Character Waivers Part 2 – Intent to Deceive.
It appears that although lying on your application form for a visa to New Zealand will mean that you fail the good character requirements – Immigration New Zealand are supposed to work on the theory that you made a mistake, rather than assume you lied.
It seems there is a principle in law called Mens Rea – or “Guilty Mind” , and without the intent to deceive INZ on your application form – you actually do pass the good character requirements.
There are a number of cases particularly at the residence review board which show this, and helpfully they are summarised by Immigration Lawyers Ryken Law in a very useful document. No matter what problems you are getting with NZIS – I think this is a must-read!
10. Good character issues
10.1 Residence Appeal 15141 (31 January 2007) G Melvin. Wrong information on EOI.
Intention is required for an error to amount to a good character breach (Chiu v Minister of Immigration [1994] 2 NZLR 541 (CA)). Discussed whether the jurisdiction of the Board is ousted because the invitation would not have issued but for the putative misrepresentation, ie, whether a mens rea element is implicit in s18C(2A)(b)(i). Held that intention is required. The case involved a mismatch between the job title in the EOI and the actual job. The matter had not been adequately addressed and no adverse character- finding had been made. Appeal upheld.
10.2 Residence Appeal 14840 (11 May 2006) G Melvin.
False information arose because name used on the EOI was different from the name used on work references. Chiu applied, appeal upheld, no intention established (and held that there must be evidence that establishes on the balance of probabilities that the person has deliberately and dishonestly mislead or provided false information). (Author’s note: it is quite common for persons in some cultures to be known by a name other than their official name – in any event the use of more than one name does not create a presumption of dishonesty.)
10.5 See also Residence Appeal 15015 (16 October 2006) G Melvin.
The appellant it was held knew that one of his children had mild autism at the time of his application. No question on the EOI was answered incorrectly (but the medical form on the residence application was) and the Board held that the appellant had not withheld relevant information on the EOI (and so had jurisdiction to entertain the appeal). Further, the fact that the child had assaulted a female child sexually at intermediate school was not a change of circumstances event that would require disclosure and the failure of which would oust the Board’s jurisdiction under 18C(2A)(b)(ii). However autism had not been referred to in answer to one question on the medical form submitted with the residence application although the condition was in fact referred to in another document filed with the application (a Family Court decision). The question then remained whether the incorrect information on the medical form was intentional. Chiu was applied and the appeal upheld, leaving the good character waiver issues to be determined.
So there you go. If you can show that you made an honest mistake on the form, then you have a good chance of overturning a “no” decision via the RRB. But – as one of my friends so succinctly pt it – if you deliberately lie – “you’re hosed”.
Also, according to appeal 14920 at the RRB, INZ have to take into account all forms of evidence that you provide in applying for a character waiver. While they can use the seven items listed in my previous blog – they need to allow you to present other evidence. If they do not allow that, or ignore other evidence provided when determining whether to waive good character requirements, then it looks like the RRB can overturn the decision.
“[45] Having considered the character waiver assessment on the file, the Board
concludes that the assessment conducted did not take into account all of the
evidence presented by the appellant in respect of the circumstances surrounding
the conviction. To begin with, the assessment has been restricted to the factors
set out at paragraph A5.25.1.b (see i-vii) and appears to have paid no attention to other evidence presented in support of the appellant.
[46] The assessment of a character waiver is guided by, but not restricted to,
those elements set out in paragraph A5.25.1.b. Here, a number of matters of
some significance, including a psychiatric report, a report from a counsellor at a
drug and alcohol dependence bureau, a letter of support from one of the
appellant’s victims and her parents in which they specifically address their desire
not to have the appellant’s offences affect his future in New Zealand, were not
acknowledged, addressed in any way or weighed up in the course of the
assessment process.”
I think one of the most important things I’ve learned going through all this is that you need to hold steady and not give up. The sad fact is that different applicants are told different things by different case officers and managers, and sometimes the only way to know how to deal with problems in the processing of your application is to do the homework and make sure YOU understand how the system SHOULD work. Please don’t rely on INZ staff to tell you the truth, because while some will – some patently won’t. And as we have seen first hand, higher management won’t do more than slap a few wrists if your case officer and their managers are obstructive and unhelpful and are not following the proper procedures.
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Related posts:
- Emigrate to New Zealand: Character Waivers Part 1.
- Emigrate to New Zealand: Good Character Requirements.
- How to Sponsor your family into New Zealand Part 3: Medicals Explained
Comments
3 Comments on Character Waivers Part 2 – Intent to Deceive.
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William on
Thu, 2nd Jul 2009 8:39 pm
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Avalon on
Thu, 2nd Jul 2009 8:51 pm
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Avalon on
Thu, 2nd Jul 2009 8:54 pm
Do you really think wrists will get slapped?
You delve into this stuff quite deeply. Do you find it interesting? You write as if you do.
Yep – im a sad bunny 
I actually do find it interesting.
I also get a bit upset because im left with the impression that INZ bank on most people not understanding the rules properly and therefore not holding them to account when they dont follow them.
The fact is I would never have known the policies that Case officers are supposed to follow if we hadnt kicked up a stink and started researching it. And I would never have known that our CO was not doing his job properly. We certainly wouldnt have known just what a lazy arsed job the Medical Assesor was doing
If going into this means the information is out there and accesible for a change – then I guess I need to carry being a sad bunny. Its a good job I like reading
And no – I pretty much know that NZIS have no intention of slapping wrists – but the Auditor General embarrased them, and we are now going to the Ombudsman with our complaint. Ive no idea whether that will give us a better result – but in the meantime – I keep on blogging
It keeps me off the streets
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