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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Emigrate to New Zealand: Character Waivers Part 1.
There is very little information available on the process of applying for a Character Waiver. Funnily enough – there is no published guide from Immigration New Zealand on how to proceed if you are in the position of having to apply for this. Why am I not surprised???
What is available is a section in the Operations manual showing the actions that case offices are supposed to take when dealing with issues of character.
A5.25.1 Action
a.Visa and immigration officers must not automatically decline residence applications on character grounds.
b. Officers must consider the surrounding circumstances of the application to decide whether or not they are compelling enough to justify waiving the good character requirement. The circumstances include but are not limited to the following factors as appropriate:
i if applicable, the seriousness of the offence (generally indicated by the term of imprisonment or size of the fine);
ii whether there is more than one offence;
iii 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;
iv how long ago the relevant event occurred;
v whether the applicant has any immediate family lawfully and permanently (see F4.1.1) in New Zealand;
vi whether the applicant has some strong emotional or physical tie to New Zealand;
vii whether the applicant’s potential contribution to New Zealand will be significant.
c. In the case of a person covered by A5.25(j) and (k) above, officers must consider, in addition to any relevant matters listed in A5.25.1(b) above, the following:
i the length of time since the applicant publicly expressed the views, or was a member or adherent of the group or organisation, and
ii whether the applicant still holds the views or still belongs or adheres to the group or organisation, and any evidence of a change in views, and
iii the extent to which the applicant was involved in publishing or distributing the views, or the extent of involvement in the group or organisation, and
iv. the nature of the views, or the nature of the group or organisation.
d. Officers must make a decision only after they have considered all relevant factors, including (if applicable):
i any advice from the National Office of the NZIS, and
ii compliance with fairness and natural justice requirements (see A1 (See: “A1 Fairness and Natural Justice” on page 1)).
e. Officers must record:
i their consideration of the surrounding circumstances, (see paragraph (b) above),
noting all factors taken into account, and
ii the reasons for their decision to waive or decline to waive the good character requirements.
f. Any decision to waive the good character requirements must be made by either:
i a seconded visa officer; or
ii an officer with schedule 1 delegations.
OK, so what on earth does that all mean???
Firstly – it suggests that NZIS have to give you the opportunity to state your case. There are people who are not eligible to apply for character waivers – that is under a slightly different heading in the Operations manual. These tend to be people connected to regimes and groups that would be detrimental to New Zealand’s reputation if they lived here – basically the more serious criminal types.
If however it has been determined that you have criminal convictions, or that you said something on your application that isn’t true – then according to the above list INZ cannot simply turn you down for a Visa.
So in terms of whether NZIS can waive the character requirement – they need to look at 7 things under section b. above – the surrounding circumstances.
Once again – I am disgusted to say that they do not clearly state how they approach this, or how they make the determination – however we have found a case at the Residence Review Board that does explain it.
In this case – Appeal 14978 – you actually get to see the process for NZIS to work through these 7 sections. It’s about half way down the file, and there is a table with a “Negative” column and a “Positive” Column. NZIS work through the 7 factors and determine whether the applicant scores a + or – for each item, and puts it in the appropriate column. I guess if you have more positives than negative – you get the character waiver.
Why on earth NZIS can’t just say that to the people involved in these cases is just beyond my comprehension I’m afraid.
Please note: We do not KNOW if this is the process NZIS use to work through the waiver process. We have no way of being able to tell for sure.
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Emigrate to New Zealand: Good Character Requirements.
Ive been doing a little bit of research on Character Waivers – and I’ve actually found it a little bit difficult to get my head round. Why are these never simple and in Plain English?
So what can I tell you?
Well, first of all if you want to Emigrate to New Zealand – you have to pass what is termed “Good Character Requirements”.
From the Operations manual:
A5.1 Requirement of good character
Applicants for all visas and permits must:
a. be of good character; and
b. not pose a potential security risk.
This basically means you need a clean criminal record, and not be involved in groups that generally want Politicians to die horribly and governments to be brought down in a local bloodbath.
This is why as part of the application process – whatever route you take – you need to provide INZ with a police certificate confirming whether you have any convictions or not. If your record is not clear – you are likely to be turned down for Residency unless you are granted a Character Waiver.
The reasons you can be turned down are long, varied and (unsurprisingly) longwinded.
A5.25 Applicants normally ineligible for a residence visa or permit 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 (see A5.25.1(b) below), include any person who has been:
a. convicted at any time of any offence against the immigration, citizenship or passport laws of any country; or
b. convicted at any time of any offence involving prohibited drugs; or
c. convicted at any time of any offence involving dishonesty; or
d. convicted at any time of any offence of a sexual nature; or
e. 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
f. 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
g. convicted at any time of any offence involving violence; or
h. 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
i. 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
j. at any time in a public speech or public comments, or public broadcast, or in publicly distributing or publishing a document:
i argues that one race or colour is inherently inferior or superior to another race or colour, or
ii 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
k. 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:
i hostility against people or groups of people on the basis of colour, race, or ethnic or national origins, or
ii an assumption that persons of a particular race or colour are inherently inferior or superior to other races or colours; or
l. 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.
Note: When considering whether or not an applicant has committed an act that comes under
A5.25 (i), (j) or (k) or (l) above, visa and immigration officers should establish whether, on the balance of probabilities, it is more likely than not that the applicant committed such an act.
This means that as well as being kept out of New Zealand for having a criminal record – you an also be denied residency if you lie on your application or do not tell the whole truth, under the Good Character Requirements. I’ve highlighted these areas – as It is something that can easily be overlooked, and because very few people are aware of the consequences of missing things out on the application forms.
If you fall under any of these categories – you will be assessed as not having good character, and at that point you go through the Character Waiver Process.
Coming next: Emigrate To New Zealand: The Character Waiver Process.
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