False and misleading information

A change at INZ means that provision of false information at any visa stage will prevent applicants from gaining residency in the future. This is aimed squarely at discouraging migrants from using non-professionals for visa applications whcih seems to be part of the Government's overall response to combating migrant exploitation. Because a lot of exploitation is based on dodgy agents or employers providing false information, fake documents and so on, the new changes target this, but insted of punishing the agents, they punish the migrant.

Targeting the migrant may or may not sound fair, but in reality it is the visa itself which is the conduit for exploitation, and the responsibility for accuracy and properness of the visa falls ultimately to the migrant. The migrant applicant must make sure that they are coming to the country lawfully so part of this process is to make sure the person doing their visa application for them is a professional and not part of a scam.

What has changed?

The new immigration instructions have 3 very significant changes to the character requirements:

The inclusion of “agent” to the wording in a variety of areas
The removal of the defence of not having mens rea (intention) for provision of false information
Provision of material false information in any visa application will make the applicant ineligible for a residence visa later on. This is also potentially retroactive.

These changes should be ringing alarm bells because what this means for anyone applying for a visa is that even by mistake, if false information is provided or important information not provided even on a visitor or work visa, then the applicant will be refused residence later down the path.

What is false information?

False information covers a wide range of things in the new changes, from forged documents to simple mistakes on the application form. While the changes are supposed to target exploitation type false information, they also include innocent mistakes as well which may not seem fair, but is routinely used by INZ to justify a decline.

A fake job offer
a fake bank statement, drivers license, work reference
declaration that the job is genuine when it is not
declaration of an hourly rate when the actual payment is lower
declaration of having specific work experience, education, English test score when you don't have these
support letter from friends or employer with information that is not true
Not giving certain information that you should provide, or hiding important information
Agents not declaring their input on the application form
Information that misleads INZ about the true nature of your situation
A spelling mistake or mistype or mis-selction on a check box

What about agents?

The word agent refers to anyone who does the application on the applicant’s behalf, but it could also refer to anyone who provides any information on the applicant’s behalf. For example an employer who provides false information on the employer supplementary form or job offer or employment agreement would be in breach of these instructions.

Agent means:

LIA
Lawyer
friend
employer
education / employment agent
HR manager

This is clearly intended to mean any person except the applicant who does so,me kind of work who has some input on the application.

The changes mean that every applicant must have the ability to check that all information provided in the information is true and correct. As many migrants and for example supporting New Zealand citizen or resident partners may not have this knowledge, it means that even self-made applications are much more risky than before. The only people who reliably have the ability to check and understand that the application has been done properly are immigration professionals.

What about professionals?

While most professionals are very careful about checking that information is true and correct anyway, it will also put pressure on us to be thorough about this. There is a lot of case law about the necessity of having mens rea in the commission of an offense, and up to now, the only specific exemption to this was in the case of SMC EOI applications. The courts have held that as this was a specific exemption, the case law would not apply. Now we have an exemption for all visa categories, all applications need to be done very carefully indeed.

Professionals have always been the best option for visa applications and anyone not using a professional has always done so with a certain amount of acceptable risk, but with the changes and increases in INZ processing fees, the level of acceptable risk for many migrants will change significantly.

By using a professional there is an avenue for redress if we don’t do a good job, while employers and agents do not provide any guarantee of doing things properly, so there is a level of ressurance that professionals should be doing a good job.

What is our advice?

Without a doubt, all migrants who have any intention, even remotely of staying permanently in New Zealand in the future need to be using immigration professionals such as LIAs or immigration lawyers for their visa applications. But further to this, migrants also need to be encouraging their employers to also check with professionals for any part of the process that may affect them. KIWI@HOME’s service includes full support to all our clients’ employers at no extra cost for any visa application, so we always encourage this anyway.
Migrants need to be aware and do their due diligence on who is a licensed professional and therefore is able to work on their behalf, but most importantly has responsibility and accountability when things go wrong.
If you have provided false or misleading information in a previous application, take professional advice on what you should be doing now to preserve any chance of residence in the future.

Check LIA status here https://iaa.ewr.govt.nz/PublicRegister/Search.aspx and check lawyer's status here https://www.lawsociety.org.nz/

Created on 01 September 2023.