What is clerical work?

A recent Tribunal decision has touched on what exactly is clerical work and therefore able to be done by a non-licensed or non-exempt person. To provide immigration advice without being licensed or exempt is an offence which can carry a penalty of up to 7 years in Jail or a fine of up to $100,000, or both.

So if you are an employer, education agent, friend or office worker for an immigration adviser, what are you legally allowed to do?

Immigration Advisers Complaints and Disciplinary Tribunal (IACDT), Immigration New Zealand (Calder) v Ahmed [2019] NZIACDT 18, outlined the scope of what constitutes clerical work and is therefore acceptable. A prominent law firm also had the opinion that “Completion of immigration applications and correspondence with INZ will almost always involve application of knowledge and therefore generally should be completed by licensed immigration advisers”.

To do an application within the scope that is allowed by clerical work puts the applicant at risk of decline because you are not legally allowed to include any document that you know will be useful and help the case officer make the correct decision. You can only include the basic documents that are asked for, and these documents do not support the fact that the applicant meets the relevant legal requirements for a visa.

Here is an outline to whether the staff perform only clerical work

The IACDT has stated that the following activities are acceptable. It is important to note that only the activities described are acceptable, extensions of them are not. For example, in the second bullet point forwarding the decision is acceptable, but providing feedback and interpretation of the decision is not

• sending communications to clients attaching client agreements (for signature) and a copy of the Code;
• forwarding to the client communications or decisions from Immigration New Zealand without comment, whether or not the client’s comments or documents in response were sought at the same time;
• requests to the client for listed documents or forwarding a checklist of documents/information needed or identifying the documents missing from a response to a checklist previously sent and then requesting the missing documents, including comments on the print quality of copies previously sent or whether originals were needed (provided the checklist was a standard template from Immigration New Zealand or the adviser or followed a discussion with the adviser, and was not compiled by the employee);
• requests to the client for further information in order to complete an initial assessment (provided the assessment is undertaken by the adviser);
• requesting the client to provide a description of a past job;
• seeking from the client and then advising Immigration New Zealand of the contact details of the client’s current/past employers (providing this does not involve assessing whether certain jobs meet the immigration criteria);
• sending the client the contact details of Immigration New Zealand’s panel physician;
• requesting the client to provide an update of progress in obtaining certain documents;
• communication between the client and employees as to the fees and bank account details of the adviser’s company;
• advising a client what documents had to be signed, by whom and of the place of signature;
• analysing a client’s passport and creating a travel history sent to the client for comment;
• passing onto the client advice from the adviser;
• advising the client of Immigration New Zealand’s usual processing time;
• the mere receipt of information/documents from the client;
• any communication from the client to the adviser which has been copied to the employee, or any communication from the client to the employee which has been copied to the adviser;
• requests made to Immigration New Zealand for extensions of time to respond to concerns expressed by the agency or to provide documents;
• liaising between the client and Immigration New Zealand as to a suitable date for an interview;
• acknowledging receipt of a letter from Immigration New Zealand and advising the agency it has been forwarded to the client for comment; and
• drafting correspondence to Immigration New Zealand for review and signature by the adviser.

The above list of what is acceptable, or at least not worthy of disciplinary action, it is not exhaustive.

Take a look at our YouTube video on this subject

https://www.youtube.com/watch?v=_wsR9VFDB6I 

Is an application like a courtroom trial?

In an application you need to prove that you meet the criteria of the visa you are applying for, but how much evidence do you really need and what amounts to actual proof? This really depends on what you are trying to prove and the mindset of the INZ case officer, which can sometimes contain preconceived ideas, although they shouldn't.

In a courtroom if you are there being tried on certain charges there are 2 lawyers, the prosecution arguing that you are guilty and the defence arguing that you are innocent and should be set free. We all know that if we don't want to go to jail then we need a strong defence lawyer to argue our case, otherwise the prosecution will win by having a stronger argument, whether we are actually guilty or not.

INZ always used to be relatively neutral and all applicants had to do was to show a minimum amount of evidence that showed that they met the criteria of the visa. Now days it is more like a courtroom situation and applicants need to present a strong application to counter the preconception that you may be dishonest or are only pretending to meet the criteria of the visa.

The burden of proof

The immigration instructions require that applicants must provide evidence of meeting the various criteria for the application. This is the responsibility of the applicant (or adviser) and INZ will not generally admit evidence that they have had to find themselves, unless it is a reason to decline the application. To prove that you meet the criteria, the evidence needs to be specific to the thing being proved and must be strong enough that there is no doubt.

Here is an example from the Entrepreneur Work / Residence Visa category. For a business to be trading properly is one sign that it is actually a successful business.

Trading profitably means that your company is making enough profit and the amount of profit is at least as much as in the business plan. But there is also the requirement that the profit be legal and that the profit comes directly from sales of your product.

The first factor is easy because you just show your bank balance or business annual report from your accountant and then the case officer admits that you are getting enough money to say that you are trading profitably in terms of your business plan. But the second factor can be difficult if there are a large number of steps between selling the product and getting money from it. For example if you sell a service overseas to a wholesaler, who then sells it to distributors and customers, then they pay to distributor or wholesaler, but sometimes also pay you directly, then the wholesaler pays you through several different agents who can make international transfers, then this trail of payments can be quite unclear. But to prove the second point, you need to prove this trail is real, to a reasonable extent. 

An analogy

Our youngest son (Bob) wanted to go to Palmerston North for a volleyball tournament when he was in high school. It would cost $700, but because he was lazy and didn’t work or study hard, we said that we would only pay for the trip if he worked hard in the holidays and saved some money.

Bob gave us his working plan where he wrote down that he would work in various part time jobs and therefore be able to save $500 before the end of the holidays. If this happened, we agreed to pay for the rest.

At the end of the holidays, Bob showed us $500. It is undoubtable that he actually has $500 because he showed it to us and we counted it (this meets factor 1), but where did this money come from? Did he actually work as he said, or did he steal it, find it or borrow it from someone? In our experience, Bob is very unreliable and lazy, so we found it hard to believe that he worked hard for it (i.e. he has to prove factor 2).

How much proof do we need?

Here are various scenarios of the level of proof Bob gave us to show that the $500 was from wages

Scenario 1:

• Bob slept in until 12:00 pm everyday then went out and came home at 7:00 pm
• We didn’t know where he went but he said he was working

Scenario 2:

• Bob woke up at 8:00 am and came back at 6:00 pm
• Bob said he was working at Pak n Save, and BP

Scenario 3:

• Bob woke up at 8:00 am and came back at 6:00 pm
• He said he was working at Pak n Save, and BP
• He has payslips from Pak n save and BP (but these look like they could be made by MS Word) and there are no bank transfers – the payments are in cash)

Scenario 4:

• Bob woke up at 8:00 am and came back at 6:00 pm
• He said he was working at Pak n Save, and BP
• He has payslips from Pak n save and BP
• He showed us his bank statement which shows bank transfers from BP and Pak N Save for wages (but he could have made these transfers himself from a different bank account that we don’t know about and just input false labels on the transfer)

Scenario 5:

• Bob woke up at 8:00 am and came back at 6:00 pm
• He said he was working at Pak n Save, and BP
• He has payslips from Pak n save and BP
• He showed us his bank statement which shows bank transfers from BP and Pak N Save for wages
• He has work reference letters from the managers of Pak n Save and BP, signed and dated with contact details
• He has both Pak n save and BP uniforms with name tags with his name on it
• Security camera footage show him standing at the shop in uniform

How much you trust Bob would depend on your preconceived ideas of him. Maybe if he was your child who is a little angel you would trust him or her at scenario 1 because they are so good.  In a normal case, maybe scenario 3 is enough for most parents. But if you have years of experience of Bob being lazy and lying and trying to find an easy way out of everything, then even scenario 5 is able to be doubted because; he may have borrowed the uniforms from a friend, might have made false name tags, the contact details may be friends’ contact details, the letters could be fake because it is easy about to get the letterhead of the companies and make a fake letter, etc.

A reasonable person wouldn't doubt scenario 5 though because what is the next level of proof? There should be no need to require more than that.

Summary

The level of proof you need depends on many factors, Immigration Advisers are professionals in immigration law, so we often know what the case officer is likely to think and then how much evidence is necessary to convince them. Every person is in a different situation and there can be many reasons for preconceived ideas by case officers. The best applications are those that present the right amount of evidence to neutralise these preconceptions. By giving too much evidence you often create different types of mistrust, so trying to prove something strongly that doesn't need to be proved will make INZ start to think about what you are trying to cover up.  

Supporting documentation

When you apply for a visa of any kind you need supporting documentation, letters or travel documents and so on. Many of things things are obvious because it tells you what you need to send in with the application. Forms like a police certificate, passport or medical checks are pretty clear, there is not much that can go wrong there, but support letters from friends, employers or family is not so clear for example. Evidence of relationship or work experience can be quite difficult to get right sometimes.

Things we often see applicants doing wrong 

The most common problem is not enough, too much or too many poor quality documents. Clients who are over confident may feel happy with sending in the bare minimum of supporting documents, but this can fail badly if the INZ case officer doesn't agree with you on their importance, or is not clear on their relevance. People who are not sure will often send in huge piles of documents, but the INZ case officer will feel incredibly stressed to look through everything and may miss something important because of it. In the same way, sending in hundreds of utility bills may not be useful if they don't show something meaningful to your application.

We have also seen clients insist on including a certain type of document because their friend did it or they saw it on a blog and that person's application succeeded. Without knowing exactly the situation and what this documents was supposed to show there is no reason at all to say that this is the right thing to do

The other common problem are support letters that are either written far too formally or in an arrogant, officious tone, or at the other end of the scale, written far to casually or emotionally, and not being believable. A letter from your boss stating that this is a big company, employing lots of people, making a big contribution to the local economy, so please approve client X's visa, has absolutely no merit and shouldn't be included at all.

What is best to do

If you are unsure, get advice. It is really that simple, preparing an application is a complex thing to do. If you are thinking of applying for a visa and want to get started collecting documents early, the best thing you can do is try to collect a wide variety of documents and lots of them. Don't throw anything away that may be useful. WE love clients who come to our office with lots of supporting documents because even if things don't look very useful by themselves, they may be able to be linked to other documents which make for very powerful supporting evidence.

The documents supporting your application must be unique to your application and totally support your specific individual situation. There is no standard set of things which will definitely work for everyone.