• Ishvinder Singh

Section 61

Section 61

Section 61 of the immigration act 2009 reads as follows

Grant of visa in special case

The Minister may at any time, of the Minister’s own volition, grant a visa of any type to a person who—

(a) is unlawfully in New Zealand; and

(b) is not a person in respect of whom a deportation order is in force; and

(c) is not a person in respect of whom a removal order is in force.

A decision to grant a visa under subsection (1) is in the Minister’s absolute discretion.

Please note that the word minister above means an officer who has been given the powers to decide (delegated) by the minister of immigration or in plain English, Immigration Officer.

Who can make a request under section 61 ?

In plain English, a person who is unlawfully in New Zealand and does not have a deportation order or removal order in force can make a request under section 61.

How likely is grant of visa under section 61?

The grant of visa under section 61 is a matter of absolute discretion i.e. however there are certain observations I would like to share, which are based on my own experience.

  1. Section 61 applications made with a short time frame of becoming unlawful in the country have a higher chance of success. Short time frame means 4 to 6 weeks, however one must note that each situation is different and this is not a blanket rule to be applied on each situation.

  2. If there is a good reason for becoming unlawful, your application is more likely to be successful, i.e. if you had an accident or injury or a situation which was beyond your control (say loss of documents, fire or theft) is a more compelling reason than you simply forgot to renew your visa in time and 3 months have lapsed.

  3. Absolute discretion, in plain English means that Immigration does not give you any reasons for declining a section 61 request and as a consequence there is no provision of a PPI letter, a reconsideration or a CCRP complaint in a section 61 request which are the normal avenues available to you should your normal visa application be unsuccessful.

  4. You may make more than one section 61 requests especially if there is significant change in circumstances or new information which was not made available to the decision maker in the previous application

  5. It pays to be professionally represented, as section 61 is pretty much a last chance situation.

I would like to also mention that the information above should not be taken in isolation as immigration advise for your individual situation. The views above are in my professional capacity as an immigration adviser and are not endorsed or represent Immigration New Zealand.

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