Immigration & Protection Tribunal Upholds Residence Application Refusal

OUTCOME: Dismissed

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 207525 [NAME], [NAME]

Appellant: [redacted]

Respondent: [redacted] Ministry of Business, Innovation and Employment

Before: [NAME] (Member)

Representative for the Appellant: [redacted]

Counsel for the Respondent: [redacted] 5 June 2026 ___________________________________________________________________ RESIDENCE

DECISION ___________________________________________________________________ [1] The appellant is a 45-year-old citizen of Turkey whose application for residence under the [NAME] ([APPELLANT]) category was declined by [NAME]. THE ISSUE [2] [NAME] declined the appellant’s residence application because her employment with a [NAME] was not substantially consistent with the Australian and New Zealand Standard Classification of Occupations (ANZSCO) occupation of [NAME] or [NAME] Manager. Consequently, she did not meet the skilled employment requirements, and did not qualify for points for skilled work experience to meet the 6 points required, for the [NAME] ([APPELLANT]) category. [3] The principal issue for the Tribunal is whether [NAME]’s assessment of the appellant’s employment position was correct, and, if so, whether the appellant has special circumstances given her time spent living in New Zealand.

2 [4] For the reasons that follow, the Tribunal finds that [NAME] correctly declined the application and that the appellant does not have special circumstances such as to warrant a recommendation that the Minister of Immigration consider an exception to Government residence instructions.

BACKGROUND [5] The appellant was born in Turkey, where she lived, studied and worked until arriving in New Zealand at the age of 36 years. Aside from two short trips overseas, she has remained in New Zealand since her arrival. [6] In March 2017, the appellant travelled to New Zealand as the holder of a visitor visa. In late 2017, she was granted the first of a series of student visas, initially to undertake English language studies and, later, a postgraduate qualification. Thereafter, in March 2022, the appellant was granted a three-year post-study work visa. [7] Upon the expiry of the appellant’s work visa in March 2025, [NAME] granted her a [APPELLANT] category interim visa. According to its records, this visa expired in September 2025 and the appellant has been without a visa since this time (a situation discussed later in this decision). On 27 May 2026, [NAME] granted the appellant a visitor visa as an exception to instructions, which is valid to 27 August 2026. Residence Application [8] The appellant made an online application under the [NAME] ([APPELLANT]) category of residence instructions on 22 February 2025. [9] The residence application was premised on the appellant’s employment with a [NAME], since October 2022, as a [NAME], a position she claimed was substantially consistent with the skill level 2 occupation of [NAME] or [NAME] Manager (code 141111) set out in the ANZSCO. [10] To be granted residence under this category, a principal applicant must meet a number of requirements set out at instruction SR3.10. Relevantly to the appellant, this necessitated, among other things:

3 (a) that she meet the skilled employment requirements, which includes holding current employment with an [NAME] which pays at least the amount set out in instructions (depending on the ANZSCO skill level of the occupation) – SR3.10.b.ii; and (b) that she qualify for 6 points from a combination of one skill category (income, qualification or New Zealand registration) and skilled work experience in New Zealand, with this earlier work to have been paid at least the amount set out in instructions (depending on the ANZSCO skill level of the occupation) – SR3.10.b.iii. [11] The appellant claimed that she held skilled employment from her current employment with the [NAME]. She also claimed 6 points, comprising 4 points for her Level 8 postgraduate diploma qualification and 2 points for two years’ skilled work experience in New Zealand, based on her [NAME] position. [12] The evidence provided to [NAME] recorded that the appellant had commenced employment with the [NAME] in March 2021, as a [NAME] assistant. In October 2022, she was promoted to ‘[NAME] team [NAME]’ on an hourly wage of $27.76 (the median wage at that time). This position was subsequently renamed as ‘[NAME]’. At the time of making her residence application, the appellant’s hourly wage was $31.61 (median wage). [13] The [NAME]’s organisational chart showed the appellant as one of two senior [NAME] team leaders: the appellant worked during the day, and her colleague at night. She worked alongside a day [NAME] supervisor, and together she and the [NAME] supervisor oversaw two persons: a senior waiter/barista and a junior [NAME] assistant. The appellant reported to a [NAME] manager, who reported to the co-owners of the [NAME]. [14] Central to this appeal is whether the appellant’s employment as [NAME] was substantially consistent with her ANZSCO nominated occupation of [NAME] or [NAME] Manager. The ANZSCO description of this skill level 2 occupation is of persons who: Organise and control the operations of cafes, restaurants or related establishments to provide dining and catering services.

4 [15] Residence instructions state that, in determining the ANZSCO skill level of an applicant’s employment (for the purposes of assessing both skilled employment and skilled work experience), [NAME] will determine whether the applicant’s employment is substantially consistent with the ANZSCO occupation (6-digit) level job title and description for that occupation – SR3.20.1 and SR3.35.1.a. [16] If an applicant’s employment is in an occupation listed at ANZSCO skill level 1–3, they must be earning (for current skilled employment) or have earned (for skilled work experience) at least the equivalent of the median wage at the relevant time – SR3.20.a.i and SR3.35.b.i. However, should their employment be in an occupation listed at ANZSCO skill level 4–5, they must be earning or have earned at least 1.5 times the median wage – see SR3.20.a.ii and SR3.35.b.ii. [NAME]’s Concerns [17] By letter dated 31 March 2025, [NAME] informed the appellant of its concern that her employment was not substantially consistent with the ANZSCO occupation of [NAME] or [NAME] Manager. [18] [NAME] had reviewed the position description for the appellant’s role and the organisational chart for the [NAME], both of which indicated that the appellant reported to the [NAME] manager. Her position did not appear to be substantially consistent with a [NAME] or [NAME] Manager. Rather, she was supervising and coordinating [NAME] operations, with supervisory elements, providing excellent customer service, and performing day-to-day reporting tasks. Her role was substantially focussed on customer satisfaction and did not appear to extend to organising and controlling the operations of the [NAME], as this ANZSCO occupation required. [19] [NAME] considered that the appellant’s role was substantially consistent to an [NAME] Worker (code 431211), which is a skill level 5 occupation. At this skill level, instructions required that the appellant be paid at least 1.5 times the median wage (being $47.41 per hour), but her remuneration did not meet this requirement as she was paid only at the median wage. Consequently, the appellant did not appear to meet the skilled employment requirements of instructions.

5 Response to [NAME]’s Concerns [20] On 22 April 2025, the representative disputed [NAME]’s assessment and submitted that the appellant’s role was substantially consistent with her nominated occupation of [NAME] or [NAME] Manager. [21] In summary, it was submitted that the appellant was exercising substantial managerial authority and control over the operations of the [NAME] during her day [NAME], and this was when critical management functions were required to be performed. Her role clearly aligned with the tasks, responsibilities and focus of a [NAME] or [NAME] Manager. The representative referred to the [NAME]’s operational structure, outlined the appellant’s managerial functions and provided documents to illustrate her responsibilities. [22] [NAME] received letters from persons including: a [NAME] of the [NAME], the night [NAME] supervisor, the [NAME] manager/general manager, and the day [NAME] supervisor, each of whom advised that the appellant’s role and responsibilities were managerial in nature. [NAME] [23] On 13 May 2025, [NAME] advised that it was still not satisfied the appellant’s employment was substantially consistent to a [NAME] or [NAME] Manager. On a holistic assessment of the evidence before it, the appellant appeared to be coordinating the smooth running of the business during her [NAME], rather than organising and controlling the [NAME]. [24] Given the appellant’s work environment, [NAME] considered her employment was substantially consistent to that of a [NAME] Worker. However, as she earned less than 1.5 times the median wage, she did not meet the skilled employment requirements. [25] Further, [NAME] noted that the appellant could not be awarded any points for skilled work experience, because the skill level 5 occupation of [NAME] Worker required remuneration of at least 1.5 times the median wage during the period claimed. [26] [NAME] was prepared to award the appellant 4 points for her postgraduate diploma qualification. However, she did not qualify for points for skilled work experience which could be combined with her qualification points to

6 reach the 6 points required. Consequently, the appellant was not eligible for a grant of residence under the [NAME] ([APPELLANT]) category. Response to Further Concerns [27] By letter of 27 May 2025, the [NAME] of the [NAME] responded, citing concern that [NAME] had a fundamental misunderstanding of the [NAME]’s operations and modern-day [NAME] management structures, where managerial responsibilities were distributed. [NAME]’s conclusion overlooked the documentary evidence provided and contradicted the reality of the appellant’s role, in which she exercised genuine managerial authority. [28] [NAME] received additional documents, including a letter from a [NAME] and a statutory declaration from the appellant. [NAME] was requested to reconsider its preliminary finding and acknowledge that the appellant was employed in the role of [NAME] or [NAME] Manager. [NAME]’s Decision [29] By letter dated 28 July 2025, [NAME] declined the application. The appellant’s position was not substantially consistent to an [NAME] or [NAME] Manager. While her role involved certain management responsibilities and she contributed to business decision-making, the evidence indicated that the focus of her role was primarily [NAME] coordination through staff oversight, stock management and service delivery, and was not organising and controlling the overall operations of the [NAME]. Her role aligned more closely to that of [NAME] Worker. However, as the appellant did not earn at least 1.5 times the median wage whilst in her role with the [NAME], she did not qualify for points for skilled work experience. [30] The appellant did not meet the skilled employment requirements, and did not qualify for the 6 points required, so as to be granted a [NAME] ([APPELLANT]) category resident visa (SR3.10.b.iii). Consequently, the application was required to be declined.

7 STATUTORY GROUNDS [31] The appellant’s right of appeal arises from section 187(1) of the Immigration Act 2009 (the Act). Section 187(4) of the Act provides: (4) The grounds for an appeal under this section are that— (a) the relevant decision was not correct in terms of the residence instructions applicable at the time the relevant application for the visa was made; or (b) the special circumstances of the appellant are such that consideration of an exception to those residence instructions should be recommended. [32] The residence instructions referred to in section 187(4) are the Government residence instructions contained in [NAME]’s Operational Manual; see www.immigration.govt.nz. THE APPELLANT’S CASE [33] On 2 September 2025, the appellant lodged this appeal on both grounds in section 187(4) of the Act. [34] The representative makes substantive submissions (29 September 2025 and 25 and 29 May 2026) and provides new documents on appeal, most of which pertain to the appellant’s employment, such as further letters of support from the [NAME] and a [NAME], an updated organisational chart for the [NAME] and evidence of the appellant’s alcohol licensing qualification and manager’s certificate. Also provided is evidence of the appellant’s recognition and experience as a published playwright and theatre critic. [35] The Tribunal cannot consider further information provided by an appellant that was not before [NAME] at the time it made its decision on the application (section 189(1) of the Act). While there is an exception at section 189(3)(a), the Tribunal finds that this does not apply. For the documents that pre-date the decline decision, it has not been established that they could not with reasonable diligence have been provided to [NAME]. The remaining documents were not in existence at the time [NAME] made its decision.

8 [36] There is an additional exception to section 189(1) where, as in this case, the Tribunal considers that the further information provided on appeal is necessary for its determination of whether the appellant has special circumstances (section 189(3)(b)). The Tribunal considers the further information provided, as relevant, in its assessment of special circumstances. Evidence of Appellant’s Visa Status [37] During the course of the appeal, the Tribunal sought an update as to the appellant’s current circumstances, given that [NAME]’s records showed that her [APPELLANT] category interim visa had expired in September 2025 and she had been without a visa since this time, and had not lodged an appeal against her liability for deportation. This was despite the representative having submitted that the appellant held an interim visa and should not have to “cease employment”. [38] In reply, the representative advised that the appellant was unaware of her unlawful status, as [NAME]’s letter declining the residence application had (mistakenly) stated that her temporary visa was to expire on 11 March 2027, and the appellant had relied on this representation. Given the significant consequences for the appellant (her extant liability for deportation and no right to appeal this), the representative sought an extension of time to make submissions on this matter. [39] In late May 2026, the representative advised the Tribunal that [NAME] had approved the appellant’s visa request made pursuant to section 61 of the Act, and on 27 May 2026 she was granted a visitor visa valid to 27 August 2026. [40] The Tribunal considers this additional information, as relevant, in its special circumstances assessment. ASSESSMENT [41] The Tribunal has considered the submissions and documents provided on appeal and the file provided by [NAME] in relation to the appellant’s residence application, and [NAME]’s relevant electronic records.

9 [42] An assessment as to whether the [NAME] decision to decline the appellant’s application was correct in terms of the applicable residence instructions is set out below. This is followed by an assessment of whether the appellant has special circumstances which warrant consideration of an exception by the Minister of Immigration. Whether the Decision is Correct [43] The appellant made her [NAME] ([APPELLANT]) category residence application on 22 February 2025, and the relevant criteria are those in residence instructions as at that time. [44] [NAME]’s decline decision arose from its assessment that the appellant’s current employment, and the work experience for which she claimed points, as a [NAME] with the [NAME], was not substantially consistent with the ANZSCO skill level 2 occupation of [NAME] or [NAME] Manager. [45] Consequently, [NAME] declined the application on two bases. First, it found that the appellant did not meet the skilled employment requirements, through holding current employment that met the requisite remuneration (SR3.10.b.ii). Second, she did not qualify for the 6 points required under the [NAME] ([APPELLANT]) category, because she could not be awarded points for skilled work experience as she was not earning the requisite remuneration during the relevant period (SR3.10.b.iii). Relevant instructions [46] The relevant instructions in this case concern those at SR3, effective 28 February 2024. [47] Instruction SR3.10 summarises the requirements for an applicant to be granted a resident visa under the [NAME] ([APPELLANT]) category. These include (at SR3.10.b) that the applicant must meet the skilled employment requirements set out at SR3.20, and must qualify for 6 points from either one of the three skill categories (income, qualification, or New Zealand registration) or from a combination of one skill category and the applicant’s skilled work experience in New Zealand (SR3.35):

10 SR3.10 Summary of requirements … b. In addition, the principal applicant must: … ii. meet the skilled employment requirements (see SR3.20), including holding current employment or an offer of employment in New Zealand with an [NAME] (see WA2) which pays at least the equivalent of: ○ the median wage (currently $31.61 per hour) if their occupation is listed at ANZSCO skill level 1-3; or ○ 1.5 times the median wage (currently $47.41 per hour) if their occupation is listed at ANZSCO skill level 4-5, or not included in ANZSCO; and iii. qualify for the 6 points, from: ○ one skill category (income, qualification, or New Zealand registration, see SR3.25); or ○ a combination of one skill category and their skilled work experience in New Zealand (see SR3.35). c. An applicant may be considered to meet the income thresholds for skilled employment and points if they meet the income thresholds that were the basis for them being invited to apply for residence. … [48] In determining the application, [NAME] was required to apply principles of fairness and natural justice (A1.1, effective 29 August 2012). It is however an applicant’s responsibility to demonstrate, to the satisfaction of [NAME], that they meet the requirements of immigration instructions (R5.10, effective 25 September 2023). Skilled employment and skilled work experience [49] The requirements for skilled employment, and [NAME]’s assessment of this factor, are set out in detail at SR3.20. This instruction states, at SR3.20.a, that an applicant in an ANZSCO skill level 1–3 occupation must be earning at least the equivalent of the minimum wage, and if in an occupation at ANZSCO skill level 4–5, the applicant must be earning at least 1.5 times the median wage. SR3.20 Skilled employment a. The principal applicant must have current employment or an offer of employment in New Zealand that pays at least the equivalent of:

11 i. the median wage (currently $31.61 per hour) if their occupation is listed at ANZSCO skill level 1-3; or ii. 1.5 times the median wage (currently $47.41 per hour) if their occupation listed at ANZSCO skill level 4-5, or not included in the ANZSCO. [50] Instruction SR3.20.1 states that when [NAME] is determining the ANZSCO skill level of an applicant’s employment, it will determine whether the employment is “substantially consistent” with the ANZSCO occupation (6-digit) level job title and description for that occupation: SR3.20.1 Determining skilled employment In determining the ANZSCO skill level of an applicant’s employment or offer of employment, an immigration officer: a. will determine whether the applicant’s employment is substantially consistent with the ANZSCO occupation (6-digit) level job title and description for that occupation; and b. may undertake a substantial match assessment (see SR2.1.1) and/or a suitably qualified assessment (see SR3.20.5). [51] The requirements for skilled work experience are set out at SR3.35. These requirements (as relevant to this appeal) are essentially the same as those for skilled employment. An applicant must, for the period of work experience in question, have earned at least the median wage at that time if in an occupation listed at ANZSCO skill level 1–3, or have earned at least 1.5 times the median wage if in an ANZSCO skill level 4–5 occupation (see SR3.35.b). When [NAME] is determining the ANZSCO skill level of an applicant’s employment for the purposes of assessing skilled work experience, it will (again) determine whether the employment is “substantially consistent” with the ANZSCO occupation level job title and description for that occupation (see SR3.35.1.a). Whether employment substantially consistent with [NAME] or [NAME] Manager [52] As noted, the appellant’s residence application relied on her employment, since late 2022, as [NAME] with a [NAME], a position that she claimed was substantially consistent with the ANZSCO skill level 2 occupation of [NAME] or [NAME] Manager (code 141111) and in which she earned the median wage. The ANZSCO description for this skill level 2 occupation is of persons who: Organise and control the operations of cafes, restaurants or related establishments to provide dining and catering services.

12 [53] However, [NAME] found that the appellant’s employment was not substantially consistent to this occupation. Having reviewed the evidence presented to [NAME] to support the application, including the appellant’s position description, the [NAME]’s organisational chart, and the letters from the [NAME]’s [NAME], other staff and the appellant, the Tribunal finds that [NAME]’s decision was correct, for the reasons that follow. — Position description [54] The appellant’s position description documented the details, reporting line, overview and core responsibilities of her position as [NAME]. The “[NAME] mission statement” was set out, and the position overview stated: The [NAME]/[NAME] [NAME] supervises and coordinates [NAME] operations, ensuring exceptional customer service standards while leading and developing team members. This role combines hands-on operational management with staff supervision and quality control responsibilities. [55] The core responsibilities of the position were recorded under the following headings: • [NAME] • Staff supervision • Customer service • Training and development • Administrative duties • Quality control • Technical knowledge required • Physical requirements • Work environment • Key performance indicators [56] Under “[NAME]”, the appellant’s responsibilities comprised nine tasks, the first of which replicated the [NAME] or [NAME] Manager description: ˗ Plan, organise and control operations of the establishment including dining and catering services

13 ˗ Oversee daily [NAME] operations, including [NAME], bar, and coffee service areas ˗ Plan and organise special functions and entertainment activities ˗ Coordinate workflow between kitchen, bar, and [NAME] teams ˗ Monitor and maintain service timing standards ˗ [NAME] bookings and table allocations ˗ Ensure compliance with food safety and licensing requirements ˗ Implement and maintain quality control procedures ˗ Monitor stock levels and assist with ordering [57] Clearly, the appellant’s responsibilities were in respect of the [NAME]’s [NAME] and were largely operational. She was (variously), according to her position description, overseeing operations during her [NAME], supervising and coordinating [NAME] team activities, assisting management with rosters and staff scheduling, contributing to business planning and improvement, assisting in developing and implementing operational procedures, monitoring staff performance, and ensuring consistent service delivery. It is the Tribunal’s opinion that these and other documented responsibilities reflected a role that was largely supervisory in nature, rather than managerial. As per her position overview, the appellant’s role comprised that of supervising and coordinating [NAME] operations, with a primary focus on staff and customers. It did not reflect a position that was managerial in nature, such that the appellant was organising and controlling the operations the [NAME] as a whole. — Organisational chart [58] The [NAME]’s organisational structure reinforced an understanding that the appellant’s role was principally supervisory and not managerial. First, the appellant was one of two senior [NAME] team leaders. While it was said that she held greater responsibilities than her night-time counterpart, as she worked during the day when the most critical managerial functions occurred, the fact is that she was one of two persons who held this position at the [NAME]. Significantly, the appellant (and her counterpart) reported to a person designated as the “[NAME] manager”, and this person reported to the co-owners of the [NAME].

14 — Letters of support [59] In letters from the appellant’s colleagues and the [NAME] of the [NAME] (among others), each writer strongly contended that the appellant exercised genuine managerial organisation and control in her role. It was submitted, variously: that the appellant had authority to run the business during her [NAME]; that she was manager of the [NAME] operations during day shifts; and that she was controlling significant aspects of the [NAME]’s operations. According to these letters, the appellant could order and approve purchases up to a large dollar value, and she had input into hiring. Further, [NAME] and others who dealt with the [NAME] understood the appellant to be performing the role of an [NAME] or [NAME] Manager. The [NAME] described the appellant as a core member of the management team who participated in management meetings and contributed to strategic business planning. [60] In a letter to [NAME], the [NAME] manager advised that their designation was “senior [NAME] manager/general manager”. While they directly supervised the appellant, she was “unequivocally” exercising managerial responsibilities and authority in her [NAME] position. However, it is not clear to the Tribunal how the appellant’s role could be substantially consistent to a [NAME] or [NAME] Manager when the appellant reported to a person who held this position. Moreover, while the letter from the [NAME] manager articulated how in his opinion the appellant was exercising managerial organisation and control over the [NAME], his own role in the business was not explained. Nor was [NAME] provided with a position description for the [NAME] manager, which might have assisted it to understand the distinction between this and the appellant’s role in the context of an [NAME] or [NAME] Manager. [61] The [NAME] of the [NAME] advised that the general manager (formerly [NAME] manager) had overall responsibility for the business operations and reported directly to the owners on a weekly basis. The “day-to-day management” was handled by “two distinct management teams”: the day and evening teams. Each team comprised a [NAME] and a [NAME] supervisor. The [NAME] stated that “each management team has substantial autonomy and authority to run the business during their respective shifts”. This evidence further indicated that organisation and control of the [NAME] vested in the general manager/[NAME] manager, and potentially also the owners. In these circumstances, it is unclear how the appellant was organising and controlling the

15 operations of the [NAME], as against contributing to its operations, when there were two tiers of management above her position. — [NAME]’s structure [62] In the letters presented to [NAME], the [NAME] were at pains to point out that the [NAME] had a deliberately “decentralised” management structure, where managerial responsibilities were distributed across roles and not vested in one single person. It was submitted that this reflected the reality of modern [NAME] management practice and was a strategic business decision, not a limitation on the managerial authority that vested in the appellant. Hence, the [NAME] has a “flat management structure with specialised roles”. [63] With respect, the Tribunal does not share the [NAME]’ views. The natural result of decentralising and sharing managerial responsibilities among [NAME] staff, while likely a pragmatic response to an industry that often experiences a high turnover of employees, necessarily dilutes the organisation and control vested in a single person. This is illustrated by a statement from the day [NAME] supervisor, who advised (as did the appellant) that he and the appellant “function as a collaborative management team” during their [NAME], to “meet the standards established by the owners and senior management”. While it is contended that [NAME]’s assessment failed to appreciate the reality of modern [NAME] management, the fact is that [NAME]’s assessment was undertaken according to the applicable instructions. — Documentary evidence [64] Beyond the evidence discussed above, [NAME] received a selection of other documents said to “conclusively demonstrate” the appellant’s managerial authority. This included stocktake records on which the appellant signed off a second-person check; supplier delivery invoices confirmed by the appellant; a special lunch set menu said to have been created and priced by the appellant; and notations made on a [NAME] menu by the appellant, that appear to be for staff to better understand the menu, such as which dishes are vegetarian and permitted substitutions of menu items. The Tribunal considers that this limited evidence cannot by any measure be considered to demonstrate that managerial authority for the [NAME] vested in the appellant. [65] The Tribunal notes two other features which, given those discussed above, support a finding that the appellant’s employment is not substantially consistent

16 with a [NAME] or [NAME] Manager. First, the appellant has been paid at the (progressive) median wage throughout her time in the position of [NAME]. This is exactly the remuneration required by instructions for an ANZSCO skill level 2 occupation such as a [NAME] or [NAME] Manager; no more. Second, the appellant’s job title was “[NAME]”. While a job title should not be relied upon to assess an applicant’s employment, and it is certainly not determinative of what a role comprises, it is the Tribunal’s opinion that this position title was an accurate reflection of the appellant’s employment: she held a senior position in the [NAME]’s [NAME], and she was leading the team (that usually comprised two persons). [66] The Tribunal accepts that the appellant was the most senior [NAME] staff member on her [NAME], that in her role she held a reasonable level of autonomy and responsibility, and that she contributed to some managerial decision-making. The evidence indicates that she performs an important and valued role at the [NAME], as reflected in her career progression and the strong support of her colleagues and managers. Ultimately, however, the Tribunal finds that the appellant was responsible for many of the day-to-day operations of the [NAME]’s [NAME]-of-[NAME], and not the overall operation of the establishment. The evidence before [NAME], some of which robustly argued otherwise, did not demonstrate that her role was substantially consistent with the ANZSCO occupation of [NAME] or [NAME] Manager. [NAME] Worker [67] Finally, the Tribunal notes that [NAME]’s assessment of the appellant’s skilled employment concluded that her role was substantially consistent to the occupation of [NAME] Worker (code 431211), as someone who sells and serves food and beverages for consumption on premises in a [NAME] or similar establishment. This skill level 5 occupation required the appellant earn at least 1.5 times the median wage to meet instructions. [68] The Tribunal does not agree with [NAME]’s finding. The evidence of the appellant’s responsibilities demonstrably extended beyond simply serving food and drinks to customers. The appellant and those writing in support of her application understandably considered this to be a mischaracterisation of her employment, given the scope of her responsibilities. [69] The Tribunal considers, on the evidence presented, that the appellant’s employment appears to be more substantially consistent with the [NAME] occupation of Waiter (code 431511). This classification includes the designation of [NAME]. However, this is a skill level 4 occupation and, as such, instructions continued to require remuneration at least 1.5 times the median wage. Consequently, this occupation does not assist the appellant to meet the [NAME] ([APPELLANT]) category instructions. Conclusion on correctness [70] The Tribunal finds that [NAME]’s decision to decline the appellant’s application for residence was correct. Her position as [NAME] was not substantially consistent with the ANZSCO skill level 2 occupation of [NAME] or [NAME] Manager. Consequently, she did not meet the skilled employment requirements of the [NAME] ([APPELLANT]) category (SR3.10.b.ii, SR3.20.a and SR3.20.1.a), and she did not meet the requirements for skilled work experience to claim points and qualify for the 6 points required by the [NAME] ([APPELLANT]) category (SR3.10.b.iii, SR3.35.1.a and SR3.35.b). Whether there are Special Circumstances [71] Where the Tribunal found the decision of [NAME] to be correct, it has the power to consider whether the circumstances of the appellant are special, such that they warrant consideration by the Minister of Immigration of an exception to the residence instructions. [72] Whether an appellant has special circumstances will depend on the particular facts of each case. The Tribunal balances all relevant factors in each case to determine whether the appellant's circumstances, when considered cumulatively, are special. [73] Special circumstances are “circumstances that are uncommon, not commonplace, out of the ordinary, abnormal”; [NAME] v Minister of Immigration [2004] NZAR 615 (CA) at [24] per Glazebrook J. Personal and family circumstances [74] The appellant is a 45-year-old single woman of Kurdish ethnicity, who is a citizen of Turkey. She has been living in New Zealand for the last nine years, having initially undertaken study before securing full-time employment in [NAME].

18 [75] The appellant has made two trips overseas since her arrival in New Zealand in 2017: 3.5 weeks in 2019; and 5 weeks in 2024. [76] The appellant has an older brother who is said to be residing in New Zealand as a citizen. Other family members (if any) and their whereabouts are not disclosed. Immigration history and current circumstances [77] In March 2017, the appellant travelled to New Zealand as the holder of a visitor visa. In late 2017, she was granted the first of a series of student visas, with her last such visa expiring in March 2022. The appellant then secured a three-year post-study work visa, which was valid to March 2025. [78] For reasons that are unclear to the Tribunal, the appellant did not apply for a further work visa prior to the expiry of her post-study work visa, or thereafter. However, having lodged her [NAME] ([APPELLANT]) category residence application in February 2025, [NAME] subsequently informed the appellant in March 2025 that she had been granted a [APPELLANT] category (SMC) interim visa, to preserve her lawful status while the residence application was being processed. [79] [NAME]’s letter of 3 March 2025 confirming the grant of an SMC interim visa, advised the appellant of this visa’s expiry (which was tied to the outcome of her residence application), and the conditions attached to the visa. Relevantly, the letter advised that if her residence application was declined, the interim visa would expire two calendar months from the date of decline. [80] In July 2025, [NAME] declined the appellant’s residence application. However, in its decline letter, [NAME] erroneously stated that the appellant’s temporary visa expired on 11 March 2027. In fact, the appellant’s SMC interim visa expired in September 2025, two months after the decline of her residence application, and she has been without a visa since this time. [81] On appeal (as stated above), the Tribunal sought to confirm with the representative the appellant’s current circumstances, given her unlawful status and consequent lack of entitlement to continue in her employment. In reply, the representative submitted [NAME]’s decline letter (July 2025), which was issued subsequent to its SMC interim visa letter (March 2025),

19 “expressly confirmed” the expiry date of the appellant’s temporary visa as being 11 March 2027. Hence, the appellant and the representative had “proceeded on this basis” and relied on the date represented by [NAME]. [82] The representative advised that, having been alerted by the Tribunal, the appellant had sought to regularise her unlawful status through the request of a temporary visa as an exception to instructions. On 27 May 2026, [NAME] granted the appellant a three-month visitor visa. [83] It is regrettable that [NAME] recorded an incorrect visa expiry date in its decline letter and did not exercise greater care in its compilation of such relevant information. However, with respect to the representative’s submissions, it is not clear to the Tribunal why, after having received the decline decision that referenced a significantly different temporary visa expiry date to that recorded in the letter issuing the appellant this temporary visa, the appellant or her representative did not seek to clarify this discrepancy with [NAME]. Rather, the representative essentially contends that she and the appellant had elected to rely on this later date as express confirmation of the appellant’s temporary visa expiry, simply because this letter was written after the SMC interim visa letter, and notwithstanding the fact that they were aware this date was at odds with the date given earlier and with no reason having been provided for this alteration. [84] Curiously, the representative’s initial submissions to the Tribunal (29 September 2025) refer to the appellant holding “only an interim visa” and request that she be granted a work visa to continue her employment during any reassessment of the residence application, thereby “preserving the status quo”. This submission suggests that the representative was aware that the appellant’s temporary visa did not have any expiry date of 2027, as [NAME] has subsequently stated. [85] The appellant engaged the services of the representative prior to making her residence application on 22 February 2025. At this time, her work visa was due to expire in nine days’ time, on 3 March 2025. The appellant had not sought to make a further temporary visa application and so was issued with an SMC interim visa on 3 March 2025. The pending expiry of her temporary visa status and [NAME]’s subsequent issuance to her of an SMC interim visa, are facts to which the representative should be taken to have been aware. So too are the restrictions that pertain to SMC interim visas, such as the immigration instructions which state that an SMC interim visa expires two calendar

20 months after the date a SMC resident visa application is declined (I3.15.1.b.ii, effective 9 October 2023) and that if an SMC interim visa holder’s resident visa application is declined then they will not be able to apply for any other visa (see the Note to I3.15.10). [86] Regardless, it is evident that the appellant believed she held a temporary visa to March 2027 until expressly notified otherwise by the Tribunal. As such, she had continued in her employment and life in New Zealand. Once notified, she promptly sought to regularise her status. [87] Putting to one side the reasonableness or otherwise of the appellant’s reliance on the mistaken date recorded in the residence decline decision, [NAME]’s typographical error has resulted in difficulties for the appellant. While she again holds lawful status in New Zealand, this visitor visa does not permit her to resume employment. The Tribunal observes that the appellant may meet the criteria for an [NAME] work visa, based on her most recent [NAME] employment. This employer currently holds accreditation, and the appellant has not previously held such a work visa. However, a decision on any such application, should one be made by the appellant, is purely for [NAME] and not this Tribunal. Residence applications [88] The application for residence that is the subject of this appeal is the appellant’s second attempt for residence under the skilled [APPELLANT] criteria. [89] In November 2022, the appellant lodged an expression of interest for residence under the former [APPELLANT] category. She claimed points for skilled employment as an [NAME] Worker (code 431211), a skill level 5 occupation. The Tribunal observes that at the time of lodging this expression of interest, the appellant had recently (October 2022) been promoted to the position of [NAME] team [NAME] at the [NAME] (later renamed ‘[NAME]’); the same position she relied on for her recent residence application. [90] According to [NAME]’s electronic records, the expression of interest was declined because the appellant could not be awarded points for skilled employment, given that her nominated occupation did not meet the remuneration requirements; and could not be awarded points for work experience

21 gained in Turkey (as it was not a comparable labour market) or bonus points for skilled work experience in New Zealand. [91] In February 2025, the appellant made her [NAME] ([APPELLANT]) category residence application, on the basis that her [NAME] position was substantially consistent with the ANZSCO occupation of [NAME] or [NAME] Manager. [NAME] declined this application, finding that her employment was not substantially consistent with that of a [NAME] or [NAME] Manager so that she did not meet the requirements for skilled employment and did not qualify for points for skilled work experience, to meet the 6 points required for the [NAME] ([APPELLANT]) category. The Tribunal has found that [NAME]’s decision was correct. Qualifications and work experience [92] The appellant declared that she holds qualifications obtained in Turkey, including four years spent undertaking a creative writing qualification (2001–2005), and subsequent university qualifications in social sciences (2010), and dramaturgy and theatre criticism (2014). [93] Following her arrival in New Zealand, the appellant enrolled at a university and successfully completed a Graduate Diploma in Arts (2020) followed by a Postgraduate Diploma in Arts (2021), both in the area of [NAME]. [94] In Turkey, the appellant held a range of employment positions, predominately in the creative arts, as (variously) an editor, creating content for publications, and several theatre-related positions such as a drama teacher, theatre company manager and copywriter/theatre critic. Employment in New Zealand [95] The appellant has held employment in New Zealand, since 2019, in the [NAME]. She began as a [NAME] worker (2019–2021) with a [NAME] whilst studying, before commencing work (March 2021) as a part-time [NAME] assistant with her most recent employer, a [NAME] in a New Zealand city. In October 2022, she was promoted to the position of [NAME] team [NAME], subsequently renamed ‘[NAME]’, with responsibility for daytime shifts at the [NAME]. When she made her residence application in February 2025, her hourly wage was $31.61, which was the median wage at that time.

22 [96] On appeal, the representative submits that the appellant has demonstrated exceptional commitment to her employer, including through the COVID-19 pandemic. She holds relevant [NAME]-related qualifications such as a Licence Controller Qualification and a Manager’s Certificate (which allows her to work as a duty manager in licensed premises), and these reflect her long-term contribution to [NAME]. [97] In his letter to the Tribunal (27 May 2026), the [NAME] states that the appellant’s position has been kept open and available to her, as soon as she becomes lawfully entitled to resume work. The [NAME] depends on the appellant and has suffered significant operational difficulties in her absence. The [NAME] writes that the appellant’s cultural background affords her an intimate knowledge of the [NAME]’s cuisine and culture, a feature shared by only a small number of the management team, and this contributes to her being difficult to replace. She is a valued and important member of staff, and the loss of her experience to the business is keenly felt. [98] The Tribunal acknowledges that over the five years that the appellant has been working for her most recent employer, she has progressed to a supervisory position of some responsibility. She is clearly well-regarded as a capable and valued employee, and an integral member of staff. However, there is nothing about the appellant’s contribution to her employer, or her modest contribution to New Zealand through this employment, that can be characterised as out of the ordinary. Settlement in, and contribution to, New Zealand [99] Having spent nine years studying and working in New Zealand, the appellant likely feels well-settled here, and her attempts to apply for residence suggest that she wishes to make New Zealand her permanent home. [100] There is no evidence before the Tribunal that points to any specific features of the appellant’s settlement in this country, beyond her study and [NAME]- based employment. It is said that her brother is well-settled here as a citizen, although his location and the nature of the relationship that he and the appellant share has not been disclosed. The Tribunal acknowledges that the appellant will have developed friendships and social connections in New Zealand, not least through her work. Letters from a [NAME] of the [NAME], written to support the appellant’s residence application and appeal, refer to their knowledge of her (beyond employment) as an accomplished published playwright who holds a

23 range of impressive skills and artistic and personal strengths, and describe her as a contributing member of the community. [101] Evidence before the Tribunal refers to the appellant as an internationally recognised and award-wining playwright and published theatre critic, and a member of the [COMPANY] (an arm of the United Nations Educational, Scientific and Cultural Organization). She has co-authored a play exploring immigrant women’s experiences (with other Turkish nationals living overseas), which the representative says is scheduled for production overseas this year. It is submitted that the appellant is from a Kurdish ethnic minority and, as such, her professional work as a theatre critic was subject to censorship in Turkey, thus making her professional life in New Zealand all the more significant. [102] In her letter to [NAME], the appellant writes that she uses her artistic skills and background to manage the [NAME]’s operations effectively, as the [NAME] is a popular spot during cultural events. It appears that the appellant has the potential to contribute directly to theatre and the dramatic arts in New Zealand, if she is not already involved in some manner (beyond the international work referenced to the Tribunal). It is also acknowledged that the appellant likely has a freedom of expression available to her in New Zealand in terms of her theatre criticism, that is unavailable in Turkey. Health, character and English language requirements [103] [NAME] was satisfied that the appellant had an acceptable standard of health for residence. It also found that she met the character requirements, having clear police certificates from Turkey (18 January 2025) and New Zealand. [104] [NAME] also found that the appellant met the English language criteria of the [NAME] ([APPELLANT]) category through the completion of a recognised Level 8 New Zealand qualification with at least one year of academic study. Discussion on special circumstances [105] The appellant has spent the last nine years in New Zealand during which time she has studied and undertaken employment in the [NAME].

24 [106] Over the last five years with her most recent employer, a [NAME] in a large New Zealand city, the appellant has progressed to holding a supervisory position and is evidently a valued and capable employee. However, she has been unable to meet the criteria for residence under the [NAME] ([APPELLANT]) category because her position is not substantially consistent to the ANZSCO occupation of a [NAME] or [NAME] Manager. [107] Currently, the appellant holds a visitor visa, after having become unlawfully present in New Zealand. This unfortunate situation appears to have arisen from a misunderstanding of her SMC interim visa conditions and [NAME] incorrectly recording the expiry date of this visa in its residence decline letter. Having promptly sought to rectify her unlawful status, the appellant now finds herself unable to resume employment. The appellant may find that she meets the criteria for an [NAME] work visa, which would enable her to remain in New Zealand temporarily and work whilst investigating alternative prospective employment and/or pathways to residence. Regardless, the appellant’s current situation does not make her circumstances special in terms of warranting the grant of residence as an exception to instructions. [108] Beyond her employment, the appellant has the potential to contribute to New Zealand as an experienced playwright and involvement in the dramatic arts, although the extent to which she has become involved in New Zealand’s local arts scene to date is unclear. She shares a familial connection to New Zealand by having a sibling who resides in this country, and she will no doubt have made social connections through her time spent in this county. While the Tribunal accepts that appellant will have attained a level of settlement here, there is nothing about her settlement, skills, work experience or contribution as disclosed, that is uncommon or out of the ordinary among temporary visa holders who have spent similar lengths of time in New Zealand. Conclusion on special circumstances [109] Having regard to circumstances of the appellant, the Tribunal finds that, considered cumulatively, it has not been established that her circumstances constitute special circumstances that warrant a recommendation that the Minister of Immigration consider an exception to residence instructions.

25 Certified to be the Research Copy released for publication.

[NAME] Member DETERMINATION [110] This appeal is determined pursuant to section 188(1)(a) of the Immigration Act 2009. The Tribunal confirms the decision of [NAME] to decline the appellant's application for residence as correct in terms of the applicable residence instructions. The Tribunal does not consider that the appellant has special circumstances which warrant consideration by the Minister of Immigration as an exception to those instructions under section 188(1)(f) of the Act. [111] The appeal is unsuccessful. Order as to Depersonalised Research Copy [112] Pursuant to clause 19 of Schedule 2 of the Act, the Tribunal orders that, until further order, the research copy of this decision is to be depersonalised by removal of the appellant’s name and any particulars likely to lead to the identification of the appellant. “[NAME]” [NAME] Member