2016-Mar 18: Notifying applicants of a declined residence decision and what it means for their appeal rights

Visa Pak 251: Advice to staff when notifying applicants of a declined decision, INZ processes for doing so, and what it means for clients appeal rights to the IPT.

Visa Paks

18 March 2016

Notifying applicants of a declined residence decision and what it means for their appeal rights

Once all the hard work is done, the final step in processing an application is to notify the applicant of the decision. This is usually done by sending the applicant a letter or similar type of correspondence; either by ordinary mail/registered mail and/or email.

In the case of declined residence applications, the Immigration Act 2009 (the Act) requires that applicant(s) are notified of the decision in writing, including of their right to appeal to the Immigration and Protection Tribunal (IPT). This is also reflected in the applicable Immigration Instructions (R5.55.1).

As the relevant letter can be sent to the applicant(s) by giving it to them personally, by email, or by registered post, the question arises as to when the applicant is treated as being notified of the decision. This is an important question because knowing when an applicant is notified of the decision for the purposes of the Act allows calculation of the appeal period. The appeal period is important as missing the deadline would render an appeal invalid. In other words, the applicant would not be able to have their appeal considered by the IPT.

While the Act provides for dates by which people are deemed to have received a letter sent by registered post or email, a recent High Court case has confirmed that the deeming provisions are only a fall back. If there is evidence to establish when notice was actually received, “and the notice complies with the requirements of the Act”, then the appeal time runs from that point. The deeming provision only applies where there is no evidence of actual receipt by the applicant.

In short, the appeal period runs from when the person actually receives the relevant letter, or the person is deemed to have received the letter, whichever is the first. That has important ramifications for what people are told about the appeal period in their decline letters.

Where should the notification be sent, and by what means?
As mentioned above, the relevant letter can be notified to the applicant in person, by registered mail or email. Each method has different implications for appeal calculations as outlined below:

General rules: if contact addresses notified on or after 7 May 2015

How to notify
Use the applicant’s contact address to notify him or her about the visa application. If the applicant gave a contact address to Immigration New Zealand (INZ) after 7 May 2015 (either by updating an old address (see s 387A(6) of the Act), or applying after that date) then you may:

  • give the letter to the applicant personally
  • send it by email to an electronic address (including that of an agent or lawyer)
  • send it by registered post to a physical address (including that of an agent or lawyer).

You may use any or all of these three methods.

An applicant is only notified when he or she actually receives the letter, or he or she is deemed to receive it (see s 386A(4) and (5) of the Act), whichever is first. There are different deeming rules depending on how the letter is sent (explained in the template text below).

Do not send the letter to a PO Box. This is because no record is kept of delivery, meaning that sending to a PO Box is not “registered post” as required by the Act (Section 4). 

What to say: wording/template text for usual cases
It is very important to use the right wording/template in your decision letter. INZ must give the correct information about appeal rights. Neither INZ nor the IPT can extend appeal rights if a person relies on wrong information from INZ. If the relevant postal address is in New Zealand, use this text:

“The Immigration and Protection Tribunal must receive your appeal within 42 days from the earliest of the following dates:

  • the date you actually receive this letter:
  • the date that is 3 working days after it was sent, if you received it from INZ by email:
  • the date that is 7 calendar days after it was sent, if you received it from INZ at a New Zealand address by registered post or courier.“
     

OR if the relevant postal address is outside New Zealand, use this text:

“The Immigration and Protection Tribunal must receive your appeal within 42 days from the earliest of the following dates:

  • the date you actually receive this letter:
  • the date that is 3 working days after it was sent, if you received it from INZ by email:
  • the date is 14 calendar days after it was sent, if you received it from INZ at an overseas address by registered post or courier.”

Special cases: contact addresses notified before 7 May 2015

INZ will still have to deal with a residual number of applications from before 7 May 2015.

How to notify

Use the applicant’s contact address to notify him or her about the visa application. However, if the applicant gave a contact address to INZ before 7 May 2015 and has not updated it – you must either

  • give the letter to the applicant personally; or
  • send it by registered post to a physical address.

A person is only notified when he or she actually receives the letter, or he or she is deemed to receive it (see s 386A(4) and (5) of the Act), whichever is first.

Do not send the letter to an email address provided before 7 May 2015. This is because the person is not deemed to have consented to receive notification by email (see s 387A(5) of the Act).

Do not send the letter to a PO Box. This is because no record is kept of delivery, meaning that sending to a PO Box is not “registered post” as required by the Act (Section 4).

Where to send by registered post
Use the person’s “New Zealand address” as defined by s 387 of the version of the Act immediately prior to 7 May 2015, or if there is no New Zealand address, use any other physical address given in the visa application. See the appendix for the definition of “New Zealand address”.

What to say
It is very important to use the right wording/template on the decision letter. INZ must give the correct information about appeal rights. Neither INZ nor the IPT can extend appeal rights if a person relies on wrong information from INZ.

If you are sending to a contact address in New Zealand, use this text:
“This letter has been sent by registered post to your contact address in New Zealand. The Immigration and Protection Tribunal must receive your appeal within 42 days from the earlier of the following dates –

  • the date that you actually receive the letter (other than by email):
  • the date that is 7 calendar days after it was sent
    Any email copy is sent as a courtesy only and does not affect your appeal time.”

If you are sending to an address outside New Zealand:
 
“This letter has been sent by registered post to your contact address outside New Zealand. The Immigration and Protection Tribunal must receive your appeal within 42 days from the earlier of the following dates:

  • the date that you actually receive the letter (other than by email)
  • the date that is 14 calendar days after it was sent
    Any email copy is a courtesy only and does not affect appeal times.

Special cases: ineffective addresses, minors, and custody/residential requirements

Regardless of when the address was notified to INZ, special rules also apply in certain cases:

  • If you know that the person cannot be contacted at the contact address (and the person is not a minor, or in custody) then use either:
    • any other address provided by the person; or
    • an address obtained after 7 May 2015 by compliance powers under ss 274, 276, 277, 278, or 280.
  • If the person is a minor, use, the address of the principal applicant mentioned in the letter, or a responsible adult (see s 387A(3)(a) of the Act).
  • If the person is in custody or is required to reside at a particular place (and is not a minor), use the postal address of the place of custody or place of residence.

Use the template text for usual cases above.

Action
Please discuss with your team(s) and ensure that they follow this advice.