- The appellant's SSRV application was declined due to a drink-driving conviction affecting character requirements.
- INZ’s character waiver assessment was found flawed by the IPT, lacking procedural fairness.
- The IPT cancelled the decision and referred it back to INZ for a correct assessment.
Background
The appellant, a 50-year-old citizen of the United Kingdom, arrived in New Zealand in October 2015 on a two-year Essential Skills work visa, securing full-time employment as a signwriter. In March 2017, he was granted residence under the Skilled Migrant category, receiving a returning resident visa valid until 7 March 2019. A wrist injury in 2017 led to a career change, and he was retrained as a light commercial vehicle driver. In June 2017, he was convicted of driving with excess breath alcohol and fined. In November 2019, he returned to New Zealand from the UK after attending his father's funeral, only to find his resident visa had expired.
Prior to Appeal
The appellant applied for a Second or Subsequent Resident Visa (SSRV) on 24 January 2020, disclosing his drink-driving charge. Immigration New Zealand (INZ) informed him that his conviction affected his character requirements for the visa, inviting him to provide further information. He responded with a written statement, support letters, and multiple job offers, highlighting his remorse and commitment to not reoffend.
Immigration New Zealand Assessment
INZ conducted a character waiver assessment, considering the appellant's drink-driving conviction as a negative factor against his application. While acknowledging his remorse and support in New Zealand, INZ focused on the seriousness of his offending and his past drink-driving conviction in the UK. INZ requested additional information regarding his risk of reoffending but only asked for a "short letter" from the appellant.
Immigration New Zealand Decision
On 18 February 2020, INZ declined the SSRV application as the appellant failed to meet the good character requirements and was not granted a character waiver. This decision was primarily based on the character waiver assessment, which concluded that the negative factors in the appellant’s case outweighed the positive.
IPT Assessment
The IPT found that INZ's assessment process was flawed. The Tribunal highlighted that while the appellant was not of good character due to his drink-driving conviction, INZ failed to provide him a fair opportunity to provide detailed information regarding his risk of reoffending. The "short letter" request was insufficient for the appellant to convey a comprehensive response, leading to an unfair assessment of his character waiver.
Special Circumstances
The Tribunal did not explicitly discuss any special circumstances beyond those involved in the character waiver assessment process. It focused on the procedural fairness and adequacy of the appellant's opportunity to respond to the concerns raised by INZ.
IPT Determination
The IPT concluded that INZ did not follow a fair and proper process in requesting information crucial to the character waiver assessment. Therefore, the decision to decline the SSRV was cancelled, and the application was referred back to INZ for a correct assessment, with specific directions for reevaluation.
