Immigration Service fails to consider residence application in accordance with policy

Ombudsmen Act 1975
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Ombudsmen Act 1975
Sir John Robertson
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Unreasonable decision to decline application for permanent residence Misapplication of policy following a policy change

In July 1990 the Ombudsman received a complaint from an immigration consultant on behalf of a client, a former refugee from Vietnam now a naturalised New Zealand citizen.

As a young child the complainant had been separated from his family due to the war in Vietnam. Some eight years after being separated, subsequent to his arrival in New Zealand, the complainant was informed his mother and sister had been located in Vietnam but his elder brother was still missing as he had gone into hiding to escape being recruited into the Vietnamese Army.

The applicant wishing to be reunited with his family, sought to bring his mother and sister to New Zealand as permanent residents. Three years after his mother and sister initially applied, their application was declined on the ground that there was a missing sibling. The complainant felt that decision was unreasonable.

Having received the complaint, the Ombudsman requested the case be reviewed by the Immigration Service. An error was then found in the assessment of the policy pertaining to the application, the application had in fact been incorrectly declined. A change in policy concerning the approval of parents with dependent children had occurred which had been overlooked. The policy now allows for approval of applications for permanent residence for parents with dependent children where the number of adult children resident in New Zealand is at least equal to the number of children resident in any other country and the number of dependent children is the same or less than the number of adult children in New Zealand.

The complaint was sustained because the Ombudsman believed that officials who consider permanent residence applications must be conversant with the details of the policy they implement. An error such as the one in this case shows that the officials may not be totally familiar with the rules they are trusted to enforce and that steps should be taken to inform these officers of changes as they occur.

As the General Manager of the New Zealand Immigration Service undertook to provide the complainant with a written apology and explanation and the application for residence for his mother and sister proceeded, the Ombudsman made no further recommendation on this case.

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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