Section 61 Special Case Visa

At a glance

A visa may be granted under section 61 of the Immigration Act 2009 as a matter of absolute discretion to a person who is in New Zealand and is either unlawfully in New Zealand or holds a temporary entry class visa. [A23] The grant is an exceptional remedy available only when no other visa pathway is possible. [A23] A request under section 61 is not an application: there is no right to be granted a visa, no right to have the request considered, and no right to reasons for the decision. [A23.1][A23.5] The decision-maker is not obliged to inquire into the person's circumstances, and the person bears full responsibility for putting forward all relevant information. [A23.1] An immigration officer may refuse to consider the request without recording reasons, other than the fact that section 11 of the Act applies. [A23.5]

How it works

Section 61 provides a safety valve for individuals who are in New Zealand without a valid visa (or with a temporary visa that does not meet the usual criteria for a further visa) and who cannot otherwise regularise their status under the standard visa instructions. [A23] The Minister may grant any type of visa to a person who is unlawfully in New Zealand and not subject to a deportation order; this power has been delegated to immigration officers holding Schedule 3 delegations or above. [A23.1]

There is no guarantee of a favourable outcome. The grant of a visa under section 61 is a matter of absolute discretion, meaning:

• no person has the right to apply for a visa under section 61 (a purported application is merely a request);
• the decision-maker is not obliged to consider the request;
• the decision-maker is not obliged to make further enquiries or inquire into the circumstances of the person or any other person;
• whether the request is considered or not, the decision-maker is not obliged to give reasons for any decision, except that section 11 of the Immigration Act 2009 applies (see Fairness and Natural Justice);
• Information privacy principle 6 (access to personal information) does not apply to reasons relating to the request;
• section 23 of the Official Information Act 1982 and section 27 of the Immigration Act 2009 (right of access to reasons for decisions) do not apply. [A23.1]

In simple terms, a person making a section 61 request has no right to have the request considered against any particular immigration instructions, and has no right to be told the reasons for any decision on their request. They have full responsibility for ensuring all potentially relevant information is included with their request. [A23.1]

Refusing to consider a request

An immigration officer may refuse to consider the request based on the information provided, without any obligation to record reasons (other than stating that section 11 applies). [A23.5] If the officer does record any matters, they may be noted on the physical and electronic file. [A23.5]

If the officer asks for more information or evidence, the request has been considered and the formal consideration process under A23.5.5 must be followed. [A23.5]

Considering a request

If the officer decides there are grounds to consider the request based on the evidence and submissions, they should consider it. [A23.5] There are no specific immigration instructions that must be met, as decisions are a matter of absolute discretion. [A23.5] The person making the request bears the full responsibility to put forward their case, and the officer is not obliged to request further information or seek comment before making an adverse decision. A decision may be made solely on the basis of the facts available and the submissions provided. [A23.5] However, the officer may request further information (such as a medical or police certificate) to assist in considering the request. [A23.5]

In considering the request, the officer should assess whether the matters raised would be better dealt with by the person exercising one of their rights under the Act (for example, an appeal on humanitarian grounds against the requirement to leave New Zealand to the Immigration and Protection Tribunal, if available). [A23.5]

Decisions under section 61 remain subject to the general requirement of fairness derived from public law principles, but what fairness requires is assessed in light of the absolute discretion framework, including the statutory scheme and the consequences of the decision. [A23.5] The courts have described rights in this context as very limited. [A23.5]

A relevant consideration is that the requestor, as a person unlawfully in New Zealand and liable to deportation, has the following options under the Act:

• to voluntarily depart from New Zealand at any time and apply for a visa from outside New Zealand under the usual rules; or
• to cooperate in a Record of Personal Circumstances interview, after which the immigration officer may decide whether the deportation process should continue. [A23.5]

New Zealand's international obligations may also be a relevant consideration. [A23.5] The electronic record must record whether the request has been considered; any matters the officer chooses to record may be noted on the file. [A23.5]

Outcome of the consideration and record-keeping

When a request has been considered, immigration officers should briefly record their reasons for the decision on both the physical and electronic file. [A23.10] The decision to grant or decline the visa must be clearly recorded on the file associated with the request. [A23.10] If the request is approved, the type and duration of the visa to be granted should be stated. [A23.10]

Unlike an ordinary visa application, the officer is not required to communicate the reasons for the decision to the client. [A23.10] This is a matter for the officer's discretion. [A23.10] However, if the officer chooses not to provide reasons, they must expressly record on the file that section 11 of the Immigration Act 2009 applies. [A23.10]

If the immigration officer relies on section 11 to withhold reasons from the requestor, consideration should be given to withholding those reasons under the Privacy Act 2020 or the Official Information Act 1982, should a request be made under those Acts, on the basis that disclosure would be contrary to section 11 of the Immigration Act 2009. [A23.10] (See section 18(c)(i) of the Official Information Act and section 24(1)(b) of the Privacy Act 2020.)

Steps

1. The person prepares a section 61 request including a detailed explanation of the reasons for their unlawful status or need for a visa outside the normal rules, along with all supporting evidence. The person bears full responsibility for ensuring the request is complete and includes all information that could potentially be considered. [A23.1]
2. The request is submitted to Immigration New Zealand, along with the applicable section 61 fee (see Fees and levies). The fee is payable whether or not the request is successful. [A23]
3. An immigration officer with delegated section 61 powers (at least Schedule 3 delegation) assesses the request (see Immigration Officers and Decision-Makers). [A23.1] The officer may refuse to consider the request outright if the information provided does not warrant consideration; no reasons need be recorded other than section 11 of the Act. [A23.5]
4. If the officer asks for further information, the request has been considered and the formal consideration process applies. [A23.5]
5. The officer considers all relevant factors, including the reasons for the breach of visa conditions, the length of unlawful stay, the person's character and health, any humanitarian circumstances, international obligations, and the public interest. There is no obligation to make further enquiries; the officer may decide solely on the basis of the information provided. [A23.1][A23.5]
6. The officer should also consider whether the matters are better addressed through an alternative right under the Act, such as a humanitarian appeal. [A23.5]
7. A decision is made as a matter of absolute discretion: either the visa is granted, or it is refused. No reasons need be given, but fairness principles (see Fairness and Natural Justice) require the person to be informed of the outcome. [A23.1] The electronic record must note whether the request was considered. [A23.5]

Interpretation & edge cases

• Absolute discretion: The decision-maker is not bound by any immigration instructions, the Immigration and Protection Tribunal cannot review the substantive decision, and the person has no right to a hearing or to have the request considered against any particular instructions. [A23.1]
• No appeal: A refusal under section 61 is final; review is limited to judicial review on process grounds only. [A23]
• No right to reasons: The requester cannot access personal information about the decision (Privacy Act principle 6 does not apply) and cannot rely on the Official Information Act or Immigration Act to obtain reasons. [A23.1]
• Responsibility for information: It is the person's sole responsibility to provide all information they wish to be considered; the decision-maker is under no obligation to inquire further or request missing evidence. [A23.1]
• Humanitarian factors: While not a substitute for a humanitarian appeal, compassionate circumstances are relevant. A person with a well-founded fear of return or strong family ties to New Zealand may be more likely to succeed. [A23]
• Overlap with standard instructions: If a person could meet the criteria for a regular visa, they should be encouraged to apply under the applicable instruction, as a section 61 request is an exceptional remedy. [A23]
• Unlawful staying: The longer the period of unlawfulness, the more weighty the reasons must be. [A23]
• Fees: The section 61 fee applies, even if the request is unsuccessful. There is no right to a refund if the request is not considered or refused. [A23]
• Refusal to consider: The officer may decline to consider the request without giving reasons; if they request more information, the consideration process is triggered. [A23.5]
• Alternative rights: The officer should consider whether the person has a better avenue under the Act, such as voluntary departure and an offshore application, or cooperation in the deportation process. [A23.5]
• Fairness in absolute discretion: Decisions remain subject to public-law fairness, but the duty is attenuated by the absolute discretion context. [A23.5]
• International obligations: May be a relevant factor in the assessment. [A23.5]
• Officer's obligation when withholding reasons: If the officer exercises discretion not to give reasons, they must record on the file that section 11 applies. If reasons are withheld under section 11, the officer should consider withholding them under the Privacy Act or Official Information Act if a request is made. [A23.10]

Citations

• A23 — Grant of a visa in a special case under section 61
• A23.1 — Overview and legal framework
• A23.5 — Considering or refusing to consider a request
• A23.10 — Outcome of the consideration