D2.15 Deportation liability: other grounds (29/11/2010)

D2.15.1 Deportation liability if person’s visa granted in error

See also Immigration Act 2009 s 155

A person is liable for deportation if the Minister of Immigration (the Minister) or an immigration officer determines that:

1. their visa was granted as a result of an administrative error; and
2. the visa was not cancelled under section 67 of the Immigration Act 2009; and
3. no visa was granted under section 68 of the Immigration Act 2009.

D2.15.5 Meaning of granting visa or entry permission as result of administrative error

See also Immigration Act 2009 s 8

A visa is granted as a result of an administrative error if:

1. it is granted to a New Zealand citizen (unless the person is a New Zealand citizen entering New Zealand in the circumstances described in section 13(4)(b) of the Immigration Act 2009); or
2. it is granted to an excluded person (unless section 17 of the Immigration Act 2009 applies); or
3. the person granting it intended to grant a visa of a type other than the one that was actually granted; or
4. it is granted for a period exceeding the period specified in immigration instructions for visas of that type (unless the Minister or an immigration officer deliberately and properly granted it as an exception to the immigration instructions); or
5. it is granted on the basis of the person holding a visa that was granted as a result of an administrative error; or
6. it is granted in contravention of:
   1. a special direction; or
   2. immigration instructions (unless the Minister or an immigration officer deliberately and properly granted it as an exception to immigration instructions); or
   3. an instruction of a kind referred to in section 378(7) of the Immigration Act 2009.

D2.15.10 Deportation liability if visa held under false identity

See also Immigration Act 2009 s 156

1. A person is liable for deportation if:
   1. the person is convicted of an offence where their identity is established andthat identity is different to the identity under which the person holds a visa; or
   2. the Minister determines that the person holds a visa under a false identity.
2. A person to whom a visa has been granted in a false identity is deemed to have been unlawfully in New Zealand since:
   1. the date the person arrived in New Zealand, if they have held a visa in a false identity since that date; or
   2. the day after the date on which a visa granted in the person’s actual identity expired, or was cancelled without another visa being granted, if they have held a visa in their actual identity after arriving in New Zealand.

D2.15.15 Deportation liability of temporary entry class visa holder for cause

See also Immigration Act 2009 s 157

1. A temporary entry class visa holder is liable for deportation if the Minister or an immigration officer determines that there is sufficient reason to deport them.
2. Sufficient reason includes but is not limited to:
   1. breach of conditions of the person’s visa;
   2. criminal offending;
   3. other matters relating to character;
   4. concealment of relevant information in relation to the person’s application for a visa;
   5. a situation where the person’s circumstances no longer meet the rules or criteria under which the visa was granted.

D2.15.20 Making the holder of a temporary entry class visa liable for deportation

See also Immigration Act 2009 s 157

1. If a person breaches the conditions of their temporary visa or if there is considered to be another sufficient reason, they may be made liable for deportation under section 157 of the Immigration Act 2009.
2. Regardless of the reason why the holder of a temporary visa is determined to be liable for deportation , the immigration officer must be satisfied there is sufficient reason in all the circumstances (i.e. taking both positive and negative factors into account), and supply written reasons for doing so in a deportation liability notice.
3. Action to determine that the holder of temporary visa is liable for deportation may not be undertaken if the holder's existing temporary visa is current for less than another four weeks, unless the person is subject to section 15 or 16 of the Immigration Act 2009, or the case otherwise warrants it. If a person in that situation is not made liable for deportation immediately, then they should be informed in writing that no further temporary visas will be granted and the reason why.
4. Only officers holding the appropriate delegation (see A15.5) have authority to determine that the holder of a temporary a visa is liable for deportation.

D2.15.25 Deportation liability of residence class visa holder if visa or citizenship obtained or held by fraud, forgery, etc

See also Immigration Act 2009 s 158

A residence class visa holder is liable for deportation if:

1. the person is convicted of an offence where it is established that:
   1. the person’s residence class visa or entry permission was procured through fraud, forgery, false or misleading representation, or concealment of relevant information; or
   2. the person holds a residence class visa granted on the basis of a visa procured through fraud, forgery, false or misleading representation, or concealment of relevant information; or
2. the Minister determines that:
   1. the person’s residence class visa or entry permission was procured through fraud, forgery, false or misleading representation, or concealment of relevant information.
   2. the person holds a residence class visa granted on the basis of a visa procured through fraud, forgery, false or misleading representation or concealment of relevant information.
3. A former citizen who is deemed by section 75 of the Immigration Act 2009 to hold a resident visa is liable for deportation if:
   1. the person was deprived of his or her citizenship under section 17 of the Citizenship Act 1977 on the grounds that the grant, or grant requirement, was procured by fraud, false representation, or wilful concealment of relevant information; and
   2. that fraud, false representation, or wilful concealment of relevant information occurred in the context of procuring the immigration status that enabled the person to meet a requirement, or requirements, for the grant of New Zealand citizenship.

D2.15.30 Deportation liability of resident if visa conditions breached

See also Immigration Act 2009 s159

1. A resident is liable for deportation if the Minister determines that;
   1. the conditions of his or her visa have not been met; or
   2. the resident has materially breached the conditions of his or her visa.

D2.15.35 Deportation liability of residence class visa holder if new information as to character becomes available

See also Immigration Act 2009 s 160

1. A residence class visa holder is liable for deportation if, not later than 5 years after the date the person first held a residence class visa:
   1. new information becomes available that:
      • relates to the character of the person; and
      • was relevant at the time the visa was granted; and
   2. the Minister determines that the person would not have been eligible for the grant of the visa under the Immigration Act 2009 or immigration instructions if that information had been available at the time the visa was granted.
2. The new information may relate to whether the person was, or should have been, an excluded person, or to rules and criteria relating to character contained within immigration instructions.
3. For the purposes of this section, the date that a person first held a residence class visa must be calculated in accordance with section 161(5) of the Immigration Act 2009.

D2.15.40 Deportation liability of residence class visa holder convicted of criminal offence

See also Immigration Act 2009 s 161

A residence class visa holder is liable for deportation if they are convicted, in New Zealand or elsewhere:

1. 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:
   1. when the person was unlawfully in New Zealand; or
   2. when the person held a temporary entry class visa; or
   3. not later than 2 years after the person first held a residence class visa; or
2. 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; or
3. 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.
4. D2.15.40(c) applies:
   1. whether the sentence is of immediate effect or is deferred or is suspended in whole or in part;
   2. if a person has been convicted of 2 or more offences on the same occasion or in the same proceedings, and any sentences of imprisonment imposed in respect of those offences are cumulative, as if the person had been convicted of a single offence and sentenced for that offence to the total of the cumulative sentences; or
   3. if a person has been convicted of 2 or more offences, and a single sentence has been imposed in respect of those offences, as if that sentence had been imposed in respect of a conviction for a single offence.

D2.15.45 Determining periods from which person first held residence class visa

1. For the purposes of D2.15.40(a)-(c), the periods of 2 years, 5 years, and 10 years after a person first held a residence class visa are to be determined exclusive of any time spent by the person in imprisonment following conviction for any offence.
2. For the purposes of D3.35(c) and D2.15.35, a person first holds a residence class visa:
   1. on the date on which the person is first granted a residence class visa of any type in New Zealand; or
   2. if the visa was granted outside of New Zealand, on the first occasion on which the person arrives in New Zealand and is granted entry permission as the holder of the residence class visa; or
   3. if the person arrives in New Zealand and is granted entry permission as the holder of a residence class visa following a continuous period of absence from New Zealand of at least 5 years, on the date the person first re-enters New Zealand after the continuous period of absence; or
   4. if the person is a person to whom a visa waiver applies and arrives in New Zealand following a continuous period of absence from New Zealand of at least 5 years, on the date the person first re-enters New Zealand (and is granted a residence class visa) after the continuous period of absence.
3. If a person was exempt from the requirement to hold a permit under the Immigration Act 1987 but is deemed to hold a residence class visa under section 417(3) of the Immigration Act 2009, for the purposes of this section, the person first holds a residence class visa:
   1. on the date they first entered New Zealand and were exempt from the requirement to hold a residence permit under the Immigration Act 1987; or
   2. on the date they first re-entered New Zealand and were exempt from the requirement to hold a residence permit under the Immigration Act 1987 following a continuous period of absence from New Zealand of at least 5 years.

D2.15.50 Deportation liability if refugee or protection status cancelled under section 146

See also Immigration Act 2009 s 162

A person who is not a New Zealand citizen and who was previously recognised as a refugee or a protected person is liable for deportation if his or her recognition is cancelled under section 146 of the Immigration Act 2009.

D2.15.55 Deportation liability of persons threatening security

See also Immigration Act 2009 s 163

1. Where the Minister certifies that a person constitutes a threat or risk to security, the Governor-General may, by Order in Council, order the deportation from New Zealand of that person.
2. The person named in the order is accordingly liable for deportation.
3. The Governor-General may, by Order in Council, revoke that order.

Effective 29/11/2010