FREQUENTLY ASKED QUESTIONS
DISCLAIMER
The material contained in Frequently Asked Questions is provided as general information only. The questions are ones that have often been asked by people who have contacted the Removal Review Authority. The answers given are intended to be helpful but are provided on the understanding that the Removal Review Authority is not offering any professional advice.
The information provided is necessarily
brief and in summary form only. Every effort has been made to ensure the accuracy
of the material provided. If this information differs from the Immigration
Act 1987, then the provisions of the Immigration Act 1987 prevail. You should
read the detailed provisions of the
Immigration
Act 1987 and the Immigration
Regulations 1999, or consult a lawyer or immigration agent about your circumstances.
ABOUT THE REMOVAL REVIEW AUTHORITY
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Who is the Removal Review Authority?
The Removal Review Authority is an independent judicial body established under section 49 of the Immigration Act 1987 (the Immigration Act).
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What does the Removal Review Authority do?
The Removal Review Authority decides appeals under section 47 of the Immigration Act against the requirement for a person who is unlawfully in New Zealand to leave New Zealand.
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Is the Removal Review Authority part of Immigration New Zealand?
No. The Removal Review Authority is independent of Immigration New Zealand.
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What is the difference between the Removal Review Authority and the Deportation Review Tribunal?
The Deportation Review Tribunal is a separate judicial body administered by the Ministry of Justice. It hears appeals from:
• residence permit holders who are subject to deportation orders as a result of being convicted of certain
criminal offences;
• residence permit and returning residence visa holders whose permits or visas have been revoked in
accordance with sections 20 and 20A of the Immigration Act; and
• people exempt from the requirement to hold a permit who are subject to deportation orders as a result of being
convicted of certain criminal offences.
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How do I contact the Removal Review Authority?
The Removal Review Authority is located on the
6th Floor
SolNet House
70 The Terrace
Wellington
The postal address of the Removal Review Authority is:
PO Box 1674
Wellington
New Zealand
Telephone: 04 915 4274 Facsimile: 04 915 6390
Please note that no direct communication with a Removal Review Authority member is possible.
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Where can I find copies of Removal Review Authority decisions?
This website contains full text decisions of the Removal Review Authority. The published decisions are in a 'depersonalised' form (ie, the appellant's name and other identifying information are removed).
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How should I refer to a decision published on the website?
Please refer to the decision as follows:
• Decision number
• Date of decision
• Paragraph number (where appropriate)
• Website reference
Example: Removal Appeal No 98765, 23 January 2002, paragraph [33]; www.removalreviewauthority.govt.nz
Every effort has been made to ensure the accuracy of the electronic version of decisions by the Removal Review Authority. However, in case of difference, the official sealed decision held by the Removal Review Authority prevails.
LODGING AN APPEAL
Who can Lodge an Appeal?
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Who can appeal to the Removal Review Authority?
Under section 47(1) of the Immigration Act, a person who is unlawfully in New Zealand may appeal to the Removal Review Authority against the requirement to leave New Zealand.
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When am I considered to be "unlawfully in New Zealand"?
Under section 4 of the Immigration Act, you are deemed to be in New Zealand unlawfully if you are not a New Zealand citizen and:
• do not hold a permit; and
• are not exempt from the requirement to hold a permit.
A person is deemed to be unlawfully in New Zealand the day after his or her temporary permit or exemption to hold a permit expires.
Any enquiries regarding your immigration status should be directed to Immigration New Zealand.
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How do I know if I am "unlawfully in New Zealand" if I am not served a removal order?
Once your permit expires you have a legal obligation to leave New Zealand.
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Who can I include in my appeal?
You may include dependent children who are:
• under 17 years of age; and
• unmarried; and
• unlawfully in New Zealand; and
• otherwise entitled to appeal against removal.
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Who may not appeal to the Removal Review Authority?
Under section 47(5) of the Immigration Act, you may not appeal to the Removal Review Authority if you are unlawfully in New Zealand due to the fact that:• you returned to New Zealand while a removal order was in force against you;
• your limited purpose permit has expired;
• the revocation of your residence permit has been confirmed by the Deportation Review Tribunal;
• you are a person to whom section 63 of the Immigration Act applies and you were granted a temporary permit for the purposes of the Mutual Assistance in Criminal Matters Act 1992;
• you are a person to whom section 114K(4)(b) of the Immigration Act applies and in respect of whom a security risk certificate has been confirmed.
How to Lodge an Appeal
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What are the requirements for my appeal?
Section 48 of the Immigration Act requires that an appeal to the Removal Review Authority must be:
• made in the correct (or "prescribed”) manner; and
• accompanied by the correct (or "prescribed") fee; and
• made within 42 days of you becoming unlawfully in New Zealand.
You must use the official appeal form, approved by the Minister of Immigration.
You must personally sign the form.
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Where can I obtain an appeal form?
You can obtain appeal forms in the following ways:
• The form can be downloaded from this website - Appeal Form (pdf - 48kb);
• The form can be obtained from the Removal Review Authority itself (by writing, faxing or telephoning)
• From branch offices of Immigration New Zealand
• The form can be downloaded from the Immigration New Zealand website at Immigration New Zealand - Forms
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What if I do not use the appeal form?
If the official appeal form is not used, your appeal cannot be accepted.
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What language should I use when completing my appeal form?
English.
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How can I send my appeal to the Removal Review Authority?
The appeal can be sent in any one of the following ways:
• By post or courier to the Removal Review Authority's post box number (PO Box 1674, Wellington) with the fee or
credit card details.
• By facsimile to the Removal Review Authority's fax number (04 915 6390) with credit card details for payment of the
appeal fee. You must also post the completed original appeal form, payment details and submissions to the
Removal Review Authority's postal address.
• By delivering it in person to the Removal Review Authority's street address in Wellington (6th floor, SolNet House,
70 The Terrace, Wellington) during office hours, which are from 8.30 am to 5.00 pm, Monday to Friday.
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Who must file an appeal form?
Each adult appellant aged 17 years or over and any married person must lodge their own appeal on a separate the official appeal form. This applies even if the appellants are from the same family, eg parent and adult child.
A dependent child who is appealing in their own right (for example, one whose parents are not appealing) must lodge their own appeal.
What if I am under 17 years old?
Under section 141B of the Immigration Act, as a dependent child under 17 years who is appealing in your own right, your interests are to be represented by a responsible adult. If you have a parent in New Zealand then that parent will usually be the responsible adult. If you do not have a parent to represent your interests, a responsible adult will be nominated by the Authority. The responsible adult must sign the appeal form.
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Who can fill out my appeal form?
This is a matter for you to decide. You can fill it out yourself or, if you want help, you can ask a lawyer, an immigration consultant, a family member, or someone else that you trust. If you use an agent or a representative, that person must give his or her details in the form. However, you, the appellant must sign the form. In the case of an appeal by a person under 17 years of age a responsible adult for the appellant must sign the form.
Representatives and Correspondence
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Who can be my representative?
Your representative can be anyone you nominate in writing to be your representative either in your appeal form or in a separate letter. You must make sure you clearly sign the letter in which you nominate the representative.
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What if I want to change my representative or represent myself?
If you wish to change your representative:
• you can write to the Removal Review Authority with the name and address of the new representative. You must sign the letter; or
• your new representative can write on your behalf to the Removal Review Authority. The letter must also include your signed written advice confirming that the new representative is now acting on your behalf, and details of your current residential address.
If you wish to now represent yourself:
• you must write to the Removal Review Authority advising that the named representative is no longer acting for you. You must include your current postal address and sign the letter.
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Will the Removal Review Authority be writing to me about matters concerning my appeal?
Yes. All correspondence from the Removal Review Authority is sent to your nominated residential address in Question 16 of the appeal form. Those details should always be your contact details (not those of the representative).
If you have a representative, the Removal Review Authority will send correspondence both to that person's contact address and to you at the residential address you have given in Question 16 of the appeal form.
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What if I change my address?
If you change your residential address after lodging an appeal you must immediately write to the Removal Review Authority giving the new address.
Appeal Fees
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What is the fee for an appeal?
The fee for an appeal to the Removal Review Authority is NZ$700.00. A separate fee is payable for each adult appellant (ie, each appellant who is 17 years or over) and a child who is appealing in his or her own right. There are however, the following exceptions:
• only one fee is payable in the case of married couples or couples in a civil union or de facto relationship (whether opposite or same sex), if both appeals for such people are received by the Removal Review Authority together; and
• no fee is payable in respect of a dependent child or children under the age of 17 years included in the appeal of their parent.
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What are the acceptable forms of paying the appeal fee?
The appeal fee must be paid in New Zealand dollars in one of the following ways:
• business cheque
• bank cheque
• personal cheque
• credit card (MasterCard or Visa only)
• cash
If paying by cheque, it should be made payable to: Removal Review Authority
If the fee is not available when the appeal is lodged, for example there are insufficient funds in your account and your cheque does not clear or the credit payment is not accepted by the bank, your appeal cannot be accepted.
Time Period for Lodging an Appeal
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When must my appeal be received?
Under sections 47(2) and 48(1)(b) of the Immigration Act, the Removal Review Authority must receive your appeal, on the official appeal form, with the appropriate fee and the information, evidence and submissions you wish to provide within:
• 42 days after you became unlawfully in New Zealand; or
• 42 days after the date you received notification that, with regard to your application for reconsideration of a declined temporary permit, Immigration New Zealand has confirmed the decision to decline.
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If I have never held a permit to be in New Zealand, when would my 42-day period for appealing to the Removal Review Authority begin?
If you have never held a valid permit (for example you "jumped ship") you are deemed to be in New Zealand unlawfully. The 42-day period in which to appeal to the Removal Review Authority therefore commences the day you arrived in New Zealand.
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Are weekends and public holidays included in the calculation of the 42 days within which I must lodge my appeal?
Under section 2(2) of the Immigration Act 1987, Saturdays and Sundays are counted as part of the 42 days, but the following New Zealand public holidays are not counted if they fall on a week day:
• New Year's Day
• Day after New Year's Day
• Wellington Anniversary Day
• Provincial Anniversary Day for the part of New Zealand where you live
• Waitangi Day
• Good Friday
• Easter Monday
• Anzac Day
• Sovereign's Birthday
• Labour Day
• Christmas Day
• Boxing Day
• Departmental holidays*
* Departmental holidays are holidays observed by the Department of Labour and the Appeal Authorities Secretariat usually between Christmas and New Year.
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Can the Removal Review Authority accept a late appeal?
No. The Removal Review Authority has no jurisdiction under the Immigration Act to accept an appeal that is late.
Grounds of Appeal
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On what grounds may I appeal?
Under section 47(3) of the Immigration Act, you may only appeal on the grounds that:
• there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for you to be removed from New Zealand; and
• that it would not in all the circumstances be contrary to the public interest to allow you to remain in New Zealand.
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What constitutes exceptional circumstances of a humanitarian nature?
Each person's case varies. However, under section 47(4) of the Immigration Act, the mere fact that your circumstances would meet any applicable Government residence policy requirements for the grant of a residence permit does not in itself constitute exceptional circumstances of a humanitarian nature.
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What should I put in my appeal?
Answer every question and complete every section in the appeal form. If there is insufficient space attach a separate sheet. Include with the appeal form all information, evidence and submissions you wish to have considered in support of your appeal.
You should write on your appeal form all the reasons why you think you have exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for you to be removed from New Zealand; and why it would not be contrary to the public interest to allow you to remain in New Zealand.
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Can children included in an appeal make submissions?
Yes. Question 24 of the appeal form provides an opportunity for each child included in an appeal to express their views on the appeal.
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What documents or other material can I include with my appeal form?
You must send us everything you think is relevant or important to your appeal. Written or other material may include:
• submissions
• statements of evidence
• photographs
• letters of support
• medical reports
Remember: the Removal Review Authority is not obliged to consider any information received after the 42-day appeal period.
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Should I send copies or originals of any documents?
Please send certified copies of any official documents such as birth certificates and passports. Certified copies must be witnessed and signed as true copies of the originals by a person who is authorised to do so by law, for example, a solicitor, justice of the peace or notary public.
Please send originals of medical reports, references and letters of support.
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What language should I use when providing information?
English. If information, evidence or submissions in another language are included with the appeal, then a translation of these documents by a recognised translation agency must also be included.
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Can I send information to the Removal Review Authority after I have lodged my appeal?
Perhaps. If your circumstances change or you wish to provide further evidence you should inform the Removal Review Authority. However, you should be aware that the Removal Review Authority must follow section 50 of the Immigration Act, which sets out the procedure to be followed in an appeal.
Under section 50(2)(a) of the Immigration Act, any information, evidence or submissions that you wish to have considered in support of your appeal must reach the Removal Review Authority within the 42-day appeal period. If you need an extension of time, for instance, if a medical report has been requested but it has not arrived within the 42-day appeal period, you should explain this in writing to the Removal Review Authority when the appeal is lodged.
After the 42-day period of time has expired, under section 50(2)(b) of the Immigration Act the Removal Review Authority is not obliged to consider any information supplied by you other than information provided by way of rebuttal or comment to prejudicial information obtained by the Authority, under section 50(6) of the Immigration Act.
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My circumstances have changed since I made my appeal. Can the Removal Review Authority take those changed circumstances into account?
If your circumstances change at any time since you lodged your appeal, you may advise the Removal Review Authority in writing. However, under section 50(4)(b) of the Immigration Act, the Removal Review Authority may not consider any information which relates to matters arising after the date the appeal was lodged, unless it is satisfied that there are exceptional circumstances that justify the consideration of such matters.
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What happens if I give false information in my appeal?
You commit an offence under section 142 of the Immigration Act if you make a statement in your appeal or provide information or evidence including any document you know is false or misleading. If convicted, you could face imprisonment or be fined. You also put your appeal at risk, as the Removal Review Authority must make an assessment of your character.
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If I have been in trouble with the law must I disclose this?
Yes. Character is important in all immigration matters. Questions 19 and 20 of the appeal form require you to declare criminal convictions and any outstanding matters which could have an effect on the assessment of your character.
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Will Immigration New Zealand know if I appeal to the Removal Review Authority?
Yes. Under section 50(3)(a) of the Immigration Act, the Removal Review Authority must give the Chief Executive of the Department of Labour of which Immigration New Zealand is a division, a copy of the notice of appeal and any information, evidence or submissions lodged by you as part of the appeal.
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Do I need to send a copy of my Immigration New Zealand file to the Removal Review Authority?
No. Under section 50(3)(b) of the Immigration Act, the Removal Review Authority receives the files with all the information and documents Immigration New Zealand holds about you.
CONSIDERATION OF THE APPEAL
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How will I know if my appeal has been accepted by the Removal Review Authority?
The Removal Review Authority will write to acknowledge receipt of your appeal and appeal fee.
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Does the Removal Review Authority hold hearings in person?
No. Under section 50(1) of the Immigration Act, the Removal Review Authority must determine appeals "on the papers" and it has no jurisdiction to hold hearings in person. This is why it is very important that you send to the Removal Review Authority everything you think is relevant to your appeal within the 42-day appeal period.
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How long will my appeal take?
The Removal Review Authority endeavours to determine all appeals as soon as possible. The length of time taken for a decision varies depending on the circumstances of the particular appeal, and how many other appeals are before the Authority.
When the Removal Review Authority member to whom the appeal is allocated has made a decision, you will receive a letter together with the written decision of the Authority which explains in full the reasons for the decision.
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Can I request the Removal Review Authority to give my appeal priority?
You can write to the Removal Review Authority to request it to consider your appeal with priority, giving your reasons for this. The Removal Review Authority will make a decision on your request, and inform you of its decision.
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Will I be able to stay in New Zealand while my appeal is being considered?
Yes. Under section 53 of the Immigration Act, you cannot be removed from New Zealand while your appeal to the Removal Review Authority is pending.
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I have an appeal with both the Removal Review Authority and the Residence Review Board. Which is decided first?
You can request in writing to the Removal Review Authority which appeal you want decided first and the Authority will consider that request. Otherwise the Removal Review Authority will decide which appeal is to be heard first and will advise you in writing.
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I have an appeal with both the Removal Review Authority and the Refugee Status Appeals Authority. Which is decided first?
In most cases the appeal to the Refugee Status Appeals Authority would be decided first. The Removal Review Authority will write to you and your representative to advise its intentions and to allow you to make submissions on the matter.
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My appeal to the Refugee Status Appeals Authority has already been dismissed. Does the Removal Review Authority take that decision into account?
Yes. The Removal Review Authority must follow the Court of Appeal decision in Talukder v Removal Review Authority [2000] NZAR 194.
This decision states that the Refugee Status Appeals Authority's conclusions are not binding on the Removal Review Authority. It also says, however, that it is clearly reasonable for the Removal Review Authority to have regard to the Refugee Status Appeals Authority's findings on substantially similar evidence affecting those humanitarian considerations to be considered by the Removal Review Authority.
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I want to leave New Zealand temporarily. Would that affect my appeal?
Yes. If you leave New Zealand your appeal cannot succeed. You should advise the Authority in writing that you wish to withdraw your appeal. If you do not, your appeal will be dismissed.
APPEAL DECISION
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How will I know the Removal Review Authority's decision?
Under section 51(1) of the Immigration Act, you will receive a letter from the Removal Review Authority, together with its written decision, which explains in full the reasons for that decision.
If you have a representative a copy of the decision will also be sent to the representative.
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What happens if my appeal is successful or "allowed"?
Under section 52 of the Immigration Act, where the Removal Review Authority decides that an appeal should be allowed, it may direct an immigration officer to take such steps as it considers necessary to give effect to its decision.
This could include a direction to grant you:
• a residence permit subject to such requirements, if any, as the Removal Review Authority may determine; or
• a temporary permit for such period and subject to such conditions, if any, as the Removal Review Authority may determine.
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Where do I receive my permit if my appeal is allowed?
If the appeal is successful, you must go to the nearest branch of Immigration New Zealand to receive a permit in accordance with any directions given by the Removal Review Authority in its appeal decision.
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What happens if my appeal is unsuccessful or "dismissed"?
Under section 53(1)(b) of the Immigration Act, you may be the subject of a removal order and liable to be removed from New Zealand if you are still unlawfully in New Zealand seven days after the Removal Review Authority's decision has been notified to you. Under section 53(3) of the Immigration Act, you can choose to leave New Zealand voluntarily at any time either before the seven-day period expires or before a removal order is served on you.
Under section 57 of the Immigration Act, a removal order is in force from when it is served. It remains in force for five years after the date the person named in it is removed from New Zealand.
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When am I served a removal order?
Under section 53 of the Immigration Act, if you are unlawfully in New Zealand (usually for more than 42 days), you may be the subject of a removal order and liable to be removed from New Zealand if either:
• you have not exercised your right of appeal to the Removal Review Authority; or
• your appeal to the Removal Review Authority is dismissed.
There is no appeal to the Removal Review Authority against the decision to serve a removal order.
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Can I appeal the Removal Review Authority's decision?
Under section 51 of the Immigration Act, you are entitled to only one decision on your removal appeal and you cannot ask the Removal Review Authority to reconsider its decision.
However, under section 115A of the Immigration Act, you may appeal to the High Court of New Zealand on a question of law. That appeal must be brought within 28 days after you are notified of the Removal Review Authority’s decision, unless you make an application to the High Court within that 28-day period for a longer period to bring your appeal.
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Can Immigration New Zealand appeal the decision should it be in my favour?
Yes. Immigration New Zealand may also appeal to the High Court on a point of law under section 115A of the Immigration Act.
WITHDRAWALS AND REFUNDS
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What if I decide to withdraw my appeal?
Under section 48(5) of the Immigration Act, you may withdraw your appeal at any stage. Please write and tell the Removal Review Authority in a letter and sign the letter. The decision about whether to refund the appeal fee is discretionary.
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Do I receive a refund of my fee if my appeal is successful?
No.
