What Happens After a Visa Decline or When Someone Is Unlawful in New Zealand

What Happens After a Visa Decline or When Someone Is Unlawful in New Zealand

A refusal letter or some period of unlawful status alters the available options. If they are already unlawful, a conventional online form will not be tolerated. Appeal deadlines are tight. Officers who have been directed to a relationship or role will hardly amend their opinion unless the new evidence responds directly to what was raised. These are the files that reach Immigration Matters after all else has failed.
"Jagjeet Singh Sidhu was incarcerated at Immigration New Zealand for five years before he established the practice in Papatoetoe. He has maintained a full licence (201400260) since 2014. That background does not provide a privileged pathway but it does alter the context of each file before there is even a lodgement. An officer considering a previous refusal is not considering whether an application has been enlarged with additional documents – but whether it has addressed the issues which led to the original rejection".
Section 61 of the Immigration Act 2009 is one of the procedures that is raised frequently. It is a request and not an automatic application for a visa. The individual must be in New Zealand and unlawfully. The request is for the Minister or a delegated officer to consider whether or not, in the individual's particular circumstances, a visa should be granted. There is no standard form that entitles an individual to consideration, and no right of appeal if the request is refused. What can be done is to put forward as clearly as possible the circumstances of the person's becoming unlawful, what has changed, and why the situation is different now. Families that have already been refused sometime consider that time will improve the situation. However, the longer the period of time since becoming unlawful without a formal request, the more difficult it is to demonstrate the necessity of the particular intervention.
Appeals to the Tribunal are different. The time frame is very limited – often 42 days from the date of the decision in most residence and deportation appeals, shorter in others. Once the deadline is missed the appeal cannot be made. The Tribunal will consider whether the decision was correct on the facts which were known, and in some refugee appeals it can consider the effect of any change in circumstances. Appealing involves pinpointing exactly which ground the appeal is based on, finding all of the evidence and then preparing and lodging the appeal within the specified time. Those who try to do this themselves after being declined often find they have missed the deadline when they are still finding documents or awaiting word from someone without the authority to practice.
These letters also require a different response. An officer has identified something that may result in a refusal, and afforded the applicant an opportunity to comment. The reply must deal with the real issue. A stand alone reiteration or broad brush character references seldom alter the result where the officer has made adverse comment on the reality of a relationship, or on the fit of a job description against the ANZSCO. At Immigration Matters these PP letters are seen as a chance to put the facts straight with good quality evidence.
These rejected partnership files follow the same pattern. Immigration expert New Zealand can't take a couple at their word – the new evidence in support of a relationship must tell a consistent story of their shared life over time – joint bank accounts, cohabitation, correspondence between the couple matching the timeline claimed. In arranged-marriage cases, the officer is considering whether the couple is following these instructions, rather than whether their families do. It takes more time to assemble evidence to satisfy the requirements after one file has already been declined, than to put it together initially as Immigration New Zealand already knew the reasons for refusal.
Many declines in work visas boil down to the job. The Accredited Employer Work Visa must be for the "correct" role based on the description in the job check and code ANZSCO. If the duties identified in the employment agreement are not reflected in the job check and the code, or if the wage in the current job no longer satisfies the threshold that applied at the time, the application will be declined. A variation of conditions made when a person changes jobs within the same employer must involve the same "mapping". Parents who sponsored a visitor visa later declined are sometimes questioned about the genuineness of the original stay. In each instance the answer has to address the declining reason in the request letter rather than start anew from an unwritten checklist.
Some student visa problems may close down subsequent options even if the current visa is approved. For instance, if the course is not in the program of work the person has described in the application, then the period of post-study work and later residence opportunities can be limited. Officers will consider evidence of funds, genuine commitment and whether the study would be reasonable. Early advice of the risk to opportunities in later years is more helpful than late advice once the person has commenced study.
The initial discussion at the office is likely to be an evaluation of whether anything can still be done. Files are likely to include the decline letter, any PPI correspondence, and passports, plus whatever evidence people can muster. The conversation will consider: are we still in an appeal period; could a s.61 request be the way to go; are leaving and applying from offshore a better option when the situation changes? If the file looks simple enough to enable a proper new application to be framed, this will be communicated, as will poor prospects before further fees are incurred.
Licensing is important here because the penalty for giving bad advice is more significant. Only a licensed adviser or lawyer can provide immigration advice. Unlicenced people offering to "fix" a decline or to prepare a Section 61 application cannot do this. If the advice is incorrect, the applicant will have to face the additional refusal and any additional unlawful days. The Immigration Advisers Authority register will confirm that the person is licensed to take the file.
Those who have delivered declined or unlawful cases to the practice, who have told the same story, answer the same questions. The question in the previous application had responded to different questions than those being asked by the officer. The new material was ready to respond to the actual reasons for decline and the existing instructions. In some cases the visa was granted following the reply or request. In others we were advised not to make another application until there was a material change. Both were achieved by reviewing the file in the manner of an officer, and then working out what was still permissible under the rules.
The rules are still being modified but the officers' approach to a back drop and a period of unlawful status, have remained the same. They search for whether the new evidence gives information that was missing to address the background period. They check whether the new evidence is consistent with the current instructions which are in force and if the adviser who has been behind the doors within checks the current manual before advising it lessens the risk that another application will be refused the same reason.