Part 4: Competency and powers of staff making visa and permit decisions

4.1
In this Part, we set out our findings about:

• the nature of making visa and permit decisions;
• competency requirements of staff making visa and permit decisions;
• staff training and competency assessment;
• delegations of staff making and supervising visa and permit decisions; and
• powers of managers to direct staff in making visa and permit decisions.

4.2
We expected Immigration New Zealand staff with responsibility for assessing visa and permit applications to be suitably skilled, supervised, and trained to ensure that they made good quality decisions in keeping with their delegated powers.

The nature of making visa and permit decisions

Immigration Officers and Visa Officers have significant discretion when making visa and permit decisions. This discretion requires the use of informed judgement.

4.3
The legal basis for making visa and permit decisions is contained in the Immigration Act 1987 (the Act). To make an immigration decision, a person must be designated by the Secretary of Labour as an Immigration Officer, Visa Officer, or Refugee Status Officer. For our inquiry, we examined only the roles of Immigration Officers and Visa Officers (because managing and settling refugees was not within the scope of our inquiry). In practice, staff making visa and permit decisions in onshore branches are Immigration Officers, while Visa Officers make decisions in offshore branches.

4.4
Residence applications must be decided in line with the Government’s immigration policy. Temporary entry applications can be decided as exceptions to policy, but the reasons for the exceptions must be recorded.

The role of Immigration Officers and Visa Officers

4.5
The main role of Immigration Officers and Visa Officers is to assess and decide visa or permit applications. The decision-making process requires officers to:

• assess if applications are complete;
• check that applicants meet relevant immigration policy; and
• evaluate whether authentic evidence has been supplied in support of an application.¹

4.6
The work of Immigration Officers and Visa Officers involves some routine administrative tasks, but also the use of a large degree of discretion and informed judgement. The use of judgement occurs in two important ways. First, officers need to interpret and apply relevant immigration policy to the specific circumstances of applicants. Although different interpretations of policy or balancing of factors could result in two officers making a different decision about similar visa or permit applications, decisions need to be made on a consistent basis.

4.7
Secondly, officers must be satisfied that applicants for visas or permits are genuine and meet specified health, character, and other policy requirements. Officers have a great deal of discretion in deciding how much verification work is done about an applicant – or the information the applicant has provided – to test that the applicant meets the specified requirements. We discuss verification, and the role of risk assessment in deciding the extent of verification, in Part 5.

4.8
In our view, the combined effect of these discretionary powers makes it imperative that Immigration Officers and Visa Officers are suitably trained and assessed for competency to carry out their roles. It is also important that staff understand the different powers delegated to them.

4.9
We noticed that most branches did not require police checks of new staff before they were warranted to make visa and permit decisions. In our view, the Department should introduce routine police checks for staff hired to make visa and permit decisions as an additional risk mitigation process.

Competency requirements of staff making visa and permit decisions

Immigration warrants are evidence of formal training to make visa and permit decisions. Immigration warrants were held in almost all the cases we examined.

4.10
An immigration warrant is evidence that a person has been designated as an Immigration Officer. Obtaining a warrant requires an employee to first complete a formal training programme co-ordinated by Immigration New Zealand trainers, and then be considered competent to carry out the functions of an Immigration Officer.² Designated Immigration Officers are provided with a warrant and a letter from the Department of Labour’s chief executive detailing any delegated powers they may use.

4.11
The competency requirements for Visa Officers are similar to Immigration Officers. Visa Officers also must complete a training programme co-ordinated by Immigration New Zealand trainers, and be considered competent to perform the functions of a Visa Officer. A difference noted in Immigration New Zealand’s operational manual is that Visa Officers are not necessarily required to hold a warrant.³ However, we found that it was usual practice for Visa Officers to do similar training courses as Immigration Officers that resulted in them sitting a test to get a warrant.

Warrants held by staff to make visa and permit decisions

4.12
Staff making visa and permit decisions in the Immigration New Zealand branches we visited all had immigration warrants. In some branches, support staff who were not directly making visa and permit decisions also held immigration warrants.

4.13
Some staff at two branches we visited had, in the past, been making or supervising visa and permit decisions before receiving training to earn their warrants. We acknowledge that there can sometimes be logistical difficulties in scheduling warrant training for new staff, especially for offshore branches that rely on being trained by Immigration New Zealand trainers based in New Zealand. However, in the absence of alternative training arrangements to formally assess the competence of new staff, it is important that all staff complete their warrant training before they start to make visa and permit decisions.

4.14
Some branches had a practical way to overcome the problem of aligning the provision of formal warrant training with staff recruitment. In these branches, new staff were allowed to start assessing applications, but a warranted officer checked their work and authorised the final decision.

Staff training and competency assessment

Many Immigration New Zealand staff felt that they had received insufficient training for their jobs. There was significant variation between branches in the level and type of training provided to staff, with only limited organisational-wide co-ordination and monitoring.

Staff views on the amount of training they get

4.15
A clear and strong opinion often expressed to us by Immigration New Zealand staff was that they felt they had received insufficient training to do their jobs. In our view, the Department needs to investigate and evaluate the adequacy and provision of training to frontline staff involved in making visa and permit decisions, given the widespread dissatisfaction expressed to us.

Warrant training and the role of on-the-job training

4.16
Warrant training is the only mandatory training provided to all new staff who will be making visa and permit decisions. At the time of our inquiry, warrant training for new staff involved five days of largely theoretical tuition on interpreting immigration policy (as set out in Immigration New Zealand’s operational manual) and applying it to case studies. Participants had to pass a test at the end of the training and be considered competent to get a warrant.

The timing of warrant training

4.17
The theoretical nature of warrant training means that Immigration New Zealand branches routinely combine it with various forms of on-the-job training to build the overall competency of new Immigration Officers and Visa Officers. However, the timing of when new officers do the warrant training varied among the branches we visited. This was partly because of the logistical difficulty of timing a round of training to match when new staff start. However, we also found that some branches prefer to start new staff with warrant training, while others give new staff a few weeks of on-the-job experience first. Staff we interviewed were mixed in their opinions about whether warrant training should occur before or after they have learned some of the practical aspects of their roles.

4.18
We have not formed a view about when new Immigration Officers and Visa Officers should receive their warrant training. However, we consider that it would be useful for Immigration New Zealand to do its own evaluation of when best to time warrant training for new staff to achieve the best possible learning results.

On-the-job training

4.19
On-the-job and induction training is an important part of establishing the competency of new staff. However, we found significant variation between branches in how new staff are trained. In some branches, staff we interviewed were immediately put in “sink or swim” situations in their branch and expected to cope with all types and complexity of visa and permit decisions. Understandably, this was stressful for some staff. In other branches, more structured induction competency programmes were used, involving a mix of theoretical and practical instruction and supervision. These staff were initially assigned straightforward visa or permit applications to assess. They were progressively given more complex applications as they gained experience and competence in making visa and permit decisions.

Assessing ongoing staff competence

4.20
Officers were not required to participate in any formal refresher training after they had earned their warrants. Although officers were expected to keep up to date with any policy changes, there was no organisation-wide assessment of how well they were doing this. In our view, Immigration New Zealand should consider ongoing competency assessments for the staff involved in making visa and permit decisions.

Organisation-wide monitoring of staff competency and training

4.21
Beyond the mandatory warrant training, there was limited organisation-wide co-ordination or monitoring of staff training and competency in making visa and permit decisions.

4.22
Branch managers were largely responsible for deciding what training was provided, including training by an internal training provider, and how it was delivered, to their staff. This helps to explain the significant variation we observed in training.

4.23
We recognise that branches will have different training needs because of their specific circumstances and the diverse markets and regions they operate in. This makes a one-size-fits-all approach to staff training undesirable. However, the lack of centralised co-ordination and monitoring of training provided to branch staff means that Immigration New Zealand cannot easily:

• track the extent or sufficiency of training provided to staff making visa and permit decisions;
• compare and evaluate staff competency levels in different branches or regions to identify training needs; and
• ensure that visa and permit decisions are consistent throughout its organisation.

Training for staff in specialist roles

4.24
Staff in specialist or supervisory jobs in branches frequently told us that they had received either no or only very limited training specific to their roles. This included technical advisers, who have an important role in supervising and mentoring Immigration Officers and Visa Officers. Technical advisers are appointed based on their experience with making visa and permit decisions. They are then expected to share the skills they have learned on the job with other staff. The lack of specialist training for technical advisers limits the ability of Immigration New Zealand to monitor and guide the consistency and quality of on-the-job support provided by technical advisers to Immigration Officers and Visa Officers.

4.25
We observed or heard similar experiences about a lack of specific training from other staff in specialist roles, including some immigration managers and some verification officers.

4.26
In our view, the Department needs to evaluate the adequacy and consistency of training provided to staff in specialist roles.

Delegations of staff making and supervising visa and permit decisions

Many staff were unclear about their delegated powers. In our view, the guidance and documentation in branches about staff delegations needs to improve.

Delegated powers to immigration staff

4.27
Under the Act, the Minister of Immigration can delegate various powers to Immigration Officers, Visa Officers, and managers. Immigration New Zealand’s operational manual states the different levels of delegated powers staff have depending on what Schedule to the Minister’s instrument of delegation their job position comes under. Four Schedules are currently used to define delegated powers. Schedule 1 has the most delegated authority, and Schedule 4 has the least. For example, a branch manager on Schedule 1 has more delegated decision-making powers than an Immigration Officer on Schedule 4. Schedules 1 to 3 all require staff to have a warrant.

Staff understanding of their delegations

4.28
Staff we interviewed in Immigration New Zealand branches were often unclear about their official delegated powers, or only knew what they could decide as Immigration Officers or Visa Officers by verbal direction from their line managers. Branch documentation registering staff delegations was often patchy or non-existent.

4.29
Confusion among staff about their delegated powers had been complicated by the use of partial delegations in many branches. For example, staff with a Schedule 1 delegation can technically exercise a wide range of powers under the Act. Schedule 1 staff can include some Immigration Officers, Technical Advisers, and various levels of management through to the Department’s chief executive, the Secretary of Labour. However, many branches limited to senior staff the power to approve waivers or exceptions to policy.

4.30
In our view, branches should maintain registers of the delegated powers of staff members. More practical and transparent guidance should be provided in branches about staff delegations. This guidance should list the delegations each staff member has and the different immigration decision-making powers these delegations give them. Details about delegations are currently provided in Immigration New Zealand’s operational manual, but the information is given in a very legalistic way with numerous cross-references. It is difficult to translate that information into practical instructions for staff.

4.31
Branches should also consider explaining delegations as part of their staff training programmes. Only one of the 10 branches we visited specifically trained staff about their delegations and what they consequently could and could not do in their roles.

4.32
The lack of clarity about delegations raises the risk that officers may inadvertently make unauthorised visa and permit decisions.⁴ However, despite some confusion about delegations, we found that staff making decisions had the necessary warrants to do so and that staff generally understood when to escalate a decision to a more senior staff member (such as a manager).

Computer system for processing visa and permit decisions does not restrict access

4.33
The Application Management System (AMS), Immigration New Zealand’s core computer system used by staff to process and record visa and permit decisions, cannot restrict access and actions based on delegated authority. We are aware that the Department wants to replace the AMS with a new and more sophisticated computer system as part of its Immigration Business Transformation proposals. We encourage the Department to include this sort of functionality with any future upgrade or replacement of the AMS.

Powers of managers to direct staff in making visa and permit decisions

The Department is investigating instances where staff may have felt pressured by managers to make visa and permit decisions that they disagreed with. In our view, staff need clear guidance about this from the Department, and officers should not be required to make visa and permit decisions that they fundamentally disagree with.

4.34
In October 2008, the SSC released a report setting out the findings of its investigation into the handling of visa and permit decisions for relatives of Ms Thompson (we discuss the SSC’s report in Part 7). The SSC’s report reiterated some earlier concerns raised by David Oughton in his 2007 investigation⁵ into the lawfulness of residence permits for Ms Thompson’s relatives (see Volume 2 of this report).⁶ The concerns included a finding that some frontline staff involved in processing the applications had felt pressured to follow instructions from senior managers and make decisions that they disagreed with. To protect themselves, some frontline staff had entered “as instructed” into the AMS records for some applications. Mr Oughton did not believe the use of this practice was isolated and recommended that the Department examine in detail the extent to which this practice was used.

4.35
The SSC considered this to be an appropriate recommendation, but found that the Department had not adopted it. Therefore, the SSC report repeated the recommendation that the Department conduct an in-depth investigation into the use of “as instructed” entries and other instances where staff have refused to comply with managerial requests to approve applications.

The Department’s investigation into the extent of, and practices for, registering disagreement with instructions from managers

4.36
The Department has started to investigate the use of “as instructed” and similar entries in the AMS. An internal audit began in late 2008, focusing on visa and permit decisions for Kiribati applicants and decisions made by the Pacific Division. We understand that this audit has identified a number of cases that have raised concerns that need to be investigated. The Department was also planning, at the time of our inquiry, to widen its audit investigations to include visa and permit decisions made by other parts of Immigration New Zealand.

4.37
We are pleased that the Department is carrying out these investigations. Our own inquiry work and interviews with staff identified many of the same cases covered by the SSC’s report. We also learned of other similar situations where frontline staff felt pressured by more senior staff to decide applications in a certain way.

4.38
The Department, in its public response to the findings of the SSC’s report, commented that:

The use of the term “as instructed” or similar notations — properly documented — can simply reflect an appropriate and lawful process where a senior officer with delegated authority instructs a junior officer to proceed in a certain manner. Legitimate reasons exist for this judgement to be exercised.

Examples include humanitarian reasons and cases of likely benefit to New Zealand where policy requirements (such as medical or character) are not met.

4.39
We broadly agree with the Department on this matter, but consider that very clear guidelines and processes need to be introduced to inform staff about what to do if they disagree with directions from managers. This relates to our finding discussed earlier of a general reluctance by many staff to raise concerns internally.

4.40
Staff we spoke with who had been involved in “as instructed” or similar cases were often anxious and confused about the involvement of senior managers in individual cases. Senior managers’ actions or comments on individual cases tended to be seen by officers as directions about how they were to decide applications, regardless of whether this was the intention. It shows that senior managers need to act very carefully when getting involved with individual cases.

4.41
We also consider that the Department should not require officers to approve visa and permit decisions that they fundamentally disagree with. This, ultimately, was why some staff resorted to using terms like “as instructed” with some visa and permit decisions. In our view, managers or more senior officers are entitled to overturn or change an officer’s assessment – if it is lawful and within their delegated authority – but they should record their actions in their own name and delegation.

Deputy Secretary (Workforce) and senior managers’ involvement in cases

4.42
We were told by some immigration staff that comments made by the former Deputy Secretary (Workforce) or other senior managers were often perceived to suggest the outcome that was expected. We reviewed a number of visa and permit decisions and found some cases where the former Deputy Secretary (Workforce) or other senior managers had provided comments to staff about how to handle a decision, query, or complaint – including, for example, asking them to discuss the matter with the senior manager before deciding or responding. In some cases, a clear expectation was expressed about the decision or response that should be made. There was no indication that the former Deputy Secretary (Workforce) or other managers intended for applicants or complainants to be treated preferentially. However, these comments were sometimes perceived by junior staff as directions about how to proceed, to decide the application or complaint in a particular way, or to treat the person favourably.

4.43
It is entirely appropriate for the Deputy Secretary (Workforce)⁷ or other senior managers – if they are warranted Immigration Officers – to provide comment or direction on what should be taken into account when considering and responding to an application, query, or complaint. However, special care is required when the comments are made by such a senior officer – instructions should be clear and documented. Informal comments could be mistakenly perceived as an instruction to respond to the applicant or complainant in a particular way, inconsistent with the views and considerations of the officer handling the matter.

1: Immigration Officers and Visa Officers are required to act fairly and with natural justice throughout this decision-making process.

2: There is also a provision for the Secretary of Labour to use their discretion to designate someone as an Immigration Officer and issue them a warrant.

3: The operational manual covers government policy for granting visas and permits. It includes policy and process requirements that officers are expected to follow.

4: In our sample of decisions, we did not look at whether officers had the required delegation because the information was not readily available.

5: Oughton, David (2007), Review of Apparently Unlawful Immigration Decision, provided to the Secretary of Labour.

6: Office of the Auditor-General (2009), Inquiry into immigration matters – Volume 2: Public sector recruitment processes involving Mary Anne Thompson and related issues, Wellington.

7: The former Deputy Secretary (Workforce) held the designation of Immigration Officer and was issued with a warrant.

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