Detailed information about Section 61

If you are unlawfully staying in New Zealand (NZ), you are under legal obligation to leave, and the following applies:
  • You are not allowed to work or study, and you will not be allowed access to healthcare.  
  • You are at risk of being detained and deported even if you intend or have requested a visa because you think you have special circumstances.  
  • If you remain in New Zealand for longer than 42 days after your visa has expired, it is likely to affect your ability to travel to the country in the future.
  • You place other people at risk, especially family members, if they help you to remain in New Zealand unlawfully because it is an offence under the Immigration Act and it could affect their immigration status.
  • The longer you remain, the higher the risk you run of being deported and of being declined visas in the future.
If your temporary visa (be it work, study, or visitor) expires and you have not yet left New Zealand or received a new visa, technically you are unlawfully in New Zealand.  

Even if you had an interim visa while you were waiting for the outcome of your application, as soon as your it is declined, your interim visa will expire and you are unlawful in New Zealand.

What to do? There are two possible options:

First, leave New Zealand voluntarily without having been issued the deportation order. The other one is applying for Section 61 to attempt to overturn the expired visa.

A person who became unlawful in New Zealand can apply to Immigration New Zealand under section 61. However, once you are served with a deportation order, you cannot apply.

Your S61 application will be assessed by the Minister of Immigration, or senior managers who were given the discretionary power by the minister. Immigration New Zealand will accept the application but has no obligation to consider the request nor provide reasons to approve or decline the request under the name of absolute discretion.

Legal Framework

A23.1 Overview and Legal Framework
​
A23.1.1 Overview
See also Immigration Act 2009 ss 11, 20, 61
  1. The Minister may, at any time, grant any type of visa to a person who is:
    1. unlawfully in New Zealand; and
    2. not a person in respect of whom a deportation order is in force.
  2. The Minister's power to grant a visa in a special case has been delegated to officers with Schedule 3 delegations or above.
  3. As the grant of a visa under section 61 is a matter of absolute discretion, no person has the right to apply for a visa under section 61, and if a person purports to make such an application by requesting the grant of a visa under section 61:
    1. the Minister or delegated immigration officer is not obliged to consider the request; and
    2. the Minister or delegated immigration officer is not obliged to make further enquiries or inquire into the circumstances of the person or any other person; and
    3. whether a request is considered or not, the Minister or immigration officer is not obliged to give reasons for any decision on it, other than that section 11 applies; and
    4. privacy principle 6 (which relates to access to personal information and is set out in section 6 of the Privacy Act 1993) does not apply to any reasons for any decision relating to the purported application; and
    5. section 23 of the Official Information Act 1982 and section 27 of the Immigration Act 2009 (concerning the right of access to reasons for decisions) do not apply.
  4. In simple terms people who make requests under section 61:
    1. have no right to apply for a visa under it;
    2. have full responsibility for ensuring that any and all information that might potentially be considered in any exercise of the section 61 discretion is put forward with their request;
    3. have no right to have their request considered;
    4. if their request is considered, have no right to be told why a particular decision was reached;
    5. if their request is considered, have no right to have it considered against any particular immigration instructions.
A23.5 Considering or refusing to consider a request
A23.5.1 Refusing to consider a request
  1. There is no obligation to consider a request made under section 61. An immigration officer may refuse to consider the request given the information provided. Equally, however, they may consider a request and may ask for more information or evidence to be provided to do so.
  2. Where an immigration officer refuses to consider a request they need not record reasons for doing so (other than the reason that section 11 of the Act applies).
  3. Any matters an immigration officer chooses to record in relation to the request may be recorded on the physical and electronic file associated with the request.
  4. If an immigration officer asks for more information or evidence then the request has been considered and the process set out below under A23.5.5 Considering a request must be followed.
A23.5.5 Considering a request
  1. If the immigration officer decides that there are grounds to consider the request based on the evidence and submissions provided by the requester, he or she should consider the request.
  2. There are no specific immigration instructions that must be met as decisions are a matter of absolute discretion.
  3. As a person making a request for a visa under s61 is unlawfully in New Zealand and requests the exercise of absolute discretion as an exception to the usual rules governing those unlawfully present in New Zealand and liable to deportation, it is for the person making the request to put forward their case.
  4. During the consideration of a s61 request, an immigration officer is not obliged to request any further information or to seek comment prior to an adverse immigration decision being made. A decision can be made solely on the basis of the facts available and the submissions provided with the request. However, this does not preclude an immigration officer requesting further information (such as a medical or police certificate) or comment to assist him or her in considering the request.
  5. In considering a s61 request immigration officers should also consider whether or not the matters put forward for the grant of a visa are best dealt with by the applicant exercising one of their rights under the Act; for example, by way of an appeal on humanitarian grounds against the requirement to leave New Zealand to the Immigration and Protection Tribunal (if such appeal is available).
  6. Decisions under s61 are still subject to the general requirement of fairness that is derived from public law principles. However, what fairness requires in a particular case must be determined having regard to all the circumstances including the particular statutory provisions under which the decision is made, the overall statutory scheme, what is known of the requestor’s circumstances and the consequences of the decision.
  7. Consistent with this approach, the courts have described language similar to the definition of “absolute discretion” in section 11 as conferring “rights which ... are very limited”. These limited rights may be contrasted with the protections made available elsewhere in the immigration legislation.
  8. A relevant consideration which immigration officers may take into account when determining a request under section 61 is that the requestors, as persons unlawfully present in New Zealand and liable to deportation (although not yet subject to a deportation order), have the following options contemplated by the Act:
    1. to voluntarily depart from New Zealand at any time under their statutory obligation to do so, and is free to apply for a visa from outside of New Zealand in accordance with the usual rules and processes, or
    2. to cooperate in being interviewed by an immigration officer to obtain a Record of Personal Circumstances before a deportation order is made and served. The immigration officer may determine, after obtaining a Record of Personal Circumstances, whether or not the deportation process under sections 175 to 178 should continue.
  9. New Zealand’s international obligations may also be a relevant consideration to be taken into account when assessing a request under section 61.
  10. The electronic record of the request must record whether the request has been considered. Any matters an immigration officer chooses to record in relation to the request may be recorded on the physical and electronic file associated with the request.
A23.10 Outcome of the consideration
  1. When a request has been considered, Immigration officers should briefly record, on the physical and electronic file, their reasons for the decision.
  2. The decision to grant or not to grant a visa following the consideration should be clearly recorded on the physical and electronic file associated with the request. If the request is approved, the type and duration of visa to be granted should be stated.
  3. Unlike an ordinary application, the reasons for the decision need not be recorded in communication with the client. That, however, is a matter for the officer concerned. If the officer exercises his or her discretion to not give reasons to the requestor, he or she must however expressly record that section 11 of the Act applies.
  4. If an immigration officer chooses not to provide reasons to the requestor in reliance on section 11, consideration should be given to withholding these reasons if a request is received under the Privacy or Official Information Acts on the basis that disclosing this information would be contrary to section 11 of the Immigration Act 2009 (section 18(c)(i) of the Official Information Act and section 7(2) of the Privacy Act).
If you are in this situation, please do contact us who are specialised in this area.  In your life, you have a moment which requires an expert advice, and this is the time as you only have one chance.

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