Sexual Harassment in the Workplace – Plight of the Temporary Visa Holder

The global phenomenon that is the #MeToo and #TimesUp movements have highlighted the prevalence of sexual assault and harassment in the workplace. For what feels like the first time, victims were believed and not blamed. This empowered scores of women (and a few men) to come forward and share their harrowing stories of abuse and harassment. New Zealand was no exception. Of late, there have been multiple media reports of sexual harassment and assault in law firms[1] and even within the Human Rights Commission – a statutory body empowered to review sexual harassment complaints in New Zealand.[2] Most recently, journalist Alison Mau has “launched an investigation into sexual harassment in New Zealand workplaces”[3].

These developments prompted the New Zealand government to begin to collect data on sexual harassment.[4] Incredibly, at present the “Ministry of Business Innovation and Employment… collects data on harassment or bullying, but not on sexual harassment specifically.”[5] The New Zealand Law Society President, Kathryn Beck, has also intimated that it will set up a working group to review sexual harassment reporting mechanisms and ways this can be improved upon.[6] This comes on the heels of the harassment surveys launched by lawyer Elizabeth Hall[7] and the Criminal Bar Association of New Zealand[8].

The spotlight that has been placed on the issue of sexual assault and harassment in New Zealand within the upper echelons of our society is welcome. It highlights the fact that anyone in any occupation can be a victim of unwanted advances, sexual assault and harassment in the workplace. That said, it is concerning that the accounts and experiences of victims of sexual assault and harassment among the temporary migrant workforce in New Zealand is noticeably absent from this national conversation. And there may be a very good reason for this.

A temporary visa holder’s right to work in New Zealand depends on the conditions of their visa. A person who holds a job-specific visa, such as an Essential Skills Work Visa[9] or a Post Study (Employer Assisted) Work Visa[10], can only work for the employer who successfully supported their work visa application. This restriction exposes migrant workers to an unparalleled risk of exploitation because their right to work in New Zealand is dependent on remaining employed by a specific business or company. If the employment relationship ends for any reason, the temporary visa holder will lose their ability to work and earn a living in New Zealand, and they will usually be left with one of two very limited options: 1) find another job, or, 2) return to their home country. There is also the risk of deportation liability arising as a result of discontinuing employment with the offending employer.[11]

Fear of losing the right to work in New Zealand is a real disincentive for temporary migrant workers to report sexual assault and / or harassment in the workplace – especially if the perpetrator is the employer or a senior member of staff. This scheme entrenches the inherent power imbalance between the employer and temporary migrant worker and it puts many women (and some men) at high risk of harm. Compounding this is the absence of any provision under the current Immigration New Zealand Instructions for special work visas to be granted to victims of workplace sexual harassment. A similar policy vacuum affects victims of domestic violence whose partners are also the holders of temporary visas.

Whilst it has been encouraging to see tangible steps being taken to address the issue of sexual assault and harassment in the workplace, this movement for change will ring hollow if it fails to protect the most vulnerable amongst us. Time will tell if the changes that come about as a result of this watershed moment will offer meaningful protection to everyone who works in New Zealand, irrespective of their immigration status.

[1] Radio New Zealand, “Fresh allegations at law firm: ‘This should not be happening” <>  (23 February 2018).

[2] Radio New Zealand, “Mishandling concerns spur review into Human Rights Commission” <> (21 February 2018).

[3] Newshub, “Alison Mau launches #metoo NZ sexual harassment investigation” <> (1 March 2018).

[4] Radio New Zealand, “Govt to collect workplace sexual misconduct data” <> (5 February 2018).

[5] As above.

[6] New Zealand Law Society, “Law Society President explains new ‘working group’ on Breakfast TV” <> (2 March 2018).

[7] Radio New Zealand, “Lawyer Elizabeth Hall initiates law firm harassment survey” <> (16 February 2018).

[8] New Zealand Herald, “Criminal Bar Association to survey lawyers about harassment, bullying” <> (22 February 2018).

[9] Immigration New Zealand Operational Manual, at Instruction WK4.5(a)(ii).

[10] Immigration New Zealand Operational Manual, at WD1(h) and W2.25(a)(ii).

[11] Immigration Act 2009, at section 157(5)(a).


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What’s on the Government’s Immigration Menu for 2018?

That’s really like asking what the weather will be like in Auckland tomorrow.  The new Labour-led coalition Government has only been in the chair for a few months, and the Minister himself has said little.  However, from a couple of sources I can suggest a few things that the Minister of Immigration and the Policy team could be focusing on this year.

Work Rights of International Students

Labour promised before the Election to cut net migration by 20-30,000.  The target of this drive is “long term” net migration – that is, people who stay for more than 12 months (which is not that long, really).  Because so many overseas students are coming in, putting the brakes on entry-and-stay is probably seen as an easy win.  Labour’s Manifesto on immigration policy proposes reducing the ability to get Student Visas, and rights to work (such as part-time employment while studying) for “low value courses” – although what that term means is not clear.

More critically, it promises to take away the open “job search” Work Visa option for lower-level qualifications, which probably means anything less than a degree or Level 7 course on the NZ Qualifications Framework.  This would have flow-on consequences for many, as it would make it harder for graduates to get job offers, that could in turn lead on to work qualifying for points in the Skilled Migrant Category Residence programme.

SMC Residence has already become more difficult to achieve owing to changes to the points system, including how past work experience is credited.  The numbers of applications going in were already going through the floor late last year – see our blog on this.  If the Government keeps turning off the tap, this could result in an overshoot which will not only reduce our ability to meet the New Zealand Residence Programme targets, but will only do harm to the large export education sector which keeps earning the country much-needed tax dollars.

Essential Skills Policy Review

A plan to adjust the settings on the major avenue for Work Visas, called Essential Skills, began with consultation in April 2017 and came into force in August.  It particularly hit those in jobs deemed to be “lower skilled”, either by the nature of the job or the salary paid.  The changes have been in place for 6 months.  Apparently the Minister has decided to leave in place the changes already made by the previous National administration.  However, “Phase 2” of National’s scheme has been shelved.  Instead, the new Government will zero in on:

  • the Labour Market Test which is used to work out if the job on offer can be filled by local people; and
  • the Accredited Employer Scheme, whereby businesses with accreditation are free to hire migrants at will.

They will apparently also look hard at how to better address labour shortages in the regions (i.e., outside Auckland!).

A strong motivator for this programme is likely to be the perception, again popping up in the Manifesto, that the Work Visa system is somehow being rorted by foreigners sneaking into lower-level jobs ahead of locals.  The classic example is retail and restaurant managers.  To characterise this as an abuse of the system is, however, somewhat simplistic.  First of all, for some time now Immigration staff themselves have been particularly tough on granting visas for these types of jobs.  It ain’t easy to get a visa to work as a carer in a rest home.  Secondly, employers keep telling us that local people don’t want to do the work.  If they did, then business owners wouldn’t put themselves through the grief of trying to support someone to succeed on a Work Visa application.

Family Residence

The Minister is seeking advice on the Parent, Partnership and Dependent Child policies.  As indicated in a recent blog by James Turner of this firm, the suspension of Parent Residence selections has created distress for families trying to get their older relatives to live with them.

Partnership Instructions have remained largely untouched for nearly 2 decades.  The test for what amounts to a “genuine and stable” relationship is tried and true, although sometimes difficult to meet.  Could a sea change be coming?  If it is, then it is likely to mean tougher rules, because a significant percentage of Residence Visas are issued to partners, and the policy is uncapped – that is, no ceiling on the numbers that can be approved.

Perhaps the Government will cap this policy.  Spouses and significant others might then wait for years to move up the pile to be invited to apply.  The social dislocation and disruption to families would not be pretty.  Or else a couple might have to prove they had lived together for a minimum of 12 months before the non-New Zealander could get a Work Visa.  At the moment, all we can do is speculate.

And What’s for Dessert?

Other things that the Minister has requested advice upon include:

  1. Combating migrant exploitation, particularly in the workplace.  While Immigration and the Labour Inspectorate have been given beefed-up powers to search shop floors and prosecute employers, they are under-resourced and seem to be selective about who they go for;
  2. Increasing the number of refugees accepted under the Quota programme to 1500.  While this would be laudable, and good PR for New Zealand internationally, certain minority players on the Coalition team might yet have something to say about it . . .;
  3. An avenue for accepting another class of refugee, who have so far hit a brick wall in getting recognition via the asylum and complementary protection system – victims of climate change from neighbouring countries such as Tuvalu.  Quite frankly, it’s about time we put our hand up to soften the humanitarian disaster which is only decades, if not years, away.

Whether any of these topics translate into action in the next 12 months remains to be seen.

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Kim Dotcom – Deportation or Extradition?

Correction: This article was published under an incorrect name before. The author is Simon Laurent.

Another strand in the Dotcom saga, that first surfaced in 2014, has just reappeared after an enquiry by the New Zealand Herald.  I was one of those approached for comment before the paper released its story yesterday.

As most people know, Dotcom is locked in proceedings instituted by the US authorities to extradite him to face charges for copyright infringement – or fraud, depending on what works to enable extradition to be valid in the New Zealand jurisdiction.  However, he was also found to have concealed past criminality when he applied for NZ Residence, not once, but twice.

This has opened the door for the Minister of Immigration to declare him liable for deportation under section 158 Immigration Act 2009 where, in the course of making his Residence application, “any relevant information was concealed”.  Criminal convictions are relevant.  In this case, he was caught for dangerous driving here in 2009, before he got Residence in 2010, and that could be his undoing.

In another report I was quoted as saying that Dotcom could get around this if he could show that he did not intend to deceive Immigration.  If I said that, then it was wrong.  The mere fact that the information was withheld is enough to invoke liability for deportation.

The problem is that if Kim Dotcom is deported then he would be required to return to Germany which is his country of nationality – or somewhere else that will take him.  This would very likely frustrate the aims of the US in seeking to extradite him – that is, haul him back into the States to stand trial.  If New Zealand was to trigger deportation then this could harm our diplomatic relations with the American administration. .

It is most likely for this reason that Immigration has sat so long on the case.  The decision to initiate the deportation process lies with the Minister, and apparently it has not yet been put formally before him.  Further delay, however, could create a problem with depriving Mr Dotcom of his Resident Visa.

Once someone becomes liable for deportation in this way, they have a right of appeal to the Immigration & Protection Tribunal.  An appellant can succeed if they show that they have “exceptional circumstances of a humanitarian nature that would make it unjust of unduly harsh” for them to be deported.  This has been described as a “stern test” expressed by “stringent statutory wording” (Minister of Immigration v Jooste).  Whether having Mega-dollars at your disposal is an exceptional circumstance is questionable.

However, the longer Dotcom remains in New Zealand, the more he may be able to amass reasons that would make it unjust or unduly harsh to deport him.  He has already resided here for most of this decade.  He has settled, no doubt made connections of a business and personal nature.  He has married a New Zealander.  His children have spent years growing up here.  It may not be a foregone conclusion that an appeal would fail.

In my view, there are valid reasons for Immigration to sit on its hands for the time being.  Apart from political and diplomatic damage, taking action now would undo years of effort put into the extradition proceedings.  And deportation will remain a valid option for some years yet, even if extradition falls over.  But deferring the matter for too long could erode Immigration New Zealand’s ability to make deportation liability stick.

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Problems following the closure of the Parent category, solutions are sometimes found

With the suspension of the Parent category of New Zealand Residence in October 2016, a problem has arisen for many. Since then, we have been asked to assist in a number of situations, to find a way for an elderly parent to remain in New Zealand with their adult children.

We have helped in a number of interesting situations, with outcomes as described below.

  1. Elderly parent brought to New Zealand as a Visitor prior to the closure of the Parent category in October 2016, but unable to apply under that category due to its closure, and unable to return to their home country due to their age and condition. They became unlawful in New Zealand after their Visitor Visa expired.  A Humanitarian appeal to the Immigration and Protection Tribunal against deportation liability was successful, and Residence was granted.
  2. Elderly parent brought to New Zealand as a Visitor before the Parent category closed.  A Parent category Expression of Interest (“EOI”) was made, and an Invitation to Apply for Residence was issued.  However, the Residence application could not be filed within the required timeframe.  Then the selection of EOIs under the Parent Category was closed so that a new Residence application was no longer possible.  They became unlawfully in New Zealand when their Visitor Visa expired.  Unfortunately, a section 61 request for Residence was unsuccessful.
  3. Elderly parent brought to New Zealand as a Visitor after husband passed away in the home country, just before the Parent category was suspended in October 2016. Due to a decline in health, they were unable to return to their home country and became unlawful in New Zealand when their Visitor Visa expired.  A request for a Visa was made to the Minister of Immigration (under the previous National Government).  The Associate Minister of Immigration granted a 3 year Visitor Visa, subject to usual health and character requirements being met.
  4. An application under the Parent Category for an elderly parent was made prior to the closure of the category, and the family brought them to New Zealand as a Visitor while the application was in processing.  The application was placed in a queue and further processing was not expected until late 2018 or early 2019.  In the meantime, they had already stayed as a Visitor for the maximum allowed period of 9 months in the last 18 months.  We made an application for a further Visitor Visa as an exception to instructions, and a 6 month Visitor Visa was granted to allow them to wait out a decision on their Residence without having to make the long flight home.

These situations all involved slightly different solutions to the problem presented.  They show that where some creative lawyering is applied, success in difficult situations can be achieved.  Each case is dependent on its own facts.  It is critical to draw out the most compelling aspects, not only of the parent’s own situation, but also of their family both in New Zealand and overseas.  And we can’t necessarily win them all.

As at January 2018, the selection of Parent category EOIs remains on hold.  Just before the Election, the Labour Party representative at the Annual Conference of NZAMI indicated that they would, if elected, look afresh at when it might be reopened.  We expect nothing more on this front until after the new Immigration Ministers have come to grips with their new portfolios.

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We sign off until next year!

It has been a great year for Laurent Law and clients. We exceeded the targets that we set for ourselves and our clients. The ever changing world we live in allowed us to live, learn and change. We came out wiser, happier and more fulfilled on the other side. We embraced the challenges and turned them into victories.

We managed to save the day for a number of clients and we featured in some great success stories during the year. We are at out happiest when our clients are satisfied and we have exceeded their wildest expectations.

The team at Laurent Law would like to wish our clients, prospective clients, business networks and associates a merry Christmas and a happy new year. Although we may not all have the same take on this season we share some common ideas about family and quality time with the ones we love. We all deserve this time of rest and reflection.

Our last day of business will be Friday, 22 December 2017 and the office will reopen at 9:00am on Monday, 8 January 2018. We would love to catch up in the new year and look forward to a fresh approach to new challenges with better outcomes.

See you in 2018!


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SUCCESS STORY: IT Call Centre Staff Win Residence Appeals

In a series of decisions published in the last month or so, a large group of our clients had their declined Skilled Migrant Residence applications turned around by the Immigration & Protection Tribunal (IPT).  This is already producing a ripple effect for others in IT customer support roles around the country.

The Situation

Our people all worked for the same large call centre which has multiple offices in New Zealand.  Their Skilled Migrant applications required them to get points for “skilled employment” as an ICT Customer Support Officer (code 313112 in the ANZSCO).  For the 3 years to the end of 2016, Immigration New Zealand (INZ) had granted Residence to over 115 employees of the same company in the same role.

Then something changed.  We believe that Immigration did a double-take when someone (perhaps a disgruntled failed job applicant) asked just how many people had been approved in this way.  As a result, from April 2017 onwards INZ started churning out the declines.  They were long letters, and they were all the same – so much the same that we were able to file a single Appeal submission for 15 people.

The Knock-Down

We fired a barrage of criticisms at INZ’s approach to these cases.  Not all of them stuck, but we scored a number of hits.  For example, it was claimed that the Appellants’ use of a Knowledge Base (KB) meant that they were limited to pulling answers out of the database.  Of course, almost any customer support role nowadays relies on its people leveraging institutional knowledge gathered in a KB.  The Appellants provided support for one of the world’s largest and most extensive IT hardware and software providers.  Navigating its KB, which is constantly updated, is no walk in the park.  The IPT said:

it was still necessary for the appellant to utilise his own skill and expertise to identify the issue, locate relevant solutions in the [KB], and to understand and apply such solutions.

Next, employees were not permitted to have remote access to users’ devices, so they had to talk customers through the necessary fixes.  INZ claimed that they were “merely guiding” the user, so they were not exercising their own IT skills.  Anyone who has tried to explain how to fix a computer problem to someone else will tell you that it’s much easier to just get in and ‘do it yourself’.  You not only have to know where to go and which options to click; you also have to be able to describe this simply and clearly, so the other person won’t get lost.  More critically, the very description of the ICT Customer Support Officer is that she “provides support, education and guidance“, something to which INZ had become completely blind.

The ANZSCO description states that someone doing ICT Customer Support should have a diploma or at least 3 years’ prior experience.  The fact is that most of the Appellants had degree-level or higher qualifications.  The employer did not require applicants for the job to have either, and INZ said this also meant that the job itself was not sufficiently skilled.  The IPT pointed out, though, that ANZSCO itself contemplates that people will acquire the necessary skills over time, and “the entry criteria for a role is not determinative of the skill level of those undertaking the role.”

Finally and fundamentally, INZ concluded that each of the Core Tasks associated with ICT Customer Support did not require a level of skill equivalent to a diploma or 3 years’ prior experience.  Why was this wrong?  In order to work out if someone had “skilled employment”, two separate questions apply:

  1. Is their job a “substantial match” to the ANZSCO description for the listed occupation, including Core Tasks? – then
  2. Does the employee have the qualifications or experience expected for that occupation code?

INZ had applied the second ‘quals/experience’ criteria to the first “substantial match” assessment.  In the words of the IPT:

. . . it imported a skill level requirement into its substantial match enquiry, which it was not entitled to do.

So What Now?

INZ had developed what it saw as a slam-dunk solution, to knock out perhaps hundreds of Residence applications.  Maybe management saw this as a way to deliver a reduction in the record long-term migration numbers, for which the previous Government was being criticised in the run-up to the Election.  The IPT’s comprehensive treatment of this ‘policy’ appears to have stopped this in its tracks.  Certainly, so far INZ has not tried to appeal any of our decisions to the High Court.

We have heard from more than one source that people at several other support centres ran into the same problems in the last few months.  We have also just heard that, in at least one case, someone else has won their appeal on the same grounds.  It is cheering to think that our work is likely to deliver rewards well beyond the wins for our own clients.

There has been a lot of fallout from this process.  INZ has declined some people’s Work Visa applications in the meantime, for the same reasons, so that they have now lost their jobs.

INZ has been ordered to reassess every one of our cases.  At the time of writing, we have not had feedback from INZ about the Residence reassessments.  This story may not be over, and they might try to find other ways to defeat the applications.

However, we have learned something about the dynamics of this industry, and you may know someone in the same situation who needs help.  Get them to talk to us.

Posted in Business, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Politics, Practice of Law | Tagged , , , , , | 3 Comments

“Kiwis First” – Labour Inherits Immigration Policy

In a June posting I predicted that the Labour Party’s promises to slash the numbers of migrants to New Zealand had already been trumped (excuse the expression) by policy changes introduced under the National-led Government.  That appears to have come true.

NZ Residence Programme

Radio New Zealand article from the end of October disclosed that the number of applications lodged for Skilled Migrant Residence in April – September 2017 were nearly 50% less than for the same period in 2016.  It suggested that if the trend continued, overall Residence approvals would be likely to fall to about 29,000 for the current financial year (to June 2018).  This would far exceed the sort of cut Labour originally suggested it would like to see in “long term migrants”, and would even warm the hearts of New Zealand First supporters from the Kiwi heartland.

Note that almost all of the shrinkage so far took place before Election Day.  It was a reaction to both the upward adjustment of the Skilled Migrant Category (SMC) points threshold in October 2016, and the announcement in April 2017 of the changes to SMC and Essential Skills Work Instructions which the Government intended to roll out at the end of August.

This is not good news, though.  The Government Residence Programme, which is set every few years, was recently recalibrated to direct the acquisition of 85-95,000 approvals over the 2 years to June 2018.  This is something of a reduction from previous periods, but the NZRP target range has remained reasonably steady for about 15 years.  And it has not been met on a number of occasions since 2010.  If the above prediction is correct, then there will be a major shortfall by the middle of next year too.  About 60% of the Programme is to be filled by Skilled Migrant and Business Residence applications.  These are meant to attract skills, investment capital and entrepreneurial talent.  Most commentators agree that we need more of these inputs for New Zealand to remain sustainable in the long term, but we are looking down the barrel of a drought of these people and funds.

So Labour has drawn back from proposing major changes to the SMC points system.  Even if it had planned to make new policy, I believe that there would have been significant push-back from the real policymakers – the analysts and bureaucrats of the Ministry of Business, Immigration and Employment who have been working solidly on adjustments to the SMC settings since mid-2016.  They are justified in urging Government to “wait and see” the effects of the major changes to SMC Residence and Work Visa Instructions which only came into effect at the end of August.

Students and Low-Salaried Workers

Instead, Labour’s Election Manifesto on Immigration focuses on the tide of students who have historically gained rights to Work Visas in relatively low-end jobs as a pathway to Residence.  For example, they propose to remove the ability to get a post-study “Job Search Visa” (as we used to call it) for anyone qualifying below bachelor’s degree level.  In recent immigration mythology, the foreign student population has become one of the folk devils responsible for most of the pressures on our infrastructure and way of life – from house prices to Auckland’s traffic woes.

But it remains to be seen whether the new Government will have the political will to keep reducing the attractiveness of studying in New Zealand as a means to living here long-term.  For one thing, export education earns lots of tax dollars – money that Labour needs in order to fund its expansive plans for social housing, erasing child poverty and so on.  For another, powerful interest groups such as Federated Farmers and the Restaurant Association have already campaigned vigorously to protect the ability of relatively low-paid migrant employees to get Work Visas – because those major sectors of the economy are unsustainable without them.  And, despite the repeated mantra of, “Study does not guarantee Residence”, the fact is that people from all over the world want to find ways to come to a ‘Western’ country to live.  Whether Government likes it or not, New Zealand must compete for those tax dollars, and as a small-fry player too.  If we become too unattractive, they will go to Australia, Canada or the US.

The Coalition has a tenuous hold on power, and faces a vigorous and motivated Opposition.  If Labour wants a second term, it will have to compromise both with its xenophobic partner (NZ First) and with industry and business groups who are also voters and who influence opinion.

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