Visa U-Turn

A couple of weeks back, I authored an article on some of things that aren’t immediately obvious in the visa world, and that include a very brief commentary on INZ’s decision to decline a visa application from Candace Owens. If you don’t who she is, I would suggest a very brief google review. Candace is essentially a very controversial social and political commentator whose views are considered far-right and in the extreme (and some of them could be considered by some to be slightly off planet).

The decision to decline Miss Owens a visa to travel here and undertake a speaking engagement was based on the fact that our Australian counterparts had decided to do the same, in the interests of protecting the public. New Zealand seemed to simply follow along, and decided to decline the application using a very particular part of the Act, arguing that Miss Owens had been “excluded” from Australia.

However during the course of this week, the Associate Minister of Immigration, decided to turn the wheel, enacting a visa ‘U-turn’ for Miss Owens, deciding to overturn INZ’s previous decision and to grant her a visa. A bold move, given Australia’s position, but ultimately in my view the right one.

The whole series of events does raise some interesting questions, as to how the powers to grant a visa are used and why limitations on those powers, are not just important but crucial to the way our visa system operates.

Why She Was Declined

When Candace Owens initially applied for a visa to travel to New Zealand (and to undertake her formal speaking engagements), she had only in the weeks prior been declined a visa for the same purpose for Australia. Australia essentially cited, national interests, as being the reason for declining that application. They were bold enough at least to explain why they didn’t want her to cross their border, regardless of the questions that raises, in terms of who decides what is or isn’t in the national interest.

What Exclusion Means

INZ used the fact that Candace had been declined by Australia, but was that the right stance to take?

When New Zealand received her application, and then decided not to grant it, the decision was based primarily on the fact that she had been declined by Australia, but more specifically, that she had been “excluded”. Senior INZ officials cited the following “Under section 15(1)(f) of the Immigration Act, an individual may not be granted a visa to come to New Zealand if they have been excluded from another country,".

The problem with this is that Section 15(1)(f) has a very specific set of criteria, relating to persons who have been removed, excluded or deported from a country and these are relatively serious issues. So the question is, whether being declined a visa or even banned for a period of time, meets that definition.

In my view, and certainly the view of many of my industry colleagues the answer is likely no. The problem is that being excluded has a relatively high threshold - you essentially cannot apply to that country for a visa, cannot appeal and the exclusion is usually very long term, if not permanent.

In this case, whilst Candace was declined, she was not, the best of our knowledge prohibited from appealing or reapplying and making her case. It would be very unlikely for Australia to have imposed that sort of ban.

So arguably INZ may not have had the legal standing to enforce this section of the Act. They could have utilised other sections, which would have relied on similar reasoning as Australia (public interest etc.) but this would have most likely required the Minister’s input. From what we can see at least, but of course without having the full application in hand, the use of this section of the Act appears to have been a bit of a stretch.

It might however have been easier to do, given the circumstances and instead of creating the debate over who determines the public interest, we just declined it because Australia did, and they ultimately took the hit. Whatever the technicalities, when that decision was handed down, it was pretty clear, that it was going to ruffle a few feathers.

Why She Was Approved

In an about-face, the Associate Minister, this week, intervened in that process, deciding to grant Miss Owens a visa. The Minister of course has the ultimate discretion to make this call, and in talking to the media, his office responded with "The Minister made his decision after considering representations made to him, including the importance of free speech."

Ministerial Intervention

This week, the Minister intervened, allowing Candace Owens to secure a Visa.

The key here is the inclusion of the importance of “free speech” and ultimately he is right. Whether you agree or disagree with Miss Owens, or any other person seeking to bring their views to New Zealand, a decision, such as the one made by INZ, has potentially disastrous consequences.

In any democracy the right to hold personal views or to hear the view of others, is fundamental, and whilst sometimes, there will be people whose views do pose a risk to society, that is an incredibly high threshold to meet. Miss Owens has views that plenty of people will disagree with, but she would not be considered to be a threat to public safety and by default, wouldn’t be contrary to the public interest.

The irony of course is that in declining the visa initially, that created more media attention for Miss Owens, and in fact most people had no idea who she was or what she stood for, until INZ got involved. Had she been approved originally, she probably would have turned up to a reasonable crowd, but without the national exposure. For people like this, being declined a visa is almost a badge of honour and certainly a bit of a PR win.

So, in my view, this should never have reached the point of requiring the Minister’s intervention at all, however the fact it did, and the Minister intervened on the basis of preserving free speech is the right outcome. Ultimately if you don’t like what she has to say, you now have the choice not to listen.

Fair & Reasonable

Why is any of this is important, particularly for anyone else making the move, well it is because these situations tend to be the top of a very slippery slope. When Government departments start calling the shots, on who gets to come here, based on potentially a small collective pool of personal beliefs, you are heading down that slope pretty quickly.

If officials can say no to people, just because they may not agree with their views or beliefs, at what point does that end? This is why the decision to reverse the declined visa is important, because it is the Minister maintaining a fair and balanced process. Something that our visa system, needs to have.

I am sure there is and will be plenty of opinion over Miss Owens’ visit to New Zealand, and some heated debate leading up to it, along with potential protests during, but ultimately that is what being a democracy is all about. People being given the right to hear opinions or decide not to as the case may be.

In the same way, any applicant should be entitled to apply for a visa, and be granted that visa if they meet the requirements, irrespective of what some individuals might think of their personal opinions or beliefs. Having a system that is fair and balanced to all migrants, no matter how short or long they may be here for, is not only essential but also just.

Until next week!