IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2017] NZIPT 203860 AT AUCKLAND Appellant: YV (Skilled Migrant) Before: A M Clayton (Member) Counsel for the Appellant: A S Martin Date of Decision: 17 May 2017 RESIDENCE DECISION [1] The appellant is a 26-year-old citizen of India whose application for residence under the Skilled Migrant category of residence instructions was declined by Immigration New Zealand. THE ISSUE [2] The appellant s conviction for driving with excess blood alcohol in New Zealand in January 2013 meant that he did not meet the character requirements for residence unless he was granted a waiver. Immigration New Zealand declined to grant him a character waiver. [3] The primary issue on appeal is whether Immigration New Zealand conducted its character waiver assessment fairly and correctly. The Tribunal finds that it did not do so and that the application must be re-assessed. The reasons for this outcome follow. BACKGROUND [4] The appellant arrived in New Zealand in November 2010 and obtained a Level 5 Diploma in Business Management in November 2011. He worked as a supermarket supervisor in Auckland from March 2012 to November 2014.
2 [5] In November 2012 the appellant committed the offence of driving with excess blood alcohol with a reading of 191 mcg. In January 2013 he was convicted and fined $800 and disqualified from driving for seven months. [6] In December 2014, the appellant commenced his present employment, as restaurant manager in an Indian restaurant in a provincial South Island town. [7] On 14 December 2015 the appellant lodged an application for residence under the Skilled Migrant category on the basis that his position substantially matched the Australian and New Zealand Standard Classification of Occupations (ANZSCO) classification for a Restaurant Manager. [8] Over the course of processing his application, Immigration New Zealand was satisfied that his employment substantially matched the ANZSCO description, including core tasks, for a Restaurant Manager. It awarded 60 points for his ongoing employment, 30 points for his employment being outside Auckland, 30 points for his age, 40 points for his qualification, and 5 points for his New Zealand work experience, a total of 165 points. It also found that he had an acceptable standard of health and met English language requirements. [9] The only outstanding issue was the appellant s character. With his residence application he provided an explanation as to his New Zealand conviction. He said he was driving a friend home from a party and had stopped at a service station to buy water for his friend who was feeling dizzy. He was asked by police whether he had been drinking and when he admitted that he had been he was taken to the police station. He still feels guilty for what he did. He did not drive during the period he was disqualified, paid the fine and court costs, and has learnt a massive lesson. [10] On 9 September 2016 Immigration New Zealand wrote to the appellant advising him that his conviction meant that he was a person normally ineligible for a residence class visa. It was a conviction for an offence committed while the appellant was on a temporary visa and a drink-drive offence which had occurred within the last five years. [11] On 13 September 2016 the appellant s (then) representative responded with a number of submissions in support of a request for a character waiver. A statutory declaration from the appellant was produced as to the circumstances of the offence and the effect his conviction had had on him (13 September 2016), together with 32 character reference and support letters from friends, colleagues,
3 customers, members of his local community in the South Island, suppliers and the appellant s current employer. [12] On 4 November 2016 Immigration New Zealand wrote to the appellant again, formally requesting submissions in regard to a waiver. The representative responded on the same day, advising that all submissions and documents relating to a waiver had already been lodged. [13] On 1 December 2016 an Immigration New Zealand technical adviser undertook a character waiver assessment. As to the seriousness of the offence, it was recorded that the size of the fine and the disqualification from driving was indicative of the offending being relatively serious. Drink-driving was considered to be a serious traffic offence by the New Zealand Police, given the potential harm to other road users. The technical adviser observed that this was the appellant s only offence and that it had taken place in November 2012 which was considered to be relatively recent. The appellant s remorse was noted. His police certificate from India was clear. [14] As to whether the appellant had any immediate family lawfully and permanently in New Zealand, it was noted that all his family resided in India. Addressing any strong emotional and physical tie to New Zealand, it was noted that the appellant had lived in New Zealand since November 2010, and had worked as a restaurant manager at the same establishment since December 2014. Reference was made to the number of character references and letters of support he had received. His emotional and physical tie to New Zealand was determined to be fairly modest. [15] Concerning the appellant s potential contribution, the technical adviser noted that the appellant s current occupation was not on the Long Term Skill Shortage List and therefore not in high demand in New Zealand, and that his remuneration of $33,150 per annum was relatively modest and not reflective of the appellant having skills or expertise that were out of the ordinary. His contribution to New Zealand was therefore considered to be modest. [16] The technical adviser concluded that the factors in favour of a character waiver did not outweigh those against one.
4 Immigration New Zealand Decision [17] On 16 December 2016 Immigration New Zealand declined the appellant s application, noting that while he had been allocated 165 points, a character waiver had been declined. A copy of the character waiver assessment was attached to the decline letter. STATUTORY GROUNDS [18] The appellant s right of appeal arises from section 187(1) of the Immigration Act 2009 (the Act). Section 187(4) of the Act provides: (4) The grounds for an appeal under this section are that (a) (b) the relevant decision was not correct in terms of the residence instructions applicable at the time the relevant application for the visa was made; or the special circumstances of the appellant are such that consideration of an exception to those residence instructions should be recommended. [19] The residence instructions referred to in section 187(4) are the Government residence instructions contained in Immigration New Zealand s Operational Manual (see www.immigration.govt.nz). THE APPELLANT S CASE [20] On 23 December 2016, the appellant lodged this appeal on the ground that the Immigration New Zealand decision was incorrect. [21] His counsel lodged three sets of submissions (dated 7 and 8 February 2017) together with the following documents: (a) letters from the appellant s current employer (1 and 2 February 2017) together with statements of financial performance for the restaurant for the years ending March 2014, 2015 and 2016; (b) (c) evidence of the appellant taking leave from his employment from 13 February to 15 April 2017; a letter of support from the appellant s local Member of Parliament (27 January 2017);
5 (d) (e) (f) (g) letters from an elderly care home (20 January 2017), school (22 January 2017) and office of the Mayor (21 January 2017) attesting to the appellant s community activities; letters from a local retailer, the appellant s gym and a blood donor organisation; chart of regional unemployment rates in 2016; and a letter from a criminal/traffic barrister (7 February 2017) discussing the appellant s sentence in the context of penalties for drink-drive offending. [22] Given the outcome of this appeal, it is unnecessary to address the admissibility of this new evidence. ASSESSMENT [23] The Tribunal has been provided with the Immigration New Zealand file in relation to the appellant s application and has also considered the submissions and documents provided on appeal. [24] An assessment as to whether the Immigration New Zealand decision to decline the appellant s application was correct in terms of the applicable residence instructions is set out below. Whether the Decision is Correct [25] The application was made on 14 December 2015 and the relevant criteria are those in residence instructions as at that time. Character issue identified [26] Immigration New Zealand was satisfied that the appellant met all the requirements of the Skilled Migrant category other than the character requirement. It determined that the appellant s conviction for driving with excess blood alcohol meant that the character instructions at A5.25.f and h were engaged.
6 A5.25 Applicants normally ineligible for a residence class visa unless granted a character waiver Applicants who will not normally be granted a residence class visa, unless granted a character waiver (see A5.25.1(b) below), include any person who has been: f. convicted (whether in New Zealand or not) of an offence committed at any time when the applicant was in New Zealand unlawfully or was the holder of a temporary entry class visa or held a temporary permit under the Immigration Act 1987 or was exempt under that Act from the requirement to hold a permit, being an offence for which the court has power to impose imprisonment for a term of three months or more; or h. convicted at any time during the last five years, of an offence (including a traffic offence), involving dangerous driving, driving having consumed excessive alcohol (including drunk driving and driving with a blood or breath alcohol content in excess of a specified limit) or driving having consumed drugs; or i. in the course of applying for a New Zealand visa (or a permit under the Immigration Act 1987), has made any statement or provided any information, evidence or submission that was false, misleading or forged, or withheld material information; or Note: When considering whether or not an applicant has committed an act that comes under A5.25 (i), (j) or (k) or (l) above, an immigration officer should establish whether, on the balance of probabilities, it is more likely than not that the applicant committed such an act. For the avoidance of doubt, any offence that has the potential to result in a term of imprisonment of three months falls within the scope of A5.25(f). This includes, but is not limited to, potential sentences "not exceeding three months" or "up to and including three months". Effective 30/03/2015 [27] While it does not form part of the current determination, the Tribunal notes that it is unclear as to whether the appellant disclosed his conviction when he lodged his applications for work visas after the offence and before his residence application. If he did not do so, he is also potentially caught by A5.25.i (above). [28] In any event, Immigration New Zealand was correct to find that the appellant s conviction, by itself, meant that he was caught by A5.25.f and h and that he was therefore an applicant normally ineligible for a residence class visa unless granted a character waiver.
7 Character waiver assessment [29] The instructions setting out how character waiver assessments should be conducted are: A5.25.1 Action a. An immigration officer must not automatically decline residence class visa applications on character grounds. b. An immigration officer must consider the surrounding circumstances of the application to decide whether or not they are compelling enough to justify waiving the good character requirement. The circumstances include but are not limited to the following factors as appropriate: i. if applicable, the seriousness of the offence (generally indicated by the term of imprisonment or size of the fine); ii. iii. iv. whether there is more than one offence; if applicable, the significance of the false, misleading or forged information provided, or information withheld, and whether the applicant is able to supply a reasonable and credible explanation or other evidence indicating that in supplying or withholding such information they did not intend to deceive INZ; how long ago the relevant event occurred; v. whether the applicant has any immediate family lawfully and permanently in New Zealand; vi. vii. whether the applicant has some strong emotional or physical tie to New Zealand; whether the applicant's potential contribution to New Zealand will be significant. d. Officers must make a decision only after they have considered all relevant factors, including (if applicable): i. any advice from the National Office of INZ; and ii. compliance with fairness and natural justice requirements (see A1). e. Officers must record: i. their consideration of the surrounding circumstances, (see paragraph (b) above), noting all factors taken into account;, and ii. the reasons for their decision to waive or decline to waive the good character requirements. Any decision to waive the good character requirements must be made by an immigration officer with Schedule 1-3 delegations. Effective 30/03/2015
8 [30] The Tribunal has examined how the Immigration New Zealand technical adviser treated each of the relevant factors in A5.25.1.b. [31] First, the technical adviser determined that the appellant s offence was, in terms of the size of the fine, and the disqualification, relatively serious. On one reading, the adviser appears to find that, not only had the appellant been sentenced to a fine, but also disqualified, which made the offence more serious. It is not clear whether the adviser knew that a six-month disqualification is the minimum, mandatory, disqualification for a drink-drive offence (see section 56(3)(b) of the Land Transport Act 1998). [32] No comment on the appellant s blood alcohol level was made. At 191 mcgs/litre of blood this was, in November 2012 when the limit was 80 mcgs/litre, more than twice the legal limit. The adviser did not address whether this accounted for the fine being marginally more, and the disqualification a month more, than the standard fine and disqualification. [33] As it stands, it is also not clear whether the offence was considered relatively serious in terms of drink-drive convictions which, in turn, were described as serious traffic offences, or in terms of criminal offending generally. If Immigration New Zealand labels an offence relatively serious in a waiver assessment, the appellant should be able to understand what relatively serious means. The present assessment does not say what the seriousness is relative to, and therefore provides no meaningful indication of just how serious the offence was viewed. [34] The adviser acknowledged that this was the 26-year-old appellant s only offence (A5.25.1.b.ii). However, the Tribunal cannot see where any weight was given to this in the final balancing of positive and negative factors. In terms of how long ago the offence (in November 2012) had occurred (A5.25.1.b.iv), Immigration New Zealand used the non-specific term, relatively, recently. It would have been more useful and accurate to have recorded that the offence took place four years earlier, when the appellant was 22 years old. He was now 26 and had not been convicted of any further offences, drink-driving or otherwise. [35] Immigration New Zealand considered next whether the appellant had any nexus to New Zealand and recorded correctly that he did not have any immediate family lawfully and permanently in New Zealand (A5.25.1.b.v). Although 32 references and letters of support had been presented to it, Immigration New Zealand decided, in view of the length of time that the appellant had spent in New
9 Zealand (at that stage, six years), that his emotional and physical ties to the country (A5.25.1.b.vi) were fairly modest. In addition to making this finding, yet again, in the vaguest of terms, no factors other than the length of time he had spent in New Zealand, were given any consideration. The 32 character references and letters were referred to in terms of their number, but not examined in any meaningful way to gauge the level of involvement the appellant had in his community. [36] Finally, Immigration New Zealand assessed, in terms of A5.25.1.b.vii, that the appellant s potential contribution to New Zealand would be modest. This was after describing his remuneration of $33,150 per annum as relatively modest. Once again, this non-specific terminology conveys little. A specific comparison with the current minimum wage ($32,760 per annum) would have been much more helpful. Again though, no other potential contribution was considered. For instance, no mention was made of how highly the appellant was valued by his employer who had stated in one of his letters that the appellant was an asset to the company, an integral part of its operation and that he had helped increase sales. Nor was any account taken of the appellant s skilled employment being in a South Island provincial town or the fact that he met all the requirements of the Skilled Migrant category, other than character. [37] In summary, Immigration New Zealand s reasons for declining a waiver were inadequate. Reasons must be given in sufficient detail as to be meaningful. Because the Tribunal cannot gauge just how serious the appellant s one offence was considered, or what weight was given to the positive factors in the appellant s case, it cannot be confident that Immigration New Zealand conducted a completely fair waiver assessment. [38] It follows that Immigration New Zealand s decision to decline the application on the basis that the appellant s circumstances were not sufficiently compelling to warrant a character waiver, was incorrect. DETERMINATION [39] This appeal is determined pursuant to section 188(1)(e) of the Immigration Act 2009. The Tribunal considers the decision to refuse the visa was made on the basis of an incorrect assessment in terms of the applicable residence instructions. However, the Tribunal is not satisfied the appellant would, but for that incorrect
10 assessment, have been entitled in terms of those instructions to the immediate grant of a visa. [40] The Tribunal therefore cancels the decision of Immigration New Zealand. The appellant s application is referred back to the chief executive of the Ministry of Business, Innovation and Employment for a correct assessment by Immigration New Zealand in terms of the applicable residence instructions, in accordance with the directions set out below. Directions [41] It should be noted that, while these directions must be followed by Immigration New Zealand, they are not intended to be exhaustive and there may be other aspects of the application which remain to be completed or require updating. 1. The application is to be reassessed by a different Immigration New Zealand officer in accordance with the instructions in existence at the date the application was made and without the payment of a further lodgement fee. 2. Immigration New Zealand is to make findings as to which of the good character requirements it considers the appellant has breached. If it makes a finding that the appellant failed to declare his conviction in any earlier application, and that the appellant intended to mislead it, it must put the appellant on notice that it considers A5.25.i applies and allow him an opportunity to comment. 3. Immigration New Zealand will need to undertake a character waiver in regard to the appellant s conviction and any other character issue which it determines has been established. In doing so, it must address all relevant information, including that provided by the appellant on appeal (which addresses the question of contribution to the community more fully than before) and any further information the appellant provides to Immigration New Zealand (which it must give him a further opportunity to lodge). 4. Immigration New Zealand must also record at what level of seriousness it considers the appellant s conviction sits, and why. It will then correctly identify and fairly weight all relevant considerations to
11 determine whether or not the surrounding circumstances of the appellant s application are compelling enough to justify waiving the good character requirement. [42] For the benefit of the appellant, the onus is on him to provide evidence and information relevant to a character waiver assessment. He must not regard the Tribunal s direction that the application be reassessed as any guarantee that he will be granted residence. That is a decision for Immigration New Zealand to make, following a proper assessment of the application. [43] The appeal is allowed in the above terms. Order as to Depersonalised Research Copy [44] Pursuant to clause 19 of Schedule 2 of the Immigration Act 2009, the Tribunal orders that, until further order, the research copy of this decision is to be depersonalised by removal of the appellant s name and any particulars likely to lead to his identification. A M Clayton A M Clayton Member Certified to be the Research Copy released for publication. A M Clayton Member