News & Thinking
What happens when a visa is declined?
Immigration applications are complex. There are multiple requirements to be met, some of which can seem contradictory.
Also, of course, the immigration authorities are as human as the rest of us. Therefore, what can a migrant do, if he or she is refused a visa?”
What are the options if refused a visitor or work visa from abroad?
These are, unfortunately, the most common types of visa to be declined.
It is difficult for most New Zealanders to imagine, because as long as we can afford it, it almost seems a right for us to be able to travel abroad to other countries.
However, for a lot of people, the ability to travel to New Zealand has become an unachievable privilege. This is because some countries can be perceived as being “lesser”, as recently highlighted in commentary by President Trump.
A visitor visa, and less often a work visa, can be declined because the Immigration Officer cannot understand what “incentive” the migrant has to return to his or her home country. This decision is very common, even where an applicant has provided evidence of a good job and home, as well as close family, to return to.
There is no way to appeal such a decision. The only option is to complain that a fair process was not followed. This could be the case if the Immigration Officer has not given fair consideration to the documents provided. Sometimes, an MP will agree to intervene and will contact Immigration New Zealand, who may then grant a visa. However, usually, the migrant simply goes elsewhere or, more sadly, does not visit New Zealand family or friends.
What are the options when refused another work visa?
There are a number of situations where this can happen. A common example is where a further work visa application is declined because the migrant’s employer did not show that it tried to find a New Zealander for the job and also that none are available or readily trainable. This is needed even if the migrant has been working in the job for some time. The Immigration Officer has made the right decision, as he or she cannot approve a work visa unless there is no risk of a New Zealander missing out on the job.
The migrant can ask for the decision to be reconsidered, as long as he or she is still lawfully in the country. He or she must do this within 14 days. However, it is very possible that Immigration New Zealand will decide that the decision was correct, based on the information provided with the application.
The migrant also has a humanitarian right to appeal against being deported, within 42 days of becoming unlawful. There is a shorter appeal time frame if Immigration New Zealand seeks to deport someone before a visa expires.
The Immigration and Protection Tribunal (Tribunal) will consider the appeal. The migrant must show that there are “exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported” and that it “would not in all the circumstances be contrary to the public interest to allow” him or her to stay. This can be very hard to prove, especially if the migrant does not have family in New Zealand, and/or his or her home country is considered “safe”.
Therefore, in a situation where all the necessary documents were not provided with a work visa application, it may be best to resubmit an application that does include all the necessary documents. If the visa has already expired, the migrant can depart New Zealand and apply again from abroad. If he or she leaves New Zealand before he or she is able to be served a deportation order, which is within the appeal time frame, the application could well be successful.
What options are there if a residence application is refused?
Migrants usually have a right to appeal to the Tribunal, within 42 days of a decision to decline a resident visa application, if the decision was incorrect under immigration policy. For example, an Immigration Officer may decide that a migrant’s job is not at the skill level claimed, when in fact it was. In that case, a migrant may be able to successfully appeal the decision.
Migrants can also appeal a decision to decline a resident visa, if they have special circumstances that warrant the Minister granting residence, as an exception. For example, the Tribunal may decide to recommend this for a migrant who has a New Zealand citizen child, as this is usually not grounds, on its own, to qualify for residence.
In the 2017-2018 year 41% of appeals were successful. This does not mean that the law was incorrectly applied in all of these cases, as the Tribunal may have been given information that the Immigration Officer did not have, and there may have been special circumstances in some cases. However, these statistics do show that a lot of migrants, who did deserve residence, were going to miss out, had they not appealed to the Tribunal.
How to avoid these problems
There are limited options available if a temporary visa application is declined, and an appeal is often not even possible. It can be difficult for a lawyer to fix a situation, after a decision has been made. It is best to get the application right, from the beginning. If you are an employer and are worried about your employees’ visas, you can provide them with access to proper advice, by paying for a lawyer to help them, to ensure such problems do not arise.
There is more certainty about having the option to appeal a residence visa decline. However, it can be tricky to work out the appeal deadline and all the documents the Tribunal needs to make a fair decision. Also, the migrant needs a valid visa for several months, whilst the appeal is being considered, which can be difficult to arrange. Getting legal help from the outset of a residence application is best. Indeed, a good legal adviser will take into account residence options, when preparing a temporary visa application, so as to prepare his or her client for a residence application, should he or she decide to stay.
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