Government's immigration approach called 'harsh and draconian'

6:09 pm on 2 August 2019

An immigration lawyer says the government is reneging on pledges it would not let foreign students carry the can for fraud committed by agents without their knowledge.

Rahul Reddy (centre) and others were visited at the Unitarian Church by Jacinda Ardern, who promised help.

Jacinda Ardern visiting a group of students who sanctuary at the Unitarian Church in Auckland in 2017 before being deported. Photo: RNZ / Brad White

Under a new interpretation of existing legislation unveiled to lawyers last week, international students will bear the blame if their education agents give false information in their applications.

Officials will also not have to prove the student had any intent to deceive.

Immigration New Zealand (INZ), in its consultation with lawyers, said it had misinterpreted the legislation in the past.

Proving intent had not been part of what they had to consider when looking at whether someone was of "good character" for two decades.

However, it and the appeals tribunal had continued to rely on a 1994 Court of Appeal case which ruled that "an omission when completing a permit [visa] application could scarcely say anything useful as to character unless it were deliberate and dishonest".

Immigration lawyer Alastair McClymont.

Alastair McClymont. Photo: RNZ / Lynda Chanwai-Earle

Lawyer Alastair McClymont took a case to the Ombudsman about a group of Indian students who had false bank documentation in their original visa applications lodged in India.

They took sanctuary at the Unitarian Church in Auckland in 2017 and were deported.

He said the new approach was draconian and harsh and left students with no recourse, as overseas education agents were exempt from the usual New Zealand immigration licensing requirements and penalties.

"This is the outcome of several years of immigration investigations regarding offshore education fraud and an ombudsman complaint, which basically concluded that the legislation gives the government to power to simply place all of the blame solely on the students regardless of whether they know what their agents are doing on their behalf," he said.

"A lot of the fraud which is going on is from unregulated offshore education agents paid huge amounts of commission by New Zealand schools, with these agents having huge motivation to provide false information and fraudulent documents to Immigration in New Zealand.

"But rather than dealing with the problem of the unregulated education agents, they instead want to blame the students solely for anything that the education agents do in order to earn these very large commissions."

The law could be applied in this way, but it went against the compassionate attitude that Labour called for when in opposition, he said.

"Jacinda Ardern said at the time that the government has an obligation in these sorts of situations to make sure that the students' reputations are not besmirched by the actions of others.

NIain Lees-Galloway.

Iain Lees-Galloway. Photo: Supplied.

"Iain Lees-Galloway, the current immigration minister, made similar statements about the government needing to offer compassion and natural justice, yet, we now have them in power and they seem to be sitting on their hands and doing nothing."

He said it was unclear whether the shift had been approved by the Immigration Minister.

Four of the students whose cases he took to the Ombudsman were eventually granted new visas, but for others their visa rejections or deportations stood.

The immigration minister has been approached for comment.

The Union Network of Migrants coordinator Mandeep Singh-Bela explained why some agents sent through false information without students knowing it.

"In order to make a buck agents will go to any lengths, including falsifying or forging documents to make sure a student gets a visa, and the agent gets their commission," he said.

He said the root of the problem lay with the offshore education agents, because the government allowed them to be unlicensed.

Denying students the chance to explain any dishonesty found in an application would be appalling, he said.

The New Zealand International Students' Association president Lukas Kristen said foreign students were often unaware of exactly what was being sent in in their name.

"I've talked to one student who saw her final application that was sent through to the institute, and actually saw her grades had been falsified so she sent in her transcript and that had been changed by the education agent."

He said the student sorted it out - her correct grades were sent through, and she was accepted.

Mr Kristen said keeping a closer eye on private training establishments could help the situation.

Edwin Paul of the New Zealand India Trade Alliance, said putting all the onus on students removed the responsibilty for agents to provide accurate applications.

He said a regulatory body should be set up to make sure agencies were not lying, as happened in other countries.

"We won't be inventing the wheel but we need to be policing, managing, edcuation and evoloving the agents in the right direction ... they need to be responsible for the process, that the student is fit for purpose to study in New Zealand."

In a statement, Immingration NZ said it had always required students to make a declaration stating the information provided in their visa application was true and correct, regardless of whether they used an immigration adviser or education agent.

"As with all visa applications, the responsibility is on the applicant to ensure they provide genuine and accurate information as part of their visa application," said operations support manager Michael Carley.

"Following the Ombudsman investigation into the treatment of a group of Indian students INZ considered it was more appropriate to decline applications containing false information using specific sections of the Immigration Act rather than immigration instructions.

"INZ is not responsible for licensing issues."

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