2016-Jun 03: Character Waivers for temporary entry class visa applicants subject to A5.45 b.

Visa Pak 262 - Clarification for staff about action taken for clients who may have provided false or misleading information along with their visa application.

Visa Paks

3 June 2016

Character Waivers for temporary entry class visa applicants subject to A5.45 b.

Background
As provided by section 342 of the Immigration Act 2009 (the Act) it is an offence to make a statement, or provide information, evidence or a submission, to an immigration officer knowing that it is false or misleading in any material respect. The penalty on conviction for such an offence is imprisonment for a term not exceeding 7 years, a fine not exceeding $100.000, or both.

Applicants, and those representing them, therefore need to understand that Immigration New Zealand (INZ) considers a breach of section 342 of the Act to be a very serious offence. This is therefore the primary reason why character requirement instructions provide at both A5.25 i. and A5.45 b. that any person who in the course of applying for a New Zealand visa, has made any statement or provided any information, evidence or submission that was false, misleading or forged, or withheld material information is normally ineligible for any visa unless granted a character waiver.

As per the case law below our expectation is that applicants must at all times be honest and if they aren’t understand that there will be consequences.

In Prasad v Deportation Review Tribunal (HC, Auckland CIV-2007-404-8059, (19 February 2008), Lang J stated at [56]: 
    “The immigration authorities depend upon applicants being scrupulously honest in disclosing their personal circumstances. Often these will be difficult to certify, so the integrity of the application process depends very much on a system of voluntary compliance with the obligations of disclosure. Those obligations ... lie at the heart of the process by which Immigration New Zealand grants permits to those who wish to live here. If they are disregarded, the integrity of the process is destroyed.”

In Pal v Minister of Immigration [2013] NZHC 2070 (16 August 2013), Asher J noted at [62]: 
    “The integrity of the application process turns on the scrupulously honest and careful completion of forms. Applicants must realise that the consequence of failing to be honest and open in the application process is severe. Only then will the immigration system continue to work. If sympathy for the individual became the dominating concern it can be foreseen that the present application system would break down entirely.”

In Sidhu v Chief Executive, Ministry of Business, Innovation and Employment [2014] NZAR 1371 at 1391, Moore J held (in the context of immigration instruction A5.25(i)) that a material non-disclosure was one which related to: 
    … “information that was likely to influence the immigration officer’s decision in considering the applicant’s application for a New Zealand visa”. It is not necessary that the information withheld, had it be known to the immigration officer would have or would likely to have resulted in a different decision.

Furthermore section 58(6)(a) of the Act states:
    (6) It is sufficient ground for the Minister or an immigration officer to decline to grant a visa to a person if the Minister or officer is satisfied that the person,—
    (a) whether personally or through an agent, in applying for the visa submitted false or misleading information or withheld relevant information that was potentially prejudicial to the grant of the visa;

Action
Please discuss with your team(s) and ensure that they follow the guidance below.

As provided by character requirements instructions at A5.45.1 an applicant for a temporary entry class visa, who having made any statement or provided any information, evidence or submission that was false, misleading or forged, or withheld material information is subject to A5.45 b., must be considered for a character waiver. In such cases instructions at A5.45.1 include the need for immigration officers to consider “the significance of the false, misleading or forged information provided, or information withheld, and whether the applicant is able to supply a reasonable and credible explanation or other evidence indicating that in supplying or withholding such information they did not intend to deceive INZ.”

When deciding whether or not to grant a character waiver to a temporary entry class visa applicant who is subject to A5.45 b. officers need to take into account the background above and be mindful that such action on the part of applicants needs to be viewed as serious.