Character Waiver

In order to be granted a visa in New Zealand, you must be of good character, and you must not threaten New Zealand's international reputation nor pose a security threat to the country.

In order to meet this good character threshold, you must meet the good character requirements. When you are aged 17 or over, Immigration New Zealand (INZ) requires you to provide a police certificate with your application which helps prove your character.

These character requirements relate to any previous criminal history you may have, as well as any issues you have had with immigration departments around the world. A common character issue that come up often is a conviction for drink driving. Some character issues may make you ineligible for a visa.

The character requirements are slightly different depending on whether you are applying for a temporary visa (such as visitor, student or work visas), or whether you are applying for residency.

Thus, just because you may have some character issues, you may still be granted a visa. This is where the character waiver comes in.

When you are applying for your visa, it is essential that you declare any relevant information on potential character issues upfront. This includes historical issues that may have occurred years ago. Please note, overseas clean state laws do not apply for a visa in New Zealand and you must still declare any charges you have which fall under this. If in doubt, we would always recommend you disclose your conviction.

Once your application is seen by an Immigration Officer, they will attempt to establish whether or not you are of good character. They will send you a Potentially Prejudicial Information letter, known as a PPI letter, outlining the reasons why they believe you are not of good character. You will then have the chance to reply to this with an explanation, requesting a character waiver.

As mentioned prior, there are different good character thresholds depending on what visa you are applying for. We explain these below.

If a request for a character waiver is unsuccessful, you can make an appeal to the IPT. You can appeal on the basis that the decision was incorrect in accordance with Immigration Instructions or appeal that there are special circumstances that warrant an exception to those instructions.

Good character for temporary visas

Serious character issues

If you have a serious character issue, you will not be granted a visa unless you are granted a discretionary special direction made by the Immigration Minister. These serious character issues include.

You:

• have been convicted of an offence for which you were sentenced to a term of imprisonment of 5 years or more;
• have been convicted in the last 10 years of an offence for which you were sentenced to a term of imprisonment of 12 months or longer;
• are prohibited from entering New Zealand;
• have been removed, excluded or deported from any country.

If Immigration New Zealand has reasons to believe that you are either likely to commit an offence in NZ that is punishable by imprisonment, or are likely to be a risk to security or to the public interest or are likely to be a threat to the public order, you will also be ineligible for a visa.

Character issues requiring a character waiver

If you have committed any of the below character issues, you will not meet INZ's character requirements. However, you are able to explain your circumstances and request a character waiver. You:

• have ever been convicted of an offence against immigration, citizenship or passport laws in any country;
• have ever made or provided false or misleading information, or withheld material information when applying for a New Zealand visa, or when supporting another person’s New Zealand visa application;
• have ever been convicted of an offence for which you have been imprisoned;
• have ever been convicted of an offence in New Zealand for which the court had the power to imprison you for three months or longer;
• are under investigation, wanted for questioning, or have been charged with an offence which, if you are convicted, has a term of imprisonment of 12 months or longer.

Good character for residence visa

The good character standard to meet is much higher for residence visa applications.

Serious character issues

Unfortunately, unless special direction is made, you will not be granted a residence visa if you:

• have been convicted of an offence for which you were sentenced to a term of imprisonment of 5 years or more;
• have been convicted in the last 10 years of an offence for which you were sentenced to a term of imprisonment of 12 months or longer;
• are prohibited from entering New Zealand;
• have been removed, excluded or deported from any country.

Furthermore, if INZ has reasons to believe that you are either likely to commit an offence in NZ that is punishable by imprisonment, or are likely to be a risk to security or to the public interest or are likely to be a threat to the public order, you will also be ineligible for a residence visa.

Character issues requiring a character waiver

If you have committed any of the below character issues, you will not meet INZ's character requirements. However, you are able to explain your circumstances and request a character waiver. As you can see, there are a lot more issues which require a character waiver for a residence visa, compared to the temporary visas. You:

• have ever made or provided false or misleading information, or withheld material information when applying for a New Zealand visa, or when supporting another person’s New Zealand visa application;
• have ever been convicted of an offence against immigration, citizenship or passport laws in any country;
• have ever been convicted of an offence involving:
  • violence
  • prohibited drugs
  • dishonesty;
• have ever been convicted of an offence of a sexual nature;
• have ever been convicted of an offence for which you were sentenced to a term of imprisonment;
• have, while holding a temporary New Zealand visa, or while unlawfully in New Zealand, been convicted of an offence in any country for which the court had the power to imprison you for three months or longer;
• have been convicted in the last five years of an offence involving:
  • dangerous driving
  • drunk driving
  • driving after consuming drugs;
• have ever publicly made a racist statement;
• have ever been a member of a racist group.

Character issues delaying your residence application

There are also three reasons surrounding character issues which may delay and defer your residence visa application for 6 months until the issue is resolved.

These include if:

• You are under investigation, wanted for questioning, or have been charged with an offence which, if you are convicted would be considered a serious character issue or would require you to be granted a character waiver;
• There is an active arrest warrant for you in any country;
• Your residence application is based on a relationship to a person whose own New Zealand residence status is under investigation.

If the issue is not solved within those six months, a further referral may be made.

If you are convicted for drink driving, try to see if you can get a 'discharge without conviction'. It doesn't mean you will get a clean slate, but it will give us something to work with when formulating a character waiver request.

You will need to see if there were any mitigating factors and you've done anything proactively to ensure you do not drink drive again.

We have saved many cases over the years, so if you need representation please contact us.

Immigration New Zealand takes non-declaration of previously declined visa applications to other countries very seriously as they have lost the opportunity to conduct a risk assessment on you.

You will need to be upfront about why the applications were declined and why the decline history was not declared correctly. It is recommended that you disclose all information truthfully when applying for a visa because if you don't and Immigration NZ finds out, you will be in deep trouble.

Non-disclosure effectively means that you lied to Immigration New Zealand as you will have ticked 'no' to one of the character questions when it should have been a 'yes'.

It can be very tricky because Immigration New Zealand no longer assesses whether mens rea (intention) was present when the false information was presented to them.

We maybe able to salvage the case depending on your circumstances, so please get in touch with us for full and proper representation.

Real life examples of successful character waivers

KI (Partnership)

In this case, the applicant completed his application form himself and English was his second language. He failed to declare a driving infringement and a visa refusal as he did not understand that the infringement counted as a "conviction" nor that the refusal counted as a visa "rejection." INZ subsequently declined his application. This was then appealed, and principles of fairness and natural justice were applied. The court found that INZ had procedurally failed as they had not allowed the client to explain the issues and apply for a character waiver. Because of this, the applicant was allowed to be assessed again and his application was successful.

Chiu v Minister of Immigration

This applicant provided false information in his application, whereby he did not declare that he had a conviction. This was because he thought it had been wiped from his record and thus he did not have a conviction to declare. INZ declined his application for this discrepancy, and then it was appealed. The court held that the applicant must intend to deceive INZ in situations such as this. This applicant did not intend to deceive INZ, he honestly believed he did not hold any convictions. Because of this, the case was overturned.

Residence Appeal No 14255

In this case, the Cambodian applicant unknowingly supplied false birth and death certificates. INZ found issue with this and declined the application stating that this meant the applicant was not of good character. The court overturned this decision however, stating that INZ must first have investigated whether the false documents had been supplied intentionally. At finding the action was not intentional, INZ should have undertaken an assessment for a character waiver, allowing the applicant to explain themselves.

In response to INZ's PPI letter, you must explain and justify why you should be granted a character waiver. INZ considers factors such as:

• The seriousness of the offence e.g. term of imprisonment or size of fine;
• If there was more than one offence;
• Whether false, misleading or forged information was provided and the significance of this;
• When the relevant event occurred i.e. were you young;
• If you have any family who live lawfully and permanently in NZ;
• Whether you show a strong emotional or physical tie to the country;
• What your potential contribution to NZ will be and if it would be significant.

You will have been given a short period of time within which to respond by. You must not waste time! Talk to a professional immediately because it will take a lot of time and effort putting together all the right pieces to make your case stronger.