Call for Overhaul of Border Policies

commentsNew Zealand has been under backfire from the headline story of a French au pair, who has been mishandled by border officials at Christchurch International Airport.

Last week, a 17-year-old French au pair was refused entry permission as she was suspected of taking a job opportunity for NZ nannies. She was accompanying an Australian family on the family trip for a week, where the costs of travel were paid for. She was put in a police custody, where she was treated like an inmate.
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The decision was based on the official’s concern that the teenager might be in breach of the visitor visa condition by receiving ‘gain or reward’ in return for looking after the host family’s young children.

As far as the border officials are concerned, the harsh decision was justified because he or she believed the gain or reward, be that accommodation or food, must be made available to a New Zealand nanny.

Eventually, Immigration New Zealand had to apologize officially for its action after the prime minister had said it was a harsh action.

This was not the first nanny story that made New Zealand became the subject of international disrepute when the border official refused entry to a 19-year-old Chilean teenager, who were treated the same as she was led to admit to a border official that she might look after her cousins while their parents were away. This story too caused NZ to be internationally ridiculed.

While entitlement to work in NZ is a privilege only available to qualified foreign nationals; the border officials have to realize the axiomatic rationale that the policies exists to protect NZ labour market.

The headline stories that brought NZ into disrepute call for a strong need for putting in place an operational guideline that requires the border officials to consider the ‘big picture’ of their entry permission instructions.

In practice, the officials could ask themselves questions like:

  • How serious is the risk this teenaged nanny poses to the NZ babysitting industry?
  • What are the balancing factors – i.e. negative publicity – to be considered before refusing entry permission to this teenager and stationing her in a prison cell.

Policies exist for a reason. Preventing overseas nationals from working in New Zealand is to protect the NZ labour market. It is a question of degree and balancing consideration required of reasonably minded officials. Otherwise, INZ might as well get the travellers to go through a computerised entry test similar to that of a license test at AA centre.

More than 3 million people visit New Zealand every year. Latest records show that export has become the biggest export sector, making up for the troubled dairy industry. If we do not fix our gatekeeping issue sooner rather than later, we may end up with a tale-wagging-the-dog situation. The tales that scare every traveller off the country.

INZ has promised the French au pair that the border procedure would be reviewed. We will need ask how they get on with this.

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Beware of The Upcoming Work Visa Changes

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Michael Kors is a graduate fashion designer, who has recently launched his new fashion brand ‘MK’ in High Street, Auckland. His trendy ‘Black and white’ signature style has soon become a hot topic in town, stirring customers into his shop.

Seeing unattended customers turning their backs out of the shop, Michael felt a desperate need to hire an assistant, who could ‘sell’ his fashion concept.

He lists a vacancy on ‘Trademe’, interviews half a dozen job seekers and finds Coco, who has recently graduated from a fashion school in France.

Michael puts together documents for Coco’s work visa application including the job ad and her employment agreement. He sends it away, hoping to get Coco start working as soon as possible.

He finds the whole application returned on his desk a week later. Enclosed is a letter asking for the ‘Skill Match Report’ for the shop assistant role for Coco.

Michael gets perplexed. ‘WTF is the Skill Match Report anyway?’

INZ is about to implement a new procedure for work visa applications for low-skilled occupations (skill levels 4 and 5), requiring the employers to list their vacancies through Work and Income NZ (WINZ) and obtain a Skill Match Report (SMR), confirming the availability of the NZers for the roles.

It will become a mandatory lodgment requirement, meaning that applications without an SMR will not be accepted for consideration (For more information, see http://dol.govt.nz/immigration/knowledgebase/item/19429).

When does it start? INZ previously announced that the new requirement would come to effect from March 2016. It is however expected sometime in April this year.

For more information about how to get an SMR, please see http://www.workandincome.govt.nz/business/recruit-staff/thinking-of-hiring-a-migrant-worker.html.

 

Crackdown on Disgraceful Employers’ Migrant Exploitation in NZ

Exploitation

A stringent new law has come into effect last Friday in an effort to crack down the greedy employers taking advantage of the vulnerable migrant workers, who are in New Zealand unlawfully or on a temporary Visa.

If found guilty under this new law, the employers may face and imprisonment of up to 7 years or a fine of $100,000. They may also face deportation if it they committed the offence within 10 years of obtaining residence.

It is often the case that the employers were migrants themselves in New Zealand and know that the migrant workers tend to give in to the substandard working conditions including long hours and under wages because of their employers’ sponsorship requirements for their visas. Immigration New Zealand has put in place a system where the unfairly treated migrant workers no longer have to put up with this crime for fear of their immigration status being jeopardised.

Serious failure to pay minimum wages, holiday pays or forcing the migrant workers to work against their will all amount to exploitation. If the evidence against employers suffices on a balance of probability, there seems be little defence for the condemned employers. How serious is serious enough will be evidentiary matters taking into account all relevant factors, including the amount of money involved, period over which the offence had occurred and whether the offence was clearly intentional.

This indicates the Government’s strong intention not to tolerate the abhorrent offence against the vulnerable people, which often brings the country into disrepute.

For further information click on the following link:

http://www.immigration.govt.nz/migrant/general/generalinformation/migrantexploitation/

” Look! The wages you failed to pay the workers who mowed your fields are crying out against you. The cries of the harvesters have reached the ears of the Lord Almighty.”[James 5:4]

Sensible Approaches by Business Migration Specialists

Recently, I was very pleased to see a couple of Entrepreneur residence applications approved by the Business Migration Branch following a series of interactions with the Business Migration Specialists, who were willing to listen to and adapt their views as the cases ran.

The residence applications were initially at the glimpse of falling back to their previous fate of decline because of the applicants’ inability to produce the business information from the business’ previous owners.

The Entrepreneur residence applicants were required to produce such information as the financial statements, GST Returns and PAYE information to satisfy Immigration New Zealand that they have positively contributed to New Zealand.

The Business Migration Branch has been of the view that the only way to establish this would be to produce such documents with reluctance to entertain any alternative information. Out of no exception, my two clients were put on notice of the PPI.

Then, I, as much as my clients, was lucky to afford some sensible approaches by the case officers to willingly look into the real nature of the businesses, which were, in fact, new businesses as they served different classes of customers with different types of goods and services although they were all in the same industry.

In the absence of the conventional documentation such as the financial statements and PAYE from the previous owners, the case officers were also flexible enough to entertain my reasoning based on the goodwill analysis and extracting PAYE information from the ACC payment information from the previous businesses.

In the event, the case officers were happy to accept my submission that the businesses ‘substantially’ contributed to the country, hence, meeting the visa instructions on the face of their predecessors’ negative assessments.

The happy clients are now making even greater contributions to the country thanks to the sensible approaches by the case officers.

So, thank you Mathew and Tom.

INZ’s ‘Trusted Partnership’ Scheme

INZ has recently announced its intention to buddy up with the immigration lawyers and advisors (immigration advocates) to implement so called “Trusted partnership programme”. The idea, INZ says, is to share the risks and benefits of sorting out the less than gold-plated visa applications with the industry stakeholders. The buddied up advocates will be given ‘the trusted partner’ armband. 

The average success rate of 90% or higher in each of the last five years of immigration practice is the price tag that comes with the armband. Once become one, the trusted partners will enjoy a “business class” service with their cases being processed on a fast track. No doubt this will become a huge marketing advantage at the expense of the “economy” class advocates and their “economy” class clients. 

The New Zealand Law Society was quick to disapprove the initiative taken by INZ. It is concerned the proposal will immediately put the advocates in a conflict of interest situation. I strongly agree. In fact, it is mind boggling as I personally see the idea being akin to the Nazi insignia. 

Being an ex-immigration officer and now practicing as an immigration lawyer, it is not all unusual to see clients facing utterly unfair and illegitimate PPIs. My duty is to confront INZ and jealously promote my clients’ legitimate interest to be treated fairly and by the rules. 

What would trusted partners do with those cases if they are at the blink of being dropped out of the 90% threshold? It is no brainer to imagine them encouraging their clients to withdraw the cases. 

I join the Law Society whole heartedly in opposing the unruly idea. In our industry, trust is the essence, not something to be incentivised for.  

Harsher Penalties for Migrant Bosses Exploiting Foreign Workers

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It is a welcome move by the Honourable Minister Michael Woodhouse to introduce a bill for harsher penalties for the migrant employers, who are found guilty of labour exploitation.

The curent penalties are set at maximum 7 years of imprisonment or fine up to $100,000 as per the Immigration Act 2009. However, the law only applies to those who are found exploiting unlawful employees. Once enacted, It is said the new legislation will cover the employers exploiting all foreign workers whether they are lawfully in New Zealand or not. 

Labour exploitation is not specifically defined in the Act, but s 351 of the Immigration Act 2009 describes it broadly to cover any serious breach of the employment laws including the Minimum Wages Act, Holidays Act or Wages Protection Act. 

The affect of this bill is significant for those migrant employers, who have had a NZ residence visa less than 10 years. If convicted, s 161 (1) (c) of the Immigration Act will allow the immigration officials to deport them to their home countries no matter how long they have enjoyed the every privilege of being New Zealand residents.  

The legislative move is in line with the recent change in the immigration instructions that will provide the victims of labour exploitations immunity from their own breach of visa conditions when they report incidents to the authority. 

This is  a clear signal to the migrant communities that bringing their third-world type labour cultures into this country will not be tolerated. The Minister of immigration and his team certainly deserve some browny points for this much needed efforts. 

New Immigration Amendment Act 2013

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National led Mass Arrivals Bill has just passed into law. The law will now effectively allow immigration officials to detain asylum seekers arriving in a group of more than 30 people. 

On the surface, the law requires the officials to obtain a court order before they can detain the asylum seekers, but it appears from the wording of the law that the court will have no option, but to issue a warrant of commitment if one is asked. 

Once a warrant is issued, the immigration officials can then detain the asylum seekers for an unspecified duration of ‘practical and administratively workable time’. The immigration officials will not have to assess the asylum seekers’ refugee claims during those periods. The immigration officials decide the ‘practical and administratively workable time’ of up to 6 months to start with, then a batch of 28 days at a time. 

The law also effectively blocks the asylum seekers from access to judicial review of those detention decisions unless they have the court’s leave. The law then tells the court not to grant leave unless they prove IPT failed to deal with the issues on appeal, and the issues pose matters of general or public importance. 

Section 22 of the New Zealand Bill of Rights says everyone has the right not to be arbitrarily arrested or detained. The Honorable Michael Woodhouse (Minister of Immigration) believes the new mass arrival law is consistent with this fundamental human right…yeah, right. 

Dodgy Employers On Watch

Recently, news media has published an alarming story that foreign workers were paid as little as $4 an hour by a restaurant chain in Auckland (See NZ Herald article here)

This had been a commonly known social issue for some time, but some employers managed to capitalize on the foreign workers' vulnerable visa status by forcing them into long working hours in return for token wages.

lt looks like lmmigration New Zealand finally got round to that issue. It has recently announced amendment to the temporary visa instructions (E3.35.c) that will see the foreign workers being able to report incidents of workplace exploitation without putting themselves into trouble by doing so.

The sub-clause (c) is a new insertion to E3.35 that gives Immigration officers discretion to disregard the whistleblower's own woes with Immigration compliance in the past and present i.e. working full time while unlawfully in NZ.

The victims of the workplace exploitation are in the best position for the government authority to bring justice to those dodgy employers. However, no one wanted to bell the cats because this would inevitably disclose their own non-compliance with Immigration law and / or visa conditions. In this regard, the new measure has some teeth for a change to this ongoing issue.

Let's hope and see some results happening in the next couple of months.

Want To Know What Priority Your Residence Application Is On?

Immigration New Zealand has announced the level of priorities given various residence categories. Those residence applications in higher priorities will be processed in preference to those in lower priorities.

First Priority
1. First Priority will be given to the following types and categories of applications for residence class visas:
(a) Skilled Migrant Category (SMC) applications with job offers
(b) SMC applications without job offers
(c) All Business Categories and Family Retirement Category (processed at Business Migration Branch)
(d) Residence from Work:
• Talent (Accredited Employer);
• Talent (Arts, Culture and Sport); and
• Long Term Skill Shortage List.
(e) Refugee Policy
(f) Partnership and Dependent Child applications where the partner or parent is:
• A New Zealand Citizen, or
• The holder of a permanent resident visa, and who has been absent from New Zealand for a period of at least two years prior to the date of the application being accepted for consideration, apart from short visits within that period. (Note that in the case of a partnership application, the New Zealand partner and the applicant must have been living together for 12 months or more in a partnership that is genuine and stable).

Second Priority
2. Second Priority will be given to the following types and categories of applications for residence class visas:
(a) Partnership and Dependent Child applications (which do not meet the criteria at 5 (f) above).

Third Priority
3. Third Priority will be given to the following types and categories of applications for residence class visas:
(a) Parent Category (Tier One)
(b) Parent Category (lodged before 16 May 2012); Adult Sibling (lodged before 16 May 2012); and Adult Child Categories (lodged before 16 May 2012)
(c) Parent Category (Tier Two)

You Just Failed Our English Test, Sorry

chinaStudentsImmigration New Zealand (INZ) has done it again. Following the court case involving a groupd of Indian work visa holders, who were refused to board their flight back to New Zealand, INZ interviewed 32 student visa holders, and has turned around 14 student visa holders returning to New Zealand from their trips to China. Worse still, the students were only able to find their fate at the border, having travelled all the way from China. It is said that the students were identified through INZ’s ‘screening and profiling systems’ as not meeting the ‘entry requirments’. So the case comes squarely on the issue of the INZ’s statutory power, as was the previous case.

INZ has power to grant or refuse entry permission on its discretion under s 109 (1) of the Immigration Act 2009. It is made clear in the subsection (6) that the decision is judicially reviewable, which follows that the the decision has to be fair and reasonable. So the question comes down to whether the decision to refuse entry at the border was fair and reasonable in all circumstances. it was said that INZ refused entry to one of the students because he could not speak or write proper English during the interview. If this is true, surely the INZ officers at the border haven’t learnt the lesson. There is no provision allowing the INZ consider English ability for the purpose of granting entry permission. They are not there to assess someone’s English ability so that they can be ‘satisfied’ that the student visa requirements are complied with. it is far out that INZ office at the border have yet come to grips with use of their statutory discretion.

I am inclined to believe that the ‘systems’ referred by INZ include the AMS Alerts entered against the profiles of the students, who were refused entry. The alerts must have resulted from INZ’s investigation following the recent student visa scheme from china. Be that as it may, INZ cannot afford to be seen as any more arbitrary than is now.