New Zealand Character Waivers:

What Fiji Visa Applicants Need to Know

If you are applying for a New Zealand visa from Fiji and have a criminal conviction, a previous immigration problem, or concerns about information provided in an earlier visa application, Immigration New Zealand may raise questions about whether you meet New Zealand's character requirements.

This does not necessarily mean that you cannot obtain a New Zealand visa.

Depending on the circumstances and the applicable immigration instructions, Immigration New Zealand may be able to grant a character waiver.

However, character issues should be taken seriously. A character waiver is not simply a request asking Immigration New Zealand to overlook a problem. The circumstances surrounding the character issue, the type of visa being applied for, the applicant's explanation and the supporting evidence can all be important.

This guide explains some of the issues Fiji applicants should understand before making a New Zealand visa application involving a potential character issue.

What is a New Zealand character waiver?

People applying for New Zealand visas are required to meet applicable character requirements.

Immigration New Zealand may identify a character issue because of matters such as an applicant's criminal history, previous immigration history, or false, misleading or withheld information in a current or previous visa application.

Where the applicable immigration instructions allow it, an applicant who does not meet the relevant character requirements may ask Immigration New Zealand to waive those requirements.

This is commonly referred to as a character waiver.

A character waiver is discretionary. It should not be assumed that a waiver will be granted simply because one has been requested.

Immigration New Zealand must consider the circumstances of the particular application under the immigration instructions applying to that visa.

Why might I need a character waiver?

There are a number of circumstances in which character issues can arise.

These can include:

• criminal convictions;

• criminal charges or certain other offending-related matters;

• providing false or misleading information to Immigration New Zealand;

• failing to disclose relevant information;

• providing forged or altered documents;

• problems arising from previous New Zealand visa applications;

• deportation or removal history in another country; and

• other matters falling within New Zealand's immigration character requirements.

The exact character rules depend on the type of visa and the particular circumstances.

It is therefore important not to assume that another person's experience will necessarily apply to you.

I made a mistake in an old visa application. Can it affect my new application?

Potentially, yes.

This is one of the most important issues for applicants to understand.

Information provided in an earlier visa application can potentially affect later New Zealand visa applications.

For example, Immigration New Zealand may identify that information in a previous application was false or misleading or that relevant information was withheld.

This can create a character issue when a person subsequently applies for another New Zealand visa.

The problem therefore does not necessarily disappear simply because the earlier application has finished.

What if I did not deliberately provide false information?

This is an area where applicants need to be particularly careful.

A person should not assume that saying:

“I didn't deliberately lie”

will automatically resolve the problem.

Under current Immigration New Zealand policy, a finding that false or misleading information was provided does not necessarily require Immigration New Zealand to establish that the applicant personally knew the information was false or intended to deceive Immigration New Zealand.

However, the circumstances surrounding what happened can still be highly relevant when Immigration New Zealand considers whether a character waiver should be granted.

Depending on the applicable instructions, matters such as the applicant's intentions, involvement and the steps taken to ensure that accurate information was provided can be relevant.

This is one reason why the explanation accompanying a character waiver can be extremely important.

What if an immigration adviser, agent, friend or relative completed my previous application?

Applicants sometimes tell us:

“I didn't fill in the application. Someone else did it for me.”

That fact can be relevant, but it does not necessarily make the problem disappear.

Immigration New Zealand can consider false or misleading information provided through an agent.

The circumstances therefore need to be carefully examined.

Questions may include:

• Who prepared the application?

• What information did you give that person?

• Did you see the completed application?

• Were the answers explained to you?

• Did you understand what was being submitted?

• Did you sign or approve the application?

• Did you know that particular information was incorrect?

• When did you first discover the problem?

• What did you do after discovering it?

• What steps did you take to ensure that the information provided was accurate?

The answers can be important when preparing an explanation for Immigration New Zealand.

What if I have a criminal conviction?

Having a criminal conviction does not automatically mean that every New Zealand visa application will be declined.

The applicable immigration instructions need to be considered.

Where a character waiver is available, Immigration New Zealand may consider circumstances surrounding the offending and the applicant.

Relevant considerations can differ depending on the visa category and character provision involved.

For example, the seriousness and circumstances of offending, the applicant's history, the passage of time and the person's wider circumstances may potentially be relevant.

Older offending should therefore not simply be ignored.

It is generally better to identify the issue, understand the relevant immigration requirements and determine how it should properly be addressed.

Are character requirements different for residence and temporary visas?

Yes. This is an important distinction.

New Zealand immigration instructions contain character provisions for temporary entry visas and separate provisions applying to residence class visas.

The considerations applying to a visitor or work visa are therefore not necessarily identical to those applying when a person seeks New Zealand residence.

An applicant who has previously received a temporary visa despite a character issue should not assume that residence will automatically be approved.

Similarly, the fact that a character waiver may previously have been granted does not necessarily mean that every future application will receive the same outcome.

Each new application must be assessed according to the circumstances and the immigration instructions applicable at the time.

I have received a PPI letter. What should I do?

A PPI, or Potentially Prejudicial Information, letter can be very important.

It generally means Immigration New Zealand has identified information or concerns that may adversely affect the application and is providing an opportunity to respond before making its decision.

Read the letter carefully. The response should address the actual concerns raised rather than simply repeating why the applicant wants to come to New Zealand.

Depending on the issue, this may involve correcting factual misunderstandings, explaining previous conduct, providing additional evidence and making submissions concerning why a character waiver should be granted.

Applicants should also pay close attention to the deadline stated in the letter.

My visa was declined. Should I simply lodge another application?

Not necessarily.

If a previous application was declined because of a character issue, simply submitting another application without addressing the underlying problem may result in the same issue arising again.

Before applying again, it may be useful to obtain and review:

1. the previous visa application;

2. documents submitted with that application;

3. any PPI correspondence;

4. the response provided to Immigration New Zealand;

5. any previous character waiver;

6. Immigration New Zealand's decision letter; and

7. relevant correspondence with the person who prepared the previous application.

In some cases, obtaining the applicant's Immigration New Zealand records can provide a clearer picture of what has previously occurred.

Should I disclose an old conviction or previous immigration problem?

Applicants should answer visa application questions accurately and completely.

Trying to hide an existing problem can potentially create an additional immigration problem.

If you are uncertain whether something needs to be declared, obtain advice before submitting the application rather than guessing.

Can a character waiver be guaranteed?

No.

Character waivers involve Immigration New Zealand exercising discretion under the applicable immigration instructions.

No lawyer or adviser can properly guarantee that Immigration New Zealand will grant a character waiver or approve the visa.

What can be done is to identify the relevant issues, properly explain the circumstances, provide appropriate evidence and present the strongest application reasonably available on the facts.

Why can character waiver applications require substantial preparation?

Character waiver matters can sometimes look deceptively simple.

An applicant may initially think:

“I only need to explain what happened.”

In more complicated cases, however, considerable work may be required.

At Victorian Lawyers, our work on a complex character matter can involve reviewing the applicant's complete immigration history, identifying inconsistencies between applications, reviewing Immigration New Zealand correspondence, taking detailed instructions, obtaining supporting evidence, researching the applicable immigration instructions and relevant legal authorities, and preparing detailed written submissions.

For example, one of our recent character waiver matters involved approximately 10 pages of written submissions supported by around 150 pages of evidence, supporting material and relevant authorities, requiring approximately 12–15 hours of professional work.

This does not mean that every character waiver will require that level of work. Every matter is different.

Applying from Fiji?

Victorian Lawyers is a New Zealand law firm assisting clients with New Zealand immigration matters, including clients based in Fiji.

If you:

• have a criminal conviction;

• have received a PPI letter;

• previously had a New Zealand visa declined;

• failed to declare something in an earlier application;

• are concerned incorrect information was previously given to Immigration New Zealand;

• believe an agent or another person submitted incorrect information on your behalf;

• previously required a character waiver; or

• are concerned that your history may affect an upcoming work, visitor, partnership or residence application,

we can review your circumstances and advise you on the appropriate next steps.

Before lodging another application, understand the problem you are dealing with.

A character issue does not necessarily mean the end of your New Zealand immigration plans. However, it is an issue that should be properly understood and addressed.

Contact Victorian Lawyers to arrange a consultation regarding your New Zealand immigration matter.

Website: www.victorianlawyers.co.nz

Disclaimer: This article contains general information only and is not legal or immigration advice. Immigration instructions and individual circumstances differ and may change. Every visa and character waiver application is determined on its own facts. You should obtain advice specific to your circumstances before making decisions about an immigration application.

CASE STUDY

A Fiji Character Waiver Case Study

One of our Fiji clients applied for a New Zealand residence visa through our firm and was required to submit a character waiver as part of his residence application.

What made the situation particularly stressful for him was that he had already dealt with the same character issue when applying for an earlier work visa. A character waiver had been considered at that stage, but when he later applied for residence, Immigration New Zealand required the character issue to be addressed again.

The client was understandably concerned about whether his residence application would be approved. By that time, he had already established his life in New Zealand. He was living and working in New Zealand with his family, and his children were enrolled in local schools.

The character issue arose from a criminal conviction in Fiji that was more than 30 years old.

Before making his earlier visa application, the client had sought advice in Fiji and understood from police officers that the conviction was no longer valid or relevant.

Based on that understanding, when he was asked on his New Zealand visa application whether he had any previous criminal convictions, he answered “No”.

However, when the Fiji police clearance was subsequently obtained, the old conviction appeared on the police record.

That was when the client's character waiver journey began.

The issue was not simply the age of the conviction. Immigration New Zealand also had to consider the fact that the conviction had not been declared in the visa application. This meant that the circumstances surrounding the non-disclosure, the client's understanding at the time, his immigration history, his family circumstances, his life in New Zealand and the relevant character requirements all needed to be carefully considered.

His circumstances also demonstrate an important point for visa applicants: the fact that a character issue has previously been considered for a temporary visa does not necessarily mean that it will not have to be addressed again when applying for residence.

For our client, the uncertainty was significant. He had built a life in New Zealand, was employed, and had his family and children living with him. The outcome of the residence application therefore had very real consequences for the whole family.

His residence application was ultimately approved.

Every case is different, and a previous successful character waiver does not guarantee that another waiver will be granted. However, this case demonstrates why applicants with old convictions or previous disclosure issues should obtain advice before assuming that an earlier character decision will automatically carry over into a future visa application.