新西兰指南-Administration-Grant of a visa in a special case under section 61

Brainy · 2015 年8 月 24 日 08:27

A23 根据61节，签发签证的特殊情况

从新西兰指南-Administration-Biometric Information继续讨论

A23.1.1 法律框架的概述
A23.1.1 概述

a 下列的申请人，移民官可能任意时候授予不同类型的签证：
i 在新西兰非法逗留的申请人；
ii 不是被非法驱逐出境的申请人；
b 移民官在某些特殊情况下授予签证的权利已经被取消；
c 根据61节签证的签发是酌情考虑，没有人有权申请签证，如果申请人声称根据61节申请签证：
i 大臣或者委派的移民官没有义务考虑要求；
ii 大臣或者委派的移民官没有义务进行进一步的要求；
iii 要求是否被考虑，大臣或者移民官没有义务给出有关决定的理由；
iv 1982官方移民法案中的23节和2009移民法案的27节(关于处理决定的权利)不适用；
d in simple terms根据61部分作出要求的人：
i 无权申请签证；
ii 有责任保证潜在的信息可能被考虑；
iii 无权让自己的请求被考虑；
iv 如果请求被考虑，他们无权被告知特殊决定达成的理由；
v 如果其请求被考虑，他们无权要求违背移民规定的申请进行特殊的考虑；

A23Grant of a visa in a special case under section 61
A23.1 Overview and legal framework

A23.1.1 Overview

a.The Minister may, at any time, grant any type of visa to a person who is:

i.unlawfully in New Zealand; and

ii.not a person in respect of whom a deportation order is in force.

b.The Minister’s power to grant a visa in a special case has been delegated to officers with Schedule 3 delegations or above.

c.As the grant of a visa under section 61 is a matter of absolute discretion, no person has the right to apply for a visa under section 61, and if a person purports to make such an application by requesting the grant of a visa under section 61:

i.the Minister or delegated immigration officer is not obliged to consider the request; and

ii.the Minister or delegated immigration officer is not obliged to make further enquiries or inquire into the circumstances of the person or any other person; and

iii.whether a request is considered or not, the Minister or immigration officer is not obliged to give reasons for any decision on it, other than that section 11 applies; and

iv.section 23 of the Official Information Act 1982 and section 27 of the Immigration Act 2009 (concerning the right of access to reasons for decisions) do not apply.

d.In simple terms people who make requests under section 61:

i.have no right to apply for a visa under it;

ii.have full responsibility for ensuring that any and all information that might potentially be considered in any exercise of the section 61 discretion is put forward with their request;

iii.have no right to have their request considered;

iv.if their request is considered, have no right to be told why a particular decision was reached;

v.if their request is considered, have no right to have it considered against any particular immigration instructions.

A23.1.5 合法的结构

a 根据61部分规定，特殊情况下签证的签发是绝对自由裁量权的体现。这样澄清了对新西兰客户和员工的expectations。61节是处理打算移民新西兰的费新西兰身份的申请人的综合考虑规定之一。
b enactment的意义需要根据其目的进行确定。2009移民法案需要进行reviewed；
c 在法案的第3节已经列出了法案的目的。目的是为了管理移民，平衡国际利益以及个人权利等，且由crown决定。2部分继续列举了法案通过建立移民系统达成目的的方式(a)要求不是新西兰公民的人如下要求；
i 持有签证入境新西兰；
ii 持有签证，授予新西兰入境许可；
(e)包括保证移民申请体系且符合要求的的机制，如下：
(ii)将不是新西兰公民身份的且不符合移民要求的申请人驱逐出境，递交犯罪证明或者是证明某人携带危险因素的证明；
d 由法案提供的唯一权利针对于在新西兰非法逗留的人：
某些情况下，向移民保护法庭申诉的权利，42天有效；
如果被驱逐出境的话，取消驱逐出境的权利需要提供关于其个人情况的信息，信息与与新西兰国国际责任有关；
进行难民身份保护的权利的claim；
e 权利的限制是由法律规定，目的是更高水平的符合移民法案。保证那些并不符合移民申请的人不能申请移民；
f 绝对自由裁量权的限制反映了关于移民最终决定的需求；

A23.1.5 Legal framework

a.The grant of a visa in a special case under section 61 involves the exercise of a power characterised as being one of ‘absolute discretion’. This instruction clarifies expectations for INZ customers and staff when the section 61 provisions are applied. In particular, it situates the application of the section 61 power of absolute discretion within the broader scheme of the Immigration Act 2009. Section 61 is but one component of a comprehensive system for dealing with the circumstances of non-New Zealand citizens wishing to come to and stay in New Zealand.

b.The meaning of an enactment must be determined from its text and in light of its purpose. Accordingly, the Immigration Act 2009 (the Act) needs to be viewed in its entirety and section 61 viewed against this whole – that is, part of a comprehensive statutory scheme that manages immigration in New Zealand.

c.The purpose of the Act is set out in section 3 of the Act. It is “to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals”. Subsection (2) goes on to set out how the Act aims to achieve this purpose through establishing an immigration system that (amongst other things) –

“(a) requires persons who are not New Zealand citizens to –

(i)Hold a visa to travel to New Zealand; and

(ii)Hold a visa and be granted entry permissions to stay in New Zealand; and …

(e) includes mechanisms to ensure that those who engage with the immigration system comply with its requirements, including mechanisms that –

(ii) prescribe the system for the deportation of people who are not New Zealand citizens and who fail to comply with immigration requirements, commit criminal offences, or are considered to pose a threat or risk to security.”

(emphasis added)

d.The only rights provided by the Act to persons who are unlawfully in New Zealand are:

In some circumstances, a right to appeal to the Immigration and Protection Tribunal, within 42 days of becoming unlawful, on humanitarian grounds against the requirement to leave New Zealand; and

If served with a deportation order, the right to have cancellation of the deportation order formally considered if the person “provides information … concerning his or her personal circumstances, and the information is relevant to New Zealand’s international obligations” (section 177 of the Act); and

The right to, at any stage, make a claim for refugee or protection status.

e.The restrictions on rights are intended by the statute to achieve a high level of compliance with immigration law and, in particular, ensure that persons who do not meet immigration rules and procedures are not advantaged over those who do comply with the system.

f.The restriction of rights in “absolute discretion” decision making (as set out in A23(c)) also reflects the need for finality in immigration decision making in respect of individuals on whom the scheme of the Act has imposed an obligation to depart New Zealand and who are positioned for deportation processes.

A23.5 考虑或者拒绝对请求的考虑

A23.5.1 拒绝对请求的考虑

a 根据61节，考虑请求并不是绝对的。移民官可能拒绝考虑请求。然而，可能他们可能考虑请求或者要求申请人提供更多的信息；
b 移民官拒绝考虑请求，他们不必须记录这样做的理由；
c 移民官选择记录与请求相关的事项，可能以电子的或者书面形式记录；
d 如果移民官要求更多的信息或者相关证明，之后请求被考虑且需要根据A23.5.5的规定进行处理；

A23.5 Considering or refusing to consider a request

A23.5.1 Refusing to consider a request

a.There is no obligation to consider a request made under section 61. An immigration officer may refuse to consider the request given the information provided. Equally, however, they may consider a request and may ask for more information or evidence to be provided to do so.

b.Where an immigration officer refuses to consider a request they need not record reasons for doing so (other than the reason that section 11 of the Act applies).

c.Any matters an immigration officer chooses to record in relation to the request may be recorded on the physical and electronic file associated with the request.

d.If an immigration officer asks for more information or evidence then the request has been considered and the process set out below under A23.5.5 Considering a request must be followed.

A23.5.5 考虑请求

a 如果移民官认为，根据相关证据或者请求者的申报材料有必要进行考虑，那么移民官会考虑申请；
b 并没有具体的移民指令且需要符合绝对自由裁量权的决定；
c 根据61节，在新西兰非法身份逗留的进行request的请求不会被考虑；
d 在请求考虑期间，移民官没有义务要求进一步的信息或者是寻找不利于移民申请的各项因素。然而，这个并没有排除移民官对进一步信息的要求(像医疗和无犯罪证明等)或者是辅助移民官考虑的其他信息；
e 移民官需要考虑相关信息是否促进签证的签发；举例，根据离开新西兰的要求是否违背人权的申诉进行考虑；
f 61节的决定一直受限于公平的一般要求(由公共法律规则衍生的)。然而，特殊情况下要求的公平需要综合考虑多方面因素包括特定的章程，全面的规定的章程等等；
g 法庭已经描述出于绝对自由裁量权相似的语言。这个限制的权利可能与移民法规进行比较；
h 移民官考虑的相关事宜，在新西兰非法逗留且有可能被驱逐出境的，根据法案有如下的选择：
i 根据相关规定，自愿被新西兰驱逐出境，之后在新西兰境外申请签证；
ii 配合要求，移民官员进行面试以获得个人情况的记录。移民官可能在获得个人情况记录后进行决定；
i 当处理请求的情况下，新西兰国际义务也可能是需要考虑的相关因素；
j 无论请求是否已经被考虑，都需要进行电子记录。移民官员选择记录的与请求相关的事项可能由电子或者其他形式进行记录。

A23.5.5 Considering a request

a.If the immigration officer decides that there are grounds to consider the request based on the evidence and submissions provided by the requester, he or she should consider the request.

b.There are no specific immigration instructions that must be met as decisions are a matter of absolute discretion.

c.As a person making a request for a visa under s61 is unlawfully in New Zealand and requests the exercise of absolute discretion as an exception to the usual rules governing those unlawfully present in New Zealand and liable to deportation, it is for the person making the request to put forward their case.

d.During the consideration of a s61 request, an immigration officer is not obliged to request any further information or to seek comment prior to an adverse immigration decision being made. A decision can be made solely on the basis of the facts available and the submissions provided with the request. However, this does not preclude an immigration officer requesting further information (such as a medical or police certificate) or comment to assist him or her in considering the request.

e.In considering a s61 request immigration officers should also consider whether or not the matters put forward for the grant of a visa are best dealt with by the applicant exercising one of their rights under the Act; for example, by way of an appeal on humanitarian grounds against the requirement to leave New Zealand to the Immigration and Protection Tribunal (if such appeal is available).

f.Decisions under s61 are still subject to the general requirement of fairness that is derived from public law principles. However, what fairness requires in a particular case must be determined having regard to all the circumstances including the particular statutory provisions under which the decision is made, the overall statutory scheme, what is known of the requestor’s circumstances and the consequences of the decision.

g.Consistent with this approach, the courts have described language similar to the definition of “absolute discretion” in section 11 as conferring “rights which … are very limited”. These limited rights may be contrasted with the protections made available elsewhere in the immigration legislation.

h.A relevant consideration which immigration officers may take into account when determining a request under section 61 is that the requestors, as persons unlawfully present in New Zealand and liable to deportation (although not yet subject to a deportation order), have the following options contemplated by the Act:

i.to voluntarily depart from New Zealand at any time under their statutory obligation to do so, and is free to apply for a visa from outside of New Zealand in accordance with the usual rules and processes, or

ii.to cooperate in being interviewed by an immigration officer to obtain a Record of Personal Circumstances before a deportation order is made and served. The immigration officer may determine, after obtaining a Record of Personal Circumstances, whether or not the deportation process under sections 175 to 178 should continue.

i.New Zealand’s international obligations may also be a relevant consideration to be taken into account when assessing a request under section 61.

j.The electronic record of the request must record whether the request has been considered. Any matters an immigration officer chooses to record in relation to the request may be recorded on the physical and electronic file associated with the request.

A23.10 考虑的结果

a 当请求被考虑的时候，移民官应该进行明确的记录，记录决定的相关的理由等；
b 决定签发签证或者拒签签证的决定也应该被详细的记录。如果请求通过，签发签证的类型和有效期也应该被明确说明；
c 与一般的申请不同，决定的理由无需根据与客户的交流并进行记录。但是这也是官员需要考虑的一个因素。如果官员行使自己的绝对自由裁量权而没有考虑申请人的理由，这样是不充分的；
d 如果移民官不为请求者提供理由，根据隐私或者官方法案需要给出不提供理由的原因。

A23.10 Outcome of the consideration

a.When a request has been considered, Immigration officers should briefly record, on the physical and electronic file, their reasons for the decision.

b.The decision to grant or not to grant a visa following the consideration should be clearly recorded on the physical and electronic file associated with the request. If the request is approved, the type and duration of visa to be granted should be stated.

c.Unlike an ordinary application, the reasons for the decision need not be recorded in communication with the client. That, however, is a matter for the officer concerned. If the officer exercises his or her discretion to not give reasons to the requestor, he or she must however expressly record that section 11 of the Act applies.

d.If an immigration officer chooses not to provide reasons to the requestor in reliance on section 11, consideration should be given to withholding these reasons if a request is received under the Privacy or Official Information Acts on the basis that disclosing this information would be contrary to section 11 of the Immigration Act 2009 (section 18(c)(i) of the Official Information Act and section 7(2) of the Privacy Act).