2016-Jul 15: SM7.20 Requirements for Employers – Determining Unacceptable Risk

Visa Pak 268 - Advice for staff when assessing SM7.20 Requirements for Employers – Determining Unacceptable Risk following an IPT decision.

Visa Paks

15 July 2016

SM7.20 Requirements for Employers – Determining Unacceptable Risk

 A recent Immigration and Protection Tribunal (IPT) appeal decision and a High Court judgement confirm the discretionary nature of the phrase ‘unacceptable risk’. The IPT appeal concerned a Skilled Migrant Category application which was declined on the basis that the appellant’s employment presented unacceptable risks to the integrity of New Zealand’s immigration or employment laws, policies or instructions.

Unacceptable Risk

Under SM7.20 Requirements for Employers, parts (a) and (c) set out the requirement for the employer to comply ‘currently’ with relevant employment and immigration laws, while SM7.20(b) requires having a history of compliance. SM7.20(c) makes it clear that employment cannot qualify for points if either there is non-compliance or if Immigration New Zealand (INZ) considers the employment of the applicant creates unacceptable risks.

The appellant’s representative submitted that INZ failed to give reasons for its finding of unacceptable risk. The IPT did not agree with this assertion, nor did the High Court. Both the High Court and the IPT observed that INZ has the discretion to determine what it considers to be an unacceptable risk to the integrity of New Zealand’s immigration laws or employment laws, so long as any such risk is reasonable and properly articulated.

Evidence

In this particular case, there was concern over the genuineness of salary payments often paid in cash. INZ did not accept summaries of earnings from the Inland Revenue Department (IRD) as sufficient evidence that the employee had in fact been paid their correct salary. The Immigration Officer was concerned that income declared to IRD may have been solely for the purposes of immigration.

While IRD summaries of earnings may be acceptable evidence in many applications, the IPT points out that under R5.5 Evidential requirements, INZ is not restricted in the types of evidence it may request in order to satisfy itself that an applicant meets relevant residence instructions.

Verifying information

In the IPT decision it was noted that part of the application assessment relied on a verification report that noted ‘negative public information’ about the employer. This was based on information found on the internet. The IPT found that INZ did not identify exactly what information on the internet it was relying on. There was also no effort made to verify the internet information, which the IPT noted was insufficient to ‘distinguish fact from opinion, rumour, allegation or report’ as required under A1.15(c) Practical steps towards achieving fairness and natural justice in decision-making.

Therefore, when relying solely on internet information immigration officers should attempt to verify any information they wish to rely on.

Further reading

The full IPT appeal decision and High Court judgement can be found here.

Action

Please discuss with your team(s).