The importance of discharge without conviction for visa holders

Securing a resident class visa is not the end of complying with New Zealand law, with many visa holders facing the chance of deportation if they are subsequently convicted.

Section 161 of the Immigration Act 2009 (Act) stipulates that holders of resident class visas (including Resident Visas and Permanent Resident Visas) may be subject to deportation if convicted of a criminal offense for which the Court has the authority to impose imprisonment sentences.

If you find yourself facing charges while holding a residence class or temporary visa, it is crucial to seek legal advice from both criminal and immigration lawyers to fully grasp the implications of the conviction from all angles.

If the conviction would render you liable for deportation under the Act, it may be worthwhile to focus on the criminal proceeding to demonstrate how that consequence would outweigh the gravity of the conviction, thus making a case for its discharge to avoid deportation proceedings.

The details

The duration of residency impacts the threshold for the severity of the offense required to trigger this liability. For example, consider an individual holding a Resident Visa for less than two years. If they are convicted of driving with an excess breath/blood alcohol offense, they will be liable for deportation under this section, regardless of the actual sentence imposed. This is due to this being an offense under section 56 of the Land Transport Act 1998, where the Court has the power to impose a maximum penalty of imprisonment not exceeding three months.

In another scenario, for an individual holding a resident class visa for more than two years but less than five years (which may include a Permanent Resident Visa as it is still classified as a resident class visa), the threshold for triggering deportation liability under section 161 is when the individual is convicted of an offense for which the Court has the power to impose a imprisonment sentence of at least two years. Therefore, in this example, assuming the person is fined and loses their license for a set period, a conviction for driving having excess breath/alcohol content would not meet this threshold, because the maximum imprisonment sentence the Court can impose is only three months.

This underscores that for moderate to severe criminal offenses, whether the residence visa holder receives a conviction is crucial in determining their liability for deportation. As such, any resident class visa holder who has been charged with an offence needs to understand the potential for deportation at a very early stage.

Discharge without conviction application

When an individual faces charges for a deportable offense, there are several avenues to avoid a conviction. Typically, they can plead not guilty and undergo a full trial to prove their innocence, they can seek diversion from the police, or they can plead guilty (or be found guilty) and apply for a discharge without conviction.

In cases where an individual pleads guilty to, or is found guilty of, a criminal offense with no minimum sentence, section 106 of the Sentencing Act 2002 (Sentencing Act) empowers the Court to discharge the individual without conviction if it deems, under section 107 of the Sentencing Act, that “the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offense“. This is referred to as the Section 107 Analysis.

If successful in their request for discharge of conviction, the individual would not have a criminal record. Consequently, they would not be subject to deportation under section 161 of the Act.

New Supreme Court decision

Over the years we have supported and secured many discharges without conviction for offending where there was a significant risk of deportation if convicted. However, the results have been mixed. Some Courts setting a position that the potential for deportation was a consequence of the offending, not a conviction, therefore in some cases the Court did not accept the application to discharge without conviction and saw that outcome as a function for Immigration New Zealand to review and consider post-conviction instead.

The Supreme Court of New Zealand recently issued a judgment in the case of Bolea v R [2024] NZSC 46, ruling that the risk of deportation should be considered for the purpose of the Section 107 Analysis. The judgment:

  1. Recorded that evidence in that particular case suggested that if the appellant was not granted a discharge without conviction, they would “almost certainly” be deported.
  2. Confirmed the Court was of the view that aspects of the Act that govern the deportation process indicated that the risk of deportation is a real consequence of their conviction (which includes the high humanitarian and public interest thresholds to appeal to the Immigration and Protection Tribunal against a deportation notice).
  3. Noted that the risk of deportation because of a conviction, does not in itself mean a discharge will be granted.

As a result, the appellants conviction for participating in an organised criminal group was overturned, and her application for a discharge without conviction was referred back to the High Court for reconsideration.

While this does not erase the conviction, it grants the appellant an opportunity for her discharge application to be re-evaluated by the High Court, which will now consider the potential consequences of deportation in its Section 107 Analysis, and that may well result in a discharge without conviction being issued.

This judgment has set a new precedent that deportation risk is to be considered a consequence of conviction, not the offending. It therefore sets a position that it is fair and appropriate for the New Zealand Courts to consider deportation liability when considering applications for discharge.

It does not guarantee that resident visa holders facing deportation will automatically have their convictions discharged based solely on this factor. However, it is a strong determination at the highest Court level that the risk of actual deportation is to be factored into the Court’s proportionality assessment, serving as a relevant consideration in the Section 107 Analysis.

What does this mean?

This decision holds significant importance for residence class visa holders and their criminal lawyers representing them in Court proceedings. The Supreme Court reinforcing the importance of deportation liability because of conviction rather than just an outcome of the offending, means in situations where a conviction would trigger deportation liability, it is appropriate to consider making an application for discharge, as convicted resident class visa holders now have grounds to argue that the deportation would be disproportionate to the severity of their crime. This is especially pertinent for individuals who have resided in New Zealand for an extended period, actively contributing to the country, and establishing significant ties within the local community.

This rationale could arguably apply to a temporary visa holder who has committed a criminal offense, though with less effect because their deportation liability under section 157 of the Act arises from the criminal offending (not the conviction), so is a much lower threshold.

We can help

Our Immigration and Litigation teams possess specialised expertise in this intersection of law. We act for individuals directly in such cases – with both criminal and immigration advice. We are also often engaged by criminal lawyers and barristers in the provision of expert affidavits setting out the consequences of conviction from an immigration point of view, that can assist the Court in considering requests for discharge where there is potential deportation liability.

Co-author: George Brougham

Meet the team that makes
things simple.

Mark Williams
Ken Huang

Let's Talk

"*" indicates required fields

Lane Neave is not able to provide legal opinion or advice without specific instructions from you and the completion of all formal engagement processes.