Catch-22: Immigration says sorry, and welcome back - but won't let her into NZ

Friday, 17 December 2021

Neha Munjal and her partner in happier times in Auckland, before being forced to return to India.

Immigration NZ admits it made a mistake in making Neha Munjal leave New Zealand, so why hasn’t she been allowed to return? Steve Kilgallon investigates.

They should have given her a new visa. They’ve apologised, re-paid her fees and promised to look kindly on future applications. But… they won’t let her back in the country.

Neha Munjal’s catch-22 situation went as far as the Ombudsman, Peter Boshier, who ordered Immigration NZ (INZ) to write a formal apology for three times rejecting her application for a skilled work visa, incorrectly claiming she wasn’t being paid enough to qualify.

Munjal showed they were wrong, and her salary sat right in the average for the visa, which would have given her three years in New Zealand and a partnership visa for her husband, Varun Sharma.

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But by then, Immigration had already made her leave for her native India, where she remains stuck, chiefly due to the Covid-19 border closures.

The Ombudsman said that while the borders remained closed, INZ could make an exception - on humanitarian grounds - to allow her to return, which is what Munjal wants, but believes INZ will not give her.

But even when the borders do open, her job has long gone, and all she has been offered is a short-term visa without any guarantee of a visa for Sharma.

That means she would have to return alone, race against the clock to find a well-paid job before that visa expired, then undergo another application process to bring her husband across.

Munjal thought she had secured her Kiwi dream when, after working as a temp, outperforming her KPIs and then undergoing six rounds of interviews, she was offered a technical support specialist role with a company called Concentrix in Wellington.

“It wasn’t easy to get that role,” she said. “I had to struggle.”

The job paid $22.05 an hour for a 37.5hr week, with loadings for unsociable hours and overtime of between 15 and 30 per cent.

The pay rate sat well within the band of $21.25 to $37.49 an hour which qualified for a three-year mid-skills visa, which also allowed for a partner’s visa for the same length of time.

Neha Munjal and Varun Sharma at North Head, Auckland, during their two years in New Zealand.

She was ecstatic: she had arrived initially in January 2017 on a partnership visa, with Sharma, who had a work visa in a liquor store. She felt this was the couple’s pathway to residency after Sharma had to withdraw his own application for a long-term visa after shelling out fees to advisors. Sharma’s family had fronted him about $23,000 in fees and living costs to set up life in New Zealand.

But Munjal had worked in the new job for just 23 days when her visa application was rejected.

Her application was initially handled by banned Wellington immigration advisor Peter Ryan, whose role in a visa scam was exposed by Stuff in 2019, leading to him being kicked out of the industry.

That application was rejected on three grounds, or PPI (Potentially Prejudicial Information) concerns: one, that she was not fulfilling all the duties of the role, that she had not shown her skills matched the job description, and third, that she was being underpaid.

“It was like someone had copy-pasted someone else’s PPI concerns onto my file,” she said.

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She was convinced they had simply made a mistake: “So even when I got declined, I was still hopeful.”

When she changed advisors to lawyer Jo Cottrell, INZ withdrew the first two concerns, but stuck fast to the pay claim.

They said her $43,000 base salary was below the $46,000 they considered worthy for the role.

In her application, Munjal provided data from Trade Me, Glassdoor and a job advert for a similar role at Vocus to show her salary matched industry standards.

When Munjal provided a payslip showing she would make over INZ’s $46,000 threshold with overtime and unsocial hours loadings bumping her typical hourly rate to $24.24, they were still not happy. One INZ officer raised qualms on the basis her contract did not state how many hours of overtime she would undertake.

Munjal reluctantly left New Zealand in August 2019, to avoid overstaying illegally, borrowing money from friends to fund the trip home and leaving many of her possessions here in storage.

Chief Ombudsman Peter Boshier ruled in Munjal's favour, but his powers are limited.

Her employer held her job open for three months: “Even though I was in India they were happy to wait for me because they knew I had the skill set.”

After one officer told her she would qualify for a low-skill visa, Munjal tried one last time from India to apply just for a low-skill visa - which offers a shorter visa for lower-paid jobs - but was again rejected.

In January 2020 she went to the Ombudsman, Peter Boshier, and while his investigation progressed, Covid arrived, closing the border to India.

Boshier agreed that INZ had got it wrong. In a letter, he told Munjal he had formed a provisional opinion that INZ “acted unreasonably in its decision to decline your visa application”.

The Ombudsman’s office spoke to INZ and they agreed to refund Munjal’s visa fees, and provide a formal written apology.

Immigration NZ says it will consider reimbursing Neha Munjal for her legal fees.

Boshier said that when border restrictions and the suspension of offshore temporary visas were lifted, “or if you are granted an exception to border restrictions”, INZ would accept a temporary entry visa application and waive the fee.

According to Boshier, INZ had accepted that the process was “administratively flawed”.

Munjal told the Ombudsman that the offer did not remedy the impact of her forced return to India and the loss of the job offer on which her essential skills visa relied, and so asked the Ombudsman to force INZ to grant her an open work visa and a partnership visa for Sharma.

However, Boshier explained he did not have the authority to grant a visa or instruct INZ to grant one, and he was limited to investigating the “reasonableness” of the decision to decline.

He said given the circumstances at the border, the outcome was the best possible.

“I acknowledge that, as a result of New Zealand’s border closure, you are in an unprecedented and distressing situation. I would like to reassure you that I have considered your complaint carefully having regard to your unique circumstances.

“However, I understand that this will not be the outcome you were hoping for.”

Immigration advisor Malkiat Singh says immigration officers often don’t understand IT roles.

Last November, Munjal duly received a letter of apology from Katy MacLeod, INZ’s complaints manager, which admitted she was “not satisfied” with the salary interpretation, “which in turn distorted the determination of the market rate”.

“The ministry acknowledges the negative impact this has had on your visa applications, your ability to live and work in New Zealand, and the inconvenience this has caused you.”

Munjal says: “Writing an apology letter doesn’t bring any change to my life.”

She says she has emailed senior INZ officials asking for a humanitarian waiver but was declined. She also asked what process she could go through to get a visa and exemption, and was told to wait for the border to open. Then they stopped replying to her.

“No-one is listening, even though I got this apology.”

At first, Munjal didn’t work on her return to India, thinking she would be able to return to New Zealand quickly, and has since worked in temporary jobs.

Neha Munjal, left, is worried that if she is allowed to return, her husband Varun Sharma, right, will not be.

Holding back tears, Munjal told Stuff from her home in Noida, in the northern Indian state of Uttar Pradesh: “I am not happy here. It is always in my mind to go back. We are not settled here.”

Experienced immigration advisor Malkiat Singh from Auckland firm Carmento said the case highlighted several flaws in the system well-known to immigration agents.

Singh, who has an IT background, said it was a clear example of how immigration officers lacking a technical background often struggled when assessing IT roles.

“We expect them to know everything there is to know about all occupations - for someone not from a technical background, we have a saying in India that ‘anything in the distance that looks black must be a buffalo’.

“It’s hard for them to make a conclusion: You can’t expect one single human to be aware of all occupations.”

He said a better framework would allow officers to recognise their own limitations and consult industry more. “It shouldn’t all be left to their discretion - there should be a two-way process.”

He said many were reluctant to talk and when they declined an application did a “rudimentary job of explaining why” - so often advisors were left feeling they were “throwing something across the fence, and hoping it makes sense to them”.

A further flaw was that temporary visa holders had no right of appeal - only to ask for a reconsideration, and in many cases, the reviewing officer only looked at the process, and not the decision-making.

Singh said IT support remained on the long-term skill shortage list, so there was a case for allowing Munjal back in. He said there was also a moral argument to give her residency, given that without the mistake, she would most likely have been in New Zealand this year when the Government handed out residency to a large group of skilled migrants.

“I would say why not [let her back]?,” Singh said. “We need IT people, and if we’re saying we have a lack of skilled people, and she is one of those skilled people … I think she could contribute positively to the workforce.

“There could even be a case where the minister would say ‘this is a special scenario, we made her mistake, let’s give her residency’.”

Migrants right campaigner Sher Singh, who has been offering Munjal support, agreed.

“I strongly believe that she has been mistreated by the New Zealand Immigration,” he said. “The simple fix is to let her re-enter the country and reimburse her for her loss.”

In a statement, Nicola Hogg, INZ’s general manager of border and visa operations, said: “At the outset, I would like to repeat our apology to Ms Munjal for the handling of her case and the errors made during the processing of her applications over market pay rates.”

Hogg said INZ provide regular training to immigration officers to “ensure we learn from our mistakes and take the necessary action to prevent them happening again”.

“I can confirm that we have formally apologised to Ms Munjal … and refunded her fees.”

Hogg said they would also waive any fees if Munjal reapplied when the suspension of offshore temporary visas was lifted. She said INZ would also consider any application from Sharma but “can’t prejudge the outcome of any new applications”.

Hogg said Munjal had not requested a border exception but was welcome to submit a request, and said they could not grant visas until a border exemption was granted “and it is not possible to apply for temporary visas from offshore at the moment” due to Covid restrictions.

“I was pleased to see that Ms Munjal accepted the remedies proposed by INZ following the Ombudsman’s ruling, which we believe were proportionate to the errors made in this case.”

Hogg said if Munjal wanted her legal costs reimbursed she could apply and INZ would consider it.