Visa appeals

What can I do if my temporary visa or resident visa application is refused?

Many applicants are unsure what to do after their visa application is declined and often try to find a solution by themselves which might not always work. You might ask yourself if you might submit a Section 61 request or on what occasion it might be best to go directly to the Minister of Immigration.

At Pacific Legal, we will advise you of your options and if it is possible for you to pursue more than one alternative. With our immigration lawyers, you will have a better chance to get your decline appealed.

What to do if your visa is refused?

When you are refused a visa, it is highly recommended that you request full disclosure of your files from Immigration New Zealand under the Privacy Act 2020 and the Official Information Act 1982 to check for completeness and accuracy.  More often than not, we have found information on file that shows unreasonable processing by Immigration New Zealand, which could be grounds later for a complaint.

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Options to consider if you are refused a visa:

  • Lodge a fresh visa application with resolved concerns –addressing the areas that Immigration New Zealand based the refusal on. You may need to wait for your circumstances to substantially change to make a stronger visa application.
  • Lodge a complaint to Immigration New Zealand – if it appears Immigration New Zealand has failed to follow their own processes or that there was improper conduct on the part of an immigration official assessing your application, a complaint can be submitted. However, this does not guarantee a visa being granted.
  • Seek reconsideration of your temporary visa refusal –this option is only available if you still have time remaining on your current visa. You must submit your request for reconsideration within a specific time limit.
  • Appeal to the Immigration & Protection Tribunal – several different types of appeals can be lodged with the Immigration & Protection Tribunal. Each has its own form to fill out and usually a fee to pay, currently $700. The Tribunal cannot accept an appeal if you have no right of appeal. Time is critical, as there is a set period within which appeals must be lodged.

Humanitarian appeal

If you become unlawfully in New Zealand, you may lodge a Humanitarian appeal with the Tribunal within 42-days of first becoming unlawful. The appeal will focus on any exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for you to be deported from New Zealand. It would not in all the circumstances be contrary to the public interest to allow you to remain in New Zealand.

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This is a very high threshold to meet, and you must provide credible evidence to support your exceptional humanitarian circumstances (both here in New Zealand and your home country) that would make it unjust or unduly harsh for you to return to your home country.

Exceptional means circumstances different to most other people from your home country.

Humanitarian includes things like

  • Suffering family violence here or in your home country
  • The sudden death of close family members
  • Having a medical condition that would put you at risk if you returned
  • Family problems that lead to violence, or threats
  • Supporting a New Zealand resident or citizen family member who has no other options and would be at risk if you left New Zealand

The Tribunal will not just accept your word on these things. They must be backed up with evidence either before you lodge an appeal or shortly afterwards.

Residence class visa appeal

This appeal has a high threshold to meet where you will need to claim that

  1. a) the decision was not correct in terms of the residence instructions and/or
  2. b) there are special circumstances such that consideration of an exception to the residence instructions should be recommended. This will focus on any humanitarian circumstances.

The Tribunal could either decline the appeal, uphold the appeal, recommend a fresh assessment, or recommend that the Minister grants residence as an exception. There are absolutely no guarantees of any success.

It is important to seek professional advice and assistance as soon as possible, particularly regarding your right to appeal and prospects of success.

Section 61 Request

Regardless of how long you have been unlawfully in New Zealand, you may be able to submit a request under Section 61 of the Immigration Act to Immigration New Zealand to consider granting you a visa. These requests are only granted by Immigration New Zealand in special cases.  These are discretionary decisions, and Immigration New Zealand is not obliged to provide reasons for its decision.

We can advise you whether or not we believe a Section 61 request is a suitable option in your personal circumstances.

Ministerial Request

We have assisted various clients in applying for and securing different types of visas through a direct approach to the Minister of Immigration or the Associate Minister of Immigration, mostly based on their humanitarian circumstances.

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The Minister of Immigration or the Associate Minister of Immigration has the power to grant a visa on terms and conditions that they deem fit outside immigration policy requirements. Either Minister can personally waive any immigration requirement for a visa or impose another condition on a person, visa or document.

The Minister generally will not consider a new request if an earlier request was made within 12-months where it had refused to intervene unless there has been a significant change in your circumstances.

How Pacific Legal can support you

The most suitable option will depend on your personal circumstances, including your current visa status; whether you are onshore or offshore; whether you still have time remaining on your current visa or whether you are unlawful; and of course, on your resources, whether you can afford to pay for an appeal to the Tribunal or a new visa application.

Pacific Legal can assist you with determining which option is most suitable in your circumstances and which would have the best chances of success.

Depending on your particular circumstances, we could pursue one or more of the above options.

Special directions are only made in exceptional circumstances. We can advise you whether or not we believe that such circumstances exist in your case.

So, get in touch with us today if you need advice on your visa application appeals, and Pacific Legal will be there to support you!