Live in New Zealand Lane Neave Lawyers

In any application for New Zealand permanent residence all individuals included in the application who are 17 years of age or older are required to demonstrate to Immigration New Zealand (INZ) that they are of good character.

The residence good character requirement is classified into two (material) sections; where character issues are present, these are as follows:

  1. Applicants who will not be issued with a residence visa or granted a residence permit (subject to the grant of a special direction from the Minister of Immigration); and
  2. Applicants who will not normally be issued with a residence visa or granted a residence permit unless a character waiver is granted.

APPLICANTS WHO WILL NOT BE ISSUED A RESIDENCE VISA OR GRANTED A RESIDENCE PERMIT

Under the Immigration Act 2009 (Act), section 15(1) provides advice as to individuals who are not eligible for the grant of a residence visa or residence permit from INZ.  Individuals who fall within section 15(1) of the Act either are required to wait until a future period when they can qualify, or alternatively, receive a special direction from the Minister of Immigration to allow the submission of an application and therefore cancelling the bar imposed under section 15(1) of the Act.  Whilst obtaining a special direction is possible (refer our section under Immigration Policy), it is preferable that an individual is able to prepare and submit an application in avoidance of section 15(1) of the Act.

Section 15(1) of the Act provides as follows:

Certain convicted or deported persons not eligible for visa or entry permission to enter or be in New Zealand

  1. No visa or entry permission may be granted, and no visa waiver may apply, to any person-
    1. who, at any time (whether before or after the commencement of this section), has been convicted of an offence for which the person has been sentenced to imprisonment for a term of 5 years or more, or for an indeterminate period capable of running for 5 years or more; or
    2. who, at any time in the preceding 10 years (whether before or after the commencement of this section), has been convicted of an offence for which the person has been sentenced to imprisonment for a term of 12 months or more, or for an indeterminate period capable of running for 12 months or more; or
    3. who is subject to a period of prohibition on entry to New Zealand under section 179  (previously deported from New Zealand) or 180 (previous deportation from New Zealand where costs for repatriation have not been repaid); or
    4. who at any time (whether before or after the commencement of this section) has been removed or deported from New Zealand under any enactment; or
    5. who is excluded from New Zealand under any enactment; or
    6. who has, at any time, been removed, excluded, or deported from another country.
  2. Paragraphs (a) and (b) of subsection (1) apply-
    1. whether the sentence is of immediate effect or is deferred or is suspended in whole or in part:
    2. where a person has been convicted of 2 or more offences on the same occasion or in the same proceedings, and any sentences of imprisonment imposed in respect of those offences are cumulative, as if the offender had been convicted of a single offence and sentenced for that offence to the total of the cumulative sentences:
    3. where a person has been convicted of 2 or more offences, and a single sentence has been imposed in respect of those offences, as if that sentence had been imposed in respect of a conviction for a single offence.

It is important however to note that in relation to a removal or deportation there are different types of removal and/or deportation applied and in some instances even if an individual is deported from New Zealand they are not barred from re-entry in relation to the application of 15(1)(c) of the Act.  Scrutiny of section 179 and 180 is required and a professional opinion regarding eligibility in the event of a deportation matter should be sought before dismissing an individual’s chance of securing a visa due to the statute applied bar under section 15(1) of the Act.

If an individual clearly comes within the definition of section 15(1) of the Act then this excluded person will require a special direction before a visa will be issued and the individual allowed to travel to and enter New Zealand.  In cases where section 15(1) of the Act applies, contact our firm for advice as to potential eligibility for a special direction from the Minister of Immigration.

APPLICANTS NORMALLY INELIGIBLE FOR A RESIDENCE VISA OR PERMIT UNLESS GRANTED A CHARACTER WAIVER

In instances where character issues are noted although the issues themselves do not mean the applicant is determined an excluded person pursuant to section 15(1) of the Act, in most instances (depending upon the offence), the individual is normally ineligible for the grant of a residence permit or a residence visa unless granted a “character waiver”.

Applicants who will not normally be issued with a residence visa or granted a residence permit unless granted a character waiver include any person who has been:

  1. convicted at any time of any offence against the immigration, citizenship or passport laws of any country; or 
  2. convicted at any time of any offence involving prohibited drugs; or
  3. convicted at any time of any offence involving dishonesty; or
  4. convicted at any time of any offence of a sexual nature; or
  5. convicted at any time of any offence for which they were sentenced to a term of imprisonment (whether the sentence was of immediate effect or was deferred or was suspended in whole or in part); or
  6. convicted (whether in New Zealand or not) of an offence committed at any time when the applicant was in New Zealand unlawfully or was the holder of a temporary permit or was exempt under the Act from the requirement to hold a permit, being an offence for which the Court has power to impose imprisonment for a term of 3 months or more; or
  7. convicted at any time of any offence involving violence; or
  8. convicted at any time during the last five years, of an offence (including a traffic offence), involving dangerous driving, driving having consumed excessive alcohol (including drunk driving and driving with a blood or breath alcohol content in excess of a specified limit) or driving having consumed drugs; or
  9. in the course of applying for a New Zealand visa or permit, has made any statement or provided any information, evidence or submission that was false, misleading or forged, or withheld material information; or
  10. at any time in a public speech or public comments, or public broadcast, or in publicly distributing or publishing a document:
    1. argues that one race or colour is inherently inferior or superior to another race or colour, or
    2. used language intended to encourage hostility or ill will against any person or group of persons on the basis of colour, race or ethnic or national origins of that person or group; or
  11. has been, or is, a member of (or adheres or has adhered to) any organisation or group of people which (at the time of the person's membership or adherence) had objectives or principles based on:
    1. hostility against people or groups of people on the basis of colour, race, or ethnic or national origins, or
    2. an assumption that persons of a particular race or colour are inherently inferior or superior to other races or colours; or
  12. in support of any application by another person for a New Zealand visa or permit, has made any statement or provided any information, evidence or submission that was false, misleading or forged.

It is very important to note that the above section applies to offences which are current on Police Certificates or even offences which have been expunged or cancelled due to the passage of time.

Our firm has been required to resolve a number of cases where an individual believed that as the record had been expunged there was no need to disclose the conviction itself, to their detriment.  In some instances, the actual failure to disclose a conviction is deemed more serious than the conviction itself due to point (i) above.  If in doubt, it is certainly advisable to disclose the conviction (historical or otherwise).

If an individual has a conviction (or a number of convictions) meaning that this particular part of INZ policy applies, this does not mean the application for a visa will be declined.

INZ will in due course confirm that the individual is not normally eligible for the grant of a residence visa or permit, although before deciding whether or not an exception to policy should be made the individual will be invited to tender information/documentation for the INZ officer to consider whether or not a character waiver is reasonable in the circumstances.

From the context of this firm a character waiver is a legal submission drafted and tendered to INZ to support a proposed decision of INZ to waive the character requirement in relation to the individual concerned and grant New Zealand residence.

Over many years our firm has successfully obtained a significant number of character waivers, and in short, our advice is that applicants should not dismiss their eligibility for New Zealand residence due to having a conviction or convictions unless they receive a professional opinion from a specialist service provider such as our firm who will be able to provide an informed opinion as to the chances of securing a character waiver.

Immigration officers are not able to automatically decline a residence visa or permit application based on character grounds until they have considered surrounding circumstances of the application (in its entirety) and whether or not they believe the circumstances of the particular individual’s application are compelling enough to justify waiving the good character requirement.

The circumstances that INZ will take into consideration include (but are not limited to) the following factors as appropriate:

  1. if applicable, the seriousness of the offence (generally indicated by the term of imprisonment or size of the fine);
  2. whether there is more than one offence;
  3. if applicable, the significance of the false, misleading or forged information provided, or information withheld, and whether the applicant is able to supply a reasonable and credible explanation or other evidence indicating that in supplying or withholding such information they did not intend to deceive the NZIS;
  4. how long ago the relevant event occurred;
  5. whether the applicant has any immediate family lawfully and permanently in New Zealand;
  6. whether the applicant has some strong emotional or physical tie to New Zealand;
  7. whether the applicant's potential contribution to New Zealand will be significant.

The key to a successful character waiver is providing a very detailed and sound submission (with supporting objective documentation) for a compelling case to be made for INZ to waive the good character requirement in the circumstances of the case.

In most instances our firm is able to provide a sound indication as to the chance of securing a character waiver before an application is submitted, or alternatively, for individuals who receive a potentially prejudicial information letter from INZ stating concerns regarding character; advice as to potential eligibility at that point in time for the applicant to make an informed decision as to whether or not they should reasonably continue with the application will be provided.

Professional assistance and advice is recommended where individuals will have (or have encountered) character issues in the processing of a visa application.

If our firm believes that you will not be able to obtain a character waiver in relation to a character issue, advice will be provided to you up front before instructions are received.

We have successfully obtained significant numbers of character waivers for applicants in the past and we are routinely contacted by clients half way through the residence process where character issues are raised where a professional is required to satisfactorily resolve the issue.  We will give you an honest appraisal as to your chance of securing a character waiver and it will be up to you at that point in time to make a decision as to whether or not you wish to continue with the migration process based on that professional opinion.