Immigration Service allows visa extension applicant to approach Minister where original visa granted as Special Direction

Immigration
Legislation:
Ombudsmen Act 1975
Related legislation:
Immigration Act 1987
Legislation display text:
Ombudsmen Act 1975; Immigration Act 1987
Ombudsman:
Hon Anand Satyanand
Case number(s):
W39175
Issue date:
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Language:
English

Holder of eight week visitor’s permit applied for further visitor’s permit—application declined—original permit issued pursuant to special direction by Minister—NZIS had no discretion to grant further permit—applicant denied opportunity to approach Minister for further permit—NZIS agreed to allow applicant time to do so before instituting removal procedures      

The complainant had been issued a visitor’s visa by the New Zealand Immigration Service (NZIS) for an eight-week visit to New Zealand after a New Zealand Member of Parliament (MP) had made personal representations to the Minister of Immigration. The complainant entered New Zealand and was granted a visitor’s permit for eight weeks, in accordance with the visa. An application was then made for a further permit under government policy which generally allows sponsored visitors to visit New Zealand for nine months in any eighteen-month period. This application was declined by the NZIS. Concerns about the decision, and the matters taken into account, were raised by the MP.     

The NZIS advised that the Minister had expressly informed the MP that the visitor’s visa was authorised on the condition that the complainant left New Zealand before the permit expired and that she would not be entitled to a further visitor’s permit beyond the period of the visa issued. On this basis, the NZIS submitted that normal policy relating to further visitor’s permits did not apply, and that the application should have been declined solely on the basis that the terms of the original visa, issued pursuant to a special direction by the Minister, precluded this.     

The view was formed that the Minister had made a special direction in stating that the complainant would not be entitled to a further visitor’s permit. Section 9(1)(b)(i) of the Immigration Act 1987 states that any question whether to grant a temporary permit to any person is a matter for the discretion of the appropriate immigration officer, subject to any special direction given under the Act. As the Minister had in this case made a special direction that no further permit was to be granted, the NZIS did not have the discretion to grant a further permit to the complainant      

However, it was noted that the NZIS should have made it clear to the complainant that because the Minister had made a special direction, a further visitor’s permit could not be granted by the NZIS. Only the Minister would be able to consider a request for a further permit. If this had occurred, it would have been open to the complainant to approach the Minister to request a further permit, before her original permit expired. It was suggested that in order to remedy this matter the NZIS should allow the complainant sufficient opportunity to approach the Minister if she wished, before the NZIS instituted removal procedures. The NZIS agreed to adopt this suggestion and the investigation was concluded 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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