Inequitable immigration decisions
Does our Department of Immigration display a lack of logic?
Shalini (not her real name) managed a successful hairdressing salon. Her staff were happy, she understood the fashion and beauty industry well, was customer-focused and kept pace with the market trends.
Jacky (not her real name) ran 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 NZ work visa outcomes
Both Shalini and Jacky had graduated with a Diploma in Management (Level 5). They were both in charge of their individual establishments and undertook generic management tasks.
They both applied to Immigration New Zealand (INZ) for permanent residence. The Department granted Jacky residence but declined Shalini’s residence visa application.
As is the expectation of all applicants and New Zealanders, INZ tries to achieve consistency in its decision-making process.
Is this a realistic and achievable goal? To answer the question, we must examine the procedures followed in the decision-making process in Shalini’ and Jacky’s visa applications
Blurred decision-making lines
INZ has a number of mandatory requirements before a visa application can be accepted for assessment. The application is then assessed against a specific immigration policy.
It is at this point that the lines for visa decisions seems to become blurred.
Even though the requirements of the policy are transparent, interpretations may differ. Who you get to decide your application determines the decision you get. It almost becomes a lucky draw.
Some decisions do not make sense. Applicants appear to meet the policy, but subsequently fail to be granted a NZ visa. The reasoning for the decisions, at times, appears harsh, unfair and absurd. These decisions may have tragic consequences for the affected party.
Jacky’ and Shalini’s cases were similar, but the same branch of INZ arrived at different decisions.
The outcome of each case depended upon how the decision-maker interpreted the policy and how he or she viewed the facts of the case.
That visa feeling …
How could an identical scenario result in such a different result? How could one residency applicant be granted residence while the other is denied? How can one work visa application be successful and the other declined?
Is it rational, or is it the ‘feel’ the decision-maker has for the application that determines the outcome? Does this feeling become the justification for the decision?
If yes, where does this ‘feel’ originate?
Humans make visa decisions
The decision maker’s age, education and experience are relevant, as 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 cultural paradigms, prejudices, and personal history to their jobs. Despite the fact that they all get the same training and are expected to apply the same set of instructions, biases do exist.
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 while some may undertake a mere ‘box-ticking’ exercise.
Is consistency in visa decisions doable?
Consistency in decision-making is a praise-worthy goal, but it is debatable whether such a goal is achievable.
Is it all about luck? Some 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!
Shalini continues to be baffled by INZ’s decision to decline her application for residence. She desperately wants to know what went wrong. Meanwhile Jacky is fortunate enough to be celebrating her success with her family and friends.
You may like to ponder over the two cases and determine the rationale.
Such cases challenge law firms, yet they also give us opportunities to try and rectify visa decisions where possible, and facilitate positive immigration decisions in deserving cases.
