Tripping Up on Online Visa Applications

Written by Pitt & Moore Admin on . Posted in Immigration & Visas - New Zealand.

Would anyone, especially anyone like me who has suffered a computer melt-down, argue with the proposition that: The Internet is wonderful until it is not?

Likewise, we could say that the ability to apply for a visa through the Immigration New Zealand’s online system is a convenience both for applicants and Immigration New Zealand.

For immigration lawyers and immigration advisers it can be a cumbersome process, particularly when a client comes to you after they have initiated an online application through another lawyer or adviser, who used their personal Real Me account to commence the visa application process online.

Clearly, no one should handover their Real Me account details – this would give an adviser access to nearly all of a client’s interactions with the NZ Government. But where does that leave us? Often we are forced to start from scratch and re-enter the information, delaying the process and incurring further fees for our clients.

This exposes a clear flaw in the current design of Immigration New Zealand’s online system. I suggest that advisers should have a separate log in that gives them access to their client’s online visa applications. Alternatively, Immigration New Zealand should have its own, distinct verification and online visa application lodgement system separate from Real Me.

Another problem with the online application forms is that they do not provide a mechanism for an applicant to explain the nuances of his/her situation, for instance where an applicant’s second marriage is not legally recognized in New Zealand but is valid in another country. How do you record the client’s relationship status?

It is reassuring to see that our colleagues across the Tasman, in Australia, are struggling with the same technical issues with their equivalent online visa applications lodgement system (ImmiAccount).

An Australian Federal Court case decided in January this year Salama v Minister for Immigration and Border Protection (2017) FCA 2 (9 January 2017) provides a graphic illustration of the downside of Internet visa applications.

In this case, there was a question in the online form which required the visa holder to provide his relationship status. And a pop-up explanation on the electronic form indicated that an applicant should select the term that ‘best described’ her or his status.

The difficulty for the visa holder was that his marriage to his second wife, entered into before he was divorced from his Australian wife/sponsor, was valid in Egypt but invalid in Australia. So what was the correct characterisation of his current relationship status? There was no facility to record this information. So the visa holder indicated that he was divorced in the online form.

This response did not sit well with the Australian Department of Immigration and Border Protection. The Immigration department proceeded to cancel the visa holder’s visa, on the basis that his answer that he was ‘divorced’ was not correct.

Similarly we have seen Immigration New Zealand refuse visa applications on the basis of ‘incorrect’ responses made, for example, in online Skilled Migrant Category Expression of Interest applications.

Here are some lessons which I suggest can be drawn:

  • Immigration New Zealand cross-references the answers provided by applicants between different visa applications. So it is really (really!) important that the answers provided on one application form be completely truthful and consistent with other applications made by the same applicant.
  • The online visa application forms do not accommodate subtlety, complexity or nuance. They are binary in asking for “yes/no” type answers. Therefore, in situations where there is a lack of clarity, or where a simple “yes/no” type answer might not adequately characterise the facts, it is a great idea to communicate directly and immediately with Immigration New Zealand to provide detailed explanations and to provide the subtlety, nuance and complexity so that your client is not faced with unpleasant and unnecessary action from Immigration New Zealand. A cover letter uploaded with any online visa application can often help, but a follow up phone call never hurts.

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At Pitt & Moore our Immigration Team has extensive experience in all areas of immigration. As a full service law firm we have the resources to also offer any additional legal assistance.

Personal accountability of Immigration Advisers under the Code of Conduct

Written by Pitt & Moore Admin on . Posted in Immigration & Visas - New Zealand.

One of the fundamental obligations of Immigration Advisers, both under the Immigration Act and the Licensed Immigration Advisers Code of Conduct, is to ensure personal compliance with the Code’s requirements.

Not only does this require the adviser to personally give any immigration advice, but they also must personally explain the contractual arrangements with their client and their obligations under the Code.

That personal touch!

The importance of this obligation was reinforced recently in a High Court decision upholding an Immigration Advisers Complaints and Disciplinary Tribunal finding against an adviser (Immigration Advisers Authority v Sparks [2016] NZIACDT 27). In this case, the adviser was based in New Zealand and he assisted Filipino workers to obtain New Zealand jobs and Work Visas. In doing so, he relied on a Filipino recruitment agency to interview the Filipino workers and complete documentation, including visa application forms.

The adviser argued that he was able to delegate these functions to the Filipino agency (claiming that under Filipino law the functions had to be performed by a local person).The adviser had no personal contact with the workers until after they had arrived in New Zealand.

The Tribunal did not accept this argument and this view was confirmed by the High Court. The adviser was found to be in breach of several provisions of the Code including not performing his services diligently nor making the client aware of the Code of Conduct and the contractual terms.

In addition, the adviser was found to have engaged in dishonest or misleading behaviour in breach of the Immigration Act, by signing a declaration on the form certifying that he had completed the form and the applicant had agreed the information provided was correct.

It was noted that when the adviser did not have an active and personal role in completing the documentation there was a risk of incorrect information being supplied to Immigration New Zealand and it was not accepted that the adviser could “quality control” the information remotely.

For clients based overseas the adviser had to make personal contact through Skype or other means of personal communication (using an interpreter, where necessary).

Implications for Licensed Immigration Advisers

Advisers can delegate clerical work to unlicensed persons, however recent Tribunal decisions have made it very clear that this must only involve very basic data recording type of work. It is directed at administrative type tasks and the unlicensed person can have no role in assisting a person to fill in a form by telling them what is required or seeking relevant information.

So to make sure you comply, check your current business practices and procedures against the legal requirements, keep abreast with the developments in this area as they have the potential to have an impact on business operations, and if in doubt or if you have any questions, seek legal advice.

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Contact our Immigration Team today to discuss how we can assist you.

Nelson

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Nelson 7010
Phone: +64 3 548 8349
Fax: 03 546 9153
Email: mail@pittandmoore.co.nz

Postal address
PO Box 42, Nelson 7040
DX WC70013

Richmond

66 Oxford Street
Richmond 7020
Phone: +64 3 543 9090
Fax: 03 546 9153
Email: mail@pittandmoore.co.nz

Postal address
PO Box 42, Nelson 7040
DX WC70013

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