INZ Doesn’t Always Get It Right...

Decisions of the Immigration and Protection Tribunal (IPT) show that of all the immigration appeals heard in the last reporting year, over 35% were allowed, due to incorrect decision-making by Immigration New Zealand (INZ). The number was even higher in the two previous years, at over 40%. While some human error is understandable (but still not acceptable!), the figures demonstrate the discouraging frequency with which INZ get it wrong.

The IPT, an independent judiciary body, hears and determines appeals concerning INZ decisions on:
• residence class visas
• liability for deportation
• recognition of a person as a refugee or protected person

According to the IPT’s last annual report, which covers the 12 months from 1 July 2019 to 30 June 2020, of the 802 appeal outcomes decided in that year:
• 452 (56.4%) were declined (i.e. unsuccessful)
• 286 (35.6%) were allowed
• 64 (8%) were referred to the Associate Minister of Immigration, as even though the decision of INZ was correct, the IPT determined that the applicant had special circumstances which warranted an exception recommendation to the Minister

Residence visa decisions

For the 2019/2020 year, the decline rate for deportation and refugee/protection streams was between 60% and 70%, but the residence appeal decline figures were dramatically lower. Last year, 278 residence stream appeals were heard by the IPT. Of these 103 (38%) were allowed, nearly equal to the 111 (40%) which were declined, with 64 (23%) referred to the Minister.

Though the 2020/2021 annual report will not be released for some months, there are indications that this year the overall residence appeals percentages are likely to look much the same. However, at this stage of the year, successful residence appeals outnumber the declined appeals. Since 1 July 2020, 152 residence stream decisions have been made and published on the Ministry of Justice website. Of these, 61 decisions were allowed, 52 were declined and 33 have been referred to the Minister. In the remaining 6 cases, a ‘particular event’ – where new information or developments mean that it is fair for INZ to reconsider the application – was found.

Skilled Migrant Category visa decisions

Taking a closer look at these published residence decisions, it appears that 68 of these dealt with INZ decisions to decline Skilled Migrant Category resident applications. INZ’s decline decisions have only been confirmed and upheld 19 times during this period. In 3 cases, a ‘particular event’ was found. In a further 3 cases, the decision was referred to the Minister because even though the decline decision was technically correct, the applicant had special circumstances. This leaves 43 decisions (over 63% of all SMC-related appeals published in the last 9 months) that the IPT found in favour of the appellant and sent back to INZ for reassessment. This number includes INZ decisions to decline that the IPT could not be confident were correct, because they were arrived at through unfair processes.

Visa applications are a complicated business. Even the Government entity tasked with processing them does not always make the correct decision on the facts, or undertake the process in accordance with the correct regulations. If you feel that INZ has made the wrong decision regarding your resident visa, or another visa, you may have grounds for an appeal or reconsideration (if for a temporary visa). There are criteria and procedures that need to be fulfilled in order to lodge an appeal and we strongly advise you seek professional assistance. The Pathways’ team of Licensed Immigration Advisers includes lawyers who specialise in IPT appeals and they can review your situation and give tailored advice.

With all of this in mind, the safest route, whenever possible, is to avoid the appeals process altogether. This means preparing a high-quality, complete and thorough application with the appropriate supporting evidence from the outset, which leaves INZ with as little chance as possible to make the wrong decision (though as the figures attest, there is never a guarantee!).

If you would like your application, or your appeal, to be prepared for the best chance of success - contact Pathways today. Let’s Talk!