A15.1 Making decisions in terms of the Immigration Act

See also Immigration Act 2009 ss 154-162, 172, 175-177, 380(1), 388(1) and (6), 390, 391

1. All references to the Immigration Act within this chapter refer to the Immigration Act 2009.
2. To make immigration decisions under the Immigration Act a person must be designated by the chief executive as an immigration officer (see A15.1.10) or a refugee and protection officer (see A15.1.25).
3. In addition, from time to time the Minister of Immigration may delegate some of her or his powers under the Immigration Act to immigration officers. These delegations are listed in schedules (see A15.5). Some delegations are for a whole class of officers (for example for all technical advisors); some can only be exercised by officers in particular roles, and are not related to a position in the hierarchy. Further, delegations may effectively act as an administrative constraint on the exercise of statutory decision-making powers.
4. Where a person has not been designated as an immigration officer or a refugee and protection officer, they cannot make any immigration decisions. In addition, the Minister may not delegate any other powers to a person who is not an immigration officer.
5. A person who is designated as a refugee and protection officer cannot also be designated as an immigration officer, and vice versa.
6. To be able to:
   1. sign or cancel a deportation order, or
   2. consider or cancel a person’s liability for deportation

   an immigration officer must be specifically authorised by the chief executive as having the power to do so.

7. The chief executive of the Ministry of Business, Innovation and Employment may at any time revoke a designation (see A15.1.30).

A15.1.5 Designations

See also Immigration Act 2009 ss 388, 390

1. An immigration officer:
   1. is the chief executive, and every person who has been designated by the chief executive as an immigration officer;
   2. includes any Customs officer designated by the chief executive as an immigration officer, whether individually or by class or position for the purposes of Parts 3 and 4 and sections 279, 280, 282-285, 366 and 367 of the Immigration Act 2009, and regulation 34 of the Immigration (Visa, Entry Permission, and Related Matters) Regulations 2010;
   3. includes any person designated by the chief executive as an immigration officer, whether individually or by class or position, who:
      • is a head of mission or head of post; or
      • is a member of staff at a New Zealand overseas mission or post who is authorised by the head of mission or head of post to exercise consular functions; or
      • is a member of staff of an overseas branch of the Ministry of Business, Innovation and Employment; or
      • is in the service of the Government of another country;
   4. includes any other person, including a person employed in the service of the Government of another country, who acts as an agent for the Government of New Zealand in the performance of consular functions, either pursuant to an agreement between the Government of another country and the Government of New Zealand or pursuant to a request by an immigration officer employed in the service of the Government of New Zealand.
2. The chief executive must specify which functions and powers an immigration officer is authorised to exercise under this Act. An officer may not perform any functions or exercise any powers under this Act unless specifically authorised by the chief executive.
3. A person who has been designated by the chief executive as a refugee and protection officer may perform all the functions and exercise all the powers of a refugee and protection officer.

A15.1.10 Process for being designated as an immigration officer

See also Immigration Act 2009 ss 388, 391(3)

1. To be designated as an immigration officer a person must:
   1. complete a training schedule (coordinated by the Ministry of Business, Innovation and Employment technical trainers); and
   2. demonstrate competence in a number of specified areas; and
   3. be deemed competent to carry out the functions of an immigration officer.
2. However, the chief executive may otherwise designate an individual as an immigration officer as he or she sees fit.

   Note: the chief executive need not be issued with a warrant of designation, and may perform or exercise all the powers and functions of an immigration officer under this Act.

3. The manager should make a request to the chief executive, using the appropriate form, that a person be designated as an immigration officer when the person's manager is satisfied that the person:
   1. has completed the required training; and
   2. can demonstrate competence in a number of specified areas; and
   3. should be designated as an immigration officer.
4. If the chief executive decides to designate the person as an immigration officer, a letter will be sent to the person detailing any relevant delegated powers the person may exercise.
5. Any such designation or authorisation:
   1. continues in force according to its tenor until it is revoked, even if the chief executive who made it has ceased to hold office, and continues to have effect as if made by the successor in office of that chief executive;
   2. is subject to such restrictions or conditions as the chief executive specifies in writing in the warrant of designation.

A15.1.10.1 Transitional provisions regarding immigration officers

See also Immigration Act 2009 s 462

From commencement of the Immigration Act 2009:

1. immigration officers, including customs officers, designated under the Immigration Act 1987 must be treated as immigration officers designated under the Immigration Act 2009 who are authorised to exercise visa and entry permission decision-making powers; and
2. visa officers designated under the Immigration Act 1987 must be treated as immigration officers designated under the Immigration Act 2009 who are authorised to make decisions relating to visas outside New Zealand.

A15.1.15 Immigration officers’ functions and powers

See also Immigration Act 2009 ss 389(1), 389(2)

1. An immigration officer may be authorised to perform or exercise individual functions and powers, or functions and powers of one or more classes.
2. Functions and powers may be classified as follows:
   1. visa decision-making;
   2. entry permission decision-making;
   3. compliance and enforcement;
   4. the power of detention.

A15.1.20 Warrant of designation

See also Immigration Act 2009 ss 388(3), 388(4), 388(7), 388(8), 388(9)

1. An immigration officer authorised to exercise one or more of the following powers must be issued with a warrant of designation, signed by the chief executive, specifying which of those powers the officer may exercise:
   1. the power to deport a person under section 178;
   2. the power of entry and inspection under sections 276, 277, 277A and 278;
   3. the powers under sections 279, 280, 281, 281A and 281B to require information or documents for the purpose of ensuring compliance with this Act;
   4. the powers under sections 282, 283, 284, 285 and 285A at a border;
   5. the power of entry and search under section 286;
   6. the power to require biometric information, special biometric information, or both under section 288;
   7. the power to detain a person under section 312.
2. A warrant is sufficient evidence of an officer's designation as an immigration officer and the officer’s authorisation to perform the functions and exercise the powers specified in it.
3. To be issued with a warrant, the immigration officer must have received suitable training.
4. Whenever an immigration officer (including a constable exercising the powers of an immigration officer):
   1. seeks entry to any premises, building, or craft in the course of exercising a power; or
   2. exercises a power of detention

   the officer must produce their warrant of designation and, if requested, state the provision or provisions of the Act under which they are acting.

5. An immigration officer (including a constable exercising the powers of an immigration officer) who, in exercising a power described in (a) above, orally makes a request, requirement, or demand of a person must also produce his or her warrant of designation if called upon to do so by the person.
6. A constable exercising the powers of an immigration officer can meet the requirement to produce his or her warrant of designation by being in uniform or by producing their badge or other evidence of being a constable.
7. Notwithstanding (a) above immigration officers who are not authorised to exercise any of those powers may also be issued with a warrant of designation.
8. The warrant of designation must be:
   1. in a secure place when not in use; and
   2. used only by the officer to whom it is issued; and
   3. produced in circumstances where production is required by law (as described in (d) and (e) above); and
   4. returned to the chief executive of the Ministry of Business, Innovation and Employment when the officer leaves the Ministry or moves to a position which does not require them to exercise the functions of an immigration officer.

A15.1.25 Process for being designated as a refugee and protection officer

See also Immigration Act 2009 s 390

To be designated as a refugee and protection officer a person must:

1. complete a training schedule (coordinated by Immigration New Zealand trainers); and
2. demonstrate competence in a number of specified areas; and
3. be deemed competent to carry out the functions of a refugee and protection officer.

A15.1.30 Revocation or lapsing of designations

See also Immigration Act 2009 s 391

1. Every designation by the chief executive of a person as an immigration officer or a refugee and protection officer, or for any other purpose under this Act, is revocable in writing at will.
2. Every authorisation of an immigration officer to exercise a power or perform a function is revocable in writing at will.
3. A designation lapses when the person leaves the Ministry or the service or employment in respect of which the person was designated.
4. A person whose designation has lapsed or been revoked must immediately surrender the warrant of designation to the chief executive.

A15.1.35 Powers and functions delegated by the Chief Executive

See also State Sector Act 1988 s 41

1. In addition to powers delegated by the Minister of Immigration (see A15.1 (c) above), from time to time the Chief Executive (CE) of MBIE may delegate some of her or his powers and functions under the Immigration Act or other legislation, to people working in the Public Service. The CE may allow sub-delegation of all or certain delegated powers. These delegations and sub-delegations have been reproduced in A15.20 and A15.25.

   Note: For the avoidance of doubt, and despite A15.1 (b) and (d) above, a person who is not designated as an immigration officer may exercise powers and functions delegated by the CE (including those sub-delegated).

Effective 30/10/2019