Welcome
2010 Criminal Bar
Association
Annual Conference
6 August to 8 August 2010
Queenstown, NZ
Poor Tom Hanks
He has Immigration Issues Too
http://www.youtube.com/watch?v=r0Js07B_H4Q
The Interplay Between
Immigration &
Criminal Law
What happens when a client lodges an INZ
Application but has a Criminal History?
By Marcus Beveridge and Christine Terry
Queen City Law
www.queencitylaw.co.nz
Summary of Presentation
7 Topics to Look Forward To
1. Warrants & Detention
2. Temporary v Residency Applications
3. Is Good Character a crucial factor?
4. If client is denied permit given criminal history, can
anything be done?
5. Any hope for the really bad people?
6.
A couple of war stories
7.
Upcoming Changes in Immigration Act 2009
Let’s Look at The INZ Manual
What is it?
 Contains Immigration Residency policy (harder to meet;
no wriggle room) & Temporary Immigration Policy
(easier to meet policy because intent is not to stay longterm)

Must meet residence policy or find exception, which is decided
on a discretionary basis by Minister


Under new Act (effective 29/11/10) Minister delegates this power to
Senior Officials.
More discretion to issue temporary visa
Where can I find it?

www.immigration.govt.nz/opsmanual/index.htm
Warrants & Detention

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If in custody, right to counsel (Act s 140)
Only Police (not Immigration Officer) can
actually detain the person (Act ss 59,60,128, 128B)
Detain Immigrant for up to 72 hours
without warrant; District Ct can then issue
warrant of commitment for further 7 days
but not indefinitely
Temporary v Residency Applications

The Residency Path hinges on Good Moral
Character


(IOM A5.25 & A5.26)
The Temporary Path does not to the same
degree

(IOM: A5.40 & A5.45)
Residency Path
INZ Operational Manual Sec. A5.25

Applicant who is or was:

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
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Convicted of any offence against Immigration or involving drugs,
dishonesty, sexual nature, violence, drunk driving, driving with a blood
or breath alcohol excess; or
Imprisoned; or
Provided false, misleading, forged, or withheld material in the course of
applying for INZ visa or permit; or
In a public speech/comments/broadcast/distributed/published a
document that argues that one race is inferior or superior to another or
used hostile language to insight discrimination; or
Member of group that promotes discrimination based on colour, race,
ethnicity, national origin (but not gender or sexual orientation??); or
If supporting another person’s INZ application, made
false/misleading/forged statements.
is normally ineligible for residence visa or permit unless granted a
character waiver
Residency Path
How do you get a Character Waiver?
INZ Operational Manual Sec. A5.25.1
INZ officers must not automatically decline
residence applications on character grounds
[but]… consider surrounding
circumstances… [to see if circumstances
are] compelling enough to justify waiving
the good character’ requirement.
Residency Path
How do you get a character waiver?
Sort of a “Totality of the Circumstances” Test
INZ Operational Manual Sec. A5.25.1—7 factors INZ Officers Look at to
determine if waiver is granted:
1.
2.
3.
4.
5.
6.
7.
Seriousness of offense;
More than 1 offense?;
Significance of false info (can applicant supply
credible explanation for providing false info?);
How long ago did the relevant event occur?;
Does Applicant have immediate family here?;
Does Applicant have strong emotional/physical ties
here?;
Will Applicant’s potential contribution to NZ be
significant?
Residency Path
What INZ may v must do when deciding to
grant a character waiver.
A5.25.1(d): INZ officers may also consult National INZ Office and
Compliance with “fairness and natural justice requirements”
A5.25.1(e): INZ officers must record consideration of
Surrounding circumstances, noting all factors taken into account,
and the reasons for granting/denying waiver
A5.25.1(f): Any decision to waive good character requirement
must be made by seconded visa officer or an officer with schedule
1 delegations.
Residency Application Example
Applicant has a offense of
Driving having consumed excessive alcohol,
which does not carry a prison sentence with the conviction.
He wants to apply for
Residency
Normally, will not
be issued a
residence visa or permit
(IOM A5.25(h))
unless:
Character waiver
(IOM A5.25.1(b))
Temporary Path
INZ Operational Manual Sec. A5.40

Applicant who is or was:
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Convicted of offense against immigration; or
Provided false, misleading, forged, or withheld material in the
course of applying for INZ visa or permit; or
At the time of application, charged w/ offense under Sec 7(1)
(see “Bad People” slide 22) or under investigation or wanted for
questioning for this offense; or
Imprisoned;
If supporting another person’s INZ application, made
false/misleading/forged statements then…
Will not normally be issued a temporary visa
or permit unless granted a character waiver.
Temporary Path
How do you get a Character Waiver?
INZ Operational Manual Sec A5.40.1—INZ officers must not
automatically decline application & look at:
 Significance of false info (can applicant supply credible
explanation for providing false info v. intent to deceive?); and
 Are there compelling reasons to travel to NZ
Then, officer must record reasons for granting/denying
application and, if declining must raise an “Alert” against
the applicant.
Temporary Application Example
Applicant has a offense of
Driving having consumed excessive alcohol,
which does not carry a prison sentence
with the conviction
He wants to apply for
a Temporary visa or permit
No Character Waiver needed because
this was not an offense
that carries a prison sentence with it
(IOM A5.40)
Example 1:
Successful Character Waivers
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Facts & Procedure: Residence App. lodged under Samoan
Quota Scheme –denied because provided false information to
INZ 3 times
Issue: Appeal – character waiver?
Law: (IOM: A5.25.i: submitted false/ misleading/omitted info
in the course of applying for a New Zealand visa or permit),
INZ needed to establish whether, on the balance of
probabilities, it was more likely than not that the applicant
committed such an act
Held: Yes, INZ to review intent of applicant to mislead
coupled with weighing all seven factors under A5.25.1 plus
any further relevant factors
(RESIDENCE APPEAL NO: 16246, 21 July 2009)
Residency Path
How do you get a character waiver?
Sort of a “Totality of the Circumstances” Test
INZ Operational Manual Sec. A5.25.1—7 factors INZ Officers Look at to
determine if waiver is granted:
1.
2.
3.
4.
5.
6.
7.
Seriousness of offense;
More than 1 offense?;
Significance of false info (can applicant supply credible
explanation for providing false info?);
How long ago did the relevant event occur?;
Does Applicant have immediate family here?;
Does Applicant have strong emotional/physical ties
here?;
Will Applicant’s potential contribution to NZ be
significant?
Example 2:
Unsuccessful Character Waivers
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Facts & Procedure: Fiji applicant under skilled
migrant. Did not declare conviction: Fiji crim.
records say convicted for assault w/bodily harm.
Issue: Appeal– character waiver?
Law: A5.25 (g) denial unless waiver.
Held: Denied. INZ was right to deny because he
had criminal conviction and failed to disclose on
residence application.
(RESIDENCE APPEAL NO: 16357, 15 Jan 2010)
Easy v Hard Character Waivers


Easier to get character waivers for
lying/forged documents because of mens
rea element.
BUT
Harder to get character waivers for:

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Sexual offenses
Violent acts
WHY?
Good Character Waiver Cases to
Take a Look At
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Mens Rea Element:

Chiu v Minister, 9942 NZLR541

RRB 161959
Appeals Residence Review Board re: the
obligation of Applicants to notify INZ of any
relevant changes. (s. 34(g)) If applicants don’t,
then this is cause for denial under SM3.5

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RRB 15025
RRB 15141
What options are there for
complex cases?

Overstayers or Criminal Histories?

Most clients have 2 options:
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(1) Appeal under section 35A
(2) File a ‘Special Direction Request’ under
section 130 (total Discretion of Minister)
1st Option– Appeal under s 35A

Section 35A (discretion of Immigration officers if
no deportation, removal, or permit or/and if
person not subject to Sec. 7(1) = “really bad
people”)
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This allows case officers a grant of permit in special
cases. Hinges on discretion!
In New Immigration Act = s 61: ability to get
residence permit despite not meeting policy. Policy is
definitely relevant but not necessarily the deciding
factor.
If revocation of residency permit, appeal under
section 22 (humanitarian grounds)
If You Don’t Ask, You Don’t Get
Main Point of s. 35 A=
total discretion on an ad hoc basis
If you’re going to make an appeal, give INZ ALL
compelling evidence UPFRONT. It’s okay to include
documentation such as:
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Are there natural born Kiwi kids here?
Is the appellant a viable part of the work force?
Good character ? (we will discuss this later on)
Owe any money to the Crown? (Pay this before filing)
2nd Option: s 130
Special Direction Request


The Minister may from time to time give to the DOL, or
to any other immigration officer or to any visa officer,
either in writing or orally, a special direction in respect
of—
 (a) Any person, permit, visa, or document; or
 (b) Any 2 or more persons, permits, visas, or
documents where by reason of any specific event,
occurrence, or unusual circumstances there is a
common link between those persons, permits, visas,
or documents,—
in relation to any matter for which such a direction is
contemplated
TOTAL DISCRETION!
Justice’s discretion not to grant warrant
(S60, sub-s(3) of Act)

A Judge may issue a warrant of commitment on the application of an
immigration officer if satisfied on the balance of probabilities that the
person in custody is the person named in the removal order and that any of
the following applies:
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(a) A craft is likely to be available, within the proposed period of the
warrant of commitment, to take the person from New Zealand:
(b) The practical difficulties that meant that the person could not be
placed on an available craft within 72 hours are continuing and are
likely to continue, but not for an unreasonable period:
(c) The other reasons the person was not able to leave New Zealand
within the 72-hour period are still in existence and are likely to remain
in existence, but not for an unreasonable period:
(d) In all the circumstances it is in the public interest to make a
warrant of commitment.
BUT… Justice in Koshiya case had discretion to decide
not to issue warrant
What About the Really Bad
People?

People who Normally will not be Granted any
type of visa under Sec. 7 of the Act

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Imprisoned for 1+ years (1)(a)(b)
Removal Order (1)(c)

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Make this go away by getting cancellation of removal order
under sec. 58 (officials can do it, not necessarily minister)
BUT Must pay Crown.
Ever been deported from NZ or other country (1)(d)
Terrorists (e-g)
People who the Minister believes are bad (h-i)
But can still lodge Application depending on what type
of visa they are seeking
Bad People Seeking Residency
Bad people normally
ineligible for
Residency unless:
(IOM A5.20)
Person is eligible for
visa or permit under
Govt Residence Policy
Special Direction
(7(3)(a)(ii) Imm. Act)
(most can be done
by officials)
Person is already a
holder of a
returning resident’s visa
who returns to NZ
during currency
of that visa
Bad People Seeking Temporary
Bad People normally ineligible for
temporary visa or permit unless:
(IOM A5.35)
Otherwise eligible for visa or permit
under temporary entry
AND
Special Direction from the Minister
(Sec 7(3)(a)(ii) of Imm. Act)
I AM INZ
INZ is a demi-god

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INZ has discretion to revoke a Residency Permit
if procured by administrative error, fraud,
forgery, false, misleading, or concealment of
relevant info (Immigration Act, sec. 20)
Internal Affairs has discretion to deprive
citizenship if procured by fraud, false
representation, willful concealment, or mistake
(Immigration Act, sec. 17); but this is much
harder to do

However, if there is deprivation of citizenship, person
barred only for 5 years. Can they apply again?
Theoretically yes.
DISCRETION is often the KEY

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Treat INZ respectfully and they may go the extra
mile for you.
INZ essentially holds significant discretionary
power ( even more under new Act) and at this
face-to-face level considerable progress can
often be made.
If no joy next steps may include appeal (RRB /
new appeal process from November this year 
Immigration and Protection Tribunal ) , special
direction, Court (judicial review/Crown law etc)
A couple of War Stories
DOL v Koshiya, CRI-2007-055-00265,
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7 Sept. 2007
Facts & Procedure: Respected Muslim Cleric;
overstayer; exhausted all formal remedies; INZ
issued warrant
Issue: Should DOL grant warrant?
Held: No, voluntarily leave instead based on
Judge’s discretion
Further examples : I) world class violinist II)
incarcerated lawyer III) Aussie motorcycle club
members
Relevant Changes
New Act effective 29/11/10
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Biometric provisions to combat ID fraud
Universal Visa System like Australia
If Deportation Order in Force, they can
still remain here lawfully while they appeal
1 tribunal replacing 4 tribunals
Detention/Monitoring based on level of
risk v just a general 6 month limit
Highlighted New Provisions Affecting
Criminal Clients with Immigration Problems
Streamlined Deportation Process
Act 1987: Separate provisions for removal, revocation, deportation
Act 2009: balancing efficiency v fairness in 1 Provision :
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Person can lawfully be in NZ while they appeal (even
working and studying if visa allows it)
Minister can suspend deportation order via a “good
behavior bond”
If offender has been sentenced for 2+ yrs, may NOT
be released for deportation until they served either 2
years or 1/3 of their sentence, whichever is less
Minister can order early release of any foreign
national (not just resident offenders) from prison
If Deported, What is the Period of
Prohibition?

Under new Immigration Act 2009 (effective 29/11/2010)
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If unlawfully in NZ for:
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not more than 12 months = 2 year bar
More than 12 months = 5 year bar
2nd or subsequent time = 5 year bar
Sufficient reasons for temporary visa holder to be deported (discretion
based) = 5 year bar
BUT if visa granted based on false id, fraud, forgery, character issue not
disclosed, refugee status cancelled because of fraud, residence class
holder convicted of offense, person of threat/risk then,
PERMANENT BAR!
If leave NZ voluntarily, then NOT subject to any bar on entry (Koshiya
case)
Highlighted New Provisions Affecting
Criminal Clients with Immigration Problems
4 Tribunals Merged into 1
The Immigration & Protections Tribunal replaces
the 4 existing appeal bodies for purposes of
judicial economy (streamline the appeal process).

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Act of 1987: more than 1 ground for appeal =
multiple appeals
Act of 2009: single appeal = if more than 1 grounds
for appeal, appeals must be lodged together.

Prime Minister will designate either the Min of Justice or DOL
or a new dept?
Highlighted New Provisions Affecting
Criminal Clients with Immigration Problems
Detention & Monitoring
Act 1987: 6 month limit on immigration
detention except where foreign national
hinders their own departure.
Act 2009: Tiered Detention System, allowing
courts greater discretion to issue warrants.
Detention will not be based on the level of
risk the foreign national represents
Handy Resources
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Immigration New Zealand
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Public Acts
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legislation.co.nz
Immigration Act 2009 (effective 29 Nov.
2010)
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immigration.govt.nz
dol.govt.nz/actreview/
Immigration Operations Manual:
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immigration.govt.nz/opsmanual/index.htm
Marcus Beveridge, Principal QCL
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Firm: Queen City Law
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www.queencitylaw.co.nz
Level 8,203 Queen Street, Auckland
Phone: 09 970 8810
Email: [email protected]
[email protected]
Q&A

Any questions ?