Minister of Immigration and Associate Minister of Immigration's decision-making and administrative roles

Released under the Official Information Act

Introduction

1. This paper outlines the administrative role of the Minister of Immigration and the Associate Minister of Immigration. The role is discussed in the context of wider government structures and in relation to the Department of Labour work for the immigration portfolio.
2. Specific aspects of work that has historically come before the Associate Minister are outlined and there is brief discussion of the Immigration Advisers Licensing Act 2007 and the Immigration Bill 2007 (currently before Select Committee). A glossary of terms used in the immigration portfolio is included as Appendix A and information about the structure of the Workforce group in the Department of Labour is included as Appendix B.

Legislative and Administrative Framework

3. The authority to regulate immigration is an attribute of a sovereign state. In New Zealand, the Immigration Act 1987 ("the Act") provides the legislative framework for regulating immigration. While the Act contains some qualifying criteria (mainly the minimum requirements relating to character and convictions^[1]), most criteria for residence and temporary entry are contained in Government Residence Policy (GRP) and Government Immigration Policy (GIP).^[2]
4. The Immigration Bill, which will establish brand new framework legislation, is currently before Select Committee, and is expected to be passed in 2008. Its major provisions are discussed from paragraph 61 below.
5. Several general statutes also have particular relevance to the immigration portfolio, including the Privacy Act 1993 and the Official Information Act 1982. International obligations also have an impact on immigration decision making.
6. Immigration is managed at various levels of the wider government structure:
   • Cabinet - makes high-level immigration policy decisions. Cabinet also determines aspects of immigration processes such as fee levels and visitor's visa waivers through approving regulations for submission to the Governor-General
   • the Minister of Immigration - responsible for the portfolio overall. The Minister formally approves GRP and GIP, giving effect to policy decisions. The Minister of Immigration has decision making roles in regard to individual cases, including ordering deportations and the revocation of residence
   • the Associate Minister of Immigration - generally delegated responsibility for decisions on individual cases
   • the Department of Labour (DoL):
     • Secretary of Labour - the Chief Executive of the Department of Labour has certain roles under the Act, including warranting immigration staff to perform particular functions
     • Department of Labour / Immigration New Zealand^[3] - considers applications, according to the relevant criteria, from persons who wish to be in New Zealand permanently or temporarily (including refugee status claimants). The Department also provides support for the ministerial administrative functions described in this paper, and tenders policy advice. The Department enforces compliance with immigration laws, including managing persons who are not granted a permit upon arrival, and the removal of overstayers
     • Legal Services - gives advice on matters relating to appeal authorities (see below), including appointments to these bodies; coordinates budget round processes; and provides legal services for the Department and the rest of the Department in legislative processes, policy development, and operations
     • Government, Executive & Ministerial Support (GEMS) - processes all policy ministerials, Written Parliamentary Questions, Oral Parliamentary Questions, manages the Private Secretaries, and tracks, quality assures and records the movement of all papers to and from the Minister's office, and
     • Workforce - Employment and Skills - provides some immigration policy advice, particularly as immigration relates to the labour market, and on net migration flows
   • Appeal Authorities - undertake independent reviews of ministerial and Department decisions to deport, to refuse residence, or not to recognise a refugee status claim at the individual level. The Removal Review Authority can assess the humanitarian circumstances of an individual case, to decide whether a person should be required to leave New Zealand.
   • Parliament - examines the administration of the portfolio and considers any proposals for legislative change. Regulations made under the Act are subject to examination by the Regulations Review Committee, and
   • the Courts - undertake statutory appeal or judicial review hearings; and decide on the detention of those refused entry to New Zealand or being removed from New Zealand.

Immigration Act 1987

7. Under the Act, non-New Zealand citizenship must hold a permit to be in New Zealand, unless they are exempt from this requirement.^[4] The immigration operational structure of the DoL and many of the administrative functions of the Minister and Associate Minister flow from this requirement.
8. The Act consists of nine parts:
   • Part I - Exemptions, Visas and Permits - establishes the requirement for individuals to hold permits and visas, the foundations of the application process, the ability to set qualifying criteria, types of permits and visas, and provisions for the revocation of permits. It also establishes the power to impose conditions and requirements on permit holders, and imposes obligations on employers and education providers;
   • Part II - Persons in New Zealand Unlawfully - obliges people who are in New Zealand unlawfully to leave. It provides for appeal to an independent authority against this obligation. It also establishes powers and processes to allow the Department to enforce compliance with the obligation by way of removal action;
   • Part III - Deportation of Persons Threatening National Security and Suspected Terrorists - this rarely-used part provides for the control and deportation of non-citizens who pose serious threats;
   • Part IV - Deportation of Criminal Offenders - allows for the deportation of persons who are convicted of serious offences after being granted residence;
   • Part IVA - Special Procedures in Cases Involving Security Concerns - provides for the use of classified security material in immigration decision making. It protects the information from disclosure in certain specified circumstances, balancing this protection with the rights of the individual concerned;
   • Part V - Appeals - establishes the right of appeal on decisions of the independent immigration appeal authorities, to the High Court and the Court of Appeal;
   • Part VI - Arrivals and Departures - establishes the power to regulate arrivals and departures, including the power to detain people who are refused a permit to be in New Zealand, pending their departure. Additionally, this Part establishes the power to require airlines to use an approved system for checking passengers against the immigration system before boarding;
   • Part VIA - Refugee Determinations - provides the statutory basis for the determination of refugee status in accordance with the Refugee Convention and Protocol, which are incorporated as the Sixth Schedule to the Act; and
   • Part VII - Miscellaneous Provisions - includes offences and penalties, fees and levies, immigration officers' and Police powers, and regulation making powers.

Qualifying Criteria Established in Policy

9. As outlined above, the qualifying criteria and policy rules for granting visas and permits are contained in GRP (for permanent migration) and GIP (for temporary entry and other matters). GRP and GIP are approved and formally certified by the Minister of Immigration, and give effect to policy decisions made at Cabinet or other appropriate level.
10. This approach gives New Zealand greater flexibility to change immigration policy than is available to other migrant-seeking states. Immigration is also less bound by statute than many areas of government, reflecting the principle that entry into New Zealand for non-citizens is not a right, but rather a privilege to be granted by New Zealand as a sovereign state, according to its interests.
11. Immigration officers must, nevertheless, decide residence applications in accordance with Government Residence Policy as it is written. Exceptions to residence policy can only be made by the Minister's or Associate Minister's own volition or following a recommendation from the Residence Review Board. Decisions on temporary entry applications are guided by Government Immigration Policy but are ultimately at the discretion of ministers (should they choose to become involved), or immigration and visa officers, who are able to depart from policy, if appropriate.

Important Documents

12. The statutory and policy documents listed below are essential to immigration operations:
    • the Immigration Act 1987
    • the Immigration Regulations 1999
    • the Immigration (Refugee Processing) Regulations 1999
    • the Immigration (Transit Visas) Regulations 2005, and
    • the Department of Labour's immigration operational manual.

Decision-making role of the Ministers

Minister of Immigration

13. Most decisions on immigration cases are made in the first instance by the DoL. Decisions may be reviewed by independent appeal authorities or the courts, where there is provision for review. However, Ministers retain some decision-making roles under the Act that cannot be or have not been delegated. These ministerial powers (including the non-delegable powers in relation to revocation of residence and deportation) create a workload of individual cases larger than that of other portfolios.
14. The ability of the Minister to make exceptions to policy attracts submissions seeking special consideration from declined applicants and their advocates (including those who have already been declined by appropriately delegated officers or those who have had appeals dismissed by the independent appeal authorities). To some extent, the degree to which a Minister wishes to become involved in individual cases is a matter for the Minister's own prerogative. Certain special provisions in the Act allow the Minister to refuse to intervene in most individual cases without legal consequence.

Associate Minister of Immigration

15. When an Associate Minister is appointed to the portfolio, the principal Minister typically concentrates on policy development and aligning the portfolio with overall government objectives. Most casework and other specified duties are transferred to the Associate Minister.
16. The most recent Associate Minister designated the power to make certain decisions on his behalf to senior named officials (Departmental Decision Makers (DDM)) within the Department of Labour (currently the Deputy Secretary Legal and International, the Group Manager Service Delivery, the Operational Support Manager and the Group Manager Service Design.) This arrangement took effect from 1 May 2007. In 2006/07, the Associate Minister of Immigration made decisions or replied to correspondence on 2,804 cases. Since 1 July 2007, The DDM have made decisions or replied to correspondence on 204 cases, whereas the AMOI has made decisions or replied to correspondence on 244 cases.
17. The Cabinet Manual requires the principal Minister to write to an Associate Minister, setting out the Associate Minister's role in the portfolio, any delegated responsibilities, and relevant working arrangements.

Individual cases to be considered by Associate Minister

18. The Minister is not formally or legally responsible for deciding appeals against DoL decisions. However some individual decision-making powers remain at ministerial level. The following classes of case will generally be decided by the Associate Minister of Immigration (or a delegated Senior Manager in the DoL).

Special Directions

19. Several powers in the Act are established as Ministerial powers to make a special direction. Generally, there is no right to apply for a special direction, nor is there an obligation to consider requests or give reasons for decisions. Special directions are used in a range of circumstances.
20. Most special direction powers have been delegated to immigration and visa officers, and are used as a matter of course in daily operations. Relatively few special directions must be decided at the Ministerial level. While there are no guidelines on the factors taken into account when considering special directions, full details are supplied with cases submitted to the Minister if a Ministerial level decision is required.
21. Special Directions - Section 7: Section 7(1) of the Act establishes that certain persons are not eligible for a permit or exemption from a permit and are therefore effectively banned from New Zealand. For example, people who have been sentenced to at least 5 years imprisonment, people against who a removal order is in force or have been deported, people who are members of terrorist or organised crime entities, or people who the Minister considers are likely to commit an offence fall within section 7(1). In individual cases, these prohibitions may be lifted by a special direction.
22. Other Special Directions: Ministerial special direction powers exist in circumstances other than those involving persons subject to section 7. These requests are infrequent, but the most common requests are for temporary permits beyond the maximum validity specified in regulations and for variations of conditions of temporary permits.

Requests for Reconsideration of Temporary Entry Applications

23. Decisions to grant temporary permits, temporary visas, limited purpose permits, limited purpose visas, and transit visas are a matter of discretion, with no formal avenue of appeal. While the DoL reconsiders decisions or assesses new applications, unsuccessful applicants and their New Zealand supporters will sometimes approach the Minister (or in some cases the Ombudsman). In addition, the Department itself refers a small number of sensitive cases to the Minister for decisions. The Department's Review branch gathers information about these cases and submits them with a draft letter for the Minister's consideration.

Section 35A Requests

24. Persons who are in New Zealand unlawfully are not able to apply for a further permit. The Minister has the power, however, under section 35A, to grant a permit in these cases. The section 35A power has been delegated to immigration officials to allow requests to be considered at the departmental level. Some requests will be made directly to the Minister by the person concerned, or will be referred to the Minister by the Department. The Minister may choose whether or not to intervene.
25. 25. Under the Act, a person has no right to request a permit under section 35A and the Minister is under no obligation to consider these requests or to give reasons for any decisions made. As with other submissions, the Department will provide the background of the case.

Reconsideration after Court Action

26. The Department predicts that somewhere between 50 and 100 proceedings against decisions will be lodged in the courts in 2007/08. Sixty-six proceedings were lodged with the Courts in 2006/07. Where a court orders a decision to be reassessed, that reassessment is usually undertaken at the same place but by a person who has not been involved previously. In some cases it is considered appropriate that the Minister consider the exercise of ministerial powers, in which case the DoL prepares a submission for the Minister explaining the relevant facts and issues. Options will be identified, but recommendations will not usually be made, unless only one clear option presents itself.

Official Information Act 1982 and Privacy Act 1993

27. Replies to requests made to the Minister and Associate Minister for information under these Acts are usually prepared by the DoL for ministerial signature where the Minister's office holds the information. Some requests will be formally transferred to the Department where the Ministers' offices do not hold the information. Replies to inquiries or complaints from the Ombudsmen and Privacy Commissioner about the Minister's or Associate Minister's handling of requests also require replies, which are drafted for the Minister's consideration. Where the Department holds the information, a copy of the draft response and material to be released is sent to the Minister's office before the reply is released to the requestor.

Complaints

28. Complaints or queries about the Department will sometimes be sent to the Ministers. Matters relating to the management of the Department's services are most properly forwarded for the attention of the Deputy Secretary - Workforce in the first instance.

Informal Approaches

29. Approaches, often informal, are made to the Minister by persons seeking exceptions to policy or other special consideration. There are significant risks in giving specific undertakings on the basis of informal approaches without full details of the persons and proposals involved. The Minister's Private Secretary may request further information from those making informal approaches. Such approaches may, of course, be referred back to the Department through the Associate Minister's Office, for further investigation by the Department.

Requests for Exceptions to Government Residence Policy

30. Under the Act, residence applicants must meet Government Residence Policy but the Minister and Associate Minister have the power to make "an exception to Government residence policy in any particular case".^[5] This is in addition to considering recommendations for exceptions made by the Residence Review Board, as discussed in paragraphs 46 to 47 below.
31. The retention of the ability to make exceptions to policy recognises the reality that the facts and circumstances of a particular case may be such that they warrant approval of the case, despite the case not meeting existing policy criteria. It follows that, in making an exception to policy, the circumstances of the individual concerned should be known to the Associate Minister at a sufficient level of detail to make the assessment. Some assessment will also have been made of whether the individual could qualify under existing policy.

Revocation of Residence

32. Immigration officers may revoke residence permits that were, due to administrative error, granted at the border. The other revocation powers in the Act may not be delegated to officials.^[6]
33. In summary, a residence permit or visa may be revoked if it, or an earlier residence permit or visa was obtained by fraud, forgery, false or misleading representation, or concealment of relevant information. Residents may also face revocation of their permits if they fail to meet the requirements placed on their residence when it was granted.
34. The Department investigates possible revocation cases, with the assistance of the Department's Legal Services and other agencies. Cases that the Department believes warrant consideration of revocation are submitted to the Minister for a decision. Appeals against the Minister's revocation decisions may be made on the facts to the High Court and on humanitarian grounds to the independent Deportation Review Tribunal.
35. Where revocation is confirmed, the Deportation Review Tribunal may direct that a temporary permit be granted to give deportees time to order their affairs before they leave. If people do not leave within the required time, they will be in New Zealand unlawfully, and will be removed.

Deportation Orders

36. The Minister holds non-delegable powers to order the deportation of residence permit holders convicted of serious offences after gaining residence.^[7] There is a range of convictions for offences which will render a person liable to deportation, depending on how long they have held a residence permit. At the bottom end is a conviction for an offence which carries a penalty of three months imprisonment, committed before the person was granted residence or within two years of first gaining residence. At the most serious end is a conviction, in respect of which a sentence of imprisonment of five years or more has been imposed, for an offence committed within ten years of first gaining residence. Deportation prohibits the person's return to New Zealand.
37. The Department prepares deportation cases with the assistance of the Department's Legal Services, the New Zealand Police, the Ministry of Justice, and other agencies. The case is submitted to the Minister for decision.
38. In addition, the Governor-General, upon certification by the Minister, may, by Order in Council, order the deportation from New Zealand of any person whose continued presence constitutes a threat to national security^[8]. The Minister may also order the deportation of terrorists or suspected terrorists^[9].

Decisions pertaining to individuals who present security concerns

39. Part 4A of the Act pertains to special proceedings in cases involving security concerns. This Part of the Act is rarely used. Specific advice as to the Ministers powers under this part will be provided if the need arises.

Limits on the Power to make Exceptions

40. While the limits to policy exceptions are not defined in statute, there comes a point at which proposals cannot be considered an exception to policy. For example, where a group of inter-related individuals are granted an exception to existing criteria, this can be perceived as creating a new de facto policy. Risks that could arise from approving such cases ostensibly as individual exceptions when, in fact, their approval has introduced a new de facto policy, include:
    • an Associate Minister exceeding the powers delegated by the principal Minister
    • an Associate Minister exceeding the legal power to make exceptions
    • residence applicants who were required to meet the normal and more onerous policy criteria suing the Crown, because they had been disadvantaged
    • the Residence Review Board (RRB) facing pressure to recommend appeal cases to the Associate Minister for consideration as exceptions on the basis of the de facto policy, and
    • creating inconsistency by a refusal to grant others residence under the de facto policy, and therefore opening the way for a judicial review.
41. A more appropriate course where the circumstances of a group were being considered or where a particular outcome was sought by setting qualifying criteria would be for the Associate Minister to ask the principal Minister to consider a new policy category open to all applicants. A new category would need to be established in consultation with ministerial colleagues (and their Departments, as appropriate).
42. Despite these caveats, the judicious use of the power to make exceptions to policy assists the smooth running of the immigration portfolio. There are circumstances where the Department and the RRB do not or cannot grant residence to deserving applicants. The use of ministerial power can overcome the occasional perverse results of the residence system that closely delineates the limits of immigration and visa officers' discretion.

The Role of Appeal Authorities

43. While the Act gives the Minister the discretion to grant permits in special cases, the Minister is not formally responsible for deciding appeals against Department decisions. This is the domain of four independent appeal authorities established under the Act:
    • the Refugee Status Appeals Authority (RSAA)
    • the Residence Review Board (RRB)
    • the Removal Review Authority (RRA), and
    • the Deportation Review Tribunal (DRT).
44. Members of the authorities are appointed by the Governor-General on the advice of the Minister of Immigration or, in the case of the DRT, the Minister of Justice. With the exception of the DRT, which is serviced by the Ministry of Justice, these authorities are serviced by the Department of Labour. Staff servicing the RSAA, RRB and RRA are located in the Legal and International Group.

Refugee Status Appeals Authority (RSAA)

45. The RSAA considers appeals from persons who the Department of Labour's Refugee Status Branch has determined not to be refugees. Appeals are considered de novo; that is, a full reconsideration is made on the basis of a new hearing. While there is no further right of appeal, application may be made to the High Court for judicial review of an RSAA decision. Claimants may also lodge further refugee status claims if circumstances change. Under the Act, the Minister has no power to determine or make recommendations on individual refugee status claims.

Residence Review Board (RRB)

46. The RRB (known as the Residence Appeal Authority (RAA) before 2003) considers appeals against declined residence applications "on the papers". The authority reviews the decision of the Department against Government Residence Policy. Under section 18D(1)(f) the RRB may refer cases that are outside policy to the Associate Minister with a recommendation that the Associate Minister approve them as an exception to Government Residence Policy.
47. There is a formal appeal to the High Court against the RRB's decisions on a point of law. Judicial review by the High Court is also possible, although subject to a three month limitation period.

Removal Review Authority (RRA)

48. People who are in New Zealand unlawfully are obliged by the Act to leave, but most may, within 42 days of their lawful status expiring, appeal to the RRA against this obligation on the grounds of exceptional humanitarian circumstances. Where appeals are allowed, the RRA may direct the Department to grant a temporary or residence permit. There is no discretion for the RRA to consider an appeal outside the 42 day time limit.

Deportation Review Tribunal (DRT)

49. Appeals against deportation orders and against revocations of residence are made to the DRT. The DRT may quash or confirm deportation orders and revocations on the basis that it would be unjust or unduly harsh for the person to lose their right to residence in New Zealand. In deportation cases, this is weighed against the public interest. The Ministry of Justice services the DRT.

Administrative roles of the Minister and Associate Minister

Approving wording of Operational Manual, forms, visas and permits

50. The Minister of Immigration has traditionally approved all immigration applications forms before publication. This function has recently been delegated to the Deputy Secretary Workforce. The Minister is also required to approve the format and wording of visa and permit labels and of permit stamps used at the border.
51. The Act requires that the Minister approve and formally certifies the final wording of GRP and to publish GIP, which are included in the Department's immigration Operational Manual. Policy wording is developed to reflect and implement government policy decisions.
52. The Department groups policy and operational changes into around three release packages each year. This approach makes change more manageable for the Department, and for applicants and their agents, than a constant stream of smaller changes. Urgent changes can be made outside the release cycle.
53. Release material submitted for Ministerial approval typically includes new or amended policy, visa and permit wording, and forms. Policy provisions are often detailed and lengthy, reflecting the need for precision in wording. The Department prepares explanatory notes and provides briefings on the content of the packages.

Approval of delegations to officials

54. Immigration and visa officers are given some powers by the Act. Many basic immigration functions, such as the power to grant permits, are, however, established as Ministerial powers, which need to be delegated for officials to be able to exercise them. Most delegations are given to classes of officers, rather than individuals. Delegations by previous Ministers remain in force until amended, but any changes require the current Minister's approval.

Departmental support to Ministers

Individual cases requiring decisions

55. The Department provides and coordinates support for the Associate Minister's administrative functions, generally through its Review branch, which is the responsibility of the Group Manager, Service Design. The immigration private secretary in the Minister's office is usually a seconded senior immigration officer or manager with the specialist knowledge required to support the Minister in making decisions on individual cases.
56. Cases are submitted with summaries, with more detailed briefings given on complicated or controversial cases. The summaries set out the request, the individual circumstances, and the relevant law and policy. This helps to ensure that the Associate Minister is able to take all relevant factors into account. The Department submits a draft letter of reply for the consideration of the Minister, who is, of course, free to take an alternative course, or to request additional information or advice.
57. As outlined above, Ministers have no formal appellate jurisdiction under the Act. Where a formal appeal process exists, therefore, the Department usually advises that a process run its course before the Associate Minister intervenes. This aims to ensure that the de facto avenue of appeal to the Associate Minister is minimised, thereby preventing a further increase in the ministerial workload of individual cases.

Ministerial servicing

58. The Government and Executive Servicing group (GEMS) of the Department prepares draft ministerial responses to correspondence, parliamentary questions and Official Information Act requests received by the Minister on immigration policy matters. In 2006/07, the Department prepared approximately 780 draft responses to correspondence and 110 draft replies to requests for official information. The Department also prepared 68 draft responses to parliamentary questions for oral answer and 368 draft responses to parliamentary questions for written response.

Recent and current legislative change

Immigration Advisers Licensing Act 2007

59. The Immigration Advisers Licensing Act 2007 will substantively come into force in May 2008. From May 2009 anyone providing New Zealand immigration advice will be required to be licensed (unless exempt). By making Immigration Advisers a licensed, recognised profession, the new law will protect people from being seriously disadvantaged through poor advice or unprofessional behaviour. It will also protect Advisers, helping to ensure that they give their clients sound advice and professional service.
60. The Act also establishes the Immigration Advisers Authority (IAA), an independent Authority that will administer the licensing process for advisers both on and offshore. The Authority is housed within the Department, located within the Legal and International Group. The Registrar and IAA team are all Departmental staff, and the Authority will eventually be based in Auckland. To obtain and hold a licence, Advisers will have to meet competency standards and adhere to a code of conduct. The IAA Project is currently developing drafts of both, which will be sent out for public consultation in late 2007.

Immigration Bill 2007

61. In April 2006 the Government announced the most comprehensive review of immigration legislation in 20 years. A discussion paper was released for public consultation and nearly 4,000 submissions from individuals and organisations were received. The draft Bill was introduced to the House in September 2007 and is currently before the Transport and Industrial Relations Select Committee. It is expected to pass during 2008, and will come into force 12 months after the Royal Assent.
62. The Bill aims to help New Zealand ensure it has the skills, talent and labour needed for economic transformation, New Zealanders have confidence in our border security, and migrants and refugees settle well, and integrate into communities. Some specific differences between the current and proposed legislation are
    • the abolition of the visa / permits distinction (there will only be visas)
    • a legislative enabling provision for the use of biometrics
    • a streamlined deportation process, which will simplify the terminology and remove the current ability to appeal to a number of different fora in turn (all grounds will be considered in the single appeal process by a new single Immigration and Protection Tribunal), and
    • new detention and monitoring provisions.

Appendix A: Glossary of Immigration Terms

APPDepartmental Decision Makers (DDM) Deportation Exemption Government Immigration Policy

Government Immigration Policy contains the rules and criteria for eligibility for temporary or limited purpose entry, or transit through New Zealand. Decisions under Government Immigration Policy remain discretionary, i.e. officers are obliged to consider any exceptional circumstances that may justify a decision outside policy. Compare Government Residence Policy below.

Government Residence Policy

Government Residence Policy governs the grant of residence. Officers (but not the Minister) are bound to follow policy and may exercise discretion only in terms of that policy.

Immigration officer

An immigration officer holds a warrant under the Act. Immigration officers consider permit applications at onshore branches, and are also visa officers under the Act. Only immigration officers designated specifically for the purpose may serve removal orders.

Limited purpose visa or permit

Limited purpose entry allows entry into New Zealand for an express purpose only and may be used in cases where a risk of overstaying has been identified. The holders of limited purpose permits may apply only for a further limited purpose permit (i.e. may not apply for a temporary or residence permit). They are subject to immediate removal if they become unlawfully present in New Zealand and have no right of appeal against removal (refugee status may still be claimed).

Permanent Residents

The Act does not use this term, but it is sometimes used to refer to residence permit holders. Other legislation uses similar terms, but defined differently in each case.

PermitRefugee status

A person who has been recognised as a refugee according to the Refugee Convention definition has refugee status.

Refugee status officer

Employees of the DoL designated to determine refugee status claimants. May not be so designated while employed in considering permit applications or administering removal provisions.

Removal

People are subject to removal by the DoL if they are in New Zealand unlawfully, usually because they have overstayed after the expiry of a temporary permit. Compare with Deportation, above.

Residence

A residence permit entitles the holder to be in New Zealand indefinitely and to undertake employment and study without restriction under the Act (although requirements may be imposed). A residence visa is used for a migrant's first journey to New Zealand and allows the grant of a residence permit on arrival. As a result, onshore residence applicants apply for a residence permit, offshore applicants apply for a residence visa.

Returning resident's visa

A returning resident's visa is required for the holders of residence permits who wish to leave New Zealand temporarily and return (because a residence permit expires on departure, see Permits above). A valid returning resident's visa entitles the holder to be granted a residence permit on arrival in New Zealand.

Temporary Entry

A general term used to encompass temporary permits and temporary visas.

Temporary permit

Visitor's, student and work permits are the three types of temporary permit. Holders of temporary permits may apply for other types of temporary permits or for residence permits while in New Zealand.

Visa

A visa indicates that the visa officer, at the time of visa issue, knows of no reason why the holder should not be granted a permit on arrival in New Zealand. Visas are valid for specified period and number of journeys. The type of visa will determine the type of permit granted on arrival, along with special conditions and expiry dates. Visas are endorsed in passports as adhesive labels. The Act authorises visas in electronic form; in practice, currently Visitor's Permit renewals, Student Permits and Working Holiday Visas can be issued electronically for specific client groups. Every person travelling to New Zealand must hold a valid visa, unless specifically exempted (as are short-term visitors from over 50 countries). Compare with Permit above.

Visa officer

A visa officer makes decisions on visa applications. Offshore staff are visa officers. This includes seconded and locally-engaged DoL and Ministry of Foreign Affairs and Trade staff, and can include any employee of another government acting as an agent for the New Zealand Government. Compare with immigration officer above.

Appendix B: Department of Labour Workforce Structure

1. The Department of Labour (DoL) administers immigration within the Workforce group, which is comprised of immigration policy, employment and skills policy, and research and evaluation functions. The agency formerly known as the New Zealand Immigration Service (NZIS) is now generally known as the DoL, and as Immigration New Zealand in its onshore and offshore branches.
2. There are five parts of Workforce, each headed by a Group Manager, who report directly to the Deputy Secretary - Workforce, Mary Anne Thompson. The parts are:
   • Policy
   • Service Design (which implements policy, and also includes the Review branch function)
   • Service Delivery (operational support to branches)
   • Service International (Pacific branches, refugee services and settlement), and
   • Border Security.
3. The DoL's legal unit (led by the Deputy Secretary - Legal and International, Graeme Buchanan) provides legal decisions and advice on matters of immigration policy and operations to the Minister and the Department.
4. The Deputy Secretaries and the group managers may channel work to the Minister for consideration and decision-making. This work includes decisions on individual cases, as well as approval for amendments to operational resources such as the manual.

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Footnotes:

^[1] Section 7 of the Act.

^[2] See paragraph 9 below.

^[3] Previously the New Zealand Immigration Service (NZIS), since May 2005 the agency is referred to as the Department of Labour or Immigration New Zealand (branding of branches). Appendix B provides a description of the Workforce structure.

^[4] Under regulations made pursuant to section 12, Australian citizens are exempted from the requirement to hold a permit for an indefinite period. Under section 11, time-limited exemptions apply, among others, to accredited diplomats, transiting commercial aircrew, and members of visiting armed forces.

^[5] Section 13C(2).

^[6] Section 20(1). This power could, however, be exercised by another Minister

^[7] Sections 91 and 92. The power also applies to exempt persons, i.e. Australian citizens living in New Zealand.

^[8] Section 72

^[9] Section 73