2013-Dec 20: Process for identifying deportation liability arising from criminal offending

Visa Pak 142: Guidelines for Immigration Officers on determining deportation liability arising from criminal offending

Visa Paks

20 December 2013

Process for identifying deportation liability arising from criminal offending under section 161 Immigration Act 2009 and its effect on Residence Class Visa holders

Purpose

The purpose of this article is to provide clear guidelines for Immigration Officers:

  • To determine deportation liability that arises from criminal offending under s161 of the Immigration Act 2009 (IA09) and then apply residence visa instructions under ‘RV2 Resident Visa Holders Applying for a Permanent Resident Visa’ (PRV) and/or determine if a natural person is an acceptable sponsor for temporary and/or residence class visa applications; and
  • To make it clear that in all cases deportation liability must be confirmed by Resolutions Team

Action

  • Deportation liability must be brought to the attention of and/or confirmed by Resolutions Team.
  • The advice contained in Appendix A "Process Chart" is a guideline for officers to use in the assessment of applications tendered for a PRV and for sponsorship assessments where there is an adverse character declaration in the application form, OR if there is adverse information about that person’s character in AMS (which may or may not relate to a previous immigration application process).

Context

  • Recent Q3 findings indicate an inconsistent approach and/or incorrect assessment of deportation liability arising from criminal offending for some PRV applications.
  • As being liable for deportation may affect residence class visa holders adversely there needs to be a clear process on how to establish deportation liability and a clear understanding of its consequences.
  • A criminal offender becomes automatically liable for deportation if s/he meets certain criteria under s161 of IA09. Section 161 is in scope and is the key reference for this article.
  • Section 169 of IA09 imposes a limitation on residence class visa holders who are liable for deportation. A resident visa holder who is liable for deportation cannot apply for a PRV. However section 169 (2) allows for the grant of PRV which is a visa of another class or type, at the absolute discretion of the Minister or an immigration officer. Section 169 (2) of IA09 is in scope for this article.
  • This limitation also applies where the Minister has suspended a person’s liability for deportation – see sections 172 and 174 of IA09. These sections are out of scope for the purposes of this article.
  • Additionally, a residence class visa holder who is liable for deportation is not an acceptable sponsor under temporary and/or residence instructions (see E6 and R4).
  • A residence class visa holder remains liable for deportation for 10 years unless the Minister or the IPT cancels their deportation liability. If the Minister cancels a person’s deportation liability then that person is no longer subject to any constraints that flow from being liable for deportation unless convicted of another offence after their liability is cancelled or they become liable for deportation for other reasons.
  • If the Immigration Act does not automatically render a person liable for deportation, then such liability arises from a determination which is usually made by the Minister of Immigration and confirmed if the Minister signs a deportation liability notice. Therefore, if a person is only under investigation for deportation at the date of lodgement of a PRV application s/he is not subject to RV2.1.c and is otherwise eligible for a PRV if meets all other requirements.
  • Compliance instructions at D2.5.1 Decision Making sets out that deciding the liability for deportation for residence class visa holders will be administered by the Deportation team within the Resolutions Team at Immigration New Zealand.

Footnotes

A resident visa holder is also automatically liable for deportation if s156 (1) (a), s158 (1) (a), and s162 of IA09 apply (convictions for immigration related offences or losing refugee status). These sections are out of scope for the purposes of this article. However, if you suspect an applicant for a PRV or sponsorship is liable under any of these provisions, email Mike.Harvey@mbie.govt.nz at Resolutions Team in all cases for confirmation and advice.

A Compliance officer has the ability under s155 of the Act to determine a visa was granted in error, and this could render a resident visa holder liable for deportation.

An applicant for a PRV who no longer holds a resident visa due to expired travel conditions (whether that person is offshore or onshore on a temporary visa), and otherwise meets RV2.5.a.ii should also be referred to Resolutions Team for advice (Mike Harvey or Angela Vinsen) if there are character issues of the type outlined in section 161 of IA09.

This advice does not extend to Northern Documentation Branch or Visa Application Centres.