An overview of Ministerial appeals in New Zealand
Ministerial requests provide a safety net for a person who has exhausted all lawful appeal options to remain in New Zealand. It is a misnomer to refer to this option as an “appeal”, as a person does not have a legal right to put their case to the Minister. Rather, it is a request to the Minister to exercise absolute discretion to intervene and provide an immigration resolution.
Below are some of the more common questions and answers relating to this topic.
What is a ministerial appeal in the context of New Zealand immigration law?
A ministerial appeal generally refers to a request for the Minister of Immigration to exercise personal discretion to grant a visa or intervene in an immigration matter, outside the standard statutory appeal processes. This is most commonly done under section 61 of the Immigration Act 2009 for people unlawfully in New Zealand, or section 172 for cancellation or suspension of deportation liability.
What are the statutory grounds for seeking ministerial intervention in immigration matters?
There are no prescribed statutory grounds for ministerial intervention under section 61 or section 172 of the Immigration Act 2009. The Minister has “absolute discretion” and may grant or refuse a visa or cancel deportation liability for any reason, or no reason at all.
What is the process for making a ministerial appeal or request for intervention?
The process is informal and discretionary. An applicant (or their legal representative) submits legal submissions and all relevant support documents to the Minister or Associate Minister of Immigration, outlining their circumstances and reasons for seeking intervention. There is no obligation on the Minister to consider the request, provide reasons, or follow any particular procedure.
Are there any rights of appeal against decisions made by the Minister under sections 61 or 172?
No. Decisions made by the Minister under section 61 or section 172 of the Immigration Act 2009 are not subject to appeal. The only possible recourse is judicial review, which is available on very limited grounds.
On what grounds can a court review a ministerial decision in immigration matters?
Judicial review is available only on narrow grounds, such as Wednesbury unreasonableness (i.e., if the decision is so unreasonable that no reasonable Minister could have made it), procedural impropriety, or failure to consider mandatory relevant considerations. The courts will not substitute their own view for that of the Minister or require the Minister to provide reasons for the decision.
What is the role of humanitarian considerations in ministerial appeals?
While the Minister is not required to consider any particular factors, humanitarian circumstances are often raised in requests for intervention. For statutory appeals to the Immigration and Protection Tribunal (e.g., against deportation), the Tribunal must find “exceptional circumstances of a humanitarian nature” that would make deportation unjust or unduly harsh, and that allowing the person to remain would not be contrary to the public interest (section 207 of the Immigration Act 2009).
What are some key cases that clarify the scope of ministerial discretion in immigration law?
New Zealand courts have repeatedly affirmed the breadth of ministerial discretion. For example, in Taylor v Minister of Immigration, the High Court confirmed that the Minister’s decision under section 61 is an exercise of absolute discretion, and judicial review is available only on very limited grounds. Similarly, Clarabal v New Zealand Police reiterated that the Minister is not required to provide reasons for such decisions.
How do international human rights obligations affect ministerial decisions in immigration cases?
The Minister must act consistently with New Zealand’s international human rights obligations, including those under the New Zealand Bill of Rights Act 1990 and relevant international treaties. This means that removal or deportation decisions must be justified as proportionate and reasonable, and the Minister should consider the impact on family and private life, especially where children are involved.
Conclusion
Our immigration lawyers are specialised in dealing with deportation, refugee, human rights, and immigration appeals. If you have concerns about returning to your home country, or you have been made liable for deportation, we encourage you to contact one of our lawyers.
