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Appeals and Section 61

For those who find themselves unlawful in New Zealand or otherwise have a challenging immigration situation

Appeal to IPT against Resident Visa decision

You may be able to make a residence visa appeal to the Tribunal if Immigration New Zealand or the
Minister of Immigration has:

  • declined (turned down) your application for a residence visa
  • cancelled your residence visa before you entered New Zealand
  • at the border, refused to allow you to enter New Zealand when you already hold a residence visa.

You can appeal these decisions only if you think INZ decision is wrong because you do satisfy the residence instructions or you have special circumstances that mean the Minister of Immigration should make an exception to those instructions.

Overstayers – Section 61

You are not allowed to stay in New Zealand after your visa expires as you become unlawful and liable for deportation. To return the lawful status you can leave the country and apply for a new visa or request Immigration New Zealand to grant you a visa under Section 61 of the Immigration Act 2009:

61 Grant of visa in special case
(1) The Minister may at any time, of the Minister’s own volition, grant a visa of any type to a person who—
   (a) is unlawfully in New Zealand; and
   (b) is not a person in respect of whom a deportation order is in force; and
   (c) is not a person in respect of whom a removal order is in force.
(2) A decision to grant a visa under subsection (1) is in the Minister’s absolute discretion.

Section 61 requests are very different to normal visa applications, and are ‘absolutely discretionary’ which means that INZ do not have to consider your request and do not have to explain their decision.

An immigration officer handling a request:

  • has no obligation to consider the request
  • does not have to provide any reasons for their decision to grant or refuse
  • is not obligated to make any enquiries about the information the person has provided in support of the request, or about other information INZ may hold about the person independently of what was provided
  • is not obligated to grant a visa of the type or length requested (for example, they can grant a visitor visa instead of a work visa), and
  • is not obligated to grant a visa even if the person requesting it appears to meet the criteria for a visa under a certain category.

Each request is handled by a senior immigration officer at the INZ Manukau Area Office. There are no processing timeframes for requests but they are usually processed within 2 months.

Deportation Defense – Drink driving and other criminal charges

Immigration consequences not only affect a defendant, but that person’s innocent (and often New Zealand citizen) children and families. Consequences can include deportation or removal from the country of a parent or family member, or the denial of immigration benefits, such as citizenship and lawful permanent resident status to which a defendant would otherwise be eligible to receive. Our immigration advisers are experienced working with Immigration New Zealand (INZ) and Immigration and Protection Tribunal (IPT) and can get cases analysed to achieve the best possible outcome considering immigration consequences.

You may be able to appeal against your deportation liability, depending on your circumstances and the time the liability arose. You cannot appeal if the last visa you held was a limited visa.

If you would like to appeal and are in New Zealand unlawfully, you must do so within 42 days of becoming unlawful, or within 42 days of receiving confirmation that your last visa application was declined. If you are liable for deportation for other reasons, you will normally have 28 days to appeal starting from the time you are given a deportation liability notice.

Appeals are heard by the Immigration & Protection Tribunal, which is administered by the Ministry of Justice.