Your visa is unfairly declined. You are angry and frustrated. You want to write to the Manager and demand that you be treated properly. However, this is not usually going to get you very far. Instead, there are other remedies to explore first which could deliver better results, depending on your situation.
INZ Complaints Process
Immigration New Zealand does have a Complaints and Feedback System. It will look at complaints about individual cases, but to be frank it is of little real value. A complaint must be made within 6 months of the matter which the complaint is about, with a limited ability to have something raised out of that time. While INZ will look at things such as bad behaviour by its staff (rudeness, racist attitude and so on come to mind) or a service issue such as an IT failure which prejudiced an applicant, the most that you can usually expect is an apology. Even excessive delays in processing will usually be fobbed off with “we’ll try to do better”.
The CFS will not accept complaints about “the merits” of a decision. INZ’s definition of this term is very broad. If a visa officer has clearly misunderstood which Immigration Instructions apply to a case, leading to a decline, that’s a merits issue. So is a failure to take into account key evidence, or to apply it in an illogical way; or an unreasonable fixation upon one aspect of the case at the expense of others. These are, of course, exactly the sorts of things you might want to raise, so that the CFS is worthless in most cases.
Instead, there are other avenues available depending upon the type of application.
An applicant in NZ applying for a Work, Student or Visitor Visa can request a formal Reconsideration of a decline. Legally, this means that INZ must “consider again” the whole application, including new information that wasn’t provided or wasn’t available first time around. This is an important way to get a good outcome, and our firm handles this sort of case often.
The Reconsideration must be filed within 14 days of the applicant receiving the visa decline, which is not long. In many cases, having professional help could make all the difference, so it is critical to find a lawyer or licensed immigration adviser quickly.
A complication is that, by the time a Reconsideration is decided, the applicant may be an overstayer because their last visa, or Interim Visa, has expired. If the Reconsideration fails, they can file a request for a “section 61 visa”. Depending on the timing and surrounding circumstances, they should also consider a Humanitarian Appeal against deportation. Choosing the right strategy early on can be vital.
Applicants outside NZ have no right to file a Reconsideration from a temporary visa decline. Sometimes INZ will look at such a request if there are really compelling reasons, such as the decision being so badly made that it beggars belief. The only real solutions are to file a new application (often the quickest way to get the right answer) or to go to the Ombudsman.
The Office of the Ombudsman may be the only avenue for aggrieved offshore temporary visa applicants to get a just result. It is an agency that considers complaints about most Government departments, but it has historically had a lot of immigration cases on its books. One disadvantage is that it can take quite a while to get a result this way because of the number of cases it gets. This is one reason why we keep it in reserve and tell people to file a new application instead.
One notorious case where the Ombudsman really stood up for migrants arose in the early 2010s when INZ’s India offices were declining almost all Work Visa applications by partners of workers already in NZ, to come over to join them. it found that visa staff were systematically misapplying the rules, and ordered hundreds of those cases to be reassessed – many were later approved.
To be successful before the Ombudsman, it is usually necessary to show that INZ has misunderstood the policy it is meant to apply, or has applied it in an unfair or even discriminatory way.. If INZ has used the Immigration Instructions and its discretion properly, even if the result is not what you wanted, then the Ombudsman will decline to give a remedy.
In almost all cases there is a right of appeal against a Residence decline to the Immigration & Protection Tribunal. The Tribunal can look firstly at whether INZ misapplied its own rules (including those requiring it to give the applicant a right of reply to negative information); and can also consider if there are “special circumstances” justifying a recommendation to the Minister of Immigration to grant Residence even if INZ got it right the first time. Again, having an experienced lawyer or licensed adviser on your side is highly recommended, as the arguable issues can be difficult to tease out of the facts.
The Appeal must be filed within 42 days (6 weeks) of receiving the decline decision. If you miss that date, the IPT cannot consider the Appeal even if they want to. People sometimes decide to rush off to the Minister first, and then come back around to try the Appeal later, only to find out that they have lost their chance.
Going to the Minister
The Minister of Immigration (or, more commonly, the Associate Minister) has the power to give pretty much any order he or she likes on a visa matter, if persuaded that it is justified. This is the option of last resort. You must have used up all your possible options first. If you have not, then the Minister’s office will simply send your bundle of papers back.
Therefore, when we do take cases to the Minister (which we do reasonably regularly in other situations), we describe the background steps which have led up to the point where there was nowhere else to go. This can involve a deep-dive into the client’s INZ file which we ask for under the Privacy Act.
From our experience, complaints about how INZ has handled things are usually resolved before this stage – or else there is another deeper problem which needs to be solved in some other way. This can require some creative thought, which is why it is best to talk to us before going through all of the other options described in this article. The earlier we can come in, the better our chance to deliver a real solution.