Visa Reconsiderations – a Second Chance

Last year I highlighted a change to the rules around Interim Visas which gave people more opportunities to contest declined visa applications.  Since then, we have had increased demand for us to handle reconsideration of a refused visa.

Reconsiderations are available for most temporary visa applications made by people in New Zealand – Visitor, Work or Student Visas.  They do not apply to Residence.  If a Residence application is declined, there is usually a right to take an appeal to the Immigration & Protection Tribunal.  You also cannot normally ask for a reconsideration if you have applied from outside NZ, an issue which I will come back to.

How Do They Work?

A reconsideration means what it says – Immigration has to consider the application again.  It has to be looked at by a different visa officer who is at the same rank as, or higher than, the one who declined the application.  This can be an effective way to get someone else to take a fresh look at your case, especially when it seems that the first decision was not done properly.

It also gives a chance to bring in new information which was not provided the first time, or was not available until later.  For example, we have put cases forward where the applicant tried to do the application themselves, but failed.  This is often not their fault – visa applications can be technically challenging, and most applicants don’t have much experience of how to apply the rules around various types of visa.  Perhaps they simply didn’t gather enough evidence to show that they are in a strong partnership relationship.  Or, for a job-based Work Visa, the employer did not get any guidance about how to describe their job accurately in the Employment Agreement.  These things can be fixed, but they have to be done carefully.

Get in Quick

If your visa application is declined, you have 14 days to put in the reconsideration.  That is not very long, especially if you also need to find an immigration professional to help.  Because most visa decisions are sent by email nowadays, the 14 days starts from the date on the decline letter (assuming that the letter goes out on the same day).  If you put in the reconsideration late, Immigration is not allowed to look at it because the time limit is set by section 185 of the Immigration Act 2009.

Instead, a late reconsideration could be treated as a request for a visa under section 61 of the Act.  Immigration does do this sometimes, and if they don’t then you should ask them to.  Some years ago Immigration New Zealand set up a dedicated Section 61 Team, and this is now called the Section 61/Reconsiderations Team for this reason.

That option is far from ideal, because “section 61” requests are basically Yes/No calls by an Immigration officer.  They are not required to give reasons or use any particular policy to make the decision.  Reconsiderations, on the other hand, must be assessed using the policy which the migrant applied under.  Immigration must also turn its mind to whether an “Exception to Instructions” could be used if the person’s case doesn’t quite fit the rules.

The upshot is that, if you can ask for a reconsideration, make sure you do it in time.

Offshore Visas

I mentioned before that people who are overseas have no right to a reconsideration.  This is technically correct, but Immigration Instructions do allow visa officers to reassess a declined offshore application if the applicant puts forward “new and compelling information”.  The trouble is that anyone trying to use this avenue is at the mercy of a visa officer who gets to decide if the new material is new and compelling enough.

It may be time to revisit this restrictive approach to offshore visas.  The limitation on reconsiderations is a part of the law passed by Parliament, but it is not clear why it should be so.  The argument is often made that people who are already in NZ have a greater right to fair treatment, and a second chance, than someone who has never been here before.  However, overseas applicants often have a lot at stake.  If they are coming to visit family or to join a partner, the people in New Zealand are also deeply affected by a defective decision.  The only thing people can then do is to apply again, and take the risk that Immigration will simply follow the last decision and decline a second time.

The other problem is that, without any rights of appeal or reconsideration for offshore applications, cases can be declined – and are declined – with very little accountability on the part of INZ staff at offshore posts.  For instance, some years ago this forced the industry to involve the Office of the Ombudsman in a complaint about the wholesale decline of applications by partners of students and workers from India.

In the last year or more, the number of declined Partner applications has increased significantly.  While this is also happening to people already in New Zealand, the figures are more dramatic from INZ Mumbai, whose notoriety in the industry is reaching new heights.  My colleagues who are looking at this situation more closely have identified a systemic application of policy, in a manner which seems calculated to make it difficult or impossible for many people to qualify.  And visa staff at these overseas posts can do this with impunity.  INZ’s own complaints and feedback system is worthless, because it cannot be used to point out deficiencies in the logic behind decisions.  And the Immigration Act prevents anyone from taking their case to the Courts.

To restore accountability, any review of the Immigration Act should involve extending rights of reconsideration to offshore applications, and perhaps even making judicial review available to people outside New Zealand.  INZ has hidden behind the statutory protections that it currently enjoys, for too long.

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About Simon Laurent, Lawyer

Principal of LaurentLaw Barristers & Solicitors. NZ immigration law specialist.
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