2014-Oct 10: Deciding applications under Sections SM3.5 and F4.10.5

Visa Pak 183 - Guidelines about deciding applications under Sections SM3.5 and F4.10.5 of Immigration Instructions

Visa Paks

10 October 2014

Deciding applications under Sections SM3.5 and F4.10.5 of Immigration Instructions

The Immigration and Protection Tribunal Liaison Team (IPTLT) has identified, through analysis of appeal decisions, applications decided under SM3.5 and F4.10.5 as an area that could benefit from some advice being sent out to INZ offices. Some advice on how to interpret and apply these instructions was provided on 2 May 2014 and this this article provides further clarification to that advice.

Essentially, residence visa applications may be declined under instructions SM3.5 and F4.10.5 if false or misleading information was provided as part of an Expression of Interest (EOI), or associated submission, relevant, potentially prejudicial information was withheld from an EOI or associated submission, or failure to advise an immigration officer of any fact or material change in circumstances that occurs after an EOI is notified that may affect a decision to invite the person to apply for a resident visa or to grant a resident visa.

Applications that are declined under these instructions have different consequences to applications that are declined under other instructions. The difference is that when an application is declined under SM3.5 and F4.10.5 the client has no right of appeal with the Immigration and Protection Tribunal (IPT).

Process

The advice provided below is designed to be best practice guidelines rather than a comprehensive training package.

When do instructions SM3.5 and F4.10.5 apply?

The EOI process and the residence application process are two distinct processes that, while following each other, do not form part of the same process. The EOI process must be concluded before the application process can commence.

The officer assessing the residence application will need to look at what stage of the process the client provided or omitted to provide relevant information. These instructions apply to information provided or omitted by the client from the time the EOI has been lodged to the time an invitation to apply (ITA) is issued by Immigration New Zealand. They do not apply to information provided or omitted by the client during the period of time after which an ITA has been issued and an application has been lodged. Once an application is lodged the provisions held at A5.25 and R5.20.1(h) of the Operational Manual will apply.

Can an application be automatically declined if a client has breached the provisions in SM3.5 and F4.10.5?

No. Instructions state that breaching these instructions is “sufficient grounds” for declining an application. They further state that information relating to a claim made in an EOI that is factually inaccurate and is relevant to the issuing of an ITA or the assessment of a resident visa application will be considered misleading unless the principal applicant can demonstrate that there is a reasonable basis for making that claim.

All immigration officers are required to act on the principles of fairness and natural justice when deciding an application (A1.5). The applicant should be informed of information that might harm their case (ie potentially prejudicial information) and be given a reasonable opportunity to respond to the harmful information.

In a case where an applicant appears to have submitted false or misleading information, the officer would need to put that potential prejudicial information to the applicant for comment. Once the immigration officer has received the applicant’s explanation, they will then need to decide whether or not the applicant’s explanation is credible.

If, as the result of an explanation, the immigration officer is satisfied that the details provided by the applicant are correct, or perhaps the applicant has genuinely misunderstood the requirements or made a mistake, then the immigration officer may determine that there are not sufficient grounds to decline the application and the assessment of the application may continue.

If, on the other hand, the immigration officer reaches the conclusion that an applicant (or through their agent) has submitted any false or misleading information, or withheld relevant information, at the EOI stage, that is relevant to the issuing of an ITA or the assessment of a residence visa application then the application may be declined under SM3.5. In such instances consideration of a character waiver is not required as A5.25(i) only applies to material provided in the course of applying for a visa, rather than when expressing interest in applying for a visa.

When is a character waiver required?

A character waiver may be required if a client provides false or misleading information during the EOI stage and does not correct it at the application stage. They have then provided false and misleading information in the course of applying for a visa and A5.25(i) will apply.

A character waiver would be considered if the client submits any false or misleading information, or withholds relevant information in their residence application (see A5.25(i).

What factors should be taken into account when deciding whether or not to decline an application under these instructions?

First of all it is useful to look at the intention of the instructions and these instructions are basically a way of dis-incentivising people from making false points claims in order to get selected. The instructions are not intended to give officers the ability to decline on minor things. They are intended to allow them to decline applications that genuinely don’t meet the government’s intent.

The information relating to the claim in the EOI must be both factually inaccurate and relevant to the issuing of an invitation to apply, or the assessment of the residence visa application. A useful approach would be to look at the EOI and residence requirements and ask if the inaccurate information or the omitted information would change the outcome of the EOI or residence application assessment. If it would then it is relevant.

All misleading information is factually inaccurate but not all factually inaccurate information is misleading.  It is the officer’s job to work out which is which.

Also, there are many other things that could be taken into account when deciding whether or not to decline an application under SM3.5 or F4.10.5. This is where the officer’s individual assessment skills will prevail. It is important to take a holistic view of the application and consider all the available information before making a decision.

Remember to use template letters E17 or V33a when declining under SM3.5 or F4.10.5.

Action

Follow the advice above.