Kamil Lakshman
The new Immigration legislation is causing a lot of concern.
The number of persons providing misleading information to Immigration New Zealand (INZ) is on the rise since the commencement of the Immigration Act 2009.
The legislation has a low threshold and strict liability test.
This means in the years to come, many more migrants will be denied a visa on this basis because of character concerns.
Increasing denials
The failure to declare that a previous INZ visa application was declined can become one such basis of providing misleading information. The current thinking is that failure to declare a visa refusal constitutes providing misleading information as it illustrates a character issue as a lie is being told.
From a logical and common sense viewpoint, it is difficult to fathom how you can mislead a decision-maker of a decision that they have already made; but in the immigration, you can. Thousands of dollars are spent through official and judicial time over such matters.
Memory lapse
It usually comes about, amongst others, because the applicant cannot recall the date and nature of the visa refusal; or the applicant thought that INZ was already aware or had previously mentioned it in an application; or a third party is filling the application form and does not ask the applicant the question and assumes no visa was refused; or the applicant does not realise that a decline residence constitutes a visa refusal.
These matters in the scheme of things are arguably trivial, as it really does not constitute misleading in the strict sense. At its best it possibly is a mistaken belief.
System clogged
Such cases have the potential of clogging our system, wasting resources and we are missing out on potentially good migrants that deserve a second chance.
These can be avoided if INZ could do away with this requirement and develop in-house systems through its ‘Vision 2020’ platform, which is an online system, which could be programmed to load this data by linking it to a client number.
This preloading avoids all issues currently being faced, allowing INZ and the Ministry of Business, Innovation and Employment to concentrate on more important issues.
Depriving the deserving
What is even more astonishing is that the current legislation has the potential of depriving a person of residence on this basis.
Section 158(1) (b) (ii) of the Immigration Act 2009 states that:
A residence class visa holder is liable for deportation if any of the information provided in relation to the person’s, or any other person’s, application, or purported application, for a visa on the basis of which the residence class visa was granted was fraudulent, forged, false, or misleading, or any relevant information was concealed.
The future looks increasingly bleak. Beware, a small mistake may potentially cost you and your family the opportunity to reside in New Zealand.
A small tweaking of the system could prevent the despair of many migrants who are put through this rigmarole.
It would make more sense for the system design to be proactive rather than punitive.
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) to editor@indiannewslink.co.nz
