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When Stupid Becomes Sinister

Posted by Iain on Aug. 16, 2059, 12:54 p.m. in Immigration New Zealand

In this age of mass communication, social media and the manipulation of the masses by the few, it can sometimes be hard to separate the sinister from the stupid. Take Donald Trump for example. 

Closer to home, I’m constantly asking myself whether the New Zealand Immigration department is full of poorly led fools or there is an insidious culture of racism that their 'leadership' will never publicly acknowledge exists. 

Take the relatively simple matter of a visitor visa. Every year hundreds of thousands of people visit New Zealand and many of them need visitor visas to do so. The significant majority are simply coming to New Zealand for a holiday and many are granted visas. Equally, many are not. I am not sure anyone has ever done any real analysis of the nationality or ethnicity of those that are successful and those that are not. 

A smaller number, many of them our clients, are coming to New Zealand to find work because they want to be part of the government's residence program and we have identified that with skilled employment they meet the criteria for residence. As I have written about so many times before, overwhelmingly New Zealand employers demand that potential migrants send very clear signals of their commitment to the process and that means being in New Zealand in order to secure interviews. 

Around 97% of all IMMagine’s clients get jobs when they are in New Zealand and the signifcant majority are issued their work visas while in NZ. 

Immigration New Zealand’s own statistics show that only 6% of skilled Work Visas are granted to people not in New Zealand. That supports the proposition that if you want a job you need to be in New Zealand first and employers are reluctant to engage with those sitting overseas.

The reality is those coming to New Zealand to test themselves against the labour market when not 100% on holiday does create issues for immigration officials because such people are not catered for in the rulebook - looking for work on a visitor visa is perfectly legal but not one of the stated ‘purposes’ of being a ‘tourist’. Rather than change the rule book to streamline the residence process and recognise the benefit of allowing the highly skilld to travel as visitors to find work, we end up with what seems to me to be little short of racial profiling.

I know the government will vehemently deny it as they always do, however, when our experience as Advisers screams racial profiling and the evidence is as plain as the nose on your face, all the denials in the world can't hide the reality. 

To try and reach an understanding on who might be allowed to visit in part to find work in order to be part of the residence programme, we came to an arrangement some time ago with a very senior immigration manager who said that someone meeting only one of the criteria below could ‘reasonably expect’ to be granted a Visitor Visa when they were primarily coming to New Zealand on holiday but with a secondary purpose of finding work:

- Their immediate family was remaining behind (implying they couldn’t be single); or

- They had a job to return to if they didn’t find work in NZ; or

- They had not sold the family home.

Either the officers in branches like Beijing never got the memo or they wilfully ignore the directives of their senior managers (and given there is a culture of not wanting to tell subordinates what to do in this circus, I don’t rule out the latter).

Right now somewhere in New Zealand is a single, 23-year-old South African with limited work experience, who has never owned property, who resigned his job and for whom we got a visitor visa to come to New Zealand because he wants to be part of the Residence program. We warned him when we applied that INZ should try and decline him based on the understanding of who should and who should not expect to get the visa. They approved him. Although he had not secured employment within the validity of his initial Visitor Visa, the Immigration Department was very relaxed about granting him a renewal for another three months. None of the three criteria above were satisfied.

Another current client is also from and lives in South Africa. He is not a South African citizen but holds a valid work visa and has lived there for a number of years. He is married with children and they were not included in the visitor visa application but we presented evidence of this as strong 'incentives to return' to SA if he was unsuccessful finding work in NZ. He is a highly skilled Electrician, is trade certified, speaks fluent English and has registration with the New Zealand Electrical Workers Registration Board. On top the fact that he works in an occupation that appears on the Long term Skills Shortage List should see him find work within days of stepping off the plane.  He has a job to return in South Africa in the unlikely event he cannot find one in New Zealand.

He satisfies two of the three criteria above. 

His visitor visa was declined yesterday.

One of these clients is white and one of these clients is not. Can you guess which is which?

The Immigration Department will suggest that is coincidence.

That can only mean one of two things - they are utterly incapable of consistently applying their own rules and the visa process is more than a little random…or something more sinister…and racial profiling or at least bias is at play.

They can deny the system is racist all they like and while different applicants do have different risk assessments attached to them, when a person satisfies criteria laid down by a senior manager to mitigate against that risk, and the state functionaries don’t follow those criteria, what other conclusion can be reached?

Is it a culture of racism or is it simply (subconscious?) bias on the part of immigration officers? 

When the only thing that seems to separate so many decisions is the colour of someone’s skin it is very hard to conclude that there isn't a racist subculture within the immigration department. It's impossible to conclude otherwise when white people who don't meet the criteria are approved for a Visa and non-white people who do, are not.

I take no comfort in writing about this, because it calls into question the way New Zealanders perceive themselves as being welcoming, tolerant and by and large, not racist. I think for the most part that is true but there's something about the culture of the immigration department, their training or simply their perception of ‘risk’ that leads them to treat similar applicants in different ways based on nothing more than nationality or race.

And someone needs to call them out on it.

Until next week...

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Tags: INZ

Four Visa Horsemen

Posted by Iain on Aug. 9, 2059, 3:08 p.m. in Immigration New Zealand

 

I am sometimes asked why we are more expensive than most immigration advisers. I respond, sounding immodest I know, because we employ the best, smartest immigration consultants and we deliver. You’d expect me to say that, right? Well, if that sounds like a self serving sales pitch, read on.

I wrote a blog last year about a case which demonstrates all that is wrong at the Immigration Department and why the smart wannabe migrant employs a very good immigration adviser to represent them. When living in NZ for the rest of your life is the goal, and raising your family somewhere safe and civilised, enjoying everything this country has to offer in an increasingly barmy world, is investing a few thousand more dollars too much of a price to pay?

The story I started to tell last year has just reached its climax and the ’four horsemen of the visa apocalypse’ have been slain.  I am happy, yet mentally exhausted to report, a positive outcome for the client who this week received their resident visas.

To briefly recap, the clients had four things going against them when we first consulted with them in 2017:

1.      They were Indian nationals (and yes, in my opinion, INZ does discriminate against Indian nationals); and

2.      The main applicant was a former international student (and the Government was, and remains, committed to ridding NZ of as many of them as they can and denying them the pathway to residence promised to them when they signed up to study in NZ at great cost); and

3.    The main applicant, post her NZ Master programme, was working as a ‘Retail Manager’ (for which INZ had issued her a work visa - take note of that); and

4.      The employer was a fast food business - in this case a Subway franchise.

I explained to the clients that any one of these four factors meant INZ would do everything in their power to decline their skilled migrant resident visa despite the case meeting all the rules to the letter. I went to great lengths knowing what lay ahead to ensure we had our facts straight and the evidence tight especially in relation to the nature of the role the client was filling at Subway.

I needed to be satisfied she was indeed the Manager of this business (there were two outlets she was running) and made most of the decisions in their operation, as managers might be doing. I had no doubt she was a Manager in every sense of the word. Her job was skilled despite it being with a fast food business.

INZ didn’t disappoint me and it declined the first application on the flawed grounds that the applicant was working ‘more’ as a ‘Supervisor’ than a ‘Manager’. Supervisor is not skilled under policy for this type of business. Their assessment of her role was wrong, or rather they ignored the facts,  but I could not get the senior managers to take another look. No one would listen and stop the clear injustice they were perpetrating. The senior managers supported the officers who lined up against the client.

This decision to decline the case was made despite client holding a valid work visa to be employed as a ‘Manager’ at the business. It is important to note that the same definitions as to what is a ‘skilled’ job apply for both work and resident visas. That then begs the question, how can you be acknowledged by INZ to be a Manager at work visa stage but not at residence when the job itself has not changed? In INZ’s world anything goes, especially when they want to decline a visa.

The obvious contradiction was either lost on INZ or they conveniently ignored it (in this case I am sure the latter). INZ demonstrated their stupidity (or vindictiveness) by suggesting that the job they had granted a work visa to because it was skilled, all of a sudden was not skilled for residence and therefore, no points could be awarded for it and the client failed to reach the 160 points required for residence. Everything I predicted INZ would do, they did. Case declined.

I had always expected that we would likely have to rely on the independent Immigration and Protection Tribunal (Appeal Authority) to pull INZ back into line.

I had no doubt we would win under appeal but we were thrown an interesting policy change lifeline which changed the strategy.

Around the time INZ declined the case, the Government introduced a new (stupid) rule that in essence says a job, even if unskilled when applying INZ task definitions, becomes skilled if the applicant earns $36.44 an hour.

Hmmm, I thought, INZ has already concluded this job is a supervisory one and not a manager and therefore is not skilled. If the employer now offers a (substantial) pay rise to the client to that magic new hourly rate, then the job becomes skilled and she must be awarded the 50 points for it. INZ could never say no.

I explained all of this to the clients and the employer who given INZ’s efforts to deny them residence once, were understandably sceptical. Trust me I said, I am right. The ‘effective hourly rate’ definition is not open to interpretation - if your job is unskilled by its tasks but you earn that particular hourly rate or higher, it is skilled and the points must be granted all other things being equal. Given the client had been working in the role for almost three years, INZ had verified her role with a forensic zeal I wish they’d apply to learning their own rules, I convinced the client that there’s simply no way INZ could argue that it was not ‘skilled’. They needed to have faith.

How wrong I was.

INZ settled on a line of thinking that was staggering. They argued the fact that because the employer had granted a significant pay rise to the applicant, that somehow made the job ‘not genuine’ and, scarcely believably, in doing so, the employer’s action represented ‘a threat to the integrity of the immigration system’. They never explained what the threat was however beyond the decision would lead to a resident visa potentially.

INZ wrote possibly the dumbest, most poorly argued ‘letter of concern’ I have seen in 30 years and that is saying something. Here was INZ, apparently with a straight face, arguing that if a client gets a pay rise to do a job INZ has said is not skilled, it cannot now be skilled because they were given the pay rise! That pay rise somehow represents a threat to a system that apparently has some ‘integrity’ and the job cannot not ‘genuine’.

Think about that for a minute.

Does that mean no migrant can ever get a pay rise if it takes them over a certain income threshold that opens the door to residence? INZ wants NZ employers to suppress migrant incomes? This, at a time the current Government is going to change immigration rules because migrants are, allegedly, being 'exploited' and being under paid and over worked?

I begged senior branch managers to get involved as I couldn’t make the case officer, or her immediate line managers, understand the utter stupidity and contradictions of their own argument. INZ was so hell bent on declining this case and defending an officer seriously out of her depth, they refused to help her see what to an 8 year old would be obvious. Unfortunately, in their usual ‘hands off’ fashion, these senior managers supported the officer and her immediate line superiors.

My rebuttal was 26 pages long and took over 30 hours to draft, refine and finally fire off to the department - I wont bore you with the detail of the arguments but focussed on the obvious - in what credible way could the applicant getting a pay rise represent a ‘threat to the integrity of the immigration system’ when the 'dollars per hour' definition is INZ's rule and the client simply met it? How could the job not be genuine when she has been working in that role for over two years?

Further, given INZ had granted this person a Work Visa to work as a ‘Retail Manager’ for this business, how could she not now be a Retail Manager at resident visa stage? And if she wasn’t now in their minds a Retail Manager that means the work visa she was on was invalid and the client had been working unlawfully for almost three years. No one at INZ commented on that obvious contradiction or the potentially parlous position it placed the client or her employer in. I suspect they were willing to turn a blind eye to this contradiction because it suited their twisted narrative.

I argued, if the Department could not understand (or were not interested in understanding) their own contradictory decisions through the life cycle of this client’s visa journey, I was happy to have her stay on her work visa as a ‘Manager’ because that was simply supplying me more legal ammunition if we had to take this to appeal. INZ had been warned.

Furthermore, if any logic ever applies to these people or this process, if someone has been working in a role for nearly three years it must be ‘genuine’ because it is real and that is what the word ‘genuine’ means. If an employer gives someone a pay rise (yes, it might be simply to ‘make’ an otherwise unskilled job ‘skilled’ and worth 50 points) that doesn’t represent any threat to anything, it represents an employer making a rational decision to secure and retain a migrant’s skills.

After years of being told that migrants continue to be exploited by not being paid enough, INZ was now trying to decline someone for being paid too much!

I have never been more frustrated in 30 years at the lengths that INZ went to in this case to decline these deserving migrants, not once, but twice.

However they played right into my hands by deciding in the first resident visa that the client was ‘more a supervisor’ than a ‘Manager’. They made that bed and I forced them to sleep in it.

I have now lost all faith that senior managers pay anything other than lip service to ‘putting the customer at the centre of everything we do’ (that isn’t a joke, it’s INZ’s ‘vision statement’). They abrogated their responsibilities to lead and left the decision making to an inexperienced officer with little knowledge of the rules she was required to apply and even worse English language abilities. They threw her right under a legal bus and should hang their heads in shame.

They put the customer through hell for 24 months with all their plans on hold (including the husband launching his own business start up which he is now doing).

The system is morally bankrupt, the Department employs people out of their depth, it has ineffective and weak 'leadership' and in any normal business heads would be rolling about now. But let's not kid ourselves, INZ is not a business - it is an all powerful state run monopoly that can act as it pleases and unless you have powerful advocates at your back, you are at their mercy.

The case took almost two years of fighting and hard graft but in the end the client got what they should have got over 12 months ago - a resident visa that they qualified for the minute one of them had the job offer with Subway.

It is clear to me and many others INZ has a thing against Indian applicants, former international students of all persuasions but in particular those from India, Retail Managers and fast food businesses.

I warned the clients from the start that they represented the four horsemen of the visa apocalypse to INZ but I was confident they could be slain. Even in my wildest nightmares I had no idea the lengths INZ would go to, to force these people out of the country that invited them to study here with the promise of a pathway to residence to follow.

And this, dear reader, is why you often pay us more than others. I have no doubt most immigration advisers could never have formulated the argument, connected the dots, used INZ’s dumb arguments against it, nor had the clout to ensure that INZ was always going to pay very close attention because the arguments came from IMMagine.

Until next week

Iain MacLeod

Southern Man

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Tags: INZ | immigration

New Zealand - Is It Really Closing It's Doors?

Posted by Iain on July 19, 2019, 2:23 p.m. in Immigration New Zealand

Immigration ‘cuts’ are back in the news this week and as usual the migrant world is in full panic mode. This is, to coin the phrase, ‘fake news’. However, drill down a little deeper and a very different, and depending where you come from, darker, picture is playing out.

In October 2016, in an attempt to block the pathway to residency to tens of thousands of international students to whom such a pathway had been promised, the then government increased the skilled migrant points "pass mark" significantly to 160.  They did this under the guise of improving ‘quality’, the real reason was having taken billions of dollars off international students, they decided they did not want most to hang around.

I wrote at the time the pass mark increase was the Government’s way of dealing to a problem of its own creation but to which it did not wish to confess. As a consequence, tens of thousands of international students, mainly from India, who had invested tens of thousands of dollars if not hundreds of thousands of dollars studying in New Zealand because the government here promised them a pathway to residence if they did, were effectively being shown the exit door.

We are now seeing the consequences of that but it is affecting different markets in different ways. I know a lot of South Africans have read the headline about ‘numbers being slashed’ and are now under the impression New Zealand is now closing the door. Not true.

If you compare all resident visas granted since 2010, the numbers of Indian, Chinese and South African citizens granted a visa under all categories looks like this (I’ve rounded the numbers off) for the years ending:

 

                     2010       2012     2014      2016       2018

 

India:            2500      3500      4375       6000      3152

 

China:            4030      3500      4633      5500       4800

 

South Africa:  1900     1035      1042       1250       1210

 

Drilling down even further and looking specifically at skilled migrant category applications, it is very much steady as she goes for South Africa, India is trending down rapidly and China is also on its way down.

Looking at INZs own published data, the number of Expressions of Interest (EOI) going into the skilled migrant pool has not changed much in recent times. That suggests demand for the available places is not increasing.

Historically, to meet its quota of 27,000 skilled migrant resident visas issued in any 12 month period with a variance of +/- 10%, 750 EOIs have needed to be selected every fortnight in order to achieve that targeted outcome. Tellingly, that target of 27,000 has not been reached in recent years, there’s always been unfilled places. That is largely because of the high pass mark of 160.

Looking at the most recent skilled migrant pool draws, INZ has been selecting between 600 and 650 a fortnight, significantly down on what is required to meet their own targets.

At the same time there has been an increase in those being granted resident visas who have been employed by an ‘accredited’ employer and I would expect this number to grow over the next 12-24 months as employers respond to high ‘pass marks’ for otherwise skilled migrants for whom no pathway exists for residence. These resident visas are included in the overall historical target of 27,000.

It is true that the current government has modestly reduced the current ‘target’ number of resident visas and they are now operating on an 18 month timeline, down from the traditional 24 month ’residence programme’ period. The current programme ends in December 2019 and new targets will be released in the next couple of months I expect. My money is on more smoke and mirrors when that happens but little effective change.

I suspect the current programme has been reduced from a two year cycle to 18 months because all three parties that have formed the current Government campaigned on reducing immigration levels and have spent much of the last two years trying to work out what exactly they really want in terms of immigration policy settings versus what they sold their voters.

The word we hear is that the junior coalition partner, New Zealand First (‘Mr 7%’ who in effect can veto anything and everything), might have a hand in the never ending delays in the Government announcing new immigration initiatives. For example, Work Visa policy which we were told would be rolled out about now I am currently hearing is not likely to be rolled out until the middle of 2020. I wouldn’t bet much that it will be then either.

There has also been a reduction in real terms of around 5000 skilled migrant places (which represents no more than the plus or minus 10%) over the last programme (I won’t bore you with the maths) but given the Government hasn't come close to filling the 27,000 in recent years, the ‘reduction’ is simply confirming what has already been happening. A case of smoke and mirrors if ever there was one. New Zealand is not officially reducing numbers (unless arguably you are an international student and/or from India). They were already being reduced thanks to the last Government.

Having said all of that we were shocked when 10 days ago a very senior immigration manager advised us that skilled migrant resident visa allocation times would now be seven months. That is up from three months at the beginning of this year. The senior manager suggested that was because increased demand was causing a backlog.

Into the numbers we once again dived to see what was really going on and to see if we could explain it.

Typically, the numbers tell a different story to what the media has reported and what INZ is saying. There is no doubt that the number of skilled migrant resident visa applications that have been filed but not yet processed has increased significantly in recent months but that has nothing to do with demand nor the government significantly cutting the number of places available to those Visa applicants - it is a simple reflection of the inability of INZ to get its act together to the point where they can continue making decisions at the rate they traditionally have.

How did this happen?

Apart from not being able to organise a good knees up in a brewery, I think the real reason explaining the increase in applications sitting idle in the system is because INZ "Managers" decided to condense a three year program of restructuring including bringing skilled migrant resident visa processing onshore and under one roof at the same time as they were moving towards an electronic visa processing system, into 18 months. It has caused chaos. INZ is a shambles at the best of times but I have never seen it more shambolic than it is today.

At the same time the normal churn in immigration officers continues and it is horrifying to think that every year around one third of all immigration officers resign and need to be replaced. As I recently pointed out in a call to a number of senior INZ managers, they are operating in the same labour market that the rest of us are, where anybody with half a brain, the right attitude and good English is actually already working and therefore INZ is having to scrape the bottom of the labour market barrel to replace the scores that leave every year. This is a complicated game where it takes the best of minds several years to be knowledgeable enough to know what you are doing - these officers are let loose after a few short weeks.

Lack of experienced staff and ineffectual leadership it seems to me is the real reason why applications are piling up.

I therefore urge those of you that spend your lives taking advice from those with an opinion, but little real understanding of what is going on in the visa world (my world), who believe all that is written on those online chat groups and migrant forums along with dear old Facebook to treat with great caution whatever you might be reading about New Zealand closing its doors. It is not closing its doors, this Government knows we still need every skilled migrant we can attract as we continue to create thousands of jobs every month and we don't have people to fill them.

They have however got an Immigration Department that is in a state of chaos and that, and that alone, is leading to blow outs in processing times and may well mean a reduction in ‘approvals’. That has nothing to do with an official ‘cut'.

So, rest easy. The door is still well open

Until next week...

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Tags: INZ

Does INZ Have a Hidden Agenda?

Posted by Iain on April 13, 2018, 6:27 p.m. in Immigration

Those of you who have attended one of my talks know about my four golden rules of surviving immigration bureaucracy without losing your marbles:

  • Assume nothing about your eligibility.
  • Suspend logic.
  • Just when you think you understand the visa rules your application will be processed by an immigration officer who does not know their own rules.
  • Treat with great caution whatever you read on the Immigration Department’s website.

There could be a fifth:

  • INZ is sometimes working to an agenda hidden from the public. 

And this is the subject of today's blog.

INZ always deny it, but when certain cases are historically assessed in one fashion and then - without any change in rules - outcomes start to change, it simply has to be a case of golden rule #3 above, or it could mean that someone, somewhere (could be a politician, could be a senior INZ Manager) has decided that the same rule can be interpreted in a different way to deal with a ‘problem’ and so deliver outcomes that serve a purpose other than the expressed aim and intent of the policy under which the migrant has applied.

We have just been through the excruciating process of dealing with INZ over an Indian national who came to NZ as a student. At the end of her course, she found ‘relevant’ employment which, in time, led to a promotion to Store Manager and which then evolved into a multi-store Management role. This role is largely autonomous and the owners of the business these days have little to do with the operation of it – they have found a highly skilled and highly competent Manager who runs these stores better and more profitably than they ever could.

The Skilled Migrant category is meant to be ‘occupation blind’ – by that I mean no consideration is to be given to whether we ‘need’ more Managers or Electricians or Teachers or Software Developers. If a job is skilled, it should get the points.

What is a ‘skilled’ job if you are a Manager? Simple really – it is one which requires ‘managerial expertise’. That’s it. 

The case referred to here was declined on the basis that INZ tried to convince themselves that the applicant is not a Manager. They didn’t tell the applicant what they thought she was, only that she was not a Manager.  They agreed that she was 80% a Manager and 20% something else. What that something else was nobody knows.

The argument that was presented to INZ was watertight – the tasks of this individual were at least an 80% match to the tasks that a Manager might carry out using INZ’s own reference materials, and in fact - it was argued - was closer to 100%.

The case was declined on the basis that of the 8 tasks they might choose to compare her role to what they believe Managers do, there were two that she didn’t do enough of.

INZ argued that those two remaining tasks were in fact key to being a Retail Manager and although the applicant was involved in these tasks, she wasn’t doing so to a high enough level. As a consequence, the applicant failed the ‘substantial match’ test which says that the applicant’s daily tasks must be ‘substantially consistent’ with an occupation in the Australia New Zealand Standard Classification of Occupations, or ANZSCO. 

In this case, even doing 80% (6 out of the 8 listed) was not considered a ‘substantial match’. 

The Collins Dictionary defines substantial as ‘large in amount or degree’. They offer this example:

The party has just lost office and with it a substantial number of seats.

To INZ, this must surely mean that the political party lost all of its seats. I think those of us who understand the word ‘substantial’ might suggest that the Party still has some seats in the Parliament.

ANZSCO is a reference tool created by the Statistics Departments of Australia and New Zealand which lists (as far as they can tell) all the occupations known to mankind and the usual tasks associated with each. It is, according to the immigration rules, to be the primary source of information used in the ‘substantial match’ test. 

Naturally, many similar jobs have some overlapping tasks. This means immigration officers have to apply their minds in an objective way and assess the case on its merits. 

This is when the opportunity presents itself to apply the shadowy golden rule #5. Officers apply the hidden agenda by arguing (usually with a straight face) that, in spite of the overwhelming evidence, a person is more something else than what they or their employer says they are. In effect, INZ predetermines what outcome they want. I have read enough to believe that their political or managerial masters don’t want as many Retail Managers in NZ despite it being skilled, so they find ways to decline them. 

Not to get too technical on you but in terms of process (not followed, in this case) an officer must first determine ‘whether the work experience is in employment that is substantially consistent with the ANZSCO Occupation (6-digit) level description for the skilled employment occupation’.

In the case of a Manager, that 6 digit lead definition requires INZ to answer the question: does this person who claims to be a Manager of two stores ‘organise and control the operations of a retail trading establishment’?

The evidence in this case was an overwhelming ‘yes’. The owners said she did. The evidence said she did. However, the officer skipped over that first step (you have to wonder why?) and went straight to the second step which says that if INZ is ‘…unable to determine a substantial match to the ANZSCO occupation, (they) may also assess whether the previous employment displays the characteristics of that occupation in terms of the relevant ANZSCO ‘Unit Group’ (4-digit) level description of tasks for that role.’

The ‘Unit Group’ is where the task list comes into the picture - the list of usual tasks that occupation might involve. In the case of a Retail Manager there are 8 usual tasks and in this case, the officer agreed that the applicant does 6 but the last two not enough or at a high enough level. So in this case, even though INZ agreed that there was at least an 80% task match, this was not good enough and the case was declined. 

‘…displays the characteristics of that occupation’ is a long way from an exact match and a reasonable person would likely conclude that if your tasks are at least an 80% match you are certainly ‘displaying the characteristics’ of it.

It is insightful that in independent appeals on decisions like this the Immigration and Protection Tribunal (IPT) has consistently ruled that INZ does not get to decide how important each of those tasks is relative to one another but simply whether the applicant does them. INZ agreed this applicant does 6 of the 8 and is involved in the last two.

So, how you might ask, could the case be declined? 

There’s only two explanations - the officer and his superior who signed off on the decision should be considering career changes to something less intellectually challenging, or there is indeed an agenda at play. I have written about it before and INZ can deny it all they like, but you don’t have to look very far to see the evidence of it.

Two years ago, the then Government started making noises about the ‘dumbing down’ of the skilled migrant category where the average salaries of skilled migrants was heading down (sharply) and Retail Manager and Chef, being the two most common occupations of skilled migrants, were largely the reason.

Who were these applicants? Indians, by and large – tens of thousands of them who had often done relatively low level academic courses in NZ and who were securing relatively low paying but still skilled jobs as Retail Managers and Chefs. Instead of being transparent and honest with the market (and all those tens of thousands of mainly Indian students lured to NZ by a Government wanting to grow its export education market, unscrupulous education agents and NZ education institutions looking for quick money) and dropping these occupations from the list of what is skilled, a way had to be found to deal with the problem. 

How have they done it?

Exactly what this applicant experienced – find a reason, however illogical, to decline. Argue that an applicant is ‘more something else’ than what they claim to be. If you are an applicant dealing with the system on your own how can you fight that? INZ simply washes their hands at that stage and says ‘if you don’t believe us, go and appeal it’. The fact that costs thousands more dollars than most young former international students have and takes around a year, undermining current employment because the employer starts to think the migrant might not now be around long term, means most applicants give up at that point and leave the country.

Problem solved!

The system is intellectually, and to a large degree, morally bankrupt and while I know anyone in INZ reading this will tell themselves this is not the way they operate I believe they are delusional and/or in denial – having worked at this coal face for nigh on 30 years I know exactly how they work and what makes them tick.

Someone, be it senior INZ Managers or their political masters, don’t want to approve Retail Managers, particularly those in Franchise operations and they will ignore the overwhelming evidence to deliver the outcomes they have been told or decided (unofficially of course and you’ll find no record directing anyone) to deliver. 

The misery that causes is repugnant to me when all people are doing is following INZ’s rulebook – unfortunately migrants don’t appreciate that no one ever really holds INZ accountable and this case is a prime example where INZ feels they can quite readily ignore their own rules, processes and some very clear directives of the independent Immigration and Protection Tribunal.

Until next week...

Iain MacLeod, Southern Man


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NZ First & Labour: What Does the New Government Mean for Immigration?

Posted by Iain on Oct. 19, 2017, 10:40 p.m. in Politics

A few minutes ago the Leader of the NZ First political party - which gained a little over 7% of the popular vote in elections two week ago - announced it is forming a coalition with the Labour Party and the coalition will be supported outside of cabinet by the Green Party. 

Already my inbox is filling up with ‘What does it mean for my chances of moving to NZ?’ emails.

Without wishing to sound like the aforementioned political leader, if you read my blogs you’ll know that my view has been (and nothing has changed with this announcement today):

  • There will be no significant change to skilled migration policies or targets. In recent years the economy has created around 60,000 mainly skilled jobs each and every year. We simply do not produce the skills locally to fill them. These Politicians know that only too well, and the country desperately needs these skills to enable the new Government to fulfil its promises.
  • International Students are going to get the knife between the shoulder blades. Again. The Labour Party made clear in their manifesto just before the election they intended raising the bar on what courses international students will have to do to be eligible for graduate work visas at the end of their study and if they find skilled employment, resident visas. 

Today the Leader of NZ First all but confirmed my suspicions as he ‘anointed’ the Labour Party and their Green Party sidekicks. Don't be too concerned if you are highly skilled but be very worried if you are in NZ studying or planning on doing so.

Those applying to study in New Zealand are defined as ‘migrants’ and all the hot air coming from New Zealand First in recent years that we are being overrun by foreigners was clearly bogus and played on a wide mis-understanding as to how ‘migrants’ are defined. NZ has become a very popular place to study but it is quite true that at least half those coming to study were using it as a spring board to try and get residence. Some got it, most did not.

People were confused that students and many work visa holders were considered as ‘migrants’. I think most of us think of migrants as people moving permanently to a country - not those coming to study for 2-3 years or have working holidays for a year or two.

That is the reason we have had ‘record’ numbers of migrants - tens of thousands of international students. Not permanent residents.

That ignorance has been exploited election after election by NZ First. 

What the public has never been told by this politician is that the numbers of resident visas being granted every year has not changed. Not this year, not last year, not five years go. In fact, skilled migrant resident visas have also fallen as the Government pushed up ‘pass marks’ for skilled migrants in order to deal to the problems it created by promising international students a pathway to residence.

The Labour Party which forms the biggest bloc in the new parliament has always been pro-immigration.

It is insightful that the Leader of NZ First at his Press Conference confirmed that New Zealand continues to need and welcome skilled migrants, does not want low skilled ones and that international students should be coming to study. Which is precisely what the outgoing Government recognised — just too late electorally which was a bad miscalculation on their part. They have paid the price for seeming to have no solutions to population driven house value increases and infrastructure pressures - particularly in Auckland.

So watch for announcements in the next few weeks taking aim squarely at reducing pathways to residence for international students in order to take the heat off skilled migrants. That is a good thing as it should then allow pass marks to fall and those that can contribute most to the country will continue to be welcomed.

My pick is the new Government will leave the pass mark at its current historical high for a few months to carry on the (bogus) message of ’toughening and tightening up’ message. Then it may well fall back to levels where the current target of 27,000 skilled migrants and their families might be met. In the meantime it’ll be spun as ‘quality over quantity’.

Foreign buyers will be limited from purchasing of existing residential property but that is common in many countries. My pick is we will follow Australia's pathway of allowing foreign buyers to buy sections and build. Maybe.

Potential skilled migrants in my view should sleep well tonight.


The Politics of Immigration

Posted by Iain on June 12, 2017, 12:53 a.m. in Immigration

"Labour attempts to pick low hanging immigration fruit...that's already been eaten" - Iain MacLeod, Managing Director, IMMagine Australia & New Zealand Immigration Specialists

The Labour Party’s announcement today that they will make moderate cuts to immigration numbers will make no significant difference to the numbers of permanent migrants coming to New Zealand.

Putting the brakes on the numbers of students transitioning to work and potentially resident visas is a move that will, later this year, have enormous potential impact on thousands of international students that were studying with a clear intention to use the pathway to residence created by the Government. Clearly, an informed Labour Party is aware that the National Party had already played this card. Having promised cuts in the ‘tens of thousands’, I guess they had to come up with something, somehow.

Just as the Government hasn’t actually cut a single visa from its residence programme, it appears neither has Labour in its announcement today.

It’s all smoke and mirrors designed to take the wind of our of NZ First’s sails. 

No one suggests that many of the jobs currently being filled by temporary work or student visa holders shouldn’t be filled by locals, they should – but most employers will tell you those young Kiwis are not around to fill these roles or don’t want the work.

Denying many employers casual migrant labour might make a headline and take a few votes off Winston Peters but it’ll be interesting to see what ideas the Labour Party comes up with to reform our welfare entitlements to ensure there are young New Zealanders being ‘encouraged’ to fill these roles. Let’s hope so because there are going to be lots of vacancies. (Labour provided the example of a paediatric oncologist as benefitting from "their" changes – truth be told, anyone with these skills and qualifications would always have qualified for residence: would under National’s upcoming changes and will under Labour’s proposed rules.)

On the plus side, there is no doubt the changes announced by the National Party earlier this year and the announcements by the Opposition today will increase labour market shortages particularly in hospitality and tourism, creating plenty of opportunities for young New Zealanders to find employment in these sectors and in other casual work.

The export education industry will take another hit with these changes. The Government’s (quietly dropped) goal of it becoming a $5 billion a year industry just took another politically inspired hit.

Iain MacLeod, Managing Director, IMMagine Australia & New Zealand Immigration Specialists


Visa Application Centres and How They Break the Law

Posted by Iain on March 26, 2017, 12:15 p.m. in Visas

In recent years we have witnessed increasing use of Visa Application Centres by Immigration New Zealand (INZ) around the world to ostensibly receive and pass along visa applications to the NZ Government.

Their role, we were told in the early days, was simply to ‘act like a Post Office’ and receipt visa applications before passing them along to their closest INZ office for processing.

These VACs are not owned and not operated by INZ nor the people of New Zealand. These centres are run by the private sector, for-profit third parties that have ‘partnered’ with the New Zealand Government.

The idea was to outsource this receipting function thus freeing up resources for INZ to re-deploy elsewhere and/or allowing them to save their own costs by needing fewer staff. The VACs are tasked with checking to see if applications meet minimum lodgement requirements.

In what might be termed ‘mission creep’, the VACs have been going far beyond merely receipting applications and they have strayed into dangerous and potentially very embarrassing territory.

The problem is they routinely appear to go beyond their mandate and routinely provide immigration advice.

This is illegal under NZ law, pure and simple. If you provide immigration advice - which is defined as ‘using your knowledge’ of visa processes or ‘interpreting’ rules and regulations to assist someone (even in filing out in application form) - whether for profit or just out of the goodness of your heart, unless you are exempt from holding a license you either get a license or keep your mouth shut.

Hardly a visit to these VACs goes by when our clients go to drop off fully and correctly documented applications that we have prepared for them without them being told there is some document missing or that they haven’t presented everything required to secure the visa.

Naturally it is garbage – our applications are always fully and correctly documented.

That is extremely frustrating and has often led to clients being sent away to get additional and totally unnecessary documents.

Recently a client was filing a Visitor Visa we had prepared on the basis she was in a relationship with a New Zealander and was travelling to NZ to be with him. The VAC person told her she needed his NZ birth certificate. She was sent away to get it. In a panic she called him in NZ and he scrambled around to get one emailed to her. He angrily emailed us. 

We reconfirmed that what we had asked his girlfriend to present was 100% correct. His birth certificate is not only not a lodgement requirement for the receipt of an application of this type, nor is it required for the visa to be approved. This cost her three hours out of her day, a panicking sponsor in NZ and my staff answering angry ‘what is going on?’ emails at 11pm at night.

In another recent case a client tried to file her Partnership based work visa so she and her children could join her husband in NZ (he was here working). The staff member at the VAC demanded a copy of his employment contract. If that had been a requirement or even helpful, we would have told her to submit it. However, not only is this not a requirement, given INZ had on record that they had issued her husband a work visa a few weeks previously they’d check it before processing and approving her visa (one might add, obviously).

She stood firm and told the VAC employee that she trusted her Advisers to have got this right and she demanded they receipt it. Eventually they did.

However it is demanding a lot of our clients to stand up to these VAC people when in the mind of the client these clowns stand between them and their loved ones in NZ.

The problem INZ and the NZ Government has with this relationship is the staff of the VAC under NZ law are unable to provide immigration advice. To do so risks prosecution in NZ.

These people are not exempt from holding licenses to provide advice.

Therefore it seems pretty obvious to me they are breaking the law every time they tell anyone who wishes to lodge a temporary visa that they require anything more than an application form, a passport and a fee. These three documents are generally the only mandatory documents required for a visa to be accepted for processing. It is then up to an immigration officer (and these VAC people are not warranted immigration officers) to determine what additional evidence might be required and communicate that to the applicant or via their Adviser.

INZ management as recently as this morning has confirmed that the VAC staff routinely step over this legal boundary.

In response they have advised me they are going to do further ‘training’ of their VAC partners and tell them what constitutes advice and what doesn’t, they are going to put posters up on the walls (!) of the VAC offices around the world advising people that these VAC staff are not able to give immigration advice (and to call some 0800 or 0900 number if they want advice) and they have met with the Registrar of the Immigration Advisers Licensing Authority (who previously worked for INZ) to try and, I suspect, make all of this ‘advice’ being dished out appear legal.

I hope the Registrar has explained to INZ that the role of these VACs is incompatible with the licensing legislation that defines what is and isn’t immigration advice and what people without licenses can and cannot do whether they are commercial partners with INZ or not.

INZ has advised me that their VAC partners will be told to work off ‘INZ checklists’ as if that somehow means that these people are not, or will not, be giving advice.

Under the 2007 Act that governs what immigration advice is, that extends to ‘interpreting’ information. 

If the IAA Registrar has indeed advised INZ that if the VAC staff are given checklists and those checklists to be used to record what is being presented to INZ, then those checklists it appears to me can only legally be the minimum lodgement requirements of form, fee and passport. Because if they check the supporting information presented with a visa application and then tell a client ‘this is acceptable or this is not acceptable’ or ‘it would be better if you added this document or that document...’, that is clearly giving immigration advice which is unlawful.

I’d be very surprised if the IAA has advised INZ of this as has been claimed because it then calls into serious question why my business spends $2000 per licensed adviser each and every year for a practicing certificate. We also give clients checklists and explanatory notes on what is required to secure visas yet that demands a license at great cost.

I struggle to see the difference between what the VAC staff are doing and what we do (except our advice is always accurate).

INZ and the registrar are very aware of these concerns and have scrambled of late under threat of complaints being filed against these VACs.

We now advise all our staff when dropping off visa applications that we have prepared to:

 

  1. Get the persons name they are dealing with at the VAC;
  2. The time of the meeting;
  3. Record if they are given any feedback or advice on the ‘fitness’ of the evidence we have told them to present or whether any additional documents are ‘required, necessary or even just helpful’ to either receipt the application or for the assessment of the visa

 

If you are doing a visa application yourself I strongly suggest you do the same.

This whole VAC relationship with INZ is a farce which has cost applicants dearly in more ways than one. It has ended up allowing INZ to cut their costs through outsourcing a receipting function yet they never cut their own processing fees as a consequence. For many applicants the VAC represents an additional cost of around 40% to the ‘old’ cost of processing their visa.

Nothing is easier for the customer. Nothing is faster (in fact it adds time). Certainly it isn’t cheaper.

It is also, I strongly believe, illegal.

INZ is not going to be able to stop its partners giving out what is demonstrably immigration advice when applicants go to file their applications and the relationship is untenable under the Immigration Advisers Licensing Act 2007.

To not rip up the contract with the VAC is to court serious political embarrassment – imagine if in this election year the Government - which a few years ago supported a legislative change to make those who give advice be licensed in order to protect ‘vulnerable migrants’ from poor immigration advice - it is found to be partnering with a company that employs unlicensed advisers?

Not sure I’d want to be the Minister fronting that news conference.

Until next week...

Iain MacLeod

Southern Man – Letters from New Zealand

Tags: INZ

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