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Posted by Iain on Aug. 6, 2021, 3:34 p.m. in Immigration
If you see someone drowning do you offer them hearty cheer and words of encouragement to keep swimming or do you throw them a large floaty thing with a rope and pull them to safety?
This week the opposition National Party decided to throw a safety line to the immigration department which is rapidly going under.
I’m fully supportive of the policy released by the opposition which is a not so subtle throwing down of the ‘kindness gauntlet’ to our ‘kind’ government to finally do the right thing, clear the immigration decks, reward all those migrants in NZ who have stuck with us since the pandemic began and provide certainty to their employers.
I was asked by Erica Stanford, the party’s spokesperson for my input and naturally I wasn’t short of advice.
I confess I was very pleasantly surprised in the lead up to their announcement that they wanted to extend sorting out the mess to everyone in the country when the border closed and who hold Essential Skill Work Visas, irrespective of skill level.
I made two suggestions on the proposal to pull into the plan those that don’t currently have any long term residence pathway:
1. Provide a three year extension to their work visa and a guarantee they will be granted residence if they remain out of trouble and work for at least an aggregate two of the three years (bearing in mind there’s many reasons - child birth for example - that might cause someone to briefly stop paid work).
2. Uncouple essential skills work visas from specific employers. One of the clear risks these processing backlogs has created is tying work visas to specific employers. It is heightened especially for those at the lower end of the (allowed) income spectrum increasing the chances migrants will be exploited by a small number of bad faith employers because the employer knows the work visa holder is often effectively beholden to them.
I’m pleased to see the Nats have run with these two recommendations.
I was also asked how INZ might expedite those highly skilled applicants who have been invited to apply for residence and/or have filed applications and eliminate the backlog within a few months.
My recommendations were:
1. All those sitting in the so called ‘managed queue’ have their current employment against relevant rules verified. That would mean IRD summary of earnings for the past three months, checking of applicant bank statements and a phone call to the employer confirming the applicant is still working. Would take all of thirty minutes per application.
2. A local police check to ensure the applicant has not committed any serious crimes since arriving in the country. Bearing in mind to hold a 24 plus month work visa the government must have been satisfied the applicant was already of good character. This would take a few months given the Police would be required to do a lot more in less time than usual.
I was heartened to see those two key recommendations made it into the proposed policy.
What of the 4,000 to 5,000 Talent and Long Term Skills Shortage (LTSSL) visa holders (representing perhaps 10,000 peole once partners and children are included) who are queuing up to file their resident visa applications toward the end of this year and early next or who have already filed their residence applications and are waiting (for the majority) over two years to be processed?
For those who have already filed their residence application and are sitting the processing backlog the same as above - proof of work and local police check. To secure the Talent or LTSSL work visas the health standard they get for their temporary visa was the residence visa standard.
For those who will file after October when there’s several thousand eligible to file:
1. Application form, fee, passport
2. Local police check for the same reason as above
3. Verification they’ve worked the required 24 months so that would include checking employment against relevant/current rules. IRD summary of earnings for the past two years, checking of applicant bank statements and a phone call to the employer confirming the applicant is still working.
And finally, what of the 10,000 Expressions of Interest languishing in the ‘pool’ since selections were suspended in March 2020? These are the people I worry about most. These people rightly fear the current government could simply cut them all loose.
I recommended immediately selecting all those who claimed 160 points and if that claim upon examination looks credible they be invited to apply for residence. Normal, as in current, rules would apply. We know from history roughly 90% of EOI claimants are found to have a credible claim following selection which means roughly 9,000 applications would hit the processing stage within a few months. Not all will be approved because ultimately their points claim, while genuine, is not supported by the evidence they can produce.
By the time this group entered the processing system INZ should have cleared the backlog of 10,000 or so applications covered by the first group and be well advanced expediting the second.
Priority through the end of 2021 and early part of 2022 would go to the second group, those applying for residence from work. The rest of 2022 would be focused on those currently sitting in the pool.
I would close the category to any new applications for 6 months, It would be temporary (really temporary not ‘I am waiting on advice from officials before restarting selections’ temporary) and a cast iron commitment to not prolonging it.
This would truly be an immigration reset.
It would buy any government precious time to develop new policies for our new Covid based, border restricted world (and here at IMMagine we’ve got some really good ideas how that might look).
It allows the bureaucrats to clear their decks over the next 18 months so that when we see greater international travel through 2022 and beyond they are ready.
The one fly in the ointment, apart from the fact the National Party is not the government(!) is the intellectual capability of INZ to deliver this. At the end of June, the latest period we have been given staff numbers for, there were 83 officers employed to work on the residence backlog. In the past two weeks only 191 residence applications were allocated for processing. INZ management simply can’t give them more cases, not because they have high caseloads (the average as best I can tell is between 25 and 30 which is a third of what my crew have) but because there’s not enough experience or institutional knowledge to deal with more. And staff continue to leave in worrying numbers.
My plan if adopted would allow these officers to cut through the work, not endlessly repeat checks (like health and work history) that is a box ticked at previous work visa stage for example and get on and clear the residence backlog.
What Erica Stanford has come up with is big, bold, pragmatic and above all, kind. It represents no threat to the integrity of the immigration system, the security or health of New Zealanders.
There’s no risk to New Zealand, there’s no greater pressure on housing or infrastructure that doesn’t exist today because those who would be approved are already here. We take on no more cost or risk than exists presently.
It is going to be interesting to see how the real Government responds to National’s politically brave proposal. To date they’ve simply announced a reset (by a stand in Minister) devoid of any actual policy or delivery timeline.
I am confident my plan works and benefits everyone - the processing headache goes away for the bureaucrats, we reward all those migrants in the country filling jobs we could not and who did not abandon us when the borders closed and arguably most importantly thousands of local employers have the certainty they need to get through this Covid crisis and can focus on creating even more jobs and wealth for the country.
Posted by Iain on June 4, 2021, 12:52 p.m. in Immigration New Zealand
In these trying times of economic uncertainty deciding whether or not to use a competent immigration consultancy can be a difficult choice. Given there’s so much information available online on government websites and on social media the question is constantly asked ‘Are agents worth it?’
To which I would reply that given the majority of those that file Expressions of Interest in Residence of NZ or Australia themselves are declined, the answer is pretty obvious.
You might think of course he’d say that.
Let me give you an example of ‘value add’ and how having strong advocacy often makes a tremendous difference.
An Indian national came to NZ as an international student to do a Master’s programme with her partner. This was done knowing the Government encouraged international study as a pathway to residence by offering a two (now three) year open work visa once study was complete and a residence if they scored enough points. An added bonus was international students doing Master degrees have full-time work rights. The family was not our clients at that stage but did that all themselves.
When we met the client she had her NZ Masters degree, an ongoing and full-time job and had worked her way from managing one Auckland Subway store to managing two. This was at the time the government of the day was trying to purge the immigration system of tens of thousands of International students looking for residence. My advice to the client when she and her husband sought our advice was she ticked all the wrong boxes - on paper she looked to be a very good candidate for residence but she had a number of the ‘unspoken’ traits INZ would undoubtedly try and use against her - a former international student, a graduate job search visa, in a retail management role and working for a ‘fast food’ operation. It couldn’t be worse.
INZ likes to tell the world that the system is objective and every case is assessed on its merits. We have long known this to be untrue and there are plenty of unwritten rules. This was going to be a classic and I saw it coming so had the arguments ready.
Having carefully read her job description (for which INZ had granted a labour market tested work visa for ‘skilled employment’), grilling her on her tasks and daily responsibilities and then discussing all of this with her employer, we were satisfied the job she had was genuine (she’d been working there for around 18 months), was sustainable (the employer paid her salary on time and as per her employment contract) and the role was skilled (managerial expertise is the requirement).
In time INZ did exactly as I expected they would. They tried to argue the role was not skilled and was a ‘supervisor’ role. They were dead wrong. Endless arguments based on the reality of the role fell on deaf ears and was all the proof I ever needed that their mantra of ‘each case on its merits’ is to put it bluntly, a lie. They pre-determined the outcome and tried to make the facts fit that conclusion.
Ultimately, the client was declined.
However, around that time the Government changed the definition of what constituted ‘skilled employment in NZ’ from one based on an assessment of tasks to one based on the ‘effective hourly rate’ the applicant was paid. I saw an opening. This client was earning less than that effective hourly rate when we filed the resident visa. I explained to her boss that if he gave her a pay rise to the minimum effective hourly rate this satisfied a clearly ‘black and white’ criteria and INZ would have to deem it skilled. The employer agreed and we presented a new application with this new salary meeting INZ’s new definition of skilled.
To my surprise INZ accused the applicant of being a ‘risk to the integrity of the immigration system’. Once I picked myself up off the floor, I asked them to explain the logic. They said the client was only given the new salary to meet the criteria of skilled employment. That is correct I advised INZ, the employer does not want to lose her but this is your rule INZ and the employer is simply structuring his employment relationship so his employee met that rule. Simple, moral, logical and above all, legal.
INZ continued to argue, disingenuously, that the job offer could not have been ‘genuine’ because of the ‘sudden’ pay rise (is there any other sort of pay rise?). I rebutted that the client had by then been working for the employer for two years so how could the job not be genuine? And yes, the ‘sudden’ pay rise was designed so this employer could keep this highly skilled and educated migrant. The employer was simply playing by INZ’s rules.
I argued with INZ that when the pass mark was raised to 160 points in October 2016 I told any number of clients working in Auckland they needed to change jobs and move outside of Auckland to get the additional 30 points available; others that their partner needed to get a job to add 20 points to their overall claim, others to up-skill and get higher qualifications while in NZ to ensure they had a higher points score. I advised clients to reduce their hours to increase their effective hourly rate. I have told plenty more to give back the company car and get paid a higher salary in lieu and to provide their own vehicle and to forgo commissions and get salary instead. To do so is not dodgy and is certainly perfectly legal representing very good immigration advice. We don’t make the rules I tell everyone but we will tell people how to structure their lives and their visa applications to make sure they meet them.
I had never had INZ argue that any of those clients who had structured their lives to benefit from immigration criteria were a ‘risk to the integrity of the immigration system’. I pointed out to those higher up the food chain inside INZ that it is a bit like tax law - tax evasion is illegal; tax avoidance is not.
Surely an immigrant is entitled to structure their lives so as to maximise the points they can claim to ensure they secure residence? And if they can’t, against which criteria can’t they?
Eventually INZ backed off and approved the client’s residence but what a battle.
A rational person might think INZ would learn from this sort of thing but they don’t. You can imagine our surprise when a few weeks ago another client was also accused of being a threat to the integrity of the immigration system for precisely the same reason - a ‘sudden’ pay rise which made his job skilled by definition. This client had also been working for the company for a long time. As we had done previously we advised INZ that any employer can pay anything they like so long as it is over a statutory minimum and represents ‘market rates’. All designed to protect migrants from exploitation and being paid too little - we weren’t aware the government was concerned about migrants being paid too much.
They fought and fought. They called the client. They called the employer, clearly hoping one or the other would say something which confirmed in their stilted, poisoned world view that there was something dodgy with what had been done. The employer simply pointed out the obvious.
We won that case as well.
Two years after I thought we had helped INZ management understand that if you define skilled employment by what people are paid there will be many who will get pay rises to ensure they stay in the country, that migrants will change jobs or their circumstances to improve their chances of staying and in doing so they do not commit a federal crime. To try and frame this as some sort of ‘risk to the integrity of the system’ is aberrant nonsense and shows the system up for what it really is.
With the right Adviser controlling the flow of information to the bureaucracy and keeping these officers applying the rules as they should be applied, is the essence of how we add so much value, every day.
In a wonderful ending to this story I am over the moon to advise that our ‘pin up family’ for families split by the border and an uncaring Government, who I wrote an article for recently, was last night approved residence. The client’s husband and ten-year-old daughter (not hugged for over 420 days by her mum) will be flying to NZ Sunday to start their two weeks of managed isolation and their new lives. At last for them the nightmare ends, not because of INZ or the Government or iNZ but in spite of them. The client had some very nice words for the team at IMMagine.
Until next week
Posted by Iain on May 21, 2021, 11:16 a.m. in Healthcare
In 2018 we agreed to represent a couple in their early fifties from South Africa. Let’s call them Joe and Lucy (not their real names obviously). With to be under 56 years old to file a resident visa as skilled migrants, the clock was ticking. We had moved this couple’s daughter and grandchildren to New Zealand a few years earlier. All three adult children were by then living in New Zealand. Among all the advisers they could have chosen, this couple chose us on the back of their New Zealand based family’s advice.
Quick background. Client arrived in NZ, did all the usual stuff of trying to find skilled employment, suffering rejection along the way - no work visa, no interview, disinterest by recruiters because of visa status, HR Managers not wanting to involve themselves in visa processes, employer wariness, blah blah blah. The usual story. After a few months Lucy found a great job, well suited to her history in technical sales management. We secured her a job specific work visa. We secured Joe a partnership based work visa. He arrived and used that job to secure work with the NZ Government.
Around the time she secured her role, we filed their Expression of Interest given the clients had a prima facie claim to 160 plus points. As expected it was selected quickly and they were invited to file their resident visa application. We did so in March 2020.
Into the so called ‘managed queue’ (backlog) the application went. Then it was likely to take two years to secure residence. Our advice was unless Lucy could find a higher paying job and we could get her case transferred into the ‘priority processing queue’ she could do nothing but put her life on hold and be patient. Like so many trying to escape the 30 month wait for residence these days, Lucy went and found that better paying job. We got her a variation of conditions to her work visa to take up the new job.
So far so good. So far so normal… 18 months since we met for the first time.
In July 2020 a bombshell. Joe was diagnosed with possible colo-rectal cancer. The couple realised immediately the implications for their future in New Zealand.
Migrants are expected to have a very high standard of health to secure residence at the time the decision on their residence is made (unfairly, not when the government takes their money). The rules are pretty clear when it comes to cancer - an applicant will not be deemed to be of an ‘acceptable standard’, if the chances of them being alive 5 years after diagnosis and treatment isn’t at least 90%. Following treatment, involving pre-surgery chemo, Joe provided us with advice from his Oncologist that his odds of survival to 5 years was only between 50% and 70%. A bitter blow. I tried to delay INZ making a decision for as long as possible to allow the maximum time for Joe to start his recovery and for us to get feedback on the success of the operation. I asked them to put someone else in that queue ahead of Joe and Lucy - it would make no difference to INZ but potentially be a game changer for Joe. Any way we sliced it Joe was not, on the face of it, going to be eligible any longer. INZ would have none of it (even though they don’t mind operating a 24-month processing queue and we only filed residence in July 2020).
Immigration policy allows someone applying for residence to seek what is called a medical waiver. This basically allows an applicant to put forward the best possible evidence for allowing them to stay. As part of the medical waiver all parties recognise the health of that person is not up to scratch. It is not a box ticking exercise and is highly subjective. The arguments must be carefully presented and the evidence of a high standard.
In this case we essentially argued:
• All of Lucy’s adult family and her grandchildren live in New Zealand - she is close by in the event the family needed help and support and not 16,000km away
• Lucy has no immediate family left in South Africa
• One of Lucy’s adult children in NZ has, since he was granted residence, developed a degenerative disease - forcing his mother to leave when she can offer support to him, his partner and his children would be unreasonable and inhumane
• Lucy had a well-paying job at least twice the median average - well paying enough to get her priority processing of her residence based on (the spurious in my view) ‘value’ (according to INZ management) she represents to the economy
• Lucy and Joe were increasingly well settled and contributing to the economy
• Lucy had a level of specialist skill that INZ had recognised through the grant of her work visa which could not have been granted if INZ felt a local was being denied a job
• Over her and Joe’s remaining guaranteed working lives they’d contribute at least $450,000 in personal taxes (with Lucy the bulk of that) far outstripping any possible cost for any potential future treatment for Joe i.e. they would likely be net contributors to NZ’s tax base even if Joe needs further treatment
• The inability of the Health Ministry to quantify the cost of any future treatment that ‘may’ (according to the immigration rule book) be required. On these criteria he might need nothing or he might need a lot - such is the nature of cancer diagnosis and treatment.
That final point was the real eye opener for me and shows how asking the right questions can have such a huge impact on outcomes - his Specialist who did the operation, like so many specialists in NZ is a self employed private practitioner who works in the public system. Obviously he has his charges that the tax payers front but it was incredible to me to learn that the heath system itself could not tell him, and therefore us, what the cost of this future treatment might be. Or what the tax payers had paid for the treatment to date. A stunning and very useful revelation and any Immigration Advisers reading this should take note! In my view if INZ could not quantify the future cost that ‘might’ be required and given while Joe is on his current work visa (valid like everyone thanks to Covid, till December 2020) he is covered by the public health system anyway (that’s why if you plan on staying 12 months or more you have to do a full medical to get a work visa), then the ‘cost’ was impossible for INZ to pin down. It would not be fair in our view to deny someone residence citing possible cost if the Government itself cannot tell us what that cost was or might be.
I confess quietly I wasn’t quite so confident but in my mind I thought if the residence was declined there was a very good argument for humanitarian approval under appeal given the facts above. What bothered me was having a client with a known probability of survival in five years as low as 50% was not a great hand to play. However, given at IMMagine we had argued many medical waivers including a number of clients who had been diagnosed and treated for cancer for far less than 5 years I was not without a strong sense of conviction it was a medical waiver, that when all other factors were taken into account, should be approved.
But this is INZ we are talking about…
We were therefore excited and proud beyond words when the case was approved on 20 May. INZ accepted our arguments.
This is the part of this job I love. To present that precious resident visa to a couple we have collectively worked our butts off for three years to deliver a future in NZ to. It is these complex cases that get me out of bed in the morning and which will likely be the death of me. To deal with the curveballs so many cases throw at us and to hit them out of the ballpark is immensely satisfying. The cases where emotions run high. Lucy’s employer pressured her to take the case off us and to a big law firm when the cancer was diagnosed. She refused. Lucy wanted to stay the course with IMMagine given the faith she had in our team.
They made it. Standing atop the mountain enjoying the view. Exhausted. Relieved. Elated.
I wish them and their extended family many happy years together.
Until next week
Posted by Myer on May 7, 2021, 10:20 a.m. in Immigration
It’s always easier the second time round.
It was words to that effect made casually over a barbecue (that’s braaivleis to our South African readers) by a good friend of mine that was the catalyst for today’s blog. He said to me that he found migrating to Australia a “breeze” compared to his previous experience regarding migration to the United States and, whilst I do think that Australia is an easier cultural fit for many of our clients than the United States, he said that a lot had to do with the fact that he had a much better mindset and attitude for his second migration.
I think that many of our clients who have immigrated previously to Singapore, Hong Kong or the Middle East will confirm that it is often easier the second time round.
Barbecuing duties and the distraction of too much good Aussie red wine prevented me from questioning him further over this casual comment but he elaborated subsequently.
When I look back on my migration to New Zealand as a twentysomething year old South African lawyer I recognise that I too made similar mistakes and found my migration to Australia (20 years later) substantially easier.
So what are the lessons learnt of prior migrations that can be passed on to new migrants?
1. Your new country, whether it be New Zealand or Australia is not perfect so don’t migrate expecting paradise. My partner Iain and I often tell migrants that we don’t live in paradise, we live in Melbourne and Auckland respectively. We have our problems as well but when you consider the lifestyle that we enjoy in both Australia and New Zealand and the type of issues that our clients have to deal with whether it be crime and violence in South Africa, lack of work life balance in Singapore or political instability in Hong Kong, we thank God for our lives in New Zealand and Australia. The point is however it’s not all good and it’s not all bad.
2. You need to create a life for yourself whichever country you immigrate to before you can make comparisons with the life that you have left. It’s unfair to make judgements about your new life until such time as you have lived in your new country for at least a year and can make a fair comparison between the sacrifices you have made to the gains you have achieved. I don’t suggest that anyone travels back home until such time as you have been living in the new country for at least a year.
3. My more motivated clients often tell me that they are prepared to “start at the bottom” if needs be but in actual fact one never starts at the bottom. Unless you are the managing director of Woolworths or some other “big wig” you will invariably start in the middle but be prepared to take up a position of employment that isn’t necessarily a step up the corporate ladder but might be commensurate with the type of position you occupied prior to migration.
4. Do as much research as you can prior to migration. Having family and friends can often be invaluable and listen to the settlement advice they give as they have often gained this advice from making mistakes themselves. Just don’t take visa advice from them. It’s far better to learn from the errors of others if possible.
5. Choose a good migration agent that can help you not only with the visa application process but also provide input into post visa grant issues.
6. It’s a team approach and if you have a spouse or partner they have to be completely on board with the decision to migrate. We find migration tends to make relationships stronger or breaks already weakened ones.
7. Children are more resilient than parents. So often parents tell me that they would like to immigrate within a particular timeframe to coincide with the commencement of the school year in order to reduce trauma for children. Young children are far more adaptable than we give them credit for. They will make new friends and adapt to a new environment far more easily than you, their parents will.
8. Be flexible about your destination. Whilst you might have a preference in terms of migrating to areas where you have friends or family often the visa process will select the migrant. For example it might be easier to obtain permanent residence in either Australia or New Zealand, not necessarily both and you may have to make compromises as to which state in Australia or city in New Zealand you migrate to because of issues relating to state sponsorship in Australia or perhaps points for migration out of Auckland in New Zealand.
9. When you first migrate realise that you are on a honeymoon. The honeymoon period tends to last three months, thereafter it’s almost as if the in-laws have moved in when reality sets in.
10. Remember the reasons why you migrated and have a big picture attitude to coping with minor irritations after the honeymoon period passes. I had a South African client of mine tell me that he wrote the reasons why he migrated on the back of a matchbox (in the days when smoking was far more popular and people used pens ) to help him stay motivated on the days that he felt despondent.
11. You cannot expect the same recognition that you enjoyed in your home country when you first immigrate. The fact that you may have owned a company that employs 30 people or your former station in life will have little bearing on the amount of recognition that you receive when emigrating. My friend told me that it was difficult to obtain his first credit card because of lack of credit history but as soon as he had one credit card he had 100.
12. I don’t think that the expression “blood is thicker than water” necessarily is true to migrants. Often the friends that you make whether they be fellow migrants or New Zealanders or Australians are far stronger than friendships that you had in your home country because they are forged in a cauldron of stress and upheaval. The fact that you might be going through similar difficult conditions and able to draw upon each other’s strengths tends to forge friendships that are as deep if not deeper than family ties. Some of my most enduring relationships were formed in the early days of my migration.
13. Be kind to yourself. I know that this sounds like an Ellen DeGeneres line but don’t have unrealistic expectations as to what can be achieved within a short period of time. I remember expressing admiration to a client of mine who managed to buy a house within his first year of migration only to have to listen to how much he had sacrificed in South Africa. It’s difficult to be happy when you are beating yourself on your back as opposed to patting yourself on the back for a milestone that should be a joyous occasion.
14. It’s not all about the job. We do understand that jobs are important but many have the misguided impression that if one secures employment one qualifies for residence. I recently consulted with someone who said that she was scared “shitless” about the prospect of immigrating without finding employment and that’s usually the aspect that concerns me least. Australia and New Zealand have very low rates of unemployment and nearly all of our clients find employment within three months. It’s far more important however to be concentrating on what are the steps to qualify for appropriate visas than focus on employment.
We have been working in the migration industry for more than 30 years and assisted thousands of migrants from all sorts of countries and backgrounds and can identify those that have the “right stuff” from those with what would be described as having a “sucky attitude” in Australia and New Zealand who may have to make some attitude adjustments in order to make a successful migration and are happy to share our wealth of knowledge with those thinking of making the move.
Posted by Iain on Dec. 15, 2017, 2:58 p.m. in IMMagine
The Immigration Department and most of our clients appreciate how seriously we take our jobs, the importance we attach to getting things right and the professional pride we feel every time we can tell a client ‘visa approved, hope you enjoy your new life’. However, that is not an externally driven process; it has always been something that we demand of one another as Advisers and is the reason we have watertight internal systems to ensure two sets of ‘licensed’ eyes check every strategy we are retained to execute and visa application that leaves this office.
As part of our licencing, we are required to operate robust systems and we had these in place long before this industry was regulated and it became mandatory. I suspect this was part of the reason why, when the Immigration Advisers Authority was being established, I was asked to sit on the Government’s working group to advise on the appropriate structure for it and then was invited to sit on the reference group during its first year of operation. It is fair to say I believed that those of us who believe in the simple adage of ‘treat others as you’d like them to treat you’ (with a pinch of caveat emptor), these regulations controlling everything we do was not required. I have come to accept, however, that not all Advisers are as good, honest and professional as we are.
I never thought that the IAA might, in a roundabout way, protect us from our own clients but as this piece demonstrates, an unintended consequence of making sure our systems are extremely robust is that we are protected from the rare client that might have questionable ethics.
We have only ever had two complaints filed against us in the ten years we have had licenses (during that time we have processed in excess of 10,000 visa applications) and both have been thrown out as baseless.
While both in my view were always destined to fail, the second was an interesting test in my mind of whether the Registrar of Advisers would come down on our side and accept that no company does more to ensure that their processes and systems are possibly the most robust in the industry, but that we cannot be held responsible for clients that choose to be less than honest with the evidence we are asked to present on their behalf.
During the investigations into the first complaint, our internal processes were scrutinised, tested and stood up to very close examination, and the complainant thoroughly discredited given she was clearly the master of her own misfortune.
A few years ago we agreed to represent this particular client who, like most of you reading this, required a job offer to secure a resident visa under the skilled migrant category. Having represented other members of her family and having delivered to them everything we’d promised, this client came to us to replicate that outcome.
My partner assessed her eligibility whilst she was in South Africa and considered matters beyond her potential points score as well as (as we always do) how employable she might be at the time within the NZ labour market. A strategy was presented to her and the factors for success all carefully explained in detail in writing before the process began.
She came to NZ, but struggled to get work (this was around the time of the GFC). After several months she secured employment as a ‘Store Manager’. Before suggesting she accept the job, we got a copy of the proposed job description, the draft employment contact, and we spoke to the employer to satisfy ourselves that the job itself ticked all the Government’s boxes for being ‘skilled’. We were satisfied - based on the written advice we received..
We filed a work visa based on this information and it was approved and issued. The client began working. To be approved, INZ had to accept that it was a skilled position based on the evidence presented, which they clearly did having taken the evidence at face value. So far, so good, and no surprises.
A skilled migrant residence application followed. INZ carried out routine verification on the job by way of a telephone call to the client. She panicked (at the time we just presumed it was because she was very highly strung) and terminated the call to INZ and then called my colleague handling her case. She wanted to know what she should tell INZ when they called back. Although he was confused by the question his advice was simple and transparent. Tell the truth. According to the employment agreement and job description your job is skilled, so answer whatever questions they put to you.
When INZ called back, the description that she gave of her duties differed materially to the written job description she had presented us. We read the interview transcript later provided by INZ and the evidence was irrefutable. While she was busy shooting herself in the one foot, her employer had been busy blowing off the other one. He had received some written questions from INZ, which had corroborated her version of what she told INZ on the phone that she actually did all day – not what her employment contract and job descriptions said she was actually being employed to do.
While we did what we could to get her out of the mess she had just created through being less than honest with us about the true nature of her job, the application was understandably declined.
She demanded her money back from us and threatened a complaint against my colleague if we didn’t. She was basically accusing us of negligence (saying that we didn’t prepare her for the telephone interview with INZ) and incompetence (saying that we should have been able to make INZ realise her responses on the phone were contestable – they weren’t).
I knew that we had been rigorous in our assessment of the job she told us she’d been offered, INZ had agreed that based on that contract and job description the job was skilled and gave her a work visa, so the only reason her residence case was declined was because the truth about her position was apparently different to the written information we had advised her on.
I refused to refund a cent and invited her to go through with her threat to file a complaint with the industry regulator. She did.
My colleague didn’t thank me for it and he hardly slept for the next 18 months as we waited for the IAA Registrar -not known to be kind on Advisers - to rule on the complaint. In my view, not unsurprisingly, the complaint was dismissed following submissions from us presenting file copies (which we were more than happy to do) and explaining that in the end we have to rely on the honesty of clients and cannot base our advice on anything but the evidence they provide us.
We asserted that the client had clearly misrepresented her actual daily tasks and responsibilities (as had her employer) in the employment agreement and that they had been caught out. We can hardly be held responsible for that. The IAA agreed and the case was dismissed with the observation our systems are very robust and the appropriate checks carried out and records of all that took place were kept.
What I didn’t know is that the client, who it seems must be a sucker for punishment, didn’t let it lie. Unbeknownst to us she then filed an appeal against the decision of the IAA not to uphold her complaint with the New Zealand Immigration Advisers Complaints and Disciplinary Tribunal.
That too was dismissed as lacking foundation.
The Tribunal ruled it is not for us to check the veracity of the offer unless we have reason to believe it might not be genuine or was misleading. We had no reason to presume the client or her employer were being anything less than 100% honest with us. Our internal checking and QA systems meant that three of us had sat together, reviewed the job offer and decided that it was skilled.
The reason I am writing about this is that there are lots of Advisers out there in the market and they are not all as ethical nor competent as those who work at IMMagine on both sides of the Tasman Sea. Equally not all clients are honest, either, and this was an interesting test of whether we could be held responsible for the actions of a rogue client.
In its decision (2016-NZIACDT -66 Edana Blieden vs Registrar of Immigration Advisers which you can read here) the Chair of the independent authority found that IMMagine ‘had robust review processes in place’ and found the complaint was without foundation and the appeal got the short shrift it deserved.
The Chair raised the obvious question; given the client went on to secure a resident visa when employed in the ‘same’ position with the same employer in the same location through a second and subsequent application, how was INZ able to approve it?
That is a very good question and one we also asked Immigration New Zealand. How could they approve a second application when they found the first time they looked into the job offer it was not skilled? What changed? The employer didn’t, that much we know. The client advised the title was the same.
I asked INZ to audit the decision to approve the later application and they said, without showing me any evidence, that both decisions were correct. That points to only one explanation – the second job offer was modified and INZ, for reasons only they can explain, accepted it. My suggestion INZ might want to investigate thoroughly to ensure the client and/or her employer hadn’t filed misleading information was not taken any further. I suspect INZ didn’t want to investigate because it could have gotten very embarrassing for them as well.
In the end we can only control our own systems and processes and ensure our quality assurance is the best in the business.
That means ensuring nothing leaves this office that is not 100% accurate. I have always insisted that a second licensed Adviser check all case strategies before we agree to represent any clients, all temporary visa applications, skills assessments, qualifications assessments, all online EOIs, and all Resident Visa arguments and put their name to it on the file, as one seemingly small oversight can be the difference between success and failure. Two pairs of eyes is what leads to our success rate of almost 100% on visa applications.
Although there is no accounting for clients that mislead us or are doing jobs different to what their employment contract says, it is somewhat reassuring to see the Regulator helping to protect ‘vulnerable’ immigration Advisers, even though that isn’t their role.
Unfortunately in this social media driven world we are always at risk that a disgruntled client who shot her own feet off has the opportunity of running us down and we don’t have any way of countering it.
Her complaint to the IAA is part of the public record as is her appeal against that decision so I feel quite justified in writing about it.
The takeaway is both the Immigration Advisers Authority registrar confirmed in dismissing the complaint that the quality of the systems at IMMagine is the highest possible quality, that our QA process is robust and, in the end, clients trying dodgy things cannot hide behind us - they can get caught as INZ carries out its verification processes (that is, after all, what they are designed to do). Should they try something less than honest, they cannot blame the Adviser who acted in good faith and had the records to prove it. This was reinforced by the independent Chair of the Immigration Advisers Complaints and Disciplinary Tribunal.
Apart from being honest, it pays to stick with Advisers with robust assessment and detailed checking systems, track record of success and water tight QA processes, as we do.
Until next week...
Iain MacLeod, Southern Man
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