RV1.25 Declining an application from former residence class visa holders

See also Immigration Act 2009 ss 10, 155, 146, 156, 158, 161, 162, 169, 437, Immigration Act 1987 s 93

Applications from a person who no longer holds a resident visa, but who is eligible for consideration for a permanent resident visa, or a second or subsequent resident visa, will normally be declined if:

1. an immigration officer determines that the person’s resident visa was:
   1. granted as a result of administrative error; or
   2. held under a false identity; or
   3. procured through fraud, forgery, false or misleading representation, or concealment of relevant information (together, "deception"), whether or not the person committed the deception; or
2. an immigration officer determines that the person held a resident visa granted on the basis of a visa procured through deception, whether or not the person committed the deception; or
3. new information becomes available within five years of when the person first held a resident visa, and an immigration officer determines that the information:
   1. relates to the person’s character; and
   2. was relevant at the time the visa was granted; and
   3. means that the person would not have been granted the visa; or
4. while holding a resident visa or following its expiry, the person is convicted (whether in New Zealand or not):
   1. of an offence for which the court has the power to impose imprisonment for a term of three months or more, if that offence is committed:
      • at any time when the person was unlawfully in New Zealand; or
      • at any time the person was the holder of a temporary entry class visa; or
      • 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 two years or more, if the offence was committed not later than five years after the person first held a residence class visa; or
   3. of an offence and sentenced to imprisonment for a term of five years or more (or for an indeterminate period capable of running for five years or more), if the offence was committed not later than 10 years after the person first held a residence class visa; or
5. they have been served a deportation liability notice but have not been deported within the meaning of section 10 of the Immigration Act 2009; or
6. the person’s resident visa was granted on the basis of being recognised as a refugee or protected person, and that recognition was cancelled under section 146 of the Immigration Act 2009.

Note: An immigration officer should contact Immigration Resolutions in INZ’s Enablement branch prior to declining an application for a permanent resident visa or second or subsequent resident visa based on the above provisions, to seek advice and to update the Resolutions Team on any current or potential deportation case.

RV1.25.1 Action

1. An immigration officer must not automatically decline an application on any ground listed in RV1.25, unless RV1.25(a)(ii) or (e) applies.
   1. An immigration officer must consider the surrounding circumstances of the application to decide whether or not they are compelling enough to justify the grant of a residence class visa under RV2 or RV4. The circumstances include but are not limited to the following factors, as appropriate:
   2. the seriousness of any offence (generally indicated by the term of imprisonment or size of the fine) and whether there is more than one offence;
   3. the significance of any false, misleading or forged information provided, or information withheld, and whether the person is able to supply a reasonable and credible explanation or other evidence indicating that there was no intent to deceive INZ;
   4. how long ago the relevant event occurred;
   5. whether the person has any immediate family lawfully and permanently in New Zealand;
   6. whether the person has some strong emotional or physical tie to New Zealand; or
   7. whether the person's potential contribution to New Zealand would be significant.
2. An immigration officer must make a decision only after they have considered all relevant factors, including:
   1. any advice from the National Office of INZ; and
   2. fairness and natural justice requirements (see A1).
3. An immigration officer must record:
   1. their consideration of the surrounding circumstances, (see (b) above), noting all factors taken into account; and
   2. the reasons for their decision to approve or decline the application.

Effective 07/09/2020