Common questions and answers regarding residence appeals in the IPT
Appellants frequently challenge IPT decisions by arguing that the Tribunal either incorrectly interpreted or applied INZ residence instructions (substantive error) or failed to follow fair procedures, such as not considering all relevant information or introducing prejudicial material without giving the appellant a chance to respond (procedural error).
The Immigration Act 2009 provides explicit grounds for such appeals, and New Zealand case law has established that both types of errors can amount to errors of law, justifying appellate intervention if properly substantiated.
In practice, successful appeals require the appellant to clearly identify the specific instruction misapplied or the procedural step omitted, and to show how this affected the outcome.
Legislative Framework
The Act is the principal statute governing appeals to the IPT regarding residence class visa decisions. Section 187 of the Act sets out the grounds for appeal, including that the decision was not correct in terms of the residence instructions applicable at the time of the visa application.
Section 188 empowers the Tribunal to confirm or reverse the decision based on whether it was correct according to those instructions.
Section 230 imposes a duty on the Tribunal to disclose any prejudicial information it receives from sources other than the appellant and to give the appellant an opportunity to respond before relying on such information in its decision.
These provisions collectively establish both the substantive and procedural parameters for appeals against IPT decisions, ensuring that both the correct application of immigration instructions and procedural fairness are central to the Tribunal’s decision-making process.
The Judicial Review Procedure Act 2016 provides a mechanism for challenging the exercise or failure to exercise statutory powers, including those of the IPT, on grounds such as error of law or breach of natural justice. However, appeals on points of law from the IPT are primarily governed by the Act.
Common Questions and Answers
1. Substantive error: Incorrect interpretation of INZ instructions
Common question:
Did the IPT incorrectly interpret or apply the relevant INZ residence instructions when determining the appellant’s eligibility for a residence class visa?
Answer:
The appellant should identify the specific INZ instruction at issue and explain how the Tribunal misapplied or misunderstood it. For example, if the instruction required evidence of “sustained and ongoing employment,” the appellant should demonstrate that the Tribunal either applied an incorrect legal standard or failed to consider evidence that satisfied the instruction. The appellant should reference section 187 of the Act, which allows appeals on the ground that the decision was not correct in terms of the applicable residence instructions. Supporting case law, such as Li v The Immigration and Protection Tribunal & MBIE, confirms that misinterpretation or misapplication of instructions is a recognised error of law.
Key points in the above example:
Identify the specific instruction and the alleged misinterpretation.
Explain how the Tribunal’s interpretation deviated from the correct legal standard.
Reference section 187 of the Immigration Act 2009 and relevant case law.
Demonstrate the material impact of the error on the outcome.
2. Procedural Error: Failure to consider information provided
Common question:
Did the IPT fail to consider relevant information or evidence provided by the appellant, thereby breaching procedural fairness or natural justice?
Answer:
The appellant should specify what information was provided, how it was relevant to the decision, and in what way the Tribunal failed to consider it. The appellant should argue that this omission constituted a breach of natural justice, as recognised in Li v IPT & MBIE, where the Court found that failing to consider material evidence or to provide an opportunity to address adverse findings could amount to an error of law. The appellant should also reference section 230 of the Act, which requires the Tribunal to disclose prejudicial information and allow the appellant to respond.
Key Points in the above example:
Identify the information provided and its relevance.
Explain how the Tribunal failed to consider it.
Reference section 230 of the Act and supporting case law.
Demonstrate the impact of the omission on the fairness of the proceedings.
3. Procedural Error: Introduction of New Information Without Opportunity to Respond
Common question:
Did the IPT introduce new or prejudicial information into the proceedings without giving the appellant an opportunity to respond, thereby breaching procedural fairness?
Answer:
The appellant should identify the specific information introduced by the Tribunal, explain how it was prejudicial, and demonstrate that they were not given an opportunity to comment or rebut it. Section 230 of the Act explicitly requires the Tribunal to disclose such information and allow a response. Failure to do so is a breach of natural justice and can amount to an error of law, as recognised in Li v IPT & MBIE.
The appellant should also be aware of the limits of this obligation, as the Tribunal is not required to notify the appellant of every possible adverse inference, especially if the information is already known or provided by the appellant: Av (Somalia) v a Refugee and Protection Officer. The focus should be on whether the information was new, prejudicial, and material to the decision.
Key Points in the above example:
Identify the new or prejudicial information introduced.
Explain how the appellant was denied an opportunity to respond.
Reference section 230 of the Act and relevant case law.
Show the material impact on the outcome.
Thresholds and limitations
Not every error will justify appellate intervention. The courts have emphasised that only errors of law, not mere disagreements on factual findings, are grounds for appeal: Li v Chief Executive of The Ministry of Business, Innovation and Employment. The error must be material and have affected the outcome.
Procedural errors must be substantiated with evidence, such as affidavits, and must be raised in a timely manner: Co v Chief Executive, Ministry of Business, Innovation and Employment.
The Tribunal is not obliged to seek further information or notify the appellant of every possible adverse finding, especially where the information is already known or provided by the appellant: Na (India) v Refugee and Protection Officer [2023] NZHC 1345; Av (Somalia) v a Refugee and Protection Officer. The obligation to disclose and allow a response applies primarily to new, prejudicial information from third parties.
Exceptions and caveats
If the Tribunal’s procedural error is cured by a full rehearing on appeal, the original breach may not justify further intervention: Li v The Immigration and Protection Tribunal & MBIE.
The Tribunal’s discretion to restrict its inquiry to the material provided by the parties means that appellants cannot complain about the Tribunal not seeking further evidence unless there is a clear statutory or natural justice obligation to do so: Na (India) v Refugee and Protection Officer.
The courts will not intervene for minor or technical breaches that do not affect the outcome or fairness of the proceedings.
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.
