The most recent successful IPT Appeal was done for the client whose residence under Skilled Migrant Category was declined by INZ because it found that his employment as a café manager did not substantially match the ANZSCO description, including core tasks and without points for skilled employment, the application could not succeed.
The most interesting part about this case is that we successfully appealed two times the same application. In the first place, INZ declined visa on the basis of the unsustainability of the business which we appealed and the Tribunal remitted the decision back to INZ for a new assessment.
When INZ declined his residence visa again on different grounds, we knew that INZ is not acting fairly and we appealed the decision again. This time INZ was not satisfied that the client is performing tasks of Café Manager. INZ found that the client’s role was more of a substantial match to the occupation of a Waiter, which was not listed as a skilled occupation by ANZSCO.
INZ acknowledged that the client contributed to the day-to-day operation of the café, however INZ found that it was apparent that he did not have the overall responsibility and control of the café. Furthermore, while it satisfied that he performed some of the tasks at a basic level, it was not satisfied that he performed these tasks at a managerial level. INZ found that the client lacked the organisation and control of the café to the extent that the ANZSCO intended.
The Tribunal accepted that the evidence presented by the client suggested that some of the relevant tasks were performed by him at a basic level. However, the Tribunal has stressed the importance of assessing substantial match in the context of the particular business operation and that the relevant tasks, in the context of a small business, may be performed in a less than sophisticated manner. The Tribunal has repeatedly affirmed that INZ needs to take into account the specific characteristics of the client’s employment and the overall nature of the organisation in which he is employed.
Furthermore, Tribunal found that INZ did not have proper regard to the evidence and it imposed a level of performance which is not required by the ANZSCO or immigration instructions.
The conclusion of the Tribunal’s decision is that INZ did not give the application appropriate consideration and did not give appropriate reasons in its decision to decline the application and so did not fulfil the requirements of fairness in decision making.
The application was therefore referred back to INZ for a new assessment.