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Posted by Iain on Dec. 3, 2021, 8:53 a.m. in Immigration New Zealand
If any further evidence was needed that the Immigration Department (INZ) of New Zealand is out of control and bordering on dangerous we got it this week when for the second time in 12 months the High Court ruled that officers and the Department were acting unlawfully in implementing policies.
It is not so much what they were doing to be slapped down in the Courts but how it is they think they are free to operate in this way.
One ruling confirmed that the ‘priority processing’ criteria INZ adopted in respect of its skilled resident visa backlog was unlawful because it was not an instruction (a rule or policy if you will). This week’s ruling related to an interpretation denying the families of Afghan nationals who had worked with the NZ Government (for goodness sake!) denied visas to enter New Zealand despite what appeared to be an act of ‘kindness’ (and some loud political trumpeting) in offering them the protection of New Zealand. These were people who worked, at great risk to themselves, for the New Zealand Government. INZ had other ideas.
What is going on?
None of this is any surprise to us. Not a day goes by when we are not confronted with incomprehensible or cruel interpretations of pretty simple rules.
That lawyers, advisers and those that require visas need to consider the Courts to get these bureaucrats to do their jobs properly is nothing short of scandalous. It demonstrates clearly political disinterest in the portfolio and handing over to an unelected civil service the power to control who crosses the border, irrespective of the elected Government’s intentions.
In terms of the why the bureaucrats behave like this I have been observing INZ for three decades. The culture is paranoid and poisonous - all migrants and local employers are thieves, cheats and liars until they demonstrate otherwise. Everyone is treated with different levels of distrust but distrust is the core of all decisions made by officers.
In recent years they have talked themselves into believing they are a business with ‘product suites’, stakeholders and all the other BS terms of the corporate world. They fail to understand what they really are. They are a monopolistic government department that does not have customers, but prisoners. Migrants cannot go down the road for better service, they and their legal representatives are forced to deal with bureaucrats who seem to feel it is acceptable to make up rules as they go along or ignore them when it suits them.
In recent years, middle and senior management, mostly drawn from the ranks of officers themselves (and who therefore have a knowledge of visa policies and processes) have for some reason been told to stay out of the decision making process. They always defer to those on the ‘counter’ and their supervisors (many of whom have been around a very short time). There was a time when we could escalate to more experienced and senior officials. Those days are over. They don’t want to know.
At the same time INZ staff churn approaches one third of their workforce each and every year. In my experience it takes at least two years for anyone new to the visa world to develop the depth of understanding required to be effective (and not pose a danger to their customers). INZ officers get around one week of intensive training and then are let loose on the world. In my business it is at least 12 months but even then only under strict supervision.
We were advised this week that the Business Migration Branch which handles the most complex business visa related applications has lost nine of its nineteen ‘specialist’ processing staff. Two retired and five resigned, leaving two. The applications for people INZ spends millions of dollars a year marketing NZ to are now being delayed. I presume the Government says ‘Who cares’? Australia and Canada care and those countries will be the winners.
If you lost half of your staff left your business in short order for something better wouldn’t you be deeply concerned with what that was telling you about the culture and the working environment? I’d be horrified if my best staff kept walking. But this sort of thing is not new inside INZ. And the Business Migration Branch is referred to as the ‘jewel in the crown’ of INZ. Tin hat more like.
If it were possible, it gets worse.
On 1 December the Government launched their ‘fast track’ ‘one off’ Resident Visa 2021 which would see up to 165,000 people who met some very generous criteria granted residence of New Zealand. The Minister said they were expecting ‘high demand’ when online applications opened this week. He wasn’t wrong.
The entire INZ website crashed the minute it opened up meaning not only could the resident visas not be filed no one could file any other sort of online visas under any category at all.
We had warned our clients it would probably happen. As usual INZ didn’t disappoint. They have been scrambling the past few days to find a solution.
Further, the online form demanded that an applicant have a passport that was valid for at least the next three months or they could not file an application. That requirement was built into the form despite it not being lawful. It has never been a legal requirement to hold a passport for more than three months to file a resident visa.
When my colleagues tackled INZ on this and suggested a workaround given INZ’s clear breach of the law we were told INZ was aware of the issue but if we applied a sensible solution it would be a case presenting ‘of false and misleading information’. Something that could cause us to lose our licenses and the client be denied a visa.
When we reminded this officer that INZ was acting unlawfully and it was not our clients’ problem INZ stuck to its guns. In fact I understand that a senior Manager threatened a well respected industry colleague by telling her that if anyone in our industry tried that (sensible) workaround INZ would ‘show no mercy’.
All of which illustrates:
I have called on numerous occasions for the Auditor General to review INZ management and performance. The last time that was done was 12 years ago and the findings damning. In the 12 years since I suspect little has changed. If anything, it has got worse.
It is time for an independent review of the circus that INZ has become and for politicians to take seriously the damage it is doing to our international reputation and as a migrant destination.
Until next week
Posted by Myer on July 16, 2021, 1:52 p.m. in Australia
Former president Calvin Coolidge of the United States of America is reported to have said “that the business of America is business.” Well Australia means business too as far as recent changes to the business/investor visa program is concerned.
Earlier this month Australia implemented significant changes to its business migration program raising the eligibility threshold for two of the more popular visas namely the business innovation visa and the business investor visa. The reason why they made the changes was simply because they could.
Australia has an annual quota of 13,500 places under its business innovation and investment program and because of oversubscription on the part of applicants the program usually ends well in advance of the end of the immigration year which occurs on one July.
The government has said that the purpose for the change is to support Australia’s post Covid 19 economic recovery but I think that the majority of changes were made to curb the number of applicants.
The number of business and investment categories has been slashed from nine to four, greatly simplifying the choice of visas available. This blog isn’t meant to be a comprehensive summary of all of the changes but focused on the more significant changes as far as our markets are concerned.
Business innovation visa.
This is a five year provisional business visa for certain types of business people who want to buy or establish businesses in Australia. Once your business in Australia reaches certain thresholds you can then apply for permanent residence.
Essentially you need to prepare a business plan and if a state government sees merit in your business proposal they would sponsor you which is one of the prerequisites in order to apply for this visa.
Prior to 1 July you had to be at least a 30% shareholder of a business with a turnover of at least AU$500,000 in two of the last four financial years and net business and personal assets of AU$800,000. This has increased to an annual turnover of AU$750,000 and net business and personal assets of AU$1.25 million.
Certain criteria have to be satisfied before you can apply for permanent residence namely the business has to have been managed for a period of two years and achieved an annual turnover of at least AU$300,000 before you can apply for permanent residence. You would also have to satisfy two of the following three criteria:
If you can’t achieve this in the first five years you could apply for a two year extension to your provisional visa.
Most of our clients operating in markets with stronger currencies (such as Singapore and Hong Kong) wouldn’t be that affected by the increase in the requirements, it’s going to have a more profound effect on some of the markets with weaker currencies such as South Africa.
If you are looking for a more passive business category perhaps the investor category is for you. This is a five year visa for those prepared to invest money in income producing investments in Australia.
Not just anyone can apply, it’s for certain types of business owners or investors managing an investment of AU$2.5 million willing to invest funds in income producing assets in Australia.
Prior to 1 July you had to invest AU$1.5 million over 4 years, but this amount has now increased to AU$2.5 million, although the good news is that the investment now only needs to be held for the duration of the visa – and it’s possible now to apply for permanent residence after 3 years instead of 4 years.
The range of investments has changed from only state government bonds to now:
This visa also requires state sponsorship and most states want more than just your investment, they want to be satisfied that you will have further business/investment activity in that state. In other words in part they want your investor acumen.
Perhaps one of the most innovative changes to the business visa program relates to the entrepreneur stream. This is a visa for those start-up and innovative entrepreneurs who have been sponsored by state governments to develop their businesses within the sponsoring state. Prior to 1 July you needed to have obtained funding from an approved entity for at least AU$200,000 but this requirement has been abolished from 1 July this year.
You must be undertaking, or proposing to undertake, a complying entrepreneur activity in Australia which will lead to the commercialisation of a product or service in Australia, or the development of an enterprise or busines in Australia.
You can apply for permanent residence based upon the success of your entrepreneurial activities in Australia and before you ask the question let me hasten to add that investments in residential real estate are not a criteria for this type of visa.
The business visa/investor landscape has been greatly simplified by these 1 July changes and we think that they have been introduced to try and improve the profile of applicant. When you have a product as desirable as Australia and there is an oversupply of applicants you don't need the pretext of a post Covid lead recovery to increase prices and that is simply what Australia has done.
The majority of our clients and markets in which we operate are not going to be significantly disadvantaged by these changes, to the contrary it provides a more simple and transparent process of qualifying for permanent residence because of business/investory ability.
Posted by Iain on Oct. 28, 2016, 4:46 p.m. in Immigration
Over the next few months - if not years - there will be some otherwise skilled migrants who won’t be able to achieve the 160 point pass mark even if they were to work for say 12 or 24 months in a job outside of Auckland.
What solutions can we offer them?
I am very conscious that the Skilled Migrant rules will likely change in the middle of 2017, but I am equally confident that here at IMMagine we have a good handle on the direction of those changes, even though we don’t yet know the detail and won’t till the rules are released.
We have a very small number of clients, principally aged over 50 and without any trade or academic qualifications who are still looking for a pathway up this visa ‘mountain’. Without wishing to digress for those tradesmen and artisans under 45 with no formal qualifications we should be able to get them all to NZ using the Australian residence visa process. Something we commonly do now.
One of the ‘NZ direct’ solutions is through a work to residence pathway and finding work and convincing a New Zealand employer to become ‘accredited’ with INZ.
Accreditation is a status given to an employer that allows them to effectively bring in anyone they wish on 30 month ‘Talent Visas' (Work Visas by any other name) without needing to prove they cannot find a local - so long as the salary is at least $55,000 gross per annum, or higher.
No need for it to be in an area of skill shortage, it doesn’t even need to be skilled, but rather INZ needs to be satisfied of a number of key points about the business before they will grant accreditation. The business must be (to quote the policy):
On the face of it this looks quite straight forward but as always, the devil is not only in the detail but the attitude of INZ and the officer processing the accreditation application.
This category was really set up with the aim of assisting larger employers with an ongoing need to bring in talent, rather than for smaller businesses to keep 'one off' but very valuable staff. It does not however exclude the smaller employers like the three man automotive workshop, the bakery or the small IT company. The aim and objective is clear – to make global skills available to ‘trusted’ local businesses – and it is not for INZ to decide which business is ‘better’ than others if the above four criteria are met; nor which applicants or roles come with a greater economic need.
I suspect, however, as more employers now apply for accreditation owing to the tightening of criteria under the Skilled Migrant Category and a seemingly never ending tightening in the availability of local candidates for roles, INZ could try and make it difficult. So, yet again, strong and persuasive advocacy will no doubt be called for and we are well positioned to help companies to secure this status.
For the migrant, their Talent Visa will be granted for 30 months and after two years of working for 'an' (not necessarily ‘the’) accredited employer they can then apply for residence. It is not a points system and there are no quotas nor pass mark. They do, however, have to demonstrate they are still healthy (along with partners and children) and their character remains good. They will also have to prove they earned at least $55,000 by way of salary over the two years. Note: salary, not income.
With the ramping up of pass marks for skilled migrants two weeks ago coupled with the sort of changes we strongly suspect are coming next year, having an Immigration Adviser who is not only expert in the detail but creative in arguing some very vague sounding criteria is going to take on even more importance than it ever has.
From here on under the skilled migrant category, it is not only a case of the survival of the most employable but it might just also be the survival of those with the smartest Immigration Adviser.
Work to residence options are no different. I am expecting push back from INZ on these applications but the rules are the rules and whether the company is large or small or needs to bring in ten workers or one; it is not a value judgement for officials.
Finding alternative pathways up this seeming every higher and steep mountain is what we do very well with 26 plus years’ experience under our belts.
Work to residence on a Talent Visa is just one of those strategies that might be the difference between raising your children in New Zealand or somewhere else.
Until next week.
Letters from New Zealand
Posted by Paul on Dec. 20, 2013, 9:38 a.m. in Immigration
When all through the house, not a creature was stirring..., except for a Government policy maker who decided that changing the rules at the end of the year would make a lovely Christmas present.
Late last week the Minister of Immigration released a statement relating to proposed changes to the Long Term Business Visa (LTBV) Category. Whilst the announcement didn’t reveal specifics over what the new policy would look like, it made a few references to the ideas being batted around inside the immigration halls of power.
Originally established as a pathway to residency for those who wished to come to New Zealand and become financially self sustaining, applicants were required to have a well researched business plan that met a fairly clear benefit test to the country. In hindsight that benefit test was set too low in the eyes of the Departmental officials who implement the policy.
When it was released it was a case of ‘anything goes’ and applications from Bed and Breakfasts to one man band lawn-mowing franchises were being approved in a matter of weeks. Then with a change in leadership came a change in interpretation (although the policy didn’t) and applications were declined en masse. This Category has always been subject to the ever changing mood of INZ, although none of those changes was ever set down in the rules. It was a case of getting to understand each new Branch Manager’s feelings on the benefit to New Zealand before advising your client on whether to proceed or not.
This has led to a policy that is both poorly understood by applicants and immigration officers alike and open to widespread abuse by both applicants and the Department. Often seen as the ‘application of last resort’, INZ struggled with the ebb and flow of applications of questionable benefit to New Zealand, leading to very few residence approvals.
The current (to be no longer as of the end of today) policy sees around 500 applications annually which is quite a few considering the intent of the policy is for people to establish or purchase businesses in New Zealand.
Application volumes have been steadily increasing over the last three immigration years (2010 to 2013), although approval rates have been falling from 89% at the beginning of that period down to 71% in the current year to date. There are various reasons INZ attribute to this trend, some of which don’t appear to hold a lot of water, given they created and administer the policy; but the main thrust of the changes relates to what we have always argued is a clear lack of defined aim of the policy.
Let me give you a few examples.
Part of the existing policy requires an applicant to have sufficient funds for maintenance and accommodation – and that’s about as far as the rule book goes in terms of specifying what that figure might be. It doesn’t give a guide as to the amount of money required and so its left up to an immigration officer to decide on what they believe is appropriate. The problem with that is each officer will have a different view on what is ‘sufficient’. Some might drive a BMW and scoff at the idea on living on anything less than $100,000.00 per year (or perhaps $150,000 a year which was a figure quoted to us by INZ recently). Other officers will live with more modest means and believe that a third of that is required.
Then there is the definition of ‘benefit to New Zealand’ which is another criteria that INZ uses to determine if a proposed business is worthy of approval. There is a list of criteria within the rule book; however it was arguably poorly written and therefore open to various interpretations. Also where policy says ‘benefit’ can be satisfied by meeting one of the criteria (such as employing a single New Zealander), INZ recently decided what the policy actually meant was if only one person is being employed they will do a ‘measuring’ exercise to determine whether there is enough weight in the other elements of ‘benefit’ to grant an approval.
That of course is not that the policy suggests at all but this was the Department’s way of dealing to what they considered ‘low quality’ applications – even those that demonstrably met their own single benefit criteria.
So, out with the old and in with the new – but what is ‘the new’?
Before we dive into this, it is important to note that anyone who has a current LTBV in process will be covered by the existing rules and so the proposed changes only impact on those who have yet to lodge a formal application. That does mean ongoing uncertainty as we doubt INZ will be able to resist trying to implement a higher bar test of benefit to LTBV renewals at nine months and the Resident Visa that follows.
In terms of the new policy - put simply INZ is returning to form, trying to cut out as much thinking as they can and putting in place a points system which measures various criteria. The Government has decided to close the current policy down today, release the details of the new policy in February 2014 (date to be determined) and then actually make it effective from March 2014. This then gives INZ and, in particular the Business Migration Branch, a chance to play catch up.
What little we do know is that the policy will utilise a points system to allow applicants to gauge for themselves the likelihood of success and hopefully provide some clarity around the actual criteria.
Points will very likely be allocated based on age, capital investment, level of turnover, business experience, job creation and the level of innovation (not sure how you measure that). There will be a total point’s score of 120 (proposed) and INZ will obviously be balancing age, investment capital and the kind of business to approve the most desirable applications. The focus has very much gone on targeting enterprises that will provide export opportunities and/or technological innovation. Essentially what they don’t want are B&B’s and corner dairies.
There will also be a focus on pushing businesses out to the regions and awarding additional “bonus” points to applicants who propose to establish a business anywhere outside of Auckland. Similar to the Skilled Migrant Category, INZ has always endeavoured to move migrants out of Auckland and in to the smaller parts of the country to stimulate growth.
The Minister sums up his intention of the new policy in the press release as follows:
“The Entrepreneur Work Visa will operate under a new points-based system that will result in higher quality, more productive businesses.
“It will also encourage business-savvy migrants to invest, settle, and create jobs across the country, by offering extra points for expanding or starting businesses outside of the Auckland region.”
But (and there always is a whole lot of these) INZ will also have the discretion to waive certain requirements for funds where the proposed business can ‘excel’ in other areas. So basically you have a set of rules and then another rule which allows an officer to do whatever he/she likes. Let’s hope it isn’t quite as subjective as that.
We support any move to greater transparency that leads to both a higher success rate and a better outcome for New Zealand. Based on the information publicly released so far we question why it has taken INZ so long to work this out and whether or not they have done enough to fix the issues. Time will tell of course.
For anyone who is considering a Long Term Business Visa application stay tuned. We will be sending out the details as we receive them along with our interpretation of what they mean in the real world.
And with that the Southern Man and the IMMagine New Zealand team sign off for another year. It has been an interesting one to say the least as the New Zealand economy continues to outperform its developed country peers and surges into 2014, the Auckland Council debates whether to kick out the current Mayor who has a penchant for extra marital activities and the folks in Christchurch continue to restack the bricks and mortar.
We will be back in January (officially open on the 13th) with a new round of seminars kicking off in the same month – this time featuring for the first time Jakarta followed later by Hong Kong.
To all of our clients and those who have read and enjoyed our blogs in 2013 we wish you a very Merry Christmas and a Happy New Year. We look forward to working with you again in 2014 and hope you all enjoy the festive season (no matter where in the world you are).
For now we are off to the beach as summer settles into a warm dry pattern.
Adieu, Arrivederci, Totsiens, Salamat Jalan and Hasta La Vista…
Paul Janssen, Iain MacLeod and the Team at IMMagine New Zealand
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