JPH Investments Ltd v Chief Executive of the Ministry of Business, Innovation and Employment [2018] NZHC 1707 (11 July 2018)

Last Updated: 7 August 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2078 [2018] NZHC 1707

UNDER	Judicial Review Procedure Act 2016
IN THE MATTER	of a decision under the Immigration Act 2009
BETWEEN	JPH INVESTMENTS LTD First Applicant JAGMEET GILL Second Applicant
AND	CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent

Hearing:	27 April 2018
Counsel:	D J Ryken and P P Sundar for Applicants S M Earl for Respondent
Judgment:	11 July 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 11 July 2018 at 3:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Ryken and Associates (Auckland) for Applicants Meredith Connell (Auckland) for Respondent

JPH INVESTMENTS LTD & GILL v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2018] NZHC 1707 [11 July 2018]

Introduction

[1] Mr Gill came to New Zealand as a student. He obtained Level 5 and Level 6 National Diplomas in Business Management. As a result, he was offered a job as assistant manager at an Indian restaurant. He applied to Immigration New Zealand for a further temporary visa to enable him to take the job. There is a special temporary visa category aimed at transitioning people who have obtained qualifications in New Zealand, to a level of practical experience in their chosen field which might allow them 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 the Business 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 sufficient practical experience in the area of his study.

[3] Mr Gill disagrees. He applies for judicial review of Ms Fifita’s decision on three grounds:²

(a) The decision to decline Mr Gill’s visa application is unfair and/or unreasonable.

(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 Immigration Instructions.

[4] The only potentially viable ground for review is whether Ms Fifita erred in her interpretation of the relevant Immigration Instructions. If Ms Fifita erred, then relief will be influenced by whether the outcome is unfair or unreasonable. If Ms Fifita did not err, then the outcome cannot be unfair or unreasonable. There is no evidential

¹ 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 Ryken at the hearing before me.

basis to maintain the ground that Ms Fifita failed to consider the material submitted on behalf of Mr Gill and I will not discuss it further. In any event, the material is relevant to the issue of error.

The regulatory frame

[5] The Immigration Act 2009 permits the Minister to certify immigration instructions 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,⁵ an immigration officer considering a visa application to which immigration instructions apply must exercise his or her discretion in conformity with those instructions.

[6] I was referred by both counsel to the Court of Appeal’s decision in Patel v Chief Executive of the Department of Labour for its discussion on how immigration policy should be construed.⁶ The case addressed a wildly different situation to this one, but I accept that the following dicta apply:

... A policy document, such as the one in issue, is not to be construed with the strictness which might be regarded as appropriate to the interpretation of a statute or statutory instrument. It is a working document providing guidance to immigration officials and to persons interested in immigrating to New Zealand or sponsoring the immigration of a person to this country. It must be construed sensibly according to the purpose of the policy and the natural meaning of the language in the context in which it is employed, that is, as part of a comprehensive and coherent scheme governing immigration into this country.

(Emphasis added)

[7] The Immigration Instructions relevant to this case are as follows:⁷

Objective

The Study to Work Instructions contribute to the overall work instructions objective (see W1) by facilitating and retaining access of New Zealand employers and industry to global skills and knowledge. This is achieved by

³ 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, the Instructions are labelled “WD” followed by paragraph and sub-paragraph references. I shall refer to them in the way that counsel did.

providing a pathway to skilled employment and residence in New Zealand for highly skilled graduates and matching these workers to the needs of the economy.

WD1 Post-study work visa – employer assisted

1. To be eligible for a work visa under these instructions, applicants must:

1. have successfully completed a qualification(s) that meet the qualification requirements as set out in WD1.10; and

2. hold an offer of full-time employment relevant to that qualification (see WD1.5); and ...

2. A work visa may be granted for a maximum of 2 years to obtain practical work experience relevant to the applicant’s programme of study or qualification ...

7. A work visa will only be granted where an immigration officer is satisfied that the offer of full-time employment is one which will provide practical experience relevant to the applicant’s programme of study or qualification.

WD1.5 Relevance of qualification(s) to employment

Qualifications are relevant to employment if:

1. the major subject area and level of the principal applicant’s recognised qualification is directly applicable to the employment; and

2. the immigration officer is satisfied that the qualification was a key factor in the employer’s decision to employ the principal applicant in that position.

Background

[8] The first applicant (the employer) offered Mr Gill the position of Assistant Restaurant Manager to work in one of its four restaurants. Mr Gill applied for a further work visa under the post-study employment assisted work visa category. This was supported by the employer.

[9] On 26 July 2017, Ms Fifita wrote to Mr Gill. She said:⁸

We have assessed your employment against the relevant instructions and it appears your National Diploma in Business Management Level 5 qualification

8. This was not the first correspondence between the Immigration authorities and Mr Gill. Earlier correspondence had involved concerns, and responses to concerns, about the suitability of the employer. This correspondence formed, in part, the foundation for the now withdrawn ground of review alleging bias.

is not directly applicable to your position as Assistant Manager for JPH Investments Limited trading as Bolliwood Restaurant because the level of skill exceeds your level of management responsibilities. Therefore, we cannot be satisfied that you will be able to exercise your skills in your role and subsequently obtain practical experience.

Based on the information stated in your employment agreement under the heading ‘Job Responsibility’ in Clause 1, it would appear you will have little involvement in managing budgets and financial plans, business computing, marketing, and managing staff performance. The information on hand appears to indicate you will be gathering information. However there is no evidence to demonstrate that you are responsible for preparing reports and making strategic plans from any of the information you are responsible for collecting. An overview of your qualification is given on the New Zealand Qualifications website which states that students are able to analyse and research information, prepare budgets and financial plans, select and induct staff, develop teams, develop personal skills; as such it appears that the skills you have obtained as a result of your business management qualification studies, exceed your level of management responsibilities. Taking all these factors into consideration we not (sic) cannot be satisfied at this point in time that your job offer as Assistant Manager for JPH Investments Limited trading as Bolliwood Restaurant is relevant to your qualification and therefore be able to provide you with practical experience in your qualification.

[10] Ms Fifita assured Mr Gill that no decision had been made on his application and the purpose of the letter was to give him the opportunity to make comments and submit 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 as Assistant Manager. Relevant paragraphs are:

3. Jagmeet was hired as an assistant manager mainly because of his qualifications. A qualification in management shows that Jagmeet is able to clearly understand my management strategies, navigate the systems in place at the restaurant, and is aware of the legal and financial obligations placed on the store. I rely on him to assist the manager of the restaurant to ensure that the business is run smoothly.

4. His retail and customer service experience is another reason why he was hired. This experience shows me that he will treat our customers with respect and that he knows the ins and outs of customer service. However, just customer service experience would not have sufficed for this role as, in addition to his duties listed in his contract, and above, Jagmeet also liaises with product representatives and manages product orders.

5. In his role, Jagmeet trains new staff, manages their shifts, ensures our inventory levels are acceptable. Keeping track of our stock levels requires being aware of our operating budget and contributing with

any changes. He is also responsible for ensuring appropriate records are kept of our sales and purchases. He does this whenever we do not have a manager at the restaurant. This involves a knowledge of financial standards and requirements.

6. At the end of every night he evaluates the day’s performance with the manager on site through an oral discussion if they are present. This discussion is then orally reported to either myself or person I delegate by 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 the ranks to higher positions.

[12] Ms Fifita advised Mr Gill by letter dated 23 August 2017 that his application for a work visa was declined. Ms Fifita was not satisfied that Mr Gill’s offer of employment was relevant to his qualification, citing WD1.a.ii and WD1.g. Ms Fifita’s reasoning 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 to your area of expertise in management specifically to analyse and research information, prepare budgets and financial plans and select and induct staff. We accept that your immigration adviser disagrees with our application of the instructions; however the proposed tasks, duties and responsibilities of the role are determinate in whether you will obtain practical experience in your qualification. Furthermore, the submissions do not refute our observations of your role; so when such findings are considered against your areas of expertise in management based on your qualification and the description of your qualification from the New Zealand Qualifications Authority we are not satisfied 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 that she misinterpreted and therefore misapplied WD1.5.a. A proper analysis of Mr Gill’s qualification and the tasks involved in his employment should have led to a finding that WD1.5.a is met.

[14] Mr Ryken sets out the information on Mr Gill’s Level 5 and Level 6 Business Management diplomas provided to Ms Fifita in his submissions as follows:

3.19 In his Level 5 Diploma, the second applicant studied the following courses:

3.19.1 Budget and Financial Plans
3.19.2 Business Computing
3.19.3 Introduction to Business
3.19.4 Marketing
3.19.5 Manage Quality Customer Service
3.19.6 Manage People Performance
3.19.7 Introduction to Business Communication
3.19.8 Industry based project

3.20 In his Level 6 Diploma, the second applicant studied the following courses:

3.20.1 Organisational Management and Leadership
3.20.2 Corporate Strategy and Planning I
3.20.3 Operations Management
3.20.4 Human Resource Management
3.20.5 Marketing Management
3.20.6 Manage projects
3.20.7 Industry based project
3.20.8 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 employment agreement, are as below:

3.21.1 Organise staff for outside catering markets
3.21.2 Organise materials for outside catering markets
3.21.3 Manage shift independently
3.21.4 Supervise staff
3.21.5 Train new staff
3.21.6 Ensure that staff provide a good dining experience for clients
3.21.7 Attend to any customer complaints
3.21.8 Provide superior customer service
3.21.9 Ensure the kitchen is kept clean at all times
3.21.10 Organise adequate supplies of food materials at all times
3.21.11 Greet customers
3.21.12 Keep record of sales, purchases stock and other records
3.21.13 Ensure restaurant is clean and meets all hygiene and safety requirements
3.21.14 Assist in planning and organising birthday parties and small functions
3.21.15 Take orders and serve customers and other duties that may be assigned from time to time

3.22 The explanation of the second applicant’s duties in the first applicant’s letter addressed to INZ also states skills required by the assistant manager and further secondary duties as follows:

3.22.1 Ability to understand the business strategies put in place by the Director
3.22.2 Liaising with product representatives
3.22.3 Managing product orders
3.22.4 Knowledge of the operating budget
3.22.5 Providing oral reports regarding the restaurant’s performance

[16] The summation is as follows:

3.23 It can be seen that the duties of the role require a strong foundation in management, and skills in managing staff, events and projects (such as outside catering markets), as well as some financial knowledge. It is submitted that this knowledge and these skills are those that the second applicant obtained in his two management diplomas. In fact, it is submitted that the only papers that the applicant studied, which may not be directly relevant to his employment are the two marketing papers (one in Level 5, and one in Level 6). Every other paper is directly relevant to the second applicant’s employment.

[17] In Mr Ryken’s submission, Ms Fifita has taken a narrow numerical approach to the relevance analysis, and this was an error. What Ms Fifita should have done, in Mr Ryken’s submission, is to look at the match between the job and the qualifications holistically. Mr Gill does not have a diploma in restaurant management, and it is not necessary that he have one.

[18] Mr Ryken submits that Mr Gill’s qualifications are broad. There is no major subject, instead the broad qualification is in the title to the diplomas, namely business management:

It is submitted that INZ overlooked the job duties of ‘manage shifts independently’, ‘train staff’, and ‘supervise staff’.

In other words, while preparing budgets and marketing may not be directly part of Mr Gill’s employment, management is.

[19] Mr Ryken acknowledges that not every component of Mr Gill’s diplomas is relevant to his employment, but says that the core of his qualification is. Totalling up the number of courses that bear directly on Mr Gill’s employment and considering whether they form a majority is rejected as over-simplistic.

[20] Mr Ryken also points out the requirement for relevant practical experience in WD1(g). He argues that the letter from Mr Gill’s employer stating that Mr Gill could rise up through the ranks of the business is evidence of Mr Gill’s capacity for
professional growth in the sphere of business management. This goes directly to the relevance of Mr Gill’s qualifications to his employment.

Respondent’s submissions

[21] The respondent (the Chief Executive) submits that Ms Fifita’s decision was not unreasonable and was within her discretion. Mr Gill’s qualifications are not directly applicable 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 of the proposed role. It stated:

It is your responsibility to assist the director/manager to run the restaurant smoothly and to organise/arrange staff/materials for the outside catering markets. Your duties including managing shifts independently, supervise staff, train new staff, ensure that the staff provide good dining experience for clients, attend to any customers complaints promptly, provide superior customer service, ensure that the kitchen is kept clean at all times, organise adequate supplies of food material at all the times. Greet customers, keep record of sales, purchase, stock and other records, ensure that the restaurant is kept clean and meet all hygiene and safety requirements, experience assist in planning and organising birthday parties and small functions, take orders and serve customers and any other duties assigned from time to time.

[22] The Chief Executive goes on to submit:

3.8 The respondent submits that it was clearly open to the immigration officer to find that the role would not offer practical experience relevant to the applicant’s programme of study or qualification, and that the major subject area and level of the qualification was not directly relevant applicable to the employment.

3.9 As the instructions state, the task of the immigration officer in assessing these applications is to make a comparison between the major subject area and level of the qualification, and what the offer of employment will involve. That requires the immigration officer to look at the nature of the course taken. In this case, the qualification was directed to relatively high-level business management, given that the papers included budget and financial plans, marketing, managing people 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 to assist in the day to day operations of the restaurant, not the management of the business. A number of the second applicant’s core

job responsibilities as an Assistant Manager (as reflected in his job description) were not directly relevant to the second applicant’s qualifications. For example, attending to customer complaints, ensuring the kitchen and restaurant are kept clean, greeting customers, ensuring hygiene and safety requirements are met, assisting with functions, and taking orders and serving customers.

3.11 Furthermore, it is clear that there were a number of areas of the qualification in which the second applicant would not be gaining relevant 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 directly applicable to the role. If a business management course has been studied, it is not sufficient if the role involves some responsibilities that are tangentially relevant to business management, such as supervising staff, or being aware of, but not involved in, matters such as strategic planning or setting budgets. Further, “management” is a broad description. The particular type of study undertaken is a relevant consideration. The Immigration Officer must be satisfied that the applicant will be gaining practical experience relevant to his or her particular programme of study or qualification. In this case, the responsibilities of the role did not require the second applicant to utilise the skills learned in his qualification to such a degree that the role could be considered relevant to the qualification.

3.13 As the INZ policy guidance document on relevance indicates, the objective of the Study to Work instructions is to contribute to the overall work instructions objective by facilitating and retaining access of New Zealand employers and industry to global skills and knowledge, and provide a pathway to skilled employment and residence for highly skilled graduates and matching these workers to the needs of the economy. Although a ‘pathway’ to skilled employment is envisaged, the instructions also contemplate a match between the graduate’s skills and the vacancy. There must be direct link between the qualification and the offer of employment. An offer of employment that is not relevant to the qualification but that could be used as a potential ‘stepping stone’ to relevant skilled employment under a future Skilled Migrant category application does not meet the requirements.

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 skills and knowledge. This is done by providing a pathway for graduates to gain practical experience relevant to the graduate’s qualifications.

[24] I agree also that although a pathway to skilled employment is envisaged, there must be a direct link between the qualifications and the offer of employment. To give
an obvious example, if a person who has graduated with a nursing qualification is offered a trainee manager’s job with a freight forwarding company then they would not qualify for a work visa in this category.

[25] Mr Gill’s situation is not, however, to be compared with the example I have just given. His case is that Ms Fifita should have been satisfied his role as assistant manager will provide practical experience relevant to his qualifications.

[26] The Chief Executive’s argument is that Mr Gill’s major subject areas and levels of 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 question is whether the offered employment will build on the graduate’s qualification to lift the graduate to a level which might allow them to apply for permanent residence as a skilled migrant.

[28] In this case, Mr Gill provided Ms Fifita with limited evidence of this. He did not provide an affidavit, or an account, which links the subjects he studied to his offer of employment. He provided only the subject headings of the courses he studied and these 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 he wanted considered.

[29] However, Ms Fifita apparently consulted the New Zealand Qualifications website 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 look at the employment offer holistically with a focus on the future. It is clear from the subject headings of the courses Mr Gill studied there is no major subject of study in the usual sense. Mr Gill’s qualifications are broadly based. As is apparent from the

9. The additional component of relevance to employment set out in WD1.5.b (that the qualification was a key factor in the employer’s decision to employ the applicant) is not relied on by the Chief Executive and I do not need to consider it. The uncontested evidence of the first applicant is that such reliance exists.

summary of the parties’ positions, some of the course headings appear directly relevant to Mr Gill’s employment, others do not. But, it is not necessary that there be a direct correlation between all components of a qualification and the duties set out in the offer of employment. It would be a rare employment position that engaged every aspect of the qualification held by the person who occupied it. It is enough if there is a significant and real correlation between the two. As the Court of Appeal said in Patel,¹⁰ the policy must be construed sensibly according to its purpose.

[31] I do not consider a sensible construction of the relevant immigration instructions to be that a certain portion of any given qualification must be used in the subsequent employment position.

[32] The respondent argued that Ms Fifita did not “tot up” the number of relevant and irrelevant courses taken by Mr Gill, but rather engaged in a sensible comparative analysis of the qualification and the skills required for the employment position. The respondent said that this was what the relevant instructions required.

[33] I do not agree that this was the approach taken by Ms Fifita. Excerpts from her letter to Mr Gill dated 26 July 2017 are:

Based on the information stated in your employment agreement under the heading ‘Job Responsibility’ in Clause 1, it would appear you will have little involvement in managing budgets and financial plans, business computing, marketing, and managing staff performance... An overview of your qualification is given on the New Zealand Qualifications website which states that students are able to analyse and research information, prepare budgets and financial plans, select and induct staff, develop teams, develop personal skills...

[34] This analysis does not take a holistic view of Mr Gill’s qualification. It is comparative, but the comparison is focussed on individual skills or courses rather than the qualification as a whole and its relevance to Mr Gill’s position of employment. As stated previously, I consider that this approach was an error.

[35] Secondly, Ms Fifita did not assess the levels of Mr Gill’s qualifications against his employment duties, nor look at his exposure to relevant aspects of business

¹⁰ Quoted at [6].

management. This is something that is a relevant factor under WD1(g). National Diplomas at Levels 5 and 6 are not university degrees. Mr Gill’s assistant manager’s job is an entry level management position. It is clear he would be obtaining broad experience as a business manager. His employer is optimistic about his future prospects with the company. Ms Fifita appears to have taken the overview of the qualification from the website and decided the skills described exceed the skills required for Mr Gill’s duties. But, even if true, that does not necessarily matter. It is the extent of any gap which matters.

[36] Further, Ms Fifita’s assessment does not take into account Mr Gill’s prospects of advancement, through the benefit of practical experience, to a position requiring more complex skills. It would be rare for newly acquired academic qualifications to lead directly to employment requiring the graduate to be responsible for tasks involving all the newly acquired knowledge. A graduate first needs experience beginning with an entry-level position in a work environment to which the qualification is broadly applicable. An example is a law graduate starting work at a law 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 to clients, will be their pathway to advancement. Ms Fifita’s conclusion that Mr Gill’s duties might, in some respects, be at a more basic level than that at which his qualifications indicate he can operate, should not be used to deny him the visa applied for unless, viewed holistically and looking to the future, there is no upward path into the broad areas studied by Mr Gill.

Decision

[37] Mr Gill has broad-based, relatively low level, business management qualifications. 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 his qualifications. Mr Gill will (and has, since he is working in the job) get practical experience in some of the fields he studied. He will be exposed to other areas since the restaurant is a business and the senior managers will be performing a wide range of tasks which he can be expected to observe and learn from.
[38] The Chief Executive, through Ms Fifita, erred in interpreting the relevant Immigration Instructions:

(a) By failing to assess the employment offer holistically with a focus on the future.

(b) By failing to assess the levels of Mr Gill’s qualifications against his employment duties, in the context of exposure to the overall management of the business.

[39] I have decided that Mr Gill should have his application reconsidered in the light of my findings. I grant Mr Gill’s application for judicial review. I make an order setting aside the Chief Executive’s decision declining Mr Gill’s application for a work visa and I direct his application be reconsidered.

[40] Mr Gill is entitled to costs. If they cannot be agreed, I will receive memoranda from the parties no later than 17 August 2018.








Brewer J