2013-Nov 22: Reminder to refuse requests for extensions to ITAs

Visa Pak 138 - Clarification and advice to staff about refusing requests for extensions to ITAs for both Parent Tier one and Skilled Migrant category

Visa Paks

22 November 2013

Reminder to refuse requests for extensions to ITAs

Applying for residence after an ITA.

Under both the Parent Tier One and Skilled Migrant Category, applicants have up to four months from the date of their ITA to submit their residence application. The four months is provided to ensure that applicants have sufficient time to obtain mandatory lodgement requirements such as birth certificates, police certificates and medical certificates.

INZ has recently received a number of requests from advisers/lawyers seeking an extension to this deadline and our concern is that all INZ offices conform to instructions and refuse any such requests. Extending the deadline is a breach of INZ instructions below and only the Minister can make an exception to residence instructions.

F4.1.5 Ability to apply

A person may only apply for a resident visa under the Parent Category (see F4.10) if:

    a. they have been issued an invitation to apply under the Parent Category; and 
    b. they apply for a resident visa under the Parent Category within four months of the date of the letter inviting them to apply; and 
    c. that invitation has not been revoked.

SM4.1 Ability to apply

A person may only apply for a resident visa under the Skilled Migrant Category if:
    a. they have been issued with an invitation to apply under the Skilled Migrant Category; and 
    b. they apply for a resident visa under the Skilled Migrant Category within four months of the date of the letter in which that invitation is made; and 
    c. that invitation has not been revoked.

Clarification of ‘4 months’

The Q and As below clarify how the 4 month period should be measured.

Q. Does “within” mean that the date 4 calendar months from today is too late? i.e. if you sent the ITA 12 Dec 2013, do we have to receive it on or before 11 April, or is it still OK if we get it on 12 April?
A. 12 April is fine (as per section 35(3) – it includes the day of expiry).

Q. If the deadline is on a weekend, can I submit it the next working day? 12 April is a Saturday, so does that mean it’s still OK if we get it on Monday 14 April?
A. Yes, see section 35(6).

Q. What if I sent an ITA on 31 October? 31 February is a date that doesn’t exist, so what’s the last day I could submit it?
A. 28 (or 29) February, as month means a calendar month.

The basis for this is below:

Interpretation Act 1999
Section 29 provides a list of definition of terms and expressions in legislation. “Month” is defined as a calendar month.

Section 35 of the Interpretation Act 1999 deals with time. In particular subsections (3) and (6) state:
    “(3) A period of time described as ending by, on, at, or with, or as continuing to or until, a specified day, act, or event includes that day or the day of the act or event.
    (6) A thing that, under an enactment, must or may be done on a particular day or within a limited period of time may, if that day or the last day of that period is not a working day, be done on the next working day.”

Action:
Any request to extend the four month deadline for submission of a residence application following an ITA must be refused.

In very rare cases the Branch Referral process may be used to request an extension to an EOI. As with all Branch Referrals the threshold is high and is reserved for exceptional cases only approved by a Market or Area Manager.

We will be advising immigrations advisers of this clarification of instructions and asking them not to request extensions to ITAs as they cannot be approved.