17 Jul 2017

Court asked to overturn Immigration Tribunal decision

8:38 pm on 17 July 2017

A decision by the immigration authorities that the manager of a provincial McDonald's restaurant did not qualify for the skilled migrant category was wrong and should be overturned, the High Court in Wellington has been told.

High Court in Wellington generic, 2 Molesworth St, Pipitea, Wellington 6011

The High Court in Wellington Photo: RNZ / Aaron Smale

Immigration New Zealand initially turned down Mandeep Singh's application to be considered as a skilled migrant in his residency application and that decision was later endorsed by the Immigration and Protection Tribunal.

His lawyer, Graham Taylor told the High Court in Wellington that in immigration terms, managers of establishments like McDonald's restaurants were excluded from the category of cafe and restaurant managers, falling instead in the retail manager category.

He said that category covered all retail services, from stores like David Jones, to a small operation like a news agent and descriptions in it had a "high level of generality".

Mr Taylor said by contrast the cafe and restaurant manager category covered those organising or controlling and managing restaurants, and other outlets providing dining and catering service.

He questioned why Mr Singh would not be classified as a skilled migrant when the McDonald's restaurant he manages is in the top 1 percent of such businesses in terms of employee numbers and the top 2-3 percent by turnover.

Justice Dobson asked how much discretion Mr Singh would have in the way the restaurant was run, given McDonald's has a uniformity of operation around the world.

Mr Taylor said each store provided some speciality elements and 15 to 20 percent of the turnover arose from those.

He said the Tribunal also failed to consider the full range of tasks Mr Singh did as part of his job, reducing eight tasks set out in the relevant part of the immigration legislation to just two.

"They said Mandeep Singh doesn't fulfil those therefore he is not a retail manager, he is a retail supervisor... The Tribunal got it wrong to say a retail manager was the same as a retail supervisor."

Mr Taylor also pointed to the IPT's failure to consider two letters sent on Mr Singh's behalf, which made up two thirds of the evidence he presented to it, which he said was a breach of natural justice.

However the Crown lawyer, Isabella Clarke said the issue for the Tribunal to determine was whether or not Mr Singh organised and controlled the operations of McDonald's in Masterton and it concluded he did not do so to the required level of authority to comply with immigration requirements for those seeking skilled migrant status.

Regarding the tasks Mr Singh carried out at the restaurant, she said the Tribunal considered all eight matters it was required to, but found Mr Singh did not meet the required threshold in four of them.

Ms Clarke said the Tribunal deemed that McDonald's head office determined the range of products which Mr Singh could choose to sell at the Masterton restaurant and while he was making some decisions, his autonomy was limited by the fact he was only able to choose from within a set range of products.

"[It] was of the view he couldn't show the requisite level of control over operations at McDonald's so he couldn't get a visa because he couldn't get the requisite number of points."

Justice Dobson reserved his decision.

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