Visa Reconsiderations – a Second Chance

Last year I highlighted a change to the rules around Interim Visas which gave people more opportunities to contest declined visa applications.  Since then, we have had increased demand for us to handle reconsideration of a refused visa.

Reconsiderations are available for most temporary visa applications made by people in New Zealand – Visitor, Work or Student Visas.  They do not apply to Residence.  If a Residence application is declined, there is usually a right to take an appeal to the Immigration & Protection Tribunal.  You also cannot normally ask for a reconsideration if you have applied from outside NZ, an issue which I will come back to.

How Do They Work?

A reconsideration means what it says – Immigration has to consider the application again.  It has to be looked at by a different visa officer who is at the same rank as, or higher than, the one who declined the application.  This can be an effective way to get someone else to take a fresh look at your case, especially when it seems that the first decision was not done properly.

It also gives a chance to bring in new information which was not provided the first time, or was not available until later.  For example, we have put cases forward where the applicant tried to do the application themselves, but failed.  This is often not their fault – visa applications can be technically challenging, and most applicants don’t have much experience of how to apply the rules around various types of visa.  Perhaps they simply didn’t gather enough evidence to show that they are in a strong partnership relationship.  Or, for a job-based Work Visa, the employer did not get any guidance about how to describe their job accurately in the Employment Agreement.  These things can be fixed, but they have to be done carefully.

Get in Quick

If your visa application is declined, you have 14 days to put in the reconsideration.  That is not very long, especially if you also need to find an immigration professional to help.  Because most visa decisions are sent by email nowadays, the 14 days starts from the date on the decline letter (assuming that the letter goes out on the same day).  If you put in the reconsideration late, Immigration is not allowed to look at it because the time limit is set by section 185 of the Immigration Act 2009.

Instead, a late reconsideration could be treated as a request for a visa under section 61 of the Act.  Immigration does do this sometimes, and if they don’t then you should ask them to.  Some years ago Immigration New Zealand set up a dedicated Section 61 Team, and this is now called the Section 61/Reconsiderations Team for this reason.

That option is far from ideal, because “section 61” requests are basically Yes/No calls by an Immigration officer.  They are not required to give reasons or use any particular policy to make the decision.  Reconsiderations, on the other hand, must be assessed using the policy which the migrant applied under.  Immigration must also turn its mind to whether an “Exception to Instructions” could be used if the person’s case doesn’t quite fit the rules.

The upshot is that, if you can ask for a reconsideration, make sure you do it in time.

Offshore Visas

I mentioned before that people who are overseas have no right to a reconsideration.  This is technically correct, but Immigration Instructions do allow visa officers to reassess a declined offshore application if the applicant puts forward “new and compelling information”.  The trouble is that anyone trying to use this avenue is at the mercy of a visa officer who gets to decide if the new material is new and compelling enough.

It may be time to revisit this restrictive approach to offshore visas.  The limitation on reconsiderations is a part of the law passed by Parliament, but it is not clear why it should be so.  The argument is often made that people who are already in NZ have a greater right to fair treatment, and a second chance, than someone who has never been here before.  However, overseas applicants often have a lot at stake.  If they are coming to visit family or to join a partner, the people in New Zealand are also deeply affected by a defective decision.  The only thing people can then do is to apply again, and take the risk that Immigration will simply follow the last decision and decline a second time.

The other problem is that, without any rights of appeal or reconsideration for offshore applications, cases can be declined – and are declined – with very little accountability on the part of INZ staff at offshore posts.  For instance, some years ago this forced the industry to involve the Office of the Ombudsman in a complaint about the wholesale decline of applications by partners of students and workers from India.

In the last year or more, the number of declined Partner applications has increased significantly.  While this is also happening to people already in New Zealand, the figures are more dramatic from INZ Mumbai, whose notoriety in the industry is reaching new heights.  My colleagues who are looking at this situation more closely have identified a systemic application of policy, in a manner which seems calculated to make it difficult or impossible for many people to qualify.  And visa staff at these overseas posts can do this with impunity.  INZ’s own complaints and feedback system is worthless, because it cannot be used to point out deficiencies in the logic behind decisions.  And the Immigration Act prevents anyone from taking their case to the Courts.

To restore accountability, any review of the Immigration Act should involve extending rights of reconsideration to offshore applications, and perhaps even making judicial review available to people outside New Zealand.  INZ has hidden behind the statutory protections that it currently enjoys, for too long.

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Relevant legislation, other rules in the immigration context

Legislation is important in the New Zealand immigration context. It is intended to provide a framework for the management of immigration in New Zealand in a way that balances New Zealand’s national interests with international obligations, while protecting New Zealanders and migrants.

Legislation can include Acts of Parliament, Bills which have been introduced to Parliament but not yet passed into law, legislative instruments which can include Orders in Council, Regulations, rules, and notices. Legislation can be found on the New Zealand Parliamentary Counsel website, at the following link here.

Acts of Parliament, once they are passed through Parliament and receive the royal assent by the Governor-General, have the full force of law in New Zealand. Acts of Parliament are the primary source of law in New Zealand and take precedence over other law, for example regulations and decisions by Judges in the Courts. 

Immigration law arises out of the fundamental principle of “state sovereignty”, the right of a state to control its borders. However, a country such as New Zealand also has international obligations which it takes seriously, and keeps in step with international law and associated developments, especially with regard to human rights.

In the immigration context, the following legislation is relevant:

  1. The Immigration Act 2009. The Act sets out the following.
  • Who needs a visa to travel to or stay in New Zealand.
  • How immigration instructions are produced, and the rules and criteria for the grant of visas. Immigration instructions are found in the INZ operational manual, which are here. This is a detailed manual which governs the way Visa applications are decided by Immigration New Zealand.
  • The responsibilities of people when they first arrive in New Zealand.
  • The legal basis for New Zealand to meet its international responsibilities under the Refugee Convention, the Convention against Torture, and the International Covenant on Civil and Political Rights.
  • The requirements that visitors, migrants, students, employers and educators must meet, and the information they must give to Immigration New Zealand.
  • Rules around deportation.
  • Criminal offences relating to immigration, which include providing false and misleading information, obstruction or failing to provide information in certain situations; and employers can also face offences such as employing someone who does not have a valid visa.
  • The establishment of the Immigration and Protection Tribunal, an independent body which hears residence appeals, refugee and protection appeals, and appeals against deportation

2. Immigration regulations. The following regulations support the Immigration Act 2009.

  • Regulations relating to residence, temporary entry and transit visas.
  • Forms and warrants used for deportation or the mass arrival of asylum seekers.
  • How refugee claims are managed.
  • The responsibilities of airlines and other transport providers to check and hold information about their passengers.
  • The penalties which airlines and other transport providers may be liable for if they don’t meet their obligations.
  • How the Immigration and Protection Tribunal operates and its powers

3. The Immigration Advisers Licensing Act 2007.  This covers the licensing of Immigration Advisers. The Act also defines what immigration advice is, who can provide it and how complaints against advisers are handled.

4. Other legislation which is relevant in immigration matters includes the Privacy Act 1993 and the Official Information Act 1982

  • The Privacy Act 1993 describes how all government agencies, including INZ, manage personal information.
  • The Official Information Act 1982 aims to increase public access to official information, lets people see official information about themselves and protects the public interest and safeguards personal privacy.

A request for information under the Privacy Act 1993 or Official Information Act 1982 usually takes 20 working days.

This legislation forms a framework of rules which govern how immigration into New Zealand is managed, including how visa applications are decided. Immigration New Zealand has a function in applying New Zealand’s immigration rules and laws, to support New Zealand’s economic growth to strengthen our relationship with other parts of the world. Immigration New Zealand offers a range of visas for people who want to visit, work, study, live or invest in New Zealand.

The task of applying for a visa for many people is a daunting process, the rules can be complex and challenging to navigate. Things can go wrong during the course of an application, or an application might be declined, meaning assistance to resolve this is needed.

The consequences of getting something wrong, for example by missing an expiring medical or police certificate, can be very serious. A person may have to leave New Zealand, in the worst case scenario this may be forcible, by immigration officials or the police. Visa applications, more complex ones in particular or where the stakes for an applicant are higher, therefore need to be carefully prepared, which often requires time, so the best possible chance of success is secured.

If you have a visa application or a problem with a visa application that you need assistance with, contact us here at Laurent Law.

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Introducing Sahar Shamia

Sahar Shamia joined Laurent Law on 17 June 2019. We looked far and wide to find someone with her skills and abilities. We are thrilled to have her on board.

Sahar is an enrolled Barrister and Solicitor of the High Court and she graduated with Law and History degrees from the University of Auckland.

Sahar was born in Kuwait and she migrated to New Zealand with her family in 1996. We think it is no coincidence that this was the year that Laurent Law was established. She is passionate about the field of immigration because of the contribution that it makes to the New Zealand society as a whole. She manages all temporary entry and residence applications, residence appeals, character waivers, section 61 requests, ministerial interventions and a whole lot more.

Sahar has a passion for travel and speaks fluent English and Arabic. She loves to spend time with friends and loved ones. She enjoys a game of tennis and you will often find her on the courts when she is not working.

Sahar is a valued member of our immigration team and we look forward to a long and prosperous working relationship with her. We are confident that our clients will enjoy her approach to life and work and that they will depend on her for valued advice and guidance.

Make an appointment to meet Sahar and entrust your immigration related matters to her.

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Why is there a Visa Glacier?

We’ve seen a big slow-down across the board in the speed of processing applications for New Zealand Visas.  Employers claim that, when it takes several months to be able to hire migrants, this does significant harm to their businesses with lost opportunities and lost productivity.  Tertiary education providers estimate that the delays in approving Student Visas will cost them tens of millions of dollars.  Perhaps even more serious, the backlog is harming our international reputation, so that prospective students will simply look elsewhere – such as Australia or Canada.

Sources of the Problem

So why has this come about?  There are several factors at work here:

  • An increase in demand for visas since the end of last year.  Immigration New Zealand has pointed to this as the main source of its problems, but it is not the only one; 
  • Immigration’s “change programme” to bring almost all visa processing onshore, resulting in the closure of most of its overseas offices.  It has thus lost many experienced officers, and has to train a whole lot of new staff to fill positions back in New Zealand; and
  • High turnover of staff – possibly 40% every year – because of heavy workloads and unattractive employment conditions. 

Meanwhile, there are plans to transform the “employer assisted” Work Visa categories to require all employers to become accredited before they can hire migrant workers.  Many in the industry (and I am one) believe that Immigration does not have the resources to handle thousands of accreditation applications, which are more time-intensive than standard visa applications, when it is not even coping well with existing work.

High Touch/Low Touch

There is, however, a parallel development which can benefit some people.  INZ has introduced a filter system to identify what they call “low touch” and “high touch” applications in some categories, such as Work Visas.  The low touch cases can be fast-tracked for approval, while high touch applications go into a longer queue for more intensive assessment.  And, of course, they take a whole lot longer.

How do you get onto the low touch fast-track, then?  There are a couple of levers which people have no control over.  For instance, if they are from a low risk country (such as most parts of the EU and North America), and have a well-paying specialist or managerial career, then chances are that things will run fairly smoothly.  Now, Immigration denies that there are high-risk countries, but that is something that few people in the industry would swallow.  Try getting a tourist visa if you live in Kabul.

People also can’t help where they live.  So, for instance, those in India and those who have to file applications through INZ Mumbai or Delhi face massive hold-ups because of the inability of those offices to process the large volume of applications in good time.  India-based migration agents are even facing death threats from their frustrated clients because of the delays of 6 months or more.

Blowing Our Own Trumpet

There is another way to increase your chances of a quick(er) turnaround, which you can control.  INZ has also introduced the concept of the “decision ready” application.  Although it can be an ambiguous concept in practice, it means an application which contains all the information needed for a visa officer to assess the case.

Here is where getting professional help can add real value.  That is, by using competent and experienced lawyers and licensed immigration advisers.  While the published turnaround times for certain types of Work Visas are 60 – 70 days, we can get approvals in 2 weeks.  Not all the time, but enough to give confidence that a thorough and careful approach will pay off.

So yes, we’re blowing our own trumpet here.  We might as well.  Laurent Law has worked over the years to build a good relationship with Immigration New Zealand, and to give them what they need to make a favourable decision, when that is possible.  Contact us to find out more

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Whangamomona!

New Zealand has become a very popular tourist destination of choice in the last few years. You certainly can find everything that a tourist would like here. We have the sandy white beaches and the breathtaking scenery. We have snow and buzzing city life. We have the little gems off the beaten track and we have everything sporty that you can think of. A tourist won’t be disappointed.

As a foreigner myself I truly loved my first time experiences in New Zealand. Later on I could build on those great memories and even go back to the places that I initially visited to rekindle those fond memories.

Whangamomona is such a place. A very recent article about the little gem re-confirmed my love for this fantastical place that just did not move on with time. To get there is an adventure in itself. We travelled to Whangamomona from the Taumarunui side (central North Island). The Forgotten World Highway is a truly isolated part of New Zealand. Although a fairly easy drive to get there it is unforgettable. The rainforest along the way transforms the surroundings into something that feels like it should fit in the Amazon. The gorges create excitement and beautiful scenery that captivates the senses. There is a tunnel and four saddles to traverse along the way. A tourist cannot want anything more. The gravel section of the road will hopefully be sealed soon although it will take some of the old-worldly feel out of the experience.

What mesmerises me most about Whangamomona is the fact that time stood still there. The Whangamomona Hotel is a history lesson in itself with all the photos and stories on the walls. The food is great and you meet fantastic people there. We met a horse trainer who tried to convince us to buy a horse with him. He was an interesting character to say the least. We later ran into him again in Taumarunui. The old-worldly charm is evident everywhere in Whangamonona.

The tabby cat mentioned in the article above truly owns the streets of Whangamomona. He made himself at home on one of the chairs inside the Whangamomona Hotel bar and eatery when we were there. I did not dare ask him to move. He did look friendly but you don’t talk to royalty unless they address you first.

Whangamomona declared itself a republic in 1989 when governance moved from the Taranaki District to the Manawatu/Whanganui District and locals rebelled. The isolation of the Highway and the fact that the inhabitants of Whangamomona made themselves famous with their tongue-in-cheek rebellion makes you want to go there to meet the inhabitants of this famous town. I could not help but notice a sign outside one of the homes in Whangamomona. No females allowed. The message was clear. Perhaps it was a bit tongue-in-cheek. I hope so at least. I felt a bit sorry for the romantic misfortunes of the inhabitant of the home who possibly had his heart broken. I wish I could have met him but I could not knock on his door for a chat. The sign was clear and I was not in the habit of trespassing. He would have been an interesting character I am sure. The Republic has since produced a number of presidents (not all human). Animals seem to be a big favourite for the job. They must be truly special.

There is a lot to see and do in and around Whangamomona. Thrill seekers won’t be disappointed. Walking tracks, places of interest and historical places are plentiful on route. You could still easily imagine yourself experiencing the tranquillity a hundred years ago. The inhabitants of Whangamomona somehow froze time and allowed us a glimpse into a bygone era.

If you plan to travel or move to New Zealand, Whangamomona should be on your top 10 list of places to visit.

 

 

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The Trouble with Visas for Restaurant Managers

Last week, Immigration New Zealand refused a request by the hospitality industry to add Café and Restaurant Managers to its Immediate Shortages List (“ISSL”).  This is despite the claim that most employers have real difficulty in finding people to fill these roles.

Is it about Salaries?

On the other hand, the Ministry of Business, Innovation and Employment asserts that it has hundreds of New Zealanders with the necessary experience to take up the work, and more hospitality management graduates coming through.  It accuses the industry of underpaying these roles.  If food outlets would increase the salaries they offer, this would attract more Kiwis to do the work.

 MBIE claims that the average wage paid for this sort of job is $40K.  A basic search on Seek does not bear this out – many of the jobs on offer are in the band $40 – $70K, and the median is likely to be in the mid-50s.  The Government’s own Careers NZ website cites Assistant Managers as being paid $18 – $21 per hour, while Restaurant Managers proper earn $21 – $34 per hour, or $43 – $71K per year.  Interestingly, its source is the Restaurant Association’s figures, so it begs the question of where MBIE gets its $40K average from.

Why the ISSL?

The reason for trying to get Café and Restaurant Managers onto the Shortage List is that it removes the need for a Labour Market Test in order to hire a migrant on a Work Visa.  As things stand, many applicants are turned down because INZ claims that the employer has not properly advertised the position before offering it to someone from overseas, or that the salary being offered is too low for NZers to accept, so it unfairly cuts local workers out.

It is a long-running bone of contention.  This set of occupations used to be on the ISSL until about 2013.  Then INZ issued an internal Advice to Staff to subject any visa application for a Café or Restaurant Manager to more intense scrutiny than usual.  It amounted to a direction to presume that such cases should be declined.  The justification was, at least in part, that many of the jobs being put forward were inflated, and did not in fact involve the level of managerial skill which the job classification required.  That historical Advice is no longer visible in INZ’s Resource Library, but it reflects a strong bias against this class of job, which continues to this day.

The Way Forward

If our food outlets can’t get good staff through supporting Work Visa applications, then they do have the other option of hiring degree-level graduates of NZ colleges, who get open Work Visas allowing them to work wherever they like for 3 years.  As I have pointed out in a blog post in February, this has the effect of sending workers in this industry out of Immigration’s sight.  While MBIE is rightly concerned about the exploitation of workers in industries such as hospitality, its failure to respond to a call for help from employers will fuel that problem.

Cafés and restaurants form an essential element of New Zealand’s tourist industry.  When they can’t deliver good service because they can’t get the staff they need, then this hits the country in a vulnerable place – its international reputation as a desirable destination.  The evidence on the ground for many years is clear: New Zealanders are not fronting up to do these jobs.  And the jobs are not badly paid, on the whole.  It is therefore time for MBIE policymakers to move some levers to enable employers to readily source the migrant job market.

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Parent Visas – Hurry Up and Wait

Since mid-2018 the Government has made noises about reopening the Parent Residence category from time to time.  The Minister of Immigration at the NZAMI Conference in August 2018 said that his people would be looking at it soon.  Then Immigration New Zealand indicated that an announcement about it would be made “in the first half of 2019”. Just a few days ago, the Minister said that a decision on the policy would be made before the end of his current term in office – that could push it out to late 2020.

Now, at Laurent Law we get to hear about some things before they make the mainstream news, but I have to say that there is not much good news yet.

A Cause for Shame?

From time to time, the media carries accounts of public indignation that Immigration has suspended the policy.  Unfortunately, this has also recently been tied to the generous offer to grant Residence to family members of victims of the Christchurch mosque shootings in March.  In my view the factors influencing the two issues are quite distinct, and the numbers of people affected are very different.

However, the failure to do anything decisive about the Parent route is becoming inexcusable.  Thousands of families have lodged Expressions of Interest for selection over the years – and paid a fee for the privilege.  Since October 2016, none of those EOIs can be selected in order to issue an Invitation to Apply.  However, people can still file EOIs without hindrance.  There is a certain dishonesty in this.  If the intention is, and has been, to keep the category closed indefinitely, there comes a point where Immigration should refuse to accept further EOIs (and thereby clip the ticket along the way).  Alternatively, it should be possible to get a prompt refund on request – at the moment, this is apparently only “under consideration”.  As things stand, visa fee refunds are discretionary and are only available in exceptional circumstances.

I have heard second-hand that Immigration is thinking about closing off the Tier 2 Parent category altogether and giving refunds out.  The Tier 1 category could be reopened with a new set of criteria – those who have a Tier 1 EOI in already but who don’t meet the new rules will be refunded as well (thanks to June Ranson for this intel).  We may not get anything official about this until July, so at the moment it is little better than a rumour.

Possible Solutions

There were several reasons, both official and unofficial, why the policy was suspended.  One was that sponsors did not keep to the undertakings they signed to support their parents for the first 10 years after they arrived in New Zealand.  As a result, the cost fell upon the taxpayer.  Another was that, after the parents had been settled in New Zealand, the children would go to live elsewhere, such as Australia, and leave their parents stranded here with no connections, often very little English, and perhaps languishing in a rest home. A senior Immigration official has disclosed that there is little actual evidence of such abuses, yet the Parent Category remains closed.

I, for one, have never heard of a case in which Immigration attempted to require the sponsor to fulfil their obligations.  For example, meeting those undertakings is a condition of the parent’s Residence Visa.  This means that the parent could be made liable for deportation if their child abandons them.  That’s pretty harsh, but the risk of the parent being thrown out of New Zealand should be a wake-up call to a negligent child.

Another issue has of course been the inevitable cost to the health and care systems of providing for parents as they age.  Australia has recently rolled out a scheme under which parents can apply for visas for a certain term.  This is for temporary visas, and not Residence as such.  While some aspects of the policy may not be palatable, one feature of interest is that applicants must hold suitable health insurance in order to get visas.

The accepted wisdom has been that New Zealand should not create second-class Residents by, for instance, imposing a duty on some of them to pay for their own healthcare.  Once you’re a Resident, you become entitled to all public services just like other Residents and Citizens.  This ignores the fact that we already have sub-classes of Residents for certain periods.  For example, Investors must maintain their funds in New Zealand assets for 3 or 4 years.  Perhaps there is room for making comprehensive health insurance a condition of a Parent Resident visa for, say, 10 years, in order to spread the cost of their health needs.

This is a far from perfect answer.  It could be objected that the greatest demand for health services arises as a person ages, so that a fixed-term insurance does not address the root problem.  What about urgent medical care – will a hospital refuse to admit an accident victim until they’ve seen proof of their insurance?  Thirdly, Residents whose visa conditions have not expired cannot apply for Citizenship – although the same limitation already applies to those who have already got Residence under a 10-year sponsorship condition.

The point is that, while allowing parents to remain in New Zealand for the rest of their lives will cost this country money and resources, there are ways to mitigate that cost.  The other intangible cost that our society already pays is the dislocation of families for years and decades, and the uncertainty of children whose hopes of caring for their parents in this new home have been put on ice.

Where does that factor in the upcoming Wellbeing Budget?

Posted in Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Politics | Leave a comment