How to appeal against a requirement that you leave New Zealand

Introduction

Under the IMMIGRATION ACT 1987 you have an obligation to leave New Zealand if you are here unlawfully, whether because a permit expired or was revoked, because you entered the country without a permit or exemption, because you ceased to be exempt from the requirement to hold a permit, because you lost your New Zealand citizenship, or otherwise.

You may appeal against this requirement to the Removal Review Authority. You must lodge your appeal within 42 days of the later of:

• the day on which you became unlawfully within New Zealand, or
• if you had applied to have your rejection of another temporary permit reconsidered, the day on which you were notified that this decision had been confirmed

How do I make an appeal?

Your appeal must:

• set out all the grounds and the full circumstances on which your appeal is based
• include an address in New Zealand where any correspondence concerning the appeal can be sent
• include the address in New Zealand where you are living

Your appeal must be accompanied by the prescribed fee.

If your application doesn’t comply with these requirements, or if it isn’t made within the 42-day time limit, then the Removal Review Authority is not permitted to consider your appeal.

On what grounds can I appeal?

There is only one ground of appeal: namely, that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for you to be removed, and that it would not in all the circumstances be contrary to the public interest to allow you to remain.

Situations in which you have no right of appeal

There are certain circumstances in which you have no right of appeal. This is where you are in New Zealand unlawfully:

• by reason of having returned here while a removal order is in place
• by reason of your limited-purpose permit expiring
• following the Deportation Review Tribunal confirming the revocation of your residence permit

What information will the Removal Review Authority consider in dealing with my appeal?

It is your responsibility to make sure that any information, evidence, and submissions that you want to be considered is received by the Authority within the 42-day period for bringing the appeal. The Authority is not obliged to consider any information that you supply after that period. The Authority may treat the material that you provide as the full appeal, and is not obliged to give you an opportunity to develop the appeal further.

The Authority will seek and receive whatever other information it thinks appropriate. But if any of this is prejudicial to your application, the Authority must make you aware of it so you have an opportunity to rebut it.

What happens when the Authority makes its decision?

The Authority must notify you in writing of its decision as soon as possible. If your appeal is allowed, the Authority will also need to direct the Immigration Service to take the necessary steps to give effect to the decision, such as granting a residence permit or temporary permit.

If the Authority rejects your appeal, a removal order may be made against you.

Can I appeal the Authority’s decision?

The Removal Appeal Authority’s decision is final, and there is no appeal from it.

However, as with any decision by a public agency acting under a statutory power, you may be able to challenge the Authority’s decision in the High Court through "judicial review", on the grounds, for example, that the Authority made a mistake of law or took into account irrelevant considerations. If the court finds in your favour, it will require the Authority to reconsider its decision.

Cautionary notes

• A lawyer will be of assistance in explaining your rights of appeal to the Removal Review Authority and preparing the evidence to present to it. If you wish to take your case to the High Court on judicial review you will certainly need legal representation.