Is an application like a courtroom trial?

In an application you need to prove that you meet the criteria of the visa you are applying for, but how much evidence do you really need and what amounts to actual proof? This really depends on what you are trying to prove and the mindset of the INZ case officer, which can sometimes contain preconceived ideas, although they shouldn't.

In a courtroom if you are there being tried on certain charges there are 2 lawyers, the prosecution arguing that you are guilty and the defence arguing that you are innocent and should be set free. We all know that if we don't want to go to jail then we need a strong defence lawyer to argue our case, otherwise the prosecution will win by having a stronger argument, whether we are actually guilty or not.

INZ always used to be relatively neutral and all applicants had to do was to show a minimum amount of evidence that showed that they met the criteria of the visa. Now days it is more like a courtroom situation and applicants need to present a strong application to counter the preconception that you may be dishonest or are only pretending to meet the criteria of the visa.

The burden of proof

Here is an example from the Entrepreneur Work / Residence Visa category. For a business to be trading properly is one sign that it is actually a successful business.

Trading profitably means that your company is making enough profit and the amount of profit is at least as much as in the business plan. But there is also the requirement that the profit be legal and that the profit comes directly from sales of your product.

factor

Requirement

Proved by

1. Amount of money

Is in profit (not loss) and the same or more than in your business plan

Showing business plan and financial statements, bank statements, annual report, etc

2. Money comes from sales of your product and not form other sources

That the revenue you receive actually is from people paying to buy your product

Invoices, receipts. Bank transfer records, other types of transfers such as Alipay, Paypal, etc in customers name or distributors name to your company

 

The first factor is easy because you just show your bank balance or business annual report from your accountant and then the case officer admits that you are getting enough money to say that you are trading profitably in terms of your business plan. But the second factor can be difficult if there are a large number of steps between selling the product and getting money from it. For example if you sell a service overseas to a wholesaler, who then sells it to distributors and customers, then they pay to distributor or wholesaler, but sometimes also pay you directly, then the wholesaler pays you through several different agents who can make international transfers, then this trail of payments can be quite unclear. But to prove the second point, you need to prove this trail is real, to a reasonable extent. 

An analogy

Our youngest son (Bob) wanted to go to Palmerston North for a volleyball tournament when he was in high school. It would cost $700, but because he was lazy and didn’t work or study hard, we said that we would only pay for the trip if he worked hard in the holidays and saved some money.

Bob gave us his working plan where he wrote down that he would work in various part time jobs and therefore be able to save $500 before the end of the holidays. If this happened, we agreed to pay for the rest.

At the end of the holidays, Bob showed us $500. It is undoubtable that he actually has $500 because he showed it to us and we counted it (this meets factor 1), but where did this money come from? Did he actually work as he said, or did he steal it, find it or borrow it from someone? In our experience, Bob is very unreliable and lazy, so we found it hard to believe that he worked hard for it (i.e. he has to prove factor 2).

How much proof do we need?

Here are various scenarios of the level of proof Bob gave us to show that the $500 was from wages

Scenario 1:

  • Bob slept in until 12:00 pm everyday then went out and came home at 7:00 pm
  • We didn’t know where he went but he said he was working

Scenario 2:

  • Bob woke up at 8:00 am and came back at 6:00 pm
  • Bob said he was working at Pak n Save, and BP

Scenario 3:

  • Bob woke up at 8:00 am and came back at 6:00 pm
  • He said he was working at Pak n Save, and BP
  • He has payslips from Pak n save and BP (but these look like they could be made by MS Word) and there are no bank transfers – the payments are in cash)

Scenario 4:

  • Bob woke up at 8:00 am and came back at 6:00 pm
  • He said he was working at Pak n Save, and BP
  • He has payslips from Pak n save and BP
  • He showed us his bank statement which shows bank transfers from BP and Pak N Save for wages (but he could have got have made these transfers himself from a different bank account that we don’t know about and just input false labels on the transfer)

Scenario 5:

  • Bob woke up at 8:00 am and came back at 6:00 pm
  • He said he was working at Pak n Save, and BP
  • He has payslips from Pak n save and BP
  • He showed us his bank statement which shows bank transfers from BP and Pak N Save for wages
  • He has work reference letters from the managers of Pak n Save and BP, signed and dated with contact details
  • He has both Pak n save and BP uniforms with name tags with his name on it
  • Security camera footage show him standing at the shop in uniform

How much you trust Bob would depend on your preconceived ideas of him. Maybe if he was your child who is a little angel you would trust him or her at scenario 1 because they are so good.  In a normal case, maybe scenario 3 is enough for most parents. But if you have years of experience of Bob being lazy and lying and trying to find an easy way out of everything, then even scenario 5 is able to be doubted because; he may have borrowed the uniforms from a friend, might have made false name tags, the contact details may be friends’ contact details, the letters could be fake because it is easy about to get the letterhead of the companies and make a fake letter, etc.

A reasonable person wouldn't doubt scenario 5 though because what is the next level of proof? There should be no need to require more than that.

Summary

The level of proof you need depends on many factors, Immigration Advisers are professionals in immigration law, so we often know what the case officer is likely to think and then how much evidence is necessary to convince them. Every person is in a different situation and there can be many reasons for preconceived ideas by case officers. The best applications are those that present the right amount of evidence to neutralise these preconceptions. By giving too much evidence you often create different types of mistrust, so trying to prove something strongly that doesn't need to be proved will make INZ start to think about what you are trying to cover up.