You said what? – Upcoming changes to character rules pose risks for both applicants and employers

If you thought “character” issues in immigration applications are just about criminal convictions: think again!

Immigration New Zealand is proposing a major redefinition of “misleading information” that includes disputed, missed or unclear answers regardless of intention. This will include information provided (or omitted) by secondary applicants, advisers, lawyers and employers which might have any impact on an application. These changes may come into effect as early as November 2019.

Pacific legal Director Richard Small has been part of consultations with Immigration New Zealand on these changes.  Recently involved in presenting a seminar to the New Zealand Association of Migration and Investment. He’s concerned that in all the focus on changes to the work visa, this radical change has been missed by many.

The current picture

Some people who have committed serious offences are not entitled to visas under section 15 of the immigration Act 2009. That is not changing, although immigration New Zealand are taking an ever more strict approach to, for example a single drink driving offence within the past 5 years.

Under section 58 of the Immigration Act 2009 there is also already an obligation to keep Immigration New Zealand updated about all relevant information and not to provide false and misleading information. In 2015 the definition of false and misleading information was expanded. It doesn’t have to be information that would directly lead to visa approval. It now doesn’t have to be information the applicant provided in person. “False or misleading information” in the immigration sense is wider than the dictionary definition of those words. Leaving out something relevant can qualify.

Character waiver

However before finding you are of bad character Immigration New Zealand must undertake a two step character waiver process:

1. Did the applicant mean to provide this information? This goes back to a 1994 Court of Appeal decision called Chiu where the Court found that before finding an applicant has provided false and misleading information Immigration New Zealand must consider their intention.  The exception to that rule has been expressions of interests (on line registration) which relies on as higher level of trust, But even there the appeal bodies have said a completely innocent intention or disputed facts, where raised by the applicant, must still considered. And if so…
2. Are there any circumstances to grant a visa despite the false information: here they look at how serious the wrong information or omission was and other circumstances.

Those applying from onshore and for residence always get prior notice of these things. Those applying offshore for temporary visas have less rights.

If an applicant is found to fail both of these tests not only will they not get a visa, but they will be considered non bona fides (not a genuine applicant) for all future applications unless and until a character waiver is granted. Mud sticks!

What’s changing?

Immigration New Zealand are proposing to do away with part 1 of the character waiver test. If a box is not ticked that should have been, an incorrect date of birth was provided, if a letter or report provided by a third party later provides inaccurate in any relevant way, based on Immigration New Zealand view’s of things the applicant will be deemed to have intended to provide false and misleading information. In most cases they will simply be advised of that finding and asked for any extenuating circumstances.

In some cases officers at their absolute discretion may decide the information was very minimal and invite comment but they will not be obligated to do so. Under current heavy workloads we are concerned that the temptation will be to quickly refuse. For some refused temporary visas the first the applicant will hear of their “misleading information” may be in the refusal letter. They will then be barred from future applications unless a character waiver is granted. Resident applicants still will have a right of appeal.

What’s the problem?

The immigration Act 2009 is intended to balance the rights of individuals and the government. Natural justice (the right to be heard before a conclusion is reached) is a key part of immigration Instructions. Aside from the basic unfairness of this approach, there are also concerns of poor processes and supervision, gaps in record keeping and huge backlogs. This is likely to lead to some perverse results. The Immigration and protection Tribunal has already criticised Immigration New Zealand’s knee jerk approach to “misleading information” in some Expression of Interest cases where a version of this rule already applies.

Examples:

• An applicant proved through PAYE records they worked over 40-50 hours per week. Yet Immigration New Zealand found that a clause showing minimum hours to be 15 per week in the off season subject to roster meant the applicant had provided false and misleading information. The Immigration and Protection Tribunal found that since the roster required them to work above 40 hours this finding was wrong.
• An applicant’s adult child living overseas eloped and got married without telling their father. They had not seen him for many years. Because they were still part of the application Immigration New Zealand found the father was deemed to have provided misleading information about their marital status, despite accepting he didn’t know about the marriage. We got deportation liability suspended.
• An applicant was required to stay in a job for a certain number of months. In the last few weeks unbeknown to the employee the company went into liquidation. However, the employer and then the liquidator kept the employee on to “tidying up” and paid him directly. Despite this Immigration New Zealand deemed him to have misled them because he failed to notify them of the liquidation. We got this reversed.

Employers and applicants will need to be more careful when providing information to Immigration New Zealand. Due diligence searches of immigration New Zealand files are advisable. When in doubt- seek competent advice!

We can help

Pacific Legal is an awarding winning immigration Law firm. We are known to be leading experts in these areas. We have many years’ experience in providing excellent services to employers and applicants seeking work and residence visas.

Please contact me via email (Richard.Small@pacificlegal.co.nz or office@pacificlegal.co.nz ) by phone 0800722 534 or through our website (www.pacificlegal.co.nz) for further information.  My colleagues Diana Bell, Senior Associate and Thomas Tran, Senior Solicitor are also experienced in this area and would be delighted to assist. We provide initial free information