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IPT RESIDENCE APPEALS

IPT RESIDENCE APPEALS. A decision maker’s perspective Why appeal? Preparing the appeal - what’s at stake? How to do a good job. Jeanne Donald Member Immigration and Protection Tribunal 11 May 2017. Why Appeal?. Good Reasons to appeal INZ’s decision was incorrect, or procedurally unfair

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IPT RESIDENCE APPEALS

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  1. IPT RESIDENCE APPEALS A decision maker’s perspective Why appeal? Preparing the appeal - what’s at stake? How to do a good job Jeanne Donald Member Immigration and Protection Tribunal 11 May 2017

  2. Why Appeal? Good Reasons to appeal INZ’s decision was incorrect, or procedurally unfair Circumstances have changed since the decline decision and your client is now eligible for residence Your client’s circumstances are special Your client’s character (or health) needs to be rescued so that INZ’s findings in this application do not prejudicially affect later applications

  3. Bad Reasons to appeal Your client or their previous adviser/counsel did a poor job of managing their application INZ was not given the evidence it required in order to make the correct decision Delay Rudeness or “bias” by INZ

  4. Preparing the appeal - what’s at stake? A positive outcome for your client (ie appeal allowed, special circumstances found, character rescued) Meeting your professional and ethical obligations Earning your fee Your reputation

  5. How to do a good job Communicate with the IPT Evidence, evidence, evidence … Submissions that are succinct, accurate and persuasive Understand where your ethical duty lies

  6. Communicate with the IPT When can we expect your submissions & evidence? When did you request/receive the IPT file and/or receive instructions? Tell us about any relevant change in your client’s circumstances ASAP

  7. Evidence – what is helpful “Good” evidence – originals or certified copies, signed and dated, from the best/most persuasive source Address admissibility – why is evidence admissible (s189) and for what purpose (ie correctness/particular event/special circumstances)? Address relevance - why is new evidence relevant – tell us what it proves/shows Navigable evidence

  8. Evidence – what is not helpful Submissions instead of evidence Providing documents submitted to INZ before the decision was made (unless you have some reason to believe they are not on the INZ file) Failing to isolate new evidence from information that was before INZ

  9. Schedule of evidence Helps ensure the Tribunal does not overlook evidence Can highlight gaps in the evidence Acts as a prompt to address admissibility and relevance Is a useful aid when crafting and refining submissions

  10. The hypothetical scenario Next we look at examples of schedules of evidence based on the following scenario: on 5 January 2017, INZ declined the appellant’s application under the Skilled Migrant category. It did not award him points for skilled employment as it was not satisfied he had sufficient, relevant recognised work experience, which the ANZSCO indicated may substitute for the required qualification.

  11. Example 1 - What we commonly receive Schedule of Evidence Employer monthly schedules Letter from J Jones School reports Letter from Dr A Andrews Letter from employer Copy of Bachelor’s degree Letter from S Smith Courier slip

  12. Example 2 – A little better Schedule of Evidence 1. Employer monthly schedules (February, March and April 2017) 2. Letter of support (18 January 2017) from J Jones, the appellant’s neighbour 3. School reports (end of year 2016) for each of the appellant’s two children

  13. 4. Letter from Dr A Andrews (10 January 2017) 5. Reference from previous employer (2 October 2000) and accompanying courier documentation 6. A copy of the appellant’s Bachelor’s degree in Engineering from AUT (awarded 3 March 2017) 7. Letter (19 January 2017) from S Smith, the appellant’s NZ employer

  14. Example 3 – what you should aim for Schedule of Evidence Correctness of INZ’s decision 1. Reference from previous employer (“the reference”) , Brown Ltd, concerning the appellant’s employment as an engineering technician from 2 October 2000-October 2005 (sent to INZ by courier on 20 December 2016, correctly addressed, but returned to the appellant as undeliverable on 5 January 2017) – admissible under s189(3)(a) 2. Courier documentation concerning the reference

  15. Completed qualification – particular event (s189(6)) 3. A copy of the appellant’s Bachelor of Engineering (awarded by AUT on 3 March 2017) - the appellant now holds a relevant recognised qualification which corresponds to the indicative skill level for the occupation of Engineering Technician in the ANZSCO 4. Employer monthly schedules (February, March & April 2017) – showing that the appellant remains in employment as an Engineering Technician, and his earnings

  16. Special circumstances 5. Letter of support (18 January 2017) from Ms J Jones, the appellant’s elderly, disabled neighbour of the past 11 years, explaining the assistance provided to her by the appellant, his wife and the couple’s children. 6. School reports (end of year 2016) for each of the appellant’s two children, Zoe (year 10) and Andy (year 12) showing that they are high achievers and that it is in their best interests complete their schooling in NZ 7. Letter from Dr A Andrews (10 January 2017) confirming the appellant’s wife’s Type II diabetes remains exceptionally well-controlled by diet and exercise and does not require medication

  17. Submissions - correctness INZ’s decision was not correct because the appellant did have the work experience necessary to substitute for the required qualification, as demonstrated by the reference letter from his previous employer produced on appeal. The reference letter is admissible under s 189(3)(a) because it existed at the time of INZ’s decision, was relevant to its decision, and the appellant exercised reasonable diligence to place it before INZ but was let down by the courier company he used. Further, given that the reference letter was not before INZ through no fault of the appellant, it is fair that the Tribunal consider it.

  18. Submissions – particular event After INZ’s decision, the appellant was awarded a relevant, recognised qualification. The award of the qualification is a particular event which materially affects his eligibility for residence (s189(6)). It is fair in all the circumstances that the appeal be determined in accord with s188(1)(d) given the appellant’s length of stay in New Zealand, the 11 years he has worked for his employer and the interests of his two children.

  19. Submissions – special circs The appellant and his family have been living in NZ for 11 years. It is in the best interests of the children that they be granted residence of New Zealand, the country in which they have grown up and been educated. The appellant has a level 7 NZ qualification, is valued by his employer of 11 years, is working in a skilled role and earning a good salary. The family is well-settled and contributing to the community in a variety of ways. There are no health or character issues.

  20. Ethical duties Overriding duty to the Tribunal/the administration of justice Duty to act in client’s best interests Avoiding conflicts of interest Duty to expedite the appeal Care in the preparation of affidavits and statements

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