Visa Application Centres and How They Break the Law
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:
- Get the persons name they are dealing with at the VAC;
- The time of the meeting;
- 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
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