Visa decline puts young woman’s future in jeopardy

Immigration New Zealand gets it wrong again, says lawyer

Venkat Raman

A young woman faces a bleak future after Immigration New Zealand (INZ) declined her application for a Work Visa in an industry which faces severe labour shortage.

Harpreet Kaur has valid qualifications to work in the Horticulture and Viticulture industry in Bay of Plenty, which the Ministry of Social Development had declared at that time as a region which acute seasonal labour shortage.

Raj Pardeep Singh, Principal Solicitor and Partner at Legal Associates, a South Auckland based law firm, said that Immigration New Zealand (INZ) has once again failed to be fair and consistent in its decisions.

Justice denied

“Her application under Section 61 of the Immigration Act has also been declined, although she is ‘fully qualified’ to receive a favourable decision and a Work Visa. INZ has failed to uphold its principles of fairness and natural justice in her case. Harpreet was in the first instance let down by another Immigration Advisor, who did not process her applications appropriately and on time. But we cannot allow an individual to become a victim on account of the incompetence or inaction on the part of a qualified and Licenced Immigration Advisor,” he said.

INZ declined Harpreet’s application for a Work Visa on April 6, 2017. Thereafter, she approached Legal Associates for help.

Harpreet is married to Gurjant Singh, who also became an illegal resident from the same date- April 6, 2017.

Unique Situation

“Harpreet’s situation is unique. She has complied with all the rules and regulations in force but due to improper assessment and processing by INZ she has become unlawful in New Zealand. The steps that she had taken and the efforts that she has made to obtain a visa are in line with what she considered to be a straight-forward process. It is unfair that she is in a pitiable situation today,” Mr Singh said.

Harpreet arrived in New Zealand on February 3, 2015 to pursue Level 7 course in Business Management leading to a Diploma at Royal Business College based in Auckland.

She was granted an Open Job Search Visa on March 15, 2016 valid for one year.

Application and Appeal

On February 17, 2017, her previous Immigration Advisor applied for a Work Visa under the Essential Skills Category for the position of a Nurseryperson. However, as Harpreet did not have either a Level 4 Certificate Qualification or three years’ work experience, she was not qualified for the position and her work visa was declined.

Thereafter, she applied for ‘Trainee Nurseryperson’ visa through Legal Associates, which was also declined.

On April 26, 2017, the same Advisor lodged a Section 61 Request with INZ seeking approval for Harpreet to study a Level 4 qualification in Horticulture.

INZ declined this application as well on May 31, 2017 without giving any reasons in accordance with Section 11 of the Immigration Act 2009.

“We do not understand why no reasons were given for declining the Section 61 request as it showed a clear pathway that Ms was trying to follow to gain the qualification and then work as a Nurseryperson,” Mr Singh said.

Variation of Conditions

Horticulture jobs including that of Nurserypersons have been listed under Labour Shortage List in the Bay of Plenty region. As such, those holding Visitor Visas may apply for ‘Variation of Conditions’ to undertake seasonal work in Bay of Plenty. This application will enable them to undertake seasonal work including planting, maintaining, harvesting and picking crops in horticulture or viticulture.

Mr Singh said that Harpreet is eligible for the Visa since she has Level 3 Qualification in Horticulture and that her qualification is ‘directly relevant’ to the Labour Shortage.

“Ms Kaur has also made a request for a Work Visa pursuant to Section 61 of the Immigration Act 2009, which enables INZ to grant a visa to any person who is lawfully in New Zealand,” he said.

“She has not been issued with a deportation or removal order. Section 61 is in force to facilitate people like her to obtain a permit or visa,” he added.

Internal Circular

In terms of an Internal Administration Circular (issued on August 13, 2008), decisions under Section 61 are subject to the general requirement of “fairness that is derived from public law principles. However, what fairness requires in a particular case must be determined having regard to all the circumstances including the particular statutory provisions under which the decision is made, the overall statutory scheme, what is known of the requestor’s circumstances and the consequences of the decision.”

According to Mr Singh, an application under Section 61 gathers strength in cases where a full and clear picture can be provided of the circumstances and the special nature of the case making it ‘out of the ordinary,’ there is there is solid evidence of his/her contribution to New Zealand and where the person has not deliberately attempted to remain illegally in New Zealand for a long period of time.

Victim of impropriety

“Harpreet has lived in New Zealand for three years and is compliant with the Immigration Law. She has never breached any visa conditions. She became an illegal resident because of improper advice given by her previous Immigration Advisor. She contacted INZ well in time to make sure that she is on a valid visa,” Mr Singh said.

“The grant of a work visa to Harpreet does not raise any public interest considerations. In light of this, it would not be contrary to the public interest to allow Harpreet to work in New Zealand on a short-term basis,” he added.

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