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Ombudsman case note on visa refusal without recorded reasons

31 August 2016

Chief Ombudsman Peter Boshier has released a case note about investigation of a complaint relating to refusal of a request for a visa by senior immigration staff who did not record reasons for their decision.

Judge Boshier has found that the staff acted unreasonably in failing to record their reasons.

The complainant was a Fijian national residing in New Zealand who remained here unlawfully on expiry of his student permit. His unlawful status necessitated the request of a grant for a permit under section 35A of the Immigration Act 1987 (now section 61 of the Immigration Act 2009).

Requests to the Associate Minister of Immigration for a student permit under section 35A were considered and refused by Departmental Decision Makers (DDMs) who did not record reasons for their decisions.

The complainant was concerned that the DDMs had failed to take into account his circumstances and familial considerations when refusing his requests.

After consultation with the Ministry of Business, Innovation and Employment (MBIE), the Chief Ombudsman formed the provisional opinion that because the DDMs had failed to record reasons, it could not be determined that all relevant considerations had been addressed and that therefore MBIE's decisions were unreasonable.

"The Chief Ombudsman considered that the case notes prepared for consideration of the complainant's requests were insufficient to demonstrate that the decision was properly reached, and that any process omitting to record reasons for a decision was administratively unsound," the case note says.

"For the purposes of accountability and transparency, good administrative requires that proper records of decision-making processes should be created and retained."

The adequacy of any record made by a DDM will be a question of fact and degree and there can be no prescriptive requirement, the case note says.

"The Chief Ombudsman acknowledged that the Immigration Act explicitly removes the rights of persons to receive reasons for decisions, and considered that records need only be sufficient for internal departmental purposes or for the purposes of external review. It is not an exercise in justifying the decision or an inflexible requirement permitting of no exceptions. However, the record should demonstrate  both that the DDM has read and considered any case note provided, and the reasoning by which the decision was reached."

The case note says that as a result of the Chief Ombudsman's investigation, MBIE has reviewed its position and agreed that steps would be taken to immediately commence the recording of reasons by DDMs considering requests under section 61 of the Immigration Act.

Last updated on the 16th September 2019