Over the past month we have come across a number of examples of Immigration New Zealand enforcing what seems to be a zero tolerance policy towards section 61 applications. For those that don’t know, section 61 is a policy from the Immigration Act which replaces the old section 35A which was designed to give applicants a second chance or a ‘get out of jail free card’ in certain circumstances.
61Grant of visa in special case
(1)The Minister may at any time, of the Minister’s own volition, grant a visa of any type to a person who— (a)is unlawfully in New Zealand; and (b)is not a person in respect of whom a deportation order is in force.
(2)A decision to grant a visa under subsection (1) is in the Minister’s absolute discretion. This section essentially means that where an applicant becomes unlawful due to missing a deadline or lodging an application incorrectly just before the expiry date, they can make a further application to INZ explaining the reasons and requesting INZ to consider granting them a further visa.
The Minister does not actually consider each case individually under this section because they have delegated power to make these decisions to INZ. So it will be a case officer or maybe a technical adviser considering the request. The problem with this policy is section 2 which states essentially that INZ has absolute discretion – this means that INZ can make any decision they like on a section 61 application. INZ does not even need to give reasons or justify the decision under this section. Doesn’t seem fair does it? Well tough luck – because that is the Law and INZ take this quite literally.
In the past, INZ were far more fair and mostly took a common sense approach and in deserving cases they would be obliging in granting these requests. However, over the past month we have seen evidence of this really tightening up and in some very deserving cases INZ have been declining section 61 requests. We are not sure what is behind this except that it is part of a general movement towards trying to decrease the number of visas granted to temporary migrants and to protect New Zealand workers from unemployment.
The scary part is that people who have lodged applications with very minor mistakes in paperwork or a missing document have been refused lodgement of their original application and in the time it takes for the documents to be mailed back to them their visa has been expired. These people you would imagine are just the type of people this policy was declined to assist, however even such cases have been refused by INZ recently and many of these have come to us for assistance. There is very little we can do in these cases except from escalating the matter as a complaint to the Branch Manager or lodging appeals with the minister which are both very time consuming and expensive.
In the worst cases, INZ can refuse the request and then begin to take action to remove the applicant from New Zealand which means a 5 year ban on returning to New Zealand. In those cases we need to negotiate a deal to prevent this from happening at least until the client has had a chance to have an appeal heard by the Minister. So we issue this warning to all past, present and previous clients of Immigration Centre. Don’t get caught out!! There are two important lessons to take from this: 1. Apply with plenty of time before your visa expires 2. Come and see us and make sure you have filled the forms correctly and attached all the correct information. We are working hard on this issue and will keep in touch with INZ regarding this new approach to ensure they are being fair in their decisions and ensuring that our clients have the best representation. If you are experiencing problems with meeting deadlines or are worried you may become unlawful or unsure about your paperwork, don’t take the risk! For this or any other issue don’t hesitate to get in touch with me and I will do everything I can to ensure that you get the service and the visa you deserve from INZ.
Jig Patel | Director | Immigration Centre