Tongan applicants buy good character certificates from cops for NZ visas.

http://www.stuff.co.nz/national/8307828/Tonga-wiped-visa-applicants-criminal-records

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INZ: I am Watching You, says the Court

Judge-Trevor-Faber1Recently, we have come across cases involving Indian work visa holders crying foul over the INZ’s decision to stop them from returning to New Zealand even though they held a valid visa to do so.

It may seem legitimate given that the effect of having a visa under s 43 of the Immigration Act 2009 only goes to the visa holders’ ability to present themselves at the border for entry permission. However, it becomes a different matter if the visa holders are not allowed to do so, as was the case with the Indian visa holders.

Here’s the nutshell of the case. INZ has become suspicious of movements by a group of Indian nationals. The suspicion arose out of the visa holders remaining out of New Zealand for a lengthy period of time, causing INZ to suspect that the visa holders’ jobs were not genuine. INZ also found out that most of their partners in India had been refused a partnership visa for not meeting the ‘living together requirement’.

Bent on its duty to uphold the integrity of our border, INZ took an immediate action to stop those suspected visa holders from boarding their return flights. First thing first, it advised those visa holders by email that it had decided not to allow them to board their return flights pending investigation. INZ also placed a travel alert in AMS against each of those visa holders to make sure that those visa holders are not allowed to board their return flights.

Those two decisions by INZ were the subjects of a recent judicial scrutiny in an action brought by a total of six plaintiffs, who were affected by the decisions: Kaur v Ministry of Business, Innovation and Employment [2012] NZHC 3563.

This case was an interlocutory application seeking interim relief against INZ giving effect of the impugned decisions. Such relief was not granted by the court.
However, what is more interested for the purpose of this article is the court’s position on the ouster clause under s 97 of the Act. INZ argued that the court’s jurisdiction is ousted by s 97 (4), which provides that the court cannot review the INZ decision to not allow a passenger to board a flight to New Zealand.

The court held that its inherent jurisdiction to review administrative decisions still prevails despite the ouster clause if the decision under s 97 is deemed to be so capricious and arbitrary that it was ‘irrational’ and ‘unreasonable’ in terms of the administrative principle. This is because such a decision cannot be deemed to fall within the statutory power under s 97 of the Act.

Whilst the court held that the plaintiffs did not successfully present their case on those terms, the Court took every opportunity to stress that INZ had no evidential basis on which the travel alerts was placed against the plaintiffs. No attempts have been made by INZ to substantiate its allegation of the suspected employment scheme. So far as the court was concerned, the INZ’s decision to place the travel alert was based on nothing more than a pure speculation.

The court did not overlook the consequence of placing the travel alert against the plaintiffs. Valid visa holders travelling on a genuine reason in reliance on their valid visas could run the risk of being prevented from returning part way through the working span of their visa. To say they have no judicial redress leaves them vulnerable to abuse of statutory power: per para [77].

The plaintiffs were not successful in obtaining the restraint order, technically because the impugned s 97 decision cannot have any bearing on their further attempts. The substantive hearing was to be held on 30 January 2013. However, this decision was enough to give INZ a stern warning that the court will not resile from its duty to review abuse of power in the shadow of the ouster clause.

Employer’s Benefit in Engaging Immigration Lawyer

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Recently, it has come to our attention that a number of foreign workers in Christchurch are crying foul over the government’s ambivalent positions on immigration issues.

Most of the foreign workers have been deployed into the region in line with the governments post quake effort to help revitalize the city. A number of changes in immigration policies have been introduced to reflect on the skill shortages in the region.

Now, the situation is reversed following the public outcry over the job shortages that allegedly caused by the foreign workers, who are now finding it difficult to renew their work visas. More stringent immigration requirements are to be introduced. When it happens, it affects foreign workers across the board, hence relevant to your business.

You know how difficult it is to find and train right staff for your business. It is often said that the cost of staff turnover is three times the lost staff’s annual pay. The new Immigration Act 2009 has brought home to business people like you a positive duty as to who you can hire and retain in your business.

Appreciating the hassles of all these, here is what a confident immigration lawyer can help you mind your own business:

– A focal point of contact for all your staff’s immigration issues;
– Managing the compliance requirements under the immigration law and policies;
– Communicating with immigration officials

All these benefits could be offered out of no cost to your business, as the immigration lawyer’s remuneration is the immigration consulting fees paid by your staff, who will also benefit from quality immigration consulting services on a pre-arranged special corporate rate.

Note: Michael Kim, who writes on this blog is an immigration lawyer, specialized in all immigration matters and more. He was formerly employed as an immigration officer at Immigration New Zealand over 5 years, hence conversant with all aspect of immigration law and policies. He also offers his hands-on experience within the internal operations of Immigration New Zealand as a benefit to his clients. For further information, please contact Michael Kim at michael@kentonlaw.co.nz.

Employer: Be wary of Pitfall of Immigration Act

Saint Paul, the Apostle, once said in his letter to Thessalonians:

For even when we were with you, this we commanded you, that if any would not work, neither should he eat: Thessalonians 3-10

Work is a sacred duty for all. No men should eat if not willing to work. For Saint Paul, it would’ve not occurred to him that the duty to work would only come with the legal right to work. However, for the immigration authority in Thessalonica, Saint Paul must have meant to say this only to the Thessalonians, and not the Corinthians or Galatians, who were without a proper visa to work in Thessalonica at the time.

Under the Immigration Act 2009, you are committing an offence if you allow any person to work for you when that person is not entitled to do so. Note that work is defined as ‘any activity undertaken for gain or reward’. Your duty has become a positive one, for the law requires you to take ‘reasonable precaution’ and exercise ‘due diligence’ to ensure no one works for you unlawfully. In other words, you cannot say “I am sorry, I didn’t know”.

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Note the legal jargons like ‘reasonable precaution’ and ‘due diligence’ used to impose the stern legal duty. These are the words that determine your fate if you are indeed charged with the offence under the Immigration Act. Now that INZ has opened an online visa checking system called, ‘VisaView’, it makes harder for you to argue you have taken the reasonable precaution and exercised the due diligence.

You just want to mind your own business peacefully. Then, be wary of the pitfall behind the stern duty to keep out the unlawful workers. The immigration law doesn’t make your good faith obligations as an employer any less onerous than otherwise it would under the employment law, even for the unlawful workers.

Misconceiving the law can lead to a fatal result. Here we have a recent case involving an unfortunate employer who was ordered to pay more than $30,000 in lost wages and compensation: Ten Hoorn Boer v Reid Research Services Ltd [2012] NZERA Auckland 142.

The employer in this case employed a South African national in an IT position at the company. The employer had a few run-ins with staff over performance issues.

While the staff member in the process of renewing his work visa, the employer made a couple of enquiries to INZ Call centre to find out if the staff member was entitled to continue working. To her surprise, the employer was advised that the staff member was not entitled to work, and she would be in breach of the Immigration Act should she continue to employ the staff.

Daunted or otherwise chanted by this advice, the employer dismissed the staff immediately. Unfortunately for the employer, the advice given by the INZ Call centre was incorrect. As it turned out, the staff member concerned was on a valid interim visa, which allowed him to work until his work visa renewal was being done by the INZ.

The employer argued that notwithstanding the good faith obligations and the procedural duties under the employment law, she had to dismiss the staff to avoid offence of allowing the unlawful employee to continue working …sounds like Catch twenty two?

You might think it was unfair for the employer to be deemed at fault by acting on the assumption that INZ advice was correct. Nonetheless, the Authority found that the damning should lie where it fell. It fell on the employer because the Immigration Act specifically provides that it will not be an offence under the Act to allow the unlawful employee to continue working while sorting out the contractual notice period.

Thus, even if the employer was correctly advised that the staff member concerned was working unlawfully, the employer nonetheless should have informed the staff members of the issue and provided an opportunity to negate the concern, as required under the good faith obligations.

Thus, here comes someone’s hard earned lesson to avoid the pitfall of the Immigration Act.

“Talk To My Hand, Sir”

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Immigration New Zealand (INZ) gets a slap on its wrist again for doing things improperly. This time, it was found not only in breach of the good old ‘fairness and natural justice’, but also in the high-handed attitude in dealing with someone’s livelihood.

Recently, the High Court in Auckland held that the Ministry of Business, Innovation and Employment (MBIE), of which INZ is a business division, has unlawfully suspended processing visa applications through Edenz College Limited (Edenz), an education provider with some 30 branches based internationally: Edenz College Limited v Chief Executive Ministry of Business, Innovation and Employment HC Auckland, CIV 2012-485-2532, 14 December 2012.

In fairness, MBIE got off on the best foot. It worked on information that some New Zealand education providers were linked with a large-scale student labour scheme. The investigation was necessary to uphold the integrity and quality of our export education industry.

However, it fell on the old habit of jumping the gun too quickly. On 22 November 2012, MBIE notified Edenz that all student visa applications would be indefinitely suspended.

As if it was not an enough bombshell, MBIE and NZQA issued a joint press statement about their investigation on the suspected labour scheme by some schools, and [as a consequence] it suspended processing visa applications from four education providers including Edenz. Unwittingly or otherwise, the statement was carefully worded to blow enough smokes that Edenz was one of the suspects of the illegal labour scheme.

In his honour’s brief judgment Ronald Young J held that the MBIE was in breach of its own Operations Manual, which required it to take into account ‘evidence’ and ‘reasons’ and severity of non-compliance, all of which could have mitigated the unsubstantiated allegations. Strikingly enough, MBIE argued at the hearing that its action was justifiable because it thought Edenz could not have come up with any of those mitigating factors.

In fact, on evidence was Edenz’s arguable case that the allegations on which MBIE’s decision was based were factually wrong and Edenz already answered the allegations of non-compliance by MBIE: per [45] to [53].

Edenz has been around some 25 years on. Many teachers and staff are employed in the business. Some 500 students were enrolled. At stake were their livelihoods and the business, which deserved a lot better treatment than this. Yet, here we see MBIE’s disinterested attitude of ‘Talk to my hand, sir’.

You would have thought a competent government agency like this one would do things by the book, but at times it seems unsure if it knows what it does. My cheers go to the lawyers who have successfully represented Edenz and upheld the justice in the end.

Unethical Adviser Struck Off

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We hear another story of a would-be immigrant let down by an unethical immigration adviser, who was willing to use his clients’ predicament to his own advantage.

Mr Richard Prakash, an Auckland licensed immigration adviser, acted for Mr Chand and his family on a work visa application, which was eventually declined. Subsequently, the parties agreed that a request to review the decline decision be made by the adviser. There was a disputed fact over a fee matter between the parties. Nonetheless, the adviser failed to have the agreement in writing as requested by the clause 1.5 of the Code of Conduct governing all licensed immigration advisers.

The fatal error of judgment by the adviser came later in the event where the clients exhausted all avenues to remain in New Zealand. The adviser, despite being in the best position to appreciate the clients’ predicament and willingness to return to their home country, decided to press the clients to pay more by way of withholding the clients’ passports.

The Immigration Advisers Disciplinary Tribunal has found the adviser’s impugned conduct of withholding his clients’ passports utterly unprofessional and dishonest: per para 58, Chand v Prakash [2012] NZIACDT 60. The Tribunal observed that there are few things so universally understood to be unprofessional and dishonest conduct [other than that of the adviser].

The Tribunal’s decision has recently been followed by a stern sanction of striking off the immigration adviser’s license pursuant to s 51 of the Immigration Advisers Licensing Act 2007. The Adviser was also ordered to pay $2,500, and is prevented from re-applying for the license within 2 years following his disqualification.

One may think it was a bit harsh to destroy the livelihood of the adviser, compared with the losses eventually suffered by the clients. However, where there has been a gross abuse of a position of trust for pecuniary interest of his or her own, the Tribunal seems to find no wiggle room for tolerance.

Christmas Visa for Santa

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Mr Kris Kringle, better known as Santa Claus, had to face questions by an immigration officer upon landing at the Auckland international airport last night. The rather unorthodox arrival followed an unfortunate event of Santa’s reindeers falling too ill to fly his sled.

Hell-bent on his dutiful authority, the immigration officer questioned Mr Kringle of his purpose in New Zealand. Traveling visa free on his German passport, it never occurred to him that he would need another visa. ‘The usual business I guess’ he chuckled. The answer nearly put him on the next available flight back to North Pole. This would have caused an unprecedented event of no Santa gifts for the good children in New Zealand.

So, what went wrong? The question in this case is whether Mr Kringle is a visitor on a ‘lawful purpose’. The lawful purpose of a visitor include holidaying or sightseeing, visiting families or relatives or receiving medical treatments or business consultations. Mr Kringle saw a trouble coming as he could fit in none of the lawful purposes.

But which visa? Mr Kringle may wonder. It’s Specific purpose or event visa, which is designed for the three broad categories of people.

Artists or sports people and their associate personnel, who will be engaging in a private or public performance, exhibitions and competitions in New Zealand are in the first category. Corporate executives or senior managers on a short-term secondment to a New Zealand subsidiary of an international company are in the second category. In the third category are any other people, who wish to come to New Zealand for a designated purpose or event, for which they have demonstrated expertise that is beneficial to New Zealand.

There is no question mark on Mr Kringle’s expertise in sorting out the naughty kids from good ones and finding the right gifts for them. Keeping the kids behave is in no doubt beneficial to New Zealand. Mr Kringle would have definitely qualified for the visa.

Luckily for Mr Kringle, the immigration officer was one of the good kids grown up in good terms with him. Out of goodwill, the officer let him in the country. But Mr Kris Kringle has now a big bold warning recorded in the Immigration system.

“No more entries to be granted to this subject if not on a proper visa”

Immigration Lawyer or immigration adviser?

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Recently, I represented a client, who needed a work visa to travel to NZ with a group of young school students, who are attending a three-month long school holiday programme organised by the client’s private language school domiciled overseas.

INZ has had a previous dealings with the client and had a question mark all over the client’s previous immigration history. The client was refused entry prior to engaging me for a work visa required for the holiday programme.

Received the application offshore, INZ had all the power to decline the application based on the questionable bona fides. Nonetheless, it turned its mind on the legality of the students’ holiday programme organised by the client. At issue was whether the holiday program required course accreditation from NZQA and/ or any compliance with the Code of Practice of Pastoral Care for International Students (the Code).

The issues were questions of law that required interpretation of relevant legislation including Education Act and the Code. As an immigration lawyer, I had to draft a thorough legal submission on how the client’s purported holiday programme was exempt from those legislative requirements suggested by Immigration Department. Eventually, INZ agreed with my submission and granted the client a work visa despite its grave concern on the bona fides.

Had I not been legally  trained, I would have had no clue on how to approach the issue, which was critical on the outcome of the application. This was an example that goes to show why you want to hire a legally trained representative acting for your immigration matter rather than the licensed immigration advisors.