Nine Minutes

What if I told you, that for one of my clients, his ability to secure Residence came down to whether he may or may not have worked an extra nine minutes per week. Well you might think that sounds a bit ridiculous, but for a client we have been working with for the last few months, that is literally what it boiled down to. What was more compelling that those nine minutes per week, were the difference between being able to live here permanently or having to leave forever, because, given his age, this application was his last chance to make it work.

Well truth is often stranger than fiction and the situation described above is absolutely real, and for one client that nine minute problem has been the cause of significant concern, anxiety and stress.

But why was nine minutes such an issue? Well in this weeks article we take another trip down the INZ rabbit hole, to find out what caused this very bizarre situation, what we did about it and of course (so we dont leave you hanging) the final outcome.

The Problem

The cause of this nine minute problem is actually quite complicated to explain but has to do with the way INZ calculates points for work experience in New Zealand, and how they use hourly rates when determining someone’s eligibility under the Skilled Migrant Category. In fact the nine minutes can also be described as 15 cents (per hour), which is the monetary equivalent of the sticky mess this client found himself in. I prefer to use the nine minutes as it sounds even more absurd.

When you apply for Residence as a Skilled Migrant, there are certain things you need to do, based on the points you are claiming. For some clients that includes claiming points for work experience in New Zealand, where you were earning a particular hourly rate. Even if you earn a salary, INZ will still look at that amount, divided by the hours you work per week. To qualify for those points you need (and they are crucial) you need to earn at or above that particular rate for every hour you work. However this gets really messy when you do earn a salary and your agreement contains a clause that allows you to work extra hours, without any extra compensation (your salary covers those extra hours).

When this occurs we are quick to remind clients that they need to factor any extra hours in and to ensure they stay within the hourly rate they need and of course this client (who had come to us near the end of the work experience period they needed) understood what was required. Fortunately, he was also on a fairly high salary and so a few extra hours would not have made a significant difference to the hourly rate. On that basis, the application for Residence was filed.

During the process, INZ contacted the employer as part of their standard verification process and of course the discussion turned to the hours worked. From here it all gets pretty strange. INZ emailed me after that call with a letter of concern, outlining that the employer had stated our client had worked 50 hours per week on the odd occasion for a period of time at the beginning of the two years. Those hours meant the hourly rate was just below what was needed and essentially wiped eight months off the two years of experience required. The shortfall, per hour, was 15 cents or in other words, the client worked nine minutes too many per week.

The employer however didn’t recall specifically saying 50 hours and also said a lot more in terms of the nature of the work, flexibility for staff to leave early, the fact that the extra hours worked were not worked in the beginning period and only much later, after our client had received a pay-rise (meaning 50 hours would have been fine). So a bit of a he said, she said.

However with my client having lodged this application just before turning 56 years of age, this letter of concern was in effect, his last roll of the dice. We had one chance to wind back the clock on nine minutes and make this work.

The Solution

When you have been in this business for as long as I have, you get a bit of a sixth sense as to what may or may not happen and given the timeframes involved and questions being asked by INZ, I picked that this hourly rate issue might surface. However I didn’t pick that it would all come down to a “he said, she said” situation - particularly not over an amount of time that most people use to go to the bathroom.

So how do you deal with something like this? Well I am not David Copperfield, so I am happy to explain the strategy we deployed. The first thing of course being to get INZ’s recording of the interview with the employer, because ultimately this is where the problem stems from and if INZ are making claims based on that recording we want to check those facts. I immediately (whilst on leave in Paihia) emailed the officer asking for a copy of that recording.

The officer came right back to me and sent through the written notes of that interview - first clue, there was no actual recording, just the notes taken by the officer during the call.

I then approached our client to see what the employer had in fact said, as they recalled it. I wanted to see if I was comparing apples with apples or perhaps we just had a complete fruit salad.

INZ’s notes, revealed that the officer had written down the words “50ish hours” and “might have” along with “ball park” to describe what their letter had suggested was a hard and fast 50 hours per week - second clue. I then asked the employer to explain their version of events and whilst they didn’t recall saying 50 exactly, they did recall saying a lot of other things that were never written down - all of which gave context to the extra hours being worked.

I then set about quantifying the difference to 15 cents (nine minutes), and establishing that INZ was holding a guillotine over this client’s application and his future, based on the words “might”, “ballpark” and my personal favourite “50ish”. However, when it comes to these sorts of things, INZ does have a reasonable amount of discretion, given the agreement allows for extra hours and there is no way to prove it either way.

We did however begin the process of compiling a formal response, helped in part by our employer writing down all those extra details that were not written down from the verification call and crafted a solid seven page response to INZ’s concerns. Not only pointing out that it is somewhat unfair to rest your case on something that you think is in the ball park or that you have to tack “ish” on to the end of - particularly for a client working in an occupation on the Green List and well above twice the median income.

We then sent that response away and whilst we are always quietly confident, you can never escape the anxious wait for a decision.

The Outcome

Whenever I do responses to INZ like this, I try to not think about it at all, beyond following up if there is no response in a reasonable timeframe. I have learned that once you lob that counter offensive back at INZ, there is not much more you can do and worrying about it endlessly is not going to achieve anything for you or your client. Being confident that your argument makes sense helps of course, but you just have to put it out of your mind until the result comes back.

That result arrived this afternoon, and there was no “might”, “ball park” or “ish” in the outcome - our client’s application has been approved in principle, and now just waiting to have the Visas issued.

For anyone this would be a big deal, but for this client is particularly large, considering his age and the fact that he would not be able to try again - so a very satisfying result for him and for our team.

It also illustrates, very clearly, that even the smallest of things, can have the most significant of impacts on what might appear to anyone as a very straight-forward application. Staying ahead of the process and also being able to decipher the problem, is the sort of thing we thrive on, particularly when it ends in the most sensible outcome.

Until next week(ish)!

Turner Hopkins Immigration Specialists