A5.25 Convictions, false information and other matters which may cause applicants not to meet character requirements for residence

1. A person will not be granted a residence class visa, unless granted a character waiver, if one or more of the provisions at A5.25.5(a)-(d) below apply to one or more of the applicants included in the person’s application for a visa.
2. An immigration officer assessing an application where these instructions apply to a person or application must follow a two stage process:
   1. In the first stage the immigration officer must record a determination that one or more of the provisions at A5.25.5(a)-(d) apply. In the case of A5.25.5(b)-(d), the officer must record reasons why they have determined the relevant provision applies.
   2. If the immigration officer confirms that one or more of the provisions at A5.25.5(a)-(d) apply, then at the second stage an immigration officer must consider whether a character waiver should be granted. (See A5.25.10 Assessment of character waiver below.)

A5.25.5 Ineligibility due to convictions, false information, and other matters

1. A person will not be granted a residence class visa if they have been convicted:
   1. at any time of any offence against the immigration, citizenship or passport laws of any country; or
   2. at any time of any offence involving prohibited drugs; or
   3. at any time of any offence involving dishonesty; or
   4. at any time of any offence of a sexual nature; or
   5. at any time of any offence for which they were sentenced to a term of imprisonment; or
   6. (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 entry class visa or held a temporary permit under the Immigration Act 1987 or was exempt under that Act from the requirement to hold a permit, being an offence for which the court has power to impose imprisonment for a term of three months or more (this includes, but is not limited to, potential sentences "not exceeding three months" or "up to and including three months"); or
   7. at any time of any offence involving violence; or
   8. at any time in the five years prior to the date the application is made, or convicted while the application is being processed, 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.

      Note:
      - a conviction ‘at any time’ in (i)-(vii) includes one that occurs up to the date of the final decision (R5.60) of the application
      - a ‘sentence to a term of imprisonment’ in (v) includes cases where the sentence was of immediate effect, was deferred or was suspended in whole or in part, or where the sentence is a ‘fine or in default’ term of imprisonment

2. A person will not be granted a residence class visa if they:
   1. in the course of a prior application for a New Zealand visa or entry permission (or a permit under the Immigration Act 1987) made any statement or provided any information, evidence or submission, either personally or through an agent, that was false or misleading, or withheld material information which may have affected the decision on the application; or
   2. did not take reasonable steps, from the time their prior application was made until the time the application was decided, to ensure that an immigration officer was made aware of any relevant fact, including any material change in circumstances that occurred after a prior application for a New Zealand visa (or a permit under the Immigration Act 1987) was made, if that fact or change of circumstances may have affected the decision on the application, or may have affected a decision to grant entry permission in reliance on the visa for which the application was made; or
   3. in support of any application by another person for a New Zealand visa or entry permission (or a permit under the Immigration Act 1987), made any statement or provided any information, evidence or submission that was false or misleading.
3. Applicants who will not be granted a residence class visa include any person who, either personally or through an agent, notified an expression of interest (EOI) in applying for a visa, or who was included in the EOI, and:
   1. the current application for a residence class visa is not associated to that EOI; and
   2. false or misleading information was provided as part of the EOI, or associated submission; or
   3. relevant, potentially prejudicial information was withheld from the EOI or associated submission.
4. A person will not be granted a residence class visa if they:
   1. at any time in a public speech or public comments, or public broadcast, or in publicly distributing or publishing a document, argued that one race or colour is inherently inferior or superior to another race or colour; or 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
   2. have been, or are, 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:
      • hostility against people or groups of people on the basis of colour, race, or ethnic or national origins; or
      • an assumption that persons of a particular race or colour are inherently inferior or superior to other races or colours.
5. The disqualifying criteria at (b) and (c) above do not apply if an immigration officer recorded a determination that the relevant incident(s) of false, misleading or withheld information was or were not an issue of character that required a character waiver.
6. The disqualifying criteria at (b) and (c) above do not apply to an applicant who was less than 18 years old at the time that (as the case may be):
   1. the prior application was made; or
   2. the EOI was submitted; or
   3. the statement was made; or
   4. the information, evidence, or submission was provided.
7. The disqualifying criteria at (b) and (c) above do not apply to a person who was a non-principal applicant or submitter included in the prior application or EOI as a dependent child, provided that information (which was false, misleading or withheld) is not regarding that applicant.

Note:
- The obligation of the person in (b)(ii) above to advise an immigration officer of a change of circumstances does not extend beyond the time they are granted a visa.
- Withholding material information or a material change of circumstances ‘which may have affected the decision’ in (b)(i) or (b)(ii) does not mean that the information, if previously known by INZ, would necessarily have led to a decline decision; it only means that the concealment of the information deprived INZ of a relevant line of inquiry.

A5.25.6 Clarifications regarding false, misleading or withheld information

1. An ‘application for a New Zealand visa (or a permit under the Immigration Act 1987)’ in A5.25.5(b) includes an application for a variation of conditions, an application for a variation of travel conditions, or an application for reconsideration (E7.35.1).
2. A decision that A5.25.5(b) or (c) applies, due to the provision of false or misleading information, does not require an immigration officer to determine whether or not the applicant personally:
   1. knew that the information was false or misleading; or
   2. knew that such information was provided to INZ (for example by their agent); or
   3. intended to deceive Immigration New Zealand through their actions or inaction.
3. A decision that A5.25.5(b) or (c) applies, due to the withholding of relevant information or the failure to advise of a material change of circumstances:
   1. requires an immigration officer to be satisfied that the applicant, or their agent, knew that information, but
   2. does not require an immigration officer to determine whether or not the applicant personally intended to withhold information, or deceive INZ through their actions or inaction.
4. In cases where an applicant had an agent acting on their behalf in submitting, supporting or sponsoring a prior visa application, and that agent provided false or misleading information, a decision that A5.25.5(b) or (c) applies does not require an immigration officer to determine whether or not the agent knew that the information was false or misleading.
5. A document that is found to be forged or altered in an unauthorised manner will be considered false information, even if an immigration officer is satisfied that the substantive information contained in the document is true.

A5.25.7 Information, evidence or submission connected to a report of migrant exploitation

1. Despite A5.25.5(b) above, an immigration officer may disregard any false or misleading statement, information, evidence or submission, or withheld information, in a person’s application for a New Zealand visa or variation of conditions, where:
   1. an immigration officer is satisfied the incident(s) of false, misleading or withheld information is or are connected to a report of exploitation made to the Ministry of Business, Innovation and Employment (MBIE); and
   2. the report was assessed as credible, as evidenced by a Report of Exploitation Letter issued by MBIE (see WI20.10(a)(ii)).
2. For the avoidance of doubt, A5.25.5(b) does apply to an applicant who provides any false, misleading or forged statement, information, evidence or submission, or withholds material information in the course of applying for a Migrant Exploitation Protection Visa, including in the report of exploitation.

A5.25.10 Assessment of character waiver

1. Despite A5.25.5(a)-(d), an immigration officer must consider the surrounding circumstances of the application to decide whether or not they are compelling enough to justify the grant of a character waiver. The circumstances include but are not limited to the following factors as appropriate:
   1. if applicable, the seriousness of the criminal offence or offences (generally indicated by the term(s) of imprisonment or size of the fine(s));
   2. whether there is more than one criminal offence or whether more than one provision at A5.25.5(a)-(d) applies;
   3. how long ago the relevant event or events occurred;
   4. whether the applicant has any immediate family lawfully and permanently in New Zealand;
   5. the extent of the applicant’s other connections to New Zealand;
   6. whether the applicant's potential contribution to New Zealand will be significant.
2. Where A5.25.5(b) or (c) applies, officers must consider, in addition to any relevant matters listed in A5.25.10(a) above, the following:
   1. the significance of the false or misleading information provided, or the information withheld, with respect to the outcome of the application or EOI; and
   2. the nature and extent of the applicant’s intentions and involvement in the provision of the false or misleading information, or in the withholding of relevant information; and
   3. the extent to which the applicant exercised reasonable diligence in ensuring that INZ was provided with complete and accurate information; and
   4. whether Article 31 of the Convention Relating to the Status of Refugees applies.
3. Where (A5.25.5(d)) applies, officers must consider, in addition to any relevant matters listed in A5.25.10(a) above, the following:
   1. the length of time since the applicant publicly expressed the views, or was a member or adherent of the group or organisation; and
   2. 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
   3. 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
   4. the nature of the views, or the nature of the group or organisation.
4. Officers must make a decision only after they have considered all relevant factors, including (if applicable):
   1. any advice from the National Office of INZ; and
   2. compliance with fairness and natural justice requirements (see A1).
5. Officers must record:
   1. their consideration of the surrounding circumstances, (see paragraphs (a)-(c) above), noting all factors taken into account; and
   2. the reasons for their decision to grant or not grant a character waiver.

Any decision to grant a character waiver must be made by an immigration officer with Schedule 1-3 delegations.

Effective 25/09/2023