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Communtity Law Manual | Immigration | Challenging a Temporary Visa decision

Temporary Visas: Working, studying or visiting for a limited time

Challenging a Temporary Visa decision

If you’re refused a Temporary Visa, you’ll have only limited opportunities to challenge the decision. There’s no appeal body that will review Immigration New Zealand’s decision (unlike Residence Visa decisions, which can be appealed to the Immigration and Protection Tribunal). You’ll have only some partial rights of appeal, as follows:

  • You can ask Immigration NZ to reconsider their decision.
  • Once your current visa has expired so that you’re now here illegally, you can appeal to the Immigration and Protection Tribunal on humanitarian grounds to let you stay in New Zealand.
  • You can complain to the Ombudsmen.
  • You can go to the High Court for “judicial review” of how Immigration NZ made their decision.

We explain these options in more detail below.

Asking Immigration NZ to reconsider

Immigration Act 2009, s 185; INZ Operational Manual: Temporary Entry, E7.35.1

If Immigration New Zealand rejects your application for another Temporary Visa, you can ask them to reconsider their decision. But you have to ask them before your current visa expires, and no later than 14 days after they told you they wouldn’t give you another visa. The Immigration Officer assigned to reconsider your case has to be at least as senior as the original decision-maker.

You don’t have a right to have Immigration NZ reconsider your application if you had applied from overseas. But Immigration NZ’s policy is that their staff can reconsider an overseas application if you provide them quickly with “new and compelling” information.

Your request for a reconsideration has to be in writing and be in English, and it must to set out all the information you want Immigration NZ to consider. Along with this written request, you have to provide your passport and the reconsideration fee. Immigration NZ can also require you to provide other documents or information if they think this is necessary.

If you’ve asked for a reconsideration, you can’t be deported while Immigration NZ reconsider their decision. If they confirm their decision, you then have six weeks (42 days) to appeal against deportation to the Immigration and Protection Tribunal on special humanitarian grounds.

Appealing to the Immigration and Protection Tribunal on humanitarian grounds

Immigration Act 2009, s 154(2)

If you ask Immigration New Zealand to reconsider their refusal to grant you a Temporary Visa, but they simply confirm their decision, you can take your case to the Immigration and Protection Tribunal. Once your previous Temporary Visa expires, this means you’re now in New Zealand illegally and may have to leave, but you can appeal to the Tribunal on humanitarian grounds to allow you to stay. To win your appeal, you’ll have to show “exceptional circumstances of an humanitarian nature”. (See “Appealing against deportation”, in the section “Deportation: Being made to leave New Zealand” in this chapter.)

Complaining to the Ombudsmen

Ombudsmen Act 1975, s 13

The Ombudsmen are watchdogs over government, investigating complaints from members of the public about decisions made and things done by government bodies and officials. They can look at some types of Immigration New Zealand decisions, including refusing Temporary Visas and cancelling Temporary Visas. They can also look at decisions about Interim Visas and Limited Visas.

You can also complain to the Ombudsmen if you’ve been refused a “section 61” visa when you’re here unlawfully, or if you’ve been refused a special direction from the Immigration Minister. But the Ombudsmen can’t investigate decisions by Immigration NZ about residence, deportation, or refugee status; that’s because those decisions can be appealed to the Immigration and Protection Tribunal.

For how to complain to the Ombudsmen, see “Challenging decisions and conduct of government agencies” in the chapter “Dealing with government agencies”.

“Judicial review” of the decision-making process

Immigration Act 2009, s 186

You can’t appeal a decision about a Temporary Visa to the Immigration and Protection Tribunal or to the courts. However, as with any other decision made under an Act, you can apply to the High Court for it to review the process Immigration New Zealand followed in making their decision (unless you were overseas when they refused you the visa or cancelled your visa). In this way, you can enforce your rights in relation to the decision-making process – for example, you might object that Immigration NZ took irrelevant factors into account (see above, “How Immigration NZ makes Temporary Visa decisions”).

If you succeed, the High Court judge will usually order Immigration NZ to make the decision again, rather than telling them what to decide (for more information about judicial review, see the chapter “Dealing with government agencies”, under “Challenging decisions and conduct of government agencies”). The courts themselves don’t have the power to grant immigration visas.

Legal Services Act 2011, s 7(1)

Taking a judicial review case to the High Court is usually expensive and slow. Legal aid isn’t available for taking Temporary Visa decisions to judicial review.

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