Criminal Offending and Deportation Liability
By Tom Hielkema
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.
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. 
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 …
I be deported?”
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.
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.
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.
hope usually lies with a different course in which we specialise so …
What can you do?
offending and deportation risk, we may recommend to our clients that they seek
a discharge without conviction, otherwise called a “section 106 application”
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
application asks the court to make an assessment that the consequences of a conviction
upon the defendant outweigh the seriousness of the offending.
makes this assessment by asking three questions:
- How serious was the offence?
- What are the consequences, both direct and
indirect, of a conviction; and
- Do the consequences outweigh seriousness of the offence?
How serious is the offence?
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).
there, the seriousness of the particular offence is positioned along a spectrum.
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?
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.
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. 
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?
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.
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.
example of a case involving a very high-level reading, click here.
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.
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.
Immigration Act 2009, s157
Sentencing Act 2002, s106
 R v Hughes  3 NZLR 222
v New Zealand Police HC, Tauranga, CRI 2008-463-57, Woodhouse J, unreported,
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