Discretion breeds discrimination in immigration

Any conversation about immigration evokes emotive response. It can evoke fear, threat, and invasion of what we consider to be ours.

On the other hand, it is about belonging, identity, loyalty, trust and acceptance.

These are two sides of the same coin and depends perception. Migrating is in effect entering into someone’s home; you are either welcomed and accepted or dismissed and rejected.

Variant approach

The stance a country takes towards its immigration policies is sometimes based on unspoken and undocumented parameters. Policies reflect the desired outcome by those in power and are implemented accordingly.

This explains the difference in approach towards a cross-section of the applicants. The language of the policy such as ‘comparable labour market,’ ‘desired or undesired candidates,’ ‘visa free’ ‘bona fides,’ ‘risk analysis’ and ‘threat’ are indicators of the side of the coin the applicants are perceived to be.

These indicators determine the level of welcome they receive and how their applications are processed. This is a possible explanation for certain decisions from the Delhi Branch of Immigration New Zealand being indifferent or ignorant to the developments onshore.

Complex picture

We have this wonderful term called ‘discretion,’ which basically means ‘I can do what I like’ unless one is bought to task by a judicial review or a complaint process.

When the above form of analysis is undertaken and the unraveling occurs, it is fascinating to observe the force behind these concepts, approaches and conclusions.

If to this mix is added the concept of revenue, growth and economic return, a very different picture emerges. The goal posts shift, gets complex and becomes more difficult to unravel.

Some immigration policies and decisions do not make sense; but on the face of it seem so unfair and unwarranted. But if the above context is understood, it can make perfect sense.

Because humanity and being fair is just not part of the consideration, it is really about which side of the coin the applicant is perceived to be. The outcome is intended.

Negative consequences

However, what is not intended is the flow of negative consequences. Measures are then put in place to address this, yet it addresses merely the symptoms. The elephant in the room remains unaddressed, because it is too difficult to do so. The economic considerations trump.

What is wrong with the system and needs correcting is very well known but is there the will to address it honesty? You be the judge.

Export education is one such example, it is a great revenue stream for New Zealand and a good source of skilled migrants but it is rampant with problems in certain sectors.

New Zealand wants student numbers and several incentives exist to ensure that the target is achieved. Prima facie, there is nothing wrong with this as it makes perfect business sense.

However, some of the courses selected by the potential students are viewed as mediocre and hence such applicants are considered undesirable for long term settlement. Again, this is the prerogative of the higher authorities but the decision has not been communicated to them.

No fair play

On this side of the coin, there is little room for fair play or good faith. It is lucrative business venture, played by its own rules. So despite the investment, both by New Zealand and the affected graduated international student, the doors remain closed.

As a Lawyer, I see desperation, fear and disillusionment in the eyes of those caught in this predicament. They are like cornered animals in door-less cages knowing that doom is around the corner.

I despair for them and wonder as a society what have we become.

Kamil Lakshman is a Lawyer & Principal of Wellington based law firm Idesi Legal Limited. She can be contacted on (04) 4616018 or 021-1598803. Email: kamil.lakshman@idesilegal.co.nz; The opinions expressed in her article above are her own and not that of Idesi Legal Limited or the New Zealand Law Society, or its Wellington Branch, or its affiliated bodies and committees or Indian Newslink. Readers can send their comments (names can be withheld from publication on request) also to editor@indiannewslink.co.nz

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