SOUTHERN MAN IMMIGRATION BLOG

Let’s Rip Up The Rulebook!

January 23, 2014
Iain MacLeod

“If you hadn’t been representing the client, the visa would never have been approved”. These words from a Branch Manager to me this week when I refused to give up on a Visitor Visa application that one of her staff wanted to effectively decline.

Nice validation of the value we offer clients but it became unpleasant, frustrating and oh so avoidable.

The client, a Philippine national living in Singapore needed a Visitor Visa so he could fly to New Zealand, explore employment opportunities and if successful in finding skilled employment allow us to file applications for Work and Resident Visas for him and his family.

We took him on as a client because, with an offer of skilled employment, he will meet all the criteria for skilled migrant residency.

But, as we so often do, we ran into the conflict between the aim and intent of Visitor, Work and Resident Visas and to boot, we ended up with an officer with a subjective view of residence policy rather than an objective one.

To get jobs, overwhelmingly clients need to be in New Zealand. It isn’t the law, it is a reality imposed on migrants by employers. In the mind of the employer why would they offer someone work they have never met, who may not be all that serious, who has not demonstrated they are linguistically and culturally compatible and who is worth employing? Instead of demanding employers fit in with the Immigration Department there is an argument the Department should fit in with employers.

This ‘Look, See and Decide’ Visa issue that has occupied several pages of this blog in recent times was seen as part of the solution to this gap between employers and potential skilled migrants. The trouble is most immigration officers either are not aware of the memo that recognised the solution or have conveniently chosen to forget it.

This Visitor Visa is supposed to be given to someone who can satisfy the Department that they do not present an unacceptable risk of overstaying their visa in New Zealand if they do not find employment; who we have demonstrated have more than sufficient funds to support themselves on their trip (and then some usually); who have demonstrated they are employable in skilled positions and who are usually travelling alone, leaving their family behind (what greater incentive could there be for leaving if the client cannot find employment?).

How frustrating then to be told by the case officer my client is not skilled enough (his occupation is on the skilled occupation list), that he does not have recognised qualifications (doesn’t need them, with a skilled job in NZ he has enough points without needing any qualifications); is not in an occupation on the skills shortage list (skilled migrants don’t need to be and 90% are not….) and that my client is a risk of not leaving New Zealand.

While, eventually a visa would be granted it was of a type that would not, under any circumstances allow him to change his status. So as I explained to all the higher powers involved in this drama inside the Department, the applicant needs to be able to change to a Work Visa as and when he finds employment in New Zealand.

Me being me, I went to the case officer’s Branch Manager and when she started circling the wagons around her staff, I went to the Regional Manager.

This week they reversed their decision and gave him a ‘normal’ Visitor Visa. He has no idea of the emails, the phone calls, the arguments – if he did, he’d probably have thought he was not as welcome in NZ as the Immigration Department’s website told him he is.

What continues to frustrate me is that the Immigration Department officials think they have the right to make up rules that do not exist and to subjectively sit in judgement on applicants that tick all the policy boxes.

To be told this week that in the view of the officer and the Branch Manager the client would not add much to New Zealand was nothing short of an outrage. As I pointed out officers do not write the rules – they implement them. This client’s occupation appears on the list of occupations that will lead to residency irrespective of what the officer, me or anyone else might think about whether his skills are good for New Zealand or not.

At the same time my colleague Paul is battling a separate bunch of immigration officers over a question of whether non-custodial parent consent is required for a 17 year old to leave South Africa. South African law says that ‘children’ aged 17 can make their own choices – custody effectively no longer applies. The NZ Immigration Department is demanding a witnessed statement from the non-custodial parent (who lives in another country) giving his permission for his son to move to New Zealand. Paul has presented sensible legal argument (sitting up till 10pm preparing it) why this is absurd and not Government policy but he is being met with a brick wall. Yet another example of the Department making up rules on the hoof and not applying the rules in their own rule book.

And herein lies the sort of challenge we face as Advisers every day. There is, we sometime have to remind ourselves, a rule book and there are immigration officers who apply their own rules based on their own world views and opinions.

Hardly a way to ensure consistent, fair and transparent processes for applicants.

Of course this is in part what keeps us in business and we are grateful to an extent for this chaos. Unfortunately it causes a lot of unnecessary and avoidable stress for clients at a time when the Department should be working with us, experts in immigration law and process, to limit it.

They speak of us being ‘trusted partners’ when it is clear they do not trust our judgment at all. So we got the visa but only it seems because I am like a dog with a bone. As I explained to the Branch Manager over coffee, to decline the visa would have been to suggest I had got it wrong in advising the client to move forward with a visa application and residence and while we are not infallible our success rate suggests overwhelmingly we are very good at picking those that meet Government criteria and those who do not.

And if the Department wants to challenge that expertise and experience they need to have very very good arguments ready. Simply deciding someone might not be ‘very good for New Zealand’ is not part of their job description and we will continue to hold them accountable.

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