In a series of decisions published in the last month or so, a large group of our clients had their declined Skilled Migrant Residence applications turned around by the Immigration & Protection Tribunal (IPT). This is already producing a ripple effect for others in IT customer support roles around the country.
Our people all worked for the same large call centre which has multiple offices in New Zealand. Their Skilled Migrant applications required them to get points for “skilled employment” as an ICT Customer Support Officer (code 313112 in the ANZSCO). For the 3 years to the end of 2016, Immigration New Zealand (INZ) had granted Residence to over 115 employees of the same company in the same role.
Then something changed. We believe that Immigration did a double-take when someone (perhaps a disgruntled failed job applicant) asked just how many people had been approved in this way. As a result, from April 2017 onwards INZ started churning out the declines. They were long letters, and they were all the same – so much the same that we were able to file a single Appeal submission for 15 people.
We fired a barrage of criticisms at INZ’s approach to these cases. Not all of them stuck, but we scored a number of hits. For example, it was claimed that the Appellants’ use of a Knowledge Base (KB) meant that they were limited to pulling answers out of the database. Of course, almost any customer support role nowadays relies on its people leveraging institutional knowledge gathered in a KB. The Appellants provided support for one of the world’s largest and most extensive IT hardware and software providers. Navigating its KB, which is constantly updated, is no walk in the park. The IPT said:
it was still necessary for the appellant to utilise his own skill and expertise to identify the issue, locate relevant solutions in the [KB], and to understand and apply such solutions.
Next, employees were not permitted to have remote access to users’ devices, so they had to talk customers through the necessary fixes. INZ claimed that they were “merely guiding” the user, so they were not exercising their own IT skills. Anyone who has tried to explain how to fix a computer problem to someone else will tell you that it’s much easier to just get in and ‘do it yourself’. You not only have to know where to go and which options to click; you also have to be able to describe this simply and clearly, so the other person won’t get lost. More critically, the very description of the ICT Customer Support Officer is that she “provides support, education and guidance“, something to which INZ had become completely blind.
The ANZSCO description states that someone doing ICT Customer Support should have a diploma or at least 3 years’ prior experience. The fact is that most of the Appellants had degree-level or higher qualifications. The employer did not require applicants for the job to have either, and INZ said this also meant that the job itself was not sufficiently skilled. The IPT pointed out, though, that ANZSCO itself contemplates that people will acquire the necessary skills over time, and “the entry criteria for a role is not determinative of the skill level of those undertaking the role.”
Finally and fundamentally, INZ concluded that each of the Core Tasks associated with ICT Customer Support did not require a level of skill equivalent to a diploma or 3 years’ prior experience. Why was this wrong? In order to work out if someone had “skilled employment”, two separate questions apply:
- Is their job a “substantial match” to the ANZSCO description for the listed occupation, including Core Tasks? – then
- Does the employee have the qualifications or experience expected for that occupation code?
INZ had applied the second ‘quals/experience’ criteria to the first “substantial match” assessment. In the words of the IPT:
. . . it imported a skill level requirement into its substantial match enquiry, which it was not entitled to do.
So What Now?
INZ had developed what it saw as a slam-dunk solution, to knock out perhaps hundreds of Residence applications. Maybe management saw this as a way to deliver a reduction in the record long-term migration numbers, for which the previous Government was being criticised in the run-up to the Election. The IPT’s comprehensive treatment of this ‘policy’ appears to have stopped this in its tracks. Certainly, so far INZ has not tried to appeal any of our decisions to the High Court.
We have heard from more than one source that people at several other support centres ran into the same problems in the last few months. We have also just heard that, in at least one case, someone else has won their appeal on the same grounds. It is cheering to think that our work is likely to deliver rewards well beyond the wins for our own clients.
There has been a lot of fallout from this process. INZ has declined some people’s Work Visa applications in the meantime, for the same reasons, so that they have now lost their jobs.
INZ has been ordered to reassess every one of our cases. At the time of writing, we have not had feedback from INZ about the Residence reassessments. This story may not be over, and they might try to find other ways to defeat the applications.
However, we have learned something about the dynamics of this industry, and you may know someone in the same situation who needs help. Get them to talk to us.