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Posts in category: Visas

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Migrating is more than just filling in forms and submitting paperwork; its a complex process that will test even the most resilient of people. Understanding Australia & New Zealand at a grass-roots level is paramount to your immigration survival, and to give you a realistic view of both countries, its people and how we see the world, as well as updates about any current or imminent policy changes, subscribe to our regular blog posts by entering your details below.

Holding immigration bureaucrats to account

Posted by Iain on April 30, 2021, 5:02 p.m. in Visas

I have always been a political animal. Which is to say I take an interest in how politics can be a vehicle for improving people’s lives - materially, spiritually and delivering a cohesive and harmonious society. I vividly recall when I was around ten years old, so we are talking mid 1970s, having a discussion with my uncle who was very involved with the New Zealand National Party who counselled me, ‘Remember nephew, there are two governments in New Zealand - the elected Government and the permanent Government. The latter wields far more power than the former’.

 

He was essentially saying the Civil service is the permanent Government.

 

That seemed bizarre to a ten year old who understood we voted in politicians every three years to run things.

 

Okay, so I was also an idealist but i was ten, I thought the world was fair. My descent into political cynicism began that day.

 

I was reminded of my uncle’s political worldview when, two weeks ago, the Ombudsman released his findings into a complaint laid against Immigration New Zealand for, in effect, making rules up as they go along.

 

The complaint was about INZ’s decision to arbitrarily decide some skilled migrant applicants were going to be prioritised over others, despite there being no official rule allowing this. Many of you will recall that as soon as the skilled migrant category processing backlog worsened over two years ago INZ decided that to ‘manage’ that they would introduce three criteria to ‘prioritise’ some applicants over others. These were based on the primary applicant:

 

1.     Working in NZ in an occupation that required statutory registration; or

2.     Earning twice the median salary (roughly $106,080 today) or

3.     Held a work to residence visa

 

They quickly dropped the third when they realised the numbers in the third ‘cohort’ was growing faster than the overall numbers in the category.

 

I asked the ranking Manager at the time upon whose authority they decided these priorities? I was told discussions had taken place between the SMC team (senior) managers and the National Border Manager. So INZ decided to do this without any political permission.

 

What was so special about those working in New Zealand in occupations requiring statutory registration over those that were not working in such occupations I asked?

 

I was told that those people had a higher impact on human wellbeing and represented better ‘value'.

 

I replied with ‘So why are Veterinarians getting priority? They deal in animals, not humans.’ Silence.

 

And what is so valuable about real estate agents (requiring statutory registration) compared say to a Civil Engineer or Software Developer earning $105,000 who does not require registration? What is so valuable about them over the engineer of software developer?

 

As always INZ management shrugged their collective shoulders and said this is the way it is going to be. Get over it in other words - we can do what we wish.

 

It took many months before they were challenged through the Office of the Ombudsman.

 

INZ’s error, it was pointed out by the Ombudsman, was it did not get ‘sign off’ from the Minister of Immigration before they made this arbitrary decision among themselves and quite simply what they did was unreasonable (I note not illegal necessarily but I think it probably was). They carried on applying these random criteria and it was only many months later in February 2020 that they got Ministerial sign off to make it official.

 

This highlights a couple of major problems.

 

One is the role of the Minister and the other is who is actually running the immigration circus.

 

Clearly INZ management feel emboldened enough to act unilaterally, without getting sign off from their Minister, as if they are the elected Government. People like us point out this fundamental flaw to them all the time and it is interesting they feel they are never going to be held to account so they carry on doing whatever they choose. They can literally make stuff up as they go along to suit their own ends. In recent years we have noticed this more and more - as if they are accountable to no one. Rules increasingly don’t matter because there is no one telling them to pull their heads in.

 

The second issue is political accountability and exercising control over the immigration portfolio. We have developed an immigration system where it seems successive Minsters, of all political colours, are led by the nose by INZ management, where for the most part Ministers do what they are told to do by INZ. This is a classic example of that.

 

I haven’t heard a word pass the minister’s lips about how the future will be different since his immigration department was rapped over the knuckles by the Ombudsman.

 

It is impossible to escape the conclusion that all the major political parties see immigration as an adjunct to other more (politically) important priorities. Health, education, social security in that order. Everything else is subordinate to that.

 

Which means I imagine the current Minister lacks the interest, will and energy to pull these bureaucrats back into line. The Ombudsman had to. That is an utter failure of political leadershp and an abborgation of his responsibility.

 

It took the Ombudsman to rule that what INZ did in prioritising some applicants over others, when all had paid the same fee and all had the same processing expectation was ‘unreasonable’ until the Minister made the priority processing ‘official’ in February 2020, months after INZ's action. He ruled that they should apologise and that anyone negatively affected should have their fees refunded. Talk about a slap over the wrist with a wet bus ticket.

 

All well and good but the problem with that is many negatively affected by INZ’s decision are probably no longer in the country. What do they gain by this ruling having been invited to apply for residence under one set of published rules, then finding, against any measure of fairness, that they are no longer as important as the next applicant and were bring shunted into a two year ‘managed queue’ that has been going nowhere fast?

 

Has any bureaucrat or INZ manager been sanctioned, suspended or lost their job over the treatment to these thousands of vulnerable migrants?

 

Not as far as I am aware.

 

Will any immigration department Manager ever learn that they cannot act unilaterally in future to set or change rules without first getting sign off from the Minister?

 

You’d like to think so but I am not holding my breath. These guys are a law unto themselves.

 

Bringing them to heel would require political leadership and a bit of fist thumping on the table. Which would require political leadership so I don't expect it will happen.

 

INZ will, I have little doubt, continue to treat applicants with contempt showing just where the real power in Government lies.

 

Until next week

 

Iain MacLeod

Southern Man


Where to Study in Australia

Posted by Myer on Aug. 9, 2018, 11:32 a.m. in Visas

 

If you know some of the pitfalls in the process, student visas can be a useful pathway to not only acquiring an Australian qualification but potentially a pathway to obtaining permanent residence. However the location of your studies in Australia is as important as the subject matter of your studies.

Of course you have to satisfy a number of requirements including a genuine temporary entry criteria relating to student visas, and have to have sufficient funds to pay for your studies which can be quite pricey as an international student.

A student visa does allow you to work for 40 hours per fortnight as well as your spouse or partner and you have unlimited work rights when your course is not in session. This can help offset some of the living costs as well as gaining work experience in the Australian environment.

There are some advantages to studying towards a degree in Australia (two years of study required) or studying for a course that is on the medium to long-term skills shortages list. As either option could entitle you to either a two-year post study work visa (in the case of a degree) or at least an 18 month graduate work visa in the case of studying for a suitable course in an occupation on the medium to long-term skill shortages list.

While the Government does not endorse Australian study as a pathway to permanent residence, progressing from the temporary work visas to permanent residence is largely dictated by where you study in Australia.

There are two ways to obtain permanent residence, either:

1.       through nomination by your employer in one of two schemes, the employer nomination scheme or regionally sponsored migration scheme or

2.       through general skilled migration visas which are points tested and don’t require you to obtain an offer of employment.

This blog is largely focused upon pathway 2 above i.e. the pathways that are available under general skilled migration visas.

Because of the very high pass mark for the independent general skilled migration visa (the type of general skilled migration visa that does not require state sponsorship) more and more applicants for general skilled migration visas are relying upon state sponsorship as a pathway to securing permanent residence.

There are eight states or territories that produce lists of occupations that they will sponsor depending upon the needs of the economy of that particular state. However, because the pass mark for the independent general skilled migration visa is so high (in the region of 70/75 points for most occupations) more and more people are relying upon state sponsorship to obtain permanent residence.

As we don’t know in advance which occupations will appear on state sponsorship lists or what the quota is for a particular occupation should an occupation appear on a state sponsorship list, it’s impossible to know what qualification you should be studying that will improve your chances of gaining residence.

There are three states that will consider you for state sponsorship irrespective of whether your occupation appears on a state sponsorship list. These states are South Australia, ACT and Tasmania although Queensland does have a separate list for those who have studied in Queensland in certain occupations.

To give you a practical example Betty is a 23 year old student travelling to South Australia to complete a bachelor’s degree in marketing. She completed a diploma level qualification in Singapore in marketing and will be studying at least two academic years towards a bachelor’s degree in marketing.

At the end of her studies she can apply for a post study work visa. It will be valid for a period of two years and having this visa will enhance her employment options because most employers in Australia would prefer to employ those who have work rights. Once she completes one year of work experience in Adelaide she can then obtain a positive skills assessment as a marketing specialist if her year of employment is a close match for a marketing specialist.

Even if the occupation of marketing specialist doesn’t appear on the South Australia state sponsorship list she can nonetheless apply for state sponsorship for South Australia (assuming that she scores 65 points, has adequate English language ability and meets other requirements of a general skilled migration visa). This is greatly advantageous because the occupation of marketing specialist very rarely appears on state sponsorship lists.

She wouldn’t be able to do this if she studied for the same qualification in New South Wales. New South Wales does not give credit to those people studying for occupations that don’t appear on state sponsorship lists like some other states. It is critical to not only study for a qualification that is going to benefit you from a career perspective, but careful consideration of where you study in Australia is important if your end goal is to obtain permanent residence via the general skilled migration visa route.

Studying in Australia does not guarantee that you will get residence, and policy changes on a regular basis, so it’s preferable to try and avoid having to study in Australia if one can possibly obtain permanent residence without it. But if you are going to study in Australia, choosing the correct course and the correct location in Australia could be a useful pathway for those young enough with sufficient resources to have a pathway to permanent residence in Australia.

- Myer Lipschitz, Managing Partner & Immigration Attorney, IMMagine Melbourne Office

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I Am Not Sick, I Am Blind

Posted by Iain on July 27, 2018, 1:51 p.m. in Visas

About three years ago whilst in Johannesburg I met a young couple with a four year old son. On the face of the application, it looked fairly straight-forward in terms of there not being anything out of the ordinary i.e. we had a skilled migrant who needed to get skilled employment in New Zealand in order to get the points. So far, so good. The issue, potentially, was that the principal applicant’s wife was blind having lost her sight four years earlier during childbirth.

Many Immigration Advisers advise people who are blind (or for that matter deaf) that they will not be found to be of an acceptable standard of health, something I have always found disappointing, if not laughable. Blind or deaf people are not sick, they have a disability but that does not make them unhealthy nor a likely future cost on our health system.

A person can only be declined a Visa on health grounds if the Immigration Department’s Doctors are able to confirm that the person is likely to represent a significant cost on the health services for the duration of the Visa that they are applying for. If they had a chronic or an acute condition, and I guess blindness might be deemed an acute or chronic condition, then if the cost of the likely care is $41,000 or more they are not someone who would normally be granted a Resident Visa.

I explained all of this to my potential clients two years ago and explained that whilst she was blind she was most definitely not sick. As far as I was aware there is no medication she might take which could alleviate nor cure the condition.

The husband went to New Zealand and secured skilled employment and we filed his Work Visa, her Work Visa and their son’s Visitor Visa at the same time. In typical fashion the Immigration Department’s Doctors tried to block the Work Visa on the grounds that she was not of an acceptable standard of health.

This despite the fact that we had gone to some effort to provide evidence that since her son was born she had received no care and no assistance in the raising of her boy and her husband, now in New Zealand, was often away on business and other parts of Africa and not there to help her out.

She had managed perfectly well without any assistance whatsoever to raise her son. Despite this, the Immigration Doctors pushed back quite firmly and tried to argue that she was likely to be a burden on our health services.

This is clearly ludicrous.

As we do, we pushed even harder and the Work Visa was granted.

The medical standard for a Resident Visa is higher than a Work Visa and whilst she had an Open Work Visa which gave her the possibility of working in New Zealand while we processed the residency, we had warned her that the Immigration Department, being Immigration Department would likely try and block them at Resident Visa stage.

I am very pleased to report that this application was approved a couple of weeks ago and the family is now the proud holders of New Zealand Resident Visas.

It just goes to show that a disability does not make someone unhealthy and if anybody ever tries to tell a blind or deaf or other person with some physical disability that they don’t meet the standard of health for entry to New Zealand, they probably do not know what they are talking about.

Until next week

Iain MacLeod, Southern Man

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Skilled Migrant Category Changes Unveiled

Posted by Iain on April 19, 2017, 2:23 p.m. in Visas

The NZ Government today wrapped up the announcement of their Skilled Migrant changes package with the message that it is about ‘controlling the flow’ of migrants. If that sounds a bit Brexit, or Trump or the Prime Minister of Australia, France and Marine Le Pen - these are the times in which we live but I think it is far more simple than that.

Our economy needs migrants to supplement local workforce and skill shortages. The Government recognises that.  At the same time across the western world there is a growing discontent among some that too many people have missed out on the benefits of the past 20 years of globalisation – think less educated, the lower skilled and lower paid people. Who voted for Trump? Who voted for Brexit? Who will stop our current Government in NZ being re-elected this year?  Those at the ‘lower’ end of the spectrum.

In New Zealand all the polls suggest a return of the current Government so while politics is no doubt forming part of the changes the truth in my opinion is slightly less Trump, Brexit or Turnbull and more too much demand from former international students promised a pathway to residence by the Government which is now not so keen to have them take places off more ‘high quality’ migrants.

As I predicted a few months ago the real reason for these changes is to deal to the increasing issue of these less skilled and younger migrants taking an increasing percentage of SMC places from older and more experienced skilled migrants.

In terms of timeframes for the roll out of the new Skilled Migrant Category, we are told to expect them before the end of the third quarter, i.e. September.  There is other work about to be done in the Essential Skills Work Visa Category space and it is the Government’s intention, we understand, to roll out both sets of changes at the same time.

Our analysis (also blogged about in the past few months) indicates that the pass mark for the Skilled Migrant Category must fall from 160 and fall reasonably significantly if Immigration New Zealand is going to be able to deliver on their annual target of 27 000 skilled migrants, their partners and children (+- 10%). These changes only reinforce that view point. We have already seen a significant fall in the numbers of EOIs that can be selected since the pass mark went to 160 and I have no doubt that the annual target will be undershot by over 10,000 new residents. 

The question however in my mind is when the Government will let the pass mark fall.

Predictably (and I did) these changes are being sold to the world by the spin doctors as getting tough on immigration and ‘controlling flows’  but in reality all the Government has done is put in place a strategy to largely eliminate, or at least make it extremely difficult, for international student graduates who have come here and studied to secure Residence.  They are doing this by having a minimum salary level attached to all skilled job offers. A salary level most graduates won’t be able to meet.

That it also happens to be a message the 'anti-immigration' brigade can cling on to in an election year is just the political cherry on top. In fact that creates a wonderful smokescreen for a Government that created a huge problem for itself by enouraging tens of thousands of international students to study here under what in many cases was blatant false pretences.

The major changes then are as follows:

  • For a job offer to be considered skilled it will need to pay at least $48,800.00 but must continue match task lists
  • All job offers that come with a gross salary of $73,000.00 per annum will automatically be deemed to be skilled
  • Bonus points for work experience or job offers in a future growth area (Information Communications Technology, creative industries and biotechnology) are gone
  • Bonus points for New Zealand work experience is being “trimmed” but not eliminated
  • Bonus points for having close family in NZ is gone
  • Bonus points for qualifications in an area of absolute skills shortage is gone, bonus points for work experience in areas of acute skills shortage will stay
  • Points for age will be reweighted such that those aged 30 – 39 will score maximum points for age and presumably those under the age of 30 will lose points.
  • How work experience points will be awarded is going to change – the idea of all ‘relevant’ work being counted is to go
  • High paying jobs - $97,718.00 - anywhere in NZ are going to be rewarded with bonus points

So what does this all mean in essence?

For our clients, who tend to be over 30 years old, very little. For those under the age of 30, potentially an awful lot.

Irrespective of how the Government tries to spin it, what you’re seeing here is the result of a Skilled Migrant system becoming swamped during 2015 and 2016 by international graduates who were “encouraged” to spend a lot of money in New Zealand as a pathway to securing Residency. For many, but not all, that pathway is now going to be effectively closed. It is possible then that those recent graduates who studied in areas of Engineering or Information Communications Technology as two examples may still meet the minimum threshold for points and therefore success; but most who do softer qualifications will not.

When the pass mark went to 160 in October it increasingly forced people to find work outside of Auckland.

This is not necessarily a bad thing from New Zealand’s perspective but given that Auckland continues to be the “jobs machine” it has meant that Auckland employers have been missing out on highly skilled people that they need here.  I suspect that the additional points for high paying jobs is going to open up the Auckland market once again to those who are earning good money.

So while these changes will be spun by the Government as a tightening up and a toughening up the reality is, for the significant majority of our clients, these changes are positive and not negative. 

Until next week

 

Iain MacLeod

Southern Man - Letters from New Zealand


About the Recent Policy Changes

Posted by Myer on April 19, 2017, 1:17 p.m. in Visas

Yesterday Australia's Prime Minister Malcolm Turnbull put his hands on his hips and took a jump to the right. It felt as if we were in a Time Warp. 

Mr Turnbull, feeling the global winds of change fuelled by Brexit and Trumpism, took the initiative to steal the political right's thunder and initiated far reaching reforms to employer sponsored migration to Australia and also to the occupations available to skilled migration that are non-employer sponsored (GSM visas).

The main changes involve a reduction of the number of occupations by 200 for state sponsored visas and creation of 2 streams of  Temporary Skill Shortage visa to replace the existing 457 visa.

One of these streams can lead to permanent residence by working for the employer for a period of 3 years (currently 2 years) and the other stream that only allows workers to stay in Australia for up to 4 years, but does not give them a pathway to obtain permanent residence. 

Of course right wing parties in Australia such as One Nation were quick to claim credit for the initiative which was denied by the PM; one cannot escape the conclusion that the motivation for these changes are political as opposed to economic.

Skills shortages are felt across a wide range of industries and we have low unemployment (currently 5.8 %).  

Not only do the changes announced deflate the power of the right wing in Australian politics, but they too act as a panacea to other political problems such as the high cost of housing in Australia and a perception that owning one's own home is unaffordable to Australians (a view held by 53% of Australians). 

Undoubtedly the number of temporary workers and those entering on state sponsored visas will fall. There are currently 95000 workers on 457 visas in Australia but with fewer occupations available to transition to permanent residence Australia has to be seen as a less desirable immigration destination and the only winners from these changes are likely to be Canada and New Zealand. Fortunately, we have an office in NZ.

I also cannot understand why the list of occupations available for state sponsored visas has been so drastically shortened. State governments produce lists of occupations in short supply in their economies and many of the occupations culled from the list had appeared on state sponsored lists. 

State governments haven't until now had carte blanche to sponsor any occupation they feel like. The current list had approximately 651 occupations (now reduced by 200) and state governments were given annual global quotas of occupations they could sponsor under this scheme. The Prime Minister has placed federal politics ahead of the labour needs of state governments. 

Notwithstanding the reassurance by the PM that we remain an "immigrant nation", the immigrant in Australia just got thrown under the political bus and it's disingenuous to suggest that these changes put Australian workers first. 

No employer ever chooses to hire a migrant over an Australian if they can help it. Apart from cultural fit there is already legislation in place to prevent employers from undercutting Australian workers and all occupations already require market related salaries to be paid. 

Whilst it will be required for a greater number of employers to prove labour market testing (proof the position has been advertised and that Australians were unavailable) this already exists for a large number of occupations). In any event it remains to be seen how robustly this will be enforced. 

My prediction is that there will be no winners from these changes. Certainly not migrants nor Australian workers nor state governments and while there may be short term political gain for the government I think this will be short lived when the backlash of greater wage inflation, greater skills shortages and the lack of consumer spending by migrants becomes felt. 

I could have sworn that there was a slightly orange man with a bad hairdo speaking at the press conference today but perhaps I was mistaken. We are after all in a Time Warp again.


Australia Newsflash: Important Policy Changes

Posted by Myer on April 18, 2017, 9:34 p.m. in Visas

Australia’s General Skilled Migration Visas and Employer Sponsored Visas

Earlier today Australia’s Prime Minister, Malcolm Turnbull, announced wide-ranging changes to the occupational lists available to General Skilled Migration Visas as well as the abolition of the current 457 Visa (Work Visa) to be replaced by the Temporary Skills Shortage (TSS) Visa from March 2018.

New Temporary Skills Shortage (TSS) Visa

From March 2018, the 457 Visa is to be replaced by the (TSS) Visa, however, changes to the occupation list (list of occupations available for 457 visas) come into effect on 19 April 2017.

Approximately 200 occupations have been removed (click to view the new list).

Other changes include:

Work Experience

A minimum of 2 years of work experience will be required, whereas under the current 457 Visa, if an applicant has relevant qualifications, no specific amount of work experience is required.

Labour Market Testing

Under current 457 Visa policy, a limited number of occupations require labour market testing (proof that employers have advertised the position and can evidence that skills cannot be filled by Australians or Australian permanent residents). These had - until now - been largely trade occupations, but under the TSS Visa most employers would now need to satisfy labour market testing requirements.

Different Streams

There will be 2 types (or streams) of TSS Visas – a short-term stream of 2 years and medium-term stream of 4 years. Only the medium stream will enable the applicant to transition to Permanent Residence and the short-term stream will only be able to be renewed once. It’s expected that the medium-term stream will have higher English language requirements.

General Skilled Migration Visas

The current Skilled Occupations List (SOL) is to be replaced by the Medium and Long-Term Strategic Skills List (MLTSSL). These occupations remain available for the subclass 189 Visa which is an independent permanent residence visa that does not require state sponsorship and this list remains unchanged.

The current Consolidated Skilled Occupations list (CSOL) has been replaced by the Short-Term Skilled Occupations List. This list is the list to be used for applications involving state sponsored applications such as subclass 190 and state-sponsored subclass 489 visas. 200 occupations have been removed from this list and you can view the new list here.

The 200 occupations that have been removed can be viewed here.

Anyone who has received an invitation to apply in SkillSelect will not be affected by these changes and they will be able to apply for a subclass 190 or state-sponsored 489 visa. Similarly, anyone who has already lodged a visa application will not be affected by these changes.

Any clients affected by these changes will be contacted by consultants tomorrow (Wednesday 19th April).

If you have any questions relating to changes to these lists please feel free to contact us via email on info@immagine-immigration.com or see our Free Preliminary Evaluation form to have a Registered Migration Agent confirm if proceeding with a Full Assessment might be a good idea.

- Myer Lipschitz, Managing Partner


VACs Wings to Be Clipped

Posted by Iain on April 7, 2017, 3:27 p.m. in Visas

Two weeks’ ago I went public on my serious concerns regarding the actions of the Visa Application Centres (VACs) that have partnered up commercially with Immigration New Zealand.

My concerns were twofold:

  1. The VACs are not licensed to provide immigration advice yet it seems, based on multiple reports from clients who are attempting to drop off visa applications we have prepared, they are giving what appears to be immigration advice. INZ has accepted this is happening; they dispute how frequently. Given we have had a number of clients sent away when they tried to file applications to get additional information (that was not required for their applications to be receipted) it seems it is far more common than INZ wishes to acknowledge.  
  2. When the advice is being given it’s often wrong. 

I have, since writing that blog, had a meeting with senior immigration officials and they have confirmed that all VACs will now be told that applications must be receipted if they contain four key mandatory lodgement documents including completed application form, application fee, two passport-sized photos and passport. 

The problem arises because the VACs are also given checklists by Immigration New Zealand of additional possible documentation that Immigration New Zealand wishes to see in order to assist them make a decision on the visa application. I have sought and obtained copies of all of these checklists under the Official Information Act.

I thought there would be four – one detailing the mandatory requirements for a Work Visa, a Student Visa, a Visitor Visa and possibly a Resident Visa.

There were, however, scores of them and different checklists for different branches for the same type of visa! For each visa category, there were different checklists for all sub-types of the same visa, e.g. Essential Skills Work Visa, Work Visa, Talent Visa, Work Visa for a Partner of a New Zealand resident and so on.

It’s no wonder the VAC staff get confused as to what is or isn’t required.

INZ has told them to collect all this additional information and evidence; yet they cannot offer advice while doing so.

What sort of position does that put them in? One where it must be very hard to balance beng 'helpful' with crossing the line and potentially breaching NZ law by giving 'advice'.

An examination of these checklists shows them to be garbled, confusing and often vague. In many instances, it records a document being required “if applicable”.

I've challenged Immigration New Zealand management and also the Registrar of the Immigration Advisers’ Authority that it stretches credibility to breaking point that the VAC staff are not interpreting when a document is applicable to the visa application and when it is not. The exchange between VAC staffer and applicant nust surely require questins and answers and the taking into account of personal circumstances and that all the requires interpretation of immigration rules and that becomes immigration advice as defined by the Immigration Advisers’ Licensing 2007. 

There is more water to flow under this bridge but my advice to anybody anywhere on the planet who is now filing a visa application through a Visa Application Centre and who has a correctly filled-out application form, correct fee, passport and two passport-sized photos, to make very clear to any VAC staffer who demands any more documentation to receipt the application, that they must receipt the application and forward it to Immigration New Zealand with any other documents the applicant may wish to include.

It is then up to Immigration New Zealand to determine whether further documentation is necessary and to liaise directly with the applicant.

No one can be turned away or be told to go and get additional documents.

I’m going to be interested to see what happens from here on and would welcome hearing from anybody who now tries to file an application and is told either the application cannot be receipted with only the four mandatory lodgement requirements and/or receives advice on what other documentation needs to be filed for the application to be receipted and sent to Immigration New Zealand.

Until next week...

Southern Man - Letters from New Zealand


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

It's just a thought...

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