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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 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
Posted by Iain on Sept. 2, 2016, 2:09 p.m. in New Zealand Lifestyle
A few months ago I was approached as an ‘immigration expert’ by a local documentary maker, Nigel Latta, who does some very solid myth busting TV series, to take part in a programme he was making about immigration to New Zealand.
I was at first a little reluctant and wanted to know what the angle was, given most migrant stories tend to err on the side of the negative - migrants steal jobs, migrants are to blame for expensive houses, migrants don’t like to assimilate, migrants are a net user of health and education services - all the usual garbage peddled by the ignorant and the politicians who pander to that sort of uninformed bigotry. The Americans have Donald Trump, the brits Nigel Lafarge, the French Marie Le pen and we have Winston Peters and his NZ First Party.
I was assured this was not going to be anything other than an exercise in trying to shine some light on these issues.
I agreed to take part.
I have to say if you are living in New Zealand I urge you to watch it. It is on TV One next week but is also available On Demand’ and you can access it here. I am hoping it will soon also be on Youtube because it is, without any doubt, the most informed bit of grown up and dispassionate discussion on immigration to NZ that I have ever seen. It is well worth an hour of your time.
Without wishing to spoil the show, what is quite clear is that New Zealand’s immigration system is carefully targeted; skilled migrants don’t take jobs from locals, demand for English speaking skilled migrants is real and of benefit to NZ (and the migrant), they are not blame for rising house prices, they can be the victims of racism (but thankfully that is happening less and less) and New Zealand needs these skills because we simply are not producing skills what we need locally.
Oh, and the Chinese will assimilate if we let them.
It is often argued that migrants are a cost to the country but this programme quotes some very interesting statistics on the net dollar gain (or loss) of various migrants groups.
Topping the list with a net annual gain to the economy of around $5000 are the British. North Americans come in just behind them at a shade under $5000 per annum, third are ‘Asians’ at around $4500, Pacific Islanders around $2500 and who brings up the rear in terms of their net contribution to the local economy? New Zealanders. At around $950 per year.
Although not quoted I suspect, based on language and culture, that South Africans probably come in at the same level as North Americans.
Nigel Bickle, the head of Immigration New Zealand, does a very effective job of explaining why our system is designed the way it is and it might surprise many that our policies are based on solid research. I have to agree.
All those that think that perhaps we don’t need the migrants we let in or they do not add very much economically or socially should watch this very informative bit of television.
It’ll be a bit of surprise for anyone that has never been an immigrant but less so those of you who are.
Until next week
Posted by Iain on Oct. 9, 2015, 3:25 p.m. in Crime
Sitting on our deck up the beach house on Sunday enjoying some early summer sun my wife and I were jolted from our dozing by a car pulling into the driveway. Not expecting visitors we hauled ourselves off our loungers to see who it was. A good friend had clambered out of his car and was cussing and cursing. Turns out he and his wife had been at an ‘open (show) home’ that was for sale an hour or so further up the coast. Having poked their noses into all corners of the property they had set off for a walk along the sheltered and picturesque beach.
When they got back to their car my friend realised that he had lost his wallet. Mildly concerned but not too worried because there weren’t many people about he retraced his steps feeling confident he’d find it. Given however there had been some leaping over rocks on an incoming tide when he couldn’t find it he assumed it had been washed away. Credit cards, cash, driver’s license – the whole caboodle.
I asked him if he had been in touch with the credit card companies and cancelled his cards.
‘Nah’ he said ‘I’m pretty sure someone will find it and hand it in’.
‘Yeah’ I replied, ‘You are probably right’ (not really believing it).
A cup of coffee later and a wander around our property with us we all returned to the sun drenched deck to catch up.
Within ten minutes of sitting down his cellphone rang.
Is that Grant? asked the caller.
Yes it is, he replied.
Lost your wallet?
I’ve got it. You still in the area?
No, I’m halfway back to Auckland.
No problem, I’m the local Constable. I’ll courier it down to your local police station in the morning and it’ll be there by lunch time…..
Wallet and all it contained now back in Auckland.
Now this could happen anywhere. I know that. It just seems these things have a much higher chance of happening here in New Zealand.
It would have been very tempting for someone to have held on to that wallet or taken the cash and credit card and dumped it. But they didn’t. They did the right thing.
I reflected on this while scanning the latest crime statistics out of South Africa earlier this week kindly sent to me by a client just before I pack a bag and fly back there. I leave tomorrow morning to give another series of seminars in Johannesburg, Cape Town and Durban – the aim of which is to try and help people understand what sort of country New Zealand is if they are allowed to come and live here and spend time with those that want it to assess their eligibility to do so.
Crime is sometimes high on South Africans reasons for wanting to emigrate but it isn’t usually number one which beggars belief for me as a Kiwi.
I always talk about crime in New Zealand when I present seminars in South Africa as part of a desire to paint a realistic picture of life here – it ain’t all peaches and cream if it isn't obvious.
When I talk about crime I am quick to remind audiences we are not crime free. I have been burgled. Recently one of my sons had a car window smashed (he wasn’t in it) to gain entry to steal whatever he had in the car (which was nothing). So we have crime but overwhelmingly it is crime against property and not people.
Crime in New Zealand across every category has been falling for over a decade – fewer murders, fewer robberies, fewer burglaries and less violent crime. Safer streets. The one exception is sexual assaults which are statistically increasing – explained however by those that analyse these things to be less of an increase in actual criminal offending and more a willingness to report it by victims. Nothing to be proud of to be sure, one is too many – but if the rate of actual offending isn’t going up, simply more people are willing to report it, it is not a situation getting worse.
South Africa on the other hand is off the charts. The population of South Africa is estimated to be around 55 million (no one really knows). The population of New Zealand has just gone through 4.6 million (we do know). So in rough numbers their population is maybe 11 times our own.
In the past 12 months South Africa reported:
· Murders – 17,500 (up 4.6%). That is no typo. New Zealand had 38.
· Attempted murder – 17,500.
· Sexual offences - 53,000 (down 5.4% - less reporting?)
· Total assaults - 340,000
· Robbery – 55,000
· Carjacking – 12,700 (up 14%). I don’t think NZ had one.
· Robbery of premises 20,000 (up 5%)
To put that murder figure into some perspective, if New Zealanders murdered one another on a similar per capita rate to South Africans we would kill about 1,500 Kiwis a year. A bad year here is 50. A typical year is 35-40.
Got to paint a picture about your odds of being a victim of serious crime here.
Or to put it, another way in the decade the US had troops in Iraq fighting a war they lost about 4400 servicemen and women killed in battle. That people, was a war. And over almost a decade. South Africa (not a war apparently) kills around four times as many of its own citizens on their streets and in their homes as the US lost in a decade long war, every single year.
Quite horrifying numbers, yet there are still plenty of South Africans who live in their houses on the golf estates (protected by armed security) looking out of their windows (burglar guarded and barred) to their lovely gardens (surrounded by 2 metre concrete plastered walls topped with electrified razor wire) wondering why anyone leaves.
My advice is to get out more . Out of the country.
I am amazed how many people tell me that they lead great lives and they aren’t really affected by crime. Where I live we describe such living conditions as a ‘prison’. A guilded cage perhaps, but a cage nonetheless.
And so I return tomorrow to the South African 'war zone' for the last trip for me of 2015.
Packing my Kevlar when I finish writing this. Not really but I do sometimes wonder….
Until next week
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