SOUTHERN MAN IMMIGRATION BLOG

Four Visa Horsemen

August 9, 2019
Iain MacLeod

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.

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