2017-Oct 27: Need to avoid ambiguity when imposing conditions on work visas

Visa Pak 332 - Information for immigration processing staff regarding writing clear and specific conditions on work visas.

Visa Paks

27 October 2017

Need to avoid ambiguity when imposing conditions on work visas

Previous advice to staff entitled ‘Who is the employer? Legal entities and work visa conditions’ stressed the importance when imposing a condition on a work visa that the holder work only for a ‘specified employer’, of establishing who the legal employer (entity) actually is and to ensure that all applicable information is contained in the conditions e.g. “Joe Bloggs Ltd T/A Supreme Coffee Roasters”. If there is insufficient room within the visa label, the conditions should be imposed in the letter with reference to the letter being made in the label. It is equally important when imposing other conditions such as the area or location where the work visa holder may work that these be clear and unambiguous.

Compliance Risk and Intelligence Services (CRIS) has drawn our attention to a recent decision of the New Zealand Immigration and Protection Tribunal (NZIPT) [2015] NZIPT 503357 of 25 September 2017 on a Deportation (Non-Resident) Decision allowing the appeal and cancelling the appellant’s liability for deportation. The appellant who held an Essential Skills work visa with the following condition imposed: “The Holder may only work as a carpenter for any employer in the Canterbury Region.” was served a Deportation Liability Notice (DLN) by CRIS under section 157 of the Act because “You are breaching the terms and conditions of you work visa as you were located on a building site in Queenstown on 16 May 2017.”

The main reason the appeal was allowed is because the conditions imposed on the appellant’s work visa were ambiguous for the reasons explained by the NZIPT at paragraph 19 of the appeal decision below.

 

[19]        The words used in the visa can be interpreted in two ways. The first is that the holder may only work for an employer based in the Canterbury Region. In the case of this appellant, he was working for an employer based in the Canterbury Region as at the time the DLN was issued. The fact that his employer had sent him to a site in Queenstown would not on that interpretation, amount to a breach of visa conditions. The second possible interpretation is that the holder was entitled to work for any employer but was only entitled to work in the Canterbury Region. While this is a possible interpretation, it is less obviously intended by the words used because the words ‘Canterbury Region” follow reference to the employer rather than following reference to the work undertaken. Were this second interpretation the intended meaning of the words, a clearer articulation would have been to say that the holder may “work as a carpenter for any employer but may only work within the Canterbury Region.”