A5.45 Convictions, charges and other matters which may cause applicants not to meet character requirements for temporary entry

1. A person will not be granted a temporary entry class visa, unless granted a character waiver, if one or more of the provisions at A5.45.5 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 A5.45.5(a)-(d) apply. In the case of A5.45.5(c) or (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 A5.45.5(a)-(d) below apply, then at the second stage an immigration officer must consider whether a character waiver should be granted. (See A5.45.10 Assessment of character waiver (temporary entry) below.)

A5.45.5 Ineligibility due to convictions, charges, investigations and false information

1. A person will not be granted a temporary entry class visa if they have been convicted at any time (which includes up to the date of the final decision of the application) of:
   1. an offence against the immigration, citizenship or passport laws of any country; or
   2. any offence for which they have been imprisoned
   3. an offence in New Zealand for which the court has the power to impose imprisonment for a term of three months or more (which includes, but is not limited to, potential sentences "not exceeding three months" or "up to and including three months").
2. A person will not be granted a temporary entry class visa if, as at the time of making the application or during its processing, they:
   1. have been charged with an offence, which on conviction, could make section 15 of the Immigration Act 2009 apply to that applicant; or
   2. are under investigation for, or wanted for questioning about, an offence described in (b)(i) above.
3. A person will not be granted a temporary entry 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 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.
4. Applicants who will not be granted a temporary entry 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 EOI was one in which the applicant was expressing interest in applying for residence, or the current application for a temporary entry 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.
5. The disqualifying criteria at (c) and (d) 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
6. The disqualifying criteria at (c) and (d) 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.
7. The disqualifying criteria at (c) and (d) 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:
- Withholding material information or a material change of circumstances ‘which may have affected the decision’ in (c)(i) or (c)(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.
- The obligation of the person in (c)(ii) above to advise an immigration officer of a change of circumstances does not extend beyond the time they are granted a visa.

A5.45.6 Clarifications regarding false, misleading or withheld information

1. An ‘application for a New Zealand visa (or a permit under the Immigration Act 1987)’ in A5.45.5(c) 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 A5.45.5(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 A5.45.5(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 applying, supporting or sponsoring a prior application, and that agent provided false or misleading information, a decision that A5.45.5(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.

A5.45.7 Information, evidence or submission connected to a report of migrant exploitation

1. Despite A5.45.5(c) 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, A5.45.5(c) 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.

A5.45.10 Assessment of character waiver (temporary entry)

1. Despite A5.45.5(a) to (d) above, an immigration officer must consider whether the following factors are compelling enough to justify the grant of a character waiver:
   1. the applicant’s reason for travelling to, or remaining in, New Zealand; and
   2. any surrounding circumstances; and
   3. the public interest.
2. If A5.45.5(c) or (d) applies, immigration officers must also consider:
   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, misleading or forged 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. Immigration officers must record the reasons for their decision to grant or not grant a character waiver.
4. Any decision to grant a character waiver must be made by an immigration officer with Schedule 1-3 delegations.

Effective 25/09/2023