The new skilled migrant category rules officially come into effect today, bringing a fresh set of criteria for migrants seeking to call New Zealand their permanent home.

For those of you targeting residence under this new framework, particularly if you are working in what are known as the red list and amber list occupations, the road ahead requires meticulous preparation and a deep understanding of immigration’s requirements and expectations.

These professions include chefs, restaurant and café managers, hotel and motel managers and retails managers.

Historically, Skilled Migrant Category (SMC) applications have faced immense administrative and procedural challenges. For example, applicants faced a huge backlog in 2019, leaving anxious migrants facing long delays.

Migrants who are now preparing to apply under the new points-based category and who work in red and amber list occupations may not be entirely aware of the hidden risks involved in such applications.

A successful application requires more than just holding a job title and a job description that ‘looks’ correct. Furthermore, there is significant uncertainty regarding how strictly Immigration New Zealand (INZ) will enforce evidential requirements concerning the matching of your chosen occupation to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) tasks.

When applying under the skilled migrant instructions, the burden of proof rests entirely on the applicant to demonstrate that their role is a "substantial match" to the ANZSCO description.

This is not merely a box-ticking exercise. INZ conducts a holistic assessment of your employment context, looking beyond your job description to the actual commercial realities of your workplace, the size of your employer, and the level of autonomy you truly possess.

To help you navigate these uncertain waters, I have done some deep-dive research into historical residence appeal decisions. I want to bring into perspective how and where things went wrong in the past, so you can avoid similar pitfalls.

Below, I present summaries of five past IPT decisions involving common managerial and culinary roles, demonstrating INZ's rigorous ANZSCO assessments and how the appellate tribunal interprets the law.

The Franchise Store Manager (Retail Manager ANZSCO Code 142111)

In this case, an applicant’s residence application was declined because INZ was not satisfied that their role as a Domino's pizza store manager substantially matched the ANZSCO description of a Retail Manager (General).

Without points for skilled employment, the applicant did not meet the minimum selection criteria. The core legal issue was the level of organisation and control vested in the applicant compared to what was retained by the franchise's head office.

While the applicant handled day-to-day operations like supervising staff and ordering stock, the head office determined almost all of the product mix, formulated purchasing policies, and controlled national marketing and pricing.

The tribunal confirmed INZ's decision, noting that in franchised businesses, it is often more difficult for a manager to establish the required level of managerial organisation and control because head office undertakes many of the core tasks. 

The Supermarket Department Manager (Retail Manager ANZSCO Code 142111) 

Another applicant sought residence as a grocery operations manager in a popular supermarket chain, but INZ declined the application, stating it was not a substantial match to a Retail Manager (General).

The tribunal upheld the decision, observing a clear distinction in law between a manager and a retail supervisor. The evidence showed that the franchise's head office formulated service standards, purchasing policies, and marketing policies.

Any responsibility the applicant had for determining product mix and stock levels was shared with grocery buyers, and price setting was primarily the buyers' responsibility.

Ultimately, the performance of the core tasks within the ANZSCO description was diffused among various personnel, meaning the true organisation and control of the department did not legally rest with the applicant. 

The Hotel Chef de Partie (Chef ANZSCO CODE 135311) 

This case involved a senior chef de partie at a large hotel restaurant whose application was initially declined by INZ.

INZ claimed the applicant did not perform core tasks like planning menus, estimating costs, ordering supplies, or hiring staff, suggesting these were solely the head chef's duties.

However, the tribunal found INZ's decision incorrect and cancelled it. INZ failed to conduct a proper holistic assessment of the applicant's specific role within the context of a large commercial kitchen.

Evidence showed the applicant created new dishes, ordered supplies, and had management-level responsibilities like controlling kitchen rosters and training new staff. 

he tribunal noted that a chef de partie does not need to be in charge of overall kitchen operations to be in skilled employment, and INZ unfairly ignored credible evidence of the applicant's input into menu planning. 

The Assistant Hotel Manager (Hotel or Motel Manager ANZSCO 141311) 

An assistant hotel manager's application was initially declined because INZ believed the general manager and the corporate group controlled the hotel's operations, not the applicant. 

The tribunal cancelled this decision, finding a significant and fundamental flaw in INZ's legal process. INZ completely failed to assess whether the applicant was performing the core tasks of a hotel or motel manager against the extensive evidence provided.

The applicant had submitted robust proof of managing day-to-day operations, hiring staff, dealing with customer complaints, handling financial reports, and ensuring health and safety compliance.

INZ incorrectly assumed that because the hotel operated under a corporate umbrella, the assistant manager lacked control, without actually exploring the limited involvement of the corporate office in the hotel's daily operations. 

The Fine-Dining Restaurant Manager (Café or Restaurant Managers ANZSCO 141111) 

In this case, INZ declined a front-of-house manager's application at a fine-dining restaurant, citing that the owner had a daily presence and that the applicant didn't plan menus or purchase goods for the entire restaurant. 

The tribunal cancelled the decision, stating INZ acted unfairly and misdirected itself in its interpretation of the core tasks. INZ ignored evidence that the owner had delegated operational control during service hours and was not present when the restaurant was open.

Furthermore, INZ incorrectly required the manager to have full autonomy over the kitchen menu, ignoring the context of a high-end restaurant where the head chef specializes in menu creation but consults heavily with the manager.

INZ also failed to consider that the manager controlled the purchasing, pricing, and stock levels specifically for the front-of-house operations. 

As these past cases clearly demonstrate, proving that your employment substantially matches an ANZSCO occupation can be a highly technical and demanding task.

It requires much more than just a matching job title or a generic job description. It demands comprehensive, context-specific evidence of your day-to-day duties, the corporate structure of your workplace, and your level of genuine managerial control or specialist expertise.

INZ officers are likely to look closely at who holds the real power in a business, both in franchise models and smaller businesses.

With the new rules coming into effect, the stakes have never been higher. You are preparing to spend close to $6,000 on INZ application fees – a significant financial investment that you do not want to see wasted on an easily avoidable technicality. 

There is simply no room for error and we aren’t even counting the stress that comes along with a declined application. We strongly encourage all migrants targeting the red and amber list occupations to choose their Licensed Immigration Adviser (LIA) wisely.

(Hemant Kaushal is a Licensed Immigration Adviser who runs his own practice in Auckland. His practice handles various simple and complicated immigration matters.)