A23.5 Considering or refusing to consider a request

A23.5.1 Refusing to consider a request

1. There is no obligation to consider a request made under section 61. An immigration officer may refuse to consider the request given the information provided. Equally, however, they may consider a request and may ask for more information or evidence to be provided to do so.
2. Where an immigration officer refuses to consider a request they need not record reasons for doing so (other than the reason that section 11 of the Act applies).
3. Any matters an immigration officer chooses to record in relation to the request may be recorded on the physical and electronic file associated with the request.
4. If an immigration officer asks for more information or evidence then the request has been considered and the process set out below under A23.5.5 Considering a request must be followed.

A23.5.5 Considering a request

1. If the immigration officer decides that there are grounds to consider the request based on the evidence and submissions provided by the requester, he or she should consider the request.
2. There are no specific immigration instructions that must be met as decisions are a matter of absolute discretion.
3. As a person making a request for a visa under s61 is unlawfully in New Zealand and requests the exercise of absolute discretion as an exception to the usual rules governing those unlawfully present in New Zealand and liable to deportation, it is for the person making the request to put forward their case.
4. During the consideration of a s61 request, an immigration officer is not obliged to request any further information or to seek comment prior to an adverse immigration decision being made. A decision can be made solely on the basis of the facts available and the submissions provided with the request. However, this does not preclude an immigration officer requesting further information (such as a medical or police certificate) or comment to assist him or her in considering the request.
5. In considering a s61 request immigration officers should also consider whether or not the matters put forward for the grant of a visa are best dealt with by the applicant exercising one of their rights under the Act; for example, by way of an appeal on humanitarian grounds against the requirement to leave New Zealand to the Immigration and Protection Tribunal (if such appeal is available).
6. Decisions under s61 are still subject to the general requirement of fairness that is derived from public law principles. However, what fairness requires in a particular case must be determined having regard to all the circumstances including the particular statutory provisions under which the decision is made, the overall statutory scheme, what is known of the requestor’s circumstances and the consequences of the decision.
7. Consistent with this approach, the courts have described language similar to the definition of “absolute discretion” in section 11 as conferring “rights which ... are very limited”. These limited rights may be contrasted with the protections made available elsewhere in the immigration legislation.
8. A relevant consideration which immigration officers may take into account when determining a request under section 61 is that the requestors, as persons unlawfully present in New Zealand and liable to deportation (although not yet subject to a deportation order), have the following options contemplated by the Act:
   1. to voluntarily depart from New Zealand at any time under their statutory obligation to do so, and is free to apply for a visa from outside of New Zealand in accordance with the usual rules and processes, or
   2. to cooperate in being interviewed by an immigration officer to obtain a Record of Personal Circumstances before a deportation order is made and served. The immigration officer may determine, after obtaining a Record of Personal Circumstances, whether or not the deportation process under sections 175 to 178 should continue.
9. New Zealand’s international obligations may also be a relevant consideration to be taken into account when assessing a request under section 61.
10. The electronic record of the request must record whether the request has been considered. Any matters an immigration officer chooses to record in relation to the request may be recorded on the physical and electronic file associated with the request.

Effective 30/09/2013