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Thread: South Island Contribution - Do the work instructions make sense?

  1. #1
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    Default South Island Contribution - Do the work instructions make sense?

    A new work to residence visa has recently been introduced, the South Island Contribution work visa. The objective is:

    • recognise well-settled temporary migrants who have made a commitment to New Zealand and their South Island communities; and
    • meet genuine regional labour market needs and contribute to individual firm productivity, by enabling employers to maintain an experienced workforce; and
    • minimise the risk of displacing New Zealanders from employment opportunities or hindering improvements to wages, working conditions or industry-wide productivity growth.


    One of the work instructions required to be granted this visa is:

    • have undertaken full-time, lawful employment in the South Island as the holder of an Essential Skills work visa, or an interim visa, for five years between 22 May 2012 and 22 May 2017


    This seems to make sense, a lower skilled applicant having held an essential skills visa for 5 years means that labour market checks were done to ensure that New Zealanders were not displaced from employment opportunities etc. This applicant would then be eligible for this visa based on their being settled in NZ and having made a contribution to an industry in which there was an ongoing labour shortage, and their South Island community, as per the visa objective.

    However, consider the following scenarios.

    Bob, a temporary migrant, applies for a low skilled job in the South Island in May 2012. The company sponsors him based on there being no available New Zealanders, and he receives an essential skills visa for one year. The next year, he reapplies, but a labour market check turns up a suitable New Zealander, who is then employed instead of Bob. No worries, as Bob applies for a low skilled job in another company in another industry, and again is granted an essential skills visa due to no NZers being available. This process of Bob going into a different job each year continues for 5 years.

    Bob then applies for the South Island Contribution visa and meets all of the work instructions and is therefore eligible.


    Alice, another temporary migrant, arrives in New Zealand on a working holiday visa in 2012. She gains employment in a small South Island company which has difficulty finding people in the low skilled but niche market in which it operates. A couple of Alice's colleagues are temporary migrants who are already on essential skills visas, as the company finds it very hard to find suitable NZers. A year later when her working holiday visa is due to expire, Alice applies for an essential skills visa and is granted one. She reapplies each year for 4 years and is granted a visa each time, due to advertising and labour market checks finding no suitable NZers.

    Alice then applies for the South Island Contribution visa, but is declined as she does not meet the work instructions.

    So Bob, who has floated around low skilled jobs for 5 years, never becoming an experienced staff member and never working in a job for which there is an ongoing labour shortage, is eligible for the visa. Alice, now an experienced staff member who has worked for 5 years in a job for which there has been a demonstrable labour shortage for the 5 years, is not eligible for the visa because she has only held an essential skills visa for 4 years, despite working in that same job for 5 years, and despite there being a proven labour shortage for all of those 5 years.

    Does this seem right to you? Is there something I'm missing?

    This seems even more absurd if Bob gets a job at Alice's company in his 5th year, and applies for the South Island Contribution visa based on his job offer with that company.

    Can anyone help me make sense of this, as this specific work instruction doesn't seem to support the visa objective at all.

    Cheers.

  2. #2
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    Are you basing this on actual applications you know about? Or is it hypothetical?

    Looking at the detail on the fact sheet https://www.immigration.govt.nz/new-...-visa#criteria, there is something that would go against Bob getting this - the applicant has to have a job, or job offer, that is permanent or for a term of at least 24 months. The complete drifter you've made him wouldn't be eligible.

  3. #3
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    I'm basing this at least partly on actual applications. My own was declined in a situation similar to Alice's.

    And Bob's application would be dependent on him only having an offer of ongoing employment, which can be any low skilled job which does not have a term limit. Thus when he applies, as long as he has a job offer for any employment which isn't temporary, he would indeed be eligible.

    The 5 year essential skills visa requirement, although seemingly sensible, actually works against many workers who meet the overall objective, and works in favour of many who do not. In short, this instruction does not support the visa objective. Why would INZ do this?

  4. #4
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    Somebody has written the legal instructions without giving full consideration to the detail. It was put through in a hurry, would be my guess.

    Might you have qualified for the visa before the May 2018 deadline?

  5. #5
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    I'd still not be eligible. To qualify, one must have held an essential skills visa "for 5 years between 22 May 2012 and 22 May 2017".

    My specific gripe was that the work instructions also contain the following:

    • An immigration officer must consider granting a visa as an exception to instructions if an application does not meet the requirements for the grant of a South Island Contribution visa (see E7.10).


    And then E7.10 states:

    • If an application fails to meet the requirements of temporary entry instructions, officers must then consider all the circumstances of the application to see if an exception to temporary entry instructions is justified, taking into account the objectives of temporary entry instructions and the situation and purpose of the applicant.



    It seems strange to me that my application would be declined due to not meeting a specific work instruction, while still 100% meeting the work visa objective. I've actually worked in the same job for almost 6 years, during which time my job has been advertised, labour market checks done more than once a year etc. Though I personally didn't hold an essential skills visa for the full 5 years, I am a well settled temporary migrant meeting a genuine labour market need, while helping my employer maintain an experienced workforce without displacing New Zealanders from employment opportunities.

    In my initial application, and the appeal for reconsideration, I got the same seemingly canned response; "you do not meet the work instruction at 7.10(c)". Both times, I was also told that there was "no justification for an exception to instructions". Isn't meeting the visa objectives a justification?

    I'm perplexed and a bit frustrated that the instructions in the ops manual basically say "if an applicant doesn't fully meet the work instructions, consider granting a visa by taking into consideration their situation with respect to the visa objectives", and yet while I 100% meet the objectives, and indirectly meet the requirement behind the 5 year essential skills visa instruction (i.e., the reason this instruction exists), I'd still be declined.

    After an appeal, is there any further I can go with this? Are Immigration following their own processes by writing instructions that do not support the purpose of the visa? Is it worth complaining about this seemingly obvious flaw in immigration instructions to any higher authority?

  6. #6
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    I wonder if you've talked to your MP about this?

    I've no idea about the background to the introduction of the law - whose idea it was, who supported it or not, etc.. It seems to me there may be some political overtones, and whether or not the same people are still in power could make a difference to how the authorities react to appeals.

    ChrisMwn, do you know anything about this?

  7. #7
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    Is there any further I can go with this after an appeal has been declined? Is the complaints process any use to me at this point? Would an immigration lawyer have any clout?

    At the very least, I'd like INZ to explain to me why there wasn't justification to grant a visa as an exception to instructions when I met all the requirements of the visa objective.

    Would any part of the immigration system want to have a second look at the work instructions for this visa class, since they don't support the visa objective?

  8. #8
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    I suggest you should message ChrisMwn.

  9. #9
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    Haven't heard back from ChrisMwn.

    Do you know what my options are after a declined appeal? Can I make another application with the help of a lawyer or should I go with the complaints process first?

    Will any action I take have the possibility of affecting future visa applications negatively?

    Thanks.

  10. #10
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    I imagine you have looked at the INZ page about complaining. https://www.immigration.govt.nz/contact/complaints It will only be any use complaining, that is, your complaint will only be investigated, if you have the kind of reason that they outline there. If you have, then that is the thing to do first.

    In theory, there is nothing to stop you making a further application for a visa, but notice that you can only do that from within NZ while you are covered by a valid visa.

    And no - nothing you do in following up your case will be held against you.

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