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Inequitable decisions betray logic

Shalini (not her real name) managed a hairdressing saloon, with a good compliment of staff.

She herself was stylish and understood the fashion and beauty industry well.

She was customer-focused and kept pace with the market trends.

Jacky (not her real name) runs a quasi-diary, managing the floor. She understood the needs of her customers, their tastes and preferences. She managed the stock and introduced new items that were appropriately priced to ensure sales.

Different outcomes

Both Shalini and Jacky had graduated with a Diploma in Management (Level 5). They were in-charge of their establishments and undertake generic management tasks.

They both applied to Immigration New Zealand (INZ) for permanent residence

The Department granted Jacky residence but declined the application of Shalini.

INZ tries to achieve consistency in its decision-making process. That is also expectation of all applicants and New Zealanders.

Is this a realistic and achievable goal? To answer the question, we must examine the procedures followed in the decision-making process of the above two cases

Blurred lines

INZ follows a number of mandatory requirements before a visa application can be accepted for lodgment. The application is then assessed against a specific immigration policy.

It is at this point that the lines become blurred.

Even though the requirements of the policy are transparent, the interpretation may differ. It almost becomes a lucky draw as to who you get to decide your application, which then determines the decision you get.

Some decisions do not make sense, as the applicant on an objective standard appears to meet the policy, but fails. The reasoning of the decision is far removed from reality – at times so harsh, so unfair and so absurd that the decision may lead to a tragic consequence for the affected party.

The case of Jacky was similar to that of Shalini but the same branch of INZ arrived at different decisions.

The ‘feeling’

How could an identical scenario result in such a different result, one being granted residence and the other being denied; or one being granted a work visa and the other being declined?

Is it rational or is it the ‘feel’ that the decision-maker has towards the application, which then becomes solidified and is followed by justification for the decision?

If yes, where does this ‘feel’ gain originate?

The outcome of each case depends on how the decision-maker interprets the policy and how he or she views facts of the case.

Human traits

The decision maker’s age, education and experience are relevant but so are factors such as ethnic and cultural background, country of origin and personality.

How can an individual be isolated from the sum total of what contributes to making them who they are? People bring to their jobs cultural paradigm, prejudices, realities and inherent awareness of the perceived risk despite the fact that all of them get the same training and are expected to apply the same set of instructions.

Some adopt a linear reasoning framework, while others are contextual and more conducive to taking a holistic approach when analysing the application. Some would be objective in their approach and less likely to undertake merely a ‘box-ticking’ exercise.

The penchant to seek answers to difficult questions may open doors to a completely new awareness level and insight but questions are rarely asked; treasured are those that do ask.

Achievable goals

Consistency of decision-making is an aspiration and a goal, but it is debatable whether such a goal is achievable.

Some would say that they should consult a good astrologer to determine whether their ‘stars’ are in alignment and the time is auspicious for submitting the visa application to INZ! They would believe that their luck would depend on their ‘stars.’

Shalini continues to be baffled by the decision of INZ to decline her application for residence, desperately wanting to know what went wrong, while Jacky is celebrating her success with her family and friends.

You may like to ponder over the two cases and determine the rationale or otherwise.

Such cases challenge law firms, giving them opportunities to try and rectify where possible and facilitate positive decisions in deserving cases.

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 from publication on request) also to editor@indiannewslink.co.nz

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