Immigration Act 2009
Section 61 – Grant 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.
Who can apply?
A person who is unlawfully in New Zealand; and
is not a person in respect of whom a deportation order is in force.
Why Section 61 request is so special?
The statutory scheme works through providing greater rights (including procedural protections) for people who are lawfully in New Zealand. For example, those people lawfully in New Zealand generally have rights, often subject to strict statutory time limits, to –
• Make applications for further visas, including of a type of their choice
• Receive reasons for decision making
• Apply for reconsideration of an unfavourable decision
• Work and study in New Zealand, consistent with the conditions of their visa
• Remain in New Zealand in accordance with their visa
• Seek a humanitarian exception by appeal to the Immigration and Protection Tribunal,
with associated procedural protections and entitlement to a written, reasoned decision
• Appeal to the higher courts on points of law
By contrast, persons who are unlawfully in New Zealand have very limited rights and are disenfranchised from the system with the effect that they –
• Have an obligation to leave New Zealand;
• May not apply for a visa;
• May not work in New Zealand;
• May not study in New Zealand (except in compulsory education); and
• Are liable for deportation.
However, while unlawfully in New Zealand, a person may lodge a request to consider their circumstances under Section 61 of the Act.
What is the process?
Requests for visas under section 61 are not “applications” within the scheme of the Act – there is no right to apply, no lodgement requirements or time limits that must be met and no immigration instructions that apply when considering a request.
There is no obligation to consider a request made under section 61. An immigration officer may refuse to consider the request given the information provided. Equally, however, they may consider a request and may ask for more information or evidence to be provided to do so.
How INZ would decide?
The grant of a visa in a special case under section 61 involves the exercise of a power characterised as being one of ‘absolute discretion’.
During the consideration of a s61 request, an immigration officer is not obliged to request any further information or to seek comment prior to an adverse immigration decision being made. A decision can be made solely on the basis of the facts available and the submissions provided with the request. However, this does not preclude an immigration officer requesting further information (such as a medical or police certificate) to assist him or her in considering the request.
Outcome of the consideration
Unlike an ordinary application, the reasons for the decision need not be recorded in communication with the client. You will only see whether you was granted or declined a visa.
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