A23.1 Overview and legal framework (30/09/2013)
See also Immigration Act 2009 ss 11, 20, 61
- The Minister may, at any time, grant any type of visa to a person who is:
- unlawfully in New Zealand; and
- not a person in respect of whom a deportation order is in force.
- The Minister's power to grant a visa in a special case has been delegated to officers with Schedule 3 delegations or above.
- As the grant of a visa under section 61 is a matter of absolute discretion, no person has the right to apply for a visa under section 61, and if a person purports to make such an application by requesting the grant of a visa under section 61:
- the Minister or delegated immigration officer is not obliged to consider the request; and
- the Minister or delegated immigration officer is not obliged to make further enquiries or inquire into the circumstances of the person or any other person; and
- whether a request is considered or not, the Minister or immigration officer is not obliged to give reasons for any decision on it, other than that section 11 applies; and
- section 23 of the Official Information Act 1982 and section 27 of the Immigration Act 2009 (concerning the right of access to reasons for decisions) do not apply.
- In simple terms people who make requests under section 61:
- have no right to apply for a visa under it;
- have full responsibility for ensuring that any and all information that might potentially be considered in any exercise of the section 61 discretion is put forward with their request;
- have no right to have their request considered;
- if their request is considered, have no right to be told why a particular decision was reached;
- if their request is considered, have no right to have it considered against any particular immigration instructions.
A23.1.5 Legal framework
See also Interpretation Act 1999. s 5,
See also Immigration Act 2009, s 3
- The grant of a visa in a special case under section 61 involves the exercise of a power characterised as being one of ‘absolute discretion’. This instruction clarifies expectations for INZ customers and staff when the section 61 provisions are applied. In particular, it situates the application of the section 61 power of absolute discretion within the broader scheme of the Immigration Act 2009. Section 61 is but one component of a comprehensive system for dealing with the circumstances of non-New Zealand citizens wishing to come to and stay in New Zealand.
- The meaning of an enactment must be determined from its text and in light of its purpose. Accordingly, the Immigration Act 2009 (the Act) needs to be viewed in its entirety and section 61 viewed against this whole – that is, part of a comprehensive statutory scheme that manages immigration in New Zealand.
- The purpose of the Act is set out in section 3 of the Act. It is “to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals”. Subsection (2) goes on to set out how the Act aims to achieve this purpose through establishing an immigration system that (amongst other things) –
“(a) requires persons who are not New Zealand citizens to –
(i) Hold a visa to travel to New Zealand; and
(ii) Hold a visa and be granted entry permissions to stay in New Zealand; and …
(e) includes mechanisms to ensure that those who
engage with the immigration system comply with its requirements, including mechanisms that –
(ii) prescribe the system for the deportation of people who are not New Zealand citizens and who fail to comply with immigration requirements, commit criminal offences, or are considered to pose a threat or risk to security.”
- The only rights provided by the Act to persons who are unlawfully in New Zealand are:
- In some circumstances, a right to appeal to the Immigration and Protection Tribunal, within 42 days of becoming unlawful, on humanitarian grounds against the requirement to leave New Zealand; and
- If served with a deportation order, the right to have cancellation of the deportation order formally considered if the person “provides information … concerning his or her personal circumstances, and the information is relevant to New Zealand’s international obligations” (section 177 of the Act); and
- The right to, at any stage, make a claim for refugee or protection status.
- The restrictions on rights are intended by the statute to achieve a high level of compliance with immigration law and, in particular, ensure that persons who do not meet immigration rules and procedures are not advantaged over those who do comply with the system.
- The restriction of rights in “absolute discretion” decision making (as set out in A23(c)) also reflects the need for finality in immigration decision making in respect of individuals on whom the scheme of the Act has imposed an obligation to depart New Zealand and who are positioned for deportation processes.