CHARACTER
For permanent resident visa applications and
second or subsequent resident visa applications
CHARACTER
There are four different areas of character that need to be taken
into consideration for permanent resident visa applications and
second or subsequent resident visa applications. They are:
Deportation Liabilities
RV1.25
Section 15/16 of the Immigration Act 2009
A5.25.10 (character waivers)
Variation of travel conditions applications or applications from
resident visa holders that have renounced their New Zealand
citizenship do not have character requirements.
DEPORTATION LIABILITIES
Deportation liabilities can arise for many reasons, these are the
ones we commonly see/need to be aware of:
Person unlawfully in New Zealand (section 154)
Person’s visa granted in error (section 155)
Residence class visa granted due to fraud, forgery, false/misleading
information, deception etc (section 158)
Breaching visa conditions on a residence class visa (section 159)
Being convicted of certain criminal offences on a residence class visa
(section 161) – most common
Note: as immigration officers, we are not delegated to tell
an applicant that they are liable for deportation, but we
can tell an applicant that they appear to be liable for
deportation and therefore we will pass the matter on to
Resolutions for assessment.
Deportation liabilities exist for up to 10 years following the date
the deportation liability arose (section 167)
EFFECT OF BEING LIABLE FOR
DEPORTATION (SECTIO
N 169)
A person liable for deportation may not apply for a further visa of
a different class or type to the visa they currently hold (note
nothing in this prevents varying a visa they currently hold, i.e.
granting a variation of travel conditions, but it does prevent the
granting of a permanent resident visa if they hold a resident visa
as it is of a different type).
A person who does not have a visa and is outside of New Zealand
(such as if they held a resident visa and left New Zealand after
the expiry of their travel conditions) is no longer liable for
deportation – see RV1.25.
DEPORTATION LIABILITY
SUSPENSIONS
The Minister (or associate minister, or most commonly a
Delegated Decision Maker for the Minister of Immigration/DDM)
may cancel or suspend a persons liability for deportation (rather
than them being served a deportation order). Suspending a
deportation liability is a matter of absolute discretion.
Deportation liabilities may be suspended for a period of up to 5
years, subject to any conditions the DDM or minister deem
appropriate.
For more information see section 172
DEPORTATION LIABILITY SUSPENSION
PROCESS
1.
Resolutions will inform an applicant that they are liable for
deportation and ask for comment (also sending a questionnaire).
Resolutions will then prepare a document for the Minister or
DDM with options as to how to proceed. All documents are
available by request from resolutions, and can be helpful when
considering future ETIs for SSRVs, or character waivers for
PRVs
2.
A DDM will consider the deportation liability and determine
whether to deport the person, suspend the deportation liability
or cancel it. They will send a letter to the person informing them
of their decision.
3.
Once the suspension period is over, the deportation liability is
not automatically cancelled, but needs to be formally cancelled
by a DDM or the Minister as per section 174(2)
APPLICANTS UNLAWFULLY IN NEW
ZEALAND – BORD
ER ISSUE – SECTION 154
Y3.20.b states that if a former resident visa holder returns to New
Zealand without a valid resident visa/after having been outside of
New Zealand without valid travel conditions on their resident
visa, then border should in the first instance consider granting a
single entry residence visa based on the applicant’s eligibility for
a second or subsequent resident visa (not exactly, but close to it).
If they would appear to not be eligible for a second or subsequent
resident visa (again, not exactly), then they should consider
granting a 1-month temporary visa (Y3.20.c).
There is however a potential for there to be great risks involved in
the first point above, and border have obvious time constraints, so
for the most part they do not feel comfortable granting single
entry residence.
APPLICANTS UNLAWFULLY IN NEW
ZEALAND – BORD
ER ISSUE
This leads to many applicants being granted a 1-month visitor
visa at border, making applications for permanent resident visas
within the currency of their visitor visas, and becoming unlawful
while waiting for their applications to be assessed.
This has been raised as an issue by our team, border, and the
section 61 team. The idea of an instructional change to Y3.20 has
been raised to allow the grant of a 3-month temporary visa –
watch this space.
PRACTICALITIES FOR NOW
As we are aware of the border issue, where an applicant
submits an application for a permanent resident visa after
becoming unlawful while waiting for an assessment to
occur, email the section 61 team as per the template.
Where an applicant becomes unlawful before submitting an
application, inform them that they will need to request the
grant of a visa under section 61. Note, as per section 20,
such an application should not be raised as a permanent
resident visa.
Section 169 would prevent the grant of any further visa
while they are still unlawfully in New Zealand.
ADMINISTRATIVE ERROR – SECTION 155 –
HOW A DEPORTATIO
N LIABILITY ARISES
There have been instances of visas such as permanent resident
visas having been granted by administrative error, such as
through transfer of visa applications.
If a condition should have been imposed on a resident visa but
was not imposed, then the resident visa was granted by way of
administrative error. Such as if an applicant applied for residence
under a family parent category after 29/11/2010, a sponsorship
condition should have been imposed. If it was not, they are liable
for deportation.
These are usually fairly obvious and do not require much digging.
REMEDIES TO ADMINISTRATIVE ERROR -
SECTION 68
For most cases, section 155 deportation liabilities do not need to
be referred to resolutions and are very easy to fix. This is because
a person is only actually liable for deportation if we cannot under
our absolute discretion remedy the situation by granting a further
visa under section 68
Where a visa has been granted by administrative error we would
in the first instance offer the visa the applicant would have
received or would be eligible for now had no administrative error
occurred. For example, if a sponsorship condition should have
been imposed but was not, either an offer of a resident visa with
that sponsorship condition with the same travel conditions as
were originally held, or a resident visa with more travel
conditions as they would also be eligible for a variation of travel
conditions, or a permanent resident visa as if the applicant would
have been eligible for a permanent resident visa had no error
have been made, depending on what the most appropriate
alternative would be given the date of application.
REMEDIES TO ADMINISTRATIVE ERROR -
SECTION 68
The person must agree to the remedy, otherwise the default is a
deportation liability under section 155 which would be referred to
resolutions.
Discuss the proposed remedy with a TA before making an offer.
If the remedy would be what the applicant applied for anyway,
the application itself can be taken as consent/agreement, thus no
‘offer’ needs to be made. It should be noted in the assessment note
however that this has occurred and that the grant of a visa is also
under section 68.
DECEPTION – SECTIO
N 158
A person is liable for deportation if they are either convicted of an
offence where it is established that, or the minister determines
that, any of the information provided in relation to the person’s,
or any other persons, application, or purported application, for a
residence class visa or entry permission was fraudulent, forged,
false, or misleading, or any relevant information was concealed
(cumulatively henceforth referred to as deception).
This section is very similar to A5.25.i in character instructions
(which is similar to A5.45.b).
The significance of the deception should be considered – discuss
with a TA whether or not the deception did or could have actually
changed the outcome of the application had the deception not
occurred.
COMMON SECTIO N 158 REFERRALS
Most commonly section 158 referrals are character related, such
as:
Arrest warrants or convictions in other countries that are not declared
(sometimes these do not appear in PCs, however we may still be notified
that they exist)
Convictions in New Zealand where a person is charged and convicted of an
offence after an NZPC is obtained as part of their resident visa application,
and the person does not declare this conviction to INZ while their resident
visa is being processed. (note: if the conviction happens after they obtain
residence they are liable for deportation under section 161).
Information provided to Immigration New Zealand as part of an
applicant’s resident visa application, which is later found to be false and
misleading through verification of that information or through new
information becoming available after the resident visa is granted.
NOT MEETING S49 OR S50 CONDITIONS –
SECTION 159
If a person does not meet conditions imposed on their resident
visas, they are liable for deportation under section 159. This could
for example be due to:
Information becoming available that a person has received benefits during
a period for which they had been sponsored, confirmed with the
agency/department the benefit was received from (very rare).
Information becoming available to say that the work conditions of a skilled
migrant category resident visa have not been met (check with a TA before
drafting a referral).
CONVICTIONS – SECTION 161
A residence class visa holder is liable for deportation if they are
convicted of an offence in New Zealand or elsewhere:
a. of an offence for which the court has the power to impose imprisonment for
a term of 3 months or more if the offence was committed at any time:
when the person was unlawfully in New Zealand; or
when the person held a temporary entry class visa; or
not later than 2 years after the person first held a residence class visa
b. of an offence for which the court has the power to impose
imprisonment for a term of 2 years or more, if the offence was committed
not later than 5 years after the person first held a residence class visa
c. of an offence and sentenced to imprisonment for a term of 5 years or
more (or for an indeterminate period capable of running for 5 years or
more), if the offence was committed not later than 10 years after the
person first held a residence class visa (we would usually never see this
one)
CONVICTIONS - S ECTION 161
These are by far the most common deportation referral done by
the PRV team.
Note that importantly a deportation liability only lasts up to 10
years from when it arose.
Note also that it is irrelevant to section 161 what a person was
actually sentenced to, however this will likely be taken into
account by the DDM that will assess the deportation liability.
Make sure you consult the spreadsheet of common crimes and/or
legislation.govt.nz (which has a good search function) to
determine whether or not section 161 applies.
DEPORTATION REFERRALS
PROCESS
For all deportation referrals
except referrals under section 161,
use the ‘Non-Criminal Referral Template’:
Make sure it has been signed off by you TA or IM before sending it to
resolutions
Make sure that you include evidence to support the case for a deportation
liability, including the resident visa file.
Make sure you include any communication about the possible deportation
liability that you have had with the applicant.
Send the referral to
[email address]
For section 161 referrals:
Send an email to your TA, attaching the NZPC/PC showing the applicable
conviction, the client number and the application number
Your TA will then double check the referral and forward the email to
technical specialists,
Arazil Griggs & Torsten Dobbertin-King at resolutions
Common Crimes and Maximum Terms of
Imprisonment (common examples)
RV1.25
As was stated earlier, if someone is liable for deportation (or has
the deportation liability suspended) but leave New Zealand with
expired travel conditions, while they do not hold a residence class
visa they are not liable for deportation.
To prevent people from becoming liable for deportation making
them ineligible to apply for a permanent resident visa, going
offshore with expired travel conditions, and applying for and
obtaining a permanent resident visa, Mike Harvey from
resolutions created this instruction in 2014.
The wording of RV1.25.a - RV1.25.d mirror the aforementioned
deportation liability instructions. (D2 Deportation)
RV1.25 states that “Applications from a person who no longer
holds a resident visa, but who is eligible for consideration for a
permanent resident visa, or a second or subsequent resident visa,
will normally be declined if” the person would be liable for
deportation if they still had a resident visa.
RV1.25 VS A5.25
Before an application can be declined however, an immigration
officer must take certain actions and take certain things into
account, which are identical to what must be taken into account
for a character waiver – the purpose of both instructions and
therefore how they are assessed are different.
There is a strong interrelationship between these instructions –
but it is not guaranteed that the character waiver will be
approved just because the ETI is. Practically speaking technical
advisor and an immigration manager need to both agree that a
visa should be granted in order for that to happen.
Although it is possible, the grant of a permanent resident visa as
an exception to instructions will usually only ever happen if a
deportation liability has been previously cancelled.
RV1.25 VS A5.25
Because of the strong interrelationships between the two
instructions, practically assessing them from the perspective of an
immigration officer is quite straight forward, as a request for an
exception to immigration instructions will follow a very similar
format to that of a character waiver.
Process:
PPI applicant on both instructions at the same time.
Contact resolutions to obtain information on the deportation liability
suspension (if applicable), or for general advice
Request the exception to immigration instructions first from your IM. Send
your IM an email in a very similar format/identical to how a character
waiver would be written.
If the ETI is declined, then you do not need to do the character waiver and
can decline the application.
If the ETI is granted, do the character waiver and pass it to your TA for
consideration.
Inform resolutions of any approved visas.
SIDE NOTE: UNIN TENDED CONSEQUENCE
A person whose deportation liability has been suspended has
officially been served a deportation liability notice, but has not
been deported due to the suspension.
Because of the way they are written, RV1.25.e and RV1.25.1.a,
state that an application may be automatically declined without
further consideration. Practically though this would never happen
due to fairness and natural justice, and the same considerations
will be had under RV1.25.1 as would be had if the deportation
liability notice had not been served.
S15/S16 – SPECIAL
DIRECTIONS
Section 15 – convictions resulting in imprisonment of more than a
certain period (more than 12 months in the past 10 years, or ever
been imprisoned for 5 years or more), or any previous
deportation/exclusion from NZ or any other country.
Section 16 – people likely to commit a crime in NZ or to be a
threat to security, public order or the public interest – you will
almost never see this.
Almost always, people that fall under section 15 will have had a
special direction before – ppi them and recreate the special
direction. Make special note of any material change in
circumstances, as this might affect your IM’s decision on the
special direction.
A5.25.5 – CHARACTER
WAIVERS
People convicted of certain offences will require a character
waiver in order to be granted a residence class visa.
Includes offences related to drugs, sexual offending, dishonesty,
violence, providing INZ with false & misleading information,
being imprisoned at any time (home detention counts), or driving
offences within the last 5 years. – Most convictions fall under
A5.25.5 in some way. See A5.25.5 for a full list.
As of 25/09/2023 a full character waiver process now consists of
one combined PPI and an assessment:
1.
We ask the applicant about BOTH the character issue, AND why they
want a waiver.
2.
Character waiver assessment – complete Part 1 and relevant sections of
Part 2 if applicable and the rest will be completed by your TA.
FAST-TRACK CHARACTER
WAIVERS
If an applicant had a character waiver completed as part of their
residence class visa application, the provisions of A5.25 that
applied will likely still apply for their permanent resident visa
application, and therefore they would require another character
waiver.
The fast-track process can be used if:
A character waiver under A5.25 has been previously competed
The applicant has not declared any further the character concerns, and
they declared the character concern that requires the character waiver
Instructions under which the previous character was granted have not
changed since it was granted
There is not indication, such as in alerts that the applicant would have any
further character concerns
The applicant’s personal circumstances have not materially changed since
the previous character waiver was granted.
FAST-TRACK CHARACTER
WAIVERS
If you decide an applicant meets the fast-track character waiver
process, consult with a TA to see if they agree. If you did not
initially request an NZPC, the TA may request you do that before
proceeding with the process.
The TA will then ‘approve’ a character waiver by making a note in
AMS, such as:
“PRV Character waiver:
Applicant has character concerns (Offence of Breath Alcohol Level Over
400 Mcgs/Litre of Breath Blood/Breath = 760, dated 28/02/2015) that falls
under A5.25(f) and A5.25(h). The applicant was granted a character waiver
for these concerns in their Residence application. A new NZPC was
requested and INZ received outcome dated 24/05/2019 - Released with
Result (only contained the conviction waived in RV stage). No new
information declared in PRV application. I have considered the applicants
circumstances, note that we do not have information to suggest they have
changed materially since the grant of the previous character waiver and
will grant a character waiver.”
Alerts, Notes, Template Letters, Check PRV Form,
Family Violence Convictions – request NZPC
No new info (new info that does not relate to the
conviction or doesn ’t require a character waiver by
itself) – Fast Track Character Waiver
And/or take into consideration anything new that
contributes/demonstrates ones character.
E.g. new police call outs, a new conviction etc. then
proceed with normal character waiver process.
Traffic infringements etc. just make a note, if they
haven't been to court we don’t need to look further.
Declined visas for other countries – were they
refused? Cancelled? Excluded? clarify with client,
check residence application for any info first.
Suspended DLN, check when the suspension period
ends, not currently eligible for PRV, VOTC, PPI on
what they do not meet.
INZ Declined visas- check for why it was declined?
False or Misleading info provided? Note it.
Document Outline
