Photo: RNZ
Immigration New Zealand has been rapped over the knuckles by an Auckland High Court judge for an "inappropriate" internal guideline that singled out applications from a particular nationality.
However, judge Gerard van Bohemen in his August decision dismissed the wider appeal against the agency's rejection of a Specific Purpose Work Visa (SPWV) application, saying the advisory did not change long-standing immigration policy.
Immigration lawyer Harris Gu found the advisory in an internal document from May 2024 released under the Official Information Act when reviewing possible factors behind the agency's decision to decline a Specific Purpose Work Visa application from a Chinese national who wished to work in New Zealand as a nanny.
The advisory said the department had been receiving applications from Chinese nationals wanting to work for New Zealand families as nannies on a Specific Purpose Work Visa.
"While we do accept SPWV applications from nannies accompanying their overseas employer's family who are here on a visa for the purpose of tourism, it would not be appropriate to grant a SPWV for nannies from China to work [for] New Zealand families," the advisory said.
The advisory went on to explain that job opportunities for New Zealand citizens or residents could be negatively impacted if such visas were granted for such purposes.
"It would be more appropriate for these nannies to apply for an AEWV [Accredited Employer Work Visa] to work as a nanny in New Zealand," it said.
Introduced in 2002, the Specific Purpose Work Visa had been designed for individuals coming to New Zealand for a clearly defined, short-term purpose, said Peter Elms, visa director at Immigration New Zealand.
Examples included individuals who came to install specialised equipment, perform in a concert or accompany an overseas employer's family, Elms said.
"It is not intended for general employment, and applicants must show that the role cannot be filled by a New Zealand citizen or resident," he said.
However, Gu said New Zealand families had hired overseas nannies on a Specific Purpose Work Visa prior to 2024, pointing to two successful applications of his clients in 2023.
A separate application was declined in August 2024 for failing to meet the visa requirements.
Gu expressed concern the advisory had singled out nannies from China, as the visa setting applied to individuals of all nationalities.
"This directive deliberately singled out Chinese nationals," Gu said. "That is racial profiling - plain and simple."
Gu's client appealed Immigration New Zealand's decision to decline the visa application, arguing it was "predetermined, biased and unfair" as well as being unreasonable.
However, van Bohemen ruled the internal update was an advisory that did not change long-standing immigration policy.
He also ruled that the decision to decline the application was not predetermined, biased or otherwise unfair, nor was it unreasonable.
"[The update] should not have referred to 'nannies from China' when advising that it would not be appropriate to grant a SPWV for nannies intending to work for New Zealand families," van Bohemen said in the decision.
"The guidance must apply equally to anyone wanting to enter New Zealand to work as a nanny for a New Zealand family," he said.
"In that respect, the words 'from China' in the operative sentence were inappropriate and should not have been included."
However, van Bohemen said there was "nothing racist or wrong" in an advisory that alerted officials to the fact that Immigration New Zealand had been receiving applications for Specific Purpose Work Visas from Chinese nationals wanting to work as nannies for New Zealand families.
Such detail was a matter of fact and part of overall context, he said.
Elms said the reference was not intended to exclude or single out a particular nationality, but rather to reflect a pattern of applications at the time.
"We have acknowledged the court's findings, and we are reviewing our guidance materials to ensure language is neutral, appropriate and aligned with best practice," he said.
Elms said the Accredited Employer Work Visa was the principal pathway for temporary work and employers, including families employing private staff, should first become accredited with Immigration New Zealand to hire staff from overseas for short-term roles.
"To be accredited, they must meet financial and compliance requirements, such as registering with Inland Revenue and committing to fair employment practices," he said.
"Once accredited, they must pass a job check to confirm the role meets wage and job standards before a nanny can apply for the visa," Elms said.
"If a private family is not registered as a company, they may apply as a sole trader, provided New Zealand is their primary place of residence."
Data provided by Immigration New Zealand showed 97 applications had been submitted by Chinese nationals for a Specific Purpose Work Visa under the occupation of nanny in the past 10 years.
Of these, 86 had been approved, seven declined and four withdrawn.
