People quite often ask us this when they come in after a visa has been declined, or they have overstayed for a long time and it looks like they could be deported soon. The answer is sometimes “Yes” but usually “No”.
Don’t get me wrong – I have a healthy respect for how you can get a good result from the Minister of Immigration. A couple of years ago I delivered a Conference paper on the subject.
You can ask the Minister for a Special Direction to solve a situation when there appears to be no other option. The New Zealand Courts once described the Minister’s power as the ability to “do something for someone” when they could not convince anyone else to help. However, there are two strong reasons why we don’t immediately grab our keyboards to write off to the Minister.
The first is because the Minister has “absolute discretion” to decide whether to help – or whether to even look at the case or not. Every case is different, especially the hard cases, so that it is almost impossible to predict whether the Minister will be compassionate. In fact, decisions are made by the Associate Minister, who was Hon. Nikki Kaye until the Election, but Hon. Craig Foss recently took over the portfolio, and no doubt he is still finding his feet. Absolute discretion also has a special legal meaning under the Immigration Act, and the result is that the Minister does not have to give reasons for his or her decisions. As you can see, it’s a bit of a gamble.
The second reason is perhaps even more important. For many people there may be other options available. We have seen some disastrous cases where someone had a right of appeal against being deported, but they got bad advice and went off to the Minister instead. You have to use your right of appeal within the time allowed under the Act – for instance, if you are an overstayer, within 42 days of the end of your last visa. If you don’t, then you lose that right forever. In other cases, clients have come to us who have wasted months waiting for a Ministerial decision (declined) who could have instead applied for a new visa before their previous one expired.
I recommend to most people to use their right of appeal – whether it arises from a Residence visa being declined, or because they become “liable for deportation” in one of many ways. This is because you only get one shot at an appeal, and also for overstayers, at the very least, it is like a form of insurance against being deported while they try other ways to get back on a visa. Sometimes I do say to people not to bother with an appeal, but usually this is because there is some other option (like making a new visa application) which gives them a better chance of success.
This is why, when someone comes in to see us for the first time, we spend a while finding out about their surrounding situation and their Immigration history. In some cases we can suggest more than one alternative. For instance, we’ll tell someone who has overstayed for several years that they must go home and apply to come back; but if they have a New Zealand partner and children, then we do put forward the option of applying for a Section 61 visa rather than splitting up the family.
A Special Direction from the Minister is a very last resort when all else has failed. And that is the point – we only use it when we cannot find any other way to solve someone’s problem.