Overstaying – Partner visa grounds for refusal in NZ

Overstaying – Partner Visa Grounds for Refusal in NZ How it will affect your future application?

• A Fijian national has previously overstayed in New Zealand for his own personal reasons, he chose to overstayed without knowing the potential circumstances that he may face in future if he intends again to enter in New Zealand - as he is unlawfully staying in New Zealand; in reference with section 9 meaning of unlawfully in New Zealand,(2) a person’s status as being unlawfully in New Zealand is calculated; (b) as starting on the day after the date on which the person’s visa expired or was canceled without another visa granted.

• He claimed that he was never been deported, but rather voluntarily left New Zealand, contrary of what deportation is under section 10- meaning of deportation, subsection (3), (a) the person leaves New Zealand (whether or not to the expense of the Government of New Zealand”, and no deportation order is served to him, but the question here is, can he still apply for a visa enter to New Zealand, in spite of his overstaying history in NZ?

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While, he is in New Zealand, he has tried to get a request for a valid visa through the help of his immigration lawyer under section 61 - Special grant of visa, but it was unsuccessful. Then in 2014, when he left New Zealand voluntarily and returns home to his country, and in 2016 he has applied for an open work visa/permit, as his wife is a New Zealand citizen living with their step daughter in NZ, but his partner visa to work, was declined by INZ. Due to the fact regarding his previous overstaying might happened again in case, they would give him a visa for such category, as the relationship yet, has not able to meet to qualify of ‘living together’ for such a period of time in compliance with the relevant immigration instructions for partnership category of partner of a New Zealand Citizen.

As we may know in any circumstances; if the minimum period of time living together was not met, INZ may defer PR application under this category, but rather

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gives a work visa [open] to join his/her partner in New Zealand. Because of this refusal, he thinks that he is in “prohibition period”, in which certain applicant liable for deportation could not have a visa to enter in New Zealand e.g, 2 to 5 years of prohibition period or even a permanent prohibition (depending on the grounds) as the case maybe, but as we reiterate to him, THAT HE IS NOT subject to any prohibition period as pursuant to section 179, in addition to subsection (2) “ a person who is unlawfully in New Zealand but leaves New Zealand voluntarily before he or she is served with a deportation order is not subject to any prohibition period”, given the fact that he was assisted by his immigration lawyer under section 61 . At that time, he had applied, he has a work in Fiji into car selling “sales”, and his parents and siblings are living as well in Fiji.

• He is contemplating to relodge again his application, but very anxious about his previous refusal and his ‘overstaying record’ considering no appeal review for temporary class entry visa decisions under section 186 of the act, we in our opinion, what transpired to his application lodged in April 2016, might have some crucial information and additional material evidence of documents, which should have been provided to mitigate the immigration officer to consider his application or convince, that he has a strong ties in his home country and able to explain the surrounding circumstances as to why he has led to overstayed in New Zealand. It is notable that in any applications for temporary entrant to New Zealand, am immigration officer processing to its temporary visa application will make the assessment and final decision on the basis of the available information and evidence of documents supplied by the client. They are not obliged to seek any further information or documents to the applicant in coming up with the decision, it is a sole responsibility of the applicant to comply and provide any information and documents in the matters of relevant immigration instructions he or she applying as per section 58.Although, decision as to whether to approve or decline his visa is a matter of discretion of the immigration officer handling his application under section 45 of the act.

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What the act says about a person who’s unlawfully in New Zealand, after their visa expired or canceled, may have 42 days to make or file an appeal to Tribunal, for humanitarian grounds from the day they become ‘unlawfully’. However, he may still reapply under a partnership based category, for as long as there are new additional or further evidentiary documents, which would mitigate to consider him in granting a temporary visa to join his family in New Zealand, but as always, an immigration officer will use his own discretion in coming up a final decision regarding his previous ‘overstayed’ record in New Zealand. We note that at INZ manual for temporary entrant to New Zealand (July 2015), if the client had this record of overstayed – it is already a ‘marginal risk’, that the visa conditions may not be observed by the client in case they consider granting him or her a visa, but this really depends on a case to case basis.

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For assistance on your temporary visa application in New Zealand? Or for the reapplication to a refused visa. Contact Visa Online Assistance by sending an e-mail at info@visaonlineassistance.com for more information.

Source: portion of the acts from Immigration Act 2009 Disclaimer: This does not constitute legal advice. The purpose of this article is to inform and educate visa holders to be mindful about any visa conditions attached to their visa, and not to overstayed or proceed in any illegal ways. Visa Online Assistance do not assist to any appeal application to Tribunal.

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