Immigration New Zealand's error in granting permit in one case raises no legitimate expectation for another applicant in same situation

Ombudsmen Act 1975
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Ombudsmen Act 1975
Immigration New Zealand
Dame Beverley Wakem
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Immigration New Zealand (INZ) declined application for a graduate work permit because applicant did not meet the criteria applicable at the time—complainant claimed decision unreasonable because other applicants in his situation were granted permits—Ombudsman found no evidence that INZ made a practice of granting graduate work permits outside the terms of the policy as a matter of course and failure (to correctly apply policy) in one case should not raise legitimate expectations for other applicants

The complainant was a graduate of a private training establishment in New Zealand who lodged an application for a work permit under INZ’s graduate work permit policy. However, because the policy applied only to graduates of universities or polytechnics and not to private training establishments, INZ declined his application. The applicant complained to the Ombudsman that INZ acted unreasonably and inconsistently in declining the application because it had granted graduate work permits to other applicants in similar situations to his. He was also concerned that the government policy on graduate work permits had changed four months after his application was declined to allow graduates of private training establishments to be granted permits.

The applicant’s agent alleged that, although the wording of the graduate work permit policy indicated that its application was limited to graduates of universities or polytechnics, INZ was in fact routinely issuing work permits under the graduate work permit policy to graduates from private training establishments. The agent provided evidence of one person who was granted a work permit after graduating from a private training establishment. The agent said that the subsequent expansion of the graduate work permit policy to include graduates from private training establishments was further evidence of this.

The Secretary of Labour explained to the Ombudsman that the person identified by the agent had been granted a work permit in error. INZ went on to say that: ‘Although it is apparent … that a work permit was granted to a student of a private training institution, it does not follow that all clients in this position should, therefore, have received a positive outcome to their application. In the case of … the case officer had not applied policy U7.15.20 correctly. This does not indicate Immigration New Zealand’s interpretation of the policy at this time, rather that an error was made by the processing officer.’

INZ confirmed that the new graduate work permit policies had come into force four months after the applicant’s application was declined but noted: ‘… decisions are made using the policy in effect at the time the application is made. Later changes to policy are immaterial to this and do not necessarily reflect prior branch practice or input, there being many potential origins for a change in policy.’

The Ombudsman did not sustain the complaint because the applicant did not meet the graduate work policy permit criteria applicable at the time of his application; and although an error had been made in the case identified by the applicant’s agent, there was no evidence to suggest that INZ made a practice of granting graduate work permits outside policy as a matter of course. The case was closed on this basis.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.

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