Immigration Act 2009

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Immigration Act 2009

Public Act2009 No 51
Date of assent16 November 2009
Commencementsee section 2

Contents

Eligibility to be in or enter New Zealand

Excluded persons

Persons unlawfully in New Zealand

Immigration instructions

Processing claims and applications for visas and entry permission

Reasons for decisions

Automated decision making and biometric information

Reliance on classified information in decision making

Visa conditions

General rules relating to visas

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

Residence class visas

Temporary entry class visas: provisions applying to all types

Temporary entry class visas: provisions applying to temporary visas

Temporary entry class visas: provisions applying to interim visas

Temporary entry class visas: provisions applying to limited visas

Transit visas

Invitation to apply for visa

Advance passenger processing

Obligations in relation to craft coming to New Zealand

Obligations on persons arriving in New Zealand

Entry permission

Turnaround provisions

Obligations in relation to departure from New Zealand

Special provision for emergencies, etc

Protection for carriers, and persons in charge, of craft

Claims for recognition as refugee or protected person

Cessation or cancellation of recognition

Miscellaneous matters

Liability for deportation

Notification of liability for deportation

Cancellation or suspension of deportation liability

Deportation

Limited right of reconsideration concerning temporary entry class visas

Limited right of review in respect of temporary entry class visa decisions

Appeals in relation to residence class visas

No appeal or review rights in relation to invitations to apply and transit visas

Appeals against decisions relating to refugee or protection status

Appeal on facts against liability for deportation

Appeal on humanitarian grounds against liability for deportation

Orders on determination of appeal

Immigration and Protection Tribunal

Procedure for appeals and matters

Special procedure where classified information involved

Appeal from Tribunal and judicial review

General provisions relating to proceedings involving classified information

Special advocates

Power to access address information

Powers of entry, inspection, etc

Power to require production of documents, etc

Powers at border

Powers relating to deportation and turnaround

Powers generally

Disclosure of information to or by other agencies, bodies, or persons

Arrest and detention

Warrants of commitment

Applications under this Part involving classified information

Duties of detaining officers

Form of custody

Delivery of person for purpose of deportation

Special provision where epidemic management notice in force

Offences

Penalties

Infringement offences for carriers, or persons in charge, of craft

Evidence in proceedings

Procedural provisions relating to offences

Matters relating to immigration status of persons born in New Zealand

Minors

Special directions

Delegation of Minister's powers

Matters relating to chief executive

Endorsement of New Zealand citizenship in foreign passports

Responsibilities of certain operators of airports and ports

Notice requirements and addresses for communications

Immigration officers and refugee and protection officers

Relationship between this Act and Human Rights Act 1993

Fees, bonds, levies, etc

Regulations

Government immigration and residence policy

General instructions of chief executive

Existing applications, expressions of interest, and invitations

Existing visas and permits

Arrivals and departures

Refugee and protection status

Turnaround, revocation of permits, removal, deportation, and monitoring

Persons subject to Part 4A of former Act

Detention and monitoring

Reconsiderations

Appeals and other matters in relation to appellate bodies

Disclosure of immigration information to other agencies, bodies, or persons

Offences, evidence, and classified information

Miscellaneous provisions

Exercise of certain powers and functions before commencement of certain provisions of this Act


The Parliament of New Zealand enacts as follows:

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 (4).

    (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.

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

    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, 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; 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)

    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; 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

    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

    • (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

    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

    • (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 address has the meaning given to it in section 387

    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—

    • (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 period means the period prescribed for the purposes of section 88(1)

    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 means a warrant of commitment issued under section 317 or 318

    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.

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 regulations under this Act provide that any notice or other document must be served on or supplied to any other person, or the person must be notified of any decision, matter, or other thing, it must be served, supplied, or notified in accordance with section 386(3).

    (4) Subsections (1) to (3) are subject to section 386(8).

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.

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

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 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

    (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)

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

    • (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.

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 175; 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.

11 Meaning of absolute discretion of the decision maker
  • 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

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

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

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—

    • (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, if the relevant prohibition on entry under section 179 or 180 has expired; 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)

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

    (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

    (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:

    (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 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

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:

    • (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:

    Compare: 1987 No 74 s 13B

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.

    (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.

    Compare: 1987 No 74 s 13BA

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.

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)—

    • (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

    (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 1Visas 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—

    • (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:

    • (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.

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.

    (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).

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 386.

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 specify in the application a physical address to which any communication relating to the application, or to which advice of any visa that may be granted pursuant to the application, may be sent, or at which any notice may be served under this Act.

    (3) An applicant for or holder of a visa may at any time, by written notice to an immigration officer, substitute a different address for that specified under subsection (2).

    (4) An applicant for a visa may also specify in an application an electronic address to which any communication relating to the application, or to which advice of any visa that may be granted pursuant to the application, may be sent (and may substitute a different address by written notice to an immigration officer).

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) Failure to comply with the obligation set out in subsection (3) amounts to concealment of relevant information for the purposes of sections 157 and 158.

    (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

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.

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

    Compare: 1987 No 74 s 35A

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:

    • (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.

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, at the address supplied under section 57(2) if his or her visa is cancelled under this section.

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:

    (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

Subpart 2Classes 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

    (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—

    • (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.

    (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) In this section, transit passenger means a person who—

    • (a) arrives in New Zealand from another country while in transit to another overseas destination; and

    • (b) throughout the entire period during which he or she is in New Zealand, remains—

      • (i) on board the craft concerned; or

      • (ii) in an immigration control area; or

      • (iii) in the custody of the Police.

    Compare: 1987 No 74 s 14E(1)–(2D)

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 and nature of transit visa
  • (1) Regulations made under section 400 may prescribe the period for which a person may be in New Zealand as the holder of a transit visa.

    (2) 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 before that date.

    Compare: 1987 No 74 s 14E(3)

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
  • (1) Where the holder of a transit visa is still in New Zealand on the expiry of the transit period, an immigration officer may, in his or her absolute discretion,—

    • (a) extend the period for which the person may remain in New Zealand as the holder of the visa; or

    • (b) grant the person a visa and entry permission.

    (2) If the immigration officer does neither of the things referred to in subsection (1), the person is liable for turnaround.

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 specify a physical address to which any communication relating to the expression of interest, or to which any invitation to apply made as a result of the expression of interest, may be sent, or at which any notice may be served under this Act.

    (3) A person may at any time, by written notice to an immigration officer, substitute a different address for that specified under subsection (2).

    (4) A person may also specify in an expression of interest an electronic address to which any communication relating to the expression of interest, or to which any invitation to apply as a result of the expression of interest, may be sent (and may substitute a different address by written notice to an immigration officer).

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) amounts to concealment of relevant information for the purposes of sections 157 and 158.

    Compare: 1987 No 74 s 13D

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).

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) If the circumstances in subsection (3) exist, a person to whom section 96 applies must—

    • (a) provide the chief executive with information of the prescribed kind about a person who intended to board a craft for the purpose of travelling to New Zealand, whether or not he or she did in fact board the craft (including, but not limited to, if he or she did not board the craft as a result of a decision made by the chief executive under section 97); and

    • (b) ensure that the chief executive has access to the information described in paragraph (a).

    (3) The circumstances are that the chief executive has made the request for the information not more than 14 days before or after the arrival in New Zealand of the craft on which the person to whom the information relates intended to, or did, travel to New Zealand.

    (4) A person to whom subsection (2) applies must ensure that the chief executive has access to the information—

    • (a) in an approved form and manner and on the date specified by the chief executive; and

    • (b) for the period from the date specified by the chief executive until 14 days after the arrival in New Zealand of the craft on which the person to whom the information relates intended to, or did, travel to New Zealand.

    (5) Information collected or accessed by the chief executive under subsections (2) and (4) may be retained by the chief executive only if any of the following circumstances apply:

    • (a) the chief executive decided under section 97(1)(b) that the person may not board a craft for the purpose of travelling to New Zealand:

    • (b) the person has been refused a visa and entry permission—

      • (i) on arrival; or

      • (ii) in a place designated by the chief executive under section 383:

    • (c) the information needs to be retained as part of a record of a particular action having been taken in relation to the person to whom it relates (for example, a record that a person was interviewed on arrival):

    • (d) the information gives the chief executive good cause to suspect that an offence against this Act is being, or may have been, committed:

    • (e) the information gives the chief executive good cause to suspect that a risk to border security exists.

    (6) In this section, approved form and manner means a form and manner (for example, an electronic form and manner) approved by the chief executive for the purpose of providing him or her with access to information under subsection (2).

    (7) To avoid doubt, information retained under subsection (5) may be further dealt with as permitted under the Privacy Act 1993.

    Compare: 1987 No 74 s 125AD

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 (within the meaning of section 86(7)):

    • (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)

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.

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 (4) 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.

110 Applicant for entry permission to provide address
  • A person who applies for entry permission—

    • (a) must specify a physical address in New Zealand to which any communication may be sent, or at which any notice may be served under this Act; and

    • (b) may specify an electronic address to which any communication may be sent; and

    • (c) may at any time, by written notice to an immigration officer, substitute a different physical or electronic address to an address specified under paragraph (a) or (b).

111 Applicant for entry permission to allow collection of biometric information
  • (1) A person who applies for entry permission must allow biometric information to be collected from him or her.

    (2) If he or she fails to allow the biometric information to be collected, the Minister or an immigration officer may refuse to grant the person entry permission.

    (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).

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) amounts to concealment of relevant information for the purposes of section 157 or 158.

    (6) It is sufficient grounds for the Minister or an immigration officer to decline 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.

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—

      • (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 the holder of a transit visa 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.

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.

    (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)

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 earlier 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.

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 was, on arrival in New Zealand, refused a visa and entry permission; 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)

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 current address in New Zealand to which communications relating to the claim may be sent and a current residential address, and must notify the officer in a timely manner of a change in either of those addresses. The officer may rely on the latest address to which communications may be sent for the purpose of communications under this Part.

    Compare: 1987 No 74 s 129G(1)–(4)

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)

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

    • (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 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 section 129.

    (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 a previous claim.

    Compare: 1987 No 74 s 129J

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—

    • (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

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 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

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—

    • (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:

    • (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) 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.

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.

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) concealment of 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.

158 Deportation liability of residence class visa holder if visa or citizenship obtained or held by 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) the person’s residence class visa or entry permission was procured through fraud, forgery, false or misleading representation, or concealment of relevant information; or

      • (ii) the person holds a residence class visa granted on the basis of a visa procured through fraud, forgery, false or misleading representation, or concealment of relevant information; or

    • (b) the Minister determines that—

      • (i) the person’s residence class visa or entry permission was procured through fraud, forgery, false or misleading representation, or concealment of relevant information; or

      • (ii) the person holds a residence class visa granted on the basis of a visa procured through fraud, forgery, false or misleading representation, or concealment of relevant information.

    (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.

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.

    (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), and (c), 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)

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—

    • (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
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.

    (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.

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) A deportation liability notice may be served on a person by—

    • (a) personal service by an immigration officer (or by another person on behalf of an immigration officer); or

    • (b) registered post addressed to the person's New Zealand address or an address supplied under section 57(2).

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 or provisions 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).

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).

    (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 175(1)(e), 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.

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 When deportation order may be served
  • (1) An immigration officer or a constable may serve a deportation order on a person,—

    • (a) where the person has been served with a deportation liability notice that does not give the person 14 days to give good reason why deportation should not proceed, and the person has no right of appeal against liability for deportation, as soon as the person has been served with the notice:

    • (b) where the person has been served with a deportation liability notice that allows the person 14 days from the date of service to give good reason why deportation should not proceed, and the person has no right of appeal against deportation, on or after the earlier of,—

      • (i) if the person does not provide submissions as to good reason why deportation should not proceed, 15 days from the date of service; or

      • (ii) if the person purports to give good reason, and the person to whom the reason is provided determines that deportation should continue, the day after the person is notified of that determination:

    • (c) where the person has a right to appeal under this Act against liability for deportation, on or after—

      • (i) the expiry of the period for lodging such an appeal, where the person has not lodged such an appeal:

      • (ii) the day after the appeal is withdrawn, if the person withdraws an appeal to the Tribunal:

      • (iii) the day that is 28 days after the Tribunal determines an appeal against deportation, where the person lodged such an appeal and the liability for deportation was upheld (but subject to subparagraph (iv)):

      • (iv) where the person has lodged an appeal to the High Court under section 245,—

        • (A) if the appeal is withdrawn, the day after the withdrawal:

        • (B) if the liability for deportation is upheld, the day after the date on which the person was notified of the determination of the appeal:

    • (d) in the case of a person in respect of whom an order is made under section 163, as soon as that order is made:

    • (e) in the case of a person who 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 later of—

      • (i) 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

      • (ii) any applicable day determined under paragraph (c):

    • (f) if the person was the holder of a limited visa and paragraph (a) does not apply, as soon as the visa expires.

    (2) A deportation order may be served on a person—

    • (a) inside New Zealand or, if the person still holds a visa, outside New Zealand; and

    • (b) by personal service by an immigration officer (or by another person on behalf of an immigration officer) or by registered post addressed to the person's New Zealand address or an address supplied under section 57(2).

    (3) A person may be served with a deportation order earlier than otherwise allowed under subsection (1) if the person so requests.

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 will be cancelled when the person is deported; 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) any costs or estimate of costs to the Crown of the deportation, and the requirement to repay those costs.

    (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.

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

    • (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.

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 (convicted of gaining residence class visa by fraud, forgery, etc)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 unlawfully in New Zealand but leaves New Zealand voluntarily before he or she is served with a deportation order is not subject to any period of prohibition on entry.

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) For the purposes of subsection (5), a written notice that is sent by post to an address supplied by the appellant under section 57(2) is treated as having been notified to him or her—

    • (a) 7 days after the date on which the notice was posted, if the address is in New Zealand; or

    • (b) 14 days after the date on which the notice was posted, if the address is outside New Zealand.

    (7) Subsection (6) applies unless the appellant proves that he or she was not notified of the decision and the lack of notification did not result from any fault on his or her behalf.

    (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)

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 on a ground under section 145(b).

    (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 (however, the person may lodge a humanitarian appeal subsequently if his or her claim for recognition is declined):

    • (b) unsuccessful on the appeal under this section, the Tribunal must consider the person's humanitarian appeal.

    (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

    • (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

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:

    • (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).

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 uphold or reverse the decision of the refugee and protection officer.

    (3) If the Tribunal reverses the decision,—

    • (a) it must refer the claim back to a refugee and protection officer for consideration; and

    • (b) if the decision 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.

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 uphold or reverse the decision of the refugee and protection officer.

    (4) If the Tribunal reverses the decision,—

    • (a) it must refer the claim back to a refugee and protection officer for consideration; and

    • (b) if the decision 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.

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) or (d), 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) Where an appeal is brought under section 194(1)(e) (being an appeal against a decision by a refugee and protection officer to cancel recognition of a New Zealand citizen as a refugee or a protected person on a ground under section 145(b)), the Tribunal must—

    • (a) determine the matter de novo; and

    • (b) except if the appeal relates to a ground under section 145(b)(ii), determine whether—

      • (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) determine, in relation to the person, the matters referred to in subsection (1)(b) and (c) of this section.

    (3) The Tribunal may uphold or reverse the decision of the refugee and protection officer, but may not refer the claim back to a refugee and protection officer for reconsideration.

    (4) If the Tribunal reverses a decision 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.

    Compare: 1987 No 74 s 129P(5), (6)

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 section 129.

    (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 section 129.

    (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 section 129.

    (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.

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:

    • (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:

    • (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), the Tribunal is satisfied, on the balance of probabilities, that—

      • (i) the resident visa or permanent resident visa or entry permission concerned was not procured through fraud, forgery, false or misleading representation, or concealment of relevant information; or

      • (ii) the resident visa or permanent resident visa had not been granted to the person on the basis of a visa procured through fraud, forgery, false or misleading representation, or concealment of relevant information:

    • (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.

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

    (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:

    • (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

    • (c) whose liability for deportation arises by way of a deportation order under section 163.

    (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.

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.

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—

      • (i) a current address in New Zealand to which communications relating to the appeal or matter may be sent or, in the case of an appeal under section 187 by a person who is outside New Zealand, an address to which communications relating to the appeal may be sent; and

      • (ii) if applicable, the appellant's or the affected person's current residential address in New Zealand (if any); and

    • (b) notify the Tribunal in a timely manner of a change in any of those addresses.

    (3) An applicant must also provide to the Tribunal a current address in New Zealand to which communications relating to the matter may be sent.

    (4) The Tribunal may rely on the latest address provided for the purpose of communications relating to an appeal or matter.

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 must also 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 is prima facie manifestly unfounded or clearly abusive, or repeats a previous claim.

    (3) The Tribunal may, in its absolute discretion, provide an oral hearing in any other appeal against liability for deportation.

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.

    (2) Every appeal under this section must be brought—

    • (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

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 the High Court decides that, by reason of special circumstances, further time should be allowed.

    (2) Where a person intends to both appeal against a decision of the Tribunal under this Act and bring review proceedings in respect of that same decision,—

    • (a) the person must lodge both the application for appeal and the application for judicial review together; and

    • (b) the High Court must endeavour to hear both matters together, unless it considers it impracticable in the particular circumstances of the case to do so.

    (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

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 review
  • (1) No review proceedings may be brought in any court in respect of a decision if the decision, or the effect of the decision, may be subject to an appeal to the Tribunal under this Act.

    (2) Nothing in this section limits any other provision of this Act that affects or restricts the ability to bring review proceedings.

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

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

    • (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 made under this Act.

269 Tribunal or court may appoint counsel assisting the court
  • (1) The Tribunal or a court may appoint counsel assisting the court for the purposes of any proceedings before it involving classified information.

    (2) Counsel assisting the court may be a special advocate but, if not, must be a person who holds an appropriate security clearance given by the chief executive of the Ministry of Justice.

    (3) Subsection (1) applies regardless of whether the person concerned has appointed a special advocate or a special advocate has been made available for the person.

    (4) The Tribunal or the court may provide counsel assisting the court with access to the classified information concerned as it thinks fit.

    (5) Counsel assisting the court must keep confidential and must not disclose classified information, except as expressly provided under this Act.

    (6) Counsel assisting the court may be removed from office by the Tribunal or a court for inability to perform the role of counsel assisting the court, neglect of duty, bankruptcy, or misconduct proved to the satisfaction of the Tribunal or the court.

270 Tribunal or court may appoint special adviser
  • (1) The Tribunal or a court may appoint a cultural, medical, intelligence, military, or other special adviser for the purposes of giving advice in any proceedings before it involving classified information.

    (2) The special adviser must hold an appropriate security clearance given by the chief executive of the Ministry of Justice.

    (3) The Tribunal or the court may provide the special adviser with access to the classified information concerned as it thinks fit.

    (4) A special adviser must keep confidential and must not disclose classified information, except as expressly provided under this Act.

    (5) Subsection (1) applies regardless of whether—

    • (a) the person concerned has appointed a special advocate or a special advocate has been made available for the person; and

    • (b) the Tribunal or the court has appointed counsel assisting the court for the purposes of the proceedings.

    (6) A special adviser may be removed from office by the Tribunal or a court for inability to perform the role of special adviser, neglect of duty, bankruptcy, or misconduct proved to the satisfaction of the Tribunal or the court.

271 Payment to counsel assisting the court or special adviser
  • (1) The Tribunal or the court concerned may make the order it thinks just for payment to—

    • (a) counsel assisting the court appointed for any proceedings under section 269; and

    • (b) a special adviser appointed for any proceedings under section 270.

    (2) The Registrar of the Tribunal or the court must send a copy of the order to the chief executive of the department of State referred to in clause 5 of Schedule 2, who must then make the payment out of money appropriated by Parliament for that purpose.

Part 8
Compliance and information

272 Purpose of Part
  • The purpose of this Part is—

    • (a) to confer on immigration officers the power to obtain information in order to allow the Department to—

      • (i) detect immigration fraud or misrepresentation:

      • (ii) identify persons failing to comply with immigration-related obligations, including by breaching the conditions of their visas:

    • (b) to confer on immigration officers powers to assist in locating persons who are or may be liable for deportation:

    • (c) to authorise the Department to share information with other persons and agencies, to enable—

      • (i) the persons and agencies to effectively administer and comply with certain legislation or to check a person's eligibility for publicly funded services; and

      • (ii) the Department to effectively administer this Act:

    • (d) to confer on constables the powers described in paragraphs (a) and (b).

273 Meaning of information, document, register, list, etc, in sections 274, 276, 277, and 278
  • In sections 274, 276, 277, and 278, any reference to information or a document, register, list, wages and time record, or record includes a reference to an electronic version of the information, document, register, list, wages and time record, or record.

Power to access address information

274 Certificate requiring production of address information
  • (1) An immigration officer may prepare a certificate in the prescribed form if the officer has good cause to suspect that—

    • (a) a particular person may be, or may become as a result of investigations, liable for deportation; or

    • (b) particular premises are being occupied or have been occupied (whether for residential purposes or otherwise) by a person who may be, or may become as a result of investigations, liable for deportation.

    (2) A certificate prepared under subsection (1)(a) may, where the officer believes that the person concerned may be using 1 or more aliases, include any such alias.

    (3) On being provided with a certificate prepared under subsection (1), any person referred to in section 275, or any officer or employee of any department, agency, or body referred to in that section, must produce for inspection by the officer and provide a copy of, or allow the officer to copy, any record or other information held by and reasonably available to that person, department, agency, or other body that may help to establish,—

    • (a) in the case of a certificate prepared under subsection (1)(a), the present whereabouts of the person named in the certificate or that person’s whereabouts at any time in the past; or

    • (b) in the case of a certificate prepared under subsection (1)(b), the name of the present occupier or any of the present occupiers of the premises or the name of the occupier or any of the occupiers of the premises at any time in the past.

    (4) Subsection (3) applies despite any enactment or rule of law to the contrary, and no person who provides a record or information in compliance with that subsection is liable in any civil or criminal proceedings in respect of that action.

    Compare: 1987 No 74 s 64

275 Persons required to provide access to address information
  • The persons and bodies who may be required by certificate under section 274 to provide access to address or identity information are as follows:

    • (a) the following government agencies:

      • (i) New Zealand Customs Service:

      • (ii) Ministry of Social Development:

      • (iii) Ministry of Justice:

      • (iv) New Zealand Police:

      • (v) Land Transport New Zealand:

      • (vi) Department of Building and Housing:

      • (vii) Housing New Zealand Corporation:

      • (viii) Department of Corrections:

      • (ix) any government agency established in substitution for, or set up to take over any relevant function of, the departments and agencies listed in subparagraphs (i) to (viii):

    • (b) education providers, in relation only to enrolled students not in compulsory education:

    • (c) postal and courier service providers:

    • (d) telecommunications service providers:

    • (e) internet service providers:

    • (f) subscription television service providers:

    • (g) finance and banking service providers:

    • (h) local government and regional government bodies:

    • (i) insurance service providers:

    • (j) providers of utilities such as electricity, gas, and water:

    • (k) real estate agents:

    • (l) in relation to a person whose location is being sought, the person’s employer or former employer.

    Compare: 1987 No 74 s 64 and Schedule 1

Powers of entry, inspection, etc

276 Powers of entry and inspection relating to records of accommodation providers
  • (1) An immigration officer may exercise the powers in subsection (2) for the purposes of locating any person who is liable for deportation.

    (2) Where an immigration officer believes on reasonable grounds that the information contained in any register or list kept by an accommodation provider might relate to any person who is liable for deportation, the officer may—

    • (a) enter any part of the premises, other than a part of the premises that is a dwellinghouse, in which the officer reasonably believes the register or list is kept; and

    • (b) require the accommodation provider or any person appearing to have that register or list under that person’s control to produce for inspection any part of the register or list that relates to a person who is liable for deportation; and

    • (c) copy or require a person to provide a copy of any part of any register or list that is required to be produced to the officer.

    (3) An immigration officer may exercise the powers in subsection (2) at any reasonable time during which the premises are open for business, whether by day or by night and without warrant or any other authority than this section.

    (4) In this section, accommodation provider means the operator of any hotel, motel, guesthouse, motor camp, or other premises in which accommodation is offered for valuable consideration to any member of the public.

    Compare: 1987 No 74 s 138

277 Powers of entry and inspection relating to records of employers
  • (1) An immigration officer may exercise the powers in subsection (3) in the circumstances described in subsection (2) for the following purposes:

    • (a) determining whether a person is complying with work-related conditions of his or her visa:

    • (b) determining whether an employer is complying with the employer's obligations under this Act:

    • (c) locating a person who is liable for deportation.

    (2) An immigration officer may exercise the powers in subsection (3) where the officer believes on reasonable grounds that—

    • (a) there is kept on any business premises—

      • (i) any wages and time record kept by an employer in accordance with the provisions of any Act; or

      • (ii) any other document relating to the remuneration or employment conditions of an employee; and

    • (b) there may be information in that record or other document relating to a person who is—

      • (i) not entitled under this Act to work in New Zealand or to undertake work of the relevant type or duration or for the relevant employer; or

      • (ii) otherwise not complying with obligations under this Act (including obligations as an employer); or

      • (iii) liable for deportation.

    (3) An immigration officer may—

    • (a) enter any part of the employer’s premises in which the officer reasonably believes a wages and time record, or any other document referred to in subsection (2)(a)(ii), is kept; and

    • (b) require the employer or the person appearing to have the record or document under that person's control to produce that record or document for inspection; and

    • (c) copy or require a person to provide a copy of any part of any record or document that is required to be produced to the officer.

    (4) An immigration officer may exercise the powers in subsection (3) at any reasonable time during which work is being carried out on the premises or the premises are open for business, whether by day or by night, without a warrant or any other authority than this section.

    Compare: 1987 No 74 s 138

278 Powers of entry and inspection relating to records of education providers
  • (1) An immigration officer may exercise the powers in subsection (4) in the circumstances described in subsection (2) for the following purposes:

    • (a) determining whether a person is complying with the study-related conditions of his or her visa:

    • (b) determining whether an education provider is complying with the provider’s obligations under this Act:

    • (c) locating a person who is liable for deportation.

    (2) Subject to subsection (3), an immigration officer may exercise the powers in subsection (4) where the immigration officer believes on reasonable grounds that—

    • (a) any information or record is held on an education provider’s premises; and

    • (b) that information or record may relate to a person who is—

      • (i) not entitled under this Act to study in New Zealand, or undertake a course of study of a particular type or duration or conducted by a particular education provider; or

      • (ii) otherwise not complying with obligations under this Act (including obligations as an education provider); or

      • (iii) liable for deportation.

    (3) The powers in subsection (4) may not be exercised in relation to a person undertaking compulsory education or any member of the family of such a person.

    (4) An immigration officer may—

    • (a) enter any part of the education provider's premises in which the officer reasonably believes the information or record is held; and

    • (b) require the education provider or person appearing to have the information or record under that person’s control to produce for inspection the information or record; and

    • (c) copy or require a person to provide a copy of any information or record that is required to be produced to the officer.

    (5) An immigration officer may exercise the powers in subsection (4) at any reasonable time during which the education provider is open for business, whether by day or by night, without a warrant or any other authority other than this section.

    Compare: 1987 No 74 s 138

Power to require production of documents, etc

279 Powers of immigration officer to require information and documents where offence suspected
  • (1) Where an immigration officer has good cause to suspect that a person has committed an offence against this Act, the officer may require the person to do all or any of the following things:

    • (a) supply the person's full name (or names, if the person is known by more than 1 name), date of birth, country of birth, nationality, and residential address:

    • (b) produce for inspection documentary or other evidence of the person’s identity:

    • (c) produce any passport or certificate of identity relating or purporting to relate to the person, whether or not it also relates to any other person:

    • (d) produce evidence of any visa relating or purporting to relate to the person, whether or not it relates to any other person:

    • (e) surrender any passport, certificate of identity, or evidence of any visa produced under paragraph (c) or (d):

    • (f) if the person does not currently have in his or her possession any of the documents or other things referred to in paragraphs (b) to (d), give the officer details of where they can be found and who is holding them.

    (2) Before acting under subsection (1), the immigration officer must—

    • (a) inform the person that he or she suspects that the person has committed an offence against this Act; and

    • (b) warn the person that if the person fails without reasonable excuse to comply with his or her request, the person may be charged with an offence against section 344(b).

    Compare: 1987 No 74 s 136(1)

280 Power of immigration officer to request information and documents where liability for deportation or turnaround suspected
  • (1) If an immigration officer has good cause to suspect that a person is liable for deportation or turnaround, the officer may, for the purpose of establishing whether that is the case, request the person to do 1 or more of the following things:

    • (a) supply the person's full name (or names, if the person is known by more than 1 name), date of birth, country of birth, nationality, and residential address:

    • (b) produce for inspection documentary or other evidence of the person’s identity:

    • (c) produce any passport or certificate of identity relating or purporting to relate to the person, whether or not it also relates to any other person:

    • (d) produce any passport or certificate of identity relating to any dependent child of the person who the immigration officer also has good cause to suspect is liable for deportation or turnaround:

    • (e) surrender any of the documents or other things produced under paragraph (b), (c), or (d):

    • (f) if the person does not currently have in his or her possession any of the documents or other things referred to in paragraph (b), (c), or (d), give the officer details of where they can be found and who is holding them.

    (2) Before acting under subsection (1), the immigration officer must—

    • (a) inform the person that he or she suspects that the person is liable for deportation or turnaround; and

    • (b) warn the person that if the person fails without reasonable excuse to comply with his or her request, the person is liable to arrest and detention under this Act.

    Compare: 1987 No 74 s 138A(1), (2)

281 Powers on deportation or turnaround
  • (1) Where a person is liable for deportation or turnaround,—

    • (a) in addition to the powers referred to in section 280, an immigration officer may—

      • (i) require the person to give to the officer written authority to obtain from any other person documents or other things of a kind referred to in section 280(1)(b), (c), or (d) held by or on behalf of the person; and

      • (ii) require the person to produce and surrender any travel tickets or cash or security in lieu of travel tickets, held by or on behalf of the person; and

    • (b) any documents or other things surrendered or obtained may be used by the Crown towards effecting the person’s deportation or departure from New Zealand.

    (2) To the extent that any documents or things surrendered or obtained under subsection (1) or section 280(1) are not used or required for the person’s deportation or departure, they must be returned to the person—

    • (a) on the person’s departure from New Zealand or on the person being granted a visa and entry permission; or

    • (b) when the person’s liability for deportation is cancelled or suspended, or ceases for any reason.

Powers at border

282 Immigration officer’s powers to enter immigration control area
  • An immigration officer may, at any time of day or night, without a warrant or any authority other than this section, enter any immigration control area or any building or craft in that area for the purposes of carrying out his or her functions under this Act.

283 Powers at border
  • (1) An immigration officer may exercise the powers in subsections (2), (3), and (4) if the officer believes on reasonable grounds that it is necessary for the purpose of—

    • (a) detecting an offence against this Act; or

    • (b) apprehending any person who is liable for deportation or is, or is likely to be, liable for turnaround; or

    • (c) processing arriving passengers, whether or not they have left the craft; or

    • (d) locating any stowaway; or

    • (e) deporting any person or facilitating the departure of persons liable for turnaround.

    (2) An immigration officer may at any time, for a purpose described in subsection (1), without a warrant or any other authority than this section, do either or both of the following things:

    • (a) enter and search any craft that arrives in New Zealand:

    • (b) enter and search any land or premises in any airport or port, including any immigration control area.

    (3) Without limiting the power of entry and search in subsection (2), an immigration officer may, before the disembarkation of a person from a craft,—

    • (a) interview the person:

    • (b) view the person’s seating and identify those passengers seated with the person:

    • (c) search for the person’s travel and identity documents.

    (4) An immigration officer may retain any documents found in a search carried out under this section if retaining the documents is necessary for the purposes of administering this Act.

284 Power of entry and search of craft
  • (1) An immigration officer may exercise the powers in subsection (2) where the officer believes on reasonable grounds that there is on board any craft that is in the contiguous zone or territorial sea of New Zealand, a person who, if he or she lands in New Zealand, will—

    • (a) commit an offence against this Act; or

    • (b) be liable for deportation; or

    • (c) be, or be likely to be, liable for turnaround.

    (2) An immigration officer may at any time, without a warrant or any other authority than this section, and by force if necessary, do the following things:

    • (a) enter and search any craft for the purpose of determining whether there is a person to whom subsection (1) applies on board; and

    • (b) if satisfied that there is a person to whom subsection (1) applies on board, exercise any power under this Act or any other Act that he or she could exercise if the craft was in New Zealand.

    (3) A person is not granted a visa or entry permission and does not enter New Zealand lawfully by reason only of being brought into New Zealand—

    • (a) by an immigration officer who is exercising or has exercised powers referred to in subsection (2); or

    • (b) on board a craft permitted or required to enter New Zealand by an immigration officer who is exercising or has exercised powers referred to in subsection (2).

285 Power of entry and search at border place
  • (1) An immigration officer may exercise the powers in subsection (2) for the purpose of—

    • (a) detecting an offence against this Act; or

    • (b) apprehending a person who is liable for deportation or turnaround.

    (2) An immigration officer may at any time for a purpose described in subsection (1), without a warrant or any other authority than this section, and by force if necessary, enter and search any border place where the officer has good cause to believe that—

    • (a) an offence against this Act is likely to be, or is being, committed; or

    • (b) a person to whom subsection (1)(b) applies is in the place.

    (3) In subsection (2), border place means—

    • (a) any part of the foreshore:

    • (b) the shores or banks of a port, bay, harbour, lake, river, or other waters:

    • (c) any land or premises in a port, including a containerbase, immigration control area, wharf, or transit building:

    • (d) a pier or other structure attached to and extending from any shore or bank described in paragraph (b).

Powers relating to deportation and turnaround

286 Powers of entry and search relating to deportation
  • For the purpose of serving any deportation liability notice or executing a deportation order, an immigration officer may, without further authority than this section, and by force if necessary,—

    • (a) enter and search at any reasonable time by day or night any building or premises in which the officer believes on reasonable grounds that the person named in the notice or order is present; and

    • (b) serve the notice or execute the deportation order.

    Compare: 1987 No 74 s 137(1)

287 Special powers pending deportation or turnaround
  • Where any person is liable for deportation or turnaround, an immigration officer has such of the following powers as are necessary to meet the entry or transit requirements of any country to which or through which the person is to travel:

    • (a) the power to photograph and measure the person:

    • (b) the power to take the person’s fingerprints, palm-prints, or footprints, or a scan of the person's irises.

    Compare: 1987 No 74 s 141

288 Immigration officer may require biometric information to determine compliance with Act
  • (1) Subsection (2) applies where an immigration officer has good cause to suspect that a person—

    • (a) is liable for deportation or turnaround; or

    • (b) is not complying with, or is materially breaching, the conditions of the person’s visa; or

    • (c) is undertaking work or a course of study where the person is not entitled to undertake that work or study under this Act; or

    • (d) has obtained a visa under a fraudulent identity.

    (2) In order to determine whether any of the matters in subsection (1) apply to the person, an immigration officer may require the person to allow biometric information to be collected from him or her.

289 Application for order authorising collection of biometric information
  • (1) An application may be made in accordance with this section to a District Court Judge for a compulsion order in any case where—

    • (a) there is good cause to suspect that a person—

      • (i) is liable for deportation or turnaround; or

      • (ii) is not complying with, or is materially breaching, the conditions of the person’s visa; or

      • (iii) is undertaking work or a course of study where the person is not entitled to undertake that work or study under this Act; or

      • (iv) has obtained a visa under a fraudulent identity; and

    • (b) the person has refused to allow biometric information to be collected from him or her in response to a requirement to do so by an immigration officer under section 288(2).

    (2) Every application under subsection (1) must be made by an immigration officer, in writing and on oath, and must set out the following particulars:

    • (a) the facts relied on to show that there is good cause to suspect that any matter in subsection (1)(a) applies to the respondent:

    • (b) the reasons why it is considered necessary to obtain a compulsion order in relation to the respondent, including the facts relied on to show that there are reasonable grounds to believe that biometric information collected from the respondent would tend to confirm or disprove that any matter in subsection (1)(a) applies to the person.

    (3) Where an application is made under this section,—

    • (a) the immigration officer must serve notice of the application on the respondent; and

    • (b) both the immigration officer and the respondent may appear and may adduce evidence at the hearing of the application.

    (4) In considering an application made under this section, the Judge may take into account any oral or documentary material that the Judge considers relevant, whether or not it would be admissible in a court of law.

290 Judge may authorise biometric information to be collected
  • (1) On the hearing of an application for a compulsion order, a District Court Judge may make a compulsion order requiring the respondent to allow specified biometric information to be collected from him or her, if the Judge is satisfied that—

    • (a) there is good cause to suspect that any matter in section 289(1)(a) applies to the respondent; and

    • (b) there are reasonable grounds to believe that biometric information collected from the respondent would tend to confirm or disprove that any matter in section 289(1)(a) applies to the person; and

    • (c) the person has refused to allow biometric information to be collected from him or her in response to a requirement to do so by an immigration officer under section 288(2); and

    • (d) in all the circumstances, it is reasonable to make the order.

    (2) In considering whether to make a compulsion order, the Judge must have regard to any matter the Judge considers relevant, including—

    • (a) any reasons given by the respondent for opposing the making of the order sought; and

    • (b) any evidence regarding the importance, to the investigation of the relevant matter, of obtaining biometric information from the respondent.

    (3) A person served with a compulsion order must allow the biometric information specified in the order to be collected from him or her.

291 Further applications for compulsion order
  • (1) The fact that a compulsion order has previously been sought or made in respect of a matter, whether or not the previous application or order related to the same person, does not prohibit—

    • (a) the making of an application under section 289 for a compulsion order in respect of a matter; or

    • (b) a Judge from making a compulsion order in respect of a matter.

    (2) Notwithstanding anything in this section, where a further application for a compulsion order is made in respect of a matter in relation to which a previous compulsion order application has been made, the Judge may refuse to make the order sought if he or she is satisfied that the further application is vexatious or an abuse of the process of the court.

Powers generally

292 Immigration officer may have assistance
  • For the purpose of performing his or her functions under this Part, an immigration officer may be accompanied, if he or she thinks fit, by any other employee of the Department or by a customs officer.

293 Police to have powers of immigration officers
  • For the purposes of this Act, a constable has all the powers of an immigration officer under sections 276 to 292.

Disclosure of information to or by other agencies, bodies, or persons

294 Information matching to identify immigration status of person sentenced to imprisonment or community-based sentence
  • (1) The purpose of this section is to facilitate the disclosure of information between the Department and the department of State for the time being responsible for the administration of the Corrections Act 2004 (the responsible department) to enable the responsible department to identify the immigration status of any person who has been sentenced to imprisonment or who has received a community-based sentence.

    (2) The chief executive of the Department and the chief executive of the responsible department may, for the purposes of this section, make arrangements between them in writing for the disclosure of information under this section and, in accordance with those arrangements, the chief executive of the responsible department may supply to the chief executive of the Department any identifying information—

    • (a) about a person who has been sentenced to imprisonment; or

    • (b) if authorised by regulations made under the Corrections Act 2004, about a person who has received a community-based sentence.

    (3) The chief executive of the Department may compare any information he or she receives under subsection (2) with any information held by the Department that relates to the person and, if the Department has immigration information about the person, the chief executive of the Department may, in accordance with the arrangements made under subsection (2), supply to an authorised officer the following information relating to the person:

    • (a) identifying information about the person; and

    • (b) the person’s immigration status under this Act and—

      • (i) any changes to that status:

      • (ii) any action taken under this Act in respect of that person:

      • (iii) any proposed action to be taken under this Act in relation to that person.

    (4) The chief executive of the Department and the chief executive of the responsible department may, for the purpose of this section, determine by agreement between them—

    • (a) the frequency with which information may be supplied; and

    • (b) the form in which information may be supplied; and

    • (c) the method by which information may be supplied.

    (5) In this section,—

    authorised officer means an officer, employee, or agent of the responsible department who is authorised by the chief executive of that department to receive information from the chief executive of the Department in accordance with this section

    identifying information includes a person's—

    • (a) full name:

    • (b) date and place of birth:

    • (c) gender:

    • (d) unique identifying number used by the responsible department:

    • (e) unique identifying number used by the Department:

    • (f) biometric information:

    • (g) citizenship:

    • (h) alias or aliases.

    Compare: 1987 No 74 s 141AC

295 Information matching to locate person in serious default of payment of fine
  • (1) The purpose of this section is to facilitate the exchange of information between the Department and the department of State for the time being responsible for the enforcement of fines (the responsible department) to enable—

    • (a) the responsible department to locate any person who is in serious default in the payment of any fine; and

    • (b) appropriate fines enforcement action to be taken against that person.

    (2) For the purpose of this section, an authorised officer may supply to the chief executive of the Department any identifying information about a person who is in serious default in the payment of a fine, and the chief executive of the Department may compare that information with any information held by the Department that relates to the person and, if the Department has immigration information about the person, the chief executive of the Department may supply to an authorised officer 1 or more of the following:

    • (a) the person's full name:

    • (b) the person's date of birth:

    • (c) the person's gender:

    • (d) the person's nationality:

    • (e) the person's address:

    • (f) the person's occupation:

    • (g) the expiry date of any visa granted to the person (if applicable):

    • (h) the date that the person is expected to return to New Zealand (if applicable).

    (3) The chief executive of the Department and the chief executive of the responsible department may, for the purpose of this section, determine by agreement between them—

    • (a) the frequency with which information may be supplied; and

    • (b) the form in which information may be supplied; and

    • (c) the method by which information may be supplied.

    (4) In this section and section 296, unless the context otherwise requires,—

    authorised officer means an officer, employee, or agent of the responsible department who is authorised by the chief executive of that department to supply information to or receive information from the chief executive of the Department in accordance with this section

    fine means—

    • (a) a fine within the meaning of section 79 of the Summary Proceedings Act 1957 or an amount of reparation:

    • (b) a fine or other sum of money to which any of sections 19 to 19E of the Crimes Act 1961 applies:

    • (c) a fine to which any of sections 43 to 46 of the Misuse of Drugs Amendment Act 1978 applies:

    fines enforcement action includes the execution of a warrant to arrest a person in respect of the non-payment of the whole or any part of any fine

    identifying information means personal information that identifies an individual, which may include the individual’s passport number

    reparation means—

    • (a) any amount that is required to be paid under a sentence of reparation; or

    • (b) any amount that is required to be paid under any order of reparation as defined in section 145D of the Sentencing Act 2002

    serious default, in relation to a person, means that—

    • (a) the person owes—

      • (i) an amount of $1,000 (or any other lesser amount that may be fixed by the Governor-General by Order in Council) or more in relation to 1 or more unpaid fines (other than an amount of reparation); or

      • (ii) any amount of reparation; and

    • (b) a warrant to arrest the person has been issued in respect of the non-payment of the whole, or of any part, of any amount referred to in paragraph (a); and

    • (c) the warrant has not been withdrawn or executed.

    Compare: 1987 No 74 ss 141AD, 141AE

296 No Crown liability to third parties for fines enforcement action
  • (1) This section applies to the taking of any fines enforcement action against a person who is alleged to be in serious default (the alleged defaulter), or to the questioning of any alleged defaulter with a view to taking any fines enforcement action, immediately—

    • (a) after the arrival of the alleged defaulter in New Zealand; or

    • (b) before the departure of the alleged defaulter from New Zealand.

    (2) The Crown is not liable to any person (for example, an airline operator or a passenger on an airline) for any loss or damage caused as a result of, or in connection with, the actions described in subsection (1), unless the person or persons taking those actions, or any employee of the Crown performing any function directly or indirectly connected with those actions, has not acted in good faith or has been grossly negligent.

    (3) Nothing in subsection (2) applies to or affects any question of the liability of the Crown to the alleged defaulter.

    Compare: 1987 No 74 s 141AF

297 Chief executive may supply information concerning specified fines defaulters to commercial carriers
  • (1) This section applies to the chief executive of the Department if he or she is supplied with information about a specified fines defaulter (within the meaning of section 280F(3) of the Customs and Excise Act 1996) under section 280F(1) of that Act.

    (2) The chief executive of the Department may supply the information to a commercial carrier—

    • (a) in any form and by any method that the chief executive thinks appropriate; and

    • (b) in whole or in part, in the form of a code representing the information.

    (3) In this section,—

    commercial carrier means—

    • (a) the owner or operator of a craft that carries persons from New Zealand to a point outside New Zealand for commercial purposes; or

    • (b) the agent of a person described in paragraph (a)

    specified fines defaulter has the meaning given by section 280F of the Customs and Excise Act 1996.

    Compare: 1987 No 74 s 141AG

298 Information matching to verify social security benefit matters
  • (1) The purpose of this section is to facilitate the disclosure of information between the Department and the department of State for the time being responsible for the administration of the Social Security Act 1964 (the responsible department) for the purposes of verifying—

    • (a) the entitlement or eligibility of any person to or for any benefit; or

    • (b) the amount of any benefit to which any person is or was entitled or for which any person is or was eligible.

    (2) The chief executive of the Department and the chief executive of the responsible department may, for the purposes of this section, make arrangements between them in writing for the disclosure of information under this section and, in accordance with those arrangements, the chief executive of the responsible department may supply to the chief executive of the Department identifying information about any person who has applied to receive, is receiving, or has received a benefit.

    (3) The chief executive of the Department may—

    • (a) compare any information he or she receives under subsection (2) with any information held by the Department that relates to the person; and

    • (b) if the Department has immigration information about the person, and he or she is a person described in subsection (4), supply the information described in subsection (5) in relation to the person to an authorised officer in accordance with the arrangements made under subsection (2).

    (4) The person—

    • (a) is a person who the chief executive of the Department believes is unlawfully in New Zealand; or

    • (b) is a person on whom an immigration officer or a constable may serve a deportation order under section 175(1); or

    • (c) is a person who is lawfully in New Zealand, but only by virtue of being the holder of a temporary entry class visa; or

    • (d) is a person who has made a claim for recognition, or has been recognised, as a refugee or a protected person; or

    • (e) is a person who has lodged an appeal against the decision of a refugee and protection officer to decline his or her claim for recognition as a refugee or a protected person; or

    • (f) is a person whose appeal against the decision of a refugee and protection officer to decline his or her claim for recognition as a refugee or a protected person has been determined; or

    • (g) is a person who has been deported (whether under this Act or the former Act).

    (5) The information referred to in subsection (3) is as follows:

    • (a) the person’s full name:

    • (b) any aliases known to be used by the person:

    • (c) the person’s date of birth:

    • (d) the person’s nationality:

    • (e) the person’s address:

    • (f) the person's immigration status, including—

      • (i) the start date of any visa granted to the person; and

      • (ii) the expiry date of any visa granted to the person:

    • (g) whether the person has applied for a residence class visa and, if so, the date on which the application was made:

    • (h) the date on which a deportation order was served on the person (if applicable):

    • (i) the date of the person’s deportation from New Zealand (if applicable):

    • (j) the date on which the person made a claim (if any) for recognition as a refugee or a protected person:

    • (k) the decision of a refugee and protection officer in relation to the person’s claim (if any) for recognition as a refugee or a protected person and the date on which the decision was made:

    • (l) whether the person has lodged an appeal against a decision referred to in paragraph (k) and, if so, the date on which the appeal was lodged:

    • (m) the outcome of any appeal referred to in paragraph (l) and the date of the decision:

    • (n) if the person is a refugee or a protected person, whether he or she has applied for a visa and, if so, the type of visa applied for and the date on which the application was made.

    (6) The chief executive of the Department and the chief executive of the responsible department may, for the purpose of this section, determine by agreement between them—

    • (a) the frequency with which information may be supplied; and

    • (b) the form in which information may be supplied; and

    • (c) the method by which information may be supplied.

    (7) In this section,—

    authorised officer means an officer, employee, or agent of the responsible department who is authorised by the chief executive of that department to receive information from the chief executive of the Department in accordance with this section

    benefit has the same meaning as in section 3(1) of the Social Security Act 1964 but includes—

    • (b) any special assistance granted out of a Crown Bank Account from money appropriated by Parliament under section 124(1)(d) of that Act

    identifying information, in relation to a person, includes—

    • (a) the person's full name and gender:

    • (b) any aliases known to the responsible department to be used by the person:

    • (c) the person's date of birth:

    • (d) the person's address.

    Compare: 1987 No 74 s 141A

299 Information matching to recover costs of visa holder's social security benefit from sponsor
  • (1) The purpose of this section is to facilitate the disclosure of information between the department of State for the time being responsible for the administration of the Social Security Act 1964 (the responsible department) and the Department for the purpose of enabling the Department to recover from a sponsor (as defined in section 48 of this Act) the costs of any benefit paid to a person that are recoverable under an undertaking given by the sponsor under that section in accordance with section 55.

    (2) The chief executive of the Department and the chief executive of the responsible department may, for the purposes of this section, make arrangements between them in writing for the disclosure of information under this section and, in accordance with those arrangements, the chief executive of the Department may supply to the chief executive of the responsible department identifying information about any person in respect of whom an undertaking relating to the payment of a benefit has been given under section 48 of this Act.

    (3) The chief executive of the responsible department may—

    • (a) compare any information he or she receives under subsection (2) with any information held by the responsible department that relates to the person; and

    • (b) if the responsible department has information about the person, and he or she has received, or is receiving, a benefit, supply the information described in subsection (4) in relation to the person to an authorised officer in accordance with the arrangements made under subsection (2).

    (4) The information is—

    • (a) the person's full name and gender:

    • (b) any aliases known to the responsible department to be used by the person:

    • (c) the person's date of birth:

    • (d) the person's address:

    • (e) the nature of the benefit provided to the person:

    • (f) the amount of the benefit provided to the person:

    • (g) the period during which the benefit was provided to the person:

    • (h) any unique identifying number used by the responsible department in relation to the person.

    (5) The chief executive and the chief executive of the responsible department may, for the purpose of this section, determine by agreement between them—

    • (a) the frequency with which information may be supplied; and

    • (b) the form in which information may be supplied; and

    • (c) the method by which information may be supplied.

    (6) In this section,—

    authorised officer means an officer, employee, or agent of the Department who is authorised by the chief executive of the Department to receive information from the chief executive of the responsible department in accordance with this section

    benefit has the same meaning as in section 3(1) of the Social Security Act 1964 but includes—

    • (b) any special assistance granted out of a Crown Bank Account from money appropriated by Parliament under section 124(1)(d) of that Act

    identifying information, in relation to a person, includes—

    • (a) the person's full name and gender:

    • (b) any aliases known to the Department to be used by the person:

    • (c) the person's date of birth:

    • (d) the person's address.

300 Information matching to determine eligibility or liability to pay for publicly funded health and disability support services
  • (1) The purpose of this section is to facilitate the disclosure of information between the Department and the responsible department to enable the responsible department to determine—

    • (a) a person's eligibility for access to publicly funded health and disability support services; or

    • (b) a person's liability to pay for publicly funded health and disability support services the person has received.

    (2) The chief executive of the Department and the chief executive of the responsible department may, for the purposes of this section, make arrangements between them in writing for the disclosure of information under this section.

    (3) In accordance with those arrangements, the chief executive of the responsible department may supply to the chief executive of the Department identifying information about—

    • (a) a person who seeks access to publicly funded health and disability support services; or

    • (b) a person for whom access is sought to publicly funded health and disability support services; or

    • (c) a person who has received publicly funded health and disability support services.

    (4) The chief executive of the Department may compare the information he or she receives with information that the Department holds about the person.

    (5) If the Department holds immigration information about the person, the chief executive of the Department may supply the information described in subsections (6) and (7) to an authorised officer in accordance with the arrangements made under subsection (2).

    (6) The information is—

    • (a) the person's identifying information:

    • (b) the person's immigration status, including—

      • (i) the start date of any visa granted to the person:

      • (ii) the expiry date of any visa granted to the person:

      • (iii) the date on which the person was granted entry permission:

      • (iv) the conditions, if any, relating to the person’s immigration status:

      • (v) any changes to the person's immigration status and the dates of the changes:

      • (vi) any action taken under this Act in relation to the person and the date of the action:

    • (c) the date or dates on which the person leaves or has left New Zealand:

    • (d) the start date of any permit granted to the person under the former Act:

    • (e) the expiry date of any permit granted to the person under the former Act:

    • (f) if the person was exempt from the requirement to hold a permit under the former Act, the period of the exemption.

    (7) The information is also, if it is relevant to the matter to be determined by the responsible department,—

    • (a) the immigration status of an associated person (for example, the person's spouse, civil union partner, de facto partner, or parent), including—

      • (i) the start date of any visa granted to the associated person:

      • (ii) the expiry date of any visa granted to the associated person:

      • (iii) the date on which the associated person was granted entry permission:

      • (iv) the conditions, if any, relating to the associated person's immigration status:

      • (v) any changes to the associated person's immigration status and the dates of the changes:

      • (vi) any action taken under this Act in relation to the associated person and the date of the action:

    • (b) the date or dates on which the associated person leaves or has left New Zealand:

    • (c) the start date of any permit granted to the associated person under the former Act:

    • (d) the expiry date of any permit granted to the associated person under the former Act:

    • (e) if the associated person was exempt from the requirement to hold a permit under the former Act, the period of that exemption.

    (8) The chief executive of the Department and the chief executive of the responsible department may, for the purposes of this section, determine by agreement between them—

    • (a) the frequency with which information may be supplied; and

    • (b) the form in which the information may be supplied; and

    • (c) the method by which the information may be supplied.

    (9) In this section,—

    authorised officer means an officer, employee, or agent of the responsible department who is authorised by the chief executive of the responsible department to receive information from the chief executive of the Department in accordance with this section

    identifying information means information that identifies a person, such as the person’s full name, date or place of birth, gender, or alias or a unique identifying number used for the person

    publicly funded health and disability support services means health services and disability support services funded under the New Zealand Public Health and Disability Act 2000

    responsible department means the department of State for the time being responsible for the administration of the New Zealand Public Health and Disability Act 2000.

301 Disclosure of immigration information to verify eligibility for publicly funded services
  • (1) The purpose of this section is to facilitate the disclosure of information by the Department to a provider of any publicly funded service to enable the service provider to determine—

    • (a) a person’s eligibility for access to the publicly funded service; or

    • (b) where a person is being or has been provided with the publicly funded service, the person’s liability to pay for the service provided.

    (2) For the purpose of this section, an authorised officer may supply to the chief executive any identifying information about—

    • (a) a person who seeks access to a publicly funded service; or

    • (b) a person for whom access is sought to a publicly funded service; or

    • (c) a person who is receiving or has received a publicly funded service.

    (3) If identifying information is supplied under subsection (2), the chief executive may disclose to an authorised officer, for the purpose of this section, any of the following information:

    • (a) identifying information about the person:

    • (b) the person's immigration status, including—

      • (i) the start date of any visa granted to the person:

      • (ii) the expiry date of any visa granted to the person:

      • (iii) the date on which the person was granted entry permission:

      • (iv) the conditions, if any, relating to the person's immigration status:

      • (v) any changes to the person's immigration status, and the dates of the changes:

      • (vi) any action taken under this Act in relation to the person, and the date of the action:

    • (c) the date or dates on which the person leaves or has left New Zealand:

    • (d) the start date of any permit granted to the person under the former Act:

    • (e) the expiry date of any permit granted to the person under the former Act:

    • (f) if the person was exempt from the requirement to hold a permit under the former Act, the period of that exemption:

    • (g) if relevant to the matter to be determined by the service provider,—

      • (i) the immigration status of an associated person (for example, the person's spouse, civil union partner, de facto partner, or parent), including—

        • (A) the start date of any visa granted to the associated person:

        • (B) the expiry date of any visa granted to the associated person:

        • (C) the date on which the associated person was granted entry permission:

        • (D) the conditions, if any, relating to the associated person's immigration status:

        • (E) any changes to the associated person's immigration status, and the dates of the changes:

        • (F) any action taken under this Act in relation to the associated person, and the date of the action:

      • (ii) the date or dates on which the associated person leaves or has left New Zealand:

      • (iii) the start date of any permit granted to the associated person under the former Act:

      • (iv) the expiry date of any permit granted to the associated person under the former Act:

      • (v) if the associated person was exempt from the requirement to hold a permit under the former Act, the period of that exemption.

    (4) The disclosure of information under subsection (3) must be in accordance with an agreement between the chief executive and the service provider concerned that complies with subsections (5) and (6).

    (5) For the purposes of subsection (4), an agreement—

    • (a) must be in writing; and

    • (b) must state criteria for the disclosure of information under it; and

    • (c) must state, in respect of the information to be disclosed,—

      • (i) the use the service provider may make of it; and

      • (ii) either—

        • (A) that the service provider must not disclose it to any other agencies, bodies, or persons; or

        • (B) the other agencies, bodies, or persons to which the service provider may disclose any of it, and the extent to which and conditions subject to which the service provider may do so; and

    • (d) may state—

      • (i) the form in which information may be disclosed:

      • (ii) the method by which information may be disclosed; and

    • (e) may be varied.

    (6) The chief executive must consult the Privacy Commissioner before entering into or varying an agreement under this section.

    (7) If the Privacy Commissioner so requires, the service provider must undertake a review of an arrangement under this section, and the way in which information is disclosed under it, and report the result to the Commissioner as soon as practicable after conducting the review.

    (8) The Privacy Commissioner must not require the service provider to undertake a review under subsection (7) within 12 months of last doing so.

    (9) Where the Department has obtained information about a person from a service provider under this section, the Department must not use that information for the purpose of taking adverse action against the person.

    (10) The service provider must ensure that each of its annual reports includes information in relation to any agreements between the chief executive and a service provider under this section, including information about—

    • (a) the number of agreements; and

    • (b) an outline of each agreement; and

    • (c) the number of cases in which the accuracy of the information disclosed by the chief executive was challenged.

    (11) In this section,—

    authorised officer means any officer, employee, or agent of the service provider who is authorised by the service provider to supply information to, or receive information from, the chief executive under this section

    identifying information means personal information that identifies an individual, which may include the person’s full name, date and place of birth, gender, and any known alias

    publicly funded service means a service where eligibility for access to the service or liability to pay for the service—

    • (a) is determined by or under a statute; and

    • (b) is related to, or affected by, a person’s immigration status

    service provider means a person, including a government agency, providing, or arranging the provision of, a publicly funded service.

302 Disclosure of information to enable Department to check identity, character, and status
  • (1) The purpose of this section is to facilitate the disclosure of information by a specified agency to the Department to enable the Department to—

    • (a) establish or verify a person's identity:

    • (b) check matters relating to a person's character:

    • (c) ascertain whether a person is an excluded person.

    (2) For the purposes of this section, the chief executive of the Department may supply identifying information about the following persons to the chief executive of the specified agency:

    • (a) a person who holds a visa:

    • (b) a person to whom a visa waiver applies:

    • (c) a person who applies for a visa:

    • (d) a person who applies for entry permission:

    • (e) a person who is deemed to have been granted entry permission:

    • (f) a person who travels to New Zealand, including as a member of the crew of a craft, and does not enter New Zealand as a New Zealand citizen:

    • (g) a person about whom the chief executive has received and retained information under section 96 or 102 and who does not enter New Zealand as a New Zealand citizen:

    • (h) a person liable for turnaround or who the chief executive of the Department suspects is liable for turnaround:

    • (i) a person who the chief executive of the Department believes is unlawfully in New Zealand:

    • (j) a person who may be, or may become as a result of investigations, liable for deportation.

    (3) The chief executive of the specified agency may compare the information he or she receives with information that the specified agency holds about the person.

    (4) If the specified agency holds information about the person, the chief executive of the specified agency may supply the information described in subsection (5) to an authorised officer under an agreement to which subsection (6) applies.

    (5) The information is—

    • (a) the person's identifying information:

    • (b) the person's previous convictions:

    • (c) the person's modus operandi:

    • (d) details of the person's known or suspected involvement in illegal activities:

    • (e) details of the person's known currency and other financial transactions of relevant interest, including known or suspected involvement in money laundering:

    • (f) intelligence analysis assessments of and reports about the person:

    • (g) details of communications interceptions involving the person:

    • (h) the person's general history known to the specified agency (which may include information about associates and networks):

    • (i) the person's past travel movements.

    (6) The following provisions apply to an agreement:

    • Making
    • (a) it must not be made until the chief executive of the specified agency has consulted the Privacy Commissioner about it:

    • (b) it must be made between the chief executive of the specified agency and the chief executive of the Department:

    • (c) it must be in writing:

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    • (d) it must state the criteria for the disclosure under it of information by the specified agency to the Department:

    • (e) it must state the use that the Department may make of the information disclosed to it:

    • (f) it must—

      • (i) state that the Department must not disclose the information disclosed to it to any other agencies, bodies, or persons; or

      • (ii) state the other agencies, bodies, or persons to which the Department may disclose information disclosed to it, the extent to which the Department may disclose the information, and the conditions subject to which the Department may disclose the information:

    • (g) it may state the form in which the information may be disclosed:

    • (h) it may state the method by which the information may be disclosed:

    • Varying
    • (i) it may be varied:

    • (j) it must not be varied until the chief executive of the specified agency has consulted the Privacy Commissioner about the variation:

    • Reviews and reports
    • (k) it, and the arrangements for disclosure under it, must be the subject of reviews and reports to the Privacy Commissioner by the chief executive of the Department at intervals of no less than 12 months, if the Privacy Commissioner so requires.

    (7) The chief executive of the Department must ensure that each annual report of the Department includes information about agreements between the chief executive of the Department and the chief executive of the specified agency under this section, including—

    • (a) the number of agreements; and

    • (b) an outline of each agreement; and

    • (c) the number of cases in which the accuracy of the information disclosed by the chief executive of the specified agency was challenged.

    (8) In this section,—

    authorised officer means an officer, employee, or agent of the Department who is authorised by the chief executive of the Department to receive information from the chief executive of the specified agency in accordance with this section

    chief executive of the specified agency includes the Commissioner of Police

    identifying information means a person's—

    • (a) full name:

    • (b) date and place of birth:

    • (c) gender:

    • (d) unique identifying number used by the Department:

    • (e) unique identifying number used by the specified agency:

    • (f) biometric information:

    • (g) alias or aliases:

    • (h) address:

    • (i) distinguishing features:

    • (j) details of travel documents:

    • (k) details of identity documents:

    • (l) citizenship:

    • (m) nationality

    specified agency means—

    • (a) the New Zealand Police:

    • (b) the Ministry of Justice:

303 Disclosure of information to enable specified agencies to check identity and character
  • (1) The purpose of this section is to facilitate the disclosure of information by the Department to a specified agency to enable the specified agency to—

    • (a) establish or verify a person's identity:

    • (b) check matters relating to a person's character.

    (2) For the purposes of this section, the chief executive of the specified agency may supply identifying information about the following persons to the chief executive of the Department:

    • (a) a person in New Zealand who the chief executive of the specified agency believes is not a New Zealand citizen:

    • (b) a person outside New Zealand who the chief executive of the specified agency believes—

      • (i) is not a New Zealand citizen; and

      • (ii) is intending to board a craft for the purpose of travelling to New Zealand:

    • (c) a person outside New Zealand who the chief executive of the specified agency believes—

      • (i) is not a New Zealand citizen; and

      • (ii) has previously travelled to New Zealand.

    (3) The chief executive of the Department may compare the information he or she receives with information that the Department holds about the person.

    (4) If the Department holds immigration information about the person, the chief executive of the Department may supply the information described in subsection (5) to an authorised officer under an agreement to which subsection (6) applies.

    (5) The information is—

    • (a) the person's identifying information:

    • (b) the person's previous convictions:

    • (c) the person's modus operandi:

    • (d) details of the person's known or suspected involvement in illegal activities:

    • (e) details of the person's known currency and other financial transactions of relevant interest, including known or suspected involvement in money laundering:

    • (f) intelligence analysis assessments of and reports about the person:

    • (g) details of communications interceptions involving the person:

    • (h) the person's general history known to the Department (which may include information about associates and networks):

    • (i) the person's past travel movements:

    • (j) details of a visa held by the person.

    (6) The following provisions apply to an agreement:

    • Making
    • (a) it must not be made until the chief executive of the Department has consulted the Privacy Commissioner about it:

    • (b) it must be made between the chief executive of the Department and the chief executive of the specified agency:

    • (c) it must be in writing:

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    • (d) it must state the criteria for the disclosure under it of information by the Department to the specified agency:

    • (e) it must state the use that the specified agency may make of the information disclosed to it:

    • (f) it must—

      • (i) state that the specified agency must not disclose the information disclosed to it to any other agencies, bodies, or persons; or

      • (ii) state the other agencies, bodies, or persons to which the specified agency may disclose information disclosed to it, the extent to which the specified agency may disclose the information, and the conditions subject to which the specified agency may disclose the information:

    • (g) it may state the form in which the information may be disclosed:

    • (h) it may state the method by which the information may be disclosed:

    • Varying
    • (i) it may be varied:

    • (j) it must not be varied until the chief executive of the Department has consulted the Privacy Commissioner about the variation:

    • Reviews and reports
    • (k) it, and the arrangements for disclosure under it, must be the subject of reviews and reports to the Privacy Commissioner by the chief executive of the specified agency at intervals of no less than 12 months, if the Privacy Commissioner so requires.

    (7) The chief executive of the specified agency must ensure that each annual report of the specified agency includes information about agreements between the chief executive of the specified agency and the chief executive of the Department under this section, including—

    • (a) the number of agreements; and

    • (b) an outline of each agreement; and

    • (c) the number of cases in which the accuracy of the information disclosed by the chief executive of the Department was challenged.

    (8) In this section,—

    authorised officer means an officer, employee, or agent of the specified agency who is authorised by the chief executive of the specified agency to receive information from the chief executive of the Department in accordance with this section

    chief executive of the specified agency includes the Commissioner of Police

    identifying information means a person's—

    • (a) full name:

    • (b) date and place of birth:

    • (c) gender:

    • (d) unique identifying number used by the specified agency:

    • (e) unique identifying number used by the Department:

    • (f) biometric information:

    • (g) alias or aliases:

    • (h) address:

    • (i) distinguishing features:

    • (j) details of travel documents:

    • (k) details of identity documents:

    • (l) citizenship:

    • (m) nationality

    specified agency means—

    • (a) the New Zealand Police:

    • (b) the Ministry of Justice:

304 Disclosure of information to employers
  • (1) The purpose of this section is to facilitate the disclosure of information by the Department to an employer to enable the employer to verify that a person is entitled under this Act to work in the employer’s service.

    (2) On receipt of a request from an employer, the chief executive may, for the purpose of this section, disclose the information specified in subsection (4) to the employer.

    (3) The chief executive must not disclose the information specified in subsection (4) unless satisfied that the request—

    • (a) has been made by an employer in New Zealand; and

    • (b) is for the purpose of enabling the employer to verify that a person is entitled under this Act to work in the employer’s service.

    (4) The information that may be disclosed under this section is as follows:

    • (a) whether the person is entitled to undertake that work in New Zealand:

    • (b) if the person is entitled to undertake that work in New Zealand,—

      • (i) the duration of the entitlement; and

      • (ii) any conditions imposed on that entitlement.

    (5) Where the chief executive discloses information under this section to an employer, the employer must be informed of the requirement to comply with the Privacy Act 1993 in relation to that information.

305 Disclosure of information overseas
  • (1) The chief executive may disclose any information specified in section 306 to an overseas agency, body, or person whose functions include—

    • (a) the prevention, detection, investigation, prosecution, or punishment of immigration or other offences; or

    • (b) the processing of international passengers; or

    • (c) border security.

    (2) The disclosure of information under subsection (1) must be—

    • (a) in accordance with an agreement between the chief executive and the agency, body, or person concerned that complies with subsections (3) and (4); or

    • (b) in accordance with subsection (7).

    (3) The chief executive must not enter into an agreement for the purposes of subsection (2)(a) unless satisfied that it is justified to help prevent, identify, or respond to violations of New Zealand law or,—

    • (a) in the case of an agreement with an international agency or body, to help prevent, identify, or respond to the kinds of actions that the agency or body has a function of preventing, identifying, or responding to; or

    • (b) in any other case, to help prevent, identify, or respond to violations of the law of the state concerned.

    (4) For the purposes of subsection (2)(a), an agreement—

    • (a) must be in writing; and

    • (b) must state criteria for the disclosure of information under it; and

    • (c) must state, in respect of the information to be disclosed,—

      • (i) the use the agency, body, or person may make of it; and

      • (ii) either—

        • (A) that the agency, body, or person must not disclose it to any other agency, body, or person; or

        • (B) the other agencies, bodies, or persons to which the agency, body, or person may disclose any of it, and the extent to which and conditions subject to which the agency, body, or person may do so; and

    • (d) may state—

      • (i) the form in which information may be disclosed:

      • (ii) the method by which information may be disclosed; and

    • (e) may be varied.

    (5) The chief executive—

    • (a) must consult the Privacy Commissioner before entering into an agreement under this section, or varying such an agreement; and

    • (b) if the Privacy Commissioner so requires, must undertake a review of the agreement under this section, and the arrangements for disclosure under it; and

    • (c) as soon as practicable after conducting a review required to be undertaken under paragraph (b), must report the result to the Privacy Commissioner.

    (6) The Privacy Commissioner must not require the chief executive to undertake a review of an agreement under subsection (5)(b) within 12 months of last doing so.

    (7) The chief executive may disclose information to an overseas agency, body, or person if—

    • (a) the functions of the agency, body, or person include the prevention, detection, investigation, prosecution, or punishment of immigration or other offences; and

    • (b) the information is disclosed subject to conditions stating—

      • (i) the use the agency, body, or person may make of it; and

      • (ii) either—

        • (A) that the agency, body, or person must not disclose it to any other agency, body, or person; or

        • (B) the other agencies, bodies, or persons to which the agency, body, or person may disclose any of it, and the extent to which and conditions subject to which the agency, body, or person may do so; and

    • (c) the chief executive makes and keeps a record of—

      • (i) the information that was disclosed; and

      • (ii) the agency, body, or person to which it was disclosed; and

      • (iii) the conditions subject to which it was disclosed.

    (8) The chief executive must not disclose any information under subsection (7) unless satisfied that it relates to a suspected violation of New Zealand law or,—

    • (a) in the case of disclosure to an international agency or body, to a suspected action of a kind that the agency or body has a function of preventing, identifying, or responding to:

    • (b) in any other case, to a suspected violation of the law of the state concerned.

    Compare: 1987 No 74 s 141AA

306 Information that may be disclosed under section 305
  • (1) The information that may be disclosed under section 305 is—

    • (a) airline passenger and crew lists:

    • (b) craft movements (which may include passenger and crew lists):

    • (c) past travel movements of specified people:

    • (d) previous convictions of specified people:

    • (e) general history of specified people (which may include associates and networks):

    • (f) modus operandi of specified people:

    • (g) known currency and other financial transactions of relevant interest, including involvement in money laundering:

    • (h) intelligence analysis assessments and reports:

    • (i) details of communications interceptions:

    • (j) personal identification details (which may include photographs, biometric information, distinguishing features, and details of identity or travel documents):

    • (k) names and details of immigration personnel and transport personnel:

    • (l) details of known or suspected involvement of people in illicit activities:

    • (m) details of any visa held by a person.

    (2) Section 305 does not prevent or limit any disclosure of information otherwise than under that section that may be required or authorised by or under law, or any treaty, agreement, or arrangement concluded by the Government of New Zealand.

    Compare: 1987 No 74 s 141AB

Part 9
Detention and monitoring

307 Purpose of Part
  • The purpose of this Part is to establish a tiered detention and monitoring regime in order to ensure—

    • (a) the integrity of the immigration system through providing for the management of persons who are liable for deportation or turnaround; and

    • (b) the safety and security of New Zealand where a person who is liable for deportation may constitute or be suspected of constituting a threat or risk to security.

308 This Part code for detention and monitoring of person if detention and monitoring under this Act
  • This Part must be treated as a code for the purposes of the detention and monitoring of any person if the reason for the detention or monitoring arises under this Act, and no person who is liable for arrest and detention under this Act may be granted bail from that detention.

Arrest and detention

309 Persons liable to arrest and detention
  • (1) The following persons are liable to arrest and detention under this Part:

    • (a) persons who are liable for turnaround:

    • (b) persons who are liable for deportation (including persons recognised as refugees or protected persons but whose deportation is not prohibited under section 164(3) or (4)):

    • (c) persons who are suspected by an immigration officer or a constable to be liable for deportation or turnaround and who fail to supply satisfactory evidence of their identity when requested under section 280:

    • (d) persons who are, on reasonable grounds, suspected by an immigration officer or a constable of constituting a threat or risk to security.

    (2) The following persons are not liable to arrest and detention under this Part:

    • (a) persons who are recognised as refugees, except those whose deportation is not prohibited under section 164(3):

    • (b) persons who are recognised as protected persons, except those whose deportation is not prohibited under section 164(4).

310 Purpose for which arrest and detention powers may be exercised
  • The powers of arrest and detention under this Part may be exercised for the following purposes:

    • (a) in the case of a person liable for turnaround, to detain the person in order to place him or her on the first available craft leaving New Zealand:

    • (b) in the case of a person liable for deportation,—

      • (i) to detain the person pending the making of a deportation order, including during the completion of any appeal brought by the person against his or her liability for deportation; or

      • (ii) to deport the person following the making of a deportation order by placing him or her on the first available craft leaving New Zealand:

    • (c) in the case of a person who is suspected by an immigration officer or a constable to be liable for deportation or turnaround and who fails to supply satisfactory evidence of his or her identity when requested under section 280, to detain the person pending satisfactory establishment of the person's identity:

    • (d) in the case of a person—

      • (i) who is suspected of constituting a threat or risk to security, to detain the person pending the making of a deportation order;