Reprint as at 6 May 2016

Coat of Arms of New Zealand

Immigration Act 2009

Public Act
 
2009 No 51
Date of assent
 
16 November 2009
Commencement
 
see section 2
Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

This Act is administered by the Ministry of Business, Innovation, and Employment.

Contents

1Title
2Commencement
3Purpose
4Interpretation
5Notifications
6How periods of time to be calculated
7Meaning of classified information and proceedings involving classified information
8Meaning of granting visa or entry permission as result of administrative error
9Meaning of unlawfully in New Zealand (in relation to person who is not New Zealand citizen)
9AMeaning of mass arrival group
10Meaning of deported
11Meaning of absolute discretion of the decision maker
12Act binds the Crown
13New Zealand citizens may enter and be in New Zealand at any time
14Persons other than New Zealand citizens must hold visa to travel to and be in New Zealand
15Certain convicted or deported persons not eligible for visa or entry permission to enter or be in New Zealand
16Certain other persons not eligible for visa or entry permission
17Exceptions to non-eligibility for visa or entry permission
18Obligation of persons unlawfully in New Zealand to leave New Zealand
19Duty of chief executive to communicate obligation to leave New Zealand
20No right for person unlawfully in New Zealand to apply for visa
21No right for person unlawfully in New Zealand to work or study
22Immigration instructions
23Immigration instructions classified as residence instructions, temporary entry instructions, or transit instructions
24Immigration instructions for lapsing of applications for visas
25Publication of immigration instructions
26How claims and applications for visas and entry permission processed
27Reasons for decisions must be given if visa or entry permission refused to certain persons
28Automated decision making in relation to visas, etc
29Automated decision making in advance passenger processing
29AUse of automated system to confirm New Zealand citizenship
30Use of biometric information in decision making
31Collection and storage of biometric information
32Department to undertake privacy impact assessment
33Classified information relating to security or criminal conduct may be relied on in decision making
34Minister may receive briefing
35Protection of classified information
36Classified information must be balanced
37Withdrawal or updating of classified information
38Summary of allegations to be developed
39Reasons, etc, to be given where prejudicial decision made using classified information
40Where classified information may be relied on without requirement for summary or reasons
41Declassification of classified information
42No right of complaint to Inspector-General of Intelligence and Security
43Effect of visa
44Person may hold only 1 current visa
45Grant of visa generally matter of discretion
46Grant of visa does not guarantee entry permission
47Grant of visa may be conditional on payment of bond
48Grant of visa may be conditional on sponsorship
49Visas may be subject to conditions
50Conditions on resident visas
51Resident visa holder may apply for variation of travel conditions
52Conditions on temporary entry class visas (other than those subject to restricted temporary entry instructions)
53Conditions on temporary entry class visas subject to restricted temporary entry instructions
54Conditions on transit visas
55Condition that visa holder have sponsor
56Visa holder must comply with conditions
57Applications for visas
58Obligation on applicant to inform of all relevant facts, including changed circumstances
59Applications by minors
60Biometric information may be required from visa applicant
61Grant of visa in special case
62Form of visa
63Expiry of visa
64Cancellation of visa on triggering event
65Cancellation of resident visa before holder first arrives in New Zealand as holder of visa
66Cancellation of temporary entry class or transit visa by Minister or immigration officer
67Cancellation of visa for administrative error
68Grant of further visa where visa granted in error
69Waiver of requirement for visa permitting travel to New Zealand in certain cases
70Classes of visa
71Who may apply for residence class visa
72Decisions on applications for residence class visa
73Currency and nature of permanent resident visa
74Currency and nature of resident visa
75Former New Zealand citizens deemed to hold resident visa
76Decisions on applications for temporary entry class visa
77Currency and nature of temporary entry class visa
78Deemed extension of temporary entry class visa expiring during epidemic
79Who may apply for temporary visa
80Interim visa
81Who may apply for limited visa
82Grant of limited visa rather than temporary visa applied for or held
83Grant of limited visa in relation to criminal matters
84Currency of limited visa
85Limitations and conditions on holders of limited visa
86Who must obtain transit visa
86AObligation of transit passenger
87Transit visa may be granted as exception to immigration instructions
88Currency of transit visa
89Limitations on holders of transit visa
90Cancellation of transit visa
91Expiry of transit period
92Expressions of interest
93Obligation to inform of all relevant facts, including changed circumstances
94Invitation to apply for visa
95Issue of invitation to apply for visa matter of discretion
96Responsibilities of carrier, and person in charge, of commercial craft before it departs from another country to travel to New Zealand
97Chief executive may make decision about person boarding craft for purpose of travelling to New Zealand
98Grant of entry permission outside New Zealand
99New Zealand citizen may confirm citizenship before arrival in New Zealand
100Collection of biometric information from proposed arrivals
101Obligations in relation to craft en route to or arriving in New Zealand
102Obligations of carriers, and persons in charge, of craft to provide information
103Obligations on persons arriving in New Zealand
104New Zealand citizens arriving in New Zealand to be photographed
105Responsibilities of internationally ticketed passengers travelling by air within New Zealand
106Responsibilities of domestic passengers travelling by air within New Zealand
107Effect of entry permission or refusal of entry permission
108Decisions on entry permission in relation to residence class visa holders
109Decisions on entry permission in relation to temporary entry class visa holders
109AForm of entry permission
110Applicant for entry permission to provide address
111Collection of biometric information
112Obligation to inform of all relevant facts, including changed circumstances
113Revocation of entry permission for administrative error
114Person failing to present and apply for entry permission
115Arrest, detention, and turnaround of persons
116When section 115 ceases to apply to person
117When turnaround ceases to apply to person remanded in custody or imprisoned
118Obligations of carriers, and persons in charge, of craft
119Obligations of persons leaving New Zealand
120Persons other than New Zealand citizens leaving New Zealand to allow biometric information to be collected
121Persons deemed not to leave New Zealand in certain circumstances
122Special provisions relating to persons returning to New Zealand in emergency or other circumstances beyond their control
123Protection for carriers, and persons in charge, of craft
124Purpose of Part
125Refugee or protection status to be determined under this Act
126Recognition of refugees selected outside New Zealand
127Context for decision making
128Matter not finally determined until expiry of appeal period or when appeal determined
129Recognition as refugee
130Recognition as protected person under Convention Against Torture
131Recognition as protected person under Covenant on Civil and Political Rights
132Claims not to be accepted from certain persons
133How claim made
134Whether to accept claim for consideration
135Claimant responsible for establishing claim
135ASuspension of determination of claim
136How refugee and protection officer to determine claim
137Matters to be determined by refugee and protection officer
138Decision on claim
139Minister to decide immigration status of protected person who may have committed certain crimes or been guilty of certain acts
140Limitation on subsequent claims
141Procedure on subsequent claims
142Claim treated as withdrawn if claimant leaves New Zealand
143Cessation of recognition as refugee or protected person
144Application to Tribunal for cessation of recognition as refugee or protected person
145Cancellation of New Zealand citizen’s recognition as refugee or protected person
146Cancellation of person’s recognition as refugee or protected person (other than New Zealand citizen)
147Application to Tribunal for cancellation of New Zealand citizen’s recognition as refugee or protected person
148Procedures to be followed when refugee and protection officer making determination under section 143, 145, or 146
149Powers of refugee and protection officers
150Special provision relating to claimants granted temporary visas
151Confidentiality to be maintained in respect of claimants, refugees, and protected persons
152Disclosure of information about claimant, refugee, or protected person by government agencies
153Purpose of Part
154Deportation liability if person unlawfully in New Zealand
155Deportation liability if person’s visa granted in error
156Deportation liability if visa held under false identity
157Deportation liability of temporary entry class visa holder for cause
158Deportation liability of residence class visa holder due to fraud, forgery, etc
159Deportation liability of resident if visa conditions breached
160Deportation liability of residence class visa holder if new information as to character becomes available
161Deportation liability of residence class visa holder convicted of criminal offence
162Deportation liability if refugee or protection status cancelled under section 146
163Deportation liability of persons threatening security
164Limitation on deportation of persons recognised or claiming recognition as refugee or protected person
165Immigration officer must have regard to certain matters when dealing with claimants, refugees, or protected persons
166Limitation on deportation of diplomats, etc
167Period of deportation liability
168Liability for deportation when person outside New Zealand
169Effect of being liable for deportation
170Deportation liability notice
171Contents of deportation liability notice
172Minister may cancel or suspend liability for deportation
173Right of victims to make submissions on suspension or cancellation of liability for deportation
174Effect of suspension
175Service of deportation order
175ATime when deportation order may be served
176Content of deportation order
177Deportation order may be cancelled
178Executing deportation order
179Deported person may not enter New Zealand during period of prohibition on entry
180Deported person may not enter New Zealand until costs of deportation repaid
181Consequences for deported person if person enters or attempts to enter New Zealand during period of prohibition on entry
182Minister may reduce or remove period of prohibition on entry
183Interpretation
184Purpose of Part
185Right of reconsideration if onshore application for further temporary visa declined
186Limited right of review in respect of temporary entry class visa decisions
187Rights of appeal in relation to decisions concerning residence class visas
188Determination of appeal in relation to residence class visa
189Use of further information in appeals under section 187
190Procedure where appeal successful or Tribunal makes recommendation
191No appeal or review rights in relation to invitations to apply
192No appeal or review rights in relation to transit visas
193Tribunal consideration of refugee and protection matters
194Right of appeal in relation to decisions concerning refugee or protection status (other than subsequent claims)
195Right of appeal in relation to subsequent claims for refugee or protection status
196Determination of appeal against decision declining to accept for consideration claim in light of international arrangement or agreement
197Determination of appeal against decision declining to accept for consideration certain claims for recognition as refugee
198Determination of appeal against declining of claim for recognition, cancellation of recognition, or cessation of recognition
199After successful appeal, Minister to decide immigration status of protected person who may have committed certain crimes or been guilty of certain acts
200Determination of appeal against refusal or declining of subsequent claim for recognition as refugee or protected person
201Persons who may appeal to Tribunal on facts
202Grounds for determining appeal on facts
203Process when entitlement to appeal on facts and humanitarian grounds
204Special process where refugee or protection status acquired through fraud, etc
205Special process if refugee or protected person liable for deportation under section 161
206Who may appeal to Tribunal on humanitarian grounds
207Grounds for determining humanitarian appeal
208Right of victims to make submission on appeal
209Tribunal may make orders considered necessary on allowing appeal against liability for deportation
210Tribunal may order grant of visa on allowing appeal against liability for deportation
211Effect of successful appeal against liability for deportation
212Tribunal may suspend liability for deportation on allowing humanitarian appeal
213Effect of suspension
214Effect of suspension on appeal
215Tribunal may reduce or remove period of prohibited entry under deportation order
216Tribunal may make order delaying deportation if appeal unsuccessful
217Immigration and Protection Tribunal
218Nature of Tribunal
219Membership of Tribunal
220Role of chair of Tribunal
221Exercise of jurisdiction
222Procedure for determining appeals and matters generally
223Chair to ensure appeals and matters heard expeditiously
224Tribunal may dismiss frivolous or vexatious appeal
224AAnnual report on performance of Tribunal’s functions
225How appeal or matter lodged
226Proceedings on appeal or matter
227Minister or Department is party to proceedings
228Information Tribunal may consider
229Tribunal may require chief executive to provide information
230Tribunal must disclose prejudicial information
231Findings of credibility and fact
232Tribunal may require provision of biometric information
233When Tribunal must or may provide oral hearing
234Decision on papers in other circumstances
235Tribunal may issue single decision when appeals or matters heard together
236Appeals against deportation liability where person serving prison sentence
237Procedure
238Withdrawal of appeal or matter
239Deemed withdrawal of certain appeals where person leaves New Zealand
240How proceedings involving classified information to be conducted by Tribunal
241Presentation of classified information to Tribunal
242Tribunal to approve summary of allegations
243Matters to be considered by Tribunal
244Tribunal may require mixture of closed and open hearings
245Appeal to High Court on point of law by leave
246Appeal to Court of Appeal on point of law by leave
247Special provisions relating to judicial review
248Minister, chief executive, or refugee and protection officer may be respondent in review proceedings relating to Tribunal decision
249Restriction on judicial review of matters within Tribunal’s jurisdiction
249AApplications for appeal and judicial review of Tribunal decision to be lodged together
249BAppeal to Court of Appeal against judicial review of matters within Tribunal’s jurisdiction
250Certain appeals and review proceedings to be treated as priority fixture
251Relationship with Judicature Act 1908 and Supreme Court Act 2003
252Proceedings involving classified information may be heard only by nominated Judge
253Appeal to High Court or review proceedings involving classified information
254Appeal to Court of Appeal or Supreme Court involving classified information
255Appeal period where decision involving classified information to be appealed to Court of Appeal or Supreme Court
256Court to approve summary of allegations
257Priority or urgency to be afforded to proceedings involving classified information
258Relevant agency entitled to be party to proceedings involving classified information
259Obligation and powers of Tribunal and courts in relation to classified information
260Ancillary general practices and procedures to protect classified information
261No disqualification by reason of security briefing
262Restriction on appeal and review
263Role of special advocates
264Recognition of special advocates
265Appointment of special advocate in individual case
266Appointment of special advocate for purposes of Part 9 proceedings
267Communication between special advocate and person to whom classified information relates
268Protection of special advocates from liability
269Tribunal or court may appoint counsel assisting the court
270Tribunal or court may appoint special adviser
271Payment to counsel assisting the court or special adviser
272Purpose of Part
273Meaning of information, document, register, list, etc, in sections 274, 276, 277, and 278
274Certificate requiring production of address information
275Persons required to provide access to address information
276Powers of entry and inspection relating to records of accommodation providers
277Powers of entry and inspection relating to records of employers
277APowers of entry and search for employees on employers’ premises
277BDepartment must review and report on entry and search powers under section 277A
277CDepartmental annual report to record exercise of entry and search powers under section 277A
278Powers of entry and inspection relating to records of education providers
279Powers of immigration officer to require information and documents where offence suspected
279ATreatment of identity documents and other things
280Power of immigration officer to request information and documents where liability for deportation or turnaround suspected
281Power to require information from person liable for deportation or turnaround
281AObligation of third parties to surrender identity documents
281BPower of entry and search for identity documents
282Immigration officer’s powers to enter immigration control area
283Powers at border
284Power of entry and search of craft
285Power of entry and search at border place
285ASearch of persons
286Powers of entry and search relating to deportation
287Special biometric information
288Requirement to allow collection of biometric information and special biometric information
289Application for order authorising collection of biometric information
290Judge may authorise biometric information and special biometric information to be collected
290AObtaining biometric information by compulsion
291Further applications for compulsion order
292Immigration officer may have assistance
293Police to have powers of immigration officers
293AWarrant to enter and search
294Information matching to identify immigration status of person sentenced to imprisonment or community-based sentence
295Information matching to locate person in serious default of payment of fine
296No Crown liability to third parties for fines enforcement action
297Chief executive may supply information concerning specified fines defaulters to commercial carriers
298Information matching to verify social security benefit matters
299Information matching to recover costs of visa holder’s social security benefit from sponsor
300Information matching to determine eligibility or liability to pay for publicly funded health and disability support services
301Disclosure of immigration information to verify eligibility for publicly funded services
302Disclosure of information to enable Department to check identity, character, and status
303Disclosure of information to enable specified agencies to check identity and character
304Disclosure of information to employers
305Disclosure of information overseas
306Information that may be disclosed under section 305
307Purpose of Part
308This Part code for detention and monitoring of person if detention and monitoring under this Act
309Persons liable to arrest and detention
310Purpose for which arrest and detention powers may be exercised
311Implications of liability to arrest and detention
312Limited power of detention for up to 4 hours
313Initial period of detention for up to 96 hours without warrant
314Persons arrested and detained pending making of deportation order
315Person may instead agree to residence and reporting requirements
316Application for warrant of commitment
317Decision on application for warrant of commitment
317AApplication for mass arrival warrant
317BDecision on application for mass arrival warrant
317CVariation of mass arrival warrant
317DDistrict Court may impose reporting requirements
317EApplication for further warrant of commitment in respect of mass arrival group
318Decision on application for warrant if threat or risk to security
319Warrant of commitment
320Court may instead release person on conditions
321Special conditions where threat or risk to security
322Persons detained under warrant of commitment or released on conditions pending making of deportation order
323Decisions on warrants of commitment where detention beyond 6 months
324Review of warrant of commitment or release on conditions
324AReview of mass arrival warrant
325Consideration by High Court of application involving classified information
326Process for High Court to consider application
327Duties of detaining officers
328Additional powers relating to detention by immigration officer
329Arresting or detaining officer may seek assistance
330Approval of premises for purpose of immigration detention
331Form of custody of persons detained without warrant overnight
332Form of custody of persons detained under warrant of commitment
333Special provisions relating to custody
334Additional provisions relating to custody in approved premises
335Delivery of person into custody of immigration officer or police for purposes of deportation
336Person being deported must be returned to custody or conditions reimposed if craft not available as planned
337During epidemic District Court may deal with certain matters on basis of documents only
338Modification during epidemic of requirements to bring people before District Court Judge
339During epidemic certain warrants to have effect for 28 days
340Application of section 320 during epidemic
341Calculation of consecutive period of detention for purposes of section 323
342Provision of false or misleading information
343Aiding and abetting
344Obstruction or failing to meet requirements
345Improper dealings with immigration or identity documents
346Impersonation
347Publishing false or misleading information
348Alteration of forms
349Offences relating to carriers, and persons in charge, of craft
350Offences by employers
351Exploitation of unlawful employees and temporary workers
352Offences by education providers
353Offences in relation to Tribunal
354Failure to maintain confidentiality in relation to refugee or protection matters
355Penalties: general
356Penalties: carriers, and persons in charge, of craft
357Penalties: employers
358Penalties: education providers
359Infringement offences
360Proceedings for infringement offences
361Immigration officer may require information
362Infringement notices
363Reminder notices
364Infringement fees
365Revocation of infringement notices
365AService of notices
366Evidence in proceedings: certificates in relation to persons
367Evidence in proceedings: certificates as to forms, documents, etc
368Evidence in respect of matters occurring and documents executed outside New Zealand
369Presumption that certificates duly authorised
370Procedural provisions relating to offences
371Presumption of authority
372Time for filing charging document
373Immigration status of persons born in New Zealand on or after 1 January 2006
374Immigration status of persons whose status depends on immigration status of parent
375Minors to have responsible adult to represent their interests
376Role and rights of responsible adult
377Views of minor to be considered
378Special directions
379Immigration officer to act in accordance with special direction
380Delegation of Minister’s powers
381Chief executive may approve forms
382Chief executive to designate immigration control areas
383Chief executive may designate places outside New Zealand where entry permission may be granted
384Endorsement in foreign passport
385Certain operators of airports and ports to provide operating areas, accommodation, facilities, etc
386Serving and giving notices, etc, to Minister and officers
386AServing and giving notices, etc, to other people
387Address for service
387AContact address
387BDepartures from sections 386A to 387A
388Designation of immigration officers
389Immigration officers’ functions and powers
390Designation of refugee and protection officers
391Revocation or lapsing of designations
392Relationship between this Act and Human Rights Act 1993
393Fees and how they may be prescribed for purposes of section 400
394Other charges
395Exemptions and refunds
396Imposition of bonds
397Refund or forfeiture of bond
398Costs of deportation or repatriation
399Immigration levy
400Regulations generally
401Regulations relating to visas and expressions of interest
402Regulations relating to procedures and requirements in relation to arrivals in and departures from New Zealand
403Regulations in respect of refugee and protection matters
403ARegulations made on recommendation of Minister
404Immigration Act 1987 repealed
405Regulations made under Immigration Act 1987 revoked
406Consequential amendments and repeals
407Immigration Act 1987 continues in relation to certain matters and for certain purposes
408Appeals body members not entitled to compensation
409Government immigration and Government residence policy under sections 13A and 13B of former Act to be treated as immigration instructions
410Government policy on lapsing of applications for visas and permits under former Act to be treated as immigration instructions for applications to which section 412 applies
411General instructions given under section 13BA of former Act treated as general instructions under section 26(4) of this Act
412Existing applications for visas and permits
413Expressions of interest in residence under section 13D of former Act
414Invitations to apply for residence under section 13E of former Act
415Holder of visa or permit under former Act deemed to be holder of visa and (if applicable) granted entry permission under this Act
416Returning resident’s visa held by New Zealand citizen under former Act indication of entitlement
417Persons exempt from holding permit under former Act deemed to be holders of temporary visa or resident visa
418Responsibilities of carrier, and person in charge, of commercial craft before it departs from another country to travel to New Zealand
419Decision by chief executive about person boarding craft for purpose of travelling to New Zealand
420Information requirements for carrier, and person in charge, of commercial craft
421Reporting obligations of carriers, and persons in charge, of craft leaving New Zealand
422Obligations of carriers of craft leaving New Zealand to provide passage
423Responsibilities of carrier, and person in charge, of craft en route to New Zealand
424Person recognised as refugee under former Act treated as recognised as refugee under this Act
425Existing claim for recognition as refugee to be determined under this Act (other than subsequent claims made under former Act not yet accepted for consideration)
426Existing subsequent claim for recognition as refugee made under former Act not yet accepted for consideration
427Acts or things done by refugee status officer for purposes of claim (including subsequent claim) under former Act not required to be repeated by refugee and protection officer
428Certain persons who under section 129L of former Act cease to be recognised as refugee liable for deportation under this Act
429Persons subject to section 129U of former Act
430Person subject to section 128 or 128B of former Act
431Deportation liability of residence class visa holder convicted of criminal offence
432Revocation of permits, removal orders, and deportation orders
433Permit granted prior to commencement of section 404 as result of administrative error
434Liability for deportation in respect of visa deemed to be held under section 415 or 417 of this Act
435Person released on conditions under former Act
436Person subject to residence and reporting requirements under former Act
437No deportation liability if deportation prohibited under former Act
438Person subject to Part 4A of former Act
439Certain persons deemed liable for arrest and detention under Part 9
440Detention of person liable for turnaround
441Detention of person beyond 6 months
442Detention under former Act without warrant
443Detention under former Act with warrant
444Reconsiderations not determined before former Act repealed
445Persons eligible for reconsideration before former Act repealed
446Appeals not determined by appeals body (other than Refugee Status Appeals Authority) before former Act repealed
447Persons eligible to appeal to appeals body (other than Refugee Status Appeals Authority) before former Act repealed
448Appeals and matters not determined by Refugee Status Appeals Authority before former Act repealed
449Persons eligible to appeal to Refugee Status Appeals Authority before former Act repealed
450Appeals not determined by court before former Act repealed
451Persons eligible to appeal to court before former Act repealed
452Appeals against, or review proceedings in respect of, Tribunal decisions under this subpart to be made under Part 7
453No new appeal rights created
454Arrangements under former Act for disclosure of immigration information
455Offences
456Offences by employers
457Evidence in proceedings
458Classified information
459Children to have responsible adult to represent their interests
460Special directions
461Delegation of powers of Minister
462Immigration officers
463Immigration officers who may make and cancel removal orders under former Act
464Acts or things done by immigration officer under former Act not required to be repeated
465Exercise of certain powers by customs officers
466Exercise of certain powers by Police
467Refugee status officers
468Forms
469Bonds imposed under former Act
470Sponsorship under former Act
471Files of appeals bodies
472Transitional regulations
473Transitional immigration instructions
474Exercise of certain powers and functions before commencement of certain provisions of this Act
475Principal Act amended
476Cancellation of removal order
477New section 141ABA inserted
141ABADisclosure of information to employers
478Interpretation
Reprint notes
 
1 Title

This Act is the Immigration Act 2009.

2 Commencement

(1)

This Act comes into force on a date to be appointed by the Governor-General by Order in Council, except as provided in subsections (2) to (5).

(2)

Sections 30, 31, 60, 100, 104, 111, 120, 149(1)(e), 278, 283 to 291, 312, and 400(l) come into force on a date to be appointed by the Governor-General by Order in Council (being a date not earlier than the date appointed under subsection (1)); and 1 or more orders may be made appointing different dates for different provisions.

(3)

Section 477 comes into force on a date to be appointed by the Governor-General by Order in Council (being a date not earlier than the second day after the date on which this Act receives the Royal assent).

(4)

Sections 475, 476, and 478 come into force on the day after the date on which this Act receives the Royal assent.

(5)

Section 474 comes into force on the day after the date on which the Immigration Act 2009 Amendment Act 2010 receives the Royal assent.

Section 2(1): remaining sections not in force immediately before 2 am on 29 November 2010 (except sections 30, 31, 60, 100, 104, 111, 120, 149(1)(e), 278, 283–291, 312, and 400(l)) brought into force, at 2 am on 29 November 2010, by clause 2(2) of the Immigration Act 2009 Commencement Order 2010 (SR 2010/185).

Section 2(1): amended, on 9 April 2010, by section 4(1) of the Immigration Act 2009 Amendment Act 2010 (2010 No 10).

Section 2(2): sections 30, 31, and 149(1)(e) brought into force, on 20 December 2010, by clause 2 of the Immigration Act 2009 Commencement Order (No 2) 2010 (SR 2010/410).

Section 2(2): sections 60, 111, 120, and 288–291 brought into force, on 20 October 2011, by clause 2 of the Immigration Act 2009 Commencement Order 2011 (SR 2011/316).

Section 2(2): sections 278, 283–287, and 312 brought into force, on 3 September 2012, by the Immigration Act 2009 Commencement Order 2012 (SR 2012/197).

Section 2(3): section 477 brought into force, on 2 August 2010, by clause 2(1) of the Immigration Act 2009 Commencement Order 2010 (SR 2010/185).

Section 2(5): added, on 9 April 2010, by section 4(2) of the Immigration Act 2009 Amendment Act 2010 (2010 No 10).

Part 1 Preliminary provisions

3 Purpose

(1)

The purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals.

(2)

To achieve this purpose, the Act establishes an immigration system that—

(a)

requires persons who are not New Zealand citizens to—

(i)

hold a visa to travel to New Zealand; and

(ii)

hold a visa and be granted entry permission to stay in New Zealand; and

(b)

provides for the development of immigration instructions (which set rules and criteria for the grant of visas and entry permission) to meet objectives determined by the Minister, which may include objectives such as—

(i)

contributing to the New Zealand workforce through facilitating access to skills and labour; and

(ii)

supporting families; and

(c)

allows for the management of the immigration aspects of border control, by setting requirements that apply to persons arriving in New Zealand or who are intending to arrive in New Zealand; and

(d)

provides a process for implementing specified immigration-related international obligations; and

(e)

includes mechanisms to ensure that those who engage with the immigration system comply with its requirements, including mechanisms that—

(i)

enable immigration officers to gather information in relation to visa holders, employers, and education providers to determine compliance with obligations in respect of the system; and

(ii)

prescribe the system for the deportation of people who are not New Zealand citizens and who fail to comply with immigration requirements, commit criminal offences, or are considered to pose a threat or risk to security; and

(f)

establishes a specialist tribunal to consider appeals against decisions made under this Act and to consider humanitarian appeals; and

(g)

supports the settlement of migrants, refugees, and protected persons.

4 Interpretation

In this Act, unless the context otherwise requires,—

absolute discretion has the meaning given to it in section 11

address for service has the meaning given to it by section 387

administrative error, in relation to the granting of a visa or entry permission, has the meaning given to it in section 8

airport has the meaning given to it in section 2 of the Airport Authorities Act 1966

appeal on humanitarian grounds means an appeal to the Tribunal against liability for deportation on the grounds set out in section 207

appeal on the facts means an appeal against liability for deportation on a ground set out in section 202

appeals body means 1 or more of the following bodies established or continued under the former Act, as the case may be:

(a)

the Residence Review Board:

(b)

the Removal Review Authority:

(c)

the Refugee Status Appeals Authority:

(d)

the Deportation Review Tribunal

approved system means a system, including an electronic system, approved by the chief executive for the purpose of—

(a)

providing information to the chief executive under section 96; or

(b)

notifying a person to whom section 96 applies of a decision of the chief executive under section 97

arrival hall means a place licensed under section 12 of the Customs and Excise Act 1996 for the processing of persons arriving in New Zealand

biometric information, in relation to a person,—

(a)

means any or all of—

(i)

a photograph of all or part of the person’s head and shoulders:

(ii)

the person’s fingerprints:

(iii)

an iris scan; and

(b)

includes a record, whether physical or electronic, of any of the above things

border requirement means a requirement, responsibility, or obligation under any of sections 103 to 106, 119, and 120

carrier, in relation to a craft,—

(a)

means the owner or charterer of the craft; and

(b)

if the owner or charterer is not in New Zealand, includes the agent in New Zealand of the owner or charterer; and

(c)

if there is no agent in New Zealand, includes the person in charge of the craft

certificate of identity

(a)

means a document (other than a passport) issued by the government of any country to any person for the purposes of facilitating that person’s entry into or exit from any country, being a document that—

(i)

purports to establish the identity but not the nationality of that person; and

(ii)

confers on that person a right to enter the country whose government has issued the document; and

(b)

includes—

(i)

any emergency travel document or refugee travel document issued under the Passports Act 1992; and

(ii)

any travel document issued by any international organisation for the time being specified by the Minister for the purpose of this definition

chief executive means—

(a)

the chief executive of the Department:

(b)

when used in relation to a relevant agency, the chief executive of that agency (including, where appropriate, the Commissioner of Police, the Director of Security, the Chief of Defence Force, the General Manager of the Aviation Security Service, and the Director of the Government Communications Security Bureau)

claim means a claim by a person in New Zealand for recognition, as the case may be, as—

(a)

a refugee in New Zealand under the Refugee Convention:

(b)

a protected person in New Zealand under the Convention Against Torture:

(c)

a protected person in New Zealand under the Covenant on Civil and Political Rights

claimant

(a)

means a person who has made a claim; but

(b)

does not include a person whose claim has been finally determined (within the meaning of section 128)

classified information has the meaning given to it by section 7(1)

commercial craft means a craft that travels for a commercial purpose or as part of a commercial operation

compulsion order means an order made by a District Court Judge under section 290(1) requiring a person to allow the collection of specified biometric information from him or her

compulsory education means education that is—

(a)

provided at any primary, intermediate, composite, secondary, or special school (within the meaning of the Education Act 1989), whether state, private, or integrated, or at a partnership school kura hourua (within the meaning of section 2(1) of that Act); and

(b)

provided to a person at any time during the period beginning on the person’s fifth birthday and ending on 1 January following the person’s 19th birthday

conditions include conditions precedent as well as conditions subsequent (whether imposed by an immigration officer, the Minister, or the Tribunal)

contact address has the meaning given to it by section 387A

Convention Against Torture means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 10 December 1984

counsel assisting the court means a person appointed as counsel assisting the court under section 269

course of study

(a)

means—

(i)

any course of tuition or instruction for people entitled to free enrolment and education under section 3 of the Education Act 1989, conducted by any primary, intermediate, composite, secondary, or special school, whether state, private, or integrated, or by a partnership school kura hourua (within the meaning of section 2(1) of that Act); and

(ii)

any other course of tuition or instruction conducted by any school, college, institute, university, or other body or person, and leading to any educational or vocational qualification the attainment of which by any person would be likely to enhance the employment prospects of that person, either generally or in respect of any particular profession or occupation; and

(iii)

in relation to any particular person, any other course of tuition or instruction if the undertaking of that course is the principal reason why that person wishes to be or is in New Zealand; but

(b)

does not include any course of tuition or instruction excluded, or excluded for a particular purpose, from this definition by immigration instructions

Covenant on Civil and Political Rights means the International Covenant on Civil and Political Rights done at New York on 16 December 1966

craft means any form of aircraft, ship, or other vehicle or vessel capable of being or intended to be used to transport any person to or from New Zealand from or to any country outside New Zealand

crew, in relation to a craft,—

(a)

means every person employed or engaged in working or providing a service in or on the craft; and

(b)

includes the person in charge of the craft

customs officer has the meaning given to it by section 2(1) of the Customs and Excise Act 1996

Department means the department of State that, with the authority of the Prime Minister, is for the time being responsible for the administration of this Act

departure hall means a place licensed under section 12 of the Customs and Excise Act 1996 for the processing of persons departing from New Zealand

dependent child, in relation to any person, means a child under 18 years of age who is not married or in a civil union and who is dependent on that person, whether or not the child is a child of that person

deportation liability notice means a notice that states the matters referred to in section 171, and, for the purposes of serving a notice, includes a copy of the notice

deportation order

(a)

means an order containing the information described in section 176 that, when served on a person in accordance with section 175, authorises the person’s deportation to be executed; and

(ab)

for the purposes of serving or executing an order described in paragraph (a), includes a copy of the order; and

(b)

includes an Order in Council made under section 163

designated agency means the agency designated by the Prime Minister under section 264(1) for the purpose of recognising lawyers as special advocates

disembarkation means the process of physically leaving a craft, whether onto land or otherwise

education provider means a provider of a course of study, and—

(a)

in relation to any institution controlled by a board of trustees constituted under Part 9 of the Education Act 1989, means that board:

(b)

in relation to any institution controlled by the chief executive of the department of State that, with the authority of the Prime Minister, is responsible for the administration of the Education Act 1989, means that chief executive:

(c)

in relation to any university, means the appropriate university council:

(d)

in any other case, means the institution, body, or person that or who is entitled to the fees payable by or on behalf of the persons undertaking the course, or that or who would be so entitled if any such fees were payable

employee means a person who does work for an employer (whether under a contract of service or a contract for services)

employer means a person who employs or engages a person to do work, whether under a contract of service or a contract for services

entry permission is the permission that the following persons are required to obtain before being allowed to enter New Zealand:

(a)

a person who is not a New Zealand citizen:

(b)

a New Zealand citizen who is a national of 1 or more other countries and who wishes to enter New Zealand other than as a New Zealand citizen

epidemic management notice means a notice under section 8(1) of the Epidemic Preparedness Act 2006 stating that the application of this Act is modified in order to deal with the practical effects of the outbreak of the disease referred to in the notice

excluded person means a person to whom section 15 or 16 applies

exclusive economic zone of New Zealand has the same meaning as in section 9 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977

execute, in relation to a deportation order, has the meaning described in section 178(2)

former Act means the Immigration Act 1987

government agency

(a)

means—

(i)

a government department named in Schedule 1 of the State Sector Act 1988; or

(ii)

a Crown entity (within the meaning of section 7(1) of the Crown Entities Act 2004); and

(b)

includes the New Zealand Police, the New Zealand Security Intelligence Service, and the Government Communications Security Bureau

grant, in relation to any visa, or entry permission, includes the situation where this Act or any regulations made under this Act deems a grant of the relevant visa, or entry permission, to occur

holder, in relation to a visa granted under this Act,—

(a)

means the person in respect of whom the visa is granted; but

(b)

does not include a person whose visa has expired or been cancelled

immigration control area means an area or place designated as such under section 382

immigration instructions

(a)

means immigration instructions certified under section 22; and

(b)

includes residence instructions, temporary entry instructions, and transit instructions

immigration officer means an immigration officer designated under section 388, and includes the chief executive

immigration status means the status of a person under this Act, being whether the person—

(a)

holds a visa and, if so, what class and type of visa the person holds, and any conditions of the visa; or

(b)

is—

(i)

lawfully in New Zealand and, if so, what class and type of visa the person holds, and any conditions of the visa; or

(ii)

unlawfully in New Zealand (within the meaning of section 9)

imprisonment means any form of detention or custody whereby a person is deprived of liberty for a continuous period, including home detention, detention or custody in a psychiatric institution or hospital, and military custody; but does not include detention or custody under this Act

infringement fee, in relation to an infringement offence, means the fee set in respect of that offence by regulations made under section 400

infringement offence has the meaning given to it by section 359

invitation to apply means an invitation to apply for a visa, as described in section 94

leave New Zealand means, except in the circumstances specified in section 121, leave New Zealand for a destination in another country

mass arrival group has the meaning given to it by section 9A

Minister means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act

New Zealand means any land territory within the territorial limits of New Zealand; and includes—

(a)

the internal waters of New Zealand (as defined in section 4 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977); and

(b)

the Ross Dependency (including any ice shelf); and

(c)

for the purposes of sections 21(a), 22(1)(c)(ii), 73(d), 74(1)(b)(ii), 77(4)(a), 277, 277A, and 382(1), the territorial sea of New Zealand; and

(d)

for the purposes of section 283(2)(a), the area of sea adjacent to New Zealand and bounded by the outer limits of the contiguous zone of New Zealand (as defined in section 4 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977)

New Zealand citizen means a person who has New Zealand citizenship as provided in the Citizenship Act 1977 or the Citizenship (Western Samoa) Act 1982

onshore, in relation to an applicant for a visa, means that the applicant is in New Zealand other than in an immigration control area

operator

(a)

in relation to a port, means—

(i)

the owner of the port; or

(ii)

if the owner is not responsible for the operation or management of the port, the manager of the port or any other person who is, for the time being, responsible for the operation or management of the port:

(b)

in relation to an airport,—

(i)

means a local authority for the time being authorised under section 3 of the Airport Authorities Act 1966 to operate or manage the airport; and

(ii)

includes any person or association of persons or airport company authorised under section 3(3) of the Airport Authorities Act 1966 to exercise the powers or functions of a local authority under that section

passenger, in relation to a craft, means a person, other than a member of the crew, who is carried in or on the craft with the consent of the carrier, or the person in charge, of the craft

passport means a document that is issued by or on behalf of the government of any country and that is recognised by the Government of New Zealand as a passport, being a document that—

(a)

purports to establish the identity and nationality of the holder; and

(b)

confers on the holder the right to enter the country the government of which has issued the document; and

(c)

has not expired

permanent resident means the holder of a permanent resident visa

person in charge, in relation to a craft, means the master, captain, pilot in command, driver, or other person for the time being responsible for the craft

personal service, in relation to any document or notice served or to be served on a person, means personal delivery of the document or notice to that person or, where the person refuses to accept the document or notice, the bringing of the document or notice to that person’s attention

port

(a)

means any defined area of land and water intended or designed to be used either wholly or partly for the berthing, departure, movement, and servicing of ships; and

(b)

includes any buildings, installations, and equipment on or adjacent to any such area used in connection with the port or its administration

prescribed means prescribed by regulations made under this Act

proceedings involving classified information has the meaning given to it in section 7(4)

protected person means a person recognised as a protected person in New Zealand under section 130 or 131

refugee means a person recognised as a refugee in New Zealand under section 126 or 129

refugee and protection officer means a person designated under section 390 as a refugee and protection officer

Refugee Convention

(a)

means the United Nations Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951; and

(b)

includes the Protocol Relating to the Status of Refugees done at New York on 31 January 1967

registered post includes any postal or courier service where delivery to the address is recorded

relevant agency, in relation to any classified information, means any of the following agencies that hold, were the source of, or were provided with, that classified information:

(a)

Aviation Security Service:

(b)

Civil Aviation Authority of New Zealand:

(c)

Department of Corrections:

(d)

Department of Internal Affairs:

(e)

Department of Labour:

(f)

Government Communications Security Bureau:

(g)

Maritime New Zealand:

(h)

Ministry of Agriculture and Forestry:

(i)

Ministry of Fisheries:

(j)

Ministry of Foreign Affairs and Trade:

(k)

New Zealand Customs Service:

(l)

New Zealand Defence Force:

(m)

New Zealand Police:

(n)

New Zealand Security Intelligence Service:

(o)

a government agency established in substitution for or set up to take over any function of a department or agency listed in paragraphs (a) to (n)

residence class visa means a permanent resident visa or a resident visa

residence instructions means immigration instructions certified under section 22 that relate to the grant of residence class visas

resident means the holder of a resident visa

responsible adult means the adult designated or nominated under section 375

restricted temporary entry instructions means temporary entry instructions that require, in relation to the type of visa to which the instructions relate, that any decision made on an application for that type of visa, or on an application for entry permission in relation to that type of visa, must be made in terms of the temporary entry instructions applicable at the time the application for the visa was made, and any discretion exercised must be in terms of those instructions

review proceedings means proceedings—

(a)

by way of an application for review under the Judicature Amendment Act 1972; or

(b)

by way of an application for certiorari, mandamus, or prohibition; or

(c)

by way of an application for a declaratory judgment

security

(a)

means—

(i)

the defence of New Zealand:

(ii)

the protection of New Zealand from acts of espionage, sabotage, and subversion, whether or not they are directed from or intended to be committed in New Zealand:

(iii)

the identification of foreign capabilities, intentions, or activities in or relating to New Zealand that affect adversely New Zealand’s international well-being, reputation, or economic well-being:

(iv)

the protection of New Zealand from activities in or relating to New Zealand that—

(A)

are influenced by any foreign organisation or any foreign person; and

(B)

are clandestine or deceptive, or threaten the safety of any person; and

(C)

affect adversely New Zealand’s international well-being, reputation, or economic well-being:

(v)

the prevention of any terrorist act and of any activity relating to the carrying out or facilitating of any terrorist act:

(vi)

the prevention, investigation, and detection of organised crime, including transnational organised crime; and

(b)

in an international security context, also includes the safety and stability of the international community, through co-operative measures such as international conventions and other arrangements or agreements between countries

special adviser means a person appointed as a special adviser under section 270

special advocate means a lawyer recognised as a special advocate under section 264

special direction means a direction given by the Minister in accordance with section 378

stowaway means a person who is carried in or on a craft without the consent of the carrier, or the person in charge, of the craft

study means undertake a course of study

subsequent claim means a claim (of whatever kind) under Part 5 by a person who has previously made a claim of any kind under that Part (or under Part 6A of the former Act) that has been finally determined (within the meaning of section 128 of this Act or section 129B of the former Act, as the case may be)

temporary entry class visa means a temporary visa, a limited visa, or an interim visa

temporary entry instructions

(a)

means immigration instructions that relate to the grant of temporary entry class visas; and

(b)

includes restricted temporary entry instructions

territorial sea of New Zealand has the same meaning as in section 3 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977

transit instructions means immigration instructions that relate to the grant of transit visas

transit passenger means a person who arrives in New Zealand from another country while in transit to another overseas destination, not intending to enter or remain in New Zealand

transit period means the period prescribed in accordance with section 401(d) for the purpose of section 86A

travelling to New Zealand includes, but is not limited to, travelling to New Zealand from another country in transit to another destination outside New Zealand

Tribunal means the Immigration and Protection Tribunal established by section 217

turnaround means to effect, under section 178(2), the departure from New Zealand of a person to whom section 115 applies, as if the person were a person who had been served with a deportation order

unlawfully in New Zealand, in relation to a person, has the meaning given to it in section 9

visa

(a)

means an entry in the records of the Department—

(i)

made in accordance with section 62; and

(ii)

having the effect set out in section 43; and

(b)

includes—

(i)

any visa of a class specified in section 70; and

(ii)

any visa deemed to be, or treated as being, held under this Act

visa waiver means a waiver under section 69 of the requirement to hold a visa permitting travel to New Zealand

warrant of commitment

(a)

means a warrant of commitment issued under section 317, 318, or 323; and

(b)

includes—

(i)

a mass arrival warrant issued under section 317B (in respect of all or specified members of a mass arrival group); and

(ii)

a further warrant of commitment issued under section 317E(1)(a) (in respect of all or specified members of a mass arrival group)

work

(a)

means any activity undertaken for gain or reward; but

(b)

does not include an activity excluded, or excluded for a particular purpose, from this definition by immigration instructions.

Section 4 address for service: inserted, on 7 May 2015, by section 4(8) of the Immigration Amendment Act 2015 (2015 No 48).

Section 4 chief executive paragraph (b): amended, on 7 May 2015, by section 4(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 4 compulsory education paragraph (a): amended, on 13 June 2013, by section 45(2) of the Education Amendment Act 2013 (2013 No 34).

Section 4 contact address: inserted, on 7 May 2015, by section 4(8) of the Immigration Amendment Act 2015 (2015 No 48).

Section 4 course of study paragraph (a)(i): amended, on 13 June 2013, by section 45(3) of the Education Amendment Act 2013 (2013 No 34).

Section 4 deportation liability notice: amended, on 7 May 2015, by section 4(2) of the Immigration Amendment Act 2015 (2015 No 48).

Section 4 deportation order paragraph (ab): inserted, on 7 May 2015, by section 4(3) of the Immigration Amendment Act 2015 (2015 No 48).

Section 4 mass arrival group: inserted, on 19 June 2013, by section 4(1) of the Immigration Amendment Act 2013 (2013 No 39).

Section 4 New Zealand paragraph (c): amended, on 7 May 2015, by section 4(4) of the Immigration Amendment Act 2015 (2015 No 48).

Section 4 New Zealand address: repealed, on 7 May 2015, by section 4(7) of the Immigration Amendment Act 2015 (2015 No 48).

Section 4 transit passenger: inserted, on 6 November 2015, by section 4(5) of the Immigration Amendment Act 2015 (2015 No 48).

Section 4 transit period: replaced, on 6 November 2015, by section 4(6) of the Immigration Amendment Act 2015 (2015 No 48).

Section 4 warrant of commitment: replaced, on 19 June 2013, by section 4(2) of the Immigration Amendment Act 2013 (2013 No 39).

5 Notifications

(1)

Where this Act or regulations under this Act provide that any notice or other document must be served on or supplied to the Minister, it must be served or supplied in accordance with section 386(1).

(2)

Where this Act or regulations under this Act provide that any notice or other document must be served on or supplied to an immigration officer or a refugee and protection officer, it must be served or supplied in accordance with section 386(2).

(3)

Where this Act or any regulations under this Act provide that any notice or other document must be served on a person other than the Minister or a person referred to in subsection (2), the notice or other document must be served in accordance with section 386A(2).

(4)

Where this Act or any regulations under this Act provide that any notice or other document must be supplied, notified, or in any other way given to a person other than the Minister or a person referred to in subsection (2), the notice or other document must be given or sent to the person in accordance with section 386A(3).

(5)

Subsections (1) to (4) are subject to sections 386(8) and 387B.

Section 5(3): replaced, on 7 May 2015, by section 5 of the Immigration Amendment Act 2015 (2015 No 48).

Section 5(4): replaced, on 7 May 2015, by section 5 of the Immigration Amendment Act 2015 (2015 No 48).

Section 5(5): inserted, on 7 May 2015, by section 5 of the Immigration Amendment Act 2015 (2015 No 48).

6 How periods of time to be calculated

(1)

A period of time prescribed in this Act for the making of an application under the Act must be calculated excluding any day that is—

(a)

a public holiday or a Department holiday determined by the chief executive; and

(b)

not a Saturday or Sunday.

(2)

A period of time prescribed in this Act for the lodging of an appeal to the Tribunal must be calculated excluding—

(a)

any day that is—

(i)

a public holiday or a Department holiday determined by the chief executive; and

(ii)

not a Saturday or Sunday; or

(b)

if the Department is not the department referred to in clause 5 of Schedule 2, any day that is a public holiday and not a Saturday or Sunday, and—

(i)

any day in the period beginning on 25 December in a year and ending on 2 January in the following year; and

(ii)

if 1 January falls on a Friday, the following Monday; and

(iii)

if 1 January falls on a Saturday or a Sunday, the following Monday and Tuesday; and

(iv)

if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday.

(3)

Subsections (1) and (2) do not apply for the purposes of calculating working days under section 194(2) or 195(3).

Section 6(2)(b)(iii): replaced, on 1 January 2014, by section 8 of the Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 (2013 No 19).

Section 6(2)(b)(iv): inserted, on 1 January 2014, by section 8 of the Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 (2013 No 19).

7 Meaning of classified information and proceedings involving classified information

(1)

In this Act, classified information means information that the chief executive of a relevant agency certifies in writing cannot be disclosed under this Act (except as expressly provided for) because—

(a)

the information is information of a kind specified in subsection (2); and

(b)

disclosure of the information would be disclosure of a kind specified in subsection (3).

(2)

Information falls within subsection (1)(a) if it—

(a)

might lead to the identification, or provide details, of the source of the information, the nature, content, or scope of the information, or the nature or type of the assistance or operational methods available to the relevant agency; or

(b)

is about particular operations that have been undertaken, or are being or are proposed to be undertaken, in pursuance of any of the functions of the relevant agency; or

(c)

has been provided to the relevant agency by the government of another country, an agency of a government of another country, or an international organisation, and is information that cannot be disclosed by the relevant agency because the government, agency, or organisation from which the information has been provided will not consent to the disclosure.

(3)

Disclosure of information falls within subsection (1)(b) if the disclosure would be likely—

(a)

to prejudice the security or defence of New Zealand or the international relations of New Zealand; or

(b)

to prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by the government of another country, an agency of a government of another country, or an international organisation; or

(c)

to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial; or

(d)

to endanger the safety of any person.

(4)

In this Act, proceedings involving classified information means any proceedings in which classified information—

(a)

was relied on in making the decision appealed against or subject to review proceedings (including a decision of the Tribunal); or

(b)

is first raised or proposed to be raised in the course of an application to the Tribunal or on appeal or in review proceedings; or

(c)

is raised in an application under Part 9.

(5)

A chief executive of a relevant agency must not delegate to any person the ability to certify information as classified information under subsection (1).

(6)

Subsection (5) does not limit section 40 of the State Sector Act 1988.

8 Meaning of granting visa or entry permission as result of administrative error

(1)

In this Act, a visa is granted as a result of an administrative error if—

(a)

it is granted to a New Zealand citizen (unless the person is a New Zealand citizen entering New Zealand in the circumstances described in section 13(4)(b)); or

(b)

it is granted to an excluded person (unless section 17 applies); or

(c)

the person granting it intended to grant a visa of a type other than the one that was actually granted; or

(d)

it is granted for a period exceeding the period specified in regulations or immigration instructions for visas of that type (unless the Minister or an immigration officer deliberately and properly granted it as an exception to the immigration instructions); or

(e)

it is granted on the basis of the person holding a visa that was granted as a result of an administrative error; or

(f)

it is granted in contravention of—

(i)

a special direction; or

(ii)

immigration instructions (unless the Minister or an immigration officer deliberately and properly granted it as an exception to immigration instructions); or

(iii)

an instruction of a kind referred to in section 378(7).

(2)

In this Act, entry permission is granted as a result of an administrative error if—

(a)

it is granted to a New Zealand citizen (unless the person is a New Zealand citizen entering New Zealand in the circumstances described in section 13(4)(b)); or

(b)

it is granted to an excluded person (unless section 17 applies); or

(c)

it is granted in contravention of—

(i)

a special direction; or

(ii)

immigration instructions (unless the Minister or an immigration officer deliberately and properly granted it as an exception to immigration instructions); or

(d)

it is granted on the basis of, or in conjunction with,—

(i)

a visa that was itself granted on the basis of an administrative error; or

(ii)

a visa that was granted for a period exceeding the period specified in immigration instructions for a visa of that type (unless the Minister or an immigration officer deliberately and properly granted the visa as an exception to the immigration instructions); or

(iii)

a visa of a class or type other than that intended to be granted.

Compare: 1987 No 74 ss 19(4), 32(4)

Section 8(1)(d): amended, on 7 May 2015, by section 6 of the Immigration Amendment Act 2015 (2015 No 48).

9 Meaning of unlawfully in New Zealand (in relation to person who is not New Zealand citizen)

(1)

In this Act, a person who is not a New Zealand citizen is unlawfully in New Zealand if the person is in New Zealand but—

(a)

is not the holder of a visa granted under this Act; or

(b)

has not been granted entry permission under this Act.

(2)

A person’s status as being unlawfully in New Zealand is calculated—

(a)

as starting on the date the person arrived in New Zealand, if the person has never been lawfully in New Zealand since his or her arrival; or

(b)

as starting on the day after the date on which the person’s visa expired or was cancelled without another visa being granted; or

(ba)

as starting on the day after the date on which a permit granted to the person under the former Act expired or was revoked without another permit being granted under that Act; or

(c)

in accordance with sections 373 and 374, if—

(i)

the person was born in New Zealand on or after 1 January 2006; and

(ii)

he or she is not a New Zealand citizen.

Section 9(2)(ba): inserted, on 7 May 2015, by section 7 of the Immigration Amendment Act 2015 (2015 No 48).

9A Meaning of mass arrival group

(1)

In this Act, mass arrival group means a group of more than 30 people, each of whom falls within 1 or more of the classes of person described in paragraphs (a) to (f) of section 115(1), who arrive in New Zealand—

(a)

on board the same craft; or

(b)

on board the same group of craft at the same time; or

(c)

on board the same group of craft and within such a time period or in such circumstances that each person arrived, or intended to arrive, in New Zealand as part of the group.

(2)

In subsection (1), craft does not include a craft travelling to New Zealand in the course of a scheduled international service (within the meaning of section 96(4)).

Section 9A: inserted, on 19 June 2013, by section 5 of the Immigration Amendment Act 2013 (2013 No 39).

10 Meaning of deported

(1)

For the purposes of this Act, a person is deported from a country if the person leaves the country (whether or not at the expense of the government of the country) and an order for the person’s departure made by the government of the country, an authorised official of the country, or a judicial authority in the country, is in force.

(2)

For the purposes of this Act, a person is not deported from a country merely because the person is surrendered to another country in accordance with a request for the extradition of the person to that country.

(3)

For the purposes of this Act, a person is deported from New Zealand if—

(a)

the person leaves New Zealand (whether or not at the expense of the Government of New Zealand)—

(i)

on or after the date on which a deportation order may be served on the person under section 175A; or

(ii)

after a deportation order has been served on the person; or

(iii)

while he or she is subject to a prohibition on entry to New Zealand under section 179 or 180; or

(b)

the person is served with a deportation order when he or she is outside New Zealand; or

(c)

the person was deported from New Zealand under the former Act.

Section 10(3)(a)(i): amended, on 7 May 2015, by section 8 of the Immigration Amendment Act 2015 (2015 No 48).

11 Meaning of absolute discretion of the decision maker

(1)

If a provision of this Act provides that a matter or decision is in the absolute discretion of the decision maker concerned, it means that—

(a)

the matter or decision may not be applied for; and

(b)

if a person purports to apply for the matter or decision, there is no obligation on the decision maker to—

(i)

consider the purported application; or

(ii)

inquire into the circumstances of the person or any other person; or

(iii)

make any further inquiries in respect of any information provided by, or in respect of, the person or any other person; and

(c)

whether the purported application is considered or not,—

(i)

the decision maker is not obliged to give reasons for any decision relating to the purported application, other than the reason that this section applies; and

(ia)

privacy principle 6 (which relates to access to personal information and is set out in section 6 of the Privacy Act 1993) does not apply to any reasons for any decision relating to the purported application; and

(ii)

section 27 of this Act and section 23 of the Official Information Act 1982 do not apply in respect of the purported application.

(2)

Subsection (1)(c)(ia) applies to any decision made in relation to a purported application, whether the decision was made before or after the commencement of that subsection.

Compare: 1987 No 74 ss 7(4), 12(4), 17(2), 25(3), 34B(3), 35A(2), 58(5), 130(6)

Section 11(1)(c)(ia): inserted, on 7 May 2015, by section 9(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 11(2): inserted, on 7 May 2015, by section 9(2) of the Immigration Amendment Act 2015 (2015 No 48).

12 Act binds the Crown

This Act binds the Crown.

Part 2 Core provisions and matters in relation to decision making

Eligibility to be in or enter New Zealand

13 New Zealand citizens may enter and be in New Zealand at any time

(1)

For the purposes of this Act, every New Zealand citizen has, by virtue of his or her citizenship, the right to enter and be in New Zealand at any time.

(2)

However, to establish his or her right to enter New Zealand, a New Zealand citizen must prove his or her citizenship and establish his or her identity by complying with border requirements.

(3)

Nothing in this Act (other than subsection (2)) abrogates the right declared in subsection (1), and—

(a)

no provision of this Act that is inconsistent with that right applies to a New Zealand citizen; and

(b)

no New Zealand citizen is liable under this Act to deportation from New Zealand in any circumstances.

(4)

Without limiting subsection (3), no New Zealand citizen—

(a)

requires a visa or entry permission; or

(b)

may hold a visa, or be granted entry permission, except a New Zealand citizen who—

(i)

is a national of 1 or more other countries; and

(ii)

wishes to enter New Zealand other than as a New Zealand citizen; and

(iii)

has not been granted New Zealand citizenship, been registered as a New Zealand citizen by descent under section 7(2) of the Citizenship Act 1977, or been issued with an evidentiary certificate under section 21 of the Citizenship Act 1977 confirming that he or she is a New Zealand citizen.

Compare: 1987 No 74 s 3

14 Persons other than New Zealand citizens must hold visa to travel to and be in New Zealand

(1)

A person who is not a New Zealand citizen may—

(a)

travel to New Zealand only if the person—

(i)

is the holder of a visa granted under this Act and the travel is consistent with the conditions of the visa; or

(ii)

is a person to whom a visa waiver applies (whether authorised by regulation or special direction); and

(b)

enter and be in New Zealand only if the person is the holder of a visa granted under this Act and he or she has been granted entry permission.

(2)

To avoid doubt, the fact that an application for a visa has been made by or for any person who is onshore does not—

(a)

render the person’s presence in New Zealand lawful; or

(b)

give the person a right to remain in New Zealand while the application is considered; or

(c)

give the person a right to apply for or be granted any other visa pending determination of the application; or

(d)

inhibit any deportation procedures under this Act that may apply to the person.

(3)

This Act applies subject to—

(a)

sections 90 to 96 of the Extradition Act 1999; and

(b)

sections 150 to 155 of the International Crimes and International Criminal Court Act 2000.

Compare: 1987 No 74 s 4

Excluded persons

15 Certain convicted or deported persons not eligible for visa or entry permission to enter or be in New Zealand

(1)

No visa or entry permission may be granted, and no visa waiver may apply, to any person—

(a)

who, at any time (whether before or after the commencement of this section), has been convicted of an offence for which the person has been sentenced to imprisonment for a term of 5 years or more, or for an indeterminate period capable of running for 5 years or more; or

(b)

who, at any time in the preceding 10 years (whether before or after the commencement of this section), has been convicted of an offence for which the person has been sentenced to imprisonment for a term of 12 months or more, or for an indeterminate period capable of running for 12 months or more; or

(c)

who is subject to a period of prohibition on entry to New Zealand under section 179 or 180; or

(d)

who at any time (whether before or after the commencement of this section) has been removed or deported from New Zealand under any enactment; or

(e)

who is excluded from New Zealand under any enactment; or

(f)

who has, at any time, been removed, excluded, or deported from another country.

(2)

Paragraphs (a) and (b) of subsection (1) apply—

(a)

whether the sentence is of immediate effect or is deferred or is suspended in whole or in part:

(b)

where a person has been convicted of 2 or more offences on the same occasion or in the same proceedings, and any sentences of imprisonment imposed in respect of those offences are cumulative, as if the offender had been convicted of a single offence and sentenced for that offence to the total of the cumulative sentences:

(c)

where a person has been convicted of 2 or more offences, and a single sentence has been imposed in respect of those offences, as if that sentence had been imposed in respect of a conviction for a single offence.

(3)

Subsection (1)(d) does not apply to a person who—

(a)

has been deported from New Zealand under section 158 of the Shipping and Seamen Act 1952; or

(b)

was subject to a removal order under section 54 of the former Act, if the removal order has expired or been cancelled; or

(c)

was deported under this Act but is not, or is no longer, subject to a period of prohibition on entry under section 179 or 180; or

(d)

has been deported from New Zealand under section 20 of the Immigration Act 1964 on the grounds of being convicted of an offence against section 14(5) or 15(5) of that Act.

(4)

This section is subject to section 17.

Compare: 1987 No 74 s 7(1)(a)–(d), (2)

Section 15(3)(c): replaced, on 7 May 2015, by section 10 of the Immigration Amendment Act 2015 (2015 No 48).

16 Certain other persons not eligible for visa or entry permission

(1)

No visa or entry permission may be granted, and no visa waiver may apply, to any person who—

(a)

the Minister has reason to believe—

(i)

is likely to commit an offence in New Zealand that is punishable by imprisonment; or

(ii)

is, or is likely to be, a threat or risk to security; or

(iii)

is, or is likely to be, a threat or risk to public order; or

(iv)

is, or is likely to be, a threat or risk to the public interest; or

(b)

is a member of a terrorist entity designated under the Terrorism Suppression Act 2002.

(2)

This section is subject to section 17.

Compare: 1987 No 74 s 7(1)(e)–(i)

17 Exceptions to non-eligibility for visa or entry permission

(1)

Despite sections 15 and 16, a visa and entry permission may be granted to any person—

(a)

in accordance with a special direction; or

(b)

in accordance with section 83.

(2)

Despite sections 15 and 16,—

(a)

entry permission must be granted to—

(i)

the holder of a permanent resident visa; and

(ii)

the holder of a resident visa granted in New Zealand; and

(iii)

the holder of a resident visa arriving in New Zealand for a second or subsequent time as the holder of the visa:

(b)

a visa and entry permission must be granted to a person who is for the time being entitled to any immunity from jurisdiction by or under the Diplomatic Privileges and Immunities Act 1968 (other than a person referred to in section 10D(2)(d) of that Act) or the Consular Privileges and Immunities Act 1971.

(3)

A decision to grant a visa and entry permission under subsection (1) is in the absolute discretion of the decision maker.

Compare: 1987 No 74 ss 7(3), (4), 11(1)(a)

Persons unlawfully in New Zealand

18 Obligation of persons unlawfully in New Zealand to leave New Zealand

(1)

A person who is unlawfully in New Zealand has an obligation to leave New Zealand.

(2)

The obligation under subsection (1) arises whether or not the person is aware of the obligation, or of the implications of not meeting it, and—

(a)

that obligation, and any liability of the person to deportation or other action under this Act, is not affected by any failure or alleged failure of the chief executive to communicate the obligation and related implications under section 19; but

(b)

nothing in paragraph (a) prevents any action from being brought in respect of such a failure or alleged failure in proceedings that are not directed towards preventing the deportation of any person.

Compare: 1987 No 74 s 45

19 Duty of chief executive to communicate obligation to leave New Zealand

(1)

The chief executive must communicate to persons who are seeking visas to come to New Zealand or visas to be in New Zealand—

(a)

the obligation to leave New Zealand created by section 18; and

(b)

that a person who fails to meet that obligation is liable for deportation.

(2)

Without limiting the means by which the chief executive may communicate those matters, he or she must provide the relevant information required by subsection (1)—

(a)

at offices where visas are granted, by way of notices that can be readily seen by persons to whom it is likely to be of relevance:

(b)

on application forms for visas:

(c)

in immigration control areas, by way of notices that can be readily seen by all arriving temporary entrants:

(d)

on informational material provided by the Department to persons who are interested in coming to New Zealand.

(3)

The chief executive may communicate the information in 1 or more languages as he or she thinks fit.

(4)

Any temporary entry class visa granted to any person that is evidenced by an endorsement in the holder’s passport or certificate of identity must contain words to the effect that the person must leave New Zealand before expiry of the visa, or face deportation.

Compare: 1987 No 74 s 46

Section 19(2)(c): amended, on 7 May 2015, by section 11 of the Immigration Amendment Act 2015 (2015 No 48).

20 No right for person unlawfully in New Zealand to apply for visa

No person who is unlawfully in New Zealand may apply for a visa and, where any such person purports to apply for a visa, it is a matter for the absolute discretion of the Minister.

Compare: 1987 No 74 ss 17(2), 25(3)

21 No right for person unlawfully in New Zealand to work or study

A person who is unlawfully in New Zealand may not—

(a)

work in New Zealand or in the exclusive economic zone of New Zealand; or

(b)

study in New Zealand, except in compulsory education (but subject to the Education Act 1989).

Immigration instructions

22 Immigration instructions

(1)

The Minister may certify immigration instructions relating to—

(a)

residence class visas, temporary entry class visas, and transit visas:

(b)

entry permission:

(c)

conditions relating to resident visas, temporary entry class visas, and transit visas, including, without limitation, conditions relating to—

(i)

travel to New Zealand:

(ii)

the holder’s ability to work or study in New Zealand or in the exclusive economic zone of New Zealand:

(d)

the periods for which each type of temporary entry class visa may be granted:

(e)

the types of temporary visas that may be granted, and the name and description of each type.

(2)

Immigration instructions take effect from—

(a)

the date they are certified; or

(b)

a date specified in the instructions as being the date on which they come into effect, which must not be earlier than the date they are certified.

(3)

Applications for temporary entry class visas or transit visas that are made before any relevant immigration instructions take effect may be determined in accordance with those immigration instructions when those instructions take effect.

(4)

Subsection (3) does not apply to applications for temporary entry class visas subject to restricted temporary entry instructions.

(5)

The kinds of matters that may constitute immigration instructions for the purposes of this Act are as follows:

(a)

any general or specific objectives of immigration policy:

(b)

any rules or criteria for determining the eligibility of a person for the grant of a visa of any class or type, or for entry permission, being rules or criteria relating to the circumstances of that person or of any other person (a third party) whose circumstances are relevant to the person’s eligibility, including (without limitation) rules and criteria about how any status or approval may be obtained or lost by the third party:

(c)

any indicators, attributes, or other relevant information or matters that may or must be taken into account in assessing a person’s eligibility for a visa or entry permission:

(d)

any statement of, or rules or criteria or process for determining, the number or categories or ranking of persons or classes of persons whose applications for visas of any class or type or entry permission may be granted at any particular time or over any particular period:

(e)

any rules or criteria for the lapsing of applications in respect of which no decision to grant a visa has been made:

(f)

any matters relevant to balancing individual eligibility for a visa or entry permission against the overall objectives or requirements of immigration instructions:

(g)

any requirements relating to documentation, consultation, or other evidence or information required to assess a person’s eligibility for a visa or entry permission:

(h)

any statement of the conditions or types of conditions that may be imposed upon a visa of any particular class or type, and the circumstances in which or classes of persons in relation to whom the conditions may be imposed:

(i)

the nature and extent of the discretion that immigration officers may exercise in making a decision on any visa.

(6)

Without limiting subsection (5), any rules or criteria relating to eligibility for a visa or entry permission—

(a)

may include matters relating to—

(i)

health:

(ii)

character:

(iii)

the immigration status of applicants for visas (whether currently or at any time in the past):

(iv)

sponsorship:

(v)

the provision of bonds:

(b)

may, in respect of any 1 or more specified classes or categories of person who wish to apply for a visa,—

(i)

include a requirement that persons of that class or category may apply for a visa only if invited to do so by the Minister or an immigration officer:

(ii)

stipulate any period for which an expression of interest under section 92 will remain current:

(iii)

set or indicate rules, criteria, or other relevant matters of the kinds specified in subsection (5)(a) to (g) that will or may apply for the purpose of determining whether an invitation to apply for a visa should be granted to any such person:

(iv)

stipulate any time frame, or any method for determining the time frame, within which the relevant application must be made following the issue of an invitation to apply for a visa.

(7)

Any conditions referred to in subsection (5)(h) that relate to resident visas (other than conditions relating to travel) must specify the maximum period, not exceeding 5 years, for which they may be imposed.

(8)

Immigration instructions certified by the Minister under subsection (1)—

(a)

are statements of government policy:

(b)

are neither legislative instruments nor disallowable instruments for the purposes of the Legislation Act 2012 and do not have to be presented to the House of Representatives under section 41 of that Act.

Compare: 1987 No 74 s 13B

Section 22(5)(b): amended, on 7 May 2015, by section 12 of the Immigration Amendment Act 2015 (2015 No 48).

Section 22(8)(b): replaced, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).

23 Immigration instructions classified as residence instructions, temporary entry instructions, or transit instructions

(1)

The Minister must classify immigration instructions as—

(a)

residence instructions; or

(b)

temporary entry instructions (and, if appropriate, as restricted temporary entry instructions); or

(c)

transit instructions.

(2)

To avoid doubt, any temporary entry instructions are not residence instructions, regardless of whether the granting of a visa or entry permission under those instructions may affect eligibility for, or otherwise relate to, the grant of a residence class visa.

24 Immigration instructions for lapsing of applications for visas

(1)

The Minister may certify in accordance with section 22 rules or criteria for the lapsing of applications in respect of which no decision to grant a visa has been made, or is likely to be made,—

(a)

within any stipulated period or by any stipulated date; or

(b)

by the date on which any relevant quota or limit set under immigration instructions for any particular period is reached; or

(c)

by any other date on which some other specified event occurs or, as the case may be, has not occurred.

(2)

Rules and criteria set under this section—

(a)

may differ for different classes or categories of applications:

(b)

may specify any stage of processing of an application that must be reached within any stipulated period or by any stipulated date if the application is not to lapse.

(3)

The question whether an application meets any rules or criteria for lapsing set under this section is a matter for the discretion of the Minister or an immigration officer, and—

(a)

no appeal lies against the decision of the Minister or the officer concerned, or the lapsing of the application, whether to the Minister, the Tribunal, a court, or otherwise; and

(b)

no review proceedings may be brought in any court in respect of—

(i)

the lapsing of an application for a visa under rules or criteria set under this section; or

(ii)

the lapsing of an expression of interest in obtaining an invitation to apply for a visa.

(4)

Any decision that an application for a residence class visa, or a temporary entry class visa of a type subject to restricted temporary entry instructions, will lapse must be made in accordance with the rules and criteria applicable at the time the application was made.

(5)

If an application lapses, no further processing or decision in respect of that application is required.

(6)

If an application lapses in accordance with rules and criteria set under this section, the chief executive must refund any application fee paid in respect of the application to the person who paid it, or a person authorised by that person to receive it.

(7)

Nothing in this Act or in any other law or enactment entitles a person whose application has lapsed to recover from the Minister or the Department or any immigration officer any costs associated with the application, or any costs, damages, or compensation associated with the lapsing of the application, other than the application fee refundable under subsection (6).

(8)

In this section (except subsections (6) and (7)), application includes an expression of interest under section 92 in obtaining an invitation to apply.

Compare: 1987 no 74 s 13BB

25 Publication of immigration instructions

(1)

The chief executive must publish immigration instructions.

(2)

The chief executive must ensure that copies of immigration instructions are available or readily obtainable for inspection, free of charge, at—

(a)

offices of the Department; and

(b)

New Zealand government offices overseas that deal with immigration matters.

(3)

Nothing in subsection (2) requires the making available of information that could properly be withheld in accordance with the provisions of the Official Information Act 1982, were a request to be made for the information under that Act.

Compare: 1987 No 74 s 13A

Processing claims and applications for visas and entry permission

26 How claims and applications for visas and entry permission processed

(1)

The order and manner of processing any application for a visa or entry permission is a matter for the discretion of the Minister or an immigration officer.

(2)

Subsection (1) applies unless immigration instructions that particularly relate to the order or manner of processing applications for residence class visas, temporary entry class visas, or transit visas require otherwise.

(3)

The order and manner of processing any claim is a matter for the discretion of a refugee and protection officer.

(3A)

Subsection (3) applies unless regulations made under section 400 require otherwise.

(4)

However, the chief executive may give general instructions to immigration officers and refugee and protection officers on the order and manner of processing any application or claim, or specified classes of application or claim, and, if so, an immigration officer or a refugee and protection officer must process an application or claim in accordance with those instructions.

(5)

In giving any instructions, the chief executive may have regard to such matters as the chief executive thinks fit.

(6)

General instructions may apply to any or all applications or claims regardless of the fact that—

(a)

the general instructions may be different from those existing at the time that the applications or claims were made; or

(b)

the general instructions may result in applications or claims being processed in a different order or manner than would otherwise have occurred.

(7)

The question whether an application or claim is processed in an order and manner consistent with any general instructions is a matter for the discretion of the immigration officer or refugee and protection officer concerned, and—

(a)

no appeal lies against his or her decision, whether to the Minister, the Tribunal, a court, or otherwise; and

(b)

no review proceedings may be brought in any court in respect of—

(i)

any general instructions; or

(ii)

the application of any general instructions; or

(iii)

any failure by the Minister or an immigration officer to process, or to continue to process, an application; or

(iv)

any decision by the Minister or an immigration officer to process (including a decision to continue to process), or any decision not to process (including a decision not to continue to process), an application.

(8)

The chief executive may make arrangements for providing assistance to the Minister, immigration officers, and refugee and protection officers in processing applications and claims.

(9)

To avoid doubt, general instructions given under this section—

(a)

are matters of rules and practice of the Department; and

(b)

are not immigration instructions.

(10)

To avoid doubt, nothing in this Act, or in any other law or enactment, requires an immigration officer or a refugee and protection officer to process an application or claim in any particular order or manner unless required to do so by—

(a)

general instructions given under this section; or

(b)

immigration instructions that particularly relate to the order or manner of processing applications for residence class visas, temporary entry class visas, or transit visas; or

(c)

regulations made under section 400.

Compare: 1987 No 74 s 13BA

Section 26(3A): inserted, on 19 June 2013, by section 6(1) of the Immigration Amendment Act 2013 (2013 No 39).

Section 26(10)(b): amended, on 19 June 2013, by section 6(2) of the Immigration Amendment Act 2013 (2013 No 39).

Section 26(10)(c): inserted, on 19 June 2013, by section 6(3) of the Immigration Amendment Act 2013 (2013 No 39).

Reasons for decisions

27 Reasons for decisions must be given if visa or entry permission refused to certain persons

(1)

Except as otherwise provided in this Act, where a person who applied for a visa or entry permission onshore or in an immigration control area so requests, an immigration officer (or, where the decision is the Minister’s, the Minister) must give the reasons for any decision to—

(a)

refuse to grant a visa to the person; or

(b)

refuse to grant to the person a visa of a particular type; or

(c)

refuse to grant entry permission to the person.

(2)

The reasons must—

(a)

be given in writing; and

(b)

contain the information required under section 23 of the Official Information Act 1982 as if the reasons were given in response to a request to which that section applies.

(3)

Subsection (1) is subject to section 40(3)(e) and (f).

Compare: 1987 No 74 s 36

Automated decision making and biometric information

28 Automated decision making in relation to visas, etc

(1)

An automated electronic system that applies criteria predetermined in accordance with immigration instructions may be used by the Department to—

(a)

rank an expression of interest:

(b)

process, grant, or refuse to grant an invitation to apply for a visa:

(c)

process an application for, grant (with or without conditions), or refuse to grant a visa:

(d)

process an application for, grant, or refuse to grant entry permission.

(2)

An automated electronic system may be used by the Department to process an application for, grant (with or without conditions), or refuse to grant an interim visa.

(3)

Conditions imposed on visas granted by an automated electronic system may only be conditions that are specified in immigration instructions for a visa of the relevant class or type.

(4)

However, nothing in this section prevents an immigration officer or the Minister from imposing further conditions, or varying or cancelling conditions under any of sections 50 to 55, on or in relation to a visa granted by way of an automated electronic system.

(5)

Where a decision to grant or refuse to grant a visa or entry permission, or to issue or refuse to issue an invitation to apply for a visa, is made by way of an automated electronic system, that decision must for all purposes be treated as a decision of an immigration officer who is authorised to make the decision under this Act.

29 Automated decision making in advance passenger processing

The chief executive may make a decision under section 97(1) by means of an automated electronic system that analyses the information (if any) about a person that is held by the chief executive or to which the chief executive has access using criteria predetermined by the chief executive.

29A Use of automated system to confirm New Zealand citizenship

(1)

An automated electronic system that applies criteria predetermined by the chief executive may be used, for the purposes of this Act, to confirm a person’s status as a New Zealand citizen.

(2)

The automated electronic system may be used to confirm a person’s status as a New Zealand citizen only if there is available at least 1 other way of confirming the person’s status, and that other way involves confirmation by a person.

(3)

A determination made using an automated electronic system must for all purposes be treated as a determination made by a person who is authorised to make the determination under this Act.

Section 29A: inserted, on 7 May 2015, by section 13 of the Immigration Amendment Act 2015 (2015 No 48).

30 Use of biometric information in decision making

Biometric information required from persons in accordance with this Act may be used to—

(a)

establish a record of a person’s identity; or

(b)

establish or verify a person’s identity; or

(c)

assist in decision making under this Act.

31 Collection and storage of biometric information

(1)

Biometric information collected under this Act may be collected, using an automated system or otherwise, by—

(a)

an immigration officer or a refugee and protection officer; or

(b)

an agent or person on behalf of an immigration officer or a refugee and protection officer.

(2)

Biometric information must be dealt with in accordance with the Privacy Act 1993.

(3)

Subsection (2) is for the avoidance of doubt.

32 Department to undertake privacy impact assessment

(1)

The Department must complete a privacy impact assessment in respect of the collection and handling of biometric information under this Act to—

(a)

identify the potential effects that the Act may have on personal privacy; and

(b)

examine how any detrimental effects on privacy might be lessened.

(2)

The Department must consult the Privacy Commissioner—

(a)

on the terms of reference developed for the assessment; and

(b)

when completing the assessment.

(3)

The Department must review its privacy impact assessment if changes are made to this Act, regulations made under it, or operational policy in respect of the collection or handling of biometric information and, if the review establishes that new or increased privacy impacts have resulted from the changes, must—

(a)

amend or replace the privacy impact assessment; and

(b)

consult the Privacy Commissioner on the amended or replacement assessment.

(4)

The Department must ensure the current privacy impact assessment is—

(a)

available on the Department’s Internet site; and

(b)

available or readily obtainable for inspection, free of charge, at—

(i)

offices of the Department; and

(ii)

New Zealand government offices overseas that deal with immigration matters.

(5)

Nothing in subsection (4) requires the making available of information that could properly be withheld in accordance with the provisions of the Official Information Act 1982, were a request to be made for the information under that Act.

Reliance on classified information in decision making

33 Classified information relating to security or criminal conduct may be relied on in decision making

(1)

Classified information may be relied on in making decisions or determining proceedings under this Act if the Minister determines that the classified information relates to matters of security or criminal conduct.

(2)

If subsection (1) applies, the Minister may—

(a)

rely on the information to make a decision under Part 3, 4, or 6; or

(b)

direct that the information be provided to a refugee and protection officer (who has been authorised by the chief executive to make decisions under Part 5 relying on classified information) so that the officer may rely on it to make—

(i)

a decision under Part 5; or

(ii)

an application to the Tribunal under that Part; or

(c)

refer the information to the Tribunal or a court, as the case may be, if the information is first to be relied on—

(i)

in an appeal to the Tribunal or the court; or

(ii)

in an application to the Tribunal; or

(iii)

in review proceedings; or

(d)

refer the information to the chief executive so that he or she may make an application for a warrant of commitment, or an application or a response to an application for review or release, in accordance with section 325.

(3)

Sections 34 to 42 apply, as appropriate, when decisions are made relying on classified information to which subsection (1) applies.

(4)

Sections 240 to 244 and 252 to 270 apply to proceedings involving classified information to which subsection (1) applies.

34 Minister may receive briefing

(1)

Where classified information may be relevant to a decision under this Act,—

(a)

the Minister may request an oral or a written briefing from the chief executive of the relevant agency; and

(b)

the Minister may seek the assistance of such security-cleared assistants as he or she thinks fit; and

(c)

the content of the briefing is to be determined by the chief executive of the relevant agency.

(2)

No person may be called to give evidence in any court or tribunal in relation to the content of the briefing or anything coming to his or her knowledge as a result of the briefing (including any record of an oral briefing), except as provided in sections 241(1) and 259(1).

35 Protection of classified information

(1)

Classified information relied on for the purpose of making any decision or determining any proceedings under this Act must be kept confidential and must not be disclosed, except as provided in sections 241(1), 259(1), 267(4), 269(4), and 270(3).

(2)

Subsection (1)—

(a)

does not limit or affect the application of the Ombudsmen Act 1975, the Official Information Act 1982, or the Privacy Act 1993; but

(b)

otherwise applies despite any other enactment or rule of law to the contrary.

(3)

Neither the Tribunal nor any court may require or compel the chief executive of the relevant agency, the Minister, or any other person to disclose any classified information in any proceedings under this Act (but without derogating from sections 241(1) and 259(1)).

36 Classified information must be balanced

(1)

The chief executive of a relevant agency who provides classified information to the Minister under this Act must ensure that—

(a)

the information is provided in a manner that does not, by reason of the omission of any other relevant classified or non-classified information, give a misleading view of the information supplied; and

(b)

any classified or non-classified information that is favourable to the person subject to the decision or proceedings is also provided; and

(c)

any further classified information that becomes available and that is relevant to the decision or proceedings is provided.

(2)

The obligation to provide further information ceases on the date—

(a)

the decision concerned is made:

(b)

a decision on the proceedings concerned is made.

37 Withdrawal or updating of classified information

(1)

The chief executive of the relevant agency may at any time withdraw, update, or add to all or any part of any classified information provided to the Minister under this Act.

(2)

If the classified information is updated or added to, the Minister must make a further determination under section 33(1) on whether the information may be relied on.

(3)

If the Minister determines that the information may be—

(a)

relied on before the Minister makes a decision under Part 3, 4, or 6, the Minister must, if the information is relevant to the decision being made, take that new or updated information into account in making the decision:

(b)

relied on before a refugee and protection officer makes a decision under Part 5, the officer must, if the information is relevant to the decision being made, take the new or updated information into account in making the decision:

(c)

raised in proceedings involving classified information,—

(i)

the Tribunal or court must treat the new or updated information in the same way as classified information originally provided to it under section 241(1) or 259(1); and

(ii)

the Tribunal must determine in relation to the new or updated information the matters set out in section 243(1)(a), (b), and (c).

(4)

If the chief executive of the relevant agency withdraws any classified information,—

(a)

the classified information must be kept confidential and must not be disclosed by the decision maker, the Tribunal, or the court (as the case may be); and

(b)

the decision maker, the Tribunal, or the court must continue to make the decision or determine the proceedings—

(i)

without regard to that classified information (but subject to section 243(2) in the case of the Tribunal); and

(ii)

in the case of an appeal, a matter, or review proceedings, as if that information had not been available in making the decision subject to the appeal, matter, or review proceedings.

(5)

The chief executive of the relevant agency may at any time direct any person to return classified information to the relevant agency.

38 Summary of allegations to be developed

(1)

This section and section 39 apply where classified information is to be relied on, or may be relied on, in the making of any decision (a relevant decision) in relation to—

(a)

an application for a visa, if the application is for—

(i)

a residence class visa; or

(ii)

a temporary visa or a limited visa, and the applicant is onshore; or

(b)

a person’s liability for deportation; or

(c)

any matter to which Part 5 applies, if the decision is to be made by a refugee and protection officer.

(2)

Before a relevant decision is made that relies on any classified information that is or may be prejudicial to the person who is the subject of the proposed decision,—

(a)

the chief executive of the relevant agency and the Minister or the refugee and protection officer concerned, as the case may be, must agree a summary of the allegations arising from the classified information; and

(b)

the Minister or the refugee and protection officer must forward the summary to the person who is the subject of the proposed decision for comment, and specify a time by which any comment may be provided.

(3)

For the purposes of making a relevant decision, the classified information may be relied on only to the extent that the allegations arising from the information can be summarised without disclosing classified information that would be likely to prejudice the interests described in section 7(3).

(4)

Nothing in subsection (2) requires the summary to—

(a)

list any documents or other source material containing classified information; or

(b)

detail the contents of any documents or other source material containing classified information; or

(c)

specify the source of any documents or other source material containing classified information.

(5)

A summary under this section must be updated, and the person affected provided with an updated summary, where—

(a)

any classified information that was proposed to be relied on in making the decision is withdrawn (unless all of the classified information is withdrawn); or

(b)

the chief executive of the relevant agency adds to or updates the classified information that will be relied on in making the decision.

(6)

An updated summary must be prepared in the same way as if it were a summary prepared under subsection (2)(a).

39 Reasons, etc, to be given where prejudicial decision made using classified information

(1)

Where a decision of a kind referred to in section 38(1) has been made relying on classified information, and the decision is prejudicial to the person concerned, then, subject to section 40, the person who is the subject of the decision must be informed of—

(a)

the fact that classified information was relied on in making the decision; and

(b)

the reasons for the decision (except to the extent that providing reasons would involve a disclosure of classified information that would be likely to prejudice the interests referred to in section 7(3)); and

(c)

the appeal rights, if any, available in respect of the decision; and

(d)

if appeal rights are available, the right to be represented by a special advocate.

(2)

Reasons must—

(a)

be given in writing; and

(b)

contain the information required under section 23 of the Official Information Act 1982 as if the reasons were given in response to a request to which that section applies.

(3)

The Minister or a refugee and protection officer, as the case may be, must also prepare a record of the reasons for the decision, including any reasons arising from the classified information, which may not be accessed or disclosed except in accordance with section 241(1), 259(1), or 267(4) or to the chief executive of the relevant agency.

40 Where classified information may be relied on without requirement for summary or reasons

(1)

Subsection (2) applies to the Minister if—

(a)

he or she is making a decision under this Act relying on classified information; and

(b)

the decision is not a decision of a kind referred to in section 38(1).

(2)

The Minister is not required to—

(a)

provide potentially prejudicial information based on classified information to the person concerned for comment; or

(b)

give reasons for the decision, and section 23 of the Official Information Act 1982 and section 27 of this Act do not apply in respect of the decision.

(3)

Nothing in section 38 or 39 requires the making available of any classified information or a summary of the allegations arising from classified information, or the giving of reasons for decisions,—

(a)

if the decision concerned is in the absolute discretion of the decision maker; or

(b)

in relation to expressions of interest or invitations to apply for a visa; or

(c)

to applicants for transit visas; or

(d)

to applicants for temporary entry class visas who are outside New Zealand; or

(e)

in relation to applications for visas made in an immigration control area or in a place designated by the chief executive under section 383; or

(f)

in relation to applications for entry permission.

41 Declassification of classified information

(1)

Subsection (2) applies to classified information if—

(a)

it is relied on, or may be relied on, to make a decision or determine proceedings under this Act; and

(b)

during the process of making the decision or determining the proceedings, the information is declassified.

(2)

As from the date of declassification, the information is no longer subject to any of the confidentiality, process, or other requirements of this Act that apply to classified information or the users of the information.

(3)

For the purposes of this section, information is declassified when the chief executive of the relevant agency certifies in writing that, as from a specified date, the classified information concerned is no longer classified information within the meaning of section 7.

42 No right of complaint to Inspector-General of Intelligence and Security

No complaint may be made to the Inspector-General of Intelligence and Security about any situation or set of circumstances relating to an act, omission, practice, policy, or procedure done, omitted, or maintained (as the case may be) in connection with a decision under this Act involving classified information (including a determination in proceedings involving classified information).

Part 3 Visas

Subpart 1—Visas generally

43 Effect of visa

(1)

A visa (other than a transit visa) granted outside New Zealand indicates that—

(a)

the holder of the visa has permission to—

(i)

travel to New Zealand in accordance with the conditions of the visa (if any); and

(ii)

apply for entry permission; and

(b)

at the time the visa is granted, there is no reason to believe that the holder will be refused entry permission if the holder’s travel is consistent with the conditions of the visa relating to travel; and

(c)

if the holder is granted entry permission, the holder has permission to stay in New Zealand in accordance with the conditions of the visa (if any).

(2)

A visa granted in an immigration control area indicates that the holder of the visa,—

(a)

if granted entry permission, has permission to stay in New Zealand in accordance with the conditions of the visa (if any); and

(b)

has permission to travel to New Zealand subsequently and apply for entry permission in accordance with the conditions of the visa (if any).

(3)

A visa granted onshore indicates that the holder of the visa—

(a)

has permission to stay in New Zealand in accordance with the conditions of the visa (if any); and

(b)

has permission to travel to New Zealand subsequently and apply for entry permission in accordance with the conditions of the visa (if any).

(4)

A transit visa indicates that the holder of the visa has permission to travel to New Zealand, and to remain, for no longer than the transit period,—

(a)

on the craft concerned; or

(b)

in an immigration control area; or

(c)

in the custody of the Police.

44 Person may hold only 1 current visa

At any one time, a person may hold only 1 current visa.

45 Grant of visa generally matter of discretion

(1)

No person is entitled to a visa as of right.

(2)

In determining a visa application, the Minister or, subject to any special direction, an immigration officer, in his or her discretion,—

(a)

may grant or refuse to grant a visa; and

(b)

regardless of the class and type of visa that was applied for, may grant a visa of any class and type; and

(c)

may impose conditions on the visa granted, or vary or waive conditions that would otherwise apply to it.

(3)

This section applies unless any provision in this Act expressly provides otherwise.

Compare: 1987 No 74 ss 8–10, 35

46 Grant of visa does not guarantee entry permission

(1)

The granting of a visa does not of itself entitle the holder to be granted entry permission.

(2)

Subsection (1) applies except if the visa granted is—

(a)

a permanent resident visa; or

(b)

a resident visa, and the visa was granted in New Zealand.

47 Grant of visa may be conditional on payment of bond

(1)

Before granting a visa to an applicant, the Minister or an immigration officer may require that a bond be paid in accordance with section 396.

(2)

A bond required under subsection (1) may be—

(a)

forfeited under section 397(1); or

(b)

refunded in whole or in part under section 397.

(3)

The fact that a bond is forfeited under section 397(1) (whether in whole or in part) does not affect other action taken, or that may be taken, in respect of a failure to comply with any conditions imposed on the visa concerned under sections 49 to 55.

48 Grant of visa may be conditional on sponsorship

(1)

Before a visa is granted to an applicant, the applicant may be required to supply a written undertaking, in a form approved by the chief executive, by a person (the sponsor) relating to any specified matter or matters.

(2)

The requirement to supply a written undertaking may be imposed by—

(a)

immigration instructions, in relation to any class or type of visa; or

(b)

the Minister or an immigration officer, in relation to any particular visa.

(3)

Without limiting subsection (1),—

(a)

the specified matter or matters in respect of the undertaking may relate to—

(i)

employment of the applicant and any dependants of the applicant:

(ii)

accommodation of the applicant and any dependants of the applicant:

(iii)

maintenance (including the cost of any publicly funded services or benefits) of the applicant and any dependants of the applicant:

(iv)

costs of repatriation or deportation of the applicant and any dependants of the applicant:

(b)

an undertaking may relate to the sponsor—

(i)

providing any matter directly; or

(ii)

paying the costs of any matter, if the matter is provided by another person.

(4)

A sponsor must be—

(a)

a New Zealand citizen, permanent resident, or resident; or

(b)

an organisation that is registered in New Zealand as a company, an incorporated society, or a charitable trust; or

(c)

a government agency.

(5)

A sponsor who is not a natural person must nominate an individual as the authorised contact for the purposes of the sponsorship.

(6)

A sponsor must also be acceptable to the Minister or the immigration officer, or meet any other criteria required by the relevant immigration instructions, or both, as the case may be.

(7)

It is a matter for the absolute discretion of the Minister or the immigration officer whether a person is acceptable as a sponsor, and no appeal lies against his or her decision, whether to any court, the Tribunal, the Minister, or otherwise.

Visa conditions

49 Visas may be subject to conditions

(1)

Every visa other than a permanent resident visa is subject to such conditions (if any) as may be,—

(a)

in the case of resident visas, specified in residence instructions relating to visas of that type, being the instructions applicable at the time the application for the visa was made:

(b)

in the case of temporary entry class visas other than visas subject to restricted temporary entry instructions, specified in temporary entry instructions relating to visas of that class or a type of visa within that class, being instructions applicable at the time the visa was granted:

(c)

in the case of temporary entry class visas subject to restricted temporary entry instructions, specified in temporary entry instructions applicable at the time the application for the visa was made:

(d)

in the case of transit visas, specified in transit instructions applicable at the time the visa was granted:

(e)

imposed by the Minister or an immigration officer under section 50, 51, 52, 53, or 54:

(ea)

imposed by section 55:

(f)

imposed by or under any other Act.

(2)

The conditions of a visa relating to travel may—

(a)

give permission to travel to New Zealand on a single journey, multiple journeys, or a set number of journeys; or

(b)

give permission to travel to New Zealand for or within a specified time period; or

(c)

expressly not authorise any further travel to New Zealand.

Section 49(1)(e): amended, on 7 May 2015, by section 14(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 49(1)(ea): inserted, on 7 May 2015, by section 14(2) of the Immigration Amendment Act 2015 (2015 No 48).

50 Conditions on resident visas

(1)

On granting a resident visa as an exception to residence instructions, the Minister may—

(a)

impose conditions in addition to those specified in the applicable residence instructions (if any):

(b)

vary or waive conditions that would otherwise apply to a visa of that type.

(2)

Following the grant of a resident visa, the Minister may, by special direction,—

(a)

impose further conditions whether or not the conditions are specified in the applicable residence instructions (if any):

(b)

vary or cancel conditions that would otherwise apply to the visa or were imposed under subsection (1).

(3)

The Minister may also do 1 or more of the things in subsection (2) by agreement with the visa holder.

(4)

A condition imposed, varied, waived, or cancelled under this section—

(a)

must be notified to the visa holder by the Minister or an immigration officer; and

(b)

takes effect—

(i)

from the date the visa is granted, if the condition is imposed, varied, or waived when the visa is granted; or

(ii)

from the date specified in the notice (being a date not earlier than the date of notification), in any other case.

(5)

To avoid doubt,—

(a)

subsection (2) applies whether the resident visa was granted as an exception to residence instructions or otherwise:

(b)

nothing in this section allows the Minister to impose conditions on a permanent resident visa, whether at the time of or subsequent to granting the visa.

51 Resident visa holder may apply for variation of travel conditions

(1)

A resident visa holder may apply, in the prescribed manner, for a variation of the conditions of his or her visa relating to travel to New Zealand.

(2)

An immigration officer must determine the application in accordance with the residence instructions applicable at the time the application for the variation was made.

(3)

However, the Minister may vary conditions of a visa under this section by special direction, as an exception to residence instructions.

52 Conditions on temporary entry class visas (other than those subject to restricted temporary entry instructions)

(1)

On granting a temporary entry class visa, the Minister or an immigration officer may—

(a)

impose conditions in addition to those specified in temporary entry instructions in relation to a visa of that class or type:

(b)

vary or waive conditions that would otherwise apply to a visa of that class or type.

(2)

Following the grant of a temporary entry class visa, the Minister or an immigration officer may—

(a)

impose further conditions, whether or not the conditions are specified in the temporary entry instructions in relation to a visa of that class or type:

(b)

vary or cancel conditions that would otherwise apply to a visa of that class or type or were imposed under subsection (1).

(3)

The Minister or an immigration officer may also do 1 or more of the things in subsection (2) by agreement with the visa holder.

(4)

A condition imposed, varied, waived, or cancelled under this section—

(a)

must be notified to the visa holder by the Minister or an immigration officer; and

(b)

takes effect—

(i)

from the date the visa is granted, if the condition is imposed, varied, or waived when the visa is granted; or

(ii)

from the date specified in the notice (being a date not earlier than the date of notification), in any other case.

(5)

Nothing in this section applies to a temporary entry class visa that is subject to restricted temporary entry instructions.

53 Conditions on temporary entry class visas subject to restricted temporary entry instructions

(1)

On granting a temporary entry class visa subject to restricted temporary entry instructions, as an exception to those instructions, the Minister may—

(a)

impose conditions in addition to those specified in temporary entry instructions in relation to a visa of that type:

(b)

vary or waive conditions that would otherwise apply to a visa of that type.

(2)

Following the grant of a temporary entry class visa subject to restricted temporary entry instructions, the Minister may, by special direction,—

(a)

impose further conditions, whether or not the conditions are specified in temporary entry instructions in relation to a visa of that type:

(b)

vary or cancel conditions that would otherwise apply to a visa of that type or were imposed under subsection (1).

(3)

The Minister may also do 1 or more of the things in subsection (2) by agreement with the visa holder.

(4)

A condition imposed, varied, waived, or cancelled under this section—

(a)

must be notified to the visa holder by the Minister or an immigration officer; and

(b)

takes effect—

(i)

from the date the visa is granted, if the condition is imposed, varied, or waived when the visa is granted; or

(ii)

from the date specified in the notice (being a date not earlier than the date of notification), in any other case.

(5)

To avoid doubt, subsection (2) applies whether the temporary entry class visa was granted as an exception to temporary entry instructions or otherwise.

54 Conditions on transit visas

(1)

On granting a transit visa, the Minister or an immigration officer may—

(a)

impose conditions in addition to those specified in transit instructions:

(b)

vary or waive conditions that would otherwise apply to a transit visa.

(2)

Following the grant of a transit visa, the Minister or an immigration officer may—

(a)

impose further conditions, whether or not the conditions are specified in the transit instructions:

(b)

vary or cancel conditions that would otherwise apply to a transit visa or were imposed under subsection (1).

(3)

The Minister or an immigration officer may also do 1 or more of the things in subsection (2) by agreement with the visa holder.

(4)

A condition imposed, varied, waived, or cancelled under this section—

(a)

must be notified to the visa holder by the Minister or an immigration officer; and

(b)

takes effect—

(i)

from the date the visa is granted, if the condition is imposed, varied, or waived when the visa is granted; or

(ii)

from the date specified in the notice (being a date not earlier than the date of notification), in any other case.

55 Condition that visa holder have sponsor

(1)

This section applies to a visa holder who, when applying for the visa concerned, was required to provide a written undertaking from a sponsor in accordance with section 48.

(2)

It is a condition of the visa that—

(a)

the visa holder have a sponsor for the purposes of the specified matter or matters provided for in the written undertaking; and

(b)

the sponsor meets the obligations in relation to the specified matter or matters provided for in the undertaking.

(2A)

Where a condition under this section applies to a resident visa, the condition applies for the period, which may not exceed 10 years, specified—

(a)

in immigration instructions, in relation to any type of resident visa; or

(b)

by the Minister or an immigration officer, in relation to any particular visa.

(3)

If the sponsor fails to comply with the undertaking—

(a)

the sponsor owes a debt to the Crown, recoverable by the Crown in a court of competent jurisdiction, if the Crown incurs a cost as a result of the failure; and

(b)

the sponsor owes a debt to a third party, recoverable by the third party in a court of competent jurisdiction, if a cost has been incurred by the third party as a result of the failure; and

(c)

the visa holder is deemed to have breached the conditions of his or her visa imposed under subsection (2).

Section 55(2A): inserted, on 7 May 2015, by section 15 of the Immigration Amendment Act 2015 (2015 No 48).

56 Visa holder must comply with conditions

(1)

The holder of a visa that is subject to conditions must comply with the conditions of the visa.

(2)

In the case of conditions imposed by or under any other Act, or specified in immigration instructions, the obligation to comply with those conditions arises whether or not the visa holder is aware of the conditions, or of the implications of not complying with them.

(3)

A visa holder must comply with conditions imposed or varied and notified to the holder by the Minister or an immigration officer under section 50, 51, 52, 53, or 54.

(4)

It is presumed, in the absence of evidence to the contrary on the balance of probabilities, that a visa holder was notified of any conditions imposed or varied under section 50, 51, 52, 53, or 54 if notice of them was given in accordance with section 386A.

Section 56(4): amended, on 7 May 2015, by section 16 of the Immigration Amendment Act 2015 (2015 No 48).

General rules relating to visas

57 Applications for visas

(1)

An application for a visa must be made in the manner prescribed for the class or type of visa sought.

(2)

The applicant must provide his or her contact address and address for service.

(3)

[Repealed]

(4)

[Repealed]

Section 57(2): replaced, on 7 May 2015, by section 17 of the Immigration Amendment Act 2015 (2015 No 48).

Section 57(3): repealed, on 7 May 2015, by section 17 of the Immigration Amendment Act 2015 (2015 No 48).

Section 57(4): repealed, on 7 May 2015, by section 17 of the Immigration Amendment Act 2015 (2015 No 48).

58 Obligation on applicant to inform of all relevant facts, including changed circumstances

(1)

It is the responsibility of an applicant for a visa to ensure that all information, evidence, and submissions that the applicant wishes to have considered in support of the application are provided when the application is made.

(2)

The Minister or immigration officer considering the application—

(a)

is not obliged to seek any further information, evidence, or submissions; and

(b)

may determine the application on the basis of the information, evidence, and submissions provided.

(3)

It is also the responsibility of an applicant for a visa to inform the Minister or an immigration officer of any relevant fact, including any material change in circumstances that occurs after the application is made, if that fact or change in circumstances—

(a)

may affect the decision on the application; or

(b)

may affect a decision to grant entry permission in reliance on the visa for which the application is made.

(4)

Without limiting the scope of the expression material change in circumstances in subsection (3), such a change may relate to the applicant or another person included in the application, and may relate to any matter relevant to this Act or immigration instructions.

(5)

For the purposes of sections 157 and 158, an applicant is treated as having concealed relevant information if he or she fails to comply with the obligation in subsection (3).

(6)

It is sufficient ground for the Minister or an immigration officer to decline to grant a visa to a person if the Minister or officer is satisfied that the person,—

(a)

whether personally or through an agent, in applying for the visa submitted false or misleading information or withheld relevant information that was potentially prejudicial to the grant of the visa; or

(b)

did not ensure that an immigration officer was informed of any material change in circumstances to which subsection (3) applies between the time of making the application and the time of a decision on the application.

Compare: 1987 No 74 ss 17A, 25, 34B, 34G

Section 58(5): replaced, on 7 May 2015, by section 18 of the Immigration Amendment Act 2015 (2015 No 48).

59 Applications by minors

Where an application for a visa is made by or for a person under 18 years of age who is not married or in a civil union, the Minister or an immigration officer may decline the application if the Minister or immigration officer is not satisfied that any parent or guardian of the person consents to the making of the application.

Compare: 1987 No 74 s 35(2)

60 Biometric information may be required from visa applicant

(1)

An applicant for a visa must allow biometric information to be collected from him or her.

(2)

If the applicant fails to allow the biometric information to be collected, the Minister or an immigration officer may refuse to grant the visa applied for.

(3)

The requirement in subsection (1) does not apply if the person is exempt from providing the information in accordance with regulations made under section 400(l).

61 Grant of visa in special case

(1)

The Minister may at any time, of the Minister’s own volition, grant a visa of any type to a person who—

(a)

is unlawfully in New Zealand; and

(b)

is not a person in respect of whom a deportation order is in force; and

(c)

is not a person in respect of whom a removal order is in force.

(2)

A decision to grant a visa under subsection (1) is in the Minister’s absolute discretion.

Compare: 1987 No 74 s 35A

Section 61(1)(b): amended, on 7 May 2015, by section 19(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 61(1)(c): inserted, on 7 May 2015, by section 19(2) of the Immigration Amendment Act 2015 (2015 No 48).

62 Form of visa

(1)

A visa is granted by being entered and retained in the records (whether electronic or physical) of the Department in a manner determined by the chief executive.

(2)

The entry for the visa must specify, as appropriate,—

(a)

its start date (which may be the date of its grant or a future or past date):

(b)

any conditions of the visa that relate to travel, including—

(i)

whether the visa allows travel to New Zealand on a later occasion:

(ii)

if the visa allows travel to New Zealand, the period during which the holder may travel to New Zealand:

(iii)

if the visa allows travel to New Zealand, whether the visa gives permission to travel to New Zealand on a single journey, multiple journeys, or a set number of journeys:

(c)

in relation to the holder’s stay in New Zealand, the date or event on the occurrence of which the visa will expire, or the period after which it will expire:

(d)

any other conditions of the visa:

(e)

for those persons granted entry permission, the date or dates the entry permission was granted:

(f)

such other matters as may be required or approved by the chief executive.

(3)

A visa may (but need not) be evidenced by an endorsement in a passport or certificate of identity.

(4)

To avoid doubt, no electronic or physical record is required to be created for a visa that is deemed to be granted by or under this Act.

63 Expiry of visa

(1)

If the holder of a visa is in New Zealand, the visa expires on the earliest of—

(a)

the beginning of the day after the date specified in the visa as the expiry date:

(b)

the beginning of the day after the day on which an event specified in the visa as the event on the occurrence of which the visa will expire occurs:

(c)

the beginning of the day after the last day of the period for which the visa grants stay in New Zealand to the holder:

(d)

the beginning of the day that is 3 months after the day on which an epidemic management notice expires, if the visa—

(i)

is a temporary entry class visa to which section 78 applies; and

(ii)

has not been cancelled earlier.

(2)

If the holder of a visa is outside New Zealand, the visa expires on the earlier of—

(a)

the day and time the holder left New Zealand, if the conditions of the visa do not allow further travel to New Zealand:

(b)

the beginning of the day after the date that is specified by the conditions of the visa as the last day of the period of time within which travel is allowed to New Zealand.

64 Cancellation of visa on triggering event

(1)

A visa is cancelled in the following circumstances:

(a)

on the deportation of its holder from New Zealand:

(ab)

on the day after the first date on which a deportation order may be served on the person under section 175A, whether the visa was issued before or after this paragraph came into force:

(b)

on the refusal of entry permission to its holder:

(c)

on entry permission granted to its holder being revoked:

(d)

if the holder arrived at an immigration control area,—

(i)

on the holder leaving the immigration control area without presenting himself or herself to an immigration officer; or

(ii)

on the holder failing to comply with the instruction of an immigration officer to remain in the area:

(e)

if the holder arrived at a place other than an immigration control area, on failing to present himself or herself in the prescribed manner and within the prescribed time as required under section 103(1)(b):

(f)

on the start date of a further visa granted to its holder:

(g)

on the grant of New Zealand citizenship to its holder:

(h)

on the registration of New Zealand citizenship by descent under section 7(2) of the Citizenship Act 1977 by its holder:

(i)

on the issue of an evidentiary certificate under section 21 of the Citizenship Act 1977 that confirms the holder is a New Zealand citizen.

(2)

Despite subsection (1)(f), the grant of a temporary entry class visa to the holder of a residence class visa does not cancel the residence class visa unless the grant of the temporary entry class visa was made under section 68.

(3)

To avoid doubt, if a person’s visa is cancelled under subsection (1)(ab), the grant of a new visa to the person does not cancel the person’s liability for deportation.

Section 64(1)(ab): inserted, on 7 May 2015, by section 20(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 64(3): inserted, on 7 May 2015, by section 20(2) of the Immigration Amendment Act 2015 (2015 No 48).

65 Cancellation of resident visa before holder first arrives in New Zealand as holder of visa

(1)

The Minister or an immigration officer may cancel a resident visa at any time before its holder first arrives in New Zealand as the holder of the visa, if—

(a)

the visa was granted when the holder was outside New Zealand; and

(b)

the person no longer meets the rules or criteria of the immigration instructions applicable at the time the application for the visa was made.

(2)

The Minister or an immigration officer must notify a person in writing if his or her visa is cancelled under this section.

Section 65(2): amended, on 7 May 2015, by section 21 of the Immigration Amendment Act 2015 (2015 No 48).

66 Cancellation of temporary entry class or transit visa by Minister or immigration officer

(1)

The Minister or an immigration officer may, if the Minister or immigration officer determines there is sufficient reason,—

(a)

cancel a temporary entry class visa at any time when its holder is outside New Zealand:

(b)

cancel a temporary entry class visa that has been extended in accordance with section 78 at any time:

(c)

cancel a transit visa at any time.

(2)

The Minister or an immigration officer must notify a person, in writing, if—

(a)

his or her visa is cancelled under this section; and

(b)

he or she is outside New Zealand.

Compare: 1987 No 74 ss 19, 32

67 Cancellation of visa for administrative error

An immigration officer may cancel a visa that the officer believes on reasonable grounds was granted as a result of an administrative error if—

(a)

the visa was granted to a person in a place designated by the chief executive under section 383 and—

(i)

the person is still in the designated place; or

(ii)

the person has not left the arrival hall of the airport or port at which he or she arrived in New Zealand; or

(b)

the visa was granted to a person in an immigration control area, or an office of the Department, in New Zealand and the person is still in the control area or office; or

(c)

advice of the grant of the visa has not been sent or given to the person concerned, in any other case.

68 Grant of further visa where visa granted in error

(1)

If the Minister or an immigration officer determines that a visa was granted as a result of an administrative error but the visa was not cancelled under section 67, the Minister or immigration officer may, in his or her absolute discretion,—

(a)

offer the holder a visa of such class and type, and subject to such conditions, as the Minister or immigration officer considers appropriate; and

(b)

if the holder agrees, grant such a visa.

(2)

If the holder does not agree, he or she remains liable for deportation under section 155(1).

(3)

Subsection (2) is for the avoidance of doubt.

Waiver of requirement for visa permitting travel to New Zealand in certain cases

69 Waiver of requirement for visa permitting travel to New Zealand in certain cases

(1)

Regulations made under section 400 may waive the requirement to hold a visa permitting travel to New Zealand in relation to any class of persons, and provide for any conditions of such a waiver.

(2)

The Minister may, by special direction,—

(a)

waive for a period not exceeding 3 months the requirement to hold a visa permitting travel to New Zealand in relation to any class of persons, subject to any conditions specified by the Minister:

(b)

suspend for a period not exceeding 3 months a waiver made by regulations referred to in subsection (1):

(c)

waive, in any individual case, the requirement to hold a visa permitting travel to New Zealand:

(d)

suspend, in any individual case, a waiver made by regulations referred to in subsection (1).

(3)

Any waiver or suspension of a waiver made in accordance with subsection (1) or (2)(a) or (b) may, without limiting the generality of the manner in which persons may be classified, classify persons to whom the waiver or suspension of waiver applies by reference to any or all of the following:

(a)

their nationality:

(b)

the country or place from which they are travelling (whether it be their original or an intermediate point of departure):

(c)

their immediate or ultimate destination after being in or transiting through New Zealand:

(d)

whether or not they hold, or are required to hold, any particular type of travel or immigration documentation, by whomever issued.

(4)

Any special direction made under subsection (2)(a) or (b)—

(a)

must be published in the Gazette, and notified in writing through diplomatic channels to any country concerned:

(b)

expires at the end of the period of 3 months (or such shorter period as is specified in the direction) following the day on which the direction was made, unless sooner cancelled by the Minister by a further special direction, or by regulations:

(c)

is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

(5)

A special direction under subsection (2)(a) or (b) may not be effectively continued in force by the making of a further special direction to the same or similar effect.

(6)

A waiver under this section does not of itself entitle a person subject to the waiver to be granted entry permission.

Compare: 1987 No 74 ss 11, 12

Section 69(4)(c): replaced, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).

Subpart 2—Classes of visa

70 Classes of visa

The following classes of visa may be granted under this Act:

(a)

residence class visas, consisting of—

(i)

permanent resident visas:

(ii)

resident visas:

(b)

temporary entry class visas, consisting of—

(i)

temporary visas:

(ii)

limited visas:

(iii)

interim visas:

(c)

transit visas.

Compare: 1987 No 74 s 14

Residence class visas

71 Who may apply for residence class visa

(1)

The following persons may apply for a residence class visa:

(a)

a person who is outside New Zealand and who wishes to come to New Zealand and stay indefinitely:

(b)

a person who is—

(i)

onshore; and

(ii)

the holder of a temporary visa or a resident visa; and

(iii)

not subject to section 150:

(c)

a person to whom a visa waiver applies, and who falls within a class prescribed by regulations as a person who may apply for a residence class visa—

(i)

in a place designated by the chief executive under section 383; or

(ii)

in an immigration control area; or

(iii)

in a prescribed place.

(2)

No person who is of a class or category that, by virtue of immigration instructions, may only apply for a resident visa or a permanent resident visa by invitation, may apply for such a visa without an invitation.

(3)

A person may apply for a resident visa or a permanent resident visa in response to an invitation to apply only if the application is made in the time frame specified in the residence instructions.

(4)

To avoid doubt, no limited visa holder, interim visa holder, transit visa holder, or person who is liable for deportation may apply for a residence class visa.

(5)

However, the Minister, in his or her absolute discretion, may grant a residence class visa to a person to whom subsection (4) applies.

Compare: 1987 No 74 s 17

72 Decisions on applications for residence class visa

(1)

Where the Minister or an immigration officer makes any decision in relation to an application for a residence class visa, that decision must be made in terms of the residence instructions applicable at the time the application was made and any discretion exercised must be in terms of those instructions.

(2)

No application for a residence class visa that is received by an immigration officer may be referred to the Minister for decision at first instance, unless the Minister gives a special direction to that effect.

(3)

Nothing in this section prevents the Minister, in his or her absolute discretion, from making any decision to grant a residence class visa as an exception to residence instructions in any particular case.

Compare: 1987 No 74 ss 13C, 17A(2)

73 Currency and nature of permanent resident visa

The holder of a permanent resident visa is entitled—

(a)

to travel to New Zealand at any time:

(b)

to be granted entry permission:

(c)

to stay in New Zealand indefinitely:

(d)

to work in New Zealand or in the exclusive economic zone of New Zealand:

(e)

to study in New Zealand.

74 Currency and nature of resident visa

(1)

The holder of a resident visa—

(a)

is entitled to—

(i)

travel to New Zealand; and

(ii)

apply for entry permission (whether before or after travelling to New Zealand); and

(b)

if granted entry permission, is entitled, in accordance with the conditions of the visa (if any),—

(i)

to stay in New Zealand indefinitely:

(ii)

to work in New Zealand or in the exclusive economic zone of New Zealand:

(iii)

to study in New Zealand.

(2)

Subsection (1)(a) applies only if the visa holder’s travel to New Zealand is consistent with the conditions of the visa relating to travel.

75 Former New Zealand citizens deemed to hold resident visa

(1)

This section applies to a person in New Zealand who—

(a)

renounces his or her New Zealand citizenship; or

(b)

is deprived of his or her New Zealand citizenship.

(2)

The person is deemed, from the date of renouncing, or being deprived of, his or her citizenship, to hold a resident visa—

(a)

permitting the person to stay in New Zealand; and

(b)

subject to any conditions specified in residence instructions certified for the purposes of this section at the time the person renounced or was deprived of his or her citizenship.

Temporary entry class visas: provisions applying to all types

76 Decisions on applications for temporary entry class visa

(1)

The Minister or an immigration officer may, in the Minister’s or officer’s discretion, grant a temporary entry class visa as an exception to temporary entry class instructions in any particular case.

(2)

Subsection (1) does not apply to an application for a temporary entry class visa of a type subject to restricted temporary entry instructions.

(3)

However, nothing in subsection (2) prevents the Minister in his or her absolute discretion from making a decision to grant a visa as an exception to restricted temporary entry instructions in any particular case.

77 Currency and nature of temporary entry class visa

(1)

A temporary entry class visa may be granted—

(a)

until a specified date; or

(b)

until a specified event on the occurrence of which the visa expires; or

(c)

for a specified period of time.

(2)

The holder of a temporary entry class visa—

(a)

is entitled to—

(i)

travel to New Zealand; and

(ii)

apply for entry permission (whether before or after travelling to New Zealand); and

(b)

if granted entry permission, is entitled, in accordance with the conditions of the visa (if any), to stay in New Zealand during the currency of the visa.

(3)

Subsection (2)(a) applies only if the visa holder’s travel to New Zealand is consistent with the conditions of the visa relating to travel.

(4)

The holder of a temporary entry class visa may—

(a)

work in New Zealand, or in the exclusive economic zone of New Zealand, only if the conditions of the visa allow, and only consistently with those conditions:

(b)

study in New Zealand, only if the conditions of the visa allow, and only consistently with those conditions.

78 Deemed extension of temporary entry class visa expiring during epidemic

(1)

This section applies to a temporary entry class visa held by a person in New Zealand if—

(a)

it was current immediately before the commencement of an epidemic management notice; and

(b)

but for this section, it would expire before the day that is 14 days after the day on which the notice expires.

(2)

The visa must, for all purposes, be treated as if it continues to be a current visa allowing stay in New Zealand until the earlier of the following events:

(a)

its cancellation:

(b)

the expiration of 3 months after the day on which the epidemic management notice expires.

(3)

Subsection (2) does not require—

(a)

the endorsement or modification of the visa; or

(b)

the issue of a document extending the visa; or

(c)

the grant of a new visa.

Compare: 1987 No 74 s 35AC

Temporary entry class visas: provisions applying to temporary visas

79 Who may apply for temporary visa

(1)

The following persons may apply for a temporary visa:

(a)

a person, including a person to whom a visa waiver applies, who is outside New Zealand and who wishes to come to New Zealand for any purpose for which a temporary visa may be granted:

(b)

a person arriving in New Zealand and to whom a visa waiver applies:

(c)

a person who is onshore, is the holder of a temporary visa, and is either—

(i)

a person to whom section 150(1) and (2) do not apply; or

(ii)

a claimant to whom section 150(3) applies.

(2)

No person who is of a class or category that, by virtue of immigration instructions, may only apply for a temporary visa by invitation may apply for such a visa without an invitation.

(3)

A person may apply for a temporary visa (or a temporary visa of a particular type) in response to an invitation to apply only if the application is made in the time frame specified in the temporary entry instructions.

(4)

To avoid doubt,—

(a)

no limited visa holder, interim visa holder, or transit visa holder may apply for a temporary visa; and

(b)

a person liable for deportation may only apply—

(i)

for a visa of the same class and type that he or she held before becoming liable for deportation; and

(ii)

if he or she is not unlawfully in New Zealand.

(5)

However, the Minister, in his or her absolute discretion, may grant a temporary visa to a person prohibited from applying for a temporary visa under subsection (4).

Compare: 1987 No 74 s 25(1)

Temporary entry class visas: provisions applying to interim visas

80 Interim visa

(1)

The Minister or an immigration officer may, for the purpose of maintaining the lawful status in New Zealand of the applicant while the application is being considered, grant an interim visa to a person in New Zealand who—

(a)

holds a temporary visa; and

(b)

has applied for a further visa (whether a residence class or a temporary entry class visa).

(2)

No person has the right to apply for an interim visa, and any decision as to whether to grant an interim visa is a matter for the absolute discretion of the Minister or relevant immigration officer.

(3)

The holder of an interim visa may not apply for a visa of any other class or type.

Temporary entry class visas: provisions applying to limited visas

81 Who may apply for limited visa

The following persons may apply for a limited visa:

(a)

a person, including a person to whom a visa waiver applies, who is outside New Zealand and who wishes to come to New Zealand for an express purpose:

(b)

a person arriving in New Zealand to whom a visa waiver applies who wishes to stay in New Zealand for an express purpose:

(c)

a person onshore who is—

(i)

the holder of a current limited visa, if further time is required to achieve the express purpose for which that visa was granted; or

(ii)

the holder of a temporary visa (other than a person to whom section 150 applies).

Compare: 1987 No 74 ss 14DA, 34B

82 Grant of limited visa rather than temporary visa applied for or held

(1)

If a person applies for a temporary visa (rather than a limited visa), the Minister or an immigration officer may grant the person a limited visa rather than the temporary visa applied for if, and only if,—

(a)

the person,—

(i)

including a person to whom a visa waiver applies, is outside New Zealand and wishes to come to New Zealand for an express purpose; or

(ii)

is a person to whom a visa waiver applies who arrives in New Zealand and wishes to stay in New Zealand for an express purpose; or

(iii)

is the holder of a temporary visa, and agrees to the grant of the limited visa; and

(b)

the Minister or the immigration officer identifies a risk that the person will remain in New Zealand beyond the expiry of his or her visa; and

(c)

the Minister or the immigration officer considers that the grant of a limited visa rather than a temporary visa is necessary to manage that risk.

(2)

If the holder of a temporary visa applies for entry permission, the Minister or an immigration officer may cancel the temporary visa by granting the person a limited visa, and grant entry permission to the person on the basis of the limited visa if, and only if,—

(a)

the person wishes to enter New Zealand for an express purpose; and

(b)

the Minister or the immigration officer identifies a risk that the person will remain in New Zealand beyond the expiry of his or her visa; and

(c)

the Minister or the immigration officer considers that the grant of a limited visa (and entry permission on the basis of that visa) is necessary to manage that risk; and

(d)

the person agrees to the grant of a limited visa and entry permission on the basis of that visa.

Compare: 1987 No 74 s 14DA(2)

83 Grant of limited visa in relation to criminal matters

(1)

A limited visa may be granted to a person if—

(a)

a certificate has been issued in respect of the person under section 13 or 42(5) of the Mutual Assistance in Criminal Matters Act 1992; and

(b)

the limited visa is granted for the sole purpose of enabling the person—

(i)

to be in New Zealand for the purposes of giving or providing evidence or assistance pursuant to a request made under section 12 of the Mutual Assistance in Criminal Matters Act 1992; or

(ii)

to be transported through New Zealand pursuant to section 42 of that Act.

(2)

A limited visa may also be granted to a person for the sole purpose of enabling the person to return to New Zealand to face any charge in New Zealand or to serve any sentence imposed on the person in New Zealand.

Compare: 1987 No 74 s 27A

84 Currency of limited visa

(1)

The Minister or, subject to any special direction, an immigration officer may grant a limited visa for the period that—

(a)

is appropriate to achieve the express purpose for which the visa is granted; and

(b)

does not exceed any period specified in respect of limited visas of that category by temporary entry instructions.

(2)

If the express purpose for which a limited visa was granted is achieved before the date on which it will expire, or if at any time it becomes apparent that the purpose is no longer achievable or has been abandoned by the visa holder,—

(a)

an immigration officer may notify the visa holder of an earlier expiry date for the visa (being a date not earlier than 14 days after that notice is given to the visa holder); and

(b)

the visa then expires on that earlier expiry date.

Compare: 1987 No 74 s 34C

85 Limitations and conditions on holders of limited visa

(1)

The holder of a limited visa must leave New Zealand no later than the day that the visa expires.

(2)

The holder of a limited visa may not, whether before or after the expiry of the visa,—

(a)

apply for a visa of a different class or type while in New Zealand; or

(b)

while in New Zealand, request a special direction, or a visa under section 61; or

(c)

bring any appeal under this Act (other than an appeal under section 194 or 195), whether to a court, the Tribunal, or otherwise.

(3)

Every limited visa is to be granted subject to conditions relating to its purpose.

Compare: 1987 No 74 ss 14DA(4), 34D

Transit visas

86 Who must obtain transit visa

(1)

A person intending to travel to and be in New Zealand only as a transit passenger must, before proceeding to New Zealand, apply for and obtain a transit visa.

(2)

Subsection (1) applies to the person unless he or she is classified as a person to whom a transit visa waiver applies—

(a)

by regulations made under section 400; or

(b)

by special direction of the Minister under subsection (4).

(3)

Regulations classifying persons as persons to whom a transit visa waiver applies—

(a)

may, without limiting the generality of the manner in which persons may be classified, classify persons by reference to all or any of the following:

(i)

their nationality:

(ii)

the country or place from which they are travelling (whether it be their original or intermediate point of departure):

(iii)

their immediate or ultimate destination after transiting through New Zealand:

(iv)

whether or not they hold, or are required to hold, any particular type of travel or immigration documentation, by whomever issued:

(b)

are subject to any special direction made under subsection (4) that suspends any relevant transit visa waiver.

(4)

The Minister may, by special direction that has effect for a period not exceeding 3 months,—

(a)

classify persons as persons to whom a transit visa waiver applies (whether by reference to the matters referred to in subsection (3)(a) or otherwise):

(b)

suspend any transit visa waiver specified in regulations for any class or classes of person.

(5)

A special direction made under subsection (4)—

(a)

must be published in the Gazette and notified in writing through diplomatic channels to any country concerned; and

(b)

expires at the end of the period of 3 months following the day on which it was made, unless sooner cancelled by the Minister by a further special direction, or by regulations; and

(c)

is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

(6)

A special direction made under subsection (4) may not be effectively continued in force by the making of a further special direction to the same or similar effect.

(7)

[Repealed]

Compare: 1987 No 74 s 14E(1)–(2D)

Section 86(5)(b): amended, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).

Section 86(5)(c): inserted, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).

Section 86(7): repealed, on 6 November 2015, by section 22 of the Immigration Amendment Act 2015 (2015 No 48).

86A Obligation of transit passenger

(1)

During the transit period applying to a transit passenger, the transit passenger must remain—

(a)

on the craft concerned; or

(b)

in an immigration control area; or

(c)

in the custody of the Police.

(2)

If a transit passenger fails to comply with subsection (1), the relevant transit period immediately expires (and section 115(1)(f) therefore applies).

Section 86A: inserted, on 6 November 2015, by section 23 of the Immigration Amendment Act 2015 (2015 No 48).

87 Transit visa may be granted as exception to immigration instructions

The Minister or an immigration officer may, in his or her absolute discretion, grant a transit visa to a person as an exception to immigration instructions.

88 Currency of transit visa

A transit visa is current for the period or until the date specified in it, and may be expressed to be effective for any number of journeys to New Zealand in that period or until that date.

Compare: 1987 No 74 s 14E(3)

Section 88: replaced, on 6 November 2015, by section 24 of the Immigration Amendment Act 2015 (2015 No 48).

89 Limitations on holders of transit visa

(1)

The holder of a transit visa may not apply for entry permission or any class or type of visa while in New Zealand during the transit period.

(2)

However, the Minister or an immigration officer, in his or her absolute discretion, may grant to the person a visa of the type and class that the Minister or immigration officer thinks fit.

Compare: 1987 No 74 s 14E(4), (5)

90 Cancellation of transit visa

An immigration officer may cancel a transit visa at any time but, if he or she cancels the visa after the holder of the visa has arrived in New Zealand, the person is liable for turnaround.

91 Expiry of transit period

At any time before the transit period of a transit passenger expires, an immigration officer may, in his or her absolute discretion,—

(a)

extend the transit passenger’s transit period beyond the transit period prescribed under section 401(d); or

(b)

grant the transit passenger a visa and entry permission.

Section 91: replaced, on 6 November 2015, by section 25 of the Immigration Amendment Act 2015 (2015 No 48).

Invitation to apply for visa

92 Expressions of interest

(1)

A person who, by virtue of immigration instructions, is of a class or category of person that may apply for a visa of a particular class or type only if invited to do so by the Minister or an immigration officer may notify his or her interest in obtaining such an invitation in the prescribed manner.

(2)

A person submitting an expression of interest must provide a contact address and an address for service.

(3)

[Repealed]

(4)

[Repealed]

Section 92(2): replaced, on 7 May 2015, by section 26 of the Immigration Amendment Act 2015 (2015 No 48).

Section 92(3): repealed, on 7 May 2015, by section 26 of the Immigration Amendment Act 2015 (2015 No 48).

Section 92(4): repealed, on 7 May 2015, by section 26 of the Immigration Amendment Act 2015 (2015 No 48).

93 Obligation to inform of all relevant facts, including changed circumstances

(1)

It is the responsibility of the person submitting an expression of interest to ensure that all information, evidence, and submissions that the person wishes to have considered in support of the expression of interest are provided when the expression of interest is submitted.

(2)

The Minister or immigration officer considering the expression of interest—

(a)

is not obliged to seek any further information, evidence, or submissions; and

(b)

may determine whether to issue an invitation to apply for a visa on the basis of the information, evidence, and submissions provided.

(3)

Nothing in subsection (2) prevents the Minister or immigration officer from taking into account any information, evidence, or submissions provided by the person at any time before the decision whether to issue the invitation is made.

(4)

It is also the responsibility of a person expressing an interest in obtaining an invitation to apply for a visa under section 94 to inform the Minister or an immigration officer of any relevant fact, including any material change in circumstances that occurs after the expression of interest is notified, if that fact—

(a)

may affect the decision to issue an invitation to apply; or

(b)

may affect a decision to grant a visa to the person.

(5)

Without limiting the scope of the expression material change in circumstances, such a change may relate to the person submitting an expression of interest or other person included in the expression of interest, and may relate to any matter relevant to this Act or immigration instructions.

(6)

Failure to comply with the obligation set out in subsection (4) must be treated as concealing relevant information for the purposes of sections 157 and 158.

Compare: 1987 No 74 s 13D

Section 93(6): amended, on 7 May 2015, by section 27 of the Immigration Amendment Act 2015 (2015 No 48).

94 Invitation to apply for visa

(1)

An invitation to apply for a visa is a statement by or on behalf of the Minister or an immigration officer, whether made electronically or in writing, that the person to whom it is made is authorised to make an application for a visa of a particular class or type.

(2)

No person may apply for a visa without an invitation if the person is of a class or category of person that, by virtue of immigration instructions, may apply for the visa only if invited to do so.

(3)

If an invitation is required by immigration instructions for the person to be able to apply for the relevant visa, the statement of the invitation is sufficient authority for the making of the application (unless the invitation is subsequently revoked).

(4)

Despite anything in this section or in any immigration instructions, the Minister may, by special direction, issue an invitation to apply for a visa to a person whether or not the person has expressed his or her interest in the manner required by this Act or immigration instructions.

(5)

An invitation to apply for a visa may at any time be revoked by the Minister or an immigration officer. A revocation takes immediate effect.

(6)

A decision as to whether to issue an invitation to apply for a visa may be made having regard to the immigration instructions applicable at the time of the decision, even if they differ from the immigration instructions applicable at the time of notification of the relevant expression of interest.

(7)

In a case where residence or restricted temporary entry instructions change between the date of issue of an invitation to apply for a residence class visa or visa to which restricted temporary entry instructions apply and the date on which a person’s application for the relevant visa is made in response to that invitation, the decision on that application must be made in terms of the immigration instructions applicable at the time the application for the visa was made (and not at the time the invitation was issued), and, subject to sections 72(3) and 76(3), any discretion exercised must be in terms of those instructions.

Compare: 1987 No 74 s 13E

95 Issue of invitation to apply for visa matter of discretion

(1)

No person is entitled as of right to an invitation to apply for a visa.

(2)

The decision whether to issue such an invitation, or to revoke such an invitation once issued, is a matter for the discretion of the Minister or, subject to any special direction, an immigration officer.

Compare: 1987 No 74 s 10A

Part 4 Arrivals and departures

Advance passenger processing

96 Responsibilities of carrier, and person in charge, of commercial craft before it departs from another country to travel to New Zealand

(1)

This section applies to a carrier, and a person in charge, of a commercial craft, if—

(a)

the carrier or the person is notified by the chief executive that—

(i)

the carrier or the person is a person of a kind who must comply with the responsibilities specified in subsection (2) before a craft in relation to which the carrier or the person is the carrier or the person in charge departs from another country to travel to New Zealand; or

(ii)

the craft in relation to which the carrier or the person is the carrier or the person in charge is a craft of a kind in relation to which the carrier or the person must comply with the responsibilities specified in subsection (2) before the craft departs from another country to travel to New Zealand; and

(b)

either—

(i)

the craft is scheduled to travel to New Zealand in the course of a scheduled international service; or

(ii)

it is proposed that the craft travel to New Zealand from another country.

(2)

The carrier or the person must, before the craft departs from another country to travel to New Zealand,—

(a)

obtain from every person who intends to board the craft for the purpose of travelling to New Zealand the information prescribed for the purposes of this subsection:

(b)

provide to the chief executive, by means of an approved system, the information prescribed for the purposes of this subsection.

(3)

The chief executive may, in writing, exempt a carrier or a person to whom this section applies from complying with some or all of the carrier’s or the person’s responsibilities under this section in all or any specified circumstances.

(4)

In this section, scheduled international service means a series of flights or voyages that are—

(a)

performed by a craft for the transport of passengers, cargo, or mail between New Zealand and 1 or more points in any other country or territory, if the flights or voyages are so regular or frequent as to constitute a systematic service, whether or not in accordance with a published timetable; and

(b)

operated in a manner where each flight or voyage is open to use by members of the public.

Compare: 1987 No 74 s 125AA(1), (2), (3)

97 Chief executive may make decision about person boarding craft for purpose of travelling to New Zealand

(1)

The chief executive may decide that a person in relation to whom information has been received under section 96(2)—

(a)

may board a craft for the purpose of travelling to New Zealand; or

(b)

may not board a craft for the purpose of travelling to New Zealand; or

(c)

may board a craft for the purpose of travelling to New Zealand only if he or she complies with conditions specified by the chief executive.

(2)

The chief executive—

(a)

must notify a person to whom section 96 applies of a decision made under subsection (1); and

(b)

may do so in any form he or she thinks appropriate, including, but not limited to, by means of an approved system, which may contain code that represents the outcome of the decision; and

(c)

may do so in any manner he or she thinks appropriate, including, but not limited to, by means of an automated electronic notification.

(3)

The chief executive—

(a)

may make a decision under subsection (1) whether or not the person to whom the decision relates—

(i)

holds a visa to travel to New Zealand; or

(ii)

has been granted entry permission; or

(iii)

is a person to whom a visa waiver applies; but

(b)

may not make a decision under subsection (1)(b) or (c) if the person to whom the decision relates is—

(i)

a New Zealand citizen who, before boarding the craft, holds and produces a New Zealand passport; or

(ii)

a New Zealand citizen who, before boarding the craft, holds and produces a foreign passport containing an endorsement of a type described in section 384; or

(iii)

a New Zealand citizen who, before boarding the craft, produces a returning resident’s visa (within the meaning of section 2(1) of the former Act) endorsed in a current passport; or

(iv)

a permanent resident; or

(v)

a resident visa holder, unless the person has not previously travelled to New Zealand as the holder of that visa and the visa was granted outside New Zealand.

(4)

A person in relation to whom a decision is made under subsection (1)—

(a)

may not appeal the decision to any court, the Tribunal, the Minister, or otherwise:

(b)

may bring review proceedings in relation to the decision only on the grounds that he or she is a person in relation to whom that decision should not have been made because he or she is a person to whom subsection (3)(b) applies.

(5)

The chief executive is not obliged to give reasons for a decision made under subsection (1) other than that subsection (1) applies, and section 23 of the Official Information Act 1982 does not apply in respect of the decision.

(6)

To avoid doubt, nothing in section 305 applies to the chief executive when he or she is notifying a carrier, or a person in charge, of a commercial craft to whom section 96 applies of a decision made under subsection (1).

Compare: 1987 No 74 s 125AB

98 Grant of entry permission outside New Zealand

(1)

An immigration officer may grant entry permission to a person outside New Zealand if the person—

(a)

is the holder of a visa (other than a transit visa); and

(b)

is in a place designated by the chief executive under section 383; and

(c)

has applied for entry permission in the prescribed manner.

(2)

If a person outside New Zealand does not apply for entry permission under subsection (1)(c), section 103 applies to the person on his or her arrival in New Zealand.

99 New Zealand citizen may confirm citizenship before arrival in New Zealand

(1)

A New Zealand citizen who intends entering New Zealand as a New Zealand citizen may, before boarding a craft for the purpose of travelling to New Zealand, comply with any requirements prescribed for the purpose of confirming a person’s status as a New Zealand citizen.

(2)

Otherwise, the person must fulfil the corresponding responsibility under section 103(1)(e) on his or her arrival in New Zealand.

(3)

Subsections (4) and (5) apply to a person who—

(a)

intends to enter New Zealand as a New Zealand citizen; and

(b)

presents one of the following types of passport before boarding a craft for the purpose of travelling to New Zealand:

(i)

a New Zealand passport; or

(ii)

a foreign passport containing an endorsement of a type described in section 384; or

(iii)

a foreign passport containing a returning resident’s visa (within the meaning of section 2(1) of the former Act).

(4)

The person may, before boarding the craft, allow himself or herself to be photographed to confirm his or her New Zealand citizenship.

(5)

Otherwise, the person must fulfil the corresponding requirement under section 104 on his or her arrival in New Zealand.

(6)

A photograph taken under subsection (4) (including any electronic record of the photograph) may be compared with—

(a)

information in the person’s passport; or

(b)

information held by the department of State for the time being responsible for the administration of the Passports Act 1992; or

(c)

if the person does not hold a New Zealand passport, information held by the Department.

(7)

A photograph taken under subsection (4) must not be retained by the Department if the fact of the person’s New Zealand citizenship is confirmed.

(8)

A photograph taken under subsection (4) that does not confirm the fact of the person’s New Zealand citizenship may be retained for the purposes of administering this Act.

100 Collection of biometric information from proposed arrivals

(1)

A person who is proposing to board a craft for the purposes of travelling to New Zealand must allow biometric information to be collected from him or her.

(2)

The requirement in subsection (1) does not apply if the person is exempt from providing the information in accordance with regulations made under section 400(l).

(3)

If the person fails to allow the biometric information to be collected, the chief executive may decide that the person—

(a)

may not board the craft; or

(b)

may board the craft only if the person complies with conditions specified by the chief executive.

(4)

Nothing in this section applies to a person who, before boarding the craft, holds and produces—

(a)

a New Zealand passport; or

(b)

a foreign passport containing an endorsement of a type described in section 384; or

(c)

a foreign passport containing a returning resident’s visa (within the meaning of section 2(1) of the former Act).

Section 100: not yet in force.

Obligations in relation to craft coming to New Zealand

101 Obligations in relation to craft en route to or arriving in New Zealand

(1)

Except as provided in regulations made under this Act, the carrier, and the person in charge, of any craft that is en route to New Zealand or that berths, lands, or arrives in New Zealand from another country have the following responsibilities:

(a)

to ensure that all persons boarding the craft have the prescribed documentation for immigration purposes:

(b)

on arrival of the craft at a place that is or contains an immigration control area,—

(i)

to produce for inspection such prescribed documents as an immigration officer may specify; and

(ii)

if applicable, to prevent, with such reasonable force as may be necessary, the disembarkation of any person from the craft otherwise than into an immigration control area:

(c)

subject to section 25 of the Customs and Excise Act 1996, where the craft arrives, or is to arrive, in New Zealand elsewhere than at a place that is or contains an immigration control area because of weather conditions or other unforeseen circumstances, to make appropriate arrangements for all persons on board the craft to report in the manner and within the time prescribed for the purposes of section 103(1)(b):

(d)

if a stowaway has been found on the craft, to report that fact to an immigration officer as soon as practicable.

(2)

In addition to any obligations under section 102, the carrier, and the person in charge, of a craft that is en route to New Zealand or that berths, lands, or arrives in New Zealand from another country have the following responsibilities:

(a)

in the case of a craft that is not a commercial passenger aircraft on a scheduled international service, to supply on demand by an immigration officer a list giving such details as the officer may specify concerning every person (whether a member of the crew or a passenger) who has been on board the craft since its last port of call:

(b)

in the case of a commercial passenger aircraft on a scheduled international service, to supply such available information as may be required by an immigration officer relating to any person who may have been on board the craft since its last place of call.

(3)

Once a craft that is en route to New Zealand has entered the territorial limits of New Zealand, the person in charge of the craft is, for the purpose of ensuring or facilitating compliance with this Act, responsible for preventing, with such reasonable force as may be necessary, the disembarkation of any person from the craft other than for the purpose of carrying out the person’s responsibilities under section 103.

(4)

Subsections (1) to (3) are subject to any applicable special direction or to regulations made under section 400.

(5)

In this section, scheduled international service has the meaning given to it in section 96(4).

Compare: 1987 No 74 s 125(1), (2)

102 Obligations of carriers, and persons in charge, of craft to provide information

(1)

The purpose of this section is to facilitate—

(a)

the exercise or performance of powers, functions, or duties under this Act:

(b)

the prevention, detection, investigation, prosecution, and punishment of immigration offences:

(c)

the protection of border security.

(2)

A person (being a carrier, or a person in charge, of a craft) to whom section 96 applies must provide the chief executive with the information prescribed for the purposes of this subsection about every person who intended to board the craft for the purpose of travelling to New Zealand, including persons who did not in fact board the craft for any reason (including because of a decision made by the chief executive under section 97).

(3)

The chief executive may, in writing, exempt a person to whom section 96 applies from providing some or all of the information required under subsection (2) in all or any specified circumstances.

(4)

A person granted an exemption under subsection (3) must, despite that exemption, comply with any request made by the chief executive, not more than 14 days before or after the arrival of a craft in New Zealand, for some or all of the information prescribed for the purposes of subsection (2).

(5)

Information required under subsection (2) or (4) must be provided, or otherwise made available,—

(a)

in a form and manner approved by the chief executive; and

(b)

on the date, or at the time, specified by the chief executive; and

(c)

for the period, if any, specified by the chief executive.

(6)

Information provided or otherwise made available to the chief executive under this section may be retained by the chief executive for any of the purposes listed in subsection (1).

Section 102: replaced, on 6 June 2015, by section 28 of the Immigration Amendment Act 2015 (2015 No 48).

Obligations on persons arriving in New Zealand

103 Obligations on persons arriving in New Zealand

(1)

Except as provided in regulations made under this Act, or in any special direction, every person who arrives in New Zealand from another country has the following responsibilities:

(a)

if the person arrives at an immigration control area, to present himself or herself to an immigration officer without delay:

(b)

if the person arrives at a place other than an immigration control area, to present himself or herself in the prescribed manner within the prescribed time:

(c)

to apply for a visa in the prescribed manner, if the person is a person to whom a visa waiver applies:

(d)

to apply for entry permission in the prescribed manner unless—

(i)

the person is a New Zealand citizen and holds and produces a New Zealand passport; or

(ii)

the person is a New Zealand citizen and holds and produces a foreign passport containing an endorsement of a type described in section 384; or

(iii)

the person is a New Zealand citizen and holds and produces a foreign passport containing a returning resident’s visa (within the meaning of section 2(1) of the former Act); or

(iv)

the person is a transit passenger who holds a transit visa or is a person to whom a transit visa waiver applies:

(da)

to produce, on demand by an immigration officer, the person’s passport or certificate of identity and any travel tickets held by the person:

(e)

in the case of a New Zealand citizen who is entering New Zealand as a New Zealand citizen, to comply with any requirements prescribed for the purpose of confirming the person’s status as a New Zealand citizen:

(f)

to comply with any direction of an immigration officer to remain in the immigration control area or other prescribed place, or a specified part of the area or place:

(g)

to comply with any other directions of an immigration officer while in an immigration control area.

(2)

However, the obligation in subsection (1)(e) does not apply if the person, before arriving in New Zealand, has already complied with those requirements in accordance with section 99.

(3)

Where a person arriving in New Zealand is, by reason of age or disability, incapable of complying with any of the requirements of subsection (1), it is the responsibility of the parent or guardian or other person for the time being having the care of that person to comply with those requirements on that person’s behalf.

(4)

Every passport or certificate of identity produced by a person to an immigration officer under this section—

(a)

must, if the person is a New Zealand citizen or is granted entry permission, be returned to the person before the person leaves the immigration control area; or

(b)

if the person is refused entry permission, may be retained by the immigration officer, but must be returned to the person on the person’s departure from New Zealand.

(5)

To avoid doubt, a New Zealand citizen who is a national of 1 or more other countries and who wishes to enter New Zealand other than as a New Zealand citizen must apply for entry permission in the prescribed manner.

Compare: 1987 No 74 s 126(1), (3)

Section 103(1)(d)(iv): replaced, on 6 November 2015, by section 29(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 103(1)(da): inserted, on 7 May 2015, by section 29(2) of the Immigration Amendment Act 2015 (2015 No 48).

104 New Zealand citizens arriving in New Zealand to be photographed

(1)

Subsection (2) applies to a person who—

(a)

arrives in New Zealand; and

(b)

is entering New Zealand as a New Zealand citizen; and

(c)

presents one of the following types of passport:

(i)

a New Zealand passport; or

(ii)

a foreign passport containing an endorsement of a type described in section 384; or

(iii)

a foreign passport containing a returning resident’s visa (within the meaning of section 2(1) of the former Act).

(2)

The person must allow himself or herself to be photographed to confirm his or her New Zealand citizenship.

(3)

A photograph taken under subsection (2) (including any electronic record of the photograph) may be compared with—

(a)

information in the person’s passport; or

(b)

information held by the department of State for the time being responsible for the administration of the Passports Act 1992; or

(c)

if the person does not hold a New Zealand passport, information held by the Department.

(4)

A photograph taken under subsection (2) must not be retained by the Department if the fact of the person’s New Zealand citizenship is confirmed.

(5)

A photograph taken under subsection (2) that does not confirm the fact of the person’s New Zealand citizenship may be retained for the purposes of administering this Act.

(6)

The obligation in subsection (2)—

(a)

is in addition to any requirements prescribed for the purposes of section 103(1)(e) that may apply; but

(b)

is subject to any prescribed exemptions made in accordance with section 402(l).

(7)

However, the obligation in subsection (2) does not apply if the person, before arriving in New Zealand, has already allowed himself or herself to be photographed in accordance with section 99.

Section 104: not yet in force.

105 Responsibilities of internationally ticketed passengers travelling by air within New Zealand

(1)

Where an internationally ticketed passenger is using air travel for a domestic sector, this section applies to the passenger from the time at which the passenger enters the departure hall at the commencement of the domestic sector until the time at which he or she leaves the arrival hall at the end of the domestic sector.

(2)

Every person to whom this section applies must produce for inspection on demand by an immigration officer the person’s passport or certificate of identity and the person’s boarding pass or travel tickets, or both, to enable the officer to determine whether the person is entitled to be in New Zealand with or without a visa under this Act.

(3)

Every passport, certificate of identity, boarding pass, or travel ticket produced by a person to an immigration officer under subsection (2)—

(a)

must, if the person is a New Zealand citizen or holds a visa and has been granted entry permission, be inspected immediately and returned to the person as soon as the inspection is concluded; or

(b)

may, if the person does not hold a visa or has not been granted entry permission, be retained by the immigration officer, but must be returned to the person on the person’s departure from New Zealand.

(4)

In this section and section 106,—

customs airport means an aerodrome designated as a customs airport under section 9 of the Customs and Excise Act 1996

domestic passenger

(a)

means a passenger who has an entitlement to air travel for a domestic sector on either—

(i)

an aircraft that begins its journey outside New Zealand and, in the course of that journey, enters New Zealand and travels between at least 2 customs airports in New Zealand; or

(ii)

an aircraft that begins its journey at a customs airport in New Zealand and, in the course of that journey, travels to at least 1 other customs airport in New Zealand before leaving New Zealand; but

(b)

does not include an internationally ticketed passenger

domestic sector means a journey from one customs airport to another within New Zealand

internationally ticketed passenger means a person who has an entitlement to air travel for a domestic sector, the entitlement being included in travel tickets for an international journey that—

(a)

began outside New Zealand; or

(b)

began inside New Zealand and is to continue outside New Zealand.

Compare: 1987 No 74 s 126A

106 Responsibilities of domestic passengers travelling by air within New Zealand

(1)

Where any domestic passenger is using air travel for a domestic sector, this section applies to the passenger from the time at which the passenger enters the departure hall at the commencement of the domestic sector until the time at which he or she leaves the arrival hall at the end of the domestic sector.

(2)

Every person to whom this section applies must—

(a)

produce for inspection on demand by an immigration officer the following documents as the officer may specify:

(i)

the person’s boarding pass:

(ii)

the person’s travel tickets:

(iii)

if carried by the person, his or her passport or certificate of identity:

(iv)

any other prescribed document; or

(b)

if the person is unable to produce the specified document or documents, complete a form approved and issued for the purpose by the chief executive under section 381.

(3)

A demand under subsection (2) may be made of a person only for the purpose of enabling the immigration officer to establish the person’s identity or the person’s entitlement to air travel for a domestic sector, or both.

(4)

Every boarding pass, travel ticket, passport, certificate of identity, or other document produced by a person to an immigration officer under subsection (2) must be either—

(a)

inspected immediately and returned to the person as soon as the inspection has concluded; or

(b)

retained by the immigration officer for as long as is necessary for the officer to determine whether he or she wishes to exercise any power under this Act in relation to the person or the document.

(5)

Nothing in this section limits the exercise by an immigration officer of any power contained in any other provision of this Act.

Compare: 1987 No 74 s 126B

Entry permission

107 Effect of entry permission or refusal of entry permission

(1)

A person granted entry permission to New Zealand may enter New Zealand.

(2)

The grant of entry permission has no effect unless the person also holds a visa.

(3)

Entry permission is granted by the Minister or an immigration officer.

(4)

The effect of a refusal to grant a person entry permission to New Zealand is that—

(a)

any visa the person holds is cancelled; and

(b)

if the person has arrived in New Zealand, the person is liable for turnaround.

108 Decisions on entry permission in relation to residence class visa holders

(1)

The holder of a permanent resident visa must be granted entry permission.

(2)

The holder of a resident visa granted in New Zealand must be granted entry permission.

(3)

The holder of a resident visa granted outside New Zealand must be granted entry permission if it is his or her second or subsequent entry to New Zealand as the holder of the visa.

(4)

If the holder of a resident visa granted outside New Zealand intends travelling to New Zealand for the first time as the holder of the visa and applies for entry permission under section 98(1),—

(a)

the Minister or, subject to any special direction, an immigration officer may, in his or her discretion,—

(i)

grant entry permission to the person; or

(ii)

refuse entry permission to the person; and

(b)

the Minister may, by special direction, impose further conditions on the visa, or vary or cancel any conditions that would otherwise apply to the visa.

(5)

If the holder of a resident visa arrives in New Zealand for the first time as the holder of the visa and the visa was granted outside New Zealand,—

(a)

the Minister or, subject to any special direction, an immigration officer may, in his or her discretion,—

(i)

grant entry permission to the person; or

(ii)

refuse entry permission to the person; and

(b)

the Minister may, by special direction, impose further conditions on the visa, or vary or cancel any conditions that would otherwise apply to the visa.

(6)

The Minister’s or immigration officer’s decision under subsection (4)(a) or (5)(a) must be made, and any discretion exercised, in terms of the residence instructions applicable at the time the person applied for the visa.

(7)

For the purposes of subsections (4) and (5), the following matters are matters for the discretion of the Minister or immigration officer, as the case may be, and, subject to section 187(1)(c), no appeal lies against his or her decision, whether to a court, the Tribunal, the Minister, or otherwise:

(a)

a decision to grant the visa holder entry permission:

(b)

a decision to grant the visa holder entry permission, but to impose, vary, or cancel any conditions of the visa.

(8)

Subsection (7) does not limit or affect the right of the person to bring review proceedings.

(9)

Nothing in this section prevents the Minister, in his or her absolute discretion, from granting entry permission to a person as an exception to residence instructions.

109 Decisions on entry permission in relation to temporary entry class visa holders

(1)

The Minister or, subject to any special direction, an immigration officer may, in his or her discretion,—

(a)

grant the holder of a temporary entry class visa entry permission on the basis of his or her visa; or

(b)

in accordance with section 82, cancel the visa of the holder of a temporary entry class visa, grant a limited visa in its place, and grant the person entry permission on the basis of the limited visa; or

(c)

refuse the holder of a temporary entry class visa entry permission.

(2)

The Minister or an immigration officer may, in his or her discretion, grant the holder of a temporary entry class visa entry permission on the basis of his or her visa but impose further conditions, or vary or cancel any conditions that would otherwise apply to the visa.

(3)

The Minister may also, by special direction, impose further conditions on a temporary entry class visa subject to restricted temporary entry instructions, or vary or cancel any conditions that would otherwise apply to the visa, and grant the holder entry permission.

(4)

A decision under subsection (1) that relates to a temporary entry class visa of a type subject to restricted temporary entry instructions must be made in terms of the temporary entry instructions applicable at the time the person applied for the visa.

(5)

For the purposes of subsections (1) to (3), the following matters are matters for the discretion of the Minister or immigration officer, as the case may be, and no appeal lies against his or her decision, whether to a court, the Tribunal, the Minister, or otherwise:

(a)

a decision to grant the visa holder entry permission on the basis of the existing temporary entry class visa:

(b)

a decision to grant the visa holder entry permission on the basis of the existing temporary entry class visa, but to impose, vary, or cancel conditions relating to stay in New Zealand:

(c)

a decision to refuse the visa holder entry permission.

(6)

Subsection (5) does not limit or affect the right of the person to bring review proceedings.

(7)

Nothing in this section prevents—

(a)

the Minister or an immigration officer, in his or her discretion, from granting entry permission to the holder of a temporary entry class visa (other than a holder of a temporary entry class visa of a type subject to restricted temporary entry instructions) as an exception to temporary entry instructions:

(b)

the Minister, in his or her absolute discretion, from granting entry permission to the holder of a temporary entry class visa of a type subject to restricted temporary entry instructions, as an exception to the restricted temporary entry instructions.

Section 109(6): amended, on 7 May 2015, by section 30 of the Immigration Amendment Act 2015 (2015 No 48).

109A Form of entry permission

(1)

Entry permission is granted by being entered and retained in the records (whether electronic or physical) of the Department in a manner determined by the chief executive.

(2)

Entry permission may (but need not) be evidenced by an endorsement in a passport or certificate of identity.

(3)

To avoid doubt, no electronic or physical record is required to be created for entry permission that is deemed to be granted by or under this Act.

Section 109A: inserted, on 7 May 2015, by section 31 of the Immigration Amendment Act 2015 (2015 No 48).

110 Applicant for entry permission to provide address

A person who applies for entry permission must provide a contact address and an address for service.

(a)
[Repealed]

(b)
[Repealed]

(c)
[Repealed]

Section 110: amended, on 7 May 2015, by section 32(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 110(a): repealed, on 7 May 2015, by section 32(2) of the Immigration Amendment Act 2015 (2015 No 48).

Section 110(b): repealed, on 7 May 2015, by section 32(2) of the Immigration Amendment Act 2015 (2015 No 48).

Section 110(c): repealed, on 7 May 2015, by section 32(2) of the Immigration Amendment Act 2015 (2015 No 48).

111 Collection of biometric information

(1)

An immigration officer may require a person who applies for entry permission (irrespective of whether the application is still being considered, or whether entry permission has been granted or refused) to provide biometric information—

(a)

at any time before the person leaves the immigration control area, designated place, or prescribed place at which the application is made; and

(b)

if the application is not made in New Zealand, at any time before the person leaves the immigration control area or prescribed place at which he or she arrives in New Zealand.

(2)

If a person refuses to allow the biometric information to be collected, the Minister or an immigration officer may—

(a)

refuse to grant entry permission; or

(b)

revoke any entry permission already granted.

(3)

Entry permission may be revoked at any time before the person leaves the immigration control area, designated place, or prescribed place.

(4)

A revocation under this section is made by entry on the records of the Department, and takes effect immediately.

(5)

This section does not apply to persons who, in accordance with regulations made under section 400(l), are exempt from providing biometric information.

(6)

In this section, designated place means a place designated by the chief executive under section 383.

Section 111: replaced, on 7 May 2015, by section 33 of the Immigration Amendment Act 2015 (2015 No 48).

112 Obligation to inform of all relevant facts, including changed circumstances

(1)

It is the responsibility of an applicant for entry permission to ensure that all information, evidence, and submissions that the applicant wishes to have considered in support of the application are provided when the application is made.

(2)

The Minister or immigration officer considering the application—

(a)

is not obliged to seek any further information, evidence, or submissions; and

(b)

may determine the application on the basis of the information, evidence, and submissions provided.

(3)

It is also the responsibility of an applicant for entry permission to inform the Minister or an immigration officer of any relevant fact, including any material change in circumstances that has occurred between the grant of a visa and the application for entry permission on the basis of that visa, if that fact or change in circumstances may affect the decision on the application.

(4)

Without limiting the scope of the expression material change in circumstances in subsection (3), such a change may relate to the applicant or another person included in the application, and may relate to any matter relevant to this Act or immigration instructions.

(5)

Failure to comply with the obligation set out in subsection (3) must be treated as concealing relevant information for the purposes of section 157 or 158.

(6)

It is sufficient grounds for the Minister or an immigration officer to refuse to grant entry permission to a person if the Minister or officer is satisfied that the person,—

(a)

in applying for entry permission, whether personally or through an agent, submitted false or misleading information or withheld relevant information that was potentially prejudicial to the grant of the permission; or

(b)

did not ensure that the Minister or an immigration officer was informed of any material change in circumstances (within the meaning of subsection (3)) between the time of being granted a visa and the time of applying for entry permission.

Section 112(5): amended, on 7 May 2015, by section 34(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 112(6): amended, on 7 May 2015, by section 34(2) of the Immigration Amendment Act 2015 (2015 No 48).

113 Revocation of entry permission for administrative error

(1)

An immigration officer may revoke a person’s entry permission if the immigration officer believes on reasonable grounds that the entry permission was granted as a result of an administrative error.

(2)

Entry permission may be revoked at any time before the person leaves the immigration control area where the error was made.

(3)

If the person has been granted entry permission outside New Zealand, entry permission may be revoked at any time before—

(a)

the person leaves the place designated by the chief executive under section 383 where the error was made; or

(b)

the person leaves the arrival hall of the airport or port at which he or she arrived in New Zealand.

(4)

A revocation under this section is made by entry on the records of the Department, and takes effect immediately.

Turnaround provisions

114 Person failing to present and apply for entry permission

A constable may arrest a person, and present him or her to an immigration officer for the purposes of making decisions in relation to the person under this Act, if the constable has good cause to suspect that—

(a)

the person arrived in New Zealand from another country elsewhere than at an immigration control area or other prescribed place, and did not comply with the requirements of section 103 or any regulations referred to in that section; or

(b)

the person recently arrived in New Zealand from another country elsewhere than at an immigration control area or other prescribed place and will not comply with the requirements of section 103 or any regulations referred to in that section; or

(c)

the person arrived in New Zealand from another country at an immigration control area or other prescribed place and did not comply with the requirements of section 103 or any regulations referred to in that section.

Compare: 1987 No 74 s 126(6)

115 Arrest, detention, and turnaround of persons

(1)

This section applies to any person arriving in New Zealand from another country who—

(a)

is a person to whom a visa waiver applies and who fails to apply for a visa and entry permission or is refused a visa; or

(b)

is not a person to whom a visa waiver applies and is not the holder of a visa granted under this Act; or

(c)

holds a visa but—

(i)

the visa is subsequently cancelled under section 64(1)(b), (c), (d), or (e); or

(ii)

the visa is cancelled under section 67 while the person is in an immigration control area (unless some other visa is granted to the person or the person is a New Zealand citizen); or

(d)

is a stowaway; or

(e)

after arriving in New Zealand, is a person whose transit visa is cancelled by an immigration officer under section 90; or

(f)

is a transit passenger who holds a transit visa or is a person to whom a transit visa waiver applies, and the transit period concerned has expired.

(2)

The person—

(a)

is, for the purposes of this Act, unlawfully in New Zealand; and

(b)

does not have any rights of appeal on humanitarian grounds so long as this section applies to the person; and

(c)

is liable to be arrested and detained under Part 9; and

(d)

is liable for turnaround.

Section 115(1)(f): replaced, on 6 November 2015, by section 35 of the Immigration Amendment Act 2015 (2015 No 48).

116 When section 115 ceases to apply to person

(1)

Section 115 ceases to apply to a person upon the earliest of the following:

(a)

the expiry of 72 hours after the person (including a stowaway) first reports or presents to an immigration officer after arriving in New Zealand, unless that person is sooner arrested and detained or otherwise dealt with under Part 9:

(b)

in the case of a person whose visa is deemed to be cancelled under section 64(1)(d)(ii), 72 hours after the time when the person is physically located by an immigration officer or a constable following the person’s leaving the immigration control area in contravention of the instruction of an immigration officer, unless the person is sooner arrested and detained or otherwise dealt with under Part 9:

(c)

the person being granted a visa and entry permission:

(d)

the expiry of a warrant of commitment issued under section 317 or 318, unless a further warrant of commitment is issued or the person is released on conditions under Part 9 or agrees to residence and reporting requirements under section 315:

(e)

in the case of a person detained under a mass arrival warrant issued under section 317B, the expiry of the mass arrival warrant, unless a further warrant of commitment is issued under section 317, 317E, 318, or 323 or the person is released on conditions under Part 9, or agrees to residence and reporting requirements under section 315.

(2)

This section is subject to section 117.

(3)

For the purposes of this section, a stowaway is deemed to arrive in New Zealand at the time when the craft on which the stowaway is travelling crosses into the territorial limits of New Zealand.

Compare: 1987 No 74 s 128(1)–(5)

Section 116(1)(e): inserted, on 19 June 2013, by section 17 of the Immigration Amendment Act 2013 (2013 No 39).

117 When turnaround ceases to apply to person remanded in custody or imprisoned

(1)

Subsection (2) applies to a person who is—

(a)

liable for turnaround; and

(b)

remanded in custody for suspected criminal offending, or imprisoned in a prison for criminal offending.

(2)

The person remains liable for turnaround until the expiry of 72 hours after the person is released from custody or imprisonment.

(3)

Subsection (4) applies to a person who is liable for turnaround and who is arrested and detained not later than 72 hours after he or she has been released from custody or imprisonment for suspected criminal offending, or criminal offending.

(4)

The person remains liable for turnaround until the earliest of the following:

(a)

the person is granted a visa and entry permission:

(b)

the expiry of a warrant of commitment issued under section 317 or 318, unless a further warrant of commitment is issued or the person is released on conditions under Part 9 or agrees to residence and reporting requirements under section 315:

(c)

in the case of a person detained under a mass arrival warrant issued under section 317B, the expiry of the mass arrival warrant, unless a further warrant of commitment is issued under section 317, 317E, 318, or 323 or the person is released on conditions under Part 9, or agrees to residence and reporting requirements under section 315.

Section 117(4): amended, on 19 June 2013, by section 17 of the Immigration Amendment Act 2013 (2013 No 39).

Section 117(4)(c): inserted, on 19 June 2013, by section 17 of the Immigration Amendment Act 2013 (2013 No 39).

Obligations in relation to departure from New Zealand

118 Obligations of carriers, and persons in charge, of craft

(1)

The carrier, and the person in charge, of a craft leaving New Zealand have the following responsibilities:

(a)

to allow the following persons to board the craft for passage from New Zealand:

(i)

any person being deported:

(ii)

any person liable for turnaround:

(b)

in respect of such a person who is delivered to the craft by a constable or an immigration officer, to take all such reasonable steps (including the use of reasonable force) as may be necessary to detain that person on board the craft until it has left the territorial limits of New Zealand:

(c)

to report to an immigration officer immediately before the departure of the craft details of any crew member or person of a class prescribed for the purposes of this section who—

(i)

was on board the craft when it arrived in New Zealand; and

(ii)

is not then on board the craft.

(2)

The carrier of a craft leaving New Zealand also has the following responsibilities:

(a)

to provide passage from New Zealand at the cost in all respects of the carrier, or to bear the cost of passage from New Zealand by any other carrier, of any person—

(i)

who was on board the craft, or any other craft operated by the carrier, when it arrived in New Zealand and did not hold a visa permitting travel to New Zealand and who, on arrival in New Zealand, was—

(A)

refused a visa and entry permission; or

(B)

granted a visa and entry permission, but then had that entry permission revoked; or

(ii)

who arrived in New Zealand as a member of the crew of the craft, or of any other craft operated by the carrier, and who remained unlawfully in New Zealand after the departure of that craft:

(b)

to pay any costs incurred by the Crown in detaining and maintaining a person described in paragraph (a) pending the person’s departure from New Zealand.

(3)

Subsections (1) and (2) are subject to any applicable special direction or to regulations made under section 400.

(4)

The responsibility of the carrier and person in charge under subsection (1)(a) is not affected by the class or type of seat available on the craft, but is subject to—

(a)

the safety of the craft; and

(b)

the safety of the other persons on the craft; and

(c)

in relation to a person being deported, an offer to pay the cost of passage having been received.

Compare: 1987 No 74 s 125(3), (4), (5)

Section 118(2)(a)(i): replaced, on 7 May 2015, by section 36 of the Immigration Amendment Act 2015 (2015 No 48).

119 Obligations of persons leaving New Zealand

(1)

Except as provided in regulations made under this Act, or in any special direction, every person leaving New Zealand has the following responsibilities:

(a)

to present himself or herself to an immigration officer at an immigration control area or any other prescribed place:

(b)

to comply with any direction of an immigration officer while at such an area or place:

(c)

to provide such information and complete such documentation as may be prescribed.

(2)

Where a person leaving New Zealand is, by reason of age or disability, incapable of complying with any of the requirements of subsection (1), it is the responsibility of the parent or guardian or other person for the time being having the care of that person to comply with those requirements on that person’s behalf.

Compare: 1987 No 74 s 126(2), (3)

120 Persons other than New Zealand citizens leaving New Zealand to allow biometric information to be collected

(1)

A person leaving New Zealand who is not a New Zealand citizen must allow biometric information to be collected from him or her.

(2)

The requirement in subsection (1) does not apply if the person is exempt from providing the information in accordance with regulations made under section 400(l).

Special provision for emergencies, etc

121 Persons deemed not to leave New Zealand in certain circumstances

(1)

For the purposes of this Act, a person is deemed not to leave New Zealand if he or she departs for another country on any craft and, before arriving in another country,—

(a)

is forced to return to New Zealand by reason of any emergency affecting the craft; or

(b)

returns to New Zealand because of any other emergency or circumstances beyond that person’s control.

(2)

Subsection (1) does not apply to a person liable for turnaround.

122 Special provisions relating to persons returning to New Zealand in emergency or other circumstances beyond their control

Subject to sections 15 and 16, where the holder of a temporary entry class visa departs from New Zealand for another country on any craft and—

(a)

before arriving in any other country is forced to return, or returns, to New Zealand by reason of any emergency affecting the craft, or because of any other emergency or circumstances beyond the person’s control; and

(b)

the person’s visa has expired, or is due to expire, at any time between the person’s departure from New Zealand and the date 14 days after the person’s return to New Zealand,—

an immigration officer must, on application by the person, grant him or her a temporary entry class visa (current until a date not earlier than the 14th day following that return) and entry permission.

Compare: 1987 No 74 s 127

Protection for carriers, and persons in charge, of craft

123 Protection for carriers, and persons in charge, of craft

A person who in good faith imposes reasonable measures, including restraint or reasonable force, on another person in accordance with his or her responsibilities under section 101 or 118 is not guilty of an offence and is not liable to any civil proceedings in respect of those measures.

Compare: 1987 No 74 s 125(9)

Part 5 Refugee and protection status determinations

124 Purpose of Part

The purpose of this Part is to provide a statutory basis for the system by which New Zealand—

(a)

determines to whom it has obligations under the United Nations Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees; and

(b)

codifies certain obligations, and determines to whom it has these obligations, under—

(i)

the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment:

(ii)

the International Covenant on Civil and Political Rights.

Compare: 1987 No 74 s 129A

125 Refugee or protection status to be determined under this Act

(1)

Every person who seeks recognition as a refugee in New Zealand under the Refugee Convention must have that claim determined in accordance with this Act.

(2)

Every person who seeks recognition as a protected person in New Zealand must have that claim determined in accordance with this Act.

(3)

Every question as to whether a person should continue to be recognised as a refugee in New Zealand or as a protected person in New Zealand must be determined in accordance with this Act.

(4)

Nothing in subsection (1) affects section 126.

Compare: 1987 No 74 s 129C

126 Recognition of refugees selected outside New Zealand

A person must be recognised as a refugee in New Zealand, without the need for submission and determination of a claim under this Part, if, whether before or after the commencement of this section, he or she has been—

(a)

recognised as a refugee outside New Zealand; and

(b)

brought to New Zealand under a government mandated programme on the basis of that recognition.

Compare: 1987 No 74 s 129L(2)

127 Context for decision making

(1)

Every claim under this Part must be determined by a refugee and protection officer.

(2)

In carrying out his or her functions under this Act, a refugee and protection officer must act—

(a)

in accordance with this Act; and

(b)

to the extent that a matter relating to a refugee or a person claiming recognition as a refugee is not dealt with in this Act, in a way that is consistent with New Zealand’s obligations under the Refugee Convention.

(3)

The text of the Refugee Convention is set out in Schedule 1.

Compare: 1987 No 74 s 129D

128 Matter not finally determined until expiry of appeal period or when appeal determined

A matter under this Part must not be treated as finally determined until—

(a)

the expiry of the appeal period for any appeal relating to the matter; or

(b)

if a person lodges an appeal, the appeal is determined.

Claims for recognition as refugee or protected person

129 Recognition as refugee

(1)

A person must be recognised as a refugee in accordance with this Act if he or she is a refugee within the meaning of the Refugee Convention.

(2)

A person who has been recognised as a refugee under subsection (1) cannot be deported from New Zealand except in the circumstances set out in section 164(3).

130 Recognition as protected person under Convention Against Torture

(1)

A person must be recognised as a protected person in New Zealand under the Convention Against Torture if there are substantial grounds for believing that he or she would be in danger of being subjected to torture if deported from New Zealand.

(2)

Despite subsection (1), a person must not be recognised as a protected person in New Zealand under the Convention Against Torture if he or she is able to access meaningful domestic protection in his or her country or countries of nationality or former habitual residence.

(3)

For the purposes of determining whether there are substantial grounds for belief under subsection (1), the refugee and protection officer concerned must take into account all relevant considerations, including, if applicable, the existence in the country concerned of a consistent pattern of gross, flagrant, or mass violations of human rights.

(4)

A person who has been recognised as a protected person under subsection (1) cannot be deported from New Zealand except in the circumstances set out in section 164(4).

(5)

In this section, torture has the same meaning as in the Convention Against Torture.

131 Recognition as protected person under Covenant on Civil and Political Rights

(1)

A person must be recognised as a protected person in New Zealand under the Covenant on Civil and Political Rights if there are substantial grounds for believing that he or she would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand.

(2)

Despite subsection (1), a person must not be recognised as a protected person in New Zealand under the Covenant on Civil and Political Rights if he or she is able to access meaningful domestic protection in his or her country or countries of nationality or former habitual residence.

(3)

For the purposes of determining whether there are substantial grounds for belief under subsection (1), the refugee and protection officer concerned must take into account all relevant considerations, including, if applicable, the existence in the country concerned of a consistent pattern of gross, flagrant, or mass violations of human rights.

(4)

A person who has been recognised as a protected person under subsection (1) cannot be deported from New Zealand except in the circumstances set out in section 164(4).

(5)

For the purposes of this section,—

(a)

treatment inherent in or incidental to lawful sanctions is not to be treated as arbitrary deprivation of life or cruel treatment, unless the sanctions are imposed in disregard of accepted international standards:

(b)

the impact on the person of the inability of a country to provide health or medical care, or health or medical care of a particular type or quality, is not to be treated as arbitrary deprivation of life or cruel treatment.

(6)

In this section, cruel treatment means cruel, inhuman, or degrading treatment or punishment.

132 Claims not to be accepted from certain persons

(1)

A refugee and protection officer must not consider a claim by a person who is—

(a)

a New Zealand citizen; or

(b)

a resident or permanent resident, unless—

(i)

the person has been served with a deportation liability notice; or

(ii)

the person is named in an Order in Council made under section 163.

(2)

Nothing in this section affects the power of a refugee and protection officer to re-open a claim for further consideration under any of sections 143 to 147.

Compare: 1987 No 74 s 129K

133 How claim made

(1)

A claim is made as soon as a person signifies his or her intention to seek recognition as a refugee or a protected person in New Zealand to a representative of the Department or to a constable.

(2)

Once a claim is made, the claimant must, on request by a representative of the Department, confirm the claim in writing in the prescribed manner.

(3)

A claimant must as soon as possible endeavour to provide to a refugee and protection officer all information relevant to his or her claim, including—

(a)

a statement of the grounds for the claim seeking recognition as a refugee or a protected person; and

(b)

a statement of any grounds for any other potential claim seeking recognition as a refugee or a protected person.

(4)

If a claimant is aware that any member of his or her immediate family who is in New Zealand is seeking recognition as a refugee or a protected person, the claimant must, as soon as possible after making a claim, inform a refugee and protection officer and, if possible, state whether the family member’s claim is on different grounds.

(5)

A claimant must provide a refugee and protection officer with a contact address and an address for service.

Compare: 1987 No 74 s 129G(1)–(4)

Section 133(5): replaced, on 7 May 2015, by section 37 of the Immigration Amendment Act 2015 (2015 No 48).

134 Whether to accept claim for consideration

(1)

In determining whether to accept a claim for consideration, a refugee and protection officer may take into account whether,—

(a)

in light of any international arrangement or agreement, the claimant may have lodged, or had the opportunity to lodge, a claim for refugee status in another country:

(b)

in light of any international arrangement or agreement, the claimant may have lodged, or had the opportunity to lodge, a claim for protection in another country:

(c)

1 or more of the circumstances relating to the claim were brought about by the claimant—

(i)

acting otherwise than in good faith; and

(ii)

for a purpose of creating grounds for recognition under section 129.

(2)

A refugee and protection officer may decline to accept a claim for consideration where,—

(a)

in light of any international arrangement or agreement, the claimant may have lodged, or had the opportunity to lodge, a claim for refugee status in another country:

(b)

in light of any international arrangement or agreement, the claimant may have lodged, or had the opportunity to lodge, a claim for protection in another country.

(3)

A refugee and protection officer must decline to accept for consideration a claim for recognition as a refugee if the officer is satisfied that 1 or more of the circumstances relating to the claim were brought about by the claimant—

(a)

acting otherwise than in good faith; and

(b)

for a purpose of creating grounds for recognition under section 129.

(4)

For the purposes of determining the matter in subsection (3), the refugee and protection officer must not treat the actions of any other person in relation to the claim or the claimant as a mitigating factor.

(5)

In this section, international arrangement or agreement means an arrangement or agreement—

(a)

between New Zealand and 1 or more other countries in respect of the processing of claims for refugee or protection status; and

(b)

that was entered into only after the Minister was satisfied that—

(i)

the country is a party to the Refugee Convention, the Convention Against Torture, and the Covenant on Civil and Political Rights; and

(ii)

the country has appropriate processes for dealing with refugee and protection claims.

135 Claimant responsible for establishing claim

(1)

It is the responsibility of a claimant to establish his or her claim for recognition under section 129, 130, or 131 as a refugee or a protected person.

(2)

To this end, the claimant must ensure that, before a refugee and protection officer makes a determination on his or her claim, all information, evidence, and submissions—

(a)

that the claimant wishes to have considered in support of the claim are provided to the refugee and protection officer; and

(b)

that the claimant would wish to have considered in support of any other potential claim under section 129, 130, or 131 are provided to the refugee and protection officer.

Compare: 1987 No 74 s 129G(5)

135A Suspension of determination of claim

(1)

This section applies to a claim if the processing of the claim is suspended in accordance with regulations made under section 400.

(2)

For the duration of the suspension, a refugee and protection officer must not—

(a)

determine the claim in accordance with sections 136 and 137; or

(b)

make a decision on the claim in accordance with section 138.

Section 135A: inserted, on 19 June 2013, by section 7 of the Immigration Amendment Act 2013 (2013 No 39).

136 How refugee and protection officer to determine claim

(1)

For the purpose of determining a claim, a refugee and protection officer must determine the matters set out in section 137.

(2)

In doing so, the refugee and protection officer may seek information from any source, but is not obliged to seek any information, evidence, or submissions further to that provided by the claimant.

(3)

The refugee and protection officer may determine the procedures that will be followed on the claim, subject to—

(a)

this Part; and

(b)

any regulations made for the purposes of this Part; and

(c)

any general instructions given by the chief executive.

(4)

To avoid doubt, the refugee and protection officer may determine the claim on the basis only of the information, evidence, and submissions provided by the claimant concerned.

Compare: 1987 No 74 s 129G(6), (7)

137 Matters to be determined by refugee and protection officer

(1)

For each claim accepted for consideration, a refugee and protection officer must determine, in the following order:

(a)

whether to recognise the claimant as a refugee on the ground set out in section 129; and

(b)

whether to recognise the claimant as a protected person on the ground set out in section 130; and

(c)

whether to recognise the claimant as a protected person on the ground set out in section 131.

(2)

For each claim accepted for consideration, a refugee and protection officer must also determine, as part of the process in respect of a determination under subsection 1(b) or (c), whether there are serious reasons for considering that the claimant has—

(a)

committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; or

(b)

committed a serious non-political crime outside New Zealand before entering New Zealand; or

(c)

been guilty of acts contrary to the purposes and principles of the United Nations.

(3)

To avoid doubt, a determination made under subsection (2)—

(a)

must not be used as grounds to refuse a claim by the person concerned for recognition as a protected person; and

(b)

is relevant only if the person is recognised as a protected person; and

(c)

if answered in the affirmative, requires the Minister to determine the immigration status of the protected person in accordance with section 139.

(4)

For each claim accepted for consideration, a refugee and protection officer must also determine whether the claimant has the protection of another country or has been recognised as a refugee by another country and can be received back and protected there without risk of being returned to a country where he or she would be at risk of circumstances that would give rise to grounds for his or her recognition as a refugee or a protected person in New Zealand.

(5)

To avoid doubt, a refugee and protection officer—

(a)

in determining the matters specified in this section, may make findings of credibility or fact:

(b)

must determine all the matters described in subsections (1), (2), and (4), regardless of whether the claim was made only on 1 or 2 of the 3 grounds set out in sections 129 to 131.

138 Decision on claim

(1)

A refugee and protection officer must recognise a person as—

(a)

a refugee if satisfied that the grounds for recognition in section 129 have been met:

(b)

a protected person if satisfied that the grounds for recognition in section 130 or 131 (or both) have been met.

(2)

Despite subsection (1), a refugee and protection officer may refuse to recognise a person as a refugee or a protected person if he or she is satisfied that the person has the protection of another country or has been recognised as a refugee by another country and can be received back and protected there without risk of being returned to a country where he or she would be at risk of circumstances that would give rise to grounds for his or her recognition as a refugee or a protected person in New Zealand.

(3)

The decision of the refugee and protection officer is final, unless overturned by the Tribunal on appeal under section 194.

(4)

The refugee and protection officer must notify the claimant, in the prescribed manner, of—

(a)

the officer’s decision on the claim; and

(b)

the reasons for the decision, which must contain the information required under section 23 of the Official Information Act 1982 as if the decision were a response to a request to which that section applies; and

(c)

the officer’s determination in relation to section 137(2); and

(d)

the claimant’s right of appeal to the Tribunal, where a claim for recognition on any ground has been declined.

(5)

Once a decision on a claim is made and notified to a claimant, any refugee and protection officer may, in his or her absolute discretion, re-open the claim for further consideration under any of sections 143 to 147.

Compare: 1987 No 74 s 129I

139 Minister to decide immigration status of protected person who may have committed certain crimes or been guilty of certain acts

The Minister must make any decision about a protected person’s immigration status if a refugee and protection officer has determined under section 137(2) that there are serious reasons for considering that the person has committed a crime or been guilty of any act described in that section.

140 Limitation on subsequent claims

(1)

A refugee and protection officer must not consider a subsequent claim for recognition as a refugee or a protected person unless the officer is satisfied—

(a)

that there has been a significant change in circumstances material to the claim since the previous claim was determined; and

(b)

the change in 1 or more of the circumstances was not brought about by the claimant—

(i)

acting otherwise than in good faith; and

(ii)

for a purpose of creating grounds for recognition under any of sections 129 to 131.

(2)

For the purposes of determining the matter in subsection (1), the refugee and protection officer must not treat the actions of any other person in relation to the claim or the claimant as a mitigating factor.

(3)

A refugee and protection officer may refuse to consider a subsequent claim for recognition as a refugee or a protected person if the officer is satisfied that the claim—

(a)

is manifestly unfounded or clearly abusive; or

(b)

repeats any claim previously made (including a subsequent claim).

Compare: 1987 No 74 s 129J

Section 140(1): amended, on 19 June 2013, by section 8(1) of the Immigration Amendment Act 2013 (2013 No 39).

Section 140(1)(b)(ii): amended, on 19 June 2013, by section 8(2) of the Immigration Amendment Act 2013 (2013 No 39).

Section 140(3)(b): replaced, on 19 June 2013, by section 8(3) of the Immigration Amendment Act 2013 (2013 No 39).

141 Procedure on subsequent claims

(1)

The procedures specified in sections 135 to 139 apply to any subsequent claim accepted for consideration, except that any appeal to the Tribunal must be made under section 195.

(2)

In a subsequent claim, a claimant may not challenge any finding of credibility or fact made by a refugee and protection officer (or by a refugee status officer under the former Act) or the Tribunal (or by the Refugee Status Appeals Authority under the former Act) in relation to a previous claim by the claimant, and the refugee and protection officer determining the subsequent claim may rely on those findings.

142 Claim treated as withdrawn if claimant leaves New Zealand

If a claimant leaves New Zealand, his or her claim (including any subsequent claim) under this Part must be treated as withdrawn.

Compare: 1987 No 74 s 129V

Cessation or cancellation of recognition

143 Cessation of recognition as refugee or protected person

A refugee and protection officer may cease to recognise a person as a refugee or a protected person, as the case may be, if—

(a)

1 of the following applies:

(i)

the original determination to recognise the person as a refugee or a protected person was made by a refugee and protection officer; or

(ii)

the original determination to recognise the person as a refugee was made under the former Act by a refugee status officer or before 1 October 1999; or

(iii)

the person was recognised as a refugee outside New Zealand and has travelled to New Zealand under a government mandated programme on the basis of that recognition; and

(b)

1 or more of the following apply:

(i)

the Refugee Convention has ceased to apply to the person in terms of Article 1C:

(ii)

there are no longer substantial grounds for believing that the person, if deported from New Zealand, would be in danger of being subjected to torture (as defined in section 130(5)):

(iii)

there are no longer substantial grounds for believing that the person, if deported from New Zealand, would be in danger of being subjected to arbitrary deprivation of life or cruel treatment (as defined in section 131(6)).

144 Application to Tribunal for cessation of recognition as refugee or protected person

(1)

A refugee and protection officer may apply to the Tribunal for a determination as to whether a person’s recognition as a refugee or a protected person should cease if the original determination to recognise the person as a refugee or a protected person was made by the Tribunal (or by the Refugee Status Appeals Authority under the former Act).

(2)

On an application made under subsection (1), the Tribunal may cease to recognise a person as a refugee or a protected person if 1 or more of the circumstances referred to in section 143(b) apply in respect of the person.

145 Cancellation of New Zealand citizen’s recognition as refugee or protected person

A refugee and protection officer may cancel the recognition of a New Zealand citizen as a refugee or a protected person, as the case may be, if—

(a)

1 of the following applies:

(i)

the original determination to recognise the person as a refugee or a protected person was made by a refugee and protection officer; or

(ii)

the original determination to recognise the person as a refugee was made under the former Act by a refugee status officer or before 1 October 1999; or

(iii)

the person was recognised as a refugee outside New Zealand and has travelled to New Zealand under a government mandated programme on the basis of that recognition; and

(b)

1 or more of the following apply in respect of the person:

(i)

the refugee and protection officer has determined that the recognition may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information:

(ii)

the person has been convicted of an offence where it is established that the person acquired recognition as a refugee or a protected person by fraud, forgery, false or misleading representation, or concealment of relevant information:

(iii)

the refugee and protection officer has determined that the matters dealt with in Articles 1D, 1E, and 1F of the Refugee Convention may not have been able to be properly considered by a refugee and protection officer (or a refugee status officer under the former Act) for any reason, including by reason of fraud, forgery, false or misleading representation, or concealment of relevant information; and

(c)

the refugee and protection officer has determined that the person is not a refugee or a protected person.

146 Cancellation of person’s recognition as refugee or protected person (other than New Zealand citizen)

(1)

A refugee and protection officer may cancel the recognition of a person who is not a New Zealand citizen as a refugee or a protected person, as the case may be, if—

(a)

1 of the following applies:

(i)

the original determination to recognise the person as a refugee or a protected person was made under this Act; or

(ii)

the original determination to recognise the person as a refugee was made under the former Act or before 1 October 1999; or

(iii)

the person was recognised as a refugee outside New Zealand and has travelled to New Zealand under a government mandated programme on the basis of that recognition; and

(b)

1 or more of the circumstances referred to in section 145(b) apply in respect of the person; and

(c)

the refugee and protection officer has determined that the person is not a refugee or a protected person.

(2)

A person whose recognition as a refugee or a protected person is cancelled under this section—

(a)

is liable for deportation under section 162; and

(b)

has the rights of appeal set out in subsection (2) of that section.

147 Application to Tribunal for cancellation of New Zealand citizen’s recognition as refugee or protected person

(1)

A refugee and protection officer may apply to the Tribunal for a determination as to whether the recognition of a New Zealand citizen as a refugee or a protected person should be cancelled if—

(a)

the original determination to recognise the person as a refugee or a protected person was made by the Tribunal; or

(b)

the original determination to recognise the person as a refugee was made by the Refugee Status Appeals Authority under the former Act.

(2)

On an application made under subsection (1), the Tribunal may cancel the recognition of a New Zealand citizen as a refugee or a protected person, as the case may be, if—

(a)

1 or more of the following apply in respect of the person:

(i)

the Tribunal has determined that the recognition may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information; or

(ii)

the person has been convicted of an offence where it is established that the person acquired recognition as a refugee or a protected person by fraud, forgery, false or misleading representation, or concealment of relevant information; or

(iii)

the Tribunal has determined that the matters dealt with in Articles 1D, 1E, and 1F of the Refugee Convention may not have been able to be properly considered by the Tribunal or the Refugee Status Appeals Authority for any reason, including by reason of fraud, forgery, false or misleading representation, or concealment of relevant information; and

(b)

the Tribunal has determined that the person is not a refugee or a protected person.

148 Procedures to be followed when refugee and protection officer making determination under section 143, 145, or 146

When making a determination under section 143, 145, or 146,—

(a)

a refugee and protection officer must notify the person concerned of the matter that is being considered; and

(b)

sections 135, 136(3), 138(4)(a), (b), and (d), 138(5), and 149 apply, with any necessary modifications, as if the matter being considered were a claim and the person concerned were a claimant.

Miscellaneous matters

149 Powers of refugee and protection officers

(1)

In carrying out his or her functions under this Part in relation to a claimant or to a person whose recognition as a refugee or a protected person is being investigated, a refugee and protection officer may—

(a)

require the person to supply such information, and within such times, as the officer reasonably requires:

(b)

require the person to produce such documents in the person’s possession or within the person’s ability to obtain as the officer requires:

(c)

inform the person that any other person may be required to produce or disclose relevant documents or information relating to the person, and require the other person to produce or disclose, as the case may be, any relevant documents or information relating to the person:

(d)

if the officer has good cause to suspect that a person other than the person concerned has in his or her or its possession or control any document of the person concerned (including any passport or travel document), in the prescribed manner request that other person to produce that document:

(e)

require the person to allow biometric information to be collected from him or her:

(f)

require the person to attend an interview:

(g)

seek information from any source:

(h)

determine the claim or matter on the basis of the information, evidence, and submissions provided by the person.

(2)

A person who is requested to produce a document under subsection (1)(d) is not entitled to refuse to comply with the request by reason only that the person concerned has a lien over the document.

(3)

If a claimant, or a person whose recognition as a refugee or a protected person is being investigated, is detained in custody, a refugee and protection officer may require the person having custody of that person to—

(a)

provide the refugee and protection officer with access to the place where the person is being detained; and

(b)

produce the person for interview; and

(c)

make appropriate facilities available for the interview.

(4)

Where a person who is required to attend an interview fails to attend at the appointed time and place, the refugee and protection officer may determine the claim or matter without conducting the interview.

Compare: 1987 No 74 s 129H

Section 149(1)(d): amended, on 7 May 2015, by section 38 of the Immigration Amendment Act 2015 (2015 No 48).

150 Special provision relating to claimants granted temporary visas

(1)

This section applies to any person who—

(a)

is a claimant to whom a temporary entry class visa has been granted, whether before or after the person became a claimant; or

(b)

having been a person to whom paragraph (a) applies, ceases to be a claimant by virtue of his or her claim being declined.

(2)

A person to whom this section applies may not, either before or after the expiry of the temporary entry class visa,—

(a)

apply for a further visa of any class or type while in New Zealand; or

(b)

while in New Zealand, request a special direction or make a request for the grant of a visa under section 61; or

(c)

bring any appeal under section 187 to the Tribunal.

(3)

Despite subsection (2)(a), a claimant may apply for a further temporary visa for such period as may be required for the claimant to be lawfully in New Zealand while his or her claim is determined.

(4)

Nothing in this section prevents a person from bringing an appeal to the Tribunal under section 206.

(5)

This section ceases to apply to a person if and when—

(a)

the person is recognised as a refugee or a protected person; or

(b)

the person leaves New Zealand; or

(c)

the person is granted a visa (other than a temporary visa granted under the exception referred to in subsection (3)).

Compare: 1987, No 74 s 129U

151 Confidentiality to be maintained in respect of claimants, refugees, and protected persons

(1)

Confidentiality as to the fact that a person is a claimant, a refugee, or a protected person, and as to the particulars relating to the person’s claim or status, must at all times during and subsequent to the determination of the claim or other matter be maintained by all persons and, in a particular case, may require confidentiality to be maintained as to the very fact or existence of a claim or case, if disclosure of its fact or existence would—

(a)

tend to identify the person concerned; or

(b)

be likely to endanger the safety of any person.

(2)

Despite subsection (1), the fact of a claim or particulars relating to a claim may be disclosed—

(a)

for the purposes of determining the claim or matter, administering this Act, or determining any obligations, requirements, or entitlements of the claimant or other person concerned under any other enactment; or

(b)

for the purposes of the maintenance of the law, including for the prevention, investigation, and detection of offences in New Zealand or elsewhere; or

(c)

to the United Nations High Commissioner for Refugees (or a representative of the High Commissioner); or

(d)

if the particulars relating to a claim are published in a manner that is unlikely to allow identification of the person concerned (whether in a published decision of the Tribunal under clause 19 of Schedule 2 or otherwise); or

(e)

if, in the circumstances of the particular case, there is no serious possibility that the safety of the claimant or any other person would be endangered by the disclosure of the information.

(3)

In determining whether information may be released under subsection (2)(e), the person considering whether to disclose the information may have regard to the protections that the person, agency, or body to whom the information is disclosed may apply to the information, including—

(a)

any applicable requirements of the Privacy Act 1993; and

(b)

any orders of the Tribunal or other court; and

(c)

any protection mechanisms that the person, agency, or body itself must or may apply.

(4)

If, in relation to a claim or particulars relating to a claim, the test in subsection (2)(e) is satisfied (the person concerned having considered the matters in subsection (3)),—

(a)

the chief executive may publish the decision of a refugee and protection officer relating to the claim if the chief executive determines that, in the circumstances of the particular case, it is in the public interest to do so:

(b)

the Attorney-General may, subject to any orders of the Tribunal, publish the decision of the Tribunal relating to the claim if the Attorney-General determines that, in the circumstances of the particular case, it is in the public interest to do so.

(5)

To avoid doubt,—

(a)

a refugee and protection officer may disclose information under subsection (2)(a) when carrying out his or her functions under section 136(2) or 149(1)(c) or (g):

(b)

the chief executive may disclose information under subsection (2)(a) when collecting information on behalf of the Tribunal under section 229:

(c)

the Tribunal may disclose information under subsection (2)(a) when carrying out its functions under section 228 or clause 10(1)(b) and (c) of Schedule 2:

(d)

for the purposes of determining a claim, or cancelling the recognition of, or ceasing to recognise, a person as a refugee or a protected person, information may be disclosed under subsection (2)(a).

(6)

Nothing in this section prevents the disclosure of the fact that a person is a claimant, a refugee, or a protected person, or disclosure of particulars in relation to a claimant, a refugee, or a protected person, to the extent that the person concerned—

(a)

has expressly waived his or her right to confidentiality under this section; or

(b)

by his or her words or actions, impliedly waived his or her right to confidentiality under this section.

152 Disclosure of information about claimant, refugee, or protected person by government agencies

(1)

An officer or employee of any government agency may, for the purpose of assisting a refugee and protection officer or the Tribunal to determine a claim or investigate a matter involving a claimant or a refugee or a protected person in New Zealand, disclose information about that claimant, refugee, or person to the refugee and protection officer or the Tribunal.

(2)

When requesting the assistance, the refugee and protection officer or the Tribunal must—

(a)

inform the other officer or employee of the requirements of confidentiality in section 151; and

(b)

require that officer or employee not to disclose information of the kind described in section 151(1) to any other agency, body, or person, except as provided for in that section.

(3)

To avoid doubt, a refugee and protection officer or the Tribunal does not breach section 151 when requesting the assistance of a person under subsection (1).

Part 6 Deportation

153 Purpose of Part

(1)

The purpose of this Part is to support the integrity of New Zealand’s immigration system and the security of New Zealand by providing for the deportation of certain persons from New Zealand.

(2)

To this end, this Part—

(a)

specifies when a person is liable for deportation; and

(b)

specifies how that liability must be communicated to the person; and

(c)

sets out the consequences of the liability for the person; and

(d)

specifies the only situations in which an appeal right exists in respect of that liability; and

(e)

provides for the person’s deportation to be executed without the need for further inquiries if no appeal is made or an appeal is unsuccessful.

Liability for deportation

154 Deportation liability if person unlawfully in New Zealand

(1)

A person unlawfully in New Zealand is liable for deportation.

(2)

A person unlawfully in New Zealand may, not later than 42 days after first becoming unlawfully in New Zealand, appeal on humanitarian grounds against his or her liability for deportation.

(3)

Subsection (2) applies except if subsection (4) or (5) applies.

(4)

If the person is unlawfully in New Zealand following an unsuccessful reconsideration under section 185 of a decision to decline his or her visa application, the person may appeal on humanitarian grounds against his or her liability for deportation not later than 42 days after the later of—

(a)

the day on which the person became unlawfully in New Zealand; or

(b)

the day on which the person received confirmation of the decision to decline his or her visa application.

(5)

A person is not entitled to an appeal under subsection (2) if—

(a)

the person is unlawfully in New Zealand following the cancellation of the person’s visa under section 64(1)(ab); or

(b)

the person has already had an opportunity (whether exercised or not) to appeal against his or her liability for deportation.

Section 154(3): amended, on 7 May 2015, by section 39(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 154(5): inserted, on 7 May 2015, by section 39(2) of the Immigration Amendment Act 2015 (2015 No 48).

155 Deportation liability if person’s visa granted in error

(1)

A person is liable for deportation if—

(a)

the Minister or an immigration officer determines that the person’s visa was granted as a result of an administrative error; and

(b)

the visa was not cancelled under section 67; and

(c)

no visa was granted to the person under section 68.

(2)

The holder of a temporary visa or interim visa to whom this section applies has 14 days from the date of service of a deportation liability notice to give good reason why he or she should not be deported.

(3)

Subsection (2) does not apply if—

(a)

the person is the holder of a limited visa; or

(b)

the Minister or an immigration officer determines that the person is an excluded person.

(4)

A person liable for deportation under this section may, not later than 28 days after the date of service of a deportation liability notice, appeal to the Tribunal against his or her liability for deportation—

(a)

on the facts and on humanitarian grounds, if the person holds a residence class visa; or

(b)

on humanitarian grounds only, in the case of a person holding a temporary visa or an interim visa.

(5)

However, subsection (4) does not apply if the person is liable for deportation under this section because the person re-entered New Zealand while he or she was subject to a period of prohibition on entry.

Section 155(5): inserted, on 7 May 2015, by section 40 of the Immigration Amendment Act 2015 (2015 No 48).

156 Deportation liability if visa held under false identity

(1)

A person is liable for deportation if—

(a)

the person is convicted of an offence where the identity of the person is established, and that identity is different to the identity under which the person holds a visa; or

(b)

the Minister determines that the person holds a visa under a false identity.

(2)

If a person is liable for deportation under this section and the visa is a temporary visa or interim visa,—

(a)

the person may appeal to the Tribunal on humanitarian grounds not later than 42 days after first becoming unlawfully in New Zealand; and

(b)

if subsection (1)(b) applies, the person has 14 days from the date of service of a deportation liability notice to give good reason why the deportation should not proceed.

(3)

If a person is liable for deportation under this section and the visa is a residence class visa,—

(a)

the person may appeal to the Tribunal on humanitarian grounds not later than 42 days after first becoming unlawfully in New Zealand; and

(b)

if subsection (1)(b) applies, the person may, not later than 28 days after the date of service of a deportation liability notice, appeal to the Tribunal on the facts against his or her liability for deportation.

(4)

For the purposes of subsections (2) and (3), a person to whom a visa has been granted in a false identity is deemed to have been unlawfully in New Zealand since—

(a)

the date the person arrived in New Zealand, if he or she has held a visa in a false identity since that date; or

(b)

the day after the date on which a visa granted in the person’s actual identity expired, or was cancelled without another visa being granted, if he or she has held a visa in his or her actual identity after arriving in New Zealand.

157 Deportation liability of temporary entry class visa holder for cause

(1)

A temporary entry class visa holder is liable for deportation if the Minister determines that there is sufficient reason to deport the temporary entry class visa holder.

(2)

The person has 14 days from the date of service of the deportation liability notice to give good reason why deportation should not proceed.

(3)

Subsection (2) does not apply if—

(a)

the person is the holder of a limited visa; or

(b)

the Minister determines that the person is an excluded person.

(4)

A temporary visa holder or interim visa holder who is liable for deportation under this section may, not later than 28 days after the date of service of a deportation liability notice, appeal to the Tribunal on humanitarian grounds against his or her liability for deportation.

(5)

For the purposes of subsection (1), sufficient reason includes, but is not limited to,—

(a)

breach of conditions of the person’s visa:

(b)

criminal offending:

(c)

other matters relating to character:

(d)

concealing relevant information in relation to the person’s application for a visa:

(e)

a situation where the person’s circumstances no longer meet the rules or criteria under which the visa was granted.

Section 157(5)(d): amended, on 7 May 2015, by section 41 of the Immigration Amendment Act 2015 (2015 No 48).

158 Deportation liability of residence class visa holder due to fraud, forgery, etc

(1)

A residence class visa holder is liable for deportation if—

(a)

the person is convicted of an offence where it is established that—

(i)

any of the information provided in relation to the person’s application, or purported application, for a residence class visa or entry permission was fraudulent, forged, false, or misleading, or any relevant information was concealed; or

(ii)

any of the information provided in relation to the person’s, or any other person’s, application, or purported application, for a visa on the basis of which the residence class visa was granted was fraudulent, forged, false, or misleading, or any relevant information was concealed; or

(b)

the Minister determines that—

(i)

any of the information provided in relation to the person’s application, or purported application, for a residence class visa or entry permission was fraudulent, forged, false, or misleading, or any relevant information was concealed; or

(ii)

any of the information provided in relation to the person’s, or any other person’s, application, or purported application, for a visa on the basis of which the residence class visa was granted was fraudulent, forged, false, or misleading, or any relevant information was concealed.

(1A)

Subsection (1) applies—

(a)

whether or not the person holding the residence class visa is the person who—

(i)

provided the information that is established or determined to be fraudulent, forged, false, or misleading; or

(ii)

concealed the relevant information that is established or determined to have been concealed; and

(b)

whether the visa was granted before or after this subsection came into force.

(2)

A former citizen who is deemed by section 75 to hold a resident visa is liable for deportation if—

(a)

the person was deprived of his or her New Zealand citizenship under section 17 of the Citizenship Act 1977 on the grounds that the grant, or grant requirement, was procured by fraud, false representation, or wilful concealment of relevant information; and

(b)

that fraud, false representation, or wilful concealment of relevant information occurred in the context of procuring the immigration status that enabled the person to meet a requirement, or requirements, for the grant of New Zealand citizenship.

(3)

A person liable for deportation under this section may, not later than 28 days after the date of service of a deportation liability notice, appeal to the Tribunal against his or her liability for deportation—

(a)

on humanitarian grounds only, if subsection (1)(a) or (2) applies:

(b)

on the facts and on humanitarian grounds, if subsection (1)(b) applies.

(4)

If section 156 also applies to a person to whom this section applies, the person’s deportation liability must be determined under section 156 and not this section.

Section 158 heading: amended, on 7 May 2015, by section 42(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 158(1): replaced, on 7 May 2015, by section 42(2) of the Immigration Amendment Act 2015 (2015 No 48).

Section 158(1A): inserted, on 7 May 2015, by section 42(2) of the Immigration Amendment Act 2015 (2015 No 48).

159 Deportation liability of resident if visa conditions breached

(1)

A resident is liable for deportation if the Minister determines that—

(a)

the conditions of his or her visa have not been met; or

(b)

the resident has materially breached the conditions of his or her visa.

(2)

A person liable for deportation under this section may, not later than 28 days after the date of service of a deportation liability notice, appeal to the Tribunal both on the facts and on humanitarian grounds against his or her liability for deportation.

160 Deportation liability of residence class visa holder if new information as to character becomes available

(1)

A residence class visa holder is liable for deportation if, not later than 5 years after the date the person first held a residence class visa,—

(a)

new information becomes available that—

(i)

relates to the character of the person; and

(ii)

was relevant at the time the visa was granted; and

(b)

the Minister determines that the person would not have been eligible for the grant of the visa under this Act or immigration instructions if that information had been available at the time the visa was granted.

(2)

For the purposes of subsection (1), the new information may relate to whether the person was, or should have been, an excluded person, or to rules and criteria relating to character contained within immigration instructions.

(3)

A person liable for deportation under this section may, not later than 28 days after the date of service of a deportation liability notice, appeal to the Tribunal both on the facts and on humanitarian grounds against his or her liability for deportation.

(4)

For the purposes of subsection (1), the date that a person first held a residence class visa must be calculated in accordance with section 161(5).

161 Deportation liability of residence class visa holder convicted of criminal offence

(1)

A residence class visa holder is liable for deportation if he or she is convicted, in New Zealand or elsewhere,—

(a)

of an offence for which the court has the power to impose imprisonment for a term of 3 months or more if the offence was committed at any time—

(i)

when the person was unlawfully in New Zealand; or

(ii)

when the person held a temporary entry class visa; or

(iii)

not later than 2 years after the person first held a residence class visa; or

(b)

of an offence for which the court has the power to impose imprisonment for a term of 2 years or more, if the offence was committed not later than 5 years after the person first held a residence class visa; or

(c)

of an offence and sentenced to imprisonment for a term of 5 years or more (or for an indeterminate period capable of running for 5 years or more), if the offence was committed not later than 10 years after the person first held a residence class visa; or

(d)

of an offence against section 350(1)(a) or 351, if the offence was committed not later than 10 years after the person first held a residence class visa, and whether that visa was granted before or after this paragraph comes into force.

(2)

A person liable for deportation under this section may, not later than 28 days after being served with a deportation liability notice, appeal to the Tribunal—

(a)

on humanitarian grounds against his or her liability for deportation; and

(b)

if he or she is a refugee or a protected person, against any decision of a refugee and protection officer that he or she may be deported.

(3)

For the purposes of subsection (1)(a)(iii), (b), (c), and (d), the periods of 2 years, 5 years, and 10 years after a person first held a residence class visa are to be determined exclusive of any time spent by the person in imprisonment following conviction for any offence.

(4)

Subsection (1)(c) applies—

(a)

whether the sentence is of immediate effect or is deferred or is suspended in whole or in part:

(b)

if a person has been convicted of 2 or more offences on the same occasion or in the same proceedings, and any sentences of imprisonment imposed in respect of those offences are cumulative, as if the person had been convicted of a single offence and sentenced for that offence to the total of the cumulative sentences:

(c)

if a person has been convicted of 2 or more offences, and a single sentence has been imposed in respect of those offences, as if that sentence had been imposed in respect of a conviction for a single offence.

(5)

For the purposes of this section and section 160(1), a person first holds a residence class visa—

(a)

on the date on which the person is first granted a residence class visa of any type in New Zealand; or

(b)

if the visa was granted outside of New Zealand, on the first occasion on which the person arrives in New Zealand and is granted entry permission as the holder of the residence class visa; or

(c)

if the person arrives in New Zealand and is granted entry permission as the holder of a residence class visa following a continuous period of absence from New Zealand of at least 5 years, on the date the person first re-enters New Zealand after the continuous period of absence; or

(d)

if the person is a person to whom a visa waiver applies and arrives in New Zealand following a continuous period of absence from New Zealand of at least 5 years, on the date the person first re-enters New Zealand (and is granted a residence class visa) after the continuous period of absence.

(6)

Subsection (7) applies to a person if he or she—

(a)

was exempt from the requirement to hold a permit under the former Act; but

(b)

is deemed to hold a residence class visa under section 417(3) of this Act.

(7)

For the purposes of this section, the person first holds a residence class visa—

(a)

on the date he or she first entered New Zealand and was exempt from the requirement to hold a residence permit under the former Act; or

(b)

on the date he or she first re-entered New Zealand and was exempt from the requirement to hold a residence permit under the former Act following a continuous period of absence from New Zealand of at least 5 years.

Compare: 1987 No 74 s 91(1), (4), (6)

Section 161(1)(c): amended, on 7 May 2015, by section 43(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 161(1)(d): inserted, on 7 May 2015, by section 43(2) of the Immigration Amendment Act 2015 (2015 No 48).

Section 161(3): amended, on 7 May 2015, by section 43(3) of the Immigration Amendment Act 2015 (2015 No 48).

162 Deportation liability if refugee or protection status cancelled under section 146

(1)

A person who is not a New Zealand citizen and who was previously recognised as a refugee or a protected person is liable for deportation if his or her recognition is cancelled under section 146.

(2)

The person may, not later than 28 days after the date of service of a deportation liability notice, appeal to the Tribunal against his or her liability for deportation—

(a)

on humanitarian grounds only, if the person has been convicted of an offence where it is established that he or she acquired recognition as a refugee or a protected person by fraud, forgery, false or misleading representation, or concealment of relevant information; or

(b)

on the facts and on humanitarian grounds, in any other case.

Compare: 1987 No 74 s 129L(1)(c)

163 Deportation liability of persons threatening security

(1)

Where the Minister certifies that a person constitutes a threat or risk to security, the Governor-General may, by Order in Council, order the deportation from New Zealand of that person.

(2)

The person named in the order is accordingly liable for deportation.

(3)

The Governor-General may, by Order in Council, revoke an order made under subsection (1).

Compare: 1987 No 74 ss 72, 73

164 Limitation on deportation of persons recognised or claiming recognition as refugee or protected person

(1)

No person who is recognised as a refugee or a protected person in New Zealand, or who is a claimant, may be deported under this Act.

(2)

Subsection (1) applies despite anything in this Part, but subject to subsections (3) and (4).

(3)

A refugee or a claimant for recognition as a refugee may be deported but only if Article 32.1 or 33 of the Refugee Convention allows the deportation of the person.

(4)

A protected person may be deported to any place other than a place in respect of which there are substantial grounds for believing that the person would be in danger of being subjected to—

(a)

torture (as defined in section 130(5)); or

(b)

arbitrary deprivation of life or cruel treatment (as defined in section 131(6)).

(5)

A refugee and protection officer must determine the matter in subsection (3) or (4), and section 148 applies when making the determination, as if the determination were a determination to which that section applies.

165 Immigration officer must have regard to certain matters when dealing with claimants, refugees, or protected persons

An immigration officer must have regard to Part 5 and Schedule 1 (being the text of the Refugee Convention) when carrying out his or her functions under this Act in relation to a claimant, a refugee, or a protected person.

166 Limitation on deportation of diplomats, etc

Despite anything in this Part, no person who is for the time being entitled to any immunity from jurisdiction by or under the Diplomatic Privileges and Immunities Act 1968 (other than a person referred to in section 10D(2)(d) of that Act) or the Consular Privileges and Immunities Act 1971 may be deported under this Act.

167 Period of deportation liability

(1)

Residence class visa holders remain liable for deportation for a period of 10 years following the arising of the liability for deportation.

(2)

The period of 10 years in subsection (1) must be calculated exclusive of—

(a)

any time spent by the person in imprisonment following conviction for any offence:

(b)

any period of time when the person’s liability for deportation is suspended by the Minister under section 172 or by the Tribunal under section 212.

(3)

To avoid doubt, a person liable for deportation under section 154 (being a person unlawfully in New Zealand) remains liable for deportation as long as he or she is unlawfully in New Zealand.

168 Liability for deportation when person outside New Zealand

(1)

A person may become liable for deportation under any of sections 155 to 163 when the person is outside New Zealand and, subject to this section, this Part and Part 7 apply as if the person were in New Zealand.

(2)

Subsection (3) applies to a person who—

(a)

is outside New Zealand; and

(b)

is liable for deportation; and

(c)

holds a visa.

(3)

The person may—

(a)

appeal against his or her liability for deportation; and

(b)

travel to New Zealand during the period in which the appeal can be made; and

(c)

if the person does appeal, travel to New Zealand pending the determination of the appeal.

169 Effect of being liable for deportation

(1)

A person liable for deportation may not—

(a)

apply for a visa, if he or she is unlawfully in New Zealand; or

(b)

apply for a further visa of a different class or type, if he or she currently holds a visa.

(2)

However, the Minister or an immigration officer may, in his or her absolute discretion, grant a visa of a different class or type to a person to whom subsection (1)(b) applies.

(3)

While a person is liable for deportation, the processing of any application by the person for a visa of a different class or type must be suspended.

(3A)

However, nothing in subsection (3) prevents the processing of any application referred back to the Minister or the chief executive by the Tribunal under section 188(1)(d) or (e).

(4)

While a person is liable for deportation, the processing of any application by the person for the grant of New Zealand citizenship under section 8 of the Citizenship Act 1977 or section 7(1)(b)(ii) of the Citizenship (Western Samoa) Act 1982 must be suspended.

Section 169(3A): inserted, on 7 May 2015, by section 44 of the Immigration Amendment Act 2015 (2015 No 48).

Notification of liability for deportation

170 Deportation liability notice

(1)

A deportation liability notice must be served on a person liable for deportation if it is intended to execute the deportation of the person.

(2)

Subsection (1) applies unless—

(a)

the person is liable for deportation on the grounds of being unlawfully in New Zealand; or

(b)

the person is named in a deportation order under section 163.

(3)

If a deportation liability notice is served by way of personal service, it may be served only by an immigration officer or by another person on behalf of an immigration officer.

Section 170(3): replaced, on 7 May 2015, by section 45 of the Immigration Amendment Act 2015 (2015 No 48).

171 Contents of deportation liability notice

A deportation liability notice must be signed by the Minister or an immigration officer and state—

(a)

the provision of this Act under which liability for deportation arose:

(b)

the ground or grounds on which liability for deportation arose:

(c)

if applicable, the right to give good reason, not later than 14 days after the date of service of the notice, as to why deportation should not proceed, and who that reason must be given to:

(d)

whether there is a right of appeal against liability for deportation and, if so,—

(i)

what it is:

(ii)

how to exercise the right of appeal:

(iii)

the time limit for lodging the appeal:

(e)

the length or period of prohibition on entry to New Zealand that the person named in the notice may become subject to:

(f)

the consequences of attempting to return to New Zealand during the prohibition:

(g)

the requirement to repay any costs to the Crown of deportation:

(h)

if applicable, that a refugee and protection officer has determined that deportation of the person is not prohibited under section 164:

(i)

if applicable, the grounds on which liability for deportation has been reactivated under section 172(3) or 212(3).

Section 171(a): amended, on 7 May 2015, by section 46 of the Immigration Amendment Act 2015 (2015 No 48).

Cancellation or suspension of deportation liability

172 Minister may cancel or suspend liability for deportation

(1)

The Minister may at any time, by written notice, cancel a person’s liability for deportation.

(2)

The Minister may at any time, by written notice, suspend a residence class visa holder’s liability for deportation—

(a)

for a period not exceeding 5 years; and

(b)

subject to the visa holder complying with any conditions stated in the notice (which take effect from the date specified in the notice, being a date not earlier than the date of notification).

(2A)

The Minister may exercise his or her powers under this section whether or not the person who is liable for deportation—

(a)

has given good reason under section 155(2), 156(2)(b), or 157(2) why the person should not be deported; or

(b)

has purported to apply to the Minister for any other reason.

(3)

Where a person fails to comply with the conditions stated in a notice under subsection (2),—

(a)

the Minister may reactivate the person’s liability for deportation by causing a deportation liability notice to be served on the person that sets out the grounds of the reactivation; and

(b)

subject to section 175A(4), the person has 28 days from the date the deportation liability notice is served to leave New Zealand.

(4)

In the case of a person who has appealed against his or her liability for deportation, the Minister must notify the Tribunal if the person’s liability for deportation is cancelled, suspended, or reactivated under subsection (1), (2), or (3)(a).

(5)

The decision to cancel or suspend a person’s liability for deportation is in the absolute discretion of the Minister.

(6)

In the case of a person in imprisonment, the period referred to in subsection (2) commences on the date of the person’s release.

(7)

The cancellation or suspension of a person’s liability for deportation does not prevent the person from becoming liable for deportation on other grounds.

Section 172(2A): inserted, on 7 May 2015, by section 47(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 172(3)(b): amended, on 7 May 2015, by section 47(2) of the Immigration Amendment Act 2015 (2015 No 48).

173 Right of victims to make submissions on suspension or cancellation of liability for deportation

(1)

In determining whether to cancel or suspend a person’s liability for deportation, the Minister must have regard to any written submissions made by a victim of an offence or offences of which the person who is liable for deportation has been convicted and from which his or her liability for deportation arises.

(2)

The Minister must, on a request for the purpose, make available to a lawyer or agent (if any) who is acting for the person who is liable for deportation a copy of all written submissions made by the victim.

(3)

The Minister, or a lawyer or agent acting for the person, must, on a request for the purpose, show the person a copy of all written submissions made by the victim. However, the person may not keep a copy of any of those submissions.

(4)

Despite subsections (2) and (3), the Minister may withhold from the person and every lawyer or agent (if any) acting for the person any part of the victim’s written submissions if, in the Minister’s opinion, the withholding of that part is necessary to protect the physical safety or security of the victim concerned.

(5)

Despite subsection (1), the Minister must not have regard to any part of the victim’s submissions that is withheld under subsection (4).

(6)

In this section, victim means a victim of an offence of a kind referred to in section 29 of the Victims’ Rights Act 2002.

Compare: 1987 No 74 s 93A

174 Effect of suspension

(1)

Where a person’s liability for deportation is suspended by the Minister under section 172, during the period of the suspension—

(a)

the person may not apply for a visa of a different class or type; and

(b)

the processing of any application made by the person for a visa of a different class or type must be suspended; and

(c)

subject to sections 9 and 10 of the Citizenship Act 1977 and section 7(1)(b)(i) of the Citizenship (Western Samoa) Act 1982, the person may not be granted citizenship on the basis of meeting a requirement (or requirements) for the grant of New Zealand citizenship that requires the person to hold a residence class visa.

(2)

If the Minister determines that a person has met the conditions stated by the Minister under section 172(2) for the period of the suspension, the Minister must—

(a)

cancel the person’s liability for deportation; and

(b)

notify the person and the Tribunal of that fact.

Deportation

175 Service of deportation order

(1)

A deportation order may be served on a person who is liable for deportation on or after the date or time specified in section 175A.

(2)

However, a deportation order may be served on an earlier date, if requested by the person liable for deportation.

(3)

A deportation order may only be served by an immigration officer (or by another person on behalf of an immigration officer) or a constable.

(4)

A deportation order may only be served on a person outside New Zealand if the person still holds a visa.

Section 175: replaced, on 7 May 2015, by section 48 of the Immigration Amendment Act 2015 (2015 No 48).

175A Time when deportation order may be served

(1)

Where a person has a right to give good reason why deportation should not proceed, the first day on which a deportation order may be served on the person is,—

(a)

if the person does not provide submissions as to good reason why deportation should not proceed, the day that is 15 days after the date of service of a deportation liability notice on the person; or

(b)

if the person provides submissions as to good reason why deportation should not proceed, and the person to whom the submissions are provided determines that deportation should continue, the day after the person is notified of that determination.

(2)

Where a person has a right to appeal under this Act against liability for deportation, the first day on which a deportation order may be served on the person is—

(a)

the day after the expiry of the period for lodging an appeal, if the person has not lodged an appeal:

(b)

where the person has lodged an appeal to the Tribunal,—

(i)

if the appeal is withdrawn, the day after the withdrawal:

(ii)

if the liability for deportation is upheld, the day that is 28 days after the Tribunal determines the appeal (but subject to paragraph (c)):

(c)

where the person has applied under section 245 for leave to appeal to the High Court,—

(i)

if the application for leave is withdrawn, the day after the withdrawal:

(ii)

if the High Court refuses leave to appeal, on the day after the expiry of the period for lodging an application for leave to the Court of Appeal in accordance with the rules of the Court of Appeal (but subject to subparagraph (iii)):

(iii)

if the person applies to the Court of Appeal for leave and leave is refused, the day after the person is notified of the Court of Appeal’s refusal:

(iv)

if the application for leave is granted but the appeal is withdrawn, the day after the withdrawal:

(v)

if the application for leave is granted and the person’s liability for deportation is upheld, the day after the person is notified of the determination of the appeal.

(3)

Where a person has both a right to give good reason why deportation should not proceed and a right to appeal under this Act against liability for deportation, the first day on which a deportation order may be served on the person is the later of—

(a)

the first day on which the deportation order may be served under subsection (1); and

(b)

the first day on which a deportation order may be served under subsection (2).

(4)

Where a person has breached the conditions stated in a notice or order suspending his or her liability for deportation under section 172(2) or 212(1), the first day on which a deportation order may be served on the person is the later of—

(a)

the day that is 28 days after service of a deportation liability notice on the person under section 172(3) or 212(3)(a), as the case may be; and

(b)

any applicable day determined under subsection (2).

(5)

A deportation order may be served immediately on a person in the following circumstances:

(a)

where the person has been served with a deportation liability notice and the person does not have—

(i)

a right to give good reason why deportation should not proceed; or

(ii)

a right of appeal against liability for deportation:

(b)

where an Order in Council under section 163 has been made in respect of the person:

(c)

where the person—

(i)

was unlawfully in New Zealand before 2 am on 29 November 2010; and

(ii)

continues to be unlawfully in New Zealand under this Act; and

(iii)

has no right of appeal under this Act against liability for deportation:

(d)

where the person was the holder of a limited visa that has expired (unless that person has been served with a deportation liability notice under paragraph (a), in which case paragraph (a) applies).

(6)

In this section, a right to give good reason why deportation should not proceed means a right, stated in a deportation liability notice served on a person liable for deportation, to give good reason, not later than 14 days after the date of service of that notice, as to why deportation should not proceed.

Section 175A: inserted, on 7 May 2015, by section 48 of the Immigration Amendment Act 2015 (2015 No 48).

176 Content of deportation order

(1)

A deportation order must specify—

(a)

that the person named in the order is ordered to be deported from New Zealand; and

(b)

that any visa held by the person has been, or will be, cancelled in accordance with section 64(1)(ab); and

(c)

the provision of this Act under which the person became liable for deportation; and

(d)

the ground or grounds for deportation; and

(e)

the period of any prohibition on entry to New Zealand that the person named in the order is subject to; and

(f)

the consequences of attempting to return to New Zealand during the period of prohibition; and

(g)

that the person is required to repay the actual or (if an estimate of costs is specified in the deportation order) the estimated costs of deportation.

(2)

A deportation order must be signed by—

(a)

the Governor-General, if the order is made under section 163; or

(b)

an immigration officer, in any other case.

Section 176(1)(b): replaced, on 7 May 2015, by section 49(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 176(1)(g): replaced, on 7 May 2015, by section 49(2) of the Immigration Amendment Act 2015 (2015 No 48).

177 Deportation order may be cancelled

(1)

An immigration officer may, in his or her absolute discretion, cancel a deportation order served on a person to whom section 154 applies.

(2)

Nothing in subsection (1) gives a person a right to apply for the cancellation of a deportation order. However, an immigration officer must consider cancelling the deportation order of a person who is in New Zealand if the person provides information to the officer concerning his or her personal circumstances, and the information is relevant to New Zealand’s international obligations.

(3)

If an immigration officer does consider cancelling a deportation order, whether by way of a purported application or his or her own motion, the officer must have regard to any relevant international obligations, but otherwise—

(a)

may make a decision as he or she thinks fit; and

(b)

in doing so, is not under any obligation, whether by implication or otherwise,—

(i)

to apply any test or any particular test and, in particular, the officer is not obliged to apply the test set out in section 207; or

(ii)

to inquire into the circumstances of, or to make any further inquiry in respect of the information provided by or in respect of, the person who is the subject of the deportation order or any other person.

(4)

Whether or not an immigration officer considers cancelling a deportation order,—

(a)

he or she is not obliged to give reasons for any decision, other than the reason that this subsection applies; and

(ab)

privacy principle 6 (which relates to access to personal information and is set out in section 6 of the Privacy Act 1993) does not apply to any reasons for any decision relating to the purported application; and

(b)

section 23 of the Official Information Act 1982 does not apply in respect of the decision.

(5)

However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record—

(a)

a description of the international obligations; and

(b)

the facts about the person’s personal circumstances.

Section 177(4)(ab): inserted, on 7 May 2015, by section 50 of the Immigration Amendment Act 2015 (2015 No 48).

178 Executing deportation order

(1)

A deportation order may be executed once it has been served on the person subject to the order.

(2)

A deportation order may be executed by—

(a)

taking the person into custody; and

(b)

escorting the person (or arranging for the person to be escorted) to an airport or port; and

(c)

ensuring that the person is placed on board a craft and detained there until the person leaves New Zealand.

(3)

A deportation order may be executed in respect of a person who is serving a sentence of imprisonment in a prison only if the Minister has ordered the release of the person in accordance with section 55 of the Parole Act 2002.

179 Deported person may not enter New Zealand during period of prohibition on entry

(1)

A person 18 years of age or over who is deported from New Zealand may not return to New Zealand, or be granted a visa or entry permission, during the period of prohibition on entry that applies to the person as set out in the following table:

Why person deportedPeriod of prohibition on entry (calculated from the date of deportation)
Section 155 applies (granted a visa as the result of an administrative error and visa not cancelled)none
Section 154 applies (unlawfully in New Zealand), and person is subject to deportation order and deported not more than 12 months after date on which person became unlawfully in New Zealand2 years
Section 154 applies (unlawfully in New Zealand), and person is subject to deportation order and deported 12 months or more after date on which person became unlawfully in New Zealand5 years
Section 154 applies (unlawfully in New Zealand), and person is subject to deportation order, and it is second or subsequent time that person has been unlawfully in New Zealand5 years
Section 157 applies (sufficient reasons for temporary entry class visa holder to be deported)5 years
Section 159 applies (breached resident visa conditions)5 years
Section 156 applies (visa granted on basis of false identity)permanent prohibition
Section 158 applies (fraud, forgery, etc, in relation to an application)permanent prohibition
Section 160 applies (new information as to character becomes available)permanent prohibition
Section 162 applies (refugee or protection status cancelled for fraud, forgery, etc)permanent prohibition
Section 161 applies (residence class visa holder convicted of specified offence)permanent prohibition
Section 163 applies (certified as person constituting threat or risk to security)permanent prohibition

(2)

A person who is liable for deportation is not subject to any period of prohibition on entry if the person—

(a)

is liable for deportation only on the grounds that the person is unlawfully in New Zealand; and

(b)

leaves New Zealand voluntarily before he or she is served with a deportation order.

(3)

For the purposes of subsection (1), the relevant provision for determining why the person was deported is—

(a)

the provision under which the person became liable for deportation, as stated in the last deportation order served on the person; or

(b)

if no deportation order was served on the person, the provision under which liability for deportation arose, as stated in the last deportation liability notice served on the person.

Section 179(1) table: amended, on 7 May 2015, by section 51(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 179(2): replaced, on 7 May 2015, by section 51(2) of the Immigration Amendment Act 2015 (2015 No 48).

Section 179(3): inserted, on 7 May 2015, by section 51(2) of the Immigration Amendment Act 2015 (2015 No 48).

180 Deported person may not enter New Zealand until costs of deportation repaid

(1)

A person 18 years of age or over who is deported from New Zealand may not return to New Zealand, or be granted a visa or entry permission, until the person has repaid any debt due to the Crown in respect of the costs of his or her deportation.

(2)

The requirement of this section is in addition to the period of prohibition on entry under section 179.

(3)

The Minister may reduce or waive any debt due by a person under subsection (1) in his or her absolute discretion.

181 Consequences for deported person if person enters or attempts to enter New Zealand during period of prohibition on entry

(1)

Subsection (2) applies to a person who—

(a)

is deported from New Zealand; and

(b)

on deportation, is subject to a period of prohibition on entry to New Zealand under section 179 or 180(1); and

(c)

attempts to enter or enters New Zealand during the period of prohibition in one of the following ways:

(i)

by boarding a craft, or attempting to board a craft, that is travelling to New Zealand:

(ii)

by arriving in New Zealand:

(iii)

by entering New Zealand.

(2)

The period of prohibition on entry to which the person is subject under section 179 restarts as from the later of the following dates:

(a)

the date the person attempts to re-enter, if the attempted entry is unsuccessful:

(b)

the date the person is once again deported from New Zealand, if the attempted re-entry is successful.

(3)

If, despite a prohibition on entry applying to a person, a person re-enters New Zealand and the person becomes subject to a further prohibition on entry, the period of prohibition on entry that applies to the person on the subsequent deportation is the longest prohibition applicable under the table set out in section 179.

182 Minister may reduce or remove period of prohibition on entry

(1)

The Minister may in his or her absolute discretion reduce, or remove altogether, the period of prohibition on entry that would otherwise apply to a person under section 179(1).

(2)

A reduction or removal under subsection (1) remains subject to section 180(1), unless the Minister determines otherwise.

Part 7 Appeals, reviews, and other proceedings

183 Interpretation

In this Part, unless the context otherwise requires,—

affected person means a person who is—

(a)

the subject of an application made by a refugee and protection officer under section 144 or 147 to the Tribunal in relation to the cessation or cancellation of recognition of the person as a refugee or a protected person; or

(b)

the subject of an application made by the Minister under section 212(2) to the Tribunal on whether the person has breached the conditions of suspension of his or her liability for deportation

closed hearing, in relation to proceedings in the Tribunal or a court, means proceedings conducted in the absence of all persons other than—

(a)

the Judge or Judges hearing the case:

(b)

the chief executive of the relevant agency, or his or her security-cleared representative, or both:

(c)

the Minister, or his or her security-cleared representative, or both:

(d)

if applicable, a refugee and protection officer, or his or her security-cleared representative, or both:

(e)

any special advocate:

(f)

any person appointed as counsel assisting the court or as a special adviser by the Tribunal or the court:

(g)

any person authorised by the Tribunal or the court to provide administrative assistance in the proceedings and who has an appropriate security clearance

matter means—

(a)

an application made by a refugee and protection officer under section 144 or 147 to the Tribunal in relation to the cessation or cancellation of recognition of a person as a refugee or a protected person:

(b)

an application made by the Minister under section 212(2) to the Tribunal on whether a person has breached the conditions of suspension of his or her liability for deportation.

184 Purpose of Part

The purpose of this Part is—

(a)

to provide comprehensively for the system of appeal and review in respect of decision making under this Act, including by providing for—

(i)

reconsideration of certain temporary visa applications; and

(ii)

appeals in respect of decisions on residence class visas; and

(iii)

appeals in respect of decisions concerning recognition of a person as a refugee or a protected person; and

(iv)

appeals against liability for deportation; and

(b)

to establish the Immigration and Protection Tribunal, a specialist tribunal to determine appeals and other matters under this Act; and

(c)

to provide for appeals from the decisions of the Tribunal, and deal with judicial reviews of decisions made under this Act.

Limited right of reconsideration concerning temporary entry class visas

185 Right of reconsideration if onshore application for further temporary visa declined

(1)

This section applies to a holder of a temporary visa if—

(a)

the holder of the temporary visa (the applicant) is onshore and applies during the currency of that visa for a further temporary visa; and

(b)

the application for the further temporary visa is declined; and

(c)

the Minister did not make the decision to decline the application.

(2)

The applicant may apply in the prescribed manner for a reconsideration of the decision to decline a further visa if, and only if,—

(a)

the application for reconsideration is made not later than 14 days after the date on which the applicant received notice of the decision to decline the further visa; and

(b)

the applicant is still lawfully in New Zealand at the time of the application for reconsideration.

(3)

The decision to decline the visa application must be reconsidered by another immigration officer of equal grade or senior to the one who made the decision, or by the Minister.

(4)

If the decision to decline the visa application is confirmed and no visa is granted following reconsideration under this section, an immigration officer must inform the applicant, in writing, of—

(a)

the decision; and

(b)

in the case of an applicant who still holds a visa, the date on which the person will have an obligation to leave New Zealand; and

(c)

in the case of an applicant who no longer holds a visa,—

(i)

the fact that the person is already obliged to leave New Zealand; and

(ii)

the fact that the person may appeal on humanitarian grounds against his or her liability for deportation not later than 42 days after the date on which the person received confirmation of the decision to decline the visa application.

(5)

The result of any reconsideration under this section of a decision to decline an application for a further temporary visa is final and conclusive, and no further application for reconsideration of that decision may be made.

(6)

The fact that an application for reconsideration has been made under this section does not of itself entitle the applicant to remain in New Zealand after the expiry of the applicant’s current temporary visa, but, until the application for reconsideration has been determined or withdrawn, the person may not be deported.

Compare: 1987 No 74 s 31

Limited right of review in respect of temporary entry class visa decisions

186 Limited right of review in respect of temporary entry class visa decisions

(1)

No appeal lies against a decision of the Minister or an immigration officer on any matter in relation to a temporary entry class visa, whether to any court, the Tribunal, the Minister, or otherwise.

(2)

Subsection (1) applies except to the extent that section 185 provides a right of reconsideration for an onshore holder of a temporary visa in the circumstances set out in that section.

(3)

A person may bring review proceedings in a court in respect of a decision in relation to a temporary entry class visa except if the decision is in relation to the—

(a)

refusal or failure to grant a temporary entry class visa to a person outside New Zealand:

(b)

cancellation of a temporary entry class visa before the holder of the visa arrives in New Zealand.

Appeals in relation to residence class visas

187 Rights of appeal in relation to decisions concerning residence class visas

(1)

There is a right of appeal to the Tribunal against a decision concerning a residence class visa in the following circumstances:

(a)

an applicant for a residence class visa may appeal against—

(i)

a decision of an immigration officer to decline to grant the visa (including in the circumstances described in section 190(2)(b)):

(ii)

a decision by the Minister not to grant a residence class visa if classified information has been relied on in making the decision:

(b)

a person outside New Zealand who has been granted a resident visa may appeal against a decision to cancel the visa under section 65(1):

(c)

a person who has been granted a resident visa may appeal against a decision to refuse to grant the person entry permission (including in the circumstances described in section 190(2)(b)).

(2)

However, no appeal lies under this Act in respect of—

(a)

a decision by the Minister not to grant a residence class visa (except in the circumstances described in subsection (1)(a)(ii)); or

(b)

a refusal of the Minister or an immigration officer to grant a residence class visa or entry permission to an excluded person; or

(c)

a refusal or failure of the Minister or an immigration officer to issue an invitation to apply for a visa; or

(d)

a refusal of the Minister or an immigration officer to grant a residence class visa to a person who has been invited to apply for a visa, if a ground for the refusal is that the Minister or officer determines that the person,—

(i)

whether personally or through an agent, in expressing his or her interest in obtaining an invitation to apply for a visa, submitted false or misleading information or withheld relevant information that was potentially prejudicial to the person; or

(ii)

did not ensure that an immigration officer was informed of any material change in circumstances between the time of expressing interest and the time of the person’s application for the relevant visa; or

(e)

a lapse of an application for a residence class visa or of an expression of interest in obtaining an invitation to apply for a visa; or

(f)

a revocation of an invitation to apply for a visa.

(3)

Where a person to whom subsection (1)(b) or (c) applies appeals under this section, this Act applies as if the decision were a decision to decline an application for a residence class visa.

(4)

The grounds for an appeal under this section are that—

(a)

the relevant decision was not correct in terms of the residence instructions applicable at the time the relevant application for the visa was made; or

(b)

the special circumstances of the appellant are such that consideration of an exception to those residence instructions should be recommended.

(5)

An appeal under this section must be brought not later than 42 days after the date the appellant is notified of the decision appealed against.

(6)

[Repealed]

(7)

[Repealed]

(8)

A person may bring review proceedings in a court in respect of a decision in relation to a residence class visa except if the decision is in relation to—

(a)

the refusal or failure to grant a residence class visa to a person outside New Zealand; or

(b)

the cancellation of a resident visa granted outside New Zealand before the holder of the visa first arrives in New Zealand as the holder of the visa.

Compare: 1987 No 74 s 18C(1)–(3)

Section 187(6): repealed, on 7 May 2015, by section 52 of the Immigration Amendment Act 2015 (2015 No 48).

Section 187(7): repealed, on 7 May 2015, by section 52 of the Immigration Amendment Act 2015 (2015 No 48).

188 Determination of appeal in relation to residence class visa

(1)

In determining an appeal under section 187, the Tribunal may—

(a)

confirm the decision appealed against as having been correct in terms of the residence instructions applicable at the time the application for the visa was made by the appellant; or

(b)

reverse the decision as having been incorrect in terms of the residence instructions applicable at the time the application for the visa was made by the appellant; or

(c)

note the correctness of the original decision in terms of the residence instructions applicable at the time the visa application was made on the basis of the information provided to the Minister or the immigration officer before the time of the decision, but reverse that decision on the basis of any information properly made available to the Tribunal that reveals that the grant of the visa would have been correct in terms of the applicable residence instructions; or

(d)

note the correctness of the original decision in terms of the residence instructions applicable at the time the visa application was made on the basis of the information provided to the Minister or the immigration officer before the time of the decision, but determine the appeal by cancelling the decision and referring the matter back to the Minister, if he or she made the decision, or the chief executive, in any other case, for consideration under those residence instructions as if a new visa application had been made that included any additional information properly provided to the Tribunal; or

(e)

determine the appeal by cancelling the decision and referring the application back to the Minister, if he or she made the decision, or the chief executive, in any other case, for correct assessment in terms of the applicable residence instructions, where the Tribunal—

(i)

considers that the decision appealed against was made on the basis of an incorrect assessment in terms of the residence instructions applicable at the time the application was made; but

(ii)

is not satisfied that the appellant would, but for that incorrect assessment, have been entitled in terms of those instructions to the visa or entry permission; or

(f)

confirm the decision as having been correct in terms of the residence instructions applicable at the time the visa application was made, but recommend that the special circumstances of the applicant are such as to warrant consideration by the Minister as an exception to those instructions.

(2)

Where the Tribunal determines to reverse a decision to refuse a visa under subsection (1)(b) or (c), the Tribunal must—

(a)

consider whether it is appropriate that conditions should be imposed in accordance with section 50 when a resident visa is granted to the appellant; and

(b)

if it considers that imposing conditions is appropriate, direct the Minister to impose under that section the conditions specified in its decision (which may be specified with the degree of generality or particularity that the Tribunal thinks fit); and

(c)

notify the appellant in writing of any conditions imposed.

(3)

Where the Tribunal refers an application back to the Minister or the chief executive under subsection (1)(e), the Tribunal may give him or her the directions it thinks fit as to how a correct assessment of the application should be carried out.

(4)

The Tribunal must, as soon as practicable, notify the appellant in writing of its decision on the appeal and the reasons for that decision.

(5)

Subject to section 245, the decision of the Tribunal on the appeal is final, and, except where a court otherwise directs, the Tribunal has no jurisdiction to reconsider the appeal after the appellant has been notified of the decision.

Compare: 1987 No 74 s 18D

189 Use of further information in appeals under section 187

(1)

In determining an appeal under section 187, the Tribunal may not consider any information or evidence adduced by the appellant that was not provided to the Minister or the immigration officer before the time at which the Minister or the officer made the decision that is the subject of the appeal.

(2)

Subsection (1) is subject to subsections (3) to (6).

(3)

The Tribunal may consider information or evidence not provided by the appellant to the Minister or the immigration officer before the time of the relevant decision if—

(a)

the Tribunal is satisfied that—

(i)

the information or evidence existed at the time the decision to refuse the visa was made, and would have been relevant to the making of that decision; and

(ii)

the appellant could not, by the exercise of reasonable diligence, have placed that information or evidence before the Minister or the immigration officer at the time at which the Minister or the officer made the decision on the application; and

(iii)

in all the circumstances it is fair to consider the information or evidence; or

(b)

the Tribunal considers that it is necessary for it to have the information or evidence for the purpose of considering whether to make a determination under section 188(1)(f).

(4)

The Tribunal may require the chief executive to arrange for an interview to be conducted with any specified person for any specified purpose and in any specified manner, and for the report of that interview to be provided to the Tribunal, where—

(a)

the Tribunal considers that the decision under appeal depended, in whole or in part, upon the recorded results of an interview conducted with the appellant or with some other person connected with the application; and

(b)

those results involved the recording of an exercise of judgment on the part of the interviewing officer as opposed to the recording of facts; and

(c)

the Tribunal considers that further written evidence or submissions will not assist to confirm or test those results.

(5)

An interview conducted under subsection (4) may not be conducted by any immigration officer who has previously interviewed the person.

(6)

The Tribunal may, if it considers it fair in all the circumstances to do so, determine the appeal in the manner set out in section 188(1)(d) where—

(a)

it comes to the attention of the Tribunal that any particular event has occurred after the time at which the Minister or the immigration officer made the decision on the appellant’s visa application; and

(b)

the Tribunal is satisfied that the event materially affects the applicant’s eligibility under residence instructions.

Compare: 1987 No 74 s 18F(4)–(6)

190 Procedure where appeal successful or Tribunal makes recommendation

(1)

The Minister or an immigration officer must grant a residence class visa (and if necessary grant entry permission) to the appellant where the Tribunal reverses a decision under section 188(1)(b) or (c).

(2)

However, nothing in subsection (1) requires a residence class visa or entry permission to be granted to a person—

(a)

until the normal requirements for providing any certificate or other material that is required before a visa or entry permission can be granted have been complied with, where the certificate or other material—

(i)

was not supplied to the Minister or the immigration officer concerned before the date on which the decision appealed against was made; or

(ii)

by reason of the passing of time, is no longer current for the purposes of granting a visa or entry permission under this Act; or

(b)

where, since the date of the decision that is the subject of the appeal, any matter has arisen or any information has become available in respect of the person that would disqualify that person from being granted a residence class visa or entry permission in terms of both—

(i)

the residence instructions applicable at the time of the relevant visa application; and

(ii)

the residence instructions currently applicable.

(3)

Where, in reliance on subsection (2)(a), a residence class visa is not immediately granted to a person who is already in New Zealand, the Minister or an immigration officer must grant a temporary visa to the person, being a visa that is current for a period of not less than 6 months.

(4)

The Minister must not impose any conditions on a resident visa granted under subsection (1), unless the Tribunal has directed the Minister to do so under section 188(2)(b).

(5)

Where the Tribunal makes a recommendation under section 188(1)(f), the Minister—

(a)

must consider whether a residence class visa should be granted to the appellant as an exception to residence instructions; and

(b)

may, if he or she grants a resident visa, impose conditions on the visa in accordance with section 50.

(6)

The Minister is not obliged to give reasons in relation to any decision made as a result of any consideration under subsection (5), and neither section 27 of this Act nor section 23 of the Official Information Act 1982 applies in respect of any such decision.

Compare: 1987 No 74 s 18E

No appeal or review rights in relation to invitations to apply and transit visas

191 No appeal or review rights in relation to invitations to apply

(1)

No appeal lies against a decision of the Minister or an immigration officer on any matter in relation to whether to issue an invitation to apply for a visa, whether to a court, the Tribunal, the Minister, or otherwise.

(2)

No review proceedings may be brought in any court in respect of any refusal or failure of the Minister or an immigration officer to issue an invitation to apply for a visa or to revoke an invitation if an invitation is issued.

192 No appeal or review rights in relation to transit visas

(1)

No appeal lies against a decision of the Minister or an immigration officer on any matter in relation to a transit visa, whether to a court, the Tribunal, the Minister, or otherwise.

(2)

No review proceedings may be brought in any court in respect of any decision to refuse to grant or to cancel a transit visa.

Appeals against decisions relating to refugee or protection status

193 Tribunal consideration of refugee and protection matters

(1)

Every appeal relating to whether a person should be recognised as a refugee or a protected person in New Zealand must be determined in accordance with this Act.

(2)

Every appeal as to whether a person should continue to be recognised as a refugee or a protected person in New Zealand must be determined in accordance with this Act.

(3)

To the extent that an issue is not dealt with in this Act, the Tribunal, in carrying out its functions in relation to the recognition of a person as a refugee, must act in a way that is consistent with New Zealand’s obligations under the Refugee Convention.

(4)

The Tribunal, in carrying out its functions in relation to the recognition of a person as a protected person, must act in a way that is consistent with this Act.

194 Right of appeal in relation to decisions concerning refugee or protection status (other than subsequent claims)

(1)

A person may appeal to the Tribunal against a decision by a refugee and protection officer—

(a)

to decline to accept for consideration the person’s claim to be recognised as a refugee or a protected person on the grounds that—

(i)

in light of an international arrangement or agreement (as defined in section 134(5)), the person may have lodged, or had the opportunity to lodge, a claim for refugee status in another country:

(ii)

in light of an international arrangement or agreement (as defined in section 134(5)), the person may have lodged, or had the opportunity to lodge, a claim for protection in another country:

(b)

under section 134(3) to decline to accept for consideration the person’s claim to be recognised as a refugee:

(c)

to decline the person’s claim to be recognised under any of sections 129, 130, and 131 as a refugee or a protected person (whether or not the refugee and protection officer recognised the person as a refugee or a protected person under the grounds set out in another of those sections, or both of those other sections):

(d)

to cease to recognise the person as a refugee or a protected person under section 143:

(e)

to cancel recognition of a New Zealand citizen as a refugee or a protected person under section 145.

(2)

An appeal under this section must be brought,—

(a)

if the person is in detention under Part 9, not later than 5 working days after the date on which the appellant is notified of the decision to which the appeal relates; or

(b)

in any other case, not later than 10 working days after the date on which the appellant is notified of the decision to which the appeal relates.

(3)

The Tribunal may, however, extend the time for lodging an appeal if satisfied that special circumstances warrant an extension.

(4)

To avoid doubt, an appeal right arises under subsection (1)(c) if a person’s claim is declined on the grounds that the person has the protection of another country or has been recognised as a refugee by another country and can be received back and protected there without risk of being returned to a country where he or she would be at risk of circumstances that would give rise to grounds for his or her recognition as a refugee or a protected person in New Zealand.

(5)

Subsection (6) applies to a person who is entitled to an appeal under subsection (1)(a), (b), or (c) and who either—

(a)

is liable for deportation and is entitled to a humanitarian appeal in respect of that liability; or

(b)

would be entitled to a humanitarian appeal in respect of his or her liability for deportation, if he or she became liable for deportation.

(6)

The person must lodge a humanitarian appeal at the same time as lodging an appeal under this section (and, in respect of a person to whom subsection (5)(b) applies, the humanitarian appeal must be conducted as if he or she were a person liable for deportation). If the person is—

(a)

successful on the appeal under this section, the Tribunal must dispense with its consideration of the person’s humanitarian appeal:

(b)

unsuccessful on the appeal under this section, the Tribunal must consider the person’s humanitarian appeal.

(6A)

If the Tribunal dispenses (under subsection (6)(a)) with the consideration of a person’s humanitarian appeal lodged at the same time as an appeal under subsection (1)(a) or (b), the person may subsequently lodge a humanitarian appeal only if it is lodged, as required by subsection (6), at the same time as an appeal under subsection (1)(c).

(7)

If the person does not lodge a humanitarian appeal in accordance with subsection (6), the person is not entitled to a humanitarian appeal against his or her liability for deportation, whether the liability currently exists or may arise in the future.

(8)

To avoid doubt, nothing in subsection (7) applies to a person who—

(a)

complies with subsection (6); and

(b)

is successful on the appeal under this section; and

(c)

becomes liable for deportation for any reason at some future date.

(9)

In subsection (2), working day means a day of the week other than—

(a)

a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign’s birthday, and Labour Day; and

(ab)

if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday; and

(b)

a day in the period commencing with 25 December in a year and ending with 2 January in the following year; and

(c)

if 1 January falls on a Friday, the following Monday; and

(d)

if 1 January falls on a Saturday or a Sunday, the following Monday and Tuesday.

Compare: 1987 No 74 s 129O

Section 194(1)(e): amended, on 7 May 2015, by section 53(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 194(6)(a): amended, on 7 May 2015, by section 53(2) of the Immigration Amendment Act 2015 (2015 No 48).

Section 194(6A): inserted, on 7 May 2015, by section 53(3) of the Immigration Amendment Act 2015 (2015 No 48).

Section 194(9)(ab): inserted, on 1 January 2014, by section 8 of the Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 (2013 No 19).

195 Right of appeal in relation to subsequent claims for refugee or protection status

(1)

A person may appeal to the Tribunal against a decision by a refugee and protection officer—

(a)

under section 140(1) to refuse to consider a subsequent claim by the person to be recognised as a refugee or a protected person:

(b)

under section 140(3) to refuse to consider a subsequent claim by the person to be recognised as a refugee or a protected person, but only if the person’s most recent previous claim was declined under Part 6A of the former Act.

(2)

A person may appeal to the Tribunal against a decision by a refugee and protection officer to decline a subsequent claim by the person to be recognised under any of sections 129, 130, and 131 as a refugee or a protected person (whether or not the refugee and protection officer recognised the person as a refugee or a protected person under the grounds set out in another of those sections, or both of those other sections).

(3)

An appeal under this section must be brought,—

(a)

if the person is in detention under Part 9, not later than 5 working days after the date on which the appellant is notified of the decision to which the appeal relates; or

(b)

in any other case, not later than 10 working days after the date on which the appellant was notified of the decision to which the appeal relates.

(4)

The Tribunal may, however, extend the time for lodging an appeal in any particular case if satisfied that special circumstances warrant an extension.

(5)

To avoid doubt, an appeal right arises under subsection (2) if a person’s claim is declined on the grounds that the person has the protection of another country or has been recognised as a refugee by another country and can be received back and protected there without risk of being returned to a country where he or she would be at risk of circumstances that would give rise to grounds for his or her recognition as a refugee or a protected person in New Zealand.

(6)

Subsection (7) applies to a person who is entitled to appeal under this section and who either—

(a)

is liable for deportation and is entitled to a humanitarian appeal in respect of that liability; or

(b)

would be entitled to a humanitarian appeal in respect of his or her liability for deportation, if he or she became liable for deportation.

(7)

The person must lodge a humanitarian appeal at the same time as lodging an appeal under this section (and, in respect of a person to whom subsection (6)(b) applies, the humanitarian appeal must be conducted as if he or she were a person liable for deportation). If the person is—

(a)

successful on the appeal under this section, and the Tribunal goes on to consider the claim and grants the person recognition, it must dispense with its consideration of the person’s humanitarian appeal:

(b)

successful on the appeal under this section, and the Tribunal goes on to consider the claim but declines the claim, it must consider the person’s humanitarian appeal:

(c)

unsuccessful on the appeal under this section, the Tribunal must consider the person’s humanitarian appeal.

(8)

If the person does not lodge a humanitarian appeal in accordance with subsection (7), the person is not entitled to a humanitarian appeal against his or her liability for deportation, whether the liability currently exists or may arise in the future.

(9)

To avoid doubt, nothing in subsection (8) applies to a person who—

(a)

complies with subsection (7); and

(b)

is successful on the appeal under this section; and

(c)

becomes liable for deportation for any reason at some future date.

(10)

In subsection (3), working day has the meaning given to it in section 194(9).

Section 195(1)(a): amended, on 19 June 2013, by section 17 of the Immigration Amendment Act 2013 (2013 No 39).

196 Determination of appeal against decision declining to accept for consideration claim in light of international arrangement or agreement

(1)

Where an appeal is brought under section 194(1)(a), the Tribunal must—

(a)

determine the matter de novo; and

(b)

determine whether, in light of any international arrangement or agreement (as defined in section 134(5)) the claimant may have lodged, or had the opportunity to lodge,—

(i)

a claim for refugee status in another country:

(ii)

a claim for protection in another country.

(2)

The Tribunal may dismiss or allow the appeal.

(3)

If the Tribunal allows the appeal,—

(a)

it must refer the claim back to a refugee and protection officer for consideration; and

(b)

if the appeal relates to a person to whom section 194(5) applies, it must dispense with its consideration of any humanitarian appeal lodged by the person in accordance with section 194(6)(a).

(4)

To avoid doubt, nothing in subsection (1) requires the Tribunal to seek any information, evidence, or submissions further to those provided by the appellant.

Section 196(2): amended, on 7 May 2015, by section 54(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 196(3): amended, on 7 May 2015, by section 54(2) of the Immigration Amendment Act 2015 (2015 No 48).

Section 196(3)(b): amended, on 7 May 2015, by section 54(3) of the Immigration Amendment Act 2015 (2015 No 48).

197 Determination of appeal against decision declining to accept for consideration certain claims for recognition as refugee

(1)

Where an appeal is brought under section 194(1)(b), the Tribunal must—

(a)

determine the matter de novo; and

(b)

determine whether 1 or more of the circumstances relating to the claim were brought about by the claimant—

(i)

acting otherwise than in good faith; and

(ii)

for a purpose of creating grounds for recognition under section 129.

(2)

For the purposes of determining the matter in subsection (1), the Tribunal must not treat the actions of any other person in relation to the claim or the claimant as a mitigating factor.

(3)

The Tribunal may dismiss or allow the appeal.

(4)

If the Tribunal allows the appeal,—

(a)

it must refer the claim back to a refugee and protection officer for consideration; and

(b)

if the appeal relates to a person to whom section 194(5) applies, it must, in accordance with section 194(6)(a), dispense with its consideration of any humanitarian appeal lodged by the person.

(5)

To avoid doubt, nothing in subsection (1) requires the Tribunal to seek any information, evidence, or submissions further to those provided by the appellant.

Section 197(3): amended, on 7 May 2015, by section 55(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 197(4): amended, on 7 May 2015, by section 55(2) of the Immigration Amendment Act 2015 (2015 No 48).

Section 197(4)(b): amended, on 7 May 2015, by section 55(3) of the Immigration Amendment Act 2015 (2015 No 48).

198 Determination of appeal against declining of claim for recognition, cancellation of recognition, or cessation of recognition

(1)

Where an appeal is brought under section 194(1)(c), (d), or (e), the Tribunal must—

(a)

determine the matter de novo; and

(b)

determine, in the following order:

(i)

whether to recognise the person as a refugee on the ground set out in section 129; and

(ii)

whether to recognise the person as a protected person on the ground set out in section 130; and

(iii)

whether to recognise the person as a protected person on the ground set out in section 131; and

(c)

in relation to the matters in paragraph (b)(ii) and (iii), determine whether there are serious reasons for considering that the claimant has—

(i)

committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; or

(ii)

committed a serious non-political crime outside New Zealand before coming to New Zealand; or

(iii)

been guilty of acts contrary to the purposes and principles of the United Nations.

(2)

However, if the appeal is brought under section 194(1)(e) and relates to a decision to cancel recognition on the grounds that section 145(b)(i) or (iii) (or both) apply, the Tribunal must—

(a)

determine the matter de novo; and

(b)

determine whether either or both of the following apply:

(i)

recognition of the person as a refugee or a protected person may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information:

(ii)

the matters dealt with in Articles 1D, 1E, and 1F of the Refugee Convention may not have been able to be properly considered by a refugee and protection officer for any reason, including by reason of fraud, forgery, false or misleading representation, or concealment of relevant information; and

(c)

if it finds that either or both of the matters under paragraph (b) do apply, determine the matters described in subsection (1)(b) and (c); and

(d)

if it does not find that either of the matters described in paragraph (b) applies, allow the appeal.

(3)

The Tribunal may dismiss or allow the appeal, but may not refer the claim back to a refugee and protection officer for reconsideration.

(4)

If the Tribunal allows an appeal in relation to a person to whom section 194(5) applies, the Tribunal must dispense with its consideration of any humanitarian appeal lodged by the person in accordance with section 194(6)(a).

(5)

To avoid doubt, nothing in subsection (1) requires the Tribunal to seek any information, evidence, or submissions further to those provided by the appellant.

Section 198(1): amended, on 7 May 2015, by section 56(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 198(2): replaced, on 7 May 2015, by section 56(2) of the Immigration Amendment Act 2015 (2015 No 48).

Section 198(3): amended, on 7 May 2015, by section 56(3) of the Immigration Amendment Act 2015 (2015 No 48).

Section 198(4): amended, on 7 May 2015, by section 56(4) of the Immigration Amendment Act 2015 (2015 No 48).

Section 198 compare note: repealed, on 7 May 2015, by section 56(5) of the Immigration Amendment Act 2015 (2015 No 48).

199 After successful appeal, Minister to decide immigration status of protected person who may have committed certain crimes or been guilty of certain acts

The Minister must make any decision about a person’s immigration status if the Tribunal has determined that—

(a)

the person is a protected person; and

(b)

there are serious reasons under section 198(1)(c) for considering that the person has committed a crime, or been guilty of any act, described in that paragraph.

200 Determination of appeal against refusal or declining of subsequent claim for recognition as refugee or protected person

(1)

Where an appeal is brought under section 195(1)(a), the Tribunal must first consider—

(a)

whether there has been a significant change in circumstances material to the appellant’s claim since the previous claim was determined; and

(b)

if so, whether the change in 1 or more of the circumstances was brought about by the appellant—

(i)

acting otherwise than in good faith; and

(ii)

for a purpose of creating grounds for recognition under any of sections 129 to 131.

(2)

The Tribunal must dismiss the appeal if it determines that—

(a)

there is no significant change in circumstances; or

(b)

the change in 1 or more of the circumstances was brought about by the appellant—

(i)

acting otherwise than in good faith; and

(ii)

for a purpose of creating grounds for recognition under any of sections 129 to 131.

(3)

The Tribunal must consider the claim for recognition in accordance with section 198(1) if it—

(a)

determines that there is a significant change in circumstances; and

(b)

does not determine that the change in 1 or more of the circumstances was brought about by the appellant—

(i)

acting otherwise than in good faith; and

(ii)

for a purpose of creating grounds for recognition under any of sections 129 to 131.

(4)

Where an appeal is brought under section 195(1)(b), the Tribunal must first consider whether the subsequent claim is manifestly unfounded or clearly abusive, or repeats a previous claim.

(5)

If the Tribunal determines that the subsequent claim is manifestly unfounded or clearly abusive, or repeats a previous claim, it must dismiss the appeal.

(6)

If the Tribunal does not determine that the subsequent claim is manifestly unfounded or clearly abusive, or repeats a previous claim, it must consider the claim for recognition in accordance with section 198(1).

(7)

Where an appeal is brought under section 195(2), the Tribunal must determine the matter in accordance with section 198(1), as if the appeal were an appeal to which that section applied.

(8)

If the Tribunal reverses a decision in relation to a person to whom section 195(6) applies, the Tribunal must dispense with its consideration of any humanitarian appeal lodged in accordance with section 195(7)(a) by the person.

Section 200(1)(b)(ii): amended, on 19 June 2013, by section 17 of the Immigration Amendment Act 2013 (2013 No 39).

Section 200(2)(b)(ii): amended, on 19 June 2013, by section 17 of the Immigration Amendment Act 2013 (2013 No 39).

Section 200(3)(b)(ii): amended, on 19 June 2013, by section 17 of the Immigration Amendment Act 2013 (2013 No 39).

Appeal on facts against liability for deportation

201 Persons who may appeal to Tribunal on facts

(1)

The following persons may appeal to the Tribunal on the facts against their liability for deportation:

(a)

residents whose liability for deportation arises under section 155, 156(1)(b), 158(1)(b), 159, or 160:

(b)

permanent residents whose liability for deportation arises under section 155, 156(1)(b), 158(1)(b), or 160:

(c)

persons recognised as refugees or protected persons whose liability for deportation arises under section 162(1), other than persons described in subsection (2)(b).

(2)

The following persons may not appeal to the Tribunal on the facts against their liability for deportation:

(a)

residents or permanent residents whose liability for deportation arises under section 156(1)(a), 158(1)(a), 158(2), or 161:

(b)

persons whose liability for deportation arises under section 162(1) and who have been convicted of an offence where it is established that the person acquired recognition as a refugee or a protected person by fraud, forgery, false or misleading representation, or concealment of relevant information:

(c)

persons whose liability for deportation arises by way of a deportation order under section 163.

202 Grounds for determining appeal on facts

The Tribunal must allow an appeal against liability for deportation on the facts where,—

(a)

in the case of an appellant liable for deportation under section 155, the Tribunal is satisfied, on the balance of probabilities, that the resident visa or permanent resident visa was not granted as a result of an administrative error:

(b)

in the case of an appellant liable for deportation under section 156(1)(b), the Tribunal is satisfied, on the balance of probabilities, that the resident visa or permanent resident visa was not granted to the person in a false identity:

(c)

in the case of an appellant liable for deportation under section 158(1)(b)(i), the Tribunal is satisfied, on the balance of probabilities, that none of the information provided in relation to the person’s application, or purported application, for a residence class visa or entry permission was fraudulent, forged, false, or misleading, and no relevant information was concealed:

(ca)

in the case of an appellant liable for deportation under section 158(1)(b)(ii), the Tribunal is satisfied, on the balance of probabilities, that none of the information provided in relation to the person’s, or any other person’s, application, or purported application, for a visa on the basis of which the residence class visa was granted was fraudulent, forged, false, or misleading, and no relevant information was concealed:

(d)

in the case of an appellant liable for deportation under section 159, the Tribunal is satisfied, on the balance of probabilities, that—

(i)

the conditions of the resident visa were met; or

(ii)

the resident has not materially breached the conditions of his or her visa:

(e)

in the case of an appellant liable for deportation under section 160, the Tribunal is satisfied, on the balance of probabilities, that—

(i)

the new information was not material to the applicant’s character as at the time the visa was granted; or

(ii)

the person would have been eligible for the grant of the visa under this Act or immigration instructions:

(f)

in the case of an appellant liable for deportation under section 162, the Tribunal is not satisfied that—

(i)

the person’s recognition as a refugee or a protected person may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information; or

(ii)

the matters dealt with in Articles 1D, 1E, and 1F of the Refugee Convention may not have been able to be properly considered by a refugee and protection officer (or a refugee status officer under the former Act) for any reason, including by reason of fraud, forgery, false or misleading representation, or concealment of relevant information.

Section 202(c): replaced, on 7 May 2015, by section 57 of the Immigration Amendment Act 2015 (2015 No 48).

Section 202(ca): inserted, on 7 May 2015, by section 57 of the Immigration Amendment Act 2015 (2015 No 48).

203 Process when entitlement to appeal on facts and humanitarian grounds

(1)

A person who is entitled to and wishes to appeal both on the facts and on humanitarian grounds must lodge both appeals together within the relevant time limits.

(2)

Where practicable, the Tribunal must consider both appeals together, but—

(a)

must first consider the appeal on the facts; and

(b)

may dispense with its consideration of the humanitarian appeal if the appellant’s appeal on the facts is successful.

(3)

This section is subject to sections 194(6) and 195(7).

204 Special process where refugee or protection status acquired through fraud, etc

(1)

Subject to subsections (2) and (3), where a person who is liable for deportation under section 162 appeals against liability for deportation, the Tribunal must, in addition to considering the appeal on the facts (if any) or on humanitarian grounds (if lodged), determine whether the person is currently a refugee or a protected person in terms of sections 129 to 131.

(2)

If the Tribunal has allowed an appeal on the facts under section 202(f), the Tribunal need not consider—

(a)

whether the person is currently a refugee or a protected person; or

(b)

any humanitarian appeal brought by the person.

(3)

If the Tribunal does not allow an appeal on the facts under section 202(f), the Tribunal must—

(a)

first determine whether to recognise the person as a refugee or a protected person in terms of sections 129, 130, and 131; and

(b)

if it does not recognise the person as a refugee or a protected person, then determine any humanitarian appeal by the person.

(4)

When determining whether to recognise a person as a refugee or a protected person for the purposes of this section, the Tribunal must determine the matter in accordance with section 198(1).

205 Special process if refugee or protected person liable for deportation under section 161

(1)

This section applies if—

(a)

a refugee or a protected person is liable for deportation under section 161; and

(b)

a refugee and protection officer has determined that the deportation of the person is not prohibited under section 164; and

(c)

the person appeals against that determination under section 161(2)(b).

(2)

The Tribunal must—

(a)

first determine whether the deportation of the person is prohibited under section 164; and

(b)

if it determines that the deportation of the person is not prohibited, then determine any appeal on humanitarian grounds brought by the person.

Appeal on humanitarian grounds against liability for deportation

206 Who may appeal to Tribunal on humanitarian grounds

(1)

The following persons may appeal to the Tribunal on humanitarian grounds against their liability for deportation:

(a)

a person liable for deportation under section 154 on the grounds of being unlawfully in New Zealand:

(b)

a temporary visa holder or interim visa holder liable for deportation under section 155, 156, or 157:

(c)

a resident or permanent resident liable for deportation under section 155, 156, 158, 159, 160, or 161:

(d)

a person liable for deportation under section 162.

(2)

No person may appeal to the Tribunal on humanitarian grounds—

(a)

against any liability for deportation arising from the expiry or cancellation of a limited visa; or

(b)

if he or she is a person to whom section 115, 154(5), 210(2), or 216(2) applies; or

(c)

whose liability for deportation arises by way of a deportation order under section 163; or

(d)

if he or she holds a limited visa and is liable for deportation under section 155, 156, or 157; or

(e)

if the person is liable for deportation under section 155 because he or she re-entered New Zealand while subject to a period of prohibition on entry.

(3)

No person may appeal to the Tribunal on humanitarian grounds against his or her liability for deportation if the person has—

(a)

failed to lodge a humanitarian appeal at the same time as lodging an appeal in relation to a claim or a subsequent claim, where he or she is required to do so under this Act; or

(b)

had a humanitarian appeal heard by the Tribunal in relation to a claim or a subsequent claim.

Section 206(2)(b): amended, on 7 May 2015, by section 58(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 206(2)(c): amended, on 7 May 2015, by section 58(2) of the Immigration Amendment Act 2015 (2015 No 48).

Section 206(2)(d): inserted, on 7 May 2015, by section 58(3) of the Immigration Amendment Act 2015 (2015 No 48).

Section 206(2)(e): inserted, on 7 May 2015, by section 58(3) of the Immigration Amendment Act 2015 (2015 No 48).

207 Grounds for determining humanitarian appeal

(1)

The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—

(a)

there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and

(b)

it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.

(2)

In determining whether it would be unjust or unduly harsh to deport from New Zealand an appellant who became liable for deportation under section 161, and whether it would be contrary to the public interest to allow the appellant to remain in New Zealand, the Tribunal must have regard to any submissions of a victim made in accordance with section 208.

Compare: 1987 No 74 ss 47(3), 105(1A)

208 Right of victims to make submission on appeal

(1)

In determining a humanitarian appeal by a person who becomes liable for deportation under section 161, the Tribunal must have regard to—

(a)

any written submissions made to it by a victim of an offence or offences of which the appellant has been convicted and from which the liability for deportation arose; and

(b)

any relevant written submissions made by a victim to the Minister under section 173.

(2)

In addition to, or instead of, making written submissions under this section, the victim may, with the leave of the Tribunal, make oral submissions to the Tribunal at the hearing.

(3)

The Tribunal must make available to a lawyer or agent acting for the appellant, on a request by the appellant, a copy of all written submissions made by the victim under section 173 or this section.

(4)

The Tribunal, or a lawyer or agent acting for the appellant, must, on a request for the purpose, show the appellant a copy of all written submissions made by the victim under section 173 or this section. However, the appellant may not keep a copy of any of those submissions.

(5)

Despite subsections (3) and (4), the Tribunal may withhold from the appellant and every lawyer or agent acting for the appellant (if any) either or both of the following if, in the Tribunal’s opinion, that withholding is necessary to protect the physical safety or security of the victim concerned:

(a)

any part of the victim’s written submissions under section 173, whether or not that part was withheld by the Minister under section 173(4):

(b)

any part of the victim’s written submissions under this section.

(6)

Despite subsection (1), the Tribunal must not have regard to any part of the victim’s submissions that is withheld under subsection (5).

(7)

In this section, victim means a victim of an offence of a kind referred to in section 29 of the Victims’ Rights Act 2002.

Orders on determination of appeal

209 Tribunal may make orders considered necessary on allowing appeal against liability for deportation

If the Tribunal decides that an appeal against liability for deportation should be allowed, it may order that an immigration officer take such steps as it considers necessary to give effect to its decision.

210 Tribunal may order grant of visa on allowing appeal against liability for deportation

(1)

Without limiting section 209, if the Tribunal decides that an appeal against liability for deportation should be allowed in the case of a person who is unlawfully in New Zealand or is the holder of a temporary entry class visa, the Tribunal may order an immigration officer to grant the successful appellant—

(a)

a resident visa subject to such conditions (if any) as the Tribunal determines; or

(b)

a temporary visa for a period not exceeding 12 months subject to such conditions (if any) as the Tribunal determines.

(2)

If a temporary visa is granted following an order made under subsection (1)(b), no further appeal against liability for deportation may be brought by the holder upon the expiry of the visa or upon the holder earlier becoming liable for deportation.

(3)

The Tribunal may order the imposition of any condition on the grant of a resident visa that it thinks fit, having regard to the reasons why the appellant was able to demonstrate exceptional circumstances of a humanitarian nature or why it was not contrary to the public interest to allow the appellant to remain in New Zealand, whether or not the condition is of a kind authorised by residence instructions.

(4)

To avoid doubt, the Tribunal may order an immigration officer to grant a visa, and the officer must grant the visa, even though the person would normally be prohibited from being granted a visa under section 15 or 16.

(5)

If the Tribunal orders the imposition of any condition on a visa,—

(a)

the condition must be treated as if it were a condition imposed by the Minister under section 50 or 52 (as the case may be); and

(b)

the condition must be notified to the visa holder in writing; and

(c)

section 56(1) requires the holder to comply with the conditions of the visa.

(6)

The chief executive must ensure that the terms of an order given under this section are complied with.

Compare: 1987 No 74 s 52

211 Effect of successful appeal against liability for deportation

(1)

If the Tribunal allows an appeal under this Part against liability for deportation, the appellant’s liability is cancelled and subsection (2), (3), or (4) applies, as the case may be.

(2)

If the appellant is in custody under this Act, an immigration officer must immediately notify, in writing, the manager or other person in charge of the prison or other premises in which the appellant is detained that the appellant’s liability for deportation is cancelled, and the appellant must be immediately released.

(3)

If the appellant is subject to residence or reporting requirements under section 315, an immigration officer must immediately notify, in writing, the appellant (and, if applicable, his or her guarantor) that the appellant’s liability for deportation is cancelled, and the appellant ceases to be subject to those requirements.

(4)

If the appellant has been released on conditions under section 320, an immigration officer must immediately notify, in writing, the appellant that his or her liability for deportation is cancelled, and the appellant ceases to be subject to those conditions.

(5)

Subsection (1) applies unless—

(a)

the appeal concerned is a humanitarian appeal; and

(b)

the appellant is a resident or a permanent resident; and

(c)

the Tribunal instead suspends the appellant’s liability for deportation under section 212.

(6)

Nothing in this section limits section 209.

Compare: 1987 No 74 s 107

212 Tribunal may suspend liability for deportation on allowing humanitarian appeal

(1)

On allowing any humanitarian appeal the Tribunal may, in the case of a resident or permanent resident, make an order suspending the appellant’s liability for deportation for a period not exceeding 5 years, subject to such conditions (if any) as the Tribunal determines.

(2)

If a person’s liability for deportation has been suspended by the Tribunal under subsection (1), the Minister may subsequently apply to the Tribunal for a determination on whether the person has failed to meet any condition imposed by the Tribunal.

(3)

If the Tribunal determines that the person has failed to comply with any condition,—

(a)

the Tribunal may reactivate the person’s liability for deportation by causing an immigration officer to serve a deportation liability notice on the person that sets out the grounds of the reactivation; and

(b)

the person has 28 days from the date the notice is served to leave New Zealand before he or she may be deported.

(4)

In the case of a person in imprisonment, the period referred to in subsection (1) commences on the date of the person’s release from imprisonment.

(5)

The suspension of a person’s liability for deportation does not prevent the person from becoming liable for deportation on other grounds.

213 Effect of suspension

(1)

If a person’s liability for deportation is suspended by the Tribunal under section 212, during the period of the suspension—

(a)

subsection (2), (3), or (4) applies, as the case may be; and

(b)

the person may not apply for a visa of a different class or type; and

(c)

the processing of any application made by the person for a visa of a different class or type must be suspended; and

(d)

subject to sections 9 and 10 of the Citizenship Act 1977 and section 7(1)(b)(i) of the Citizenship (Western Samoa) Act 1982, the person may not be granted citizenship on the basis of meeting a requirement (or requirements) for the grant of New Zealand citizenship that the person hold a residence class visa.

(2)

If the person is in custody under this Act, an immigration officer must immediately notify, in writing, the manager or other person in charge of the prison or other premises in which the person is detained that the person’s liability for deportation is suspended, and the person must be immediately released.

(3)

If the person is subject to residence or reporting requirements under section 315, an immigration officer must immediately notify, in writing, the person and the person’s guarantor (if applicable) that the person’s liability for deportation is suspended, and the person ceases to be subject to those requirements.

(4)

If the person has been released on conditions under section 320, an immigration officer must immediately notify, in writing, the person that his or her liability for deportation is suspended, and the person ceases to be subject to those conditions.

(5)

If the Minister determines that a person has met any conditions imposed by the Tribunal under section 212(1) for the duration of the suspension, the Minister must cancel the person’s liability for deportation and notify the Tribunal accordingly.

(6)

If the Tribunal did not impose conditions on the person under section 212(1) and the period of suspension has expired, the Minister must cancel the person’s liability for deportation and notify the person and the Tribunal accordingly.

214 Effect of suspension on appeal

(1)

This section applies if the Minister suspends a person’s liability for deportation, and the person has lodged an appeal under this Part against that liability.

(2)

If the person does not withdraw the appeal, the Tribunal may, on the application of the person, adjourn any appeal on humanitarian grounds lodged by the person.

(3)

If the person’s liability for deportation is cancelled under section 172 or 174(2), the Tribunal may dispense with its consideration of any aspects of the appeal that have not been determined at that point.

(4)

If the person is served with a deportation liability notice under section 172(3), the Tribunal must then continue to determine any aspects of the person’s appeal that have not yet been determined.

(5)

To avoid doubt, a suspension of liability for deportation does not affect any time limit by which an appeal must be lodged under this Act.

215 Tribunal may reduce or remove period of prohibited entry under deportation order

(1)

On declining an appeal against liability for deportation, the Tribunal may in its absolute discretion order the reduction, or removal altogether, of the period of any prohibition on entry to New Zealand that would otherwise apply under section 179 following the person’s deportation from New Zealand.

(2)

A reduction or removal under subsection (1) remains subject to section 180(1), unless the Tribunal otherwise orders.

216 Tribunal may make order delaying deportation if appeal unsuccessful

(1)

On declining an appeal against liability for deportation, if the Tribunal considers it necessary to enable the appellant to remain in New Zealand for the purposes of getting his or her affairs in order, it may order—

(a)

that the deportation of the appellant be delayed for a period not exceeding 12 months, commencing on the date of the Tribunal’s decision; or

(b)

that a temporary entry class visa, valid for a period not exceeding 12 months, commencing on the date of the Tribunal’s decision, be granted to the appellant.

(2)

If the Tribunal orders the grant of a visa under subsection (1)(b), no further appeal against liability for deportation may be brought by the holder upon the expiry of the visa or upon the holder earlier becoming liable for deportation.

Immigration and Protection Tribunal

217 Immigration and Protection Tribunal

(1)

For the purposes of this Act there is a tribunal called the Immigration and Protection Tribunal.

(2)

The functions of the Tribunal are—

(a)

to determine appeals against—

(i)

decisions to decline to grant residence class visas:

(ii)

decisions in relation to recognition as a refugee or a protected person:

(iii)

decisions to cease to recognise a person as a refugee or a protected person:

(iv)

decisions to cancel the recognition of a New Zealand citizen as a refugee or a protected person:

(v)

liability for deportation:

(b)

to determine applications—

(i)

made by refugee and protection officers in relation to the cessation of recognition of a person as a refugee or a protected person, if the recognition was originally determined by the Tribunal (or by the Refugee Status Appeals Authority under the former Act):

(ii)

made by refugee and protection officers in relation to the cancellation of recognition of a New Zealand citizen as a refugee or a protected person, if the recognition was originally determined by the Tribunal (or by the Refugee Status Appeals Authority under the former Act):

(iii)

made by the Minister under section 212(2) on whether a person has failed to meet his or her conditions of suspension of liability for deportation:

(c)

to deal with certain transitional matters arising from the repeal of the Immigration Act 1987, in accordance with Part 12 of this Act.

218 Nature of Tribunal

(1)

The Tribunal is a specialist body that has the role of deciding appeals and matters by making findings of fact, applying the relevant law, and making a determination.

(2)

In carrying out its role, the proceedings of the Tribunal in any particular case may be, as the Tribunal thinks fit,—

(a)

of an inquisitorial nature; or

(b)

of an adversarial nature; or

(c)

of both an inquisitorial and an adversarial nature.

219 Membership of Tribunal

(1)

The Tribunal consists of—

(a)

a chair, being a District Court Judge:

(b)

such other members as may be appointed under subsection (3), being lawyers who have held a practising certificate for at least 5 years or have other equivalent or appropriate experience (whether in New Zealand or overseas):

(c)

a representative of the United Nations High Commissioner for Refugees, to serve as an ex officio member in relation to matters relating to refugees:

(d)

a District Court Judge seconded to the Tribunal under section 240 to exercise the jurisdiction of the Tribunal in relation to proceedings involving classified information.

(2)

The chair of the Tribunal is appointed by the Governor-General on the advice of the Attorney-General, given after consultation with the Minister of Justice and the Minister.

(3)

The members of the Tribunal are appointed by the Governor-General on the recommendation of the Minister of Justice made in consultation with the Minister.

(4)

None of the following persons may be appointed as a member of the Tribunal:

(a)

an immigration officer; or

(b)

a refugee and protection officer; or

(c)

any person who at any time in the previous 5 years has been—

(i)

an immigration officer; or

(ii)

a refugee and protection officer; or

(iii)

an immigration officer, a visa officer, or a refugee status officer under the former Act.

220 Role of chair of Tribunal

(1)

In addition to deciding appeals and matters in the Tribunal, the chair of the Tribunal is responsible for—

(a)

making such arrangements as are practicable to ensure that the members of the Tribunal discharge their functions—

(i)

in an orderly and expeditious manner; and

(ii)

in a way that meets the purposes of this Act; and

(b)

directing the education, training, and professional development of members of the Tribunal; and

(c)

dealing with complaints made about members of the Tribunal.

(2)

Without limiting subsection (1), the chair of the Tribunal may—

(a)

issue practice notes (not inconsistent with this Act or any regulations made under it) for the purposes of regulating the practice and procedure of the Tribunal:

(b)

develop a code of conduct for members of the Tribunal:

(c)

require particular members of the Tribunal to determine particular appeals.

221 Exercise of jurisdiction

(1)

For the purpose of any appeal or matter in its jurisdiction, the Tribunal consists of 1 member, except as provided in this section.

(2)

The chair of the Tribunal may direct that, because of the exceptional circumstances of any case, the case is to be heard and determined by more than 1 member. In any such case the chair must designate—

(a)

the members who are to hear and determine the case (being not more than 3 members); and

(b)

the member who is to be the presiding member for the purposes of the hearing and determination.

(3)

Where a case before the Tribunal relates to a refugee or a claimant for refugee status,—

(a)

the ex officio member referred to in section 219(1)(c) may hear and be involved in the determination of the case; but

(b)

this is in addition to the other member or members of the Tribunal required under subsection (1) or (2).

222 Procedure for determining appeals and matters generally

(1)

The Tribunal must determine an appeal or matter with all reasonable speed.

(2)

The chair of the Tribunal may decide the order in which appeals and matters are to be heard generally, or in any particular circumstances.

(3)

No decision on an appeal or matter is to be called into question on the basis that the appeal or matter ought to have been heard or decided earlier or later than any other appeal, matter, or category of appeal or matter.

(4)

The Tribunal may regulate its procedures as it sees fit, subject to this Act and any regulations made under this Act.

(5)

This section is subject to section 257.

223 Chair to ensure appeals and matters heard expeditiously

(1)

The chair of the Tribunal must make such directions as are necessary to ensure that appeals and matters are heard in an orderly and expeditious manner.

(2)

Subsection (3) applies if—

(a)

more than 1 appeal is lodged by the same person whether or not—

(i)

relating to substantially the same set of circumstances; or

(ii)

lodged at the same time; or

(b)

appeals or matters that are lodged by different persons—

(i)

are associated because—

(A)

of the relationship of the appellant or appellants or affected person or persons; or

(B)

they relate to the same person; and

(ii)

relate to substantially the same set of circumstances; or

(c)

an appeal or matter is lodged and a previous appeal or matter has already been determined in respect of the same person.

(3)

If this subsection applies, the chair may, for the purposes of complying with subsection (1), direct that—

(a)

the appeals or matters be determined by the same member of the Tribunal; or

(b)

the appeals or matters be determined together by the same member of the Tribunal; or

(c)

the appeal or matter be determined by the same member of the Tribunal who determined the previous appeal or matter.

224 Tribunal may dismiss frivolous or vexatious appeal

The Tribunal may at any time dismiss an appeal that it is satisfied is frivolous or vexatious.

224A Annual report on performance of Tribunal’s functions

(1)

The chair of the Tribunal must, in each year, provide a report to the Minister of Justice, the Minister of Immigration, and the Minister for Courts on the performance of the Tribunal’s functions under this Act in respect of the financial year ending in that year.

(2)

The report must include details of both the number of determinations and the nature of the determinations made by the Tribunal in the period to which the report relates.

(3)

The Minister of Justice must present a copy of the report to the House of Representatives as soon as practicable after it is provided to that Minister.

Section 224A: inserted, on 7 May 2015, by section 59 of the Immigration Amendment Act 2015 (2015 No 48).

Procedure for appeals and matters

225 How appeal or matter lodged

(1)

An appeal or matter must be lodged in the prescribed manner and be accompanied by the prescribed fee (if any).

(2)

The appellant or affected person must—

(a)

provide the Tribunal with a contact address and an address for service; and

(b)

notify the Tribunal in a timely manner of a change in either of those addresses.

(3)

[Repealed]

(4)

[Repealed]

Section 225(2)(a): replaced, on 7 May 2015, by section 60(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 225(2)(b): amended, on 7 May 2015, by section 60(2) of the Immigration Amendment Act 2015 (2015 No 48).

Section 225(3): repealed, on 7 May 2015, by section 60(3) of the Immigration Amendment Act 2015 (2015 No 48).

Section 225(4): repealed, on 7 May 2015, by section 60(3) of the Immigration Amendment Act 2015 (2015 No 48).

226 Proceedings on appeal or matter

(1)

It is the responsibility of an appellant or affected person to establish his or her case or claim, and the appellant or affected person must ensure that all information, evidence, and submissions that he or she wishes to have considered in support of the appeal or matter are provided to the Tribunal before it makes its decision on the appeal or matter.

(2)

Where an appeal or matter is lodged,—

(a)

subject to agreement between the Tribunal and the chief executive, the Tribunal must give the chief executive a copy of the notice of appeal or matter and any information, evidence, or submissions lodged by the appellant or affected person; and

(b)

the chief executive must, in the time allowed by the Tribunal for the purpose, lodge with the Tribunal any file relevant to the appeal or matter that is held by the Department.

(3)

The Minister, the chief executive, or a refugee and protection officer may also, in the time allowed by the Tribunal for the purpose, lodge with the Tribunal any other information, evidence, or submissions in relation to the appeal or matter as he or she thinks fit.

Compare: 1987 No 74 ss 18F(3), 129P(1)

227 Minister or Department is party to proceedings

The Minister, the chief executive, or a refugee and protection officer, as the case may be, is a party to any proceedings under this Act, including proceedings involving classified information.

228 Information Tribunal may consider

(1)

When considering an appeal or a matter, the Tribunal may seek information from any source.

(2)

However, the Tribunal is not obliged to seek any information, evidence, or submissions further to those provided by the appellant or the affected person and the Minister, the chief executive, or a refugee and protection officer (as the case may be), and may determine the appeal or matter only on the basis of the information, evidence, and submissions provided by those persons.

Compare: 1987 No 74 ss 18F(2), 129P(2), 129S

229 Tribunal may require chief executive to provide information

(1)

The Tribunal may require the chief executive to seek and provide information relevant to an appeal or matter, and the chief executive must comply, to the extent practicable, with such a requirement.

(2)

Where the chief executive provides information to the Tribunal under subsection (1), the chief executive must be treated as an agent of the Tribunal for the purposes of the Official Information Act 1982 and the Privacy Act 1993.

(3)

No party to the appeal or matter may request the Tribunal to exercise its powers under this section.

(4)

This section is subject to section 35(3).

Compare: 1987 No 74 ss 18F(3), 129P(4)

230 Tribunal must disclose prejudicial information

(1)

Except as provided in subsection (3), the Tribunal must disclose to the appellant or affected person, and give the appellant or affected person an opportunity to rebut or comment on, information or material that—

(a)

is provided to the Tribunal by a source other than the appellant or affected person; and

(b)

is or may be prejudicial to the appellant or affected person; and

(c)

the Tribunal intends to take into account in determining the appeal or matter.

(2)

The Tribunal must set a reasonable time within which the appellant or affected person may rebut or comment on the information or material.

(3)

Subsection (1) does not require the Tribunal to disclose any information or material if—

(a)

the disclosure would be likely to endanger the safety of any person; or

(b)

it is classified information that the Tribunal must keep confidential and must not disclose under section 259.

(4)

The Tribunal must, however, notify the appellant or affected person of the fact of any non-disclosure on the grounds specified in subsection (3).

Compare: 1987 No 74 s 18F(7)–(9)

231 Findings of credibility and fact

(1)

On any appeal or matter, the Tribunal may rely on any finding of credibility or fact—

(a)

by the Tribunal in any previous appeal or matter determined by the Tribunal that involved the appellant or affected person; or

(b)

by any appeals body in any previous appeal or matter determined by the appeals body that involved the appellant or affected person.

(2)

A person may not challenge any finding of credibility or fact that may be relied on by the Tribunal under subsection (1).

(3)

For the purposes of subsection (1)(b), matter includes an application by a refugee status officer under section 129L(1)(f) of the former Act.

Compare: 1987 No 74 s 129P(9)

232 Tribunal may require provision of biometric information

For the purposes of assisting the Tribunal to determine an appeal or matter, the Tribunal may require the appellant or affected person to allow biometric information to be collected from him or her.

233 When Tribunal must or may provide oral hearing

(1)

The Tribunal must provide an oral hearing in the case of an appeal against liability for deportation by a resident or permanent resident.

(2)

The Tribunal may, in its absolute discretion, provide an oral hearing in any other appeal against liability for deportation.

(3)

The Tribunal must provide an oral hearing in the case of an appellant or affected person currently or previously recognised as a refugee or a protected person, or a claimant for such recognition, unless—

(a)

the person was interviewed by a refugee and protection officer (or a refugee status officer under the former Act) in the course of determining the relevant issue at first instance or, having been given an opportunity to be interviewed, failed to take that opportunity; and

(b)

the Tribunal considers that the appeal or other contention of the person—

(i)

is prima facie manifestly unfounded or clearly abusive; or

(ii)

relates to a subsequent claim for refugee or protection status.

(4)

The Tribunal may, in its absolute discretion, provide an oral hearing in the case of an appeal that relates to a subsequent claim for refugee or protection status.

Section 233: replaced, on 19 June 2013, by section 9 of the Immigration Amendment Act 2013 (2013 No 39).

234 Decision on papers in other circumstances

(1)

Despite section 233, the Tribunal may determine an appeal or matter without an oral hearing if the appellant or affected person fails without reasonable excuse to attend a hearing notified by the Tribunal.

(2)

Except as otherwise provided in section 233 (as subject to subsection (1) of this section), the Tribunal must determine an appeal or matter on the papers.

235 Tribunal may issue single decision when appeals or matters heard together

In any proceedings in which more than 1 appeal or matter is heard together, the Tribunal may issue a single decision in respect of the appeals or matters.

236 Appeals against deportation liability where person serving prison sentence

(1)

Where a person appealing against his or her liability for deportation is serving a sentence of imprisonment in a prison, the Tribunal must, with a view to determining the appeal before the person’s release, consider and determine any appeal on humanitarian grounds as close as practicable to the date of the person’s parole eligibility date or (in the case of a person serving a short-term sentence) statutory release date.

(2)

In this section, parole eligibility date, short-term sentence, and statutory release date have the meanings given in section 4 of the Parole Act 2002.

237 Procedure

Schedule 2 applies in relation to the proceedings of the Tribunal.

238 Withdrawal of appeal or matter

(1)

An appeal to the Tribunal may be withdrawn by the appellant at any time.

(2)

A matter lodged with the Tribunal may be withdrawn by the applicant at any time.

(3)

If a person withdraws an appeal against liability for deportation, the person may be served with a deportation order and the person’s deportation may be executed.

(4)

In any other case, if an appeal is withdrawn, the decision appealed against stands.

239 Deemed withdrawal of certain appeals where person leaves New Zealand

(1)

A person’s appeal to the Tribunal is deemed to be withdrawn when the person leaves New Zealand if the appeal is—

(a)

an appeal against liability for deportation, if the appeal is brought by a person liable for deportation under any of sections 154 to 158, 161, and 162; or

(b)

an appeal against a decision to decline recognition as a refugee or a protected person; or

(c)

an appeal against a decision to cease to recognise a person as a refugee or a protected person.

(2)

Subsection (1) does not apply if—

(a)

the person’s liability for deportation has been suspended under section 172(2); and

(b)

the person leaves New Zealand during the suspension period.

(3)

In determining whether a person has left New Zealand, the Tribunal may rely on a certificate made under section 366(2)(17).

Special procedure where classified information involved

240 How proceedings involving classified information to be conducted by Tribunal

(1)

If proceedings before the Tribunal involve classified information, the Tribunal must consist of—

(a)

the chair of the Tribunal; or

(b)

the chair of the Tribunal and 1 or 2 other members.

(2)

If subsection (1)(b) applies, each member must be—

(a)

a member of the Tribunal who is a District Court Judge; or

(b)

a nominated District Court Judge.

(3)

In this section, nominated District Court Judge means—

(a)

the Chief District Court Judge; or

(b)

a District Court Judge (other than the chair of the Tribunal) nominated by the Chief District Court Judge to be seconded to the Tribunal to exercise its jurisdiction in relation to proceedings involving classified information.

(4)

For the purposes of subsection (2)(b), the Chief District Court Judge may nominate a maximum of 2 District Court Judges (other than himself or herself) at any one time.

241 Presentation of classified information to Tribunal

(1)

The Tribunal must be given access to classified information that—

(a)

was relied on to make a decision that is on appeal to the Tribunal; or

(b)

is first raised in the course of an appeal to, or a matter before, the Tribunal.

(2)

Before holding a substantive hearing on the appeal or matter, the Tribunal must hold a closed hearing at which the chief executive of the relevant agency makes a presentation on the classified information (a preliminary hearing).

(3)

The purpose of the preliminary hearing is not to enable the Tribunal to consider or determine the matters in section 243, but to enable the Tribunal, the special advocate, and counsel assisting the court and the special adviser (if any and if relevant) to understand the classified information and to question—

(a)

the chief executive of the relevant agency about the information; or

(b)

if necessary, any other person from the relevant agency about the information.

(4)

The preliminary hearing may not occur before the date that is 28 days after the appellant or affected person is provided with the names of possible special advocates under section 265(2).

(5)

The content of the presentation is to be determined by the chief executive of the relevant agency.

242 Tribunal to approve summary of allegations

(1)

The purpose of this section is to give an appellant or affected person an opportunity to comment on potentially prejudicial information in the course of proceedings involving classified information before the Tribunal.

(2)

If proceedings before the Tribunal involve classified information,—

(a)

the chief executive of the relevant agency must develop, and provide to the Tribunal for approval, a summary of the allegations arising from the classified information; and

(b)

the Tribunal must—

(i)

approve the summary developed under paragraph (a); or

(ii)

modify the summary, and then approve it; and

(c)

following approval (with or without modification) of the summary, the Tribunal must provide the summary to the appellant or affected person, the special advocate, and counsel assisting the court and the special adviser (if any and if relevant).

(3)

For the purposes of making its decision, the Tribunal may rely on the classified information only to the extent that the allegations arising from the information can be summarised without disclosing classified information that would be likely to prejudice the interests described in section 7(3).

(4)

In determining whether, or how, to modify the summary, the Tribunal—

(a)

must have regard to the views of the relevant agency; and

(b)

may have regard to the views of the applicant or the person who made the decision to which the proceedings apply.

(5)

Nothing in this section requires the summary to—

(a)

list any documents or other source material containing classified information; or

(b)

detail the contents of any documents or other source material containing classified information; or

(c)

specify the source of any documents or other source material containing classified information.

(6)

An updated summary must be prepared and provided in the same way as if it were a summary prepared under subsection (2) if—

(a)

any classified information that was proposed to be relied on in the course of the appeal or matter is withdrawn (unless all the information is withdrawn); or

(b)

further relevant classified information becomes available that may be relied on in the course of the appeal or matter.

(7)

To avoid doubt, a special advocate may not be involved in the process of approving, amending, or updating a summary (including an updated summary).

243 Matters to be considered by Tribunal

(1)

Where proceedings involve classified information, the Tribunal must determine the following matters:

(a)

whether the classified information is relevant to the subject matter of the appeal or matter concerned:

(b)

whether the classified information is information of a kind specified in section 7(2), and whether its disclosure would be disclosure of a kind specified in section 7(3):

(c)

whether the classified information is credible:

(d)

the substantive grounds of the appeal or matter, having regard to—

(i)

all the information available to the Tribunal, including any relevant and credible classified information; and

(ii)

the relevant criteria under which the decision appealed against or to which the matter relates was made.

(2)

If the Tribunal considers that—

(a)

any classified information is not relevant to the appeal or matter, it must disregard that information; and

(b)

any information does not meet the criteria specified in section 7(2) and (3), the Tribunal must disregard that information unless—

(i)

the relevant agency agrees to the disclosure of the information to the appellant or affected person; or

(ii)

the Tribunal considers that it is of benefit to the appellant or affected person; and

(c)

any classified information is not credible, it must disregard that information.

(3)

To avoid doubt, classified information may be relevant to an appeal or matter whether it is beneficial or detrimental to the appellant or affected person.

244 Tribunal may require mixture of closed and open hearings

In any oral hearing for proceedings involving classified information, the Tribunal may require a mixture of—

(a)

closed hearings for those parts of the hearing in which classified information is involved; and

(b)

hearings at which the appellant or affected person may be present.

Appeal from Tribunal and judicial review

245 Appeal to High Court on point of law by leave

(1)

Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.

(1A)

A decision by the Court of Appeal to refuse leave to appeal to the High Court is final.

(2)

An application to the High Court under this section for leave to appeal must be made

(a)

not later than 28 days after the date on which the decision of the Tribunal to which the appeal relates was notified to the party appealing; or

(b)

within such further time as the High Court may allow on application made before the expiry of that 28-day period.

(3)

In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.

(4)

On the appeal, the High Court must determine the question or questions of law arising in the proceedings, and may then—

(a)

confirm the decision in respect of which the appeal has been brought; or

(b)

remit the matter to the Tribunal with the opinion of the High Court, together with any directions as to how the matter should be dealt with; or

(c)

make such other orders in relation to the matter as it thinks fit.

(5)

Subject to subsection (2), every appeal under this section must be dealt with in accordance with the rules of the court, with any modifications necessary to reflect the provisions of this Act, including any ancillary general practices and procedures developed under section 260.

Compare: 1987 No 74 s 115

Section 245(1A): inserted, on 7 May 2015, by section 61(1) of the Immigration Amendment Act 2015 (2015 No 48).

Section 245(2): amended, on 7 May 2015, by section 61(2) of the Immigration Amendment Act 2015 (2015 No 48).

246 Appeal to Court of Appeal on point of law by leave

(1)

Any party to an appeal under section 245 who is dissatisfied with any determination of the High Court in the proceedings as being erroneous in point of law may, with the leave of that court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the Court of Appeal. Section 66 of the Judicature Act 1908 applies to any such appeal.

(2)

In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the Court of Appeal for its decision.

(3)

The court granting leave under this section may in its discretion impose such conditions as it thinks fit, whether as to costs or otherwise.

(4)

Every appeal under this section must be dealt with in accordance with the rules of the court, with any modifications necessary to reflect the provisions of this Act, including any ancillary general practices and procedures developed under section 260.

Compare: 1987 No 74 s 116

247 Special provisions relating to judicial review

(1)

Any review proceedings in respect of a statutory power of decision arising out of or under this Act must be commenced not later than 28 days after the date on which the person concerned is notified of the decision, unless—

(a)

the High Court decides that, by reason of special circumstances, further time should be allowed; or

(b)

leave is required, under section 249(3), before proceedings may be commenced (in which case section 249(4) applies).

(2)

[Repealed]

(3)

In this section, statutory power of decision has the same meaning as in section 3 of the Judicature Amendment Act 1972.

(4)

Nothing in this section limits the time for bringing review proceedings challenging the vires of any regulations made under this Act.

Compare: 1987 No 74 s 146A

Section 247(1): replaced, on 7 May 2015, by section 62 of the Immigration Amendment Act 2015 (2015 No 48).

Section 247(2): repealed, on 7 May 2015, by section 62 of the Immigration Amendment Act 2015 (2015 No 48).

248 Minister, chief executive, or refugee and protection officer may be respondent in review proceedings relating to Tribunal decision

The Minister, the chief executive, or a refugee and protection officer, as the case may be, may be a respondent in any review proceedings relating to a decision of the Tribunal.

249 Restriction on judicial review of matters within Tribunal’s jurisdiction

(1)

No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.

(2)

No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.

(3)

Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.

(4)

An application to the High Court for leave to bring review proceedings must be made—

(a)

not later than 28 days after the date on which the Tribunal’s determination in respect of the decision or matter to which the review proceedings relate is notified to the person bringing the proceedings; or

(b)

within such further time as the High Court may allow on application made before the expiry of that 28-day period.

(5)

A decision by the Court of Appeal to refuse leave to bring review proceedings in the High Court is final.

(6)

In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—

(a)

whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and

(b)

if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.

(7)

A court that grants leave under subsection (3) to bring review proceedings must state the issue or issues to be determined in the proceedings.

(8)

Nothing in this section limits any other provision of this Act that affects or restricts the ability to bring review proceedings.

Section 249: replaced, on 7 May 2015, by section 63 of the Immigration Amendment Act 2015 (2015 No 48).

249A Applications for appeal and judicial review of Tribunal decision to be lodged together

(1)

This section applies if a person intends to both appeal against a determination of the Tribunal under this Act and bring review proceedings in respect of that same decision.

(2)

The person must—

(a)

lodge the application for leave to appeal and the application for leave to bring review proceedings together; and

(b)

if both applications for leave are granted, lodge the application for appeal and the application for judicial review together.

(3)

The High Court must, unless it considers it impracticable in the particular circumstances of the case to do so,—

(a)

endeavour to determine both applications for leave together; and

(b)

if both applications for leave are granted, endeavour to hear the appeal and the review proceedings together.

Section 249A: inserted, on 7 May 2015, by section 63 of the Immigration Amendment Act 2015 (2015 No 48).

249B Appeal to Court of Appeal against judicial review of matters within Tribunal’s jurisdiction

(1)

This section applies in respect of judicial review proceedings for which leave was granted under section 249(3).

(2)

Any party to the proceedings who is dissatisfied with any determination of the High Court in the proceedings may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the Court of Appeal. Section 66 of the Judicature Act 1908 applies to any such appeal.

(3)

In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the issue involved in the appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision.

Section 249B: inserted, on 7 May 2015, by section 63 of the Immigration Amendment Act 2015 (2015 No 48).

250 Certain appeals and review proceedings to be treated as priority fixture

All courts must hear and determine any appeal or review proceedings relating to the following persons as if the appeal or review had been granted a priority fixture:

(a)

persons who are unlawfully in New Zealand:

(b)

persons who are not New Zealand citizens and who hold temporary entry class visas.

251 Relationship with Judicature Act 1908 and Supreme Court Act 2003

The Judicature Act 1908 and the Supreme Court Act 2003 are subject to sections 247, 248, 249, 250, and 262.

General provisions relating to proceedings involving classified information

252 Proceedings involving classified information may be heard only by nominated Judge

(1)

Where proceedings involving classified information are to be heard by the High Court, the proceedings must be heard by 1 or more nominated Judges.

(2)

In this section and section 253, nominated Judge means—

(a)

the Chief High Court Judge:

(b)

a High Court Judge nominated by the Chief High Court Judge to hear and determine proceedings involving classified information.

(3)

For the purposes of subsection (2)(b), the Chief High Court Judge may nominate a maximum of 2 High Court Judges (other than himself or herself) at any one time.

253 Appeal to High Court or review proceedings involving classified information

(1)

This section applies where an appeal or review proceedings in the High Court involve classified information.

(2)

Where a party raises classified information in an appeal or review proceedings, the nominated Judge must consider the information and any submissions made in relation to it in order to determine whether it is relevant to the appeal or review proceedings.

(3)

Where the court determines that the classified information is relevant to the appeal or review proceedings, sections 252 and 255 to 270 apply.

(4)

Where the nominated Judge determines that the classified information is not relevant to the appeal or review proceedings, section 259(3) to (8) applies to the classified information raised.

254 Appeal to Court of Appeal or Supreme Court involving classified information

(1)

This section applies where classified information is relied on in a decision (whether on appeal, review, or otherwise) that is subject to appeal to—

(a)

the Court of Appeal, whether under section 246 or otherwise; or

(b)

the Supreme Court.

(2)

Where a party raises classified information in an appeal or review proceedings, the court must consider the information and any submissions made in relation to it in order to determine whether it is relevant to the appeal or review proceedings.

(3)

Where the court determines that the classified information is relevant to the appeal or review proceedings, sections 255 to 270 apply.

(4)

Where the court determines that the classified information is not relevant to the appeal or review proceedings, section 259(3) to (8) apply to the classified information raised.

255 Appeal period where decision involving classified information to be appealed to Court of Appeal or Supreme Court

Where any decision on any appeal or review or other proceedings involving classified information is to be appealed to the Court of Appeal or to the Supreme Court, the appeal must be lodged not later than 10 days after the appellant is notified of the decision being appealed against.

256 Court to approve summary of allegations

(1)

The purpose of this section is to give an appellant, a respondent, or an affected person, as the case may be, an opportunity to comment on potentially prejudicial information in the course of proceedings involving classified information in a court.

(2)

If proceedings before a court involve classified information,—

(a)

the chief executive of the relevant agency must develop, and provide to the court for approval, a summary of the allegations arising from the classified information; and

(b)

the court must—

(i)

approve the summary developed under paragraph (a); or

(ii)

modify the summary and then approve it; and

(c)

following approval (with or without modification) of the summary, the court must provide the summary to the appellant, respondent, or affected person, the special advocate, and counsel assisting the court and the special adviser (if any and if relevant).

(3)

For the purposes of making its decision, the court may rely on the classified information only to the extent that the allegations arising from the information can be summarised without disclosing classified information that would be likely to prejudice the interests described in section 7(3).

(4)

In determining whether, or how, to modify the summary, the court—

(a)

must have regard to the views of the relevant agency; and

(b)

may have regard to the views of the person who made the decision to which the proceedings apply or who made the application to which the proceedings apply.

(5)

Nothing in this section requires the summary to—

(a)

list any documents or other source material containing classified information; or

(b)

detail the contents of any documents or other source material containing classified information; or

(c)

specify the source of any documents or other source material containing classified information.

(6)

An updated summary must be prepared and provided in the same way as if it were a summary prepared under subsection (2), if—

(a)

any classified information that was proposed to be relied on in the course of the proceedings is withdrawn (unless all the information is withdrawn); or

(b)

further relevant classified information becomes available that will be relied on in the course of the proceedings.

257 Priority or urgency to be afforded to proceedings involving classified information

(1)

A court and the Tribunal must give priority to setting down and determining any proceedings involving classified information.

(2)

A court must treat with urgency proceedings involving classified information in relation to a person—

(a)

whose deportation has been ordered under section 163; or

(b)

who is being detained under Part 9.

(3)

Nothing in this section prevents a party to proceedings in the Tribunal or a court from requesting urgency in any other case.

258 Relevant agency entitled to be party to proceedings involving classified information

(1)

Where any proceedings involving classified information are to be heard by the Tribunal or a court, the relevant agency is entitled to be a party to the proceedings.

(2)

The chief executive of the Department must notify the chief executive of the relevant agency about any proceedings involving classified information.

259 Obligation and powers of Tribunal and courts in relation to classified information

(1)

The Minister or a refugee and protection officer (as appropriate) must provide to the Tribunal or a court (as appropriate) classified information—

(a)

relied on in making a decision that is appealed or subject to review proceedings in accordance with this Act; or

(b)

first raised in the course of an appeal to, or a matter before, the Tribunal.

(2)

Before providing the classified information, the Minister or the refugee and protection officer must consult the chief executive of the relevant agency.

(3)

The Tribunal and the courts must keep confidential and must not disclose any information provided as classified information, even if they consider that the information does not meet the criteria set out in section 7(2) and (3), unless the chief executive of the relevant agency consents to its release.

(4)

Subsection (3) applies both during and after completion of proceedings involving classified information.

(5)

In any oral hearing, the Tribunal and the courts must receive or hear the following in a closed hearing:

(a)

any information provided as classified information:

(b)

any submissions in relation to information provided as classified information.

(6)

In any proceedings involving classified information, the Tribunal or a court may, in order to comply with subsection (3), make 1 or more of the following orders:

(a)

an order forbidding publication of any report or account of the whole or any part of the evidence adduced or the submissions made in the proceedings:

(b)

an order forbidding the publication of the name of any witness or witnesses, or any name or particulars likely to lead to the identification of any witness or witnesses:

(c)

subject to subsection (5), an order excluding any person from the whole or any part of the Tribunal’s or the court’s proceedings, including—

(i)

the appellant or the appellant’s representative; or

(ii)

the affected person or the affected person’s representative; or

(iii)

staff of the Tribunal or court.

(7)

An order made under subsection (6)—

(a)

may be made for a limited period or permanently; and

(b)

if it is made for a limited period, may be renewed for a further period or periods by the Tribunal or the court; and

(c)

if it is made permanently, may be reviewed by the Tribunal or the court at any time.

(8)

Nothing in this section limits section 27 of the Crown Proceedings Act 1950 or any rule of law that authorises or requires the withholding of a document or the refusal to answer a question on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest.

Compare: 1987 No 74 s 82(1), (3)

260 Ancillary general practices and procedures to protect classified information

(1)

Any general practices and procedures that may be necessary to implement the procedures specified in sections 240 to 244, 252 to 270, 325, and 326 or to ensure that classified information is protected in all proceedings involving classified information must be agreed between—

(a)

the chair of the Tribunal and the Attorney-General, in relation to proceedings involving classified information heard by the Tribunal; and

(b)

the Chief Justice and the Attorney-General, in relation to all other proceedings.

(2)

Without limiting subsection (1), general practices and procedures may be agreed on the following matters:

(a)

measures relating to the physical protection of the classified information during and after all proceedings involving classified information:

(b)

the manner in which the classified information may be provided to the Tribunal or the court:

(c)

measures to preserve the integrity of the classified information until any appeals are withdrawn or finally determined.

261 No disqualification by reason of security briefing

No Judge or member of the Tribunal is disqualified from hearing any proceedings involving classified information by reason of having received a briefing on security matters in general from any agency.

262 Restriction on appeal and review

(1)

No appeal or review proceedings may be brought in respect of the use of classified information for the purposes of this Act except as provided for in this Act.

(2)

To avoid doubt and without limiting subsection (1) or section 249, no appeal lies and no review proceedings may be brought in respect of—

(a)

a determination of the Minister under section 33 that classified information may be relied on in making a decision under this Act:

(b)

the form or content of a summary prepared and provided under section 38 (including any updated summary):

(c)

the form or content of information provided under section 39:

(d)

the form or content of a presentation made by the chief executive of a relevant agency under section 241:

(e)

the form or content of a summary developed, provided, and approved under section 242 or 256 (including any updated summary), including the decision whether to modify, and the nature of any modifications to, the summary:

(f)

a decision to withdraw, update, or add to classified information.

(3)

No appeal under section 245 may be brought in relation to any proceedings involving classified information that are before the Tribunal unless the Tribunal has issued final determinations on all matters subject to the proceedings.

(4)

No review proceedings may be brought in relation to any appeal or matter before the Tribunal to which subsection (3) or sections 240 to 244 apply unless the Tribunal has issued final determinations on all matters subject to the appeal or matter.

Special advocates

263 Role of special advocates

(1)

The role of a special advocate is to represent a person who is the subject of—

(a)

a decision made involving classified information; or

(b)

proceedings involving classified information.

(2)

In particular, a special advocate may—

(a)

lodge or commence proceedings on behalf of the person:

(b)

make oral submissions and cross-examine witnesses at any closed hearing:

(c)

make written submissions to the Tribunal or the court, as the case may be.

(3)

At all times a special advocate must—

(a)

ensure that the confidentiality of the classified information remains protected; and

(b)

act in accordance with his or her duties as an officer of the High Court.

(4)

The Minister or a refugee and protection officer (as appropriate) must provide a special advocate with access to the classified information—

(a)

relied on in making the decision being appealed against; or

(b)

provided to the Tribunal for the purpose of determining the matter; or

(c)

provided to the Tribunal or the court in the appeal or in the review proceedings; or

(d)

provided to the court in warrant of commitment proceedings.

(5)

Before providing access to the classified information, the Minister or the refugee and protection officer must consult the chief executive of the relevant agency.

(6)

A special advocate must keep confidential and must not disclose classified information, except as expressly provided under this Act.

(7)

The chief executive of the Department must meet the actual and reasonable costs of a special advocate on a basis agreed between the special advocate and the designated agency.

264 Recognition of special advocates

(1)

A special advocate is a lawyer (as defined in section 6 of the Lawyers and Conveyancers Act 2006) who has been recognised as a special advocate by an agency designated for the purpose by the Prime Minister.

(2)

The designated agency may recognise a lawyer as a special advocate if—

(a)

the lawyer holds an appropriate security clearance given by the chief executive of the Ministry of Justice; and

(b)

the designated agency is satisfied that the lawyer has appropriate knowledge and experience to be recognised as a special advocate.

(3)

Recognition under this section continues for 5 years, but the designated agency may recognise a lawyer as a special advocate for further 5-year periods.

(4)

The designated agency may withdraw a special advocate’s recognition if the special advocate—

(a)

ceases to hold an appropriate security clearance; or

(b)

is suspended from practice as a barrister, a solicitor, or both, under the Lawyers and Conveyancers Act 2006; or

(c)

is struck off the roll of barristers and solicitors of the High Court.

(5)

The designated agency must, in addition to recording the persons recognised by it as special advocates, maintain a list of special advocates who may represent persons in proceedings under Part 9, to cover the situation where—

(a)

a person has not yet appointed a special advocate to represent him or her in any appeal, matter, or review proceedings involving classified information; and

(b)

classified information may be relied on in determining an application made under that Part.

265 Appointment of special advocate in individual case

(1)

The Minister or a refugee and protection officer (as appropriate) must notify the designated agency if it is likely that a decision under this Act (other than a decision on appeal to, or in relation to a matter before, the Tribunal)—

(a)

will be made relying on classified information; and

(b)

may be subject to appeal.

(2)

The designated agency must provide the names of no fewer than 3 possible special advocates to a person who is the subject of a decision under this Act (other than a decision on appeal to, or in relation to a matter before, the Tribunal)—

(a)

if the decision relies on classified information and a person subject to the decision appeals it; and

(b)

not later than 3 days after the person lodges the appeal.

(3)

The designated agency must not provide the name of a special advocate unless the special advocate is reasonably available, having regard to the time frames in this Part.

(4)

The chief executive or the Minister (as appropriate) must notify the designated agency if—

(a)

classified information is first raised or proposed to be raised in the course of an appeal to, or a matter before, the Tribunal; or

(b)

a person appeals against a decision of the Tribunal and the Tribunal relied on classified information in making the decision; or

(c)

a person brings review proceedings in relation to any decision made under this Act and the decision maker relied on classified information in making the decision.

(5)

The designated agency must provide the names of no fewer than 3 possible special advocates to the appellant, applicant, or affected person, as the case may be, no later than 3 days after receiving a notification under subsection (4).

(6)

An appellant, applicant, or affected person, as the case may be, must determine whether to appoint a special advocate, and which special advocate to appoint, and notify the designated agency accordingly, not later than 7 days after being notified of the names of possible special advocates.

(7)

If the appellant, applicant, or affected person does not appoint a special advocate, the Department must make arrangements with the designated agency for a special advocate to be available on behalf of the person.

(8)

Subsection (6) does not apply if the appellant or applicant is the Minister, the chief executive, or a refugee and protection officer.

266 Appointment of special advocate for purposes of Part 9 proceedings

(1)

This section applies to a person if the person—

(a)

has not appointed a special advocate to represent him or her in any appeal, matter, or review proceedings involving classified information; and

(b)

is the subject of an application under Part 9 in which classified information may be relied on in determining the application.

(2)

If the person has been arrested and detained under Part 9, the Department must contact the designated agency as soon as practicable after the person is arrested and detained and make arrangements for a special advocate to whom section 264(5) applies to be available, on behalf of the person, for the warrant of commitment hearing.

(3)

If the person has been detained under a warrant of commitment, or released on conditions under section 320, the Department must contact the designated agency as soon as practicable after it becomes apparent that this section applies to the person and make arrangements for a special advocate to whom section 264(5) applies to be available, on behalf of the person, for the hearing of the application.

(4)

If an application on a matter to which subsection (2) or (3) applies is made directly to the High Court, or is transferred to the High Court, the special advocate concerned must be provided with access to the classified information provided to the High Court before the application is heard (and he or she may not unreasonably refuse to be provided with access to the classified information).

(5)

The designated agency must not provide the name of a special advocate unless the special advocate is reasonably available, having regard to the time frames in Part 9.

267 Communication between special advocate and person to whom classified information relates

(1)

In this section (other than subsection (4)), person A means—

(a)

a person who has appointed a special advocate under section 265(6); or

(b)

a person to whom a special advocate has been made available under section 265(7) or 266.

(2)

In subsection (4), person A means—

(a)

a person who has appointed a special advocate under section 265(6); or

(b)

a person to whom a special advocate has been made available under section 265(7).

(3)

A special advocate may communicate with person A or person A’s representative on an unlimited basis until the special advocate has been provided with access to the classified information concerned, but once he or she has been provided with access to the classified information, he or she may not communicate with any person about any matter connected with the proceedings involving the classified information except in accordance with this section.

(4)

The Minister or a refugee and protection officer (as appropriate) must provide the special advocate with access to the classified information on any date that is 29 days or more after the date on which person A was provided with the names of possible special advocates under section 265(2) or (5) or, as the case may be, had a special advocate made available to him or her under section 265(7).

(5)

A special advocate may not unreasonably refuse to be provided with access to the classified information after the date after which access may be provided under subsection (4).

(6)

A special advocate may, without the approval of the Tribunal or the court, communicate about the proceedings with—

(a)

the Judge or Judges of the Tribunal or the court:

(b)

the Minister, or the Minister’s security-cleared representative:

(c)

the refugee and protection officer concerned, or the refugee and protection officer’s security-cleared representative:

(d)

the chief executive of the relevant agency, or that chief executive’s security-cleared representative:

(e)

the chief executive of the Department, if the proceedings relate to an application to which section 325 applies:

(f)

any other person, except for person A or his or her representative, with whom it is necessary for administrative purposes for the special advocate to communicate about matters not connected with the substance of the proceedings.

(7)

A special advocate who wishes to communicate with person A or his or her representative after having been given access to the classified information may submit a written communication to the Tribunal or the court (as appropriate) for approval and for forwarding to person A or his or her representative.

(8)

The Tribunal or court must either—

(a)

forward the communication, with or without amendment, to person A or his or her representative if the communication would not be likely to prejudice the interests referred to in section 7(3); or

(b)

decline to forward the communication, and notify the special advocate of that decision.

(9)

The Tribunal or court may consult the chief executive of the relevant agency before determining—

(a)

whether to forward a communication, with or without amendment, to person A or his or her representative; or

(b)

if it proposes to forward the communication, the nature of any amendments necessary; or

(c)

whether to decline to forward the communication.

(10)

The Tribunal or court may—

(a)

amend a communication only if the communication would be likely to prejudice the interests referred to in section 7(3), and only to the extent necessary to ensure the communication would not be likely to prejudice those interests:

(b)

decline to forward a communication only if the communication would be likely to prejudice the interests referred to in section 7(3), and it is not practicable to amend the communication to prevent such prejudice.

(11)

Person A may, of his or her own volition, communicate with the special advocate on any matter in accordance with subsection (12).

(12)

The communication—

(a)

must be made in writing; and

(b)

may be made through person A’s representative.

(13)

The special advocate must not reply to such a communication except—

(a)

in accordance with the manner set out in subsection (7); or

(b)

in order to provide a bare acknowledgement of receipt of the communication to person A or his or her representative.

268 Protection of special advocates from liability

(1)

To the extent that a special advocate is acting in accordance with the requirements of this Act, he or she is not guilty of—

(a)

misconduct within the meaning of section 9 of the Lawyers and Conveyancers Act 2006; or

(b)

unsatisfactory conduct within the meaning of section 12 of that Act.

(2)

To avoid doubt, the provisions of this Act apply despite the requirements of any practice rules made and approved under the Lawyers and Conveyancers Act 2006.

(3)

No person is personally liable for any act done or omitted to be done in good faith, in his or her capacity as a special advocate, in accordance with the requirements or provisions of this Act or of any regulations