2013-Jul 05:Section 210(ii) and s216 (ii) of The Immigration Act 2009

Visa Pak 119: Information regarding section 210(ii) and s216 (ii) of The Immigration Act 2009 - process for when applicants have an appeal in with the IPT and are applying for further visas.

Visa Paks

5 July 2013

Section 210(ii) and s216 (ii) of The Immigration Act 2009

Sometimes as a result of an appeal the IPT will grant the client a further temporary entry visa not exceeding 12 months. If this occurs then the client has no further appeal against liability when that visa expires, or if the client becomes liable for deportation some other way.

The IPT Liaison Team will be placing information warnings on clients where s210 (ii) or s216 (ii) apply. Immigration Officers are to note the warning when considering a subsequent visa application for a client. The information warning will need to be considered against a client’s bona fides as part of the overall assessment.

Examples:

Situation One

A client appeals to the IPT against their deportation liability. They have been in New Zealand for three years. The appeal is unsuccessful and the IPT grants the client a six month work visa. The appeal decision indicates the visa has been granted to allow the client time to work to save money so as to depart New Zealand. This visa is issued by INZ and is valid until 25/06/2013. On 23/06/2013 the client lodges an application for a further work visa. The client advises that they intend to depart New Zealand in the upcoming three months but requires time to “wrap things up, before leaving, and just need to save some further money.”

Issues the case officer may need to consider:

The client is currently subject to S216 (ii) and so has no right of appeal to the IPT against their deportation liability. The grant of a new visa will reinstate further appeal rights.

Bonafides – On what grounds did the client previously appeal to the IPT? Was it because they previously breached their visa or were unlawfully in NZ?

What position will the client be in in three months’ time given the IPT has already granted the client six months to save airfare and arrange other matters prior to departure?

Is it likely the client intends a temporary stay in NZ? Their circumstances have already been assessed by the IPT and the IPT has chosen to only grant a limited amount of time for the client to depart.

Situation Two

A client appeals to the IPT and the appeal is successful. The IPT grants the client a 12 month student visa to allow them time to complete their Bachelor’s degree. INZ issue the visa and it is valid until 19/11/2013. On 15/11/2013 the client submits an application for a graduate job search visa. The client provides evidence that they have successfully completed the degree.

Issues the case officer may need to consider:

The client is subject to s 210(ii) and has no further right of appeal to the IPT against their deportation liability.

Bonafides – On what grounds did the client previously appeal to the IPT? Was it because they previously breached their visa or were unlawfully in NZ?

Does the client have a pathway to residence?

The IPT granted the client a visa to complete their qualification and they have done this. With this qualification the client’s circumstances have now changed. Does the client meet immigration instructions for the grant of a visa?

Applicable sections of The Act

210 Tribunal may order grant of visa on allowing appeal against liability for deportation

  1. Without limiting section 209, if the Tribunal decides that an appeal against liability for deportation should be allowed in the case of a person who is unlawfully in New Zealand or is the holder of a temporary entry class visa, the Tribunal may order an immigration officer to grant the successful appellant—
    a. a resident visa subject to such conditions (if any) as the Tribunal determines; or
    b. a temporary visa for a period not exceeding 12 months subject to such conditions (if any) as the Tribunal determines.
  2. If a temporary visa is granted following an order made under subsection (1)(b), no further appeal against liability for deportation may be brought by the holder upon the expiry of the visa or upon the holder earlier becoming liable for deportation.
  3. The Tribunal may order the imposition of any condition on the grant of a resident visa that it thinks fit, having regard to the reasons why the appellant was able to demonstrate exceptional circumstances of a humanitarian nature or why it was not contrary to the public interest to allow the appellant to remain in New Zealand, whether or not the condition is of a kind authorised by residence instructions.
  4. To avoid doubt, the Tribunal may order an immigration officer to grant a visa, and the officer must grant the visa, even though the person would normally be prohibited from being granted a visa under section 15 or 16.
  5. If the Tribunal orders the imposition of any condition on a visa,—
    a. the condition must be treated as if it were a condition imposed by the Minister under section 50 or 52 (as the case may be); and
    b. the condition must be notified to the visa holder in writing; and
    c. section 56(1) requires the holder to comply with the conditions of the visa.
  6. The chief executive must ensure that the terms of an order given under this section are complied with.

Compare: 1987 No 74 s 52

216 Tribunal may make order delaying deportation if appeal unsuccessful

  1. On declining an appeal against liability for deportation, if the Tribunal considers it necessary to enable the appellant to remain in New Zealand for the purposes of getting his or her affairs in order, it may order—
    a. that the deportation of the appellant be delayed for a period not exceeding 12 months, commencing on the date of the Tribunal's decision; or
    b. that a temporary entry class visa, valid for a period not exceeding 12 months, commencing on the date of the Tribunal's decision, be granted to the appellant.
  2. If the Tribunal orders the grant of a visa under subsection (1)(b), no further appeal against liability for deportation may be brought by the holder upon the expiry of the visa or upon the holder earlier becoming liable for deportation.

 

Action:

Please ensure all staff are aware of s210(ii) and s216(ii) and understand the consequences of these sections of the Act.