Posted on March 6 2019
Residency visa applications can be complex and at times problematic. Unfortunately, Immigration New Zealand (INZ) does not always get the decision or the process right.
For example, Immigration policy provides that for an offer of employment (or current employment) to be assessed as skilled, then INZ must be satisfied that the employment is ‘genuine’ (among other criteria).
Recently, we acted for a client and appealed INZ’s decision to decline his residency application on the grounds that the offer of employment was not ‘genuine’.
Our client’s appeal focused on several factors, including INZ’s determination as to what constitutes a ‘genuine’ offer of employment.
In summary, INZ relied on the fact that our client had not applied for a temporary work visa for the role that had been offered to him. Our client and his employer decided to wait until he obtained residency before starting in this new role.
Based on these facts, INZ concluded that the offer of employment was created simply to assist our client to obtain a resident visa. This was despite the fact that INZ’s policy allowed for this very situation.
The Immigration and Protection Tribunal decided in our client’s favour and indicated that INZ’s reasoning was incorrect. It held that an applicant for a resident visa is not required to first apply for a work visa in respect of an offer of employment. To put this another way, the fact that an applicant doesn’t apply for a work visa for a new position, cannot be relied upon to determine ‘genuineness’. The Tribunal did qualify its comments and indicated that INZ was entitled to draw an adverse inference as to the ‘genuineness’ of the position if the offer of employment had been left open for a long period of time without a reasonable explanation. Accordingly, each case will be assessed on the facts. There may be cases where INZ would be justified in reaching an adverse finding in a similar situation.
In our client’s case, the Tribunal ordered the application to be reassessed by a new INZ officer which included directions.
If you require assistance or advice on a potential resident appeal, or you are concerned that INZ has failed to follow relevant policies correctly in assessing your application, please contact us urgently as appeals generally must be filed within 42 days of INZ’s decision.
Our immigration lawyers specialise in refugee matters. Please contact one of our lawyers for advice.
Simon Graham, Partner
Christine Le Beau, Associate
Adam Curtin, Solicitor