Friday, 4 November 2011

These questions and answers are about the introduction of new approach to decision-making for offshore temporary entry visa applications.

What is changing?

Immigration New Zealand (INZ) is changing its approach to decision-making processes in respect of offshore temporary entry visa applications.  The decision-making process for offshore temporary entry visa applications will become more streamlined, by ensuring that INZ correctly identifies Potentially Prejudicial Information (PPI) that is required to be put to an applicant for comment prior to a final decision on their application.

What is PPI?

PPI has been defined in INZ’s Operational Manual as factual information or material that:

• was not obtained from the applicant or the applicant’s authorised representative or agent; and
• is not publicly available, or the applicant is not necessarily aware of the material or information; and
• the material or information will or may adversely affect the outcome of an application; and
• the applicant has not previously had an opportunity to comment on the information or material.

PPI will therefore generally be information that INZ receives from a third party.  PPI is not information that is supplied by the applicant in support of their application. 

Why is INZ making these changes?

The current approach to decision making requires an immigration officer to invite an applicant to comment on any aspect of their application that may be unfavourable to the likely success of the application (i.e. ‘PPI’), even if the applicant has supplied all relevant information themselves.  The following issues have arisen out of the current approach:

• It is out of step with section 58 of the Immigration Act 2009 which provides for immigration officers to determine applications on the basis of information submitted. 
• It is a significant contributing factor to lengthy processing times for offshore temporary visa application decisions.

INZ is addressing these issues by streamlining decision-making processes for offshore temporary entry visa applications.

What does the change mean?

1. By streamlining decision-making processes for offshore temporary entry visa applications INZ is ensuring that:
   • section 58 of the Act is better reflected by enabling immigration officers to determine applications on the basis of the information, evidence and submissions provided; and 
   • appropriate principles of fairness and natural justice are preserved and are not diminished in INZ’s decision-making.
2. As a result of this change, a potentially negative decision that does not involve PPI will not generally be put to an applicant for written or formal comment.  This will avoid unnecessary processing delays for applications where a decision can be made on the basis of the information supplied (i.e. where there is no PPI). 

When does this change in approach come into effect?

The change in approach comes into effect on 21 November 2011.

What applications does this change in approach apply to?

This change in approach to decision-making processes applies to temporary entry visa applications made in offshore offices of INZ.  It will apply to applications that are received on or after 21 November 2011.

Why is the change in approach for offshore temporary visa applications only?

Applying this change in approach to offshore temporary visa applications provides for a more streamlined decision-making process while preserving the principles of fairness and natural justice in INZ’s decision-making.

The Immigration Act 2009 makes clear distinctions between onshore and offshore temporary visa applications in terms of the levels of fairness and administrative rights each has:

• Section 185 provides for onshore temporary visa applicants whose applications are declined to apply for reconsideration of the decision;
• Section 186(3) specifically excludes offshore applicants from the right to review in respect of the refusal or failure to grant a temporary entry visa to a person outside of New Zealand.

There are also potentially greater consequences of a decision for a person onshore, so, as per A1.5 of the Operational Manual, a greater level of fairness is required. 

What are the principles of fairness and natural justice?

Good decision-making rests upon the principles of fairness and natural justice.  Briefly, this involves ensuring the applicant has had a fair hearing, and, avoiding bias.  How much fairness an immigration officer must bring to bear in deciding an application may depend on the consequences of the decision for the applicant.

How will visa applications be processed under this change?

Immigration officers may proceed to a decline decision where their assessment has determined that an application does not meet immigration instructions on the basis of information supplied with the application.  This does not alter the following requirements, as set out in immigration instructions:

• immigration officers are to consider whether an exception to instructions is justified where an application does not meet temporary entry instructions, or whether a bond or limited visa may be used to mitigate any identified risk (E7.10, E7.35); and
• immigration officers are to provide applicants with full reasons for their decision (A5.15, E7.16, E7.35).

Immigration officers will continue to be reasonable in their approach and engage with applicants where appropriate.  For example, where information simply needs to be clarified in order to make a decision, officers will contact applicants to obtain information on an information basis.

What happens if an applicant is unhappy with the decision on their application?

If an offshore applicant for a temporary entry visa is not satisfied with the decision on their application they are able to access INZ’s Client Complaints Resolution Process.  An applicant may also lodge a further application with INZ for consideration. 

Will this change in approach affect the quality of INZ’s decisions?

No.  A training programme has been developed for immigration staff to ensure a clear understanding of the change in approach and on-going quality in INZ’s decision-making.