unreasonable. If Ms Fifita didnot err, then the outcome cannot be unfair or unreasonable. There is no evidential1 Known as a Post-Study Work Visa (Employer Assisted).2 There was a fourth ground for review – bias. This was withdrawn (quite properly) by Mr Rykenat the hearing before me.basis to maintain the ground that Ms Fifita failed to consider the material submittedon behalf of Mr Gill and I will not discuss it further. In any event, the material isrelevant to the issue of error.The regulatory frame[5] The Immigration Act 2009 permits the Minister to certify immigrationinstructions relating to (inter alia) temporary entry class visas.3 Such instructions are"statements of government policy".4 While no person is entitled to a visa as of right,5an immigration officer considering a visa application to which immigrationinstructions apply must exercise his or her discretion in conformity with thoseinstructions.[6] I was referred by both counsel to the Court of Appeal's decision in Patel vChief Executive of the Department of Labour for its discussion on how immigrationpolicy should be construed.6 The case addressed a wildly different situation to thisone, but I accept that the following dicta apply: A policy document, such as the one in issue, is not to be construed with thestrictness which might be regarded as appropriate to the interpretation of astatute or statutory instrument. It is a working document providing guidanceto immigration officials and to persons interested in immigrating toNew Zealand or sponsoring the immigration of a person to this country. Itmust be construed sensibly according to the purpose of the policy and thenatural meaning of the language in the context in which it is employed,that is, as part of a comprehensive and coherent scheme governingimmigration into this country.(Emphasis added)[7] The Immigration Instructions relevant to this case are as follows:7ObjectiveThe Study to Work Instructions contribute to the overall work instructionsobjective (see W1) by facilitating and retaining access of New Zealandemployers and industry to global skills and knowledge. This is achieved by3 Immigration Act 2009, s 22(1).4 Section 22(8).5 Section 45(1).6 Patel v Chief Executive of the Department of Labour [1997] NZAR 264 (CA) at 271.7 The parties provided me with an excerpt of the INZ Operational Manual. For some reason, theInstructions are labelled "WD" followed by paragraph and sub-paragraph references. I shall referto them in the way that counsel did.providing a pathway to skilled employment and residence in New Zealand forhighly skilled graduates and matching these workers to the needs of theeconomy.WD1 Post-study work visa – employer assisteda To be eligible for a work visa under these instructions, applicantsmust:i have successfully completed a qualification(s) that meet thequalification requirements as set out in WD1.10; andii hold an offer of full-time employment relevant to thatqualification (see WD1.5); and b A work visa may be granted for a maximum of 2 years to obtainpractical work experience relevant to the applicant's programme ofstudy or qualification g A work visa will only be granted where an immigration officer issatisfied that the offer of full-time employment is one which willprovide practical experience relevant to the applicant's programme ofstudy or qualification.WD1.5 Relevance of qualification(s) to employmentQualifications are relevant to employment if:a the major subject area and level of the principal applicant's recognisedqualification is directly applicable to the employment; andb the immigration officer is satisfied that the qualification was a keyfactor in the employer's decision to employ the principal applicant inthat position.Background[8] The first applicant (the employer) offered Mr Gill the position of AssistantRestaurant Manager to work in one of its four restaurants. Mr Gill applied for a furtherwork visa under the post-study employment assisted work visa category. This wassupported by the employer.[9] On 26 July 2017, Ms Fifita wrote to Mr Gill. She said:8We have assessed your employment against the relevant instructions and itappears your National Diploma in Business Management Level 5 qualification8 This was not the first correspondence between the Immigration authorities and Mr Gill. Earliercorrespondence had involved concerns, and responses to concerns, about the suitability of theemployer. This correspondence formed, in part, the foundation for the now withdrawn ground ofreview alleging bias.is not directly applicable to your position as Assistant Manager for JPHInvestments Limited trading as Bolliwood Restaurant because the level ofskill exceeds your level of management responsibilities. Therefore, we cannotbe satisfied that you will be able to exercise your skills in your role andsubsequently obtain practical experience.Based on the information stated in your employment agreement under theheading 'Job Responsibility' in Clause 1, it would appear you will have littleinvolvement in managing budgets and financial plans, business computing,marketing, and managing staff performance. The information on hand appearsto indicate you will be gathering information. However there is no evidenceto demonstrate that you are responsible for preparing reports and makingstrategic plans from any of the information you are responsible for collecting.An overview of your qualification is given on the New Zealand Qualificationswebsite which states that students are able to analyse and researchinformation, prepare budgets and financial plans, select and induct staff,develop teams, develop personal skills; as such it appears that the skills youhave obtained as a result of your business management qualification studies,exceed your level of management responsibilities. Taking all these factors intoconsideration we not (sic) cannot be satisfied at this point in time that your joboffer as Assistant Manager for JPH Investments Limited trading as BolliwoodRestaurant is relevant to your qualification and therefore be able to provideyou with practical experience in your qualification.[10] Ms Fifita assured Mr Gill that no decision had been made on his applicationand the purpose of the letter was to give him the opportunity to make comments andsubmit additional evidence or information.[11] Mr Ryken's firm responded to Ms Fifita's letter in a letter dated 1 August 2017.With it was a letter from the employer dated 26 July 2017 explaining Mr Gill's role asAssistant Manager. Relevant paragraphs are:3. Jagmeet was hired as an assistant manager mainly because of hisqualifications. A qualification in management shows that Jagmeet isable to clearly understand my management strategies, navigate thesystems in place at the restaurant, and is aware of the legal andfinancial obligations placed on the store. I rely on him to assist themanager of the restaurant to ensure that the business is run smoothly.4. His retail and customer service experience is another reason why hewas hired. This experience shows me that he will treat our customerswith respect and that he knows the ins and outs of customer service.However, just customer service experience would not have sufficedfor this role as, in addition to his duties listed in his contract, andabove, Jagmeet also liaises with product representatives and managesproduct orders.5. In his role, Jagmeet trains new staff, manages their shifts, ensures ourinventory levels are acceptable. Keeping track of our stock levelsrequires being aware of our operating budget and contributing withany changes. He is also responsible for ensuring appropriate recordsare kept of our sales and purchases. He does this whenever we do nothave a manager at the restaurant. This involves a knowledge offinancial standards and requirements.6. At the end of every night he evaluates the day's performance with themanager on site through an oral discussion if they are present. Thisdiscussion is then orally reported to either myself or person I delegateby the manager, or assistant manager.7. I have brought Jagmeet on board as an assistant manager at this time.I see him having a future with my company, potentially moving up theranks to higher positions.[12] Ms Fifita advised Mr Gill by letter dated 23 August 2017 that his applicationfor a work visa was declined. Ms Fifita was not satisfied that Mr Gill's offer ofemployment was relevant to his qualification, citing WD1.a.ii and WD1.g. Ms Fifita'sreasoning was:We had previously raised the concern over your role as 'Assistant Manager'and how there is no requirement for you to perform tasks and duties related toyour area of expertise in management specifically to analyse and researchinformation, prepare budgets and financial plans and select and induct staff.We accept that your immigration adviser disagrees with our application of theinstructions; however the proposed tasks, duties and responsibilities of the roleare determinate in whether you will obtain practical experience in yourqualification. Furthermore, the submissions do not refute our observations ofyour role; so when such findings are considered against your areas of expertisein management based on your qualification and the description of yourqualification from the New Zealand Qualifications Authority we are notsatisfied the instructions at WD1.a.ii and WD1.g have been met.Mr Gill's case for judicial review[13] It is submitted on behalf of Mr Gill that Ms Fifita made an error of law in thatshe misinterpreted and therefore misapplied WD1.5.a. A proper analysis of Mr Gill'squalification and the tasks involved in his employment should have led to a findingthat WD1.5.a is met.[14] Mr Ryken sets out the information on Mr Gill's Level 5 and Level 6 BusinessManagement diplomas provided to Ms Fifita in his submissions as follows:3.19 In his Level 5 Diploma, the second applicant studied the followingcourses:3.19.1 Budget and Financial Plans3.19.2 Business Computing3.19.3 Introduction to Business3.19.4 Marketing3.19.5 Manage Quality Customer Service3.19.6 Manage People Performance3.19.7 Introduction to Business Communication3.19.8 Industry based project3.20 In his Level 6 Diploma, the second applicant studied the followingcourses:3.20.1 Organisational Management and Leadership3.20.2 Corporate Strategy and Planning I3.20.3 Operations Management3.20.4 Human Resource Management3.20.5 Marketing Management3.20.6 Manage projects3.20.7 Industry based project3.20.8 International business case study[15] Mr Ryken then sets out Mr Gill's duties:3.21 The second applicant's duties, as per his individual employmentagreement, are as below:3.21.1 Organise staff for outside catering markets3.21.2 Organise materials for outside catering markets3.21.3 Manage shift independently3.21.4 Supervise staff3.21.5 Train new staff3.21.6 Ensure that staff provide a good dining experience forclients3.21.7 Attend to any customer complaints3.21.8 Provide superior customer service3.21.9 Ensure the kitchen is kept clean at all times3.21.10 Organise adequate supplies of food materials at alltimes3.21.11 Greet customers3.21.12 Keep record of sales, purchases stock and otherrecords3.21.13 Ensure restaurant is clean and meets all hygiene andsafety requirements3.21.14 Assist in planning and organising birthday parties andsmall functions3.21.15 Take orders and serve customers and other duties thatmay be assigned from time to time3.22 The explanation of the second applicant's duties in the first applicant'sletter addressed to INZ also states skills required by the assistantmanager and further secondary duties as follows:3.22.1 Ability to understand the business strategies put inplace by the Director3.22.2 Liaising with product representatives3.22.3 Managing product orders3.22.4 Knowledge of the operating budget3.22.5 Providing oral reports regarding the restaurant'sperformance[16] The summation is as follows:3.23 It can be seen that the duties of the role require a strong foundation inmanagement, and skills in managing staff, events and projects (suchas outside catering markets), as well as some financial knowledge. Itis submitted that this knowledge and these skills are those that thesecond applicant obtained in his two management diplomas. In fact,it is submitted that the only papers that the applicant studied, whichmay not be directly relevant to his employment are the two marketingpapers (one in Level 5, and one in Level 6). Every other paper isdirectly relevant to the second applicant's employment.[17] In Mr Ryken's submission, Ms Fifita has taken a narrow numerical approachto the relevance analysis, and this was an error. What Ms Fifita should have done, inMr Ryken's submission, is to look at the match between the job and the qualificationsholistically. Mr Gill does not have a diploma in restaurant management, and it is notnecessary that he have one.[18] Mr Ryken submits that Mr Gill's qualifications are broad. There is no majorsubject, instead the broad qualification is in the title to the diplomas, namely businessmanagement:It is submitted that INZ overlooked the job duties of 'manage shiftsindependently', 'train staff', and 'supervise staff'.In other words, while preparing budgets and marketing may not be directly part ofMr Gill's employment, management is.[19] Mr Ryken acknowledges that not every component of Mr Gill's diplomas isrelevant to his employment, but says that the core of his qualification is. Totalling upthe number of courses that bear directly on Mr Gill's employment and consideringwhether they form a majority is rejected as over-simplistic.[20] Mr Ryken also points out the requirement for relevant practical experience inWD1(g). He argues that the letter from Mr Gill's employer stating that Mr Gill couldrise up through the ranks of the business is evidence of Mr Gill's capacity forprofessional growth in the sphere of business management. This goes directly to therelevance of Mr Gill's qualifications to his employment.Respondent's submissions[21] The respondent (the Chief Executive) submits that Ms Fifita's decision was notunreasonable and was within her discretion. Mr Gill's qualifications are not directlyapplicable to his employment, taking into account the major subject area of his study,the level of his qualifications, and the nature of the employment:3.5 The applicant's employment agreement set out the responsibilities ofthe proposed role. It stated:It is your responsibility to assist the director/manager to runthe restaurant smoothly and to organise/arrange staff/materialsfor the outside catering markets. Your duties includingmanaging shifts independently, supervise staff, train new staff,ensure that the staff provide good dining experience for clients,attend to any customers complaints promptly, provide superiorcustomer service, ensure that the kitchen is kept clean at alltimes, organise adequate supplies of food material at all thetimes. Greet customers, keep record of sales, purchase, stockand other records, ensure that the restaurant is kept clean andmeet all hygiene and safety requirements, experience assist inplanning and organising birthday parties and small functions,take orders and serve customers and any other duties assignedfrom time to time.[22] The Chief Executive goes on to submit:3.8 The respondent submits that it was clearly open to the immigrationofficer to find that the role would not offer practical experiencerelevant to the applicant's programme of study or qualification, andthat the major subject area and level of the qualification was notdirectly relevant applicable to the employment.3.9 As the instructions state, the task of the immigration officer inassessing these applications is to make a comparison between themajor subject area and level of the qualification, and what the offer ofemployment will involve. That requires the immigration officer tolook at the nature of the course taken. In this case, the qualificationwas directed to relatively high-level business management, given thatthe papers included budget and financial plans, marketing, managingpeople performance, organisational management and leadership,corporate strategy and planning, human resource management,managing projects and an international business case study.3.10 By comparison, the role was a hospitality role that appeared to be toassist in the day to day operations of the restaurant, not themanagement of the business. A number of the second applicant's corejob responsibilities as an Assistant Manager (as reflected in his jobdescription) were not directly relevant to the second applicant'squalifications. For example, attending to customer complaints,ensuring the kitchen and restaurant are kept clean, greeting customers,ensuring hygiene and safety requirements are met, assisting withfunctions, and taking orders and serving customers.3.11 Furthermore, it is clear that there were a number of areas of thequalification in which the second applicant would not be gainingrelevant experience, such as in managing budgets and financial plans,marketing, preparing reports or making strategic plans.3.12 The major subject area and level of the qualification must be directlyapplicable to the role. If a business management course has beenstudied, it is not sufficient if the role involves some responsibilitiesthat are tangentially relevant to business management, such assupervising staff, or being aware of, but not involved in, matters suchas strategic planning or setting budgets. Further, "management" is abroad description. The particular type of study undertaken is arelevant consideration. The Immigration Officer must be satisfied thatthe applicant will be gaining practical experience relevant to his or herparticular programme of study or qualification. In this case, theresponsibilities of the role did not require the second applicant toutilise the skills learned in his qualification to such a degree that therole could be considered relevant to the qualification.3.13 As the INZ policy guidance document on relevance indicates, theobjective of the Study to Work instructions is to contribute to theoverall work instructions objective by facilitating and retaining accessof New Zealand employers and industry to global skills andknowledge, and provide a pathway to skilled employment andresidence for highly skilled graduates and matching these workers tothe needs of the economy. Although a 'pathway' to skilledemployment is envisaged, the instructions also contemplate a matchbetween the graduate's skills and the vacancy. There must be directlink between the qualification and the offer of employment. An offerof employment that is not relevant to the qualification but that couldbe used as a potential 'stepping stone' to relevant skilled employmentunder a future Skilled Migrant category application does not meet therequirements.Discussion[23] I agree with the Chief Executive that the purpose of the policy behind the post-study work visa – employer assisted is to facilitate and retain access to global skillsand knowledge. This is done by providing a pathway for graduates to gain practicalexperience relevant to the graduate's qualifications.[24] I agree also that although a pathway to skilled employment is envisaged, theremust be a direct link between the qualifications and the offer of employment. To givean obvious example, if a person who has graduated with a nursing qualification isoffered a trainee manager's job with a freight forwarding company then they wouldnot qualify for a work visa in this category.[25] Mr Gill's situation is not, however, to be compared with the example I havejust given. His case is that Ms Fifita should have been satisfied his role as assistantmanager will provide practical experience relevant to his qualifications.[26] The Chief Executive's argument is that Mr Gill's major subject areas and levelsof his qualifications are not directly applicable to his employment.9[27] In my view, the focus of the policy in this area is on the future. The questionis whether the offered employment will build on the graduate's qualification to lift thegraduate to a level which might allow them to apply for permanent residence as askilled migrant.[28] In this case, Mr Gill provided Ms Fifita with limited evidence of this. He didnot provide an affidavit, or an account, which links the subjects he studied to his offerof employment. He provided only the subject headings of the courses he studied andthese were applied to the job descriptions given by his employer, the first applicant.The onus was on Mr Gill to provide the Chief Executive with all relevant material hewanted considered.[29] However, Ms Fifita apparently consulted the New Zealand Qualificationswebsite and had regard to an overview of Mr Gill's qualification. From her description(quoted at [9]) it is very broad.[30] In my view, Ms Fifita then erred in two respects. The first is she did not lookat the employment offer holistically with a focus on the future. It is clear from thesubject headings of the courses Mr Gill studied there is no major subject of study inthe usual sense. Mr Gill's qualifications are broadly based. As is apparent from the9 The additional component of relevance to employment set out in WD1.5.b (that the qualificationwas a key factor in the employer's decision to employ the applicant) is not relied on by the ChiefExecutive and I do not need to consider it. The uncontested evidence of the first applicant is thatsuch reliance exists.summary of the parties' positions, some of the course headings appear directly relevantto Mr Gill's employment, others do not. But, it is not necessary that there be a directcorrelation between all components of a qualification and the duties set out in the offerof employment. It would be a rare employment position that engaged every aspect ofthe qualification held by the person who occupied it. It is enough if there is asignificant and real correlation between the two. As the Court of Appeal said inPatel,10 the policy must be construed sensibly according to its purpose.[31] I do not consider a sensible construction of the relevant immigrationinstructions to be that a certain portion of any given qualification must be used in thesubsequent employment position.[32] The respondent argued that Ms Fifita did not "tot up" the number of relevantand irrelevant courses taken by Mr Gill, but rather engaged in a sensible comparativeanalysis of the qualification and the skills required for the employment position. Therespondent said that this was what the relevant instructions required.[33] I do not agree that this was the approach taken by Ms Fifita. Excerpts fromher letter to Mr Gill dated 26 July 2017 are:Based on the information stated in your employment agreement under theheading 'Job Responsibility' in Clause 1, it would appear you will have littleinvolvement in managing budgets and financial plans, business computing,marketing, and managing staff performance An overview of yourqualification is given on the New Zealand Qualifications website which statesthat students are able to analyse and research information, prepare budgets andfinancial plans, select and induct staff, develop teams, develop personalskills[34] This analysis does not take a holistic view of Mr Gill's qualification. It iscomparative, but the comparison is focussed on individual skills or courses rather thanthe qualification as a whole and its relevance to Mr Gill's position of employment. Asstated previously, I consider that this approach was an error.[35] Secondly, Ms Fifita did not assess the levels of Mr Gill's qualifications againsthis employment duties, nor look at his exposure to relevant aspects of business10 Quoted at [6].management. This is something that is a relevant factor under WD1(g). NationalDiplomas at Levels 5 and 6 are not university degrees. Mr Gill's assistant manager'sjob is an entry level management position. It is clear he would be obtaining broadexperience as a business manager. His employer is optimistic about his futureprospects with the company. Ms Fifita appears to have taken the overview of thequalification from the website and decided the skills described exceed the skillsrequired for Mr Gill's duties. But, even if true, that does not necessarily matter. It isthe extent of any gap which matters.[36] Further, Ms Fifita's assessment does not take into account Mr Gill's prospectsof advancement, through the benefit of practical experience, to a position requiringmore complex skills. It would be rare for newly acquired academic qualifications tolead directly to employment requiring the graduate to be responsible for tasksinvolving all the newly acquired knowledge. A graduate first needs experiencebeginning with an entry-level position in a work environment to which thequalification is broadly applicable. An example is a law graduate starting work at alaw firm. The graduate's duties will initially be very limited, their responsibility small.But their exposure to a range of work, to lawyers with more senior positions, and toclients, will be their pathway to advancement. Ms Fifita's conclusion that Mr Gill'sduties might, in some respects, be at a more basic level than that at which hisqualifications indicate he can operate, should not be used to deny him the visa appliedfor unless, viewed holistically and looking to the future, there is no upward path intothe broad areas studied by Mr Gill.Decision[37] Mr Gill has broad-based, relatively low level, business managementqualifications. He has an employment offer as an assistant manager at a restaurant.His employer wants to rely on some of the knowledge he acquired in gaining hisqualifications. Mr Gill will (and has, since he is working in the job) get practicalexperience in some of the fields he studied. He will be exposed to other areas sincethe restaurant is a business and the senior managers will be performing a wide rangeof tasks which he can be expected to observe and learn from.[38] The Chief Executive, through Ms Fifita, erred in interpreting the relevantImmigration Instructions:(a) By failing to assess the employment offer holistically with a focus onthe future.(b) By failing to assess the levels of Mr Gill's qualifications against hisemployment duties, in the context of exposure to the overallmanagement of the business.[39] I have decided that Mr Gill should have his application reconsidered in thelight of my findings. I grant Mr Gill's application for judicial review. I make an ordersetting aside the Chief Executive's decision declining Mr Gill's application for a workvisa and I direct his application be reconsidered.[40] Mr Gill is entitled to costs. If they cannot be agreed, I will receive memorandafrom the parties no later than 17 August 2018.________________________________Brewer J