IPT Residence Class Visa Appeal

If you have applied for a residence class visa, but have had that application declined, you are normally eligible to appeal that decision to the Immigration and Protection Tribunal.  This is an important entitlement that could determine your future in New Zealand as it is not uncommon for Immigration New Zealand to make the wrong decision.

The power of the Tribunal to review decisions on residence class visa applications is substantially different to situations where a person has been declined a temporary visa.  The Tribunal has no authority to review decisions on temporary visa applications, but it does have power to overturn declined resident visa applications.

There are two main issues that the Tribunal must determine when considering a residence class visa appeal:

  1. Was Immigration New Zealand’s decision correct in terms of the applicable residence instructions?
  2. If the decision was correct, are there special circumstances such that consideration of an exception to those residence instructions should be considered?

It is important to understand that in most situations you cannot submit new evidence to the Tribunal that you did not provide to Immigration New Zealand with your residence class visa application.  It is your obligation to submit all evidence you want considered to Immigration New Zealand before they make their decision.  The role of the Tribunal is to review whether Immigration New Zealand’s decision was correct based on the information and evidence you had provided to them.

In some cases new evidence may be considered by the Tribunal where it was not possible (by exercise of “reasonable diligence”) to provide the evidence to Immigration New Zealand, or where a particular event has occurred after the decline of your resident visa application and that event affects your eligibility under residence instructions.

It is important to be aware that strict timeframes exist for lodging an appeal against your declined residence class visa application.  You must ensure that you submit your appeal no later than 42 days after the date on which you were notified of the decision.  If you lodge your appeal after this time the Tribunal has no legal authority to review your case and your appeal will not be accepted for consideration.

In deciding a residence class visa appeal 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—

  1. 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
  2. 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.

If you have recently been declined a residence class visa contact TDA Immigration today to prepare and manage an appeal to the Immigration and Protection Tribunal.  If the appeal period has expired contact us anyway as there may be alternative ways to resolve your situation.