Criminal Offending and Deportation Liability

By Tom Hielkema
Barrister

Several of our clients live here in New Zealand on temporary and residence class visas. As any visa applicant knows, one requirement for entering the country is that the person be of good character. This good character requirement can be affected by criminal offences such as drink driving.   

We at ActiveLegal don’t feel that an error of judgement is a question of character and we know that good people can make mistakes. But unfortunately, the Immigration Act 2009 states that a person who is permitted to reside in New Zealand on a temporary class visa may be subject to a “Deportation Liability Notice” (“DLN”) if they commit any criminal offence. [1]

Generally, if you are here on a temporary class visa you will be liable for deportation and if you are on a residence class visa, deportation liability will depend upon the date on which your visa was issued. So if you are on a visa and are charged with an offence it is natural to ask …

 “Will I be deported?”

There is no simple ‘yes’ or ‘no’ answer to this. If convicted, Immigration New Zealand (“INZ”) may issue you with a DLN. Once issued with a DLN, a person has 14 days to give good reason to INZ as to why that person shouldn’t be deported.

If the reasons against deportation are accepted, then the deportation liability is cancelled or suspended. The effect of a suspension is that an individual is on a probationary period. Should there then be any further offending or breach of visa conditions, then that person could be ordered to leave the country once INZ is made aware.

If a person’s reasons aren’t accepted, then they have another 14 days to lodge an appeal with the Immigration and Protection Tribunal (“IPT”) on a basis of humanitarian grounds. Establishing humanitarian grounds to avoid deportation means getting over a high threshold and is not easily done.

There are no set criteria that you must meet. Each case is either denied or approved on its own merits. Unfortunately, fewer than half of appeals to the IPT for both temporary and resident class visa holders succeed.

However hope usually lies with a different course in which we specialise so …

What can you do?

With criminal offending and deportation risk, we may recommend to our clients that they seek a discharge without conviction, otherwise called a “section 106 application” (“s106”).[2] A s106 discharge is generally more viable for low and medium level offending. Whether an offence is considered low or medium depends upon the maximum penalty that can be imposed and the social impacts of the offending. Examples sometimes suitable for a s 106 application include traffic offences such as drink driving, careless driving and common assault, along with a range of other charges.

A s106 application asks the court to make an assessment that the consequences of a conviction upon the defendant outweigh the seriousness of the offending.

The court makes this assessment by asking three questions:[3]

1. How serious was the offence?
2. What are the consequences, both direct and indirect, of a conviction; and
3. Do the consequences outweigh seriousness of the offence?

How serious is the offence?

First the court will look to the penalty that accompanies the offence. Drink driving, for example, carries a maximum penalty of three months imprisonment or a fine of up to $4,500 for a first or second offence with a mandatory six-month disqualification. (If you are wondering, the courts consider drink driving to be on the low end of the spectrum but acknowledge the significant social impact is has in New Zealand).[4]

From there, the seriousness of the particular offence is positioned along a spectrum.  Depending on the circumstances of your case, the seriousness of the offence can be considered more or less than the off-the-rack stock-standard case. For example, if you were charged with drunk driving and you injured a person or damaged property, this may increase the seriousness of your offence. Conversely, if you were stopped at a police check point and there were no issues with your driving then this may reduce the seriousness of your offence.

What are the consequences of conviction?

This varies from person to person. With a visa holder the obvious common consequence of a conviction is the risk of deportation. In many of our cases the court has granted a discharge without conviction because of the deportation liability risk. Our lawyers at ActiveLegal have been successful in achieving a discharge on this basis, for numerous clients over many years, throughout the country.

An additional significant consequence maybe the risk to future visas. Any person on a temporary or resident class visa must inform INZ of the change in their circumstances including any new conviction, which revelation can be expected not to help with your next visa application. [5]

There can be other consequences which will need to be shown. Examples may include risk to family members who have been sponsored into New Zealand by the person charged with the offence, losing travel opportunities, or loss of employment opportunities.

Do the Consequences Outweigh the Seriousness of the Offence?

The answer will be different in each client’s circumstance and can also be attributed different values by the judge or magistrate who hears the application. But to illustrate, we have often had clients charged with excess breath or blood alcohol with low to moderate readings. Their s106 applications have been granted based on their own deportation risk, the associated risk of deportation of family and the issues with continuing with chosen careers.

A first offence with a low reading can be indicative of a simple error of judgement on part of the offender. To be deported and subsequently be forced to uplift and change one’s entire life can be a consequence that exceeds the seriousness of such an offence. That said, we have gotten discharges for clients with high readings as well.

For an example of a case involving a very high-level reading, click here.

Summary

A discharge without conviction may be available particularly for persons who are charged with a low level or medium level criminal offence where the consequences of a conviction for the offence outweigh the seriousness of the offence.

If you wish to seek a discharge without conviction for your situation then we recommend you contact us today. We have an enormously positive history with this particular area of the law and we’d be happy to help.

[1] Immigration Act 2009, s157

[2] Sentencing Act 2002, s106

[3] R v Hughes [2008] 3 NZLR 222

[4] Muggeridge v New Zealand Police HC, Tauranga, CRI 2008-463-57, Woodhouse J, unreported, at [24]

[5] Immigration Act 2009, s157

Information provided here should not be considered legal advice. If you think that you may be eligible for a discharge without conviction, then we recommend that you seek legal advice.  If you wish to contact us you will find our contact details below or on the ‘contact us’ page of our website