Gordon Campbell on the epic fails of Kris Faafoi

81be5bcf01569a4fd566Ever since Winston Peters first breathed life into this government in 2018, its own branding has been all about social justice and how we all need to be “kind” to each other. Somehow, Kris Faafoi must have missed the memo. His performance in the immigration portfolio (in particular) has neither been kind nor just, especially to the migrants whose skills New Zealand will need to get us through Covid, and grow the economy into the future. They’re already here, and they’re keen to stay with their partners and children, and want to be able to bring in their parents. (Like us, migrants have families). Here’s merely the latest example of a couple – he’s a radiologist, she’s a nurse – who are being forced by Immigration New Zealand (INZ) to take their skills and their aspirations elsewhere.

So far, Faafoi has gotten away with it. (Phil Twyford became a media punching bag for far less.) In his ministerial roles, Faafoi appears willing to enforce the existing rules without any visible capacity for compassion, case by case judgement or regard for the previous political promises made by his party. Pleas for ministerial intervention and re-consideration have been dismissed via brutally terse written statements that have become almost a signature style.

Anti-migrant politics

One of the problems facing migrants is that although New Zealand’s foundation myths are based on 19th century pioneers braving all to journey across the world to make a new life here, our subsequent political culture has routinely undervalued migrants and their skills, and the rich cultural diversity they provide. On the centre-right, the hostility to migrants has always been tinged with racism. On the centre-left, Labour has just as consistently viewed migrant labour as a threat to the wages and conditions of its main support base. That history may explain why – after criticising immigration policy injustices when in opposition – this Labour government has retained ( for instance) the high income hurdle required for migrant family re-unifications. Migrants have to be earning over $100, 000 a year before they can bring in their parents. Wealth is being treated as the measure of worth.

The result of this bi-partisan negative perception of migrants has been that INZ has been given a virtual licence to be punitively restrictive. After all, any victims would be unlikely to publicly voice their feelings, out of fear of being further victimised by INZ. The internal problems at INZ go back nearly 20 years and have intensified since. For the past five years, INZ has seemed incapable of (or disinterested in) discharging its basic functions in anything like a fair or timely manner. “Shambolic” is how the Association of Salaried Specialists (ASMS) described the situation at INZ this year. In June, the ASMS warned Faafoi’s office of the risk of a“ mass exodus” of doctors and nurses to other countries. In August, the ASMS finally conveyed its frustrations to the media:

Expressions of interest from skilled migrants for residence visas have been paused since March last year. Hundreds of doctors and nurses are among those waiting for news. The association said the current approach created frustration and angst. It raised concerns about the residence delays in June, writing to the Immigration Minister Kris Faafoi. But its executive director, Sarah Dalton, said there had been “zero response”.

Think about it. As of March 2020 – just as the pandemic struck – the INZ stopped the processing of skilled migrant visas, including for the medical professionals we need to fight Covid-19. By late August 2021 (17 months later) there had still been no visible actions taken to address this need. A fortnight ago, Faafoi belatedly announced that there would be a one-off residency visa allocation to some 165,000 people able to comply with an arbitrary timeframe and set of conditions.

The gist of it? If migrant workers and their families had been living here on a visa for three years or more, were earning more than $27 an hour and were working in a job cited on a skills shortage list… then, they might be eligible. About 110,000 such workers and about 55,000 family members have been estimated as likely to qualify.

Immigration Minister Kris Faafoi told RNZ’s Morning Report [that] The one-off 2021 Resident Visa includes over 5000 health and aged care workers, around 9000 primary industry workers, and more than 800 teachers. Faafoi said some construction and manufacturing workers would also be eligible.

Faafoi has since batted away calls from immigration consultants that the announcement – which on past performance may take a further year (at least) for INZ to process – should have been accompanied by an apology for the anxiety caused by INZ’s prior decision to shelve (untouched) hundreds of applications that had been lodged, and where fees running into four figures had been paid upfront. More seriously, the current timeframe and criteria have left many equally deserving applicants feeling left out and cheated.

Over the admirably dogged course of her excellent work for RNZ, Gill Bonnett has been reporting many harrowing examples of people who are now realising their bad luck in not being resident here on exactly the right visa, at exactly the right time. Bizarrely, migrants who had been doing menial work in the hospitality industry have been disqualified for access if they had embarked on a study course to upskill. (They would have had more chance of inclusion if they’d stayed washing dishes and waiting on tables.)

Moreover, as Bonnett reports:

Among those also feeling aggrieved are those still working for New Zealand companies from overseas – and with valid visas – but who are excluded from the immigration announcement’s largesse because they could not be in the country due to border restrictions. A man who has worked in New Zealand for a decade is among those excluded from the one-off residence visas, missing out by four days. Vijay Bans’ work visa expired the weekend before the government announced that anyone eligible on 30 September would be able to settle permanently. His wife is just finishing a healthcare course and is working in an aged care facility – but her student visa does not qualify them for residence.

Think about how easy it would have been to avoid doing this level of damage to peoples’ lives. At any point over the past 17 months, a smidgeon of transparency about the government’s intentions would have enabled the people most affected to ensure they were on the right visa at the right time. The plight of those unavoidably trapped overseas by the pandemic should have been taken into account, and not treated as an automatic disqualifier by a department – and a Minister – seemingly incapable of exercising a sensible amount of compassionate discretion.

Postgraduate Blues

The harm being done by excluding postgraduate students from the recently announced residency quota goes beyond personal pain. It promises to do lasting damage to this country’s reputation as a destination for international students, some of whom were enticed here to do their postgraduate studies because our own marketing had painted such studies as being a possible pathway to residency. The people lured here on such grounds have every right to feel betrayed.

In addition, so do the people – some from poor countries – who scraped together circa $3,000 for skilled visa entry applications, only for INZ to pocket the money and shelve their applications while leaving the applicants in the dark for years as to what had happened. (If an individual had acted similarly, they would be facing prosecution for fraud.) Earlier this year, the Ombudsman finally ordered INZ to refund some of these monies, on request. Even then, INZ has put up hurdles around the refunds process that will render them, in some cases, impossible to execute :

Please note that INZ is not able to receive a refund request by email due to banking regulations regarding the electronic transmission of banking information. Please provide your bank account details only as we cannot refund to a credit card in this category.

International Education = Disposable

The unjust and chaotic practices at INZ are having repercussions for other sectors of government. Currently, the New Zealand international education sector is trying to recover from the effects of the pandemic. The exclusion from the residency visa scheme of postgraduate students studying here will now all but ensure that Australia and Canada will be seen (once word gets around) as being far more reliable and welcoming options. In stark contrast to the hundreds of millions of dollars lavished on tourism operators suffering from the Covid downturn, the international education sector has been treated as disposable. The leadership of Education NZ (the sector’s supposed champion) has been so timidly inept in its lobbying of government that the Cabinet has come under no pressure to treat the sector’s plight as a priority.

In similar vein, Faafoi has brushed aside the widespread misgivings about the flaws in the one-off residency visa scheme. In his view (see the Gill Bonnett link above) once any dismayed students get fully qualified and provided they can meet the full range of other conditions, they can simply re-apply at some future date, and go through the waiting game all over again:

People who have gained valuable qualifications from study in New Zealand, and have been gaining useful work experience while offshore, can apply for work visas when the borders reopen if they have skills New Zealand needs.”

In other words, let them eat cake. To sum up: any M.A or Ph.d candidates, or any doctors or nurses who (a) personally missed the quota cut or (b) whose family members don’t fit the demanding criteria or (c) who simply can’t afford to wait any longer for INZ to get around to processing their applications, will be heading off as soon as they can to Australia, Canada, or Europe. Keep Faafoi’s performance in mind as Delta spreads through the community over summer, and the public health system struggles to find sufficient numbers of trained staff.

To his credit, the Greens immigration spokesman Ricardo Menendez March

has called for this one-off residency scheme to be expanded. His Twitter thread

on the subject is worth reading. The subjects addressed include whether in a low income country like New Zealand, employers should be enabled to perpetuate low wage conditions – and whether regardless, a path to residency is still the best (only) way that such workers can escape from those sort of income traps. A petition calling for the widening of the qualifying criteria for the residency quota ( eg to include students studying here) has been launched, and can be signed, here.

Footnote One: Faafoi’s ham-fisted approach to his portfolios extends beyond Immigration. As Justice Minister, he has continued to block an appeal for compensation from Terri Friesen, a victim of (a) wrongful prosecution in 1989 for the death of her baby (b) domestic abuse, and (c) alleged Police pressure at the time to put her other child ( then three) into care unless she provided then with a confession. This false confession is one that Faafoi has now chosen to cite as a reason to refuse her compensation, and thereby (among other things) recognise the impact that the wrongful conviction has had for decades upon Friesen’s chances of employment.

[Faafoi] wrote that concern for the welfare of her partner and daughter “explain why she falsely confessed but does not excuse it”, and that “intentionally lying to the police and the court perverts the course of justice”. Friesen’s compensation application argued that a major factor contributing toward her false confession was the abuse she suffered at the hands of [then-partner, Brownie] Broughton [later convicted of the crime.]

However, Faafoi’s letter rejected this explanation as well, saying that “the psychiatrist who assessed Ms Friesen prior to trial found her to be a normal young woman with no formal diagnosed mental disorder”. Law professor Julia Tolmie, an expert in intimate partner violence at the University of Auckland, says this misunderstands how domestic abuse can operate.

Clearly, there is also a basic conflict of interest here. Compensation should not be awarded or withheld at the discretion of the Cabinet Minister whose Ministry’s past mistakes triggered the claim for compensation. Think for a moment about what kind of advice the Justice Minister would be likely to be getting from his or her Ministry officials. To avoid similar conflicts of interest, the Ardern government recently removed the re-evaluation of potential wrongful convictions from the Justice Ministry, and placed the process in the hands of a new and independent Criminal Cases Review Commission. Plainly, it needs to now do the same for claims of compensation for wrongful conviction.

Footnote Two: And lest we forget… In a one page letter written in early July, Faafoi

rejected an appeal for help by Afghan citizens who had helped New Zealand forces in Bamiyan and whose lives were at risk from the Taliban military advances. All of these people were left behind when Kabul fell to the Taliban five weeks later. In his July memo Faafoi had said that New Zealand had no intention of extending the help given to a limited number of such Bamiyan helpers in 2012-2013, back when Bamiyan was considered the safest region in the country. Clearly, the risk level in 2021 to the rest of our Bamiyan helpers had risen dramatically. However, Faafoi displayed no interest in acknowledging the uptick in the dangers facing the people from Bamiyan now in the firing line.

Footnote Three: Access to justice is a fundamental right. Legal aid enables those on low incomes to access the basics of justice, even if only under strict qualifying conditions. This week, even the Chief Justice of the Supreme Court has said publicly that the legal aid system “is broken and may collapse.” The grim details are available here. And the Justice Minister’s response? On RNZ this morning, Faafoi conceded that “significant added funding” was needed to address issues with legal aid, but that the government’s current priority was the Covid-19 response. It seems that we have a Justice Minister unaware of the Magna Carta of 1215, which says at article 40 : “We will not sell, or refuse or delay, right or justice to anyone.”