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Thread: ASIC Companies: need help Urgent

  1. #1
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    Default ASIC Companies: need help Urgent

    Can ASIC company sponsor for residency application? Immigration just let me know that my employer is not a New Zealand company so my point claim of skilled employment in New Zealand is seem to be void.

    They say my company is registered in New Zealand as a foreign company under ASIC, not as a New Zealand Limited company with a New Zealand branch. This means the New Zealand office is a subsidiary to Australian company which is owned by the Australian company. Even though the company is located in Auckland, and New Zealand employment laws such as the Holidays Act 2003 and the Parental Leave and the Employment Protection Act 1987 apply to your employment contract, you are not actually employed by a New Zealand-owned company.

    While we recognise that there is a physical office in New Zealand, your employment contract is not directly with a New Zealand employer, but remains with the company based in Australia. At current stage, it appears you are an employee of an overseas company carrying out work in New Zealand with limited
    liability, not for a New Zealand employer. Therefore no points for skilled employment have been awarded at this stage as per immigration instructions SM7.1 and SM7.5.

    I have no idea what to make of this. My company is been doing business in New Zealand since 1993 and had sponsored sponsored residence visa applications in the past. They state the following clauses.


    SM7.1 Aim and intent
    a.The aim of providing points for skilled employment is:
    i. to facilitate access by New Zealand employers and industry to global skills and knowledge; and
    ii. to recognize that people who have skilled employment in New Zealand are well positioned to meet New Zealand's needs and opportunities and more quickly
    achieve positive settlement outcomes.

    Since SM7.1 (i) says New Zealand employers, they argue my company is not a new Zealand company.

    Does anyone had this experience before? JDAM have u seen any case like this before.

  2. #2
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    SM7.5 Points for skilled employment
    a A principal applicant's current skilled employment in New Zealand for a period of at least twelve
    months qualifies for sixty points.
    b A principal applicant's:
    i offer of skilled employment in New Zealand; or
    ii current skilled employment in New Zealand for a period of less than twelve months,
    qualifies for fifty points.

  3. #3
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    As you say your employer has previously sponsored people for visas, I think you need to ask them (the employer) if they have changed the basis on which they operate. It doesn't seem likely that INZ would have let the fact of being foreign-owned slip past them when dealing with those earlier applications. That sentence in the regulations hadn't changed in a long while.

    Otherwise, the other idea which occurs to me is related to people in India having difficulty showing that the company with which they had their work experience is a multi-national, in order to have it recognized for points. In that case, it all depended on getting the INZ CO to look at the right part of the website or literature. Maybe there is PART of your employer's operation which is still Australian-owned, but also a NZ-owned part.

    ChrisMwn, have you anything to add here?

  4. #4
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    Hi JandM, Thank you for your reply.
    In the companies NZ website we are registered in NZ as ASIC type company not as New Zealand Ltd. Company. Do you mean that a foreign owned company who have office in NZ and has been trading since 1993 cannot support applicant for residency.

    I have seen few cases in two cases in the the tribunal with similarity where immigration refused the definition of "New Zealand employer" In both cases it turns out to be foreign embassies operating in NZ. ref [2016] NZIPT 202934 and [2013] NZIPT 200958.

  5. #5
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    This is what the tribunal notes The Tribunal notes the term “New Zealand employer” is not used or defined
    anywhere in the Skilled Migrant instructions other than in SM7.1.a.i. Notably, the
    words “New Zealand employer” are absent from the instructions on skilled
    employment and the instructions on the requirements for employers (see SM7.20
    Requirements for employers, effective 29 November 2010). Furthermore the Act,
    at section 4, states that “employer” means “a person who employs or engages a
    person to do work, whether under a contract of service or a contract for services”

  6. #6
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    It is a matter of commonsense that the employer must have an actual
    presence in New Zealand, otherwise the employer would be just that; “an
    employer” and not “a New Zealand employer”. The purpose of SM7.1.a.i is to
    address the needs of employers and industry in New Zealand for access to a
    greater pool of workers with skills and knowledge. By being in New Zealand,
    employers and industry benefit New Zealand through the productivity of their
    workers and their contribution to economic activity.

  7. #7
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    Immigration New Zealand stated that a “New Zealand employer” meant an
    employer who “must belong here, have their origins here or have a principal
    connection here”. Those words had been used in the legal opinion it received.
    The words are very general and open to a variety of interpretations.

  8. #8
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    Importantly, if the words “New Zealand employer” meant something more
    specific than an employer in New Zealand, they would have been clearly defined
    as meaning more than that. Looking at the rest of the instructions dealing with
    skilled employment, the only reference to the “residence status” of the employer is in the Note to the instructions at SM7.15.b (Additional requirements for skilled
    employment, effective 25 August 2014). The Note deals with the kinds of factors
    which may be taken into account when determining whether an applicant’s
    employment is ongoing and sustainable. In the appellant’s case, the Embassy of
    ABC in New Zealand is not resident here in the sense that it obviously does not
    hold a resident visa. The same will be true of all other employing entities in New
    Zealand who are not natural persons.

  9. #9
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    In this case, The Tribunal therefore cancels the decision of Immigration New Zealand.
    The appellant’s application is referred back to the chief executive of the Ministry of
    Business, Innovation and Employment for a correct assessment by Immigration
    New Zealand in terms of the applicable residence instructions, in accordance with
    the directions set out below.

  10. #10
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    I hear you're getting good advice about all this. Wishing you the very best.

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