Immigration Amendment Act 1999

1: Short Title and commencement
1: This Act may be cited as the Immigration Amendment Act 1999, and is part of the Immigration Act 1987 the principal Act
2: Part 3 sections 53 63
2A: The following provisions come into force on 16 June 1999:
a: Sections 37
b: Sections 45(3) 46
c: Sections 50(2) 52(2)
3: The remainder of this Act comes into force on 1 October 1999. Subsection (2A) inserted 16 June 1999 2 Immigration Amendment Act (No 2) 1999
2: Interpretation
1: Section 2(1) Authority Authority
a: The Residence Appeal Authority referred to in section 18B
b: The Removal Review Authority referred to in section 49
c: The Refugee Status Appeals Authority referred to in section 129N .
2: Section 2(1) certificate of identity Chief executive Claim claimant section 129B .
3: The definition of execute 2(1) section 67 or section 68 or section 69 of this Act section 59
4: Section 2 New Zealand address New Zealand address
a: In relation to a permit holder, means the last known of the following addresses:
i: The address for the time being nominated by that holder under section 37
ii: Where applicable, that person's New Zealand address within the meaning of paragraph (e):
b: In relation to a person who is subject to any residence requirement in accordance with section 98
i: The address at which the person has currently agreed to reside under that section:
ii: Where applicable, that person's New Zealand address within the meaning of paragraph (e) or paragraph (f):
c: In relation to a person who is subject to any residence condition imposed in accordance with section 60(5) (or the previous section 54 or section 57) or section 79 or section 101
i: The current address specified under any of those sections:
ii: Where applicable, that person's New Zealand address within the meaning of paragraph (e) or paragraph (f) or paragraph (h):
d: In relation to a person who is in custody pursuant to a warrant of commitment issued under this Act, means—
i: The place where that person is held in custody:
ii: Where applicable, that person's New Zealand address within the meaning of paragraph (e):
e: In relation to an unmarried person under 17 years of age named in a removal order or a deportation order, means—
i: Where that person is named as a dependent child of another person named in the order, the New Zealand address of that other person:
ii: Where a responsible adult has been determined or nominated under section 141B section 60 section 141B(6) section 60(6)
f: In relation to a person who has appealed to the Deportation Review Tribunal under section 22 or section 104
i: The address supplied to the Tribunal under section 22(3) section 104(3)
ii: Where applicable, that person's New Zealand address within the meaning of paragraph (e):
g: In relation to a person who has appealed to the Residence Appeal Authority under section 18C
i: The address supplied to the Authority under subsection (5) of that section
ii: Where applicable, that person's New Zealand address within the meaning of paragraph (e):
h: In relation to a person who has appealed to the Removal Review Authority under Part II
i: The latest address supplied to the Authority under section 48 section 63A or 63B
ii: Where applicable, that person's New Zealand address within the meaning of paragraph (e): .
5: Section 2(1) permit Permit .
6: Section 2(1) Refugee Convention Refugee status claimant section 129B Refugee status officer section 129B .
7: The definition of removal order 2(1) section 50 of this Act section 54
8: Section 2(1) special direction Subsequent claim Part VIA section 129B .
9: The definition of visa officer 2(1)
a: By adding the expression ; or
b: By inserting in paragraph (b), after subparagraph (ii), the following subparagraph:
iii: Other member of the staff (including locally engaged staff) of an overseas branch office of the Department of Labour,— .
1: Amendments to
Part 1
3: Requirements for undertaking employment in New Zealand
Section 5(1) paragraph (c)
ca: The holder of a limited purpose permit granted for purposes of employment; or .
4: Requirements for undertaking course of study or training in New Zealand
Section 6(1) paragraph (c)
ca: The holder of a limited purpose permit granted for purposes of study or training; or .
5: Certain persons not eligible for exemption or permit
Section 7(1)(d) subparagraphs (ii) (iii)
iii: From New Zealand at any time, pursuant to an order for deportation made under section 22 of the Immigration Act 1964 .
6: Grant of residence permit a matter of discretion
Section 8(1) sections 18 and 18E and 52
7: Grant of temporary permit a matter of discretion
Section 9(1) section 63E(c) section 52
8: Grant of limited purpose permit a matter of discretion
The principal Act is amended by inserting, after section 9
9A:
1: No person is entitled as of right to a limited purpose permit, and any question whether or not—
a: To grant a limited purpose permit to any person and (if so) for what purpose and for what period; or
b: To impose any condition on a limited purpose permit (other than a condition imposed by section 27(1)
c: To vary or cancel any condition of a limited purpose permit; or
d: To revoke any limited purpose permit— is a matter for the discretion of the Minister or the appropriate immigration officer, subject to any special direction given under this Act.
2: No appeal lies against the decision of the Minister or immigration officer on any such question, whether to any court or to the Tribunal or to the Minister or otherwise.
3: Nothing in subsection (2)
9: Grant of visa a matter of discretion
Section 10(1)(b)(ii) residence visa and section 14DA(2)
10: Types of visa
Section 14 paragraph (c)
ca: Limited purpose visas: .
11: Meaning and effect of visa
1: Section 14A(1) or certificate of identity, or, in the case of a visa issued electronically, an entry made and retained in the records of the Department of Labour in accordance with section 35AB
2: Section 14A(1) paragraph (c)
ca: Be granted a limited purpose permit, where the visa is a limited purpose visa; or .
3: Section 14A(4) where a visa is not granted electronically in accordance with section 35AB
12: Temporary visas
Section 14D
4: Nothing in this section—
a: Requires a person to apply for a temporary visa if that person instead applies for a limited purpose visa:
b: Prevents a visa officer from issuing a limited purpose visa, to a person who has applied for a temporary visa, if the circumstances specified in section 14DA(2)
5: It may be a precondition to the issue of a temporary visa that a bond be paid in accordance with section 148B
6: In the case of a bond of a kind that is intended to manage the risk of an applicant remaining in New Zealand beyond the expiry of his or her permit, the relevant visa officer or immigration officer may impose such a bond if, and only if,—
a: The officer identifies such a risk in the particular case; and
b: The officer considers that the imposition of the bond is necessary in the particular case to manage that risk.
13: Limited purpose visas
The principal Act is amended by inserting, after section 14D
14DA:
1: If a person who is outside New Zealand applies in the prescribed manner for a limited purpose visa, a visa officer may issue a limited purpose visa if the person—
a: Wishes to come to New Zealand for an express purpose; and
b: Will not be exempt from the requirement to hold a permit to be in New Zealand.
2: If a person who is outside New Zealand applies in the prescribed manner for a temporary visa (rather than a limited purpose visa), a visa officer may issue a limited purpose visa rather than the temporary visa applied for if, and only if,—
a: The person is of a kind described by subsection (1)(a) and (b)
b: The visa officer identifies a risk in the particular case that the person will remain in New Zealand beyond the expiry of his or her permit; and
c: The visa officer considers that the issue of a limited purpose visa rather than a temporary visa is necessary in the particular case to manage that risk.
3: A holder of a limited purpose visa who arrives in New Zealand during the currency of that visa may on arrival apply only for a limited purpose permit.
4: It may be a precondition to the issue of a limited purpose visa that a bond be paid in accordance with section 148B
14: Transit visas
1: Section 14E(1) paragraph (a)
a: Is classified by regulations made under this Act, or by a special direction of the Minister made in accordance with this section, as a person of a type who requires a transit visa; and .
2: Section 14E(2) paragraph (b)
b: Expire at the expiry of 3 calendar years from the date on which they were made, unless sooner revoked.
3: Section 14E subsection (2)
2A: Nothing in subsection (2) subsection (1)
2B: Any special direction classifying persons as persons who require transit visas for the purpose of this section—
a: Must be published in the Gazette
b: Expires at the end of the period of 3 months following the day on which the special direction was made, unless sooner cancelled by the Minister by a further special direction, or by regulations:
c: Is to be treated for the purposes of the Regulations (Disallowance) Act 1989 Acts and Regulations Publication Act 1989
2C: Subsection (2)(a)
2D: A special direction under this section may not be effectively continued in force by the making of a further special direction to the same or similar effect.
15: Requirements may be imposed on grant of residence permit
Section 18A subsection (3)
3A: Requirements imposed under this section may include the posting of a bond that is refundable in whole or in part if other requirements under this section are met, and section 148B
3B: The fact that a bond has been forfeited in whole or in part does not affect other action taken, or that may be taken, in respect of a failure to meet requirements imposed under this section, including revocation of a residence permit or returning resident's visa under section 20 or section 20A
16: Provisions applying to appeals
Section 18F subsection (4)
4: Subject to subsections (4A) to (7)
a: May seek and receive such information as it thinks fit, and consider information from any source; but
b: May not consider any information or evidence adduced by the appellant that was not provided to the visa officer or immigration officer before the time at which that officer made the decision on the application for the residence visa or residence permit that is the subject of the appeal.
4A: The Authority may consider information or evidence not provided by the appellant to the relevant officer before the time of the relevant decision if—
a: The Authority is satisfied that—
i: The information or evidence existed at the time the decision to refuse the visa or permit 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 visa officer or immigration officer at the time at which 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 Authority considers that it is necessary for it to have the information or evidence for the purpose of considering whether or not to make a determination under section 18D(1)(f)
17: Revocation of residence permit by immigration officer
Section 19(4) paragraph (d)(iii) ; or
e: It is granted on the basis of an administrative error (of any of the types referred to in this subsection) in determining an earlier application for a visa or permit.
18: Revocation of residence permit by Minister
Section 20(1) paragraph (c)
ca: That the permit (including any permit deemed by section 44(2) .
19: Revocation of returning resident's visa by Minister
Section 20A(1) paragraph (c)
ca: That the visa was granted to a person who was, but is no longer, recognised as a refugee in New Zealand, that earlier recognition having been procured by fraud, forgery, false or misleading representation, or concealment of relevant information: .
20: Appeal on humanitarian grounds to Tribunal against revocation of residence permit
Section 22
10: Where a person has appealed under this section and the Tribunal confirms the revocation of the permit,—
a: The person has no right to appeal to the Removal Review Authority under section 47
b: Unless the Tribunal directs that a temporary permit be granted under subsection (7) Part II
11: If the Tribunal has directed that a temporary permit be granted under subsection (7)
a: The person has no right to appeal to the Removal Review Authority under section 47
b: The person is liable to removal from New Zealand in accordance with the other provisions of Part II
21: Temporary permits to be subject to conditions
Section 27 subsection (1)
1A: It may be a precondition to the grant of a temporary permit that a bond be paid in accordance with section 148B
1B: In the case of a bond of a kind that is intended to manage the risk of an applicant remaining in New Zealand beyond the expiry of his or her permit, the relevant visa officer or immigration officer may impose such a bond if, and only if,—
a: The officer identifies such a risk in the particular case; and
b: The officer considers that the imposition of the bond is necessary in the particular case to manage that risk.
1C: The fact that a bond has been forfeited in whole or in part does not affect other action taken, or that may be taken, in respect of a failure to comply with a condition imposed under this section, including revocation of a permit under section 32 or section 33
22: Further temporary permit
Section 30 subsection (3)
3: If a further temporary permit is granted on an application made under this section, it comes into force on the earlier of—
a: The date of the expiry of the current permit (whether before or after the date of the grant of the new permit); or
b: A date specified by the Minister.
23: Reconsideration where application for another temporary permit declined
1: Section 31(2) paragraph (b)
b: That person is not liable to be removed under Part II
2: Section 31 subsection (5)
5: If the decision to decline the original application is confirmed and no permit 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 a person who still holds a permit, the date on which the person will have an obligation to leave New Zealand; and
c: In the case of a person who no longer holds a permit, the fact that the person is already obliged to leave New Zealand; and
d: The period within which the applicant may bring an appeal under section 47
24: Revocation of temporary permit by immigration officer
1: Section 32(4) paragraph (d)
da: It is granted contrary to Government policy (in terms of section 13A(1) .
2: Section 32(4) paragraph (e) ; or
f: It is granted on the basis of an administrative error (of any of the types referred to in this subsection) in determining an earlier application for a visa or permit.
25: New heading and sections inserted
The principal Act is amended by inserting, after section 34 Limited purpose permits
34A: Limited purpose permits
A limited purpose permit is a permit granted to allow its holder to be in New Zealand for an express purpose only.
34B: Applications for limited purpose permits
1: The following persons may apply for a limited purpose permit:
a: A holder of a limited purpose visa who arrives in New Zealand during the currency of that visa:
b: A person in New Zealand who is the holder of a current limited purpose permit, if further time is required to achieve the purpose for which that permit was granted.
2: An application for a limited purpose permit must be made in the prescribed manner.
3: No person who is unlawfully in New Zealand, and no person who is lawfully in New Zealand otherwise than pursuant to a limited purpose permit, may apply for a limited purpose permit. If such a person purports to apply for a limited purpose permit—
a: The Minister or appropriate immigration officer is under no obligation to consider the application; and
b: Whether the application is considered or not,—
i: The Minister or immigration officer is not obliged to give reasons for any decisions relating to the application, other than the reason that this subsection applies; and
ii: Section 36 of this Act section 23 of the Official Information Act 1982
34C: Currency of limited purpose permit
1: Subject to a special direction to the contrary, a limited purpose permit may be granted for such period as—
a: Is appropriate to achieve the express purpose for which the permit is granted; and
b: Does not exceed the period (if any) prescribed in respect of limited purpose permits of that category by regulations made under this Act.
2: Every limited purpose permit must state the latest date on which it will expire.
3: If the express purpose for which a limited purpose permit was granted is achieved before the latest 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 permit holder,—
a: An immigration officer may give the holder of the permit a notice specifying an earlier expiry date for the permit (which date may in no case be sooner than 14 days after that notice is given to the holder); and
b: The permit then expires on that new expiry date.
4: The holder of a limited purpose permit who applies for a further limited purpose permit may be granted the further permit only if further time is required to achieve the express purpose for which the original permit was granted.
34D: Limitations and conditions on holders of limited purpose permits
1: The holder of a limited purpose permit must leave New Zealand no later than the day that the permit expires.
2: The holder of a limited purpose permit may not, whether before or after the expiry of the permit,—
a: Apply for a permit of a different type while in New Zealand; or
b: While in New Zealand, request a special direction, or a permit under section 35A
c: Bring any appeal under this Act, whether to the Removal Review Authority, the Residence Appeal Authority, the Tribunal, or the High Court.
3: Every limited purpose permit is to be granted subject to conditions relating to its purpose, and section 27
a: References in that section to temporary permits were references to limited purpose permits; and
b: A limited purpose permit granted for the purpose of employment were a work permit; and
c: A limited purpose permit granted for the purpose of study or training were a student permit.
34E: Application of certain temporary permit provisions to limited purpose permits
The following provisions apply in respect of limited purpose permits, with any necessary modifications, as if references in those provisions to temporary permits were references to limited purpose permits:
a: Sections 32 and 33
b: Section 34
c: Section 35
d: Section 37(2)
e: Section 38
f: Section 41
34F: Consequences of remaining in New Zealand after expiry of limited purpose permit
A person who is in New Zealand unlawfully following the expiry of a limited purpose permit—
a: May not appeal to the Removal Review Authority under section 47
b: Is immediately liable to removal under Part II
26: Obligation to inform all relevant facts, including changed circumstances
The principal Act is amended by inserting, immediately before section 35 General Provisions
34G:
1: Every person who applies for any type of visa, permit, or exemption under this Act has the obligation to inform 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 a permit in reliance on the visa for which the application is made.
2: Without limiting the scope of the expression material change in circumstances subsection (1)
3: Failure to comply with the obligation set out in subsection (1)
a: Amounts to concealment of relevant information sections 20(1)(b) and (c) and 20A(1)(b) and (c)
b: Renders any visa or permit granted subject to cancellation or revocation.
27: Grant of permits
1: Section 35 subsection (1)
1A: Despite subsection (1)
2: Section 35(3) paragraph (b) pre-cleared permit or a permit granted electronically
3: Section 35(3) ; and paragraph (c)
d: In the case of a permit granted electronically, be entered and retained in the records of the Department of Labour in accordance with section 35AB
28: Grant of permit in special case
Section 35A(1) paragraph (b)
ba: Does not hold a permit to be in New Zealand; and .
29: Visas and permits may be issued or granted electronically
The principal Act is amended by inserting, after section 35A
35AB:
1: Any type of visa or permit may be issued or granted by being electronically entered and retained in the records of the Department of Labour.
2: Every such entry must specify the following information:
a: The name of the visa or permit holder:
b: The passport number of the visa or permit holder or, where the holder is accepted without a passport, the holder's date of birth and nationality (if known):
c: The date on which the visa or permit is issued or granted:
d: Either the date on which the visa or permit will expire, or the period for which it is granted:
e: Such other matters, including conditions, as may apply in respect of the visa or permit.
3: Where a visa or permit is issued or granted in the manner set out in subsection (1)
4: A person who holds a permit granted electronically may request a copy of the permit in the prescribed manner, and is entitled on such a request made in New Zealand to receive a copy of the permit in an approved form.
5: A person is not entitled to be given a copy of a permit under subsection (4)
6: A permit that is granted electronically may be revoked in the same manner as a pre-cleared permit, and section 35F
30: Pre-cleared permits
Section 35B(1) or a residence permit or a limited purpose permit
31: Revocation of pre-cleared permit by immigration officer
Section 35F(1)(b) pre-cleared temporary permit or a pre-cleared limited purpose permit
32: Evidence of permit or exemption to be retained
Section 38(1) other than a pre-cleared permit or a permit granted electronically in accordance with section 35AB
33: Spent transitional provisions repealed
Sections 42 43
2: New
Part 2
34: New Part substituted
The principal Act is amended by repealing Part 2
II: Persons in New Zealand unlawfully
Obligation of persons unlawfully in New Zealand to leave
45: Obligation of persons unlawfully in New Zealand to leave New Zealand
1: From the moment that a person is in New Zealand unlawfully until that person leaves New Zealand, he or she has an obligation to leave New Zealand unless subsequently granted a permit.
2: The obligation created by subsection (1)
3: The obligation to leave created by subsection (1)
a: That obligation, and any liability of the person to removal or other action under this Part, is not affected by any failure or alleged failure of the chief executive to communicate the obligation and related implications under section 46 section 70(4)
b: Nothing in paragraph (a)
46: Duty of chief executive to communicate obligation to leave New Zealand
1: The chief executive of the Department of Labour must communicate to persons who are seeking visas to come to New Zealand or permits to be in New Zealand—
a: The obligation to leave New Zealand created by section 45(1)
b: The implications for persons who fail to meet that obligation.
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 or permits are issued or 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 temporary visas and permits and limited purpose visas and permits:
c: In arrival halls at Customs places, by way of notices that can be readily seen by all arriving temporary entrants:
d: On informational material provided by the Department to persons who are interested in coming to New Zealand temporarily:
e: On any notice revoking a permit.
3: The chief executive is to decide whether the information to be communicated under subsection (2)
4: Any temporary visa or permit or limited purpose visa or permit issued or granted to any person after the commencement of this Part (other than a visa or permit granted electronically) must contain the following words, or words to similar effect: You must leave New Zealand before expiry of your permit, or face removal. Appeal against requirement to leave, etc
47: Appeal against requirement to leave New Zealand
1: A person who is unlawfully in New Zealand may appeal to the Removal Review Authority against the requirement for that person to leave New Zealand.
2: The appeal must be brought within 42 days after the later of—
a: The day on which the person became unlawfully within New Zealand; or
b: The day on which the person received notification under section 31 section 31
3: An appeal may be brought only on the grounds that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand.
4: For the purposes of subsection (3)
5: The following persons may not appeal under this section:
a: A person who is unlawfully in New Zealand by reason of having returned to New Zealand while a removal order is in force in respect of the person:
b: A person who is unlawfully in New Zealand by reason of the expiry of a limited purpose permit:
c: A person who is unlawfully in New Zealand following the revocation of their residence permit being confirmed by the Deportation Review Tribunal:
d: A person unlawfully in New Zealand to whom section 63 Mutual Assistance in Criminal Matters Act 1992
e: A person unlawfully in New Zealand to whom section 114K(4)(b)
48: How to appeal
1: An appeal under section 47
a: Be made in the prescribed manner; and
b: Be brought within the 42-day period referred to in section 47(2)
c: Be accompanied by the prescribed fee (if any).
2: In the notice of appeal the appellant must—
a: Set out all the grounds and the full circumstances on which the appeal is based; and
b: Include an address in New Zealand at which any communication relating to the appeal may be notified to the appellant; and
c: Include the address in New Zealand at which the appellant is physically residing.
3: If an address included in the notice of appeal changes, the appellant must immediately notify the Authority in writing of the change of address. The Authority may rely on the latest address provided for the purpose of communications under this Part.
4: The Authority must not consider an appeal under section 47 section 47(2)
5: An appeal under section 47
49: Removal Review Authority
1: For the purposes of this Act there continues to be a Removal Review Authority.
2: The function of the Authority is solely to determine appeals brought under section 47
3: The Authority consists of such number of members, being barristers or solicitors of the High Court who have held practising certificates for at least 5 years, as the Governor-General determines from time to time on the advice of the Minister.
4: The members are appointed by the Governor-General on the advice of the Minister.
5: For the purposes of any appeal before it, the Authority consists of 1 member.
6: The provisions set out in Schedule 3B
7: The persons who are members of the Authority immediately before the commencement of this section continue to be members of the Authority.
50: Procedure in appeals
1: An appeal to the Authority under section 47
2: On any such appeal—
a: It is the responsibility of the appellant to ensure that all information, evidence, and submissions that the appellant wishes to have considered in support of the appeal are received by the Authority within the 42-day period for bringing the appeal; and
b: The Authority is not obliged to consider any information supplied by the appellant after that period, other than information provided by way of rebuttal or comment under subsection (6)
c: The Authority may treat the material provided by the appellant as constituting the full appeal, and is not obliged to give the appellant an opportunity to develop the appeal further.
3: On the lodging of an appeal under section 47
a: The Authority must give to the chief executive a copy of the notice of appeal and any information, evidence, or submissions lodged by the appellant; and
b: The Authority must allow the chief executive a specified time to—
i: Lodge with the Authority any file relating to the appellant that is held by the chief executive; and
ii: Lodge such other information, evidence, and submissions in relation to the matter under appeal as the chief executive thinks fit.
4: In determining the appeal, the Authority—
a: May seek and receive such information as it thinks fit, and consider information from any source; but
b: May not consider any information which relates to matters arising after the date the appeal was lodged unless it is satisfied that there are exceptional circumstances that justify the consideration of such matters.
5: The Authority must disclose to the appellant any material or information that the Authority proposes to take into account in determining the appeal if that material or information—
a: Is or may be prejudicial to the appellant; and
b: Is material lodged with the Authority by the chief executive, or is information obtained by the Authority from a source other than the appellant.
6: The Authority must give the appellant an opportunity to rebut or comment on any material or information disclosed under subsection (5)
7: Subsections (5) and (6)
51: Decision on appeal
1: As soon as practicable after coming to a decision on an appeal, the Authority must notify both the appellant and the chief executive in writing of its decision and the reasons for that decision.
2: Except as provided in section 115A
3: Unless a court otherwise directs, the Authority has no jurisdiction to reconsider an appeal after the appellant has been notified of its decision.
52: Where appeal allowed
1: Where the Authority decides that an appeal should be allowed, it may direct an immigration officer to take such steps as it considers necessary to give effect to its decision.
2: Without limiting subsection (1)
a: A residence permit subject to such requirements (if any) as the Authority may determine; or
b: A temporary permit for such period and subject to such conditions (if any) as the Authority may determine.
3: For the avoidance of doubt, the Authority may direct an immigration officer to grant the successful applicant a permit, and an immigration officer must accordingly grant the permit, even though the applicant is a person who would normally be prohibited from being granted a permit under section 7(1)
4: The Authority may direct the imposition of any requirement on the grant of a residence permit 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 requirement is of a kind authorised under Government residence policy at the time.
5: Section 18A(4) to (7)
6: The chief executive must ensure that the terms of a direction given under this section are complied with. Liability for removal
53: Liability for removal
1: A person unlawfully in New Zealand may be the subject of a removal order, and is liable to be removed from New Zealand under this Part, if—
a: The person (not being a person who has an appeal pending under section 47 or section 115A
i: For a period of 42 consecutive days; or
ii: In the case of a person who, while still lawfully in New Zealand, had lodged an application under section 31 section 31
b: An appeal under section 47 section 115A section 116 section 22(7))
c: The person is unlawfully in New Zealand by reason of the expiry of a limited purpose permit; or
d: The person is in New Zealand while a previously executed removal order is still in force in respect of the person; or
e: The person is a person to whom section 63 Mutual Assistance in Criminal Matters Act 1992
f: The person is a person to whom section 114K(4)(b)
2: This section is subject to—
a: Section 70
b: Section 129X
3: Nothing in this Part is to be construed as preventing voluntary departure from New Zealand at any time before a removal order is made and served.
54: Making of removal orders
1: The chief executive, or any immigration officer designated by the chief executive for the purposes of this section who is not disqualified under subsection (2) section 53(1) or section 70(3)
2: An immigration officer may not make a removal order in respect of a person if the officer has at any previous time been involved in determining an application by that person for a permit.
3: A removal order in the name of any person may also name any dependent child of that person if the chief executive or immigration officer is satisfied that section 53 or section 70(8) sections 141B to 141D
4: An immigration officer who was designated for the purposes of section 50
55: Content and effect of removal order
1: A removal order authorises any member of the Police to take into custody the person named in the order and to proceed to execute the order in accordance with section 59
2: A removal order must—
a: Give notice to the person named in the order that he or she is in New Zealand unlawfully and is subject to removal under this Part; and
b: Inform the person that, since he or she has not responded voluntarily to the obligation to leave New Zealand, removal will be effected by the State; and
c: Inform the person that he or she may contact a solicitor or counsel or responsible adult designated or nominated under section 141B
56: Service of removal order
1: Except where section 141C(d)
2: A removal order may be served at any reasonable time by day or night.
57: Currency of removal order once served
1: A removal order is in force from the time at which it is served, and remains in force until the expiry of 5 years after the date the person named in it is removed from New Zealand, unless it is cancelled before then under section 58
2: Despite subsection (1)
58: Cancellation of removal order
1: An immigration officer who has been designated by the chief executive for the purpose of making removal orders under section 54
2: The cancellation endorsement serves as a direction to any person who may be detaining the person in custody in reliance on the order to release the person from custody immediately.
3: An immigration officer who cancels a removal order must ensure that any person who is detaining the person named in the order in reliance on this Part releases the person immediately.
4: In the case of a person who has already been removed from or has left New Zealand, an immigration officer of the type referred to in subsection (1)
5: Nothing in this section gives any person a right to apply to an immigration officer for the cancellation of a removal order, and where any person purports to so apply—
a: The immigration officer is under no obligation to consider the application; and
b: Whether the application is considered or not,—
i: The immigration officer is under no obligation to give reasons for any decision relating to the application, other than the reason that this subsection applies; and
ii: Section 23 of the Official Information Act 1982
59: Execution of removal order
1: Any member of the Police may arrest without warrant a person on whom a removal order has been served and detain that person in accordance with this section.
2: The purpose of arrest and detention under this section is to execute the removal order by placing the person on a craft that is leaving New Zealand.
3: A person arrested and detained under this section may be detained for up to 72 hours without further authority than this section pending their placement on a craft that is leaving New Zealand.
4: Once the person has been placed on a craft that is leaving New Zealand, a member of the Police may make appropriate arrangements to ensure that the person does not leave the craft before it leaves New Zealand, and may continue to detain the person on board the craft for that purpose.
5: Where an unmarried person who is under 17 years of age is to be removed from New Zealand otherwise than in the company of a parent or guardian, an immigration officer must make all reasonable efforts to contact a parent or guardian of the person and to agree on suitable travelling arrangements for the person.
6: If no such agreement is arrived at, in making the travelling arrangements for the person the immigration officer must consult with and have regard to the advice of—
a: The responsible adult nominated in respect of that person in accordance with section 141B
b: If that is not possible or practicable, the Director-General of Social Welfare.
60: Release or extended detention if craft unavailable, etc, within 72-hour period
1: Where a person is arrested and detained under section 59
a: No craft will be available within the 72-hour period specified in that section; or
b: A craft that was available is no longer available; or
c: It is not practicable for the person to be placed on a craft within the 72-hour period; or
d: For some other reason the person is unable to leave New Zealand within the 72-hour period,— then, unless the person is released, an immigration officer must arrange for the person to be brought before a District Court Judge for the purpose of obtaining a warrant of commitment.
2: A warrant of commitment issued under this section authorises the detention of the person named in it for a period of 7 days or such shorter period as the Judge thinks necessary to enable the execution of the removal order.
3: A Judge may issue a warrant of commitment on the application of an immigration officer if satisfied on the balance of probabilities that the person in custody is the person named in the removal order and that any of the following applies:
a: A craft is likely to be available, within the proposed period of the warrant of commitment, to take the person from New Zealand:
b: The practical difficulties that meant that the person could not be placed on an available craft within 72 hours are continuing and are likely to continue, but not for an unreasonable period:
c: The other reasons the person was not able to leave New Zealand within the 72-hour period are still in existence and are likely to remain in existence, but not for an unreasonable period:
d: In all the circumstances it is in the public interest to make a warrant of commitment.
4: If at the expiry of a warrant of commitment made under this section the person has still not left New Zealand, then, unless released, the person must be again brought before a Judge for an extension of the warrant of commitment, in which case subsections (2) and (3)
5: If a person is brought before a Judge under subsection (4)
a: Such conditions as to the person's place of residence or as to reporting at specified intervals to an office of the Department of Labour or a Police station as the Judge think fits; and
b: Such other conditions as the Judge may think fit to impose for the purpose of ensuring compliance with the residence and reporting conditions.
6: Unless the Judge considers that there are exceptional circumstances that justify the person's release, a Judge may not order the release of a person under subsection (5)
a: The person is currently a refugee status claimant; but
b: The claim was made only after the removal order was served.
7: No person may be detained under 1 or more warrants of commitment under this Part for a consecutive period of more than 3 months.
8: In making any decision under this section a Judge is to seek to achieve an outcome that ensures a high level of compliance with immigration laws.
9: No release of a person under this section in any way affects their liability for later detention and removal.
61: Release from prison into immigration detention
If a person who has been served with a removal order—
a: Is held in a penal institution undergoing imprisonment; and
b: Is due to be released from that imprisonment,— then, on the request of any member of the Police who indicates an intention to execute the removal order under section 59 section 59
62: Form of custody
1: Every person who is placed in custody under section 59
a: In the case of an unmarried person who is under 17 years of age, in—
i: Any residence (within the meaning of section 2(1) of the Children, Young Persons, and Their Families Act 1989
ii: Any other premises agreed to by an immigration officer and by the parent or guardian of the person, or the adult nominated under section 141B
b: In any other case, in—
i: Premises approved by the chief executive; or
ii: A Police station.
2: Every person who is to be detained in custody pursuant to a warrant of commitment made under section 60
a: In a penal institution; or
b: In any other premises approved for the purpose by the Judge before whom the person is brought.
3: A person detained in a penal institution under this Part is to be treated for the purposes of the Penal Institutions Act 1954
63: Removal where temporary permit granted for purposes of
Mutual Assistance in Criminal Matters Act 1992
1: This section applies to a person who is in New Zealand unlawfully by reason of the expiry of a temporary permit that was granted to the person subject to the condition under section 27A(2)
2: Such a person cannot appeal to the Removal Review Authority under section 47
3: Unless a person to whom this section applies leaves New Zealand voluntarily within 7 days of becoming unlawfully in New Zealand, a removal order may be made, served, and executed in respect of that person at any time following the expiry of that 7-day period. Powers of immigration officers in relation to persons suspected of being in New Zealand unlawfully
64: Power to require production of certain information by departments of State and other bodies
1: Where an immigration officer has good cause to suspect that—
a: A particular person is in New Zealand unlawfully; or
b: Particular premises are being occupied or have been occupied (whether for residential purposes or otherwise) by a person who is in New Zealand unlawfully,— the officer may prepare a certificate in the prescribed form to that effect.
2: A certificate prepared under subsection (1)(a)
3: On production by an immigration officer of a certificate prepared under subsection (1) First Schedule
a: In the case of a certificate prepared under subsection (1)(a)
b: In the case of a certificate prepared under subsection (1)(b)
4: Where, in respect of any department of State or other body specified in the first column of the First Schedule subsection (3)
5: Subsection (3)
65: Power to require surrender of documents from suspected person
1: If an immigration officer has good cause to suspect that a person is in New Zealand unlawfully and is liable to be removed from New Zealand under this Part, the officer may, for the purpose of establishing whether or not that is the case, and after informing the person of that suspicion, request the person—
a: To give their full name (or names, where the person is known by more than 1 name), date of birth, country of birth, nationality, and residential address:
b: To provide to the officer—
i: Any passport or certificate of identity relating to the person, whether or not it also relates to any other person:
ii: Any documentary or other evidence of the person's identity:
iii: 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 in New Zealand unlawfully:
iv: Any travel tickets, or cash or security in lieu of travel tickets, held by or on behalf of the suspect person:
c: If the person does not currently have in his or her possession the documents or other things referred to in paragraph (b)
2: If the person refuses or fails without reasonable excuse to comply with any request under subsection (1)
3: If the refusal or failure still persists, any member of the Police may arrest the person without warrant and place the person in custody.
4: If a person has been arrested and placed in custody under this section because the person failed to identify himself or herself or failed to produce relevant documents to confirm his or her identity, an immigration officer must ensure that, unless the person's identity has been confirmed and the person removed from New Zealand under section 59
5: The Judge may determine who the person is, and both before and after doing so may make such orders and give such directions as the Judge thinks fit.
66: Power to require surrender of documents from third party
1: Where a person has refused or failed to surrender a passport or certificate of identity under section 65
2: A person who fails without reasonable excuse to comply with a request made under subsection (1)
3: If the third party surrenders any document under this section then no action against that person lies in any court in respect of that surrender, notwithstanding anything in any other Act or rule of law.
67: Use and return of surrendered material
1: Any document or other material surrendered to an immigration officer under section 65 or section 66
a: Confirming the identity of the suspected person:
b: Confirming the immigration status of the suspected person:
c: Effecting the removal of the suspected person from New Zealand if a removal order is made and served:
d: Proceedings before an Authority, the Tribunal, or a court.
2: The document or other material must be returned to the suspected person or the person who surrendered it—
a: If the immigration officer becomes satisfied that the suspected person is not unlawfully in New Zealand; or
b: The purpose for which it was surrendered has been served; or
c: On the removal of the person from New Zealand, to the extent that it has not been used in effecting that removal and is still available to be returned,— unless the document or other material is known to be the property of some third party, in which case the document or material may be provided to that third party. Transitional provisions
68: Matters may be completed under former
Part II The repeal of the former Part II section 34 of the Immigration Amendment Act 1999 Part II section 69
69: Existing removal orders
1: Where a removal order has been served on a person at any time before 1 October 1999,—
a: The person may exercise any rights of appeal conferred on that person by sections 63A and 63B
b: Those sections, and any other relevant sections as in force before that date, continue to apply to any such appeal as if they were still in force.
2: Where a removal order has been served on a person at any time before 1 October 1999, and either—
a: That person has not exercised or does not exercise any right of appeal conferred on that person by section 63A or section 63B
b: That person has unsuccessfully exhausted any appeal rights under those sections,— the person is then liable to be removed from New Zealand under this Part (as enacted by section 34 of the Immigration Amendment Act 1999 section 47
70: Persons unlawfully in New Zealand as at 1 October 1999
1: This section applies to any person who is in New Zealand unlawfully immediately before 1 October 1999 and in respect of whom a removal order is not in force at that time.
2: This section ceases to apply to a person once the person leaves New Zealand.
3: The provisions of this Part (as substituted by section 34 of the Immigration Amendment Act 1999
a: The person may appeal to the Removal Review Authority under section 47 paragraph (b)
b: If before 19 August 2000 an immigration officer serves a notice in the prescribed form on the person that the person is obliged to leave New Zealand or appeal to the Removal Review Authority under section 47
i: The person may appeal under section 47
ii: If the person fails to appeal within 42 days after being served with the notice (or if any appeal made is unsuccessful, and section 53(1)(b) and the provisions of this Part apply accordingly with any necessary modifications:
c: At any time on or after 1 October 2000, the person may be the subject of a removal order, and is liable to be removed from New Zealand under this Part, unless—
ii: The person has at the time an appeal pending under section 47
iii: The person is at the time no longer unlawfully in New Zealand.
4: The chief executive of the Department of Labour must communicate the obligation on persons to whom this section applies to leave New Zealand, and the implications for persons who do not meet the obligation, in such a way that a reasonable opportunity is created for all persons to whom this section applies to know about the obligation and its implications.
5: Any notice given under subsection (3)(b) section 47
3: New
Part 4A
35: New Part inserted
This section inserted Part 4A 114A
4: Amendments to
Part 5
36: Appeal against decision of Removal Review Authority on question of law
1: Section 115A subsection (3)
3: On any such appeal the High Court is to determine the question or questions of law and do any 1 or more of the following things:
a: Confirm the decision in respect of which the appeal has been brought:
b: Remit the matter to the Removal Review Authority with the opinion of the High Court on it, together with any directions as to how the matter should be dealt with:
c: Make such other orders in relation to the matter as it thinks fit.
2: Section 115A subsection (4)
5: Amendments to
Part 6
37: Detention and departure of persons refused permits, etc
1: This subsection substituted s 128(9)(b) (c)
2: This subsection substituted s 128(13) 128(13A) (13B) 128(14) 128(14A)
38: Procedure under
section 128
1: This subsection substituted s 128A(2)(a)
2: This subsection amended s 128A(2)(b)
3: This subsection substituted s 128A(3)(b)
4: This subsection inserted s 128A(10A)
5: This subsection amended s 128A(12)
39: Detention of persons whose eligibility for permit is not immediately ascertainable
1: This subsection substituted s 128B(5)(a)
2: This subsection inserted s 128B(11A)
6: New
Part 6A
40: New Part inserted
The principal Act is amended by inserting, after section 129
VIA: Refugee determinations
129A: Object of this Part
The object of this Part is to provide a statutory basis for the system by which New Zealand ensures it meets its obligations under the Refugee Convention.
129B: Definitions
1: In this Part, unless the context otherwise requires: Authority section 129N Claim Claimant refugee status claimant Convention section 2 Refugee status officer officer section 129E subsection (3) of that section Subsequent claim
2: For the purposes of this Part, a claim may not be treated as finally determined at any time before the expiry of the appropriate appeal period specified in section 129O(3)
129C: Refugee status to be determined under this Part
1: Every person in New Zealand who seeks to be recognised as a refugee in New Zealand under the Refugee Convention is to have that claim determined in accordance with this Part.
2: Every question as to whether a person in New Zealand should continue to be recognised as a refugee in New Zealand under the Refugee Convention is to be determined in accordance with this Part.
129D: Refugee Convention to apply
1: In carrying out their functions under this Part, refugee status officers and the Refugee Status Appeals Authority are to act in a manner that is consistent with New Zealand's obligations under the Refugee Convention.
2: The text of the Refugee Convention is set out in the Sixth Schedule Claims for refugee status
129E: Claim to be determined by refugee status officer
1: Every claim to be recognised as a refugee in New Zealand is to be determined by a refugee status officer.
2: The chief executive of the Department of Labour is from time to time to designate as refugee status officers such persons employed in the Department as the chief executive considers necessary for the purposes of this Part.
3: No person may be designated as a refugee status officer, or act as a refugee status officer, at any time when the person is also currently employed in considering applications for permits under this Act or in administering the removal provisions in Part II
129F: Functions of officers considering claims
1: On receipt of a claim that is not a subsequent claim, it is the function of a refugee status officer to, as appropriate,—
a: Determine whether the claimant is a refugee within the meaning of the Refugee Convention:
b: Determine whether the claimant should be excluded from the protection of the Convention because of the application of any of Articles 1D, 1E, and 1F of the Convention
2: On receipt of a subsequent claim, it is the function of an officer to—
a: Determine whether, since the most recent claim by the person, circumstances in the claimant's home country have changed to such an extent that the subsequent claim is based on significantly different grounds to the previous claim; and
b: Only if the officer is satisfied that circumstances have so changed, determine any matter specified in subsection (1)
129G: How claim made and handled
1: A claim is made as soon as a person signifies his or her intention to seek to be recognised as a refugee in New Zealand to a representative of the Department of Labour or to a member of the Police.
2: Once a claim is made, the claimant must, on request by a refugee status officer, confirm the claim in writing in the prescribed manner.
3: A claimant must as soon as is possible endeavour to provide to an officer all information relevant to his or her claim, including—
a: A statement of the grounds for the claim; and
b: An indication of whether any other members of the claimant's immediate family who are in New Zealand are also seeking recognition as refugees and, if so, whether any such claim is on different grounds.
4: A claimant must provide an 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 timely manner of a change in either of those addresses. The officer may rely on the latest address so provided for the purpose of communications under this Part.
5: It is the responsibility of the claimant to establish the claim, and the claimant must ensure that all information, evidence, and submissions that the claimant wishes to have considered in support of the claim are provided to the refugee status officer before the officer makes a determination on the claim.
6: For the purpose of determining a claim, an officer—
a: May seek information from any source; but
b: Is not obliged to seek any information, evidence, or submissions further to that provided by the claimant; and
c: May determine the claim on the basis of the information, evidence, and submissions provided by the claimant.
7: Subject to this Part and to any regulations made under it, and to the requirements of fairness, an officer may determine his or her own procedures on a claim.
129H: Powers of refugee status officers
1: In carrying out his or her functions under this Part, a refugee status officer may—
a: Require a claimant to supply such information, and within such times, as the officer reasonably requires:
b: Require the claimant to produce such documents in the claimant's possession or within the claimant's ability to obtain as the officer requires:
c: Require the claimant to consent to the release by any other person of any relevant documents or information relating to the claimant:
d: If the officer has good cause to suspect that a person other than the claimant has in his or her possession or control any document of the claimant (including any passport or travel document), in the prescribed manner request the person to produce any such document:
e: Require the claimant to provide or allow the taking of such fingerprints or photographs of the claimant as are reasonably necessary for the purpose of ascertaining or confirming the claimant's identity or nationality:
f: Require the claimant to attend an interview.
2: A person who is requested to produce a document under subsection (1)(d)
3: If a claimant is detained in custody, a refugee status officer may require the relevant member of the Police, Superintendent or other officer in charge of the penal institution, or other person having custody of the claimant, to—
a: Provide the officer with access to the place where the claimant is being detained, and to the claimant; and
b: Produce the claimant for interview.
4: The member of the Police, Superintendent, or other officer concerned must comply with any such requirement, and make appropriate facilities available for an interview.
5: Where a claimant who is required to attend an interview fails to attend at the appointed time and place, the officer may determine the claim without conducting the interview.
6: An officer may decide the order in which claims are to be handled, and no decision on a claim is to be called into question on the basis that it ought to have been handled earlier or later than any other claim or category of claim.
129I: Decisions on claims
1: The decision of a refugee status officer on a claim is final, except insofar as it is overturned by the Refugee Status Appeals Authority on an appeal under section 129O
2: An officer must notify a claimant, in the prescribed manner, of—
a: The officer's decision on the claim; and
b: The reasons for that decision; and
c: The claimant's right of appeal to the Authority.
3: Once the decision is made and notified to the claimant, the officer may not re-open the claim for further consideration.
129J: Limitation on subsequent claims for refugee status
1: A refugee status officer may not consider a claim for refugee status by a person who has already had a claim for refugee status finally determined in New Zealand unless the officer is satisfied that, since that determination, circumstances in the claimant's home country have changed to such an extent that the further claim is based on significantly different grounds to the previous claim.
2: In any such subsequent claim, the claimant may not challenge any finding of credibility or fact made in relation to a previous claim, and the officer may rely on any such finding.
129K: Claim not to be accepted from holder of residence permit or New Zealand citizen
1: A refugee status officer may not consider a claim for refugee status by a person who is—
a: The holder of a residence permit; or
b: A New Zealand citizen; or
c: Exempt under section 12
2: This section does not affect the power of an officer to determine the question of such a person's continued refugee status arising under section 129L Additional functions of refugee status officers in relation to continuation, etc, of refugee status
129L: Additional functions of refugee status officers
1: In addition to their function of determining claims for refugee status, refugee status officers also have the following functions:
a: Determining whether the Refugee Convention has ceased to apply to a person who has previously been recognised as a refugee by a refugee status officer (but not by the Refugee Status Appeals Authority) in terms of Article 1C of the Convention
b: Determining whether a decision to recognise a person as a refugee was properly made, in any case where it appears that the recognition given by a refugee status officer (but not by the Authority) may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information, and determining to cease to recognise the person as a refugee in such a case if appropriate:
c: Determining whether a person already recognised as a refugee should subsequently be excluded from the protection of the Convention, in any case where the matters dealt with in Articles 1D, 1E, and 1F of the Convention
d: Determining whether, in the light of any relevant international arrangement or agreement, a person who may have lodged a claim for refugee status in another country, or had the opportunity to lodge such a claim, may have a claim for refugee status accepted for consideration in New Zealand:
e: Determining, in the case of a person who has already been recognised as a Convention refugee by a country other than New Zealand, whether that person may avail himself or herself of the protection of that country:
f: Applying to the Refugee Status Appeals Authority for a determination as to whether—
i: The Convention has ceased to apply, in terms of Article 1C
ii: The Authority should cease to recognise a person as a refugee, in any case where that recognition may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information:
iii: Any of Articles 1D, 1E, and 1F of the Convention
2: Refugee status officers also have the functions specified in paragraphs (a) to (c) of subsection (1)
a: Persons who, before 1 January 1991, were recognised as refugees following consideration of their claims by the Interdepartmental Committee on Refugees; and
b: Persons recognised as refugees outside New Zealand who have travelled to New Zealand as mandated refugees.
129M: Procedures to be followed in carrying out additional functions
When carrying out any function under section 129L
a: A refugee status officer must take all reasonable steps to notify the person concerned in the prescribed manner of the matter that is being considered; and
b: Except in the case of a function described in section 129L(1)(f), sections 129G, 129H, and 129I(2) and (3) Appeals to refugee status appeals authority
129N: Refugee Status Appeals Authority
1: For the purposes of this Part there continues to be a body called the Refugee Status Appeals Authority.
2: The main functions of the Authority are—
a: To hear appeals brought under section 129O
b: To make determinations in relation to a person's refugee status on applications made by refugee status officers under section 129L(1)(f)
3: The Authority is to consist of—
a: Such number of members as the Governor-General determines from time to time on the advice of the Minister, being barristers or solicitors of the High Court who—
i: Have held practising certificates for at least 5 years; or
ii: Have other equivalent or appropriate experience (whether in New Zealand or overseas); and
b: One ex officio member who is the representative of the United Nations High Commissioner for Refugees.
4: The members referred to in subsection (3)(a)
5: For the purposes of any matter before it the Authority is normally to consist of 1 member.
6: The chairperson 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 chairperson must designate—
a: The members who are to hear and determine the case; and
b: The member who is to be chairperson for the purposes of the hearing and determination.
7: The ex officio member under subsection (3)(b) subsection (5) or subsection (6)
8: The provisions set out in Schedule 3C
129O: Appeals to Refugee Status Appeals Authority
1: A person whose claim or subsequent claim has been declined by a refugee status officer, or whose subsequent claim has been refused to be considered by an officer on the grounds that circumstances in the claimant's home country have not changed to such an extent that the subsequent claim is based on significantly different grounds to a previous claim, may appeal to the Refugee Status Appeals Authority against the officer's decision.
2: A person who is dissatisfied with a decision of a refugee status officer on any of the matters referred to in section 129L(1)(a) to (e) and (2)
3: An appeal must be lodged with the Authority—
a: Within 5 working days after the appellant is notified under section 129I subsection (4)
b: Within 10 working days after receiving notification of the decision under that section, or within such further time as may be allowed under subsection (4)
4: The Authority may extend the time for lodging an appeal where satisfied that special circumstances warrant such an extension.
129P: Procedure on appeal
1: It is the responsibility of an appellant to establish the claim, and the appellant must ensure that all information, evidence, and submissions that the appellant wishes to have considered in support of the appeal are provided to the Authority before it makes its decision on the appeal.
2: The Authority—
a: May seek information from any source; but
b: Is not obliged to seek any information, evidence, or submissions further to that provided by the appellant; and
c: May determine the appeal on the basis of the information, evidence, and submissions provided by the appellant.
3: An appellant must provide the Authority with a current address in New Zealand to which communications relating to the appeal may be sent and a current residential address in New Zealand, and must notify the Authority in timely manner of a change in either of those addresses. The Authority may rely on the latest address so provided for the purpose of communications under this Part.
4: In its consideration of an appeal or other matter under this Part, the Authority may request the chief executive of the Department of Labour to seek and provide relevant information.
5: The Authority may dispense with an interview of the appellant or other affected person only if both—
a: The appellant or other affected person has been interviewed by a refugee status officer in the course of determining the relevant matter at first instance or, having been given an opportunity to be interviewed, failed to take that opportunity; and
b: The Authority considers that the appeal or other contention of the person affected is prima facie manifestly unfounded or clearly abusive.
6: Despite subsection (5)
7: If a summons is issued by the Authority under section 4D of the Commissions of Inquiry Act 1908
8: The Authority may decide the order in which appeals or other matters are to be heard, and no decision on an appeal or other matter is to be called into question on the basis that the appeal or other matter ought to have been heard or decided earlier or later than any other appeal or matter or category of appeal or matter.
9: In any appeal involving a subsequent claim, the claimant may not challenge any finding of credibility or fact made by the Authority in relation to a previous claim, and the Authority may rely on any such finding.
129Q: Decisions of Authority
1: Where the Authority consists of more than 1 member on an appeal or other matter, the decision on that matter must be a majority decision.
2: If the members are evenly divided, the matter must be determined in favour of the appellant or other person affected.
3: A decision of the Authority must be given in writing, and include reasons both for the decision and for any minority view.
4: The Authority must notify the appellant or other affected person of its decision, and provide a copy of the decision.
5: A decision of the Authority is final once notified to the appellant or other affected person. Functions of authority otherwise than on appeals
129R: Functions of Authority in relation to continuation, etc, of refugee status
In addition to the function of hearing appeals from decisions of refugee status officers in relation to refugee status, the Authority also has the function of determining applications made by refugee status officers under section 129L(1)(f)
a: The Refugee Convention has ceased to apply, in terms of Article 1C, to a person who has previously been recognised as a refugee by the Authority; or
b: The Authority should cease to recognise a person as a refugee, in any case where the earlier recognition by the Authority of the person as a refugee may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information; or
c: Any of articles 1D, 1E, and 1F of the Convention
129S: Procedures to be followed in carrying out non-appellate functions
When carrying out any function under section 129R
a: The Authority must take reasonable steps to notify the person concerned in the prescribed manner of the matter that is being considered; and
b: Section 129P section 129O General provisions relating to claims, etc
129T: Confidentiality to be maintained
1: Subject to this section, confidentiality as to the identity of the claimant or other person whose status is being considered under this Part, and as to the particulars of their case, must at all times, both during and subsequent to the determination of the claim or other matter, be maintained by refugee status officers, the Authority, other persons involved in the administration of this Act, and persons to whom particulars are disclosed under subsection (3)(a) or (b)
2: Compliance with subsection (1)
3: Subsection (1)
a: To a person necessarily involved in determining the relevant claim or matters; or
b: To an officer or employee of a Government department or other Crown agency whose functions in relation to the claimant or other person require knowledge of those particulars; or
c: To the United Nations High Commissioner for Refugees or a representative of the High Commissioner; or
d: In dealings with other countries for the purpose of determining the matters specified in section 129L(d) and (e)
e: To the extent that the particulars are published in a manner that is unlikely to allow identification of the person concerned, whether in a published decision of the Authority under clause 12 of Schedule 3C
f: If there is no serious possibility that the safety of the claimant or any other person would be endangered by the disclosure in the particular circumstances of the case.
4: Nor does subsection (1)
5: A person who without reasonable excuse contravenes subsection (1) subsection (1)
129U: Special provision relating to refugee status claimants granted temporary permits
1: This section applies to any person who—
a: Is a refugee status claimant to whom a temporary permit has been granted on or after 1 October 1999 (whether before or after the person became a claimant); or
b: Having been a person to whom paragraph (a)
2: A person to whom this section applies may not, whether before or after the expiry of the temporary permit,—
a: Apply for a further temporary permit or for a permit of a different type while in New Zealand; or
b: While in New Zealand, request a special direction, or a permit under section 35A
c: Bring any appeal under this Act to the Residence Appeal Authority.
3: Despite subsection (2)(a)
4: Nothing in this section prevents a person from bringing an appeal to the Removal Review Authority under Part II
5: This section ceases to apply to a person if and when his or her claim under this Part to be recognised as a refugee is successful.
129V: Effect of claimant leaving New Zealand
If a claimant leaves New Zealand, his or her claim or appeal is to be treated as withdrawn.
129W: Immigration matters not within functions of refugee status officers and Authority
The following are matters for the Minister and any appropriate immigration or visa officer only, and are not within the functions, powers, or jurisdiction of refugee status officers and the Authority:
a: The grant or issue or giving under this Act of any visa, permit, exemption, or special direction:
b: The revoking or cancellation under this Act of any visa, permit, exemption, or special direction:
c: The conditions to be attached to any visa, permit, exemption, or special direction:
d: The removal or deportation of any person from New Zealand:
e: Any issue of a humanitarian nature that arises outside the context of a decision relating to the recognition of refugee status in New Zealand.
129X: Prohibition on removal or deportation of refugee or refugee status claimant
1: No person who has been recognised as a refugee in New Zealand or is a refugee status claimant may be removed or deported from New Zealand under this Act, unless the provisions of Article 32.1 or Article 33.2 of the Refugee Convention
2: In carrying out their functions under this Act in relation to a refugee or refugee status claimant, immigration officers must have regard to the provisions of this Part and of the Refugee Convention.
129Y: Regulations
1: The Governor-General may from time to time, by Order in Council, make regulations—
a: Prescribing procedures to be followed for the purposes of this Part:
b: Providing for such other matters as are contemplated by or necessary for giving full effect to the Refugee Convention, and to the provisions of this Part and for its due administration.
2: Without limiting the generality of subsection (1)
a: Specify the manner in which any claim, appeal, or other matter is to be made:
b: Provide for the manner of service of notices and documents, which may differ from the requirements of section 146
c: Provide for the availability and use of interpreters:
d: Provide for matters relating to communications with claimants and other affected persons:
e: Specify the information that must be supplied to claimants and other affected persons, including information concerning their rights and concerning procedures under this Part:
f: Make provision for the representation of minors:
g: Make provision for representation generally:
h: Specify the circumstances in which interviews must be held and when they need not be held:
i: Specify the periods, or minimum or maximum periods, within which or before or after which certain things must or may not be done:
j: Specify the obligations of claimants and other affected persons as to the provision of contact details, information, and documents:
k: Specify the manner in which a claim or other matter may be withdrawn:
l: Providing for any special matters relating to the handling of claims, appeals, or other matters when the claimant or other affected person is in custody:
m: Specifying procedures to be followed in relation to claims, appeals, and other matters not completed before the commencement of this Part. Claims and appeals completed before 1 October 1999
129Z: Completed claims and appeals may not be challenged
No determination as to a person's refugee status in New Zealand made before the commencement of this Part by an employee of the Department of Labour or by the Refugee Status Appeals Authority (as constituted before the commencement of this Part) may be challenged on the ground that the employee or the Authority had no legal or statutory authority to make the decision in question. Transitional provisions
129ZA: Uncompleted claims and appeals
1: This Part applies on and from 1 October 1999 to any claim, appeal, or other matter relating to refugee status that had been made to the Department of Labour or to the Refugee Status Appeals Authority before that date but which had not been finally determined as at that date.
2: Despite subsection (1)
a: Where a person had an ongoing right to appeal a decision on a claim as at 1 October 1999, the period during which the appeal may be made is not affected by subsection (1)
b: Where any appeal was part-heard as at 1 October 1999, the rules relating to that appeal continue to be those that applied immediately before that date.
129ZB: Continuation of membership of Refugee Status Appeals Authority
1: The persons who immediately before 1 October 1999 were members of the Refugee Status Appeals Authority continue as members of the Authority on the same terms and conditions as applied before that date.
2: The person who immediately before 1 October 1999 was chairperson of the Refugee Status Appeals Authority continues as chairperson of the Authority.
3: Where a member of the Authority to whom subsection (1)
7: Amendments to
Part 7
41: Special directions
1: Section 130(1) any other immigration officer or to any visa officer
2: Section 130 subsection (1)
1A: The Minister may from time to time give in writing a special direction classifying persons who require transit visas for the purposes of section 14E section 14E(2B)
42: Delegation of powers of Minister
1: Section 131 subsection (1)
1: The Minister may from time to time, by writing under the Minister's hand, delegate to any immigration officer or any visa officer all or any of the powers conferred upon the Minister by this Act, except this power of delegation and the powers conferred by or referred to in Part IVA sections 13B(1)(b), 13C(2), 14B(2), 17A(2), 18A(3), 18B(3) and (4), 18E(5), 20(1), 20A(1), 31(3), 49(3) and (4), 72, 73, 91, 92, and 129N(3) and (4) clauses 1(2), 1A, and 1B of Schedule 3A clauses 1(2), 1A, and 1B of Schedule 3B clauses 1(2), 2, and 3 of Schedule 3C
2: Section 131 subsection (2) (6) immigration officer or visa officer
43: Designation of officers, etc, by chief executive
The principal Act is amended by inserting, after section 133
133A:
1: Every designation by the chief executive of a person as an immigration officer, visa officer, or refugee status officer, or for any other purpose under this Act, is revocable in writing at will.
2: Any such designation continues in force according to its tenor until it is revoked, notwithstanding that the chief executive by whom it was made may have ceased to hold office, and continues to have effect as if made by the successor in office of that chief executive.
44: Powers of entry and search
Section 137(1) under section 20(2) or notice under section 34C(3)(a)
45: Special provisions relating to custody
1: Section 140(2) paragraph (a)
a: A person on whom a removal order has been served is in custody under Part II .
2: Section 140(4) section 60 or section 62 of this Act section 141B
3: This subsection inserted s 140(5)
46: Additional provisions relating to custody in approved premises
This section inserted s 140A
47: Special powers of member of Police pending removal or deportation
Section 141
a: By omitting from subsection (1) Subject to subsection (2) of this section
b: By repealing subsection (2)
48: Disclosure of immigration information to Department of Social Welfare
Section 141A(3)(b) temporary permit or limited purpose permit
49: New sections inserted
The principal Act is amended by inserting, after section 141A
141B: Children to have responsible adult to represent their interests, etc
1: In any matters of the kind referred to in subsection (2) sections 141C and 141D minor
a: The minor's interests are to be represented by any such parent; and
b: The parent is the responsible adult for the minor for the purposes of this section and sections 141C and 141D
2: If a minor does not have a responsible adult to represent the minor's interests by virtue of subsection (1)
a: The making, serving, and execution of a removal order or a deportation order in the minor's name:
b: The revocation of the minor's residence permit:
c: Any claim by the minor to be recognised as a refugee:
d: Any appeal by the minor under this Act:
e: Any detention of the minor under this Act.
3: The responsible adult is to be nominated by an Authority, the Tribunal, an immigration officer, a refugee status officer, or a Judge, as the case may require.
4: A person may be nominated as a responsible adult under subsection (2)
a: The person is 20 years of age or more; and
b: Except in the case of a parent or guardian of the minor, the person is a New Zealand citizen or the holder of a residence permit; and
c: The person is any of the following:
i: A parent, guardian, or relative of the minor; or
ii: A person suggested by the minor; or
iii: Any other person having responsibility for the minor or who is otherwise suitable to represent the minor's interests; or
iv: If no other appropriate person is available under this subsection, a person designated by the Director-General of Social Welfare; and
d: Except in the case of a parent or guardian of the minor, the person agrees in writing to be nominated as a responsible adult.
5: Should the need arise, and after such consultation as is reasonable in the circumstances, a substitute responsible adult may be nominated in accordance with the requirements of this section.
6: The role of a responsible adult relates to those matters or proceedings in relation to which the nomination was made, and in any event the role finishes when the minor leaves New Zealand.
7: A responsible adult who is representing the interests of a minor in any matter of a kind referred to in subsection (2)
141C: Role and rights of responsible adult
The following provisions apply to any dealings under this Act with a minor who has a responsible adult to represent his or her interests:
a: The responsible adult may appeal to an Authority or the Tribunal under any of Parts II, III, IV, and VIA section 115A
b: The responsible adult may appear and be heard in any District Court proceedings under this Act relating to the minor:
c: To the extent practicable given the level of maturity and understanding of the minor, the responsible adult must attempt to elicit the views of the minor and make them known on behalf of the minor, where appropriate:
d: Any document required to be served on or notified to the minor is instead to be served on or notified to the responsible adult, and such service or notification is deemed to be service on or notification to the minor.
141D: Views of minor to be considered
In any proceedings or process of a kind referred to in section 141B(2)
a: An opportunity must be given, so far as is practicable, for the minor to express his or her views on the matter, whether personally or through a responsible adult; and
b: Due weight is to be given to those views having regard to the age and level of maturity and understanding of the minor.
50: Offences
1: Section 142(c) immigration officer or visa officer or refugee status officer
2: This subsection inserted s 142(fa)
3: Section 142(h) immigration officer
a: Where they first occur, the words or a refugee status officer
b: Where they secondly occur, the words or refugee status officer
4: Section 142 ; or paragraph (i)
j: Wilfully misleads any person or acts negligently or unprofessionally (including charging excessively) while assisting that person, for financial reward, in any application for a permit or visa or in any proceedings before the Removal Review Authority, the Residence Appeal Authority, or the Refugee Appeals Authority.
51: Evidence in proceedings
1: Section 143(1)
a: By omitting the words or the Residence Appeal Authority or the Removal Review Authority or an Authority
b: By inserting in paragraph (c) a specified date, or was granted for an express purpose,
c: By inserting in paragraph (i) left New Zealand , or was or was not in New Zealand or had or had not left New Zealand at any particular time or for or during any particular period
d: By omitting from paragraph (j) section 63A or section 63B of this Act section 47
e: By adding to paragraph (k) ; or
2: Section 143 subsection (1)
1A: In any proceedings relating to any matter under Part VIA
a: The person has or has not, as at any material time, claimed to be a refugee in New Zealand (or elsewhere); or
b: The person has or has not, as at any material time, been recognised as a refugee in New Zealand (or elsewhere); or
c: The person, while in New Zealand, produced or surrendered to an immigration officer or refugee status officer any passport, certificate of identity, or other document that was forged or obtained fraudulently; or
d: The person has, or has not, lodged an appeal under section 129O section 129L section 129R is to be treated as proof of the truth of the statement in the absence of proof to the contrary established on the balance of probabilities.
3: Section 143(2) the Court or the Tribunal or the Authority
4: Section 143(3) or the Residence Appeal Authority or the Removal Review Authority or an Authority
5: Section 143(4B) section 50 of this Act Part II
6: Section 143
7: For the purposes of any proceedings under this Act, section 6(2) of the Evidence Amendment Act 1952
a: If it considers if fair and equitable to do so, accept as evidence any statement, document, or information tendered in respect of a document to which that section 6(2)
b: Determine the credibility or weight (if any) to be given in the proceedings to the document concerned and its contents.
52: General penalty for offences
1: Section 144(1) and 142(g) 142(g), and 42(j)
2: This subsection inserted s 144(1A)
53: Special provisions relating to judicial review of decisions under this Act
This section inserted s 146A
54: New sections substituted
The principal Act is amended by repealing section 149
148A: Fees
1: Without limiting the generality of the power to prescribe fees set out in section 150(b)
2: Fees may apply to an individual person or application, or to a group of persons or applications, or otherwise.
3: Fees may not be imposed on refugee status claimants for any matter relating to refugee status.
4: Fees may be prescribed in a way, or at a level or levels, or using 1 or more methods of calculation, that reflects the variable nature of the costs or potential costs that give rise to the need for each fee, and the range of factors that influence those costs.
5: Without limiting subsection (4)
a: Differ depending on whether or not a special or urgent service is provided:
b: Include more than 1 level of fee for the same service provided in different ways, or provided in or in respect of difference places:
c: Differ for otherwise similar services provided in different ways:
d: Differ for otherwise similar services provided to different categories of person:
e: Differ depending on the amount of service required or the components of the service required for the particular person or class of person:
f: Differ depending on whether a group of people (including a family group) are requesting or obtaining the services in question:
g: Differ depending on whether an agent is used to deliver or help deliver the service concerned.
6: Without limiting the way in which fees may be set, a fee may be set at a level or in a way that—
a: Is determined by calculations that involve an averaging of costs or potential costs:
b: Takes into account costs or potential costs of services that are not directly to be provided to the person who pays the fee but which are an indirect or potential cost arising from the delivery of the service in question to a class of persons or all persons who use the service.
7: A fee is payable at such time as is prescribed in respect of a particular service, whether that time be before, during, or after completion of the relevant service.
8: In the case of services to be provided outside New Zealand or in respect of a person outside New Zealand,—
a: A fee may be set in New Zealand dollars or in a foreign currency; and
b: If the fee is set in New Zealand dollars, the method of determining the amount payable at any time in currency other than New Zealand dollars is to be determined from time to time by the chief executive of the Department of Labour.
9: A fee may also be required by the regulations in question to be paid in New Zealand dollars only.
10: All fees prescribed under this Act and received by the Department of Labour must be paid into the Departmental Bank Account.
148B: Bonds
1: This section applies in any case where a bond may be imposed under this Act.
2: The amount of any bond is to be at a level determined or authorised by—
a: Government residence policy under section 13B
b: Regulations made under this Act, in respect of other bonds.
3: Different levels of bond, or different methods of determining levels of bond, may be determined or prescribed in respect of different categories of person, including categories of person determined by having regard to the different regions of the world where their countries of origin or nationality are situated and the costs of travel or repatriation to such regions or countries.
4: A bond must specify—
a: The conditions in respect of which it is paid (which must relate to or be based on requirements of the relevant Government residence policy, if appropriate, or on other requirements and obligations imposed by or under this Act, including conditions attached to the relevant permit); and
b: The situations in which it may be refunded or forfeited, whether in whole or in part.
5: Regulations made under this Act may—
a: Require any bond or class of bond to be paid in New Zealand dollars only:
b: Require any refund of a bond or class of bond to be made in New Zealand dollars only (whether or not the bond itself was required to be paid in New Zealand dollars).
6: A bond required in respect of any type of matter is payable at the time prescribed for that class of matter in regulations, or in Government residence policy as the case may require, and may be payable either by the person concerned or by any other class of person specified in the regulations or policy. For the avoidance of doubt, a bond payable in relation to the grant of a permit may be required to be payable at the time of the issue of a visa that may lead to the grant of the permit.
7: Forfeiture of a bond is at the discretion of the Minister or an immigration officer or a visa officer, who must exercise the discretion by taking into account—
a: The reason the bond was imposed; and
b: The extent to which the conditions of the bond have been met or breached; and
c: Any explanation given as to the breach of the bond conditions; and
d: The estimated cost to the Crown of the breach.
8: The person who is eligible for the refund of a bond must apply for the refund within 12 months of the bond becoming refundable, or the bond is forfeit to the Crown.
9: A bond paid must be held in trust by the Department of Labour until refunded or forfeited.
10: No interest is payable on a bond to the person who paid it. The chief executive of the Department of Labour may apply any interest towards the costs of administering the bond system, and any surplus interest must be paid into the Crown Bank Account.
11: In the case of a bond imposed in relation to a temporary or limited purpose visa or permit, no refund may be made until the person in question either is no longer in New Zealand or, in the case of the holder of a temporary permit, is granted a residence permit.
12: A refund of a bond must be paid either to the person who paid it or to a person authorised by that person to receive it.
13: If all or any part of a bond is forfeited, the Department of Labour must pay the amount forfeited into the Crown Bank Account.
14: No bond may be imposed on any refugee status claimant for any matter relating to refugee status, and any bond imposed upon a person before that person became a refugee status claimant must be refunded if the person is subsequently determined under Part VIA
148C: Other charges
1: Nothing in section 148A or section 148B
2: Without limiting subsection (1)
a: Operate a telephone information service for which each caller pays according to their usage or on some averaged basis:
b: Charge persons for the cost of mailing or couriering information to them, or the cost of moving, at the person's request, the administration of a matter relating to the person from 1 office of the Department to another:
c: Charge for the cost of written material, unless that material is required by any Act or by regulations made under this Act to be provided free of charge:
d: Charge for access to any website, or for information or services provided by any website, operated by the Department:
e: Charge for access to any library or research services provided in relation to immigration or refugee matters:
f: Charge any person for services requested by (and provided to) that person in relation to immigration matters, other than services provided in a customs place:
g: Charge any person for the supply of forms to the person in quantity, where it is apparent that the forms are not for the person's own personal use.
3: All such charges received by the Department of Labour must be paid into the Departmental Bank Account.
4: Nothing in subsection (1) or subsection (2)(f)
5: Nothing in subsection (2)(f) section 125 or section 148
149: Exemptions and refunds
1: Regulations made under this Act may provide for exemptions from or refunds of any fee or bond payable under this Act, in whole or in part, in any class of case.
2: The Minister may by special direction provide for an exemption from or refund of any prescribed fee or any bond, in whole or in part.
55: Regulations
1: Section 150 paragraph (b)
ba: Prescribing matters in respect of bonds that may be imposed under this Act: .
2: Section 150 paragraph (g)
g: Prescribing the period of currency, or maximum period of currency, for temporary permits or limited purpose permits or for any type or class of temporary permit or limited purpose permit: .
8: Amendments to schedules and to other acts
56: New
Schedule 1 The principal Act is amended by repealing Schedule 1 Schedule 1 Schedule 1
57: Schedule 3A Schedule 3A clause 7(1) under this Act in respect of the financial year ending in that year
58: Schedule 3B
1: Schedule 3B
a: By omitting from clause 3 section 50 of this Act section 54
b: By inserting in clause 7(1) under this Act in respect of the financial year ending in that year
2: Clause 7 subclause (2)
2: Any such report must include the following information:
a: The number of appeals lodged with the Authority under section 47
b: The number of cases in which an appeal against the requirement to leave New Zealand is upheld by the Authority:
c: The number and type of permits granted in accordance with directions given by the Authority under section 52(2)
d: The number of appeals withdrawn or not proceeded with.
59: New
Schedule 3C The principal Act is amended by inserting, after Schedule 3B Schedule 3C Schedule 2
60: New
Schedule 6 The principal Act is amended by adding Schedule 6 Schedule 3 Amendments to other acts
61: Amendment to
Social Security Act 1964 Section 74A(1)(b) Social Security Act 1964 subparagraph (i)
ia: A limited purpose permit; or .
62: Amendments to
Immigration Amendment Act 1991
1: Section 33(4) Immigration Amendment Act 1991 Repeal Appeal
2: Section 33 Immigration Amendment Act 1991
5: No person may make an application under this section on or after 1 October 2000.
63: Amendment to
Judicature Act 1908 This section inserted s 56CA Judicature Act 1908
64: Amendments to
Legal Services Act 1991 Section 64 repealed 1 February 2001 127(1)(d) Legal Services Act 2000