On Friday 1 September Immigration New Zealand (INZ) released Amendment Circular No. 2023-26, a complex piece of policy which will have far-reaching consequences for new visa applications, including historical findings that a visa applicant has provided false, misleading or withheld information in the past. We set out below our thoughts on this significant change in approach, which is set to come into effect for all visa applications made from 25 September 2023.
Current Approach
Under the current settings, if an applicant (directly or via their agent) has provided false, misleading or withheld relevant information in an application, in order for the applicant to fail the good character requirement (that could lead to a decision to decline that visa application), it must be established that the applicant committed both the actus reus (ie, provided, or allowed to be provided, false, misleading or withheld relevant information) and had the element of mens rea (ie, had an actual intention to provide or withhold the negative information concerned).
A two-stage approach is currently applied:
- In the first instance, INZ determines (factually) whether any information, evidence (including documents) or submission made was false, misleading and/or whether relevant was withheld, irrespective of fault/cause. This is usually a simple fact-finding exercise.
- Second, if determined that false, misleading information was provided or relevant information was withheld, INZ would proceed to an assessment of character, that includes an assessment as to whether there was an actual intention to deceive or withhold the relevant information.
In this respect, the New Zealand Court of Appeal, in Chiu v Minister of Immigration [1994] 2 NZLR 541, (Chiu) held that “…the emphasis lay upon a deliberate attempt to deceive not an omission per se” [emphasis added]. As this position was set by New Zealand case law, INZ has followed the Court of Appeal guidance and has had to establish, on the balance of probabilities, whether it is more likely than not that an applicant has deliberately and dishonestly withheld information, or provided false or misleading documentation/statement(s) to INZ.
If the applicant proves, on the balance of probabilities, that they had no intention to deceive INZ (including the issue was created by their agent without their knowledge), then it was possible for INZ to determine that while false, misleading information was provided or relevant information was withheld, there was no fault on the applicant’s part as there was no intention to do so, and therefore there is insufficient cause to decline the application.
New Approach
From 25 September 2023 INZ has two different approaches to false or misleading information/concealment of relevant information in its arsenal.
Which one is applicable will depend on when the information was provided or concealed.
1. Provision of false or misleading information or concealment of relevant information in the current application.
Strict liability (in practice) will apply pursuant to section 58(6) of the Immigration Act 2009 (Act).
Although INZ must consider the issue as “relevant”, including considering the difference between something that is merely “incorrect” rather than false or misleading, our view is that in practice this will be a tick-box exercise. While INZ is required to consider the “circumstances” of the application, we anticipate that the likely effect of this will be a “sudden death” approach: that INZ will quickly decline applications that it considers contain false and misleading information or relevant information has been withheld. This will only be exacerbated by the fact that the definition of what INZ considers relevant information to an application has been expanded to mean that concealment of the information deprived INZ of a relevant line of inquiry (rather than that the information necessarily could lead to a decline decision).
In this sense, no waiver is possible, the decision will be a straight decline. Applicants will then need to file a new application where they can move through a character assessment in that application to have a second hearing, based on a “past” finding (refer below).
A streamlined triage process is being implemented. Basically, declining the application without time-consuming fault assessments. If there is something further to take into consideration, that will be assessed in a further application (if made by the applicant). We believe this approach is largely aimed at poor/bad immigration advisers. In our experience, many of these agents (particularly from offshore) provide false or misleading information without the knowledge of the applicant based on a tried and tested “approval formula”. In such cases an applicant could still be issued a visa if they did not know that their agent had acted in this manner. We have taken over such applications and secured visas for many applicants in this position in the past.
Also, non-principal applicants (i.e. partners or dependent children 18 and over) will bear responsibility for any false or misleading statements made in an application that are relevant to them, as the principal applicant will be considered their agent.
2. Issue with Historical Application – finding that there has been a provision of false, misleading information or concealment of relevant information, including material changes in circumstances post filing (but before visa issue) in a prior application.
In such subsequent applications, INZ will take a two-stage approach under Instruction A5.25:
a) The officer must determine whether false or misleading information was provided or that relevant information was concealed, which may have affected the decision on the application. The intention of the applicant is irrelevant here (although there must have been knowledge of the existence of the information by the applicant or their agent).
b) If false or misleading information was provided or relevant information was concealed, at that stage INZ will go straight to a character waiver assessment (this removes the two-stage Potentially Prejudicial Information Letter/Character Waiver Letter approach). In considering such a waiver, INZ must take into consideration the surrounding circumstances of the application, including:
- the significance of the false or misleading information provided, or the information withheld, with respect to the outcome of the application;
- the nature and extent of the applicant’s intentions and involvement in the provision of the false or misleading information, or in the withholding of relevant information;
- the extent to which the applicant exercised reasonable diligence in ensuring that INZ was provided with complete and accurate information; and
- whether Article 31 of the Convention Relating to the Status of Refugees applies.
Double Jeopardy?
Even if an applicant has previously been issued a visa since INZ was aware of the false or misleading information, or concealed relevant information based on the prior test (proving no actual intention to deceive), our interpretation is that they are likely to be caught by these Instructions and will need to go through the character waiver process again, in what we consider a double jeopardy approach. The failure to issue a character waiver in this respect, based on the new rules that apply, could mean that even if an applicant has secured a waiver in the past (including subsequent visa approvals), the historical issue could be raised in any future application and be a valid reason (subject to waiver) to decline that application.
This is very concerning. The policy seems to be able to provide a “claw back”, allowing INZ a tool to revisit historical issues that INZ may not be satisfied with.
The Big Picture
It seems to us that this policy change may be a response (in part) to the recent coverage of migrants who have been awarded Accredited Employer Work Visas for fraudulent jobs, due to the actions of bad actors (commonly, employers and agents). We see this change as an attempt by INZ to clamp down on some of these agents, by leading them to lose business through their clients repeatedly obtaining instant declines. This is reflected in Internal Administration Circular No 23/01, which notes:
“The integrity of the immigration system is also relevant when considering applications which contain false, misleading or withheld information where the person who submitted the application has deceived or misled the applicant. Declining such applications can support the integrity of the system because it removes incentives for applicants to rely on dishonest agents and encourages people who are acting on behalf of others to do so honestly.”
Given what the victims of these schemes have been facing, if this is INZ’s intention, it is an understandable one. It is also acknowledged that INZ has made carveouts to the policy to ensure that the victims of such migrant exploitation schemes are not “victim-blamed”. It also honours New Zealand’s obligations under the Refugee Convention through specific carve-outs for those requiring protection. But we do still wonder whether it is the wrong people who will truly feel the effect of this policy change, once this new tool is open for application.
From our past observations, we anticipate that INZ will overapply these regulations initially, despite issuing processing guides to immigration officers that require a balanced/reasonable approach, before pushback from the private sector (and case law) eventually allows an equilibrium to be reached. In the meantime, we anticipate that many people will be caught by the regulations and some are currently blissfully unaware what awaits them in their next visa application; many believing such issues have been dealt with and closed out, years ago.
But what about the retroactive nature of the policy? The common law principle of old as reflected in section 12 Legislation Act 2019 is that legislation does not have a retrospective effect. However we do not anticipate that this will help applicants given that the Tribunal has as recently as 14 April 2023 (OR (Partnership) [2023] NZIPT 206517) stated that section 12 does not apply to Immigration Instructions.
It strikes us as procedurally unfair that applications before 25 September 2023 will be caught by this policy, especially where visas have already been issued where the applicant has shown a lack of intent (causing a double jeopardy situation). While discretion can be exercised in the character waiver process, with any new policy it will be subject to interpretation and undoubtedly some applicants will have resident visas declined and must have them successfully appealed to provide some guidance to INZ on how those assessments are to be applied, fairly and consistently.
Expert advice and guidance is required for anyone who is filing a new application from 25 September 2023, where the provision of false, misleading information or concealment of relevant information, including material changes in circumstances post filing, has been raised by INZ in a prior application, whether that led to the decline of that application, or not.
