This is the second in a series of two opinion pieces written by Hakaora Tuauri Hakaora on immigration law and preservation of the Cook Islands Maori language

Second section 1028 words

Since this country has reopened its borders again, I would like to comment on work visa law. In recent weeks, media reports have speculated on the recruitment of migrant workers from abroad.

This to me suggests a tendency to ignore immigration law and the best interests of the Cook Islands people, especially when many jobs need to be filled.

Work visa

I believe temporary visas, especially work visas. are sought after by offshore and local non-Cook Islands people and are likely to be the most problematic of all visas once the law is applied.

A work visa allows entry, for a limited time, with the right to work. The due date of the visa will be stamped in a passport. It is the duty of the worker to depart the Cook Islands before the expiry of the holder’s visa, or to reapply for another temporary visa, before the expiry date. 

The job that the applicant has been permitted to do will be clearly set out on the visa and working in any other employment other than the specified one will be perceived and treated by Cook Islands Immigration as a serious breach of the conditions of the visa. However, this week on Cook Islands Television, I observed Financial Secretary Garth Henderson alluding to some changes to this requirement which would provide flexibility to the employee to change employers without the previous restriction applying.  

Work visa requirements

The new Immigration law requirements applying to temporary visas in general such as visitors’ visas also apply to work visas, but with an important additional layer of complexity. One of the principal purposes of work visa immigration law is to protect jobs in the Cook Islands for Cook Islanders. 

Cook Islands Immigration will look to employers to support this objective and in most cases will expect the employer to show that the job being offered to the offshore applicant cannot be filled by a Cook Islander. Many Cook Islands employers, accustomed to making their own employment decisions, will become frustrated when they find themselves dealing with an immigration bureaucracy they are not familiar with, particularly regarding the new law.

I understand Immigration over the years has had to deal on a regular basis with alleged fraud, deception and exploitation of foreign workers such as those who were allegedly underpaid weren’t paid at all. This practice can make honest employers disappointed, stressed and frustrated. 
If an employer genuinely has to look offshore to fill a vacancy because of an absence of local applicants, he or she is probably facing a serious staffing problem. Employers should note that the test is that a Cook Islander should genuinely be unavailable to fill the job for which a work visa is sought - not that the overseas applicant is “preferred”, “works harder” or has “better qualifications”. I believe the new immigration law should be about employers’ needs, not employers’ preferences.  

Employers’ Requirements

It appears that before the pandemic the country had a migrant workforce of over 3,600. That is a high number considering the local population is perhaps 14,000. I believe Cook Islanders should be offered the jobs first. The employer must be compelled by law to:

1. Advertise the job consecutively three times in a local newspaper in both English and Maori
2. Show evidence of the advertising including the dates
3. Show evidence of the number of applicants who applied for and why they are not suitable, or alternatively provide sworn evidence that no Cook Islander applied;
4. Refer the vacancy to the appropriate Government agency for vetting and consideration
5. Refer to a local employment agency.
6. Show sworn evidence that all these referrals did not yield a successful candidate

The second stage is to recruit from outside of the country. I believe the second preference should go to Tahitian candidates because of the similarity of our languages, culture and heritage. Tahiti is our closest neighbor and its people are experienced workers in tourism, having been exposed to it for at least a century.

How do we get workers from Tahiti? Send a delegation there to negotiate and sign a contract between the Cook Islands Government and Tahiti.  

The third option should only kick in after failing to recruit a Cook Islander, followed by a Tahitian. Only then can the employer recruit from elsewhere. In relation to the recruitment of overseas workers and in addition to the requirements already stipulated in the new legislation, the employer must also provide Cook Islands Immigration with:

1. A bank statement showing the business has been operating for a minimum of two years, and has the funds to meet its weekly financial obligations - especially the payment of wages.
2. Other evidence as deemed necessary by Cook Islands Immigration to show that the business is sustainable during the employment of migrant workers.  

Character requirements

Once arrested and charged in the Cook Islands High Court a visit by Cook Islands Immigration accompanied by a letter should be issued to the accused, pointing out that on conviction, the visa is cancelled and deportation immediately follows.  

All workers must have as condition of their work visa, compliance with the Cook Islands law at all times - including the need to have sober habits in public and be free of drug use.  

Health

If Government arrangements can be made with Tahitian workers, I propose that a health scheme for workers between the two countries be negotiated and signed.

Immigration decisions

How the principles of fairness and natural justice are applied to immigration decisions

is fundamental in decision making processes, and one assumes that Cook Islands Immigration and other governmental bodies strive for this in arriving at their decisions. It means giving every applicant a fair, just and impartial assessment of their applications. The applicant must be handled with care and with an open mind, with all facts, other relevant information and circumstances given due consideration. In practice, this encompasses upholding fair practices and due process.

It also means following set procedures and instructions, which are likely to lead to fair outcomes.

Eventually, any decision made must be objective, lawful and above all else not be coloured by personal opinion or prejudice.