The immigration impact of criminal charges on non-citizens
Most lawyers will have clients who have recently arrived in New Zealand, many of whom will not have obtained citizenship. Others will have family and friends who are non-citizens and who come up against issues involving their status or potential status in New Zealand, arising out of alleged criminal charges.
Although a specialist area, there are a number of immigration and refugee law issues that should be known to all, especially so that clients can identify where they need assistance.
Perhaps one of the most important aspects of our current immigration system, not often appreciated, is that it is bound by a complex set our rules (the Immigration Instructions in the Operational Manual) with rights of appeal to a busy tribunal (the Immigration and Protection Tribunal the “IPT”). There are also rights of review and appeal on a point of law to the High Court from decisions of the Tribunal, and rights of review on decisions by immigration officers involving temporary visas. The Tribunal has more than 16 Members, most of whom are full-time. The immigration space is busy at any time.
Approach to offending
Whether here as a student, a worker or a visitor, the slightest infraction can often have dire visa consequences. Immigration officers often see it as their duty to treat any offending as requiring a carte blanche refusal to issue a further visa, even where, arguably, the outcome for the non-citizen might be disproportionate.
For some time now there has been controversy relating to offending at the bottom end of the scale (eg, first drink-drive offences, assault not involving injury, etc) and whether on sentencing a section 106 of the Sentencing Act discharge without conviction is appropriate, where otherwise the immigrant will face expulsion, would lose their opportunity to visit, study or work and where sometimes the right to apply for residence is also lost. Where the individual has a Kiwi partner, relationships can be severed unless the Kiwi partner returns to the home country, with the immigrant (offender). Section 106 disproportionality is quite often reached in such circumstances. Until a few years ago such matters seldom resulted in a Deportation Liability Notice (“DLN”). They now do.
Perhaps the problem is best examined by focusing on an example. In Cardenas Vidal  NZIPT 505363 (29 November 2021), for example the appellant held a visa but was issued a Deportation Liability Notice (“DLN”) because of a first drink-drive offence, even though the appellant had been granted a section 106 discharge without conviction. Although such a discharge is considered equivalent to an acquittal, Immigration New Zealand nevertheless proceeded to issue a DLN in preparation for a deportation back to the appellant’s home in Chile. Although she lost her appeal against deportation, the Tribunal noted that because the appellant could apply for residence from offshore (she was in a relationship with a New Zealander) she would not be in breach of the good character rules at A5.25 of the Operational Manual, as these rules refer to a conviction. The bizarre conclusion is that being granted a discharge, because it involves a guilty plea, might mean that the person would become deportable and would not get a further temporary visa while onshore, but nevertheless he or she could still be eligible for a temporary visa or even a residence visa filed offshore, given that there will be no conviction.
The power to issue a DLN against the holder of a temporary visa is set out in section 157 of the Immigration Act 2009. The grounds, briefly, are:
- a breach of visa conditions,
- criminal offending,
- other matters relating to character,
- concealment of relevant information,
- the circumstances of the visa-holder no longer meet the rules or other criteria under which the visa was granted
Where an immigrant receives a DLN under any of the above grounds there are limited rights of review or appeal. An appeal to the IPT does not lie against the reasons for issuing a DLN. That lies in the High Court on judicial review (and must be lodged within 28 days). The reference on the DLN to an appeal right is only to a humanitarian appeal at the IPT, which has no jurisdiction to review the reasoning behind the DLN. The Tribunal can only look at whether there are exceptional circumstances of a humanitarian nature that would make the deportation unjust or unduly harsh, which is a high threshold. A relationship is not normally sufficient. It is the writer’s view that the failure to refer to judicial review rights on the DLN is harmful and leads to significant confusion, causing many to think they can sort out obvious injustices at the Tribunal. The client then files his or her appeal or review in the wrong forum.
Each of the above five underlying grounds for issuing a DLN, for example, can and do lead to injustice. First, the simple breach of visa conditions. Many overseas students, for example, would not be aware that if they do not attend their classes to a particular level, that their non-attendance can lead to a DLN and the failure or refusal of a further student visa, and then the loss of opportunity to complete their qualification. Overseas students are advised to document any class non-attendance carefully. There have also been disputes with visa officers over whether going home on extended leave is a failure to “work”, and therefore a breach of condition that could lead to a DLN. The “conditions” being that a work visa requires the person to work. This logic has often been challenged.
The second ground, “criminal offending,” can give rise to a DLN without a conviction being entered. DLNs have been issued based only on a charge. In more recent times however, we have seen the third ground being used prior to a conviction: “other matters relating to character.” However, both grounds for issuing a DLN are inherently problematic and can lead to injustice. Where a person has only been “charged” one would have thought that the possibility that the person might be innocent would lead to Immigration New Zealand holding back from issuing a DLN until the criminal charges are dealt with. Immigration New Zealand regularly and arguably, wrongfully, issues DLNs prior to resolution of these matters by the Court.
Where the matter is dealt with by a Court through a discharge without conviction, because that process first requires an admission of guilt, this nevertheless empowers the DLN under “other matters relating to character.” One would have hoped that Immigration New Zealand would use this sparingly, however experience reveals that both in formulating their decisions to issue a DLN and in formulating refusals on applications for further temporary visas case officers often follow a fervent belief that any offending is most serious, laying aside any notion that it might be disproportionate. Weighing up finely balanced issues is often simply not on the menu. However, as can be seen by Cardenas, obtaining a discharge without conviction may have a positive outcome later on, when it comes to a residence application (as long as the immigrant avoids being deported which creates a different bar). Section 157 and temporary applications, as can be seen, do not have a conviction as a pre-requisite.
Laying aside the fourth underlying reason for a DLN (concealment of relevant information) reference should be made to the fifth ground: change of circumstances. The most common scenario here, is marriage or partnership breakdown. Where the immigrant has a partnership work visa and the partnership dissolves, the ground for the visa disappears. New Zealand does not have a bridging visa system to cover such a circumstance. Typically, sometimes because the lackless visa holder rings the call Immigration New Zealand centre and confesses, once Immigration New Zealand are told the couple no longer live together, then a DLN can follow. For this reason, where partners have an opportunity to hold a different category of visa, then that is a better option, and is safer, especially if the partnership is not stable. Otherwise, it is critical that the visa-holder is made aware that he or she may receive a DLN, as soon as Immigration New Zealand are aware that the underlying ground for the visa has dissipated.
The restricted jurisdiction of the Tribunal is clearly not understood by clients who are issued DLNs. This is evident by the numerous humanitarian appeals that are lodged, and which are viewable on the Tribunal’s website. It leads to the view that there may be a fundamental misunderstanding of this issue amongst clients and possibly their advisers. The problem is that following the wrong track can be fatal given the time limits for lodgement in the High Court (28 days) and the Tribunal (28 days after service of a DLN). It also results in a waste of resources given that the Tribunal must nevertheless consider each appeal and issue a reasoned decision and, further, cannot refer the matter to the High Court on review.
It is also worth mentioning that there is by and large a failure on the part of many immigrants to understand that the address they have provided on their last visa application will be the immigrant’s address for notification of a DLN. What typically happen is that the DLN is served by courier, where the visa-holder may have moved to a new address. The DLN is deemed to have been served but the visa-holder may be unaware of its existence. Gone are the days where folks utilise a change of address mechanism. Typically, appeal rights will have lapsed and cannot then be recovered (see ss 386 and 387 of the Immigration Act 2009). For this reason alone, most clients are far better off instructing an immigration specialist (lawyer or adviser) as their address for communication. Or, when acting on their own behalf, they must understand the importance of notifying Immigration New Zealand of any change to their contact address. It is therefore also critical for all criminal law counsel to advise their non-citizen clients as early as possible of the importance of maintaining their notification and service address with Immigration New Zealand and if they have moved, to notify Immigration New Zealand immediately, or in advance.
The wider context of the issues raised in this article is the current tendency within Immigration New Zealand to view all offending as serious. What once would have been treated as a minor matter not requiring a deportation response is now regularly treated as a deportation trigger. For a resident, the trigger is an offence that carries three months imprisonment, before or during the first two years as a resident. After two years the trigger in section 161 is an offence punishable by two years or more, and after five years of residence an actual sentence of five years imprisonment is required. After 10 years of residence deportation does not apply unless one of the exceptions applies (time in prison, time living in Australia and certain specified offences such as labour exploitation).
It is of critical importance that non-citizens are always aware that any alleged offending can impact on their status in New Zealand and that these matters must be carefully managed. An awareness of these matters may be relevant in determining whether alleged offences should be defended. The service of a DLN empowers, under section 66 of the Immigration Act, the cancellation of a visa. Even where the current visa is not cancelled, departure may mean that the client has “self-deported” even where a deportation order has not been served but where a DLN has, and where appeal rights have not been exercised or an appeal has been determined negatively. This is important because re-entry is banned under section 15(1)(f) of the Immigration Act where a person has been deported. The timing of departure will often be critical to avoid “self-deportation”.
Re-entry for deportees is difficult and requires a ministerial special direction under section 17 of the Immigration Act. For those non-citizens seeking to remain with their partner and/or children, keeping abreast of their future immigration consequences is always critical.
David is the principal of Ryken and Associates which focuses on litigation and immigration.
Copyright claimed by David Ryken (11 January 2023)