01 July 2021

 

Residence Visa Applications – Three key risks where your application can fail and what you can do about it

 

Many people in New Zealand are waiting for an outcome on their Residence Visa application. Residence Visa applications are expensive, take a long time to process and there are high standards to meet. Residence Visa Applications are failing due to three key risks, health, character and skill. Reports of applications failing on these grounds have been highlighted in recent media reports. 

As of May 2021, Immigration New Zealand have 46,955 applications for Residence on hand from all of its categories.[1] This is a small but substantial decrease from the 51,241 applications it had on hand in May 2020.[2]

 

A number of key factors in this reduction include the approval of applications, the withdrawal of applications and the lack of new applications for Skilled Migrant Category coming in.

 

The decline of applications is also a substantial factor in the reduction in numbers – here below is a number of ways in which applications for Residence can be declined by INZ.

 

Acceptable Standard of Health

As part of all Residence Applications, all visa applicants and particularly Residence Visa applications have to have an ‘acceptable standard of health’ (ASH). The rules around this include a list of conditions and the benchmark than applicant’s medical condition which will not require health services costing at least $41,000.

 

A recent example of where this has affected a Residence Visa application is that of Mondelea Bezuidenhout. As reported in Stuff.co.nz – Immigration New Zealand did not consider her as being of acceptable standard of health due to her Body Mass Index (BMI) among other factors.[3]

 

While there may be factors in this case which have not been made public – decisions around ‘acceptable standard of health’ can on occasion be questionable. Particularly the use of the BMI by INZ as a factor. Having a high BMI is not always indicative of overall health – many of New Zealand’s most prominent athletes have a high BMI.

 

Not having an ‘acceptable standard of health’ is not black and white and INZ in many circumstances can grant a medical waiver if a good case is put to them – please contact Idesi Legal if you require assistance.

 

Character

Another key factor in Residence Visa applications is character. If you have any kind of criminal record, if you have misled Immigration New Zealand or if you have been declined visas in New Zealand or overseas in the past – this will affect your Residence Visa application. Depending on the seriousness of the offense or failure to disclose – you may not be able to obtain a Residence visa without a Character waiver from Immigration New Zealand.

 

A recent story regarding Charlotte Compton-Cook is a good example of someone whose visa application has failed on character grounds. The reported facts are that this person applied for an Essential Skills Work Visa and was declined on character grounds because of a past criminal record.[4] For temporary visas the same residence character rules also apply.

 

In spite of her police and criminal record being a long time in the past and she being a Chef – a profession on New Zealand’s long-term skills shortage list – she was declined a visa. On the basis of the reported facts this is an example of an inflexible approach taken by Immigration New Zealand when it comes to visa applicants including Residence Visa applicants.

 

Again character grounds is not a black and white issue. Unless there is a statutory bar – Immigration New Zealand need to consider a character waiver  – in which they make an exception for your past character issues. Please contact Idesi Legal for more information.

 

Skill Level

Many classes of Residence Visa including those under the Skilled Migrant Category and Long Term Skills Shortage are based on the skills of the applicant. Immigration New Zealand judges the skills of each applicant on the basis of evidence before them and how it meets the role description and individual tasks under ANZSCO. Or this is how it is meant to be.

 

Sometimes decisions around whether an applicant is skilled or not can be really subjective. For example in a story which made the national media it was reported that INZ had found that a Chef who applied for Residence was not sufficiently skilled as a Chef. Immigration New Zealand judged that items such as burritos, nachos, quesadillas and tortillas are not of the required ‘technical or specialist expertise’ to be classed as a Chefs duties.[5] While there may have been other factors which may not have been mentioned in this news story – it is not uncommon for INZ to make value judgements like this when it comes to the level of skill required for a role –  particularly for Chefs specialising in non-Kiwi cuisines.

 

When assessing Skill Level sometimes INZ gets it seriously wrong – for example in the IPT (Immigration and Protection Tribunal) case of PW (Skilled Migrant) 2021 – a retail manager for a lighting store was assessed as not having authority to determine the products of the store by Immigration New Zealand because the store only sold lighting products.[6] This decision among many was overturned by the IPT on the grounds of a flawed assessment.

 

Get Help

If you have had issues with any of these grounds you need to obtain legal advice as soon as possible. Due to inconsistencies in decisions many decline decisions are getting overturned by the IPT.

 

If you have received a Letter from INZ raising concerns about your character, health or skill level- get assistance. If you have had a decision go against you – contact Idesi Legal immediately for assistance – you may have appeal rights with the IPT.

[1] https://www.immigration.govt.nz/documents/statistics/statistics-residence-applications-on-hand

[2] https://www.immigration.govt.nz/documents/statistics/statistics-residence-applications-on-hand

[3] https://www.stuff.co.nz/national/health/300341891/too-fat-for-nz-mum-cant-lose-weight-fast-enough-for-immigration-officials

[4] https://www.stuff.co.nz/national/124368900/chef-denied-visa-for-youthful-wrongs-im-a-good-person-i-just-made-stupid-mistakes

[5] https://www.nzherald.co.nz/nz/ignorant-and-racist-auckland-restaurant-owner-angry-at-inzs-chef-visa-decision/2ITZSLJHJBD3FSYCAKQDBXKRAA/

[6] https://forms.justice.govt.nz/search/Documents/IPTV2/Residence/res_20210226_205882.pdf