Immigration Service allows reconsideration of residence application

Immigration
Legislation:
Ombudsmen Act 1975
Related legislation:
Immigration Act 1987
Legislation display text:
Ombudsmen Act 1975, Immigration Act 1987
Ombudsman:
Sir John Robertson
Case number(s):
W25817
Issue date:
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Language:
English

Application for residence declined on ground that false declaration supplied—principles of fairness and natural justice—provision of a fair hearing

The complainant, a Pacific Islander seeking residence in New Zealand on family reunion grounds, had been declined on the ground that he had made a false declaration on his application form. It appeared that his son and daughter-in-law had filled in the form on his behalf and that there were discrepancies between the information on the form and that contained on Immigration Service files. The complainant had invoked the aid of his Vice-Consul, who had appealed to Immigration Service to arrange for a senior member of staff conversant with their culture to interview the complainant and ascertain the truth of the matter. This request was not adhered to and the complainant was advised that after a reassessment of his application, the decision to decline had been maintained.

The Service quoted the relevant provisions of the Immigration Act 1987:

 ’Every person commits an offence against this Act who - (a) Makes any statement knowing it is false or misleading in any material respect in support of any application (whether by that person or by any other person) for a visa or permit, or any claim to an exemption …’

 and referred to the relevant provisions of New Zealand Immigration Instructions:

 ’7.8.1 Each applicant, by signing the forms declares that the information provided is true and complete. Where any other person has helped with the completion of the forms as an agent or interpreter, that person must make a declaration in the space provided on the forms.’

The Secretary of Labour advised in his report that after a reassessment of the file, the relevant district office had been asked to reconsider the application on the ground that the complainant had not been given an opportunity to comment on the discrepancies prior to the Service’s decision to decline him permanent residence. The Service acknowledged that the relevant instructions had not been applied. These were:

 ’7.123.2 Where processing offices discover discrepancies between the details given about immediate family by applicants and those available from their other relatives’ applications, applicants must, under the principles of fairness and natural justice, be given an opportunity to explain these discrepancies in writing or at an interview. The explanation must be recorded on the applicant’s file. If, on receipt of the explanation, the processing office is satisfied that the details in the application form are correct, or that there has been a genuine misunderstanding on the part of the applicant, the application should be decided under normal residence guidelines.

 7.123.3 If, however, after receiving an applicant’s explanation of discrepancies, the processing office is satisfied that the failure to declare relevant family members was a deliberate attempt to mislead, the application may be declined-regardless of whether the applicant qualifies under residence policy …’

The Service advised that an interview would be arranged at which the complainant would be given an opportunity to comment on the discrepancies after which a decision would be taken on the residence application. In view of the Service’s willingness to apologize to the complainant and remedy the complaint the Ombudsman considered that a satisfactory resolution had been found for the complainant. Since the circumstances of the complaint were adequately covered in New Zealand Immigration Instructions and a reminder to adhere to them had been issued to the relevant district office, it was considered unnecessary to make any recommendations.

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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