New case note – Complaints about Immigration New Zealand

Legislation:
Ombudsmen Act 1975
Related legislation:
Immigration Act 2009
Agency:
Immigration New Zealand
Ombudsman:
Peter Boshier
Case number(s):
517513,
520437,
520490,
520652,
520725,
520762,
521293,
521606,
525075,
520597,
526634,
526641,
529519,
531153,
532405
Issue date:
Format:
PDF,
Word
Language:
English

The Chief Ombudsman has issued a case note which highlights a number of complaints about Immigration New Zealand’s decision-making on Skilled Migrant Category residence visa applications and the Employment Visa Escalation Scheme.

Summary

The Chief Ombudsman has issued a case note which highlights a number of complaints about Immigration New Zealand’s (INZ) decision-making on Skilled Migrant Category (SMC) residence visa applications and the Employment Visa Escalation Scheme.

The Chief Ombudsman received 15 complaints about Immigration New Zealand’s decision to allocate SMC residence visa applications in accordance with internal priority criteria. The complainants claimed that:

  • INZ was ‘cherry-picking’ certain SMC applications and allocating these ahead of other applications;
  • these prioritisation criteria were inconsistent with the immigration instructions;
  • INZ had not been transparent with applicants and prospective applicants about the criteria.

A secondary issue was the Employment Visa Escalation (EVE) scheme, which INZ used to consider individual requests for urgency. Two complainants raised concerns that INZ had not properly considered their requests for escalation.

Four of the 15 complaints were resolved or withdrawn before the Chief Ombudsman formed a final opinion.

When the complainants lodged their SMC applications (between December 2018 and August 2019) the INZ operational manual stated that first priority will be given to SMC applications with job offers.

However, informal priority criteria developed by INZ’s residence management team and discussed with the national manager at the time added in a sub-category that included the following criteria:

  • the principal applicant’s salary was equal to or over twice the median wage;
  • the principal applicant worked in an occupation that required occupational registration; or
  • the employer was a government department (later removed).

From February 2020, the priority criteria were formalised with the following criteria:

First priority will be given to the following types and categories of applications for residence class visas in preference to applications under other types and categories:

                   …

          ii.            Skilled Migrant Category (SMC) applications with job offers; and
within this category, priority will be given to:

  • Applicants with an hourly rate equivalent to or higher than twice the median wage (currently $51.00 per hour or an annual salary of $106,080 or more);
  • Applicants with current occupational registration where registration is required by immigration instructions;

 

The Chief Ombudsman’s opinion was that the decision by the deputy chief executive of INZ to amend instructions in February 2020 was reasonable.

However, in the period between mid-2018 and February 2020, the creation of the informal priority criteria was unreasonable because it exceeded the limits of authority and lacked transparency.

“The instructions at the time … were for applicants with job offers to be given first priority. There was nothing in the instructions to suggest further stratification of priority should take place,” the Chief Ombudsman said in his opinion.

“The Act does not permit immigration managers to issue general instructions … there is a fine line to walk between a reasonable exercise of managerial discretion, within the limits of delegated authority, and exceeding that authority. In this case, the Chief Ombudsman considered that the line had been crossed.”

He recommended INZ apologise to the complainants, refund their application fees and report back on the steps it intended to take to prevent similar issues from reoccurring.

 

 

SMC prioritisation criteria – Frequently Asked Questions

This section is intended to answer questions received by this Office from affected applicants. It does not form part of the Chief Ombudsman’s opinion.

Why didn’t the Chief Ombudsman recommend that INZ prioritise applications in date order and/or recommend that affected applications be prioritised?
INZ is obliged to comply with the general instructions on the order of processing applications under A16.1 of its Operational Manual,[1] even if those instructions were different at the time the application was lodged. Section 26(6) of the Immigration Act 2009 permits these instructions to take effect retrospectively.

It would not be appropriate for the Chief Ombudsman to, effectively, recommend that INZ disregard A16.1.

Why didn’t the Chief Ombudsman fine or order INZ to pay compensation?
An Ombudsman’s role is restricted to the review of administrative acts and decisions. It is not the role of an Ombudsman to determine questions of legal liability or to assess compensation. That power lies with the Courts.

I am an affected applicant – how do I get a fee refund?
INZ has published details on who qualifies and how to obtain a refund on its website:

www.immigration.govt.nz/about-us/media-centre/news-notifications/refund-requests-for-unallocated-skilled-residence-class-visa-applications.

 

[1]     The current instructions are published on www.immigration.govt.nz/opsmanual/#44854.htm

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