Another case where INZ did not assess the client’s application fairly and correctly is the case of one of our successful clients – employed as a manager in an Indian restaurant in a provincial town (family-owned business).
The main issue of this case was that employer’s wife undertook the cooking as the chef had left and they were unable to fill the position of cook/chef, and the employer’s children sometimes helped in the restaurant whenever it was busy. Therefore, INZ assumed that our client did not have full managerial and organisational control of the restaurant and declined the application based on statement that the employment was not a substantial match to the ANZSCO description, including core tasks and without points for skilled employment, the client did not meet the minimum criteria of the Skilled Migrant Category.
Even though INZ was satisfied that the client was completing four of the core tasks, but did not accept the three remaining.
We have submitted evidence to INZ to prove the opposite that the client is performing all the core tasks, however INZ ignored to properly consider provided evidence and made decisions that was against the weight of evidence, which means INZ acted unfairly and contrary to the principles of fairness and natural justice.
Therefore, we knew the only way is to appeal to the Tribunal to overrule the decision.
We submitted the approach which was taken in regards to a decision to grant the client a residence visa includes due weight and consideration to: the “substantive” test; fairness, relevant IPT decisions and the fact that both the client and the employer had already clarified that it is the client who is ultimately responsible for controlling the restaurant, and fulfils the tasks with INZ listed as part of the ANZSCO definition. Giving due weight to our submission we believed this was correct in law.
We successfully argued that INZ made wrong decision when concerning the 3 tasks where the Tribunal agreed that INZ interpreted the wording of the task to narrowly with no consideration of the purpose of the task.
The Tribunal found the INZ decision incorrect, cancelled it and referred back to INZ for a correct assessment.