2011-Dec 02: Lodging residence applications - updated advice

Visa Pak 45- Information about lodging residence applications - updated advice.

Visa Paks

2 December 2011

Lodging residence applications - updated advice

Please note this version of this advice clarifies two aspects of earlier advice given on this subject:

  1. Branches are to continue to give priority to residence decisions in line with the New Zealand Residence Programme category prioritisation.
  2. If a branch thinks a case might merit a branch referral, please contact Operations Support (not Resolutions) in the first instance.

 

Issues

National Office has become aware of certain residence applications which have been incorrectly returned failed lodgements (RFL’d). Examples include:

  • Sibling and Adult Child applications where the applicant is over the age limit;
  • Parent applications where the sponsor does not meet the three years in New Zealand requirement;
  • a Residence from Work application where the client does not hold a Work to Residence visa;
  • some section 61 residence requests.
  • Branches have also requested advice on the process to be followed when applicants submit residence applications without indicating a category or under “Other” as they do not fit any category for lodgement purposes and, if accepted, will not meet any residence category. Such applications are sometimes accompanied by a letter saying that the applicant, or advisor, simply wishes to lodge the application in order to have it declined and subsequently access the IPT appeal process.

Finally, there have been recent queries from branches to Resolutions as to whether they can tell people about making a direct approach to the Minister for residence when the clients know they don’t meet any residence category.

Recommended process

(1) Lawful applicants
(a) Where the applicant has ticked a specific category:

In general, INZ must accept applications where the applicant has completed the application form and provided supporting documentation as prescribed in the Immigration (Visa, Entry Permission, and Related Matters) Regulations 2010, Regulation 5 (2)(a) - (d)

As noted above, some applications have been RFL’d incorrectly. For example, a Sibling and Adult Child application should not be RFL’d because of age. Age is a requirement that should generally be considered at assessment, not lodgement, stage. This is supported by IAC 5/20, paragraphs 8 and 9. (It is acknowledged that IAC 5/20 should be updated following the implementation of the Immigration Act 2009 but the tenor of the advice will remain unchanged).

The IAC at paragraphs 8 and 9 state:

  • It is important to note that if an applicant supplies the information required by the form, but the substance of that information appears to indicate that the application does not meet the policy for the applicable category, the application must be accepted for consideration as the minimum lodgement requirements are met. It is only at the assessment stage that the substance of the information is assessed against the policy.
  • It is the form as opposed to the substance that is relevant for the purposes of lodgement. The assessment of whether an applicant meets Government residence policy is not a lodgement matter. Lodgement requirements are merely to ensure that applicants provide the basic information they wish to be considered up-front at the time the application is lodged

Example: A truck driver earning $56,000 currently, working for an accredited employer. He earned $53,000 two years ago, when he was granted a work visa under Essential Skills. He believes, however, that he holds a Work to Residence visa. He applied under these instructions two years ago, and neither the approve letter or visa label made it clear that he ‘only’ held an Essential Skills visa. In the residence application form, he indicates at questions J1, J5, J7 and J9 that he holds a Work to Residence visa and works for an accredited employer. Looking at the “Evidence you must provide” part at the bottom of section J, he provides evidence he earns $56,000. The applicant provides all lodgement requirements (medicals, fees, etc). Although of course it is a simple matter for the lodgement officer to check AMS to see that a Work to Residence visa is not in fact held, this should be an assessment done by the case officer, not a lodgement officer, and so the application in this instance should not be RFL’d.

(b) Where applicant has not selected a specific category or ticked ‘Other’ without specifying:

INZ can accept applications where the applicant has completed the application form and provided supporting documentation as prescribed in the Immigration Regulations 2010 , Regulation5 (2) (a)- (c) and d(i)(ii) and (v). Please note that Regulation 5 (2) (d) (iii) and (iv) do not apply in this case since there is no category being specified.

For the purposes of AMS and initial assessment, the processing branch is to select the application type which comes closest to what the client might meet.

(c) Interaction with client when it is clear application does not meet any residence category:

Where the client (whether in scenarios (a) or (b) above) has clearly expressed that the only reason for the application is to get to the IPT stage, branches may proceed to deciding these applications since the assessment will be relatively straightforward. Health and character assessments, however, will need to be done, as this will assist the IPT in its decision. (This does not mean branches need to conduct medical and character waiver assessments.)

Branches are reminded that New Zealand Residence Programme category prioritisation applies and that non priority family sponsored applications (Parent, Adult Sibling and Adult Child policies) must be added to a managed queue.

In the case of scenario (a) [category ticked] and there is a clear intent to appeal to the IPT, but some of the lodgement requirements are not met (e.g. incomplete family information/evidence in a Sibling and Adult Child application), branches can either:

  • Waive one or more lodgement requirements (must be an immigration manager or above, refer A15.5 Schedule 2, para 10); OR
  • RFL the application, advising that the information must be submitted if it is to be accepted. Depending on the case, the branch may wish to point out to the client that it is in their own interests to provide quality information for the application, as the IPT will rely on that information.

Although assessment against residence instructions is not part of the lodgement process, a lodgement officer may notice on some occasions that the client does not meet the criteria under residence instructions, and has NOT clearly expressed an intention to appeal to the IPT. This may be the case when, for example, the client forgets to tick a specific category, or has clearly not understood the criteria of the named category. Before formally accepting such applications, it is open to branches to do the following in the interests of customer service:

  • Advise the client(s) that they don’t appear to meet instructions and are likely to be declined, but that they would have the option of appealing to the IPT.
  • Ask if they want to continue (and pay the fee) or apply under a different category (if possible).
  • Ask if they want to withdraw the application – before the fee is receipted.

 

(d) Direct approaches to the Minister?
Branches are generally discouraged from advising clients to pursue this option. The primary reason is that the client should make use of the available avenues in the first instance. The advice given above (which should lead to more accepted applications and IPT appeals) should reduce the pressure on officers who might have seen no other option for the client. However, with SMC and Investor applicants, applicants on occasion cannot even get to the residence stage as their EOI is rejected (most often because of age), and the IPT cannot consider declined EOIs. If an officer/TA/IM comes across a case they believe is worthy (e.g. a 56 year old engineer keen to help Christchurch rebuild), the officer should contact Operations Support to discuss the case. There may be scope in such rare cases to advise clients of the option of appealing directly to the Associate Minister.

 

(2) Unlawful applicants or applicants restricted in other ways:

(a) Applications from unlawful people

Under s71 of the Immigration Act people who are unlawful may not apply for a residence class visa. Applications from such people should be returned under cover of AMS template letter V79 because they are unable to apply for residence class visa and the applicant advised that they may write a letter to request residence under s61 and provide all supporting evidence.

(b) Letters requesting residence under s61

The letter should be recorded on AMS as a residence s61 request and transferred to a branch for a decision. The request must not be RFL’d! The request can only be considered (or refused to consider) by an appropriately delegated immigration officer.

(c) Applications from others unable to lodge

S71 (4) and other provisions in the Act make it clear that there are other groups of people who are not able to apply for residence e.g.:

  • Holders of interim visas [see also s80(3) & I1.20]
  • Holders of limited visas [see also s85(2)(b) & L2.35]
  • Holders of transit visas – branches are extremely unlikely to receive an application from a transit visa holder but they may be lodged in an immigration control area [see also s89 (1) & N2.10 b.]
  • Former refugee claimants [see s150(2) & E8.10.15]