Newton Santos and his wife, Nubia. Photo: Newton Santos
A Brazilian couple living in Auckland for the last 8 years are set to leave the country after their immigration advisor missed the deadline to apply for a new visa.
The Auckland couple paid thousands of dollars to have their application for the 2021 Residence Visa (RV2021) submitted by the advisor, who said due to staffing issues, they forgot to process the couple's application.
The one-off residency pathway was offered in 2021 for work visa holders already in the country and had more than 200,000 applications approved so far.
Back then, Newton Santos and his wife, Nubia, paid over $4000 for the Auckland company Sunrise Immigration Services to process their application.
"We have worked with them before; they were the same ones who helped us with our work visas and such.
Couple fights to stay in NZ after immigration advisor missed deadline
"Sometimes the whole application process can be complicated, and we believed with the help of an advisor we would have less chances to get anything wrong."
Santos said in the lead up to the submission's deadline, he contacted the advisor multiple times and was reassured the application had been put through.
"We called and e-mailed her, asking about any updates in our application, and she always said everything was good, that we just had to wait for the immigration response.
"As far as we knew, everything was all good."
The applications for the RV2021 closed on 31 July, 2022.
A few days after the visa submissions cut-off date, and after seeing friends granted the one-off visa, Santos called the advisor to check on the applications.
"She said her assistant forgot to apply for our visa.
"My wife was in tears, I didn't know what to do - we had the qualifications to be eligible for a type of residency visa that doesn't come out very often and just like that, we had nothing. It was devastating," Santos said.
"We left the office with [the advisor] promising us she had a way around it, but we didn't put much faith on it."
RNZ had access to a letter sent by the advisor to the Minister for Immigration 15 days after the cut off deadline for applications.
In the letter, the advisor confirmed that Santos and his wife had been their clients since their arrival in the country in 2016.
She said the oversight was due to increased workload and staff shortages.
"When the RV2021 was enacted and implemented... [Santos and his wife] were the very first ones to signify the interest in lodging [their application]."
The advisor said many companies have contracted Sunrise Immigration Services to process their application for the visa category.
"Drafting agreements, gathering information of more than 500 RV2021 applicants, conducting meetings... my body succumbed to pressures, and was hospitalised.
"While I thought we were running smoothly...[Santos'] application was oversighted and we discovered 3 days after the [RV2021] was closed for submissions," the letter read.
The advisor said she was "shocked to the core" and considered the oversight negligence from her office's part.
Santos said the negligence has taken a toll on the couple's mental health.
"My wife has been crying non-stop. Her dad passed at the same time as this had been happening, so she had to go through therapy to cope with all the stress and anxiety.
"I manage my mental health with work because I love what I do, but these last three years have been the hardest for us. It's hard to stay optimistic." he said.
Through a statement, the advisor from Sunrise Immigration Services, who RNZ has decided not to name, said she fully accepted the oversight.
"I felt dreadful for having made this mistake. I apologised to my client immediately once I had recognised what had gone wrong. I then sought to resolve the problem this had caused for him and his partner, but without success.
"I also acknowledged my mistake in the disciplinary process that resulted from his complaint to the IAA. Since than I have complied with the Disciplinary Tribunal's orders and paid compensation to Mr Santos as directed," the advisor said.
Court case
In 2023, the Brazilian couple took the immigration advisor to court.
In the decision made by the Immigration Advisers Complaints and Disciplinary Tribunal (IACDT), the registrar spoke of the gravity of the advisors' misconduct.
"While the success of any application can never be guaranteed, the complainant nonetheless lost the chance of what may have been a unique and seriously advantageous opportunity.
"The gravity of the loss is expressed in the complainant's state of disappointment, significant shock and distress... It was a one-off residence opportunity for which they were eligible," it read.
Registrar of Immigration Advisers Duncan Connor said NZ Immigration Advisers Authority upheld the complaint and imposed sanctions in June 2023.
"The adviser was censured, ordered to pay the registrar a penalty of $2500 within one month and ordered to pay the complainant compensation of $8000."
Immigration law specialist Alastair McClymont said seeking legal action could assist the case.
"They can utilise [the court's decision] to approach... Immigration New Zealand (INZ) and say they would have been eligible for a visa if it wasn't for the incorrect or incompetent advice received."
McClymont said presenting a positive result from a court case could help INZ to understand where the liability lied.
"That decision can then be used to try and obtain a resident visa through one of the available channels."
He said the oversight was not uncommon in the industry, and immigrants looking for advisors' services needed to do their research.
"They should be looking for a level of experience, qualifications or skill level and those sorts of things. You really have to shop around as if you're going to shop around for anything, whether it's a lawyer, or a doctor or an accountant, for example."
However, McClymont said people should not expect INZ to take responsibility for advisors' oversight.
"It's not a mandatory requirement that somebody has to have an advisor or a lawyer to submit an application on their behalf.
"If a person chooses to use an advisor and the work is not done correctly, you can't expect immigration New Zealand to provide some sort of compensation for that by granting a visa."
From experience, INZ could be quite open-minded and considered of the background of an application issue, McClymont said.
Ministry for Immigration plea
As a last resort, Newton Santos and his wife wrote to the Minister for Immigration, Erica Standford, asking for a review on their visa status.
Through a statement, the Ministry of Business, Innovation and Employment said it empathised with the couple's situation, but it couldn't do much about it.
"Their application under the 2021 Resident Visa Category...was unfortunately not lodged in time to be considered.
"INZ has no ability under the Immigration Act to accept a residence application under a category that has been closed."
Operations Director Dominic Forde said the Brazilian couple could try other visa pathways.
"[Santos and his wife] may wish to test their eligibility for residence under the Skilled Migrant Category and are encouraged to do so.
"In a letter dated 8 March 2023, a Departmental Decision Maker waived the requirement for [the couple] to provide new police clearances in order to submit any Skilled Migrant Category application," Forde said.
But Santos said he and his wife did not meet the requirements for any other residency pathway.
"New Zealand is our home, our dream. We have worked hard and have given back to the community we already feel a part of.
"To have the chance of becoming a permanent member or this community and having it gone because of someone else's lack of organisation, it's just so unfair," he said.