Declining a Residence Class Visa Application

At a glance

When a residence class visa application does not meet immigration instructions, the immigration officer must decline it and notify the principal applicant in writing [R5.55.1]. The notice must state the reasons for decline (including points totals where relevant) and inform the applicant of the right of appeal to the Immigration and Protection Tribunal (IPT) [R5.55.1]. Appeals must be lodged within 42 days of the applicant being deemed to have received the decline letter, using the IPT Residence Class Visa Appeal (Form 1) [R5.55.5].

If the application includes any person to whom sections 15 or 16 of the Immigration Act 2009 apply (prohibited persons), the application must be declined (unless an exception under A5.20(a) applies) and the applicant notified accordingly [R5.55.15]. In such cases the application is not assessed under residence instructions, and the prohibited person has no right of appeal, although other non‑prohibited applicants included in the application may appeal [R5.55.15].

In addition, certain individuals and classes identified in R5.100 are banned from being granted a residence class visa (including transit visas), and any application that includes a person named on an INZ‑held list must ordinarily be declined, unless special circumstances are established and the decision is made by an immigration officer with Schedule 1‑2 delegations [R5.100].

Definition

The declining of a residence class visa application is governed by section R5.55 of the Residence instructions [R5.55]. R5.55 provides a routing rule: declines are handled under R5.55.1 and R5.55.5 when the application does not meet residence instructions, or under R5.55.15 when the application includes a person captured by sections 15 or 16 of the Immigration Act 2009 [R5.55].

R5.55.1 sets out the obligation to decline applications that do not meet residence instructions, and prescribes the content of the written notification to the principal applicant: the reasons (including the points total where applicable) and advice on appeal rights [R5.55.1]. The notification must include the IPT Residence Class Visa Appeal form (Form 1) or a link to it on the Ministry of Justice website [R5.55.1].

R5.55.5 establishes the residence class visa appeal right to the IPT under section 187 of the Immigration Act 2009, the 42‑day appeal period, and the requirement to use Form 1 [R5.55.5]. It also notes that applicants declined on the basis of sections 15 or 16 have no right of appeal [R5.55.5].

R5.55.15 provides the mandatory decline pathway when an application includes a person to whom sections 15 or 16 apply. The decline is based on the statutory prohibition, not on an assessment of residence instructions, and only the prohibited person is excluded from appealing [R5.55.15].

Application in decisions

Standard decline (instructions not met): The immigration officer must be satisfied the application does not meet residence instructions. If so, the officer declines and sends a written notification to the principal applicant containing the reasons and appeal advice [R5.55.1]. The date the notification is sent must be recorded [R5.55.1]. This ensures the 42‑day appeal period can be calculated [R5.55.5].

The notification must include the IPT Form 1 or a link to it [R5.55.1]. The officer should ensure the reasons are adequate, consistent with the general fairness obligation to give reasons (see Fairness and Natural Justice).

Decline based on sections 15 or 16: When the officer identifies that an application includes a person who is prohibited from being granted a visa or entry permission under sections 15 or 16 of the Immigration Act 2009, the officer must decline the application unless one of the exceptions in A5.20(a) applies [R5.55.15]. The notification must advise the principal applicant that the application has been declined because a person included is prohibited by statute [R5.55.15]. The application is not assessed under residence instructions [R5.55.15]. The date the notification is sent must be recorded [R5.55.15].

The prohibited person has no right of appeal to the IPT, but any other applicants included in the application who are not prohibited may appeal [R5.55.15].

Decline based on R5.100 ban

INZ maintains lists of individuals and classes subject to a ban on the grant of residence class visas (including transit visas) under R5.100 [R5.100]. The lists are updated from time to time and currently include:

• leading members of the Government of the Federal Republic of Yugoslavia (including Serbia) and their supporters (R5.100.1);
• Grace Mugabe (R5.100.10);
• leading members of the Syrian regime (R5.100.20);
• key individuals associated with the Ukraine crisis (R5.100.25);
• DPRK nationals seeking a visa that would entitle them to work in New Zealand (R5.100.30);
• Russian individuals expelled from certain countries for activities incompatible with their diplomatic status (R5.100.35);
• certain Saudi Arabian individuals involved in the killing of Jamal Khashoggi (R5.100.40);
• certain Tatmadaw and other individuals linked to the 2021 military coup in Myanmar (R5.100.45);
• certain Belarusian individuals associated with the Lukashenko regime (R5.100.50);
• certain Iranian individuals linked to human rights violations or malign activities (R5.100.55);
• individuals undermining stability and security in the West Bank (R5.100.60).

Where an application for a residence class visa includes a person who appears on one of these lists, the immigration officer must ordinarily decline the application [R5.100]. However, if special circumstances exist and are supported by cogent and reliable evidence, INZ may grant a visa after consultation with the Ministry of Foreign Affairs and Trade (MFAT) where specified, and the decision is limited to immigration officers with Schedule 1‑2 delegations (see A15.5) [R5.100].

The decline under this ban is based on the individual’s presence on the list, not on an assessment of residence instructions, and the standard notification and appeal rights under R5.55 apply because the ban is a residence instruction requirement [R5.55.1][R5.55.5][R5.100]. The principal applicant must be notified in writing, and the date the decline letter is sent must be recorded [R5.55.1][R5.100].

Decline based on RV1.25 for former residence class visa holders

Applications from a person who no longer holds a resident visa, but who is eligible for a permanent resident visa or a second or subsequent resident visa, will normally be declined if any of the following grounds apply [RV1.25]:

• The resident visa was granted as a result of administrative error, held under a false identity, or procured through fraud, forgery, false or misleading representation, or concealment of relevant information (whether or not the person committed the deception) [RV1.25].
• The person held a resident visa granted on the basis of a visa procured through deception [RV1.25].
• New information becomes available within five years of when the person first held a resident visa, and an immigration officer determines that it relates to the person’s character, was relevant at the time the visa was granted, and means the person would not have been granted the visa [RV1.25].
• The person is convicted (in New Zealand or overseas) of an offence for which the court has the power to impose imprisonment for a term of three months or more, if committed while unlawfully in New Zealand, while holding a temporary entry class visa, or within two years of first holding a residence class visa; or convicted of an offence with a potential two years or more imprisonment if committed within five years; or sentenced to five years or more imprisonment (or an indeterminate term capable of five years or more) if committed within 10 years [RV1.25].
• The person has been served a deportation liability notice but has not been deported under section 10 of the Immigration Act 2009 [RV1.25].
• The residence visa was granted on the basis of recognition as a refugee or protected person, and that recognition was cancelled under section 146 of the Immigration Act 2009 [RV1.25].

Action under RV1.25.1: An immigration officer must not automatically decline an application on any of the above grounds, unless the false identity ground or the deportation liability notice ground applies [RV1.25]. The officer must consider the surrounding circumstances to decide whether they are compelling enough to justify the grant of a residence class visa under the relevant resident visa instructions. The factors to be weighed include (but are not limited to) [RV1.25]:

• the seriousness of any offence and whether there is more than one offence;
• the significance of any false, misleading, or forged information, and whether the person can give a reasonable explanation or evidence showing no intent to deceive;
• how long ago the relevant event occurred;
• whether the person has any immediate family lawfully and permanently in New Zealand;
• whether the person has some strong emotional or physical tie to New Zealand;
• whether the person’s potential contribution to New Zealand would be significant.

The officer must consult Immigration Resolutions in INZ’s Enablement branch prior to declining, and must record the consideration of the surrounding circumstances (noting all factors taken into account) and the reasons for the decision to approve or decline [RV1.25].

Interpretation & edge cases

• The date of final decision on a declined application is the date the letter advising the decline is sent [R5.60]. For an approved application, the date of final decision is the date of grant of the residence class visa [R5.60]. These dates are the reference points for any administrative timeframes linked to the final decision.
• An application that includes a prohibited person is declined solely on that basis; the officer must not assess it against residence instructions, even if other applicants would otherwise qualify [R5.55.15].
• The appeal right lies with the principal applicant; where the principal applicant is the prohibited person, the other applicants may still appeal but need to ensure they are properly represented [R5.55.15].
• The 42‑day appeal period runs from the date the applicant is deemed to have received the decline letter, not the date of the letter itself [R5.55.5].
• The requirement to include Form 1 or a link is mandatory; failure to provide it may affect the fairness of the process but does not alter the statutory appeal timeline [R5.55.1].
• Immigration officers must record the date any decline letter is sent, as this is critical for establishing the start of the appeal period [R5.55.1][R5.55.15].
• When declining under RV1.25, the officer must carry out a balancing exercise: the existence of a ground for decline does not automatically require decline; the officer must weigh all surrounding circumstances and determine whether they are compelling enough to justify granting the residence class visa nevertheless [RV1.25]. The officer must also consult Immigration Resolutions before issuing a decline based on these provisions [RV1.25].

Citations

• R5.55 — Declining an application
• R5.55.1 — Declining an application where it does not meet residence instructions
• R5.55.5 — Right of Appeal to the Immigration and Protection Tribunal
• R5.55.15 — Declining an application where it includes a person to whom sections 15 or 16 apply
• R5.60 — Date of final decision
• R5.100 — Ban on the grant of residence class visas to certain individuals and classes of individuals
• RV1.25 — Declining an application from former residence class visa holders