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. You need to be mindful that after 42 days unlawfully in new Zealand you will be liable for deportation.
Onshore or offshore?
It’s important to understand the difference between visas that are lodged within New Zealand (onshore) and those that are lodged outside New Zealand (offshore).
For applications made within New Zealand immigration New Zealand have an obligation to put potentially prejudicial information to you before they refused the visa even if it is information they think you already know about. For visas lodged offshore immigration New Zealand do not need to warn you ahead of refusing the visa if they think that it is information that you should already know about.
For temporary visas lodged onshore where the applicant is still lawful have a right of reconsideration. And after that they have a right of humanitarian appeal call and see below . For temporary visas lodged offshore there is no right of reconsideration and no humanitarian appeal.
Residence visas have the same rights of appeal whether they are lodged onshore or offshore .
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 and you are in New Zealand. You must submit your request for reconsideration within a specific time limit.
Humanitarian appeal
If you become unlawful in New Zealand, you may lodge a Humanitarian appeal with the Tribunal within 42-days of first becoming unlawful. There are different appeal periods where people are issued with deportation liability notices (cancelling their visa) or in other circumstances. 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. You must also show that it would not in all the circumstances be contrary to the public interest to allow you to remain in New Zealand.
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. There is also a public interest test which looks at health or character issues but it is more flexible then immigration New Zealand test.
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.
Pacific legal as one of the leading firms in New Zealand and conducting humanitarian appeals. Our director Richard Small has over 100 such appeals on record we have a very high success rate, although the outcome in the individual case always depends on the evidence. Often the interests of New Zealand family members are very important in such appeals and we will recommend a psychologist report. We have a list of psychologists that we referred to support the appeal With a report.
In response to a humanitarian appeal the tribunal can do any of:
- Take no action
- Decline the appeal but defer deportation action or reduce the exclusion period.
- Decline the appeal but issue a temporary visa for up to 12 months to make arrangements to leave New Zealand
- Allow the appeal and issue a temporary visa for up to 12 months which can be extended
- Allow the appeal and issue a residence class visa
As at February 2025, appeals were taking around six to seven months to decide. These times. May vary. You do not hold a visa while the appeal is considered but you also cannot be deported.
Residence class visa appeal: whether you applied onshore or offshore
This appeal has a high threshold to meet where you will need to claim that:
- the decision was not correct in terms of the residence instructions and/or
- 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. The most common successful outcome in these cases is that they are referred back to immigration New Zealand to re assess the case. Where the minister makes an exception for an exception they are not bound by the recommendation of the Tribunal.
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 requesting 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.
Like section 61 it is a request not an application! We have done hundreds of section 61 and ministerial requests over the years and we are very familiar with this area.
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. In practise this is delegated to the Associate Minister of Immigration and delegated decision makers. Either Minister can personally waive any immigration requirement for a visa or impose another condition on a person, visa, or document.
The minister is the last resort. The Minister generally will not consider a new request unless you have first requested a visa under section 61 if an earlier request was made within 18 months where it had refused to intervene unless there has been a significant change in your circumstances. As it February 2025 the current associate minister was taking a particularly tough approach to requests. Where clients had the option of a humanitarian appeal (see above) we advise them to seriously consider that.
This area requires expert advice on the risks of deportation and dealing with the compliance an investigation part of MBIE. Just making a section 61 request or request to the minister does not absolutely protect you from deportation action, although generally such action is put on hold while the request is considered.
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.
We can ask for hold on deportation while we request your file.
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!
Pacific Legal are experts in hard cases
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!
