Fairness and Natural Justice

At a glance

All immigration decisions must be made in accordance with the principles of fairness and natural justice [A1]. This means decision-makers must give applicants a reasonable opportunity to know and respond to adverse information, and must not act in a biased or predetermined manner [A1]. Good decision-making requires attention both to process and to the merits; a fair process increases the likelihood of a fair outcome [A1.1]. All immigration officers are required to act on these principles when deciding an application [A1.1]. Decisions that fail the proper process may be reviewed by the courts or become a complaint to the Ombudsman [A1.1]. Section A1.5 provides a non‑exhaustive list of factors that determine whether a decision is fair and the circumstances that influence the degree of fairness required [A1.5]. Section A1.15 sets out practical steps for officers to follow in decision-making, including keeping an open mind, considering all facts, and informing applicants of reasons [A1.15].

Definition

The concept of fairness and natural justice in immigration decision-making derives from the common law and is codified in the operational instructions [A1]. Section A1.1 states explicitly that good decision‑making requires attention to process as well as to the merits, and that a fair process is more likely to ensure a fair outcome. All immigration officers must act on the principles of fairness and natural justice when deciding an application [A1.1].

It encompasses two core components:

• The right to an unbiased decision-maker (the rule against bias) [A1]
• The right to be heard before a decision that affects an individual's interests (the hearing rule) [A1]

While the precise requirements depend on the context, at a minimum it requires that applicants are informed of information that is potentially prejudicial and given a meaningful opportunity to comment before a final decision is made [A1]. A1.10 further refines the rule against bias by listing factors that give rise to bias and requiring the avoidance of any appearance of bias [A1.10].

The principles are further elaborated in A1.5, which sets out factors for assessing fairness and contextual considerations, although the content of A1.5 does not constitute immigration instructions certified under Section 22 of the Immigration Act 2009 [A1.5].

Application in decisions

Immigration New Zealand (INZ) officers must apply fairness throughout the application process [A1]. This includes:

• Disclosing any adverse information that the officer intends to rely on, unless disclosure would be contrary to the interests of national security, public order, or the integrity of the immigration system [A1]
• Allowing the applicant a reasonable timeframe to respond to such information [A1]
• Ensuring that the final decision is made by an officer who has considered the applicant's comments and has no personal interest in the outcome [A1]

Where an officer fails to act fairly, the resulting decision may be set aside on review or appeal, or become the subject of a complaint to the Ombudsman [A1.1].

Bias (A1.10)

Whether or not a decision is biased depends on factors including:

• whether the officer is personally prejudiced against the applicant on grounds such as sex, race, religion, socio-economic status, sexuality etc. [A1.10]
• whether the officer has a direct financial or personal interest in the outcome of a decision [A1.10]
• whether the officer has a relationship with any of the people involved in the application [A1.10]
• whether the officer has predetermined the decision, without considering all of the facts and evidence [A1.10]

It is important to avoid not only actual bias, but also the appearance or suspicion of bias [A1.10].

Factors relevant to fairness (A1.5)

When determining whether a decision is fair, immigration officers consider whether:

• the application has been given proper consideration [A1.5]
• the applicant has been informed of information that might harm their case (potentially prejudicial information) [A1.5]
• the applicant has been given a reasonable opportunity to respond to harmful information [A1.5]
• the decision is consistent with other decisions on similar applications [A1.5]
• appropriate reasons have been given for declining an application, consistent with Section 27 of the Immigration Act 2009 [A1.5]
• only relevant information has been considered [A1.5]

The degree of fairness required depends on the circumstances of the application and the consequences for the applicant. Factors include:

• whether the application was made offshore or onshore [A1.5]
• the class and type of visa applied for [A1.5]
• the applicant's reasons for travel to or stay in New Zealand [A1.5]
• the links the applicant may have with New Zealand, such as employment or family [A1.5]

For example, a person who applies for a temporary visa for the first time has less to lose from having the application declined than a person who has been legally resident in New Zealand for a number of years and is applying for a permanent resident visa [A1.5].

Practical steps (A1.15)

To achieve fairness and natural justice in decision-making, immigration officers must take the following practical steps [A1.15]:

1. If the applicant insists on proceeding, accept and process an application made in the prescribed manner (see lodging instructions), even if it is likely that it will be declined [A1.15].
2. Consider all the facts, keeping an open mind towards all relevant forms of evidence [A1.15].
3. Distinguish fact from opinion, rumour, allegation, assumption or report [A1.15].
4. Apply relevant immigration and operational instructions [A1.15].
5. Inform the applicant of the reasons for a decision, consistent with Section 27 of the Immigration Act 2009, if the application is declined (see declining instructions) [A1.15].
6. Include an interpreter in an interview if the applicant is not fluent in English, or if the applicant asks for one to be present (see interpreter instructions at [A14]) [A1.15].
7. Include an applicant's lawyer, immigration adviser, or family representative if the applicant asks for them to be present [A1.15].

Note: Rulings from the courts, Ombudsmen, senior officers or appeal bodies may be used as guidelines for decision-making in appropriate situations [A1.15].

Role of representatives at interviews (A1.15.1)

If an applicant has a representative at the interview, the representative must be given the opportunity to make any comments or submissions on the application to the immigration officer. Subject to the officer's discretion, such comment and submission will normally be made at the start and/or finish of the interview [A1.15].

Interpreter provisions (A14)

The specific requirements for the use of interpreters are contained in the interpreter instructions at A14, which complement the fairness obligations under A1.15. [A14]

Under A14.1, an immigration officer may require the assistance of an interpreter when interviewing a person who is unable to understand the questions fully and give adequate answers in English. If an immigration officer is aware that such a situation may arise, they must make arrangements to obtain an interpreter before the interview. [A14.1]

When arranging an interpreter, immigration officers should ensure the interpreter is suitable [A14.5]. An officer may use a staff member who understands and communicates in the interviewee's language, or a third party interpreter in whom the officer has confidence [A14.5]. However, family members, friends, or agents who accompany interviewees who do not speak English fluently should not be used as interpreters, because they may have an interest in the outcome of the application and therefore may provide an incorrect translation, give their own answers and ask their own questions rather than those of the applicant, or seek to influence the applicant's responses [A14.5].

Reasons for refusal or revocation

Where a person who applied for a visa or entry permission onshore or in an immigration control area so requests, an immigration officer must give the reasons for any decision to refuse to grant a visa, refuse to grant a visa of a particular type, or refuse to grant entry permission [Y5.15]. The reasons must be given in writing and contain the information required under section 23 of the Official Information Act 1982 as if the reasons were given in response to a request to which that section applies [Y5.15]. Reasons are not required to be given if section 40(3)(e) and (f) of the Immigration Act 2009 apply [Y5.15]. When entry permission is revoked for administrative error, the above requirement does not apply; however best practice requires that the immigration officer, if requested, is to provide a copy of the reasons to the person who had entry permission revoked [Y5.15].

Interpretation & edge cases

Minimum requirements, not highest standards: The obligation to act fairly is flexible and does not require a full adversarial hearing [A1]. The content of the duty adapts to the circumstances, including the severity of the potential consequences for the applicant and the statutory framework [A1].

Exceptions to disclosure: In limited circumstances, such as where disclosure would prejudice ongoing investigations or national security, officers may withhold specific information. However, the need for fairness remains and alternative safeguards may be required [A1].

Overlap with other principles: Fairness and natural justice intersect with other obligations, including the duty to give reasons and to follow a structured decision-making process. The operational instructions should be read as a whole [A1].

Non‑instruction status of A1.5: The statements in A1.5 are generalised principles and do not constitute immigration instructions certified under Section 22 of the Immigration Act 2009. They nevertheless guide officers' decision‑making as a matter of fairness [A1.5].

Absolute discretion context (section 61): Decisions made under section 61 are still subject to the general requirement of fairness derived from public law principles. However, what fairness requires must be determined having regard to all the circumstances, including the absolute discretion framework, the overall statutory scheme, the known circumstances of the requestor, and the consequences of the decision. The courts have described the rights in this context as very limited, in contrast to protections available elsewhere in immigration legislation. [A23.5] (For the procedural rules, see Section 61 Special Case Visa.)

Citations

• A1 — Fairness and Natural Justice
• A1.1 — Introduction
• A1.5 — Fairness
• A1.10 — Bias
• A1.15 — Practical steps towards achieving fairness and natural justice in decision-making
• A14 — Interpreters
• A14.1 — Situations requiring an interpreter
• A14.5 — Suitability of interpreters
• A23.5 — Considering or refusing to consider a request
• Y5.15 — Reasons for decisions to be given if visa or entry permission is refused or revoked to certain persons