The Interplay Between Immigration & Criminal Law

Welcome 2010 Criminal Bar Association Annual Conference 6 August to 8 August 2010 Queenstown, NZ

Poor Tom Hanks He has Immigration Issues Too

http://www.youtube.com/watch?v=r0Js07B_H4Q

The Interplay Between Immigration & Criminal Law What happens when a client lodges an INZ Application but has a Criminal History?

By Marcus Beveridge and Christine Terry Queen City Law www.queencitylaw.co.nz

Summary of Presentation 7 Topics to Look Forward To 1. Warrants & Detention 2. Temporary v Residency Applications 3. Is Good Character a crucial factor?

4. If client is denied permit given criminal history, can anything be done?

5. Any hope for the really bad people?

6.

A couple of war stories

7.

Upcoming Changes in Immigration Act 2009

Let’s Look at The INZ Manual What is it?  Contains Immigration Residency policy (harder to meet; no wriggle room) & Temporary Immigration Policy (easier to meet policy because intent is not to stay longterm) 

Must meet residence policy or find exception, which is decided on a discretionary basis by Minister 

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Under new Act (effective 29/11/10) Minister delegates this power to Senior Officials.

More discretion to issue temporary visa

Where can I find it? 

www.immigration.govt.nz/opsmanual/index.htm

Warrants & Detention

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If in custody, right to counsel (Act s 140) Only Police (not Immigration Officer) can actually detain the person (Act ss 59,60,128, 128B) Detain Immigrant for up to 72 hours without warrant; District Ct can then issue warrant of commitment for further 7 days but not indefinitely

Temporary v Residency Applications

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The Residency Path hinges on Good Moral Character 

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(IOM A5.25 & A5.26)

The Temporary Path does not to the same degree 

(IOM: A5.40 & A5.45)

Residency Path INZ Operational Manual Sec. A5.25 

Applicant who is or was: 

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Convicted of any offence against Immigration or involving drugs, dishonesty, sexual nature, violence, drunk driving, driving with a blood or breath alcohol excess; or Imprisoned; or Provided false, misleading, forged, or withheld material in the course of applying for INZ visa or permit; or In a public speech/comments/broadcast/distributed/published a document that argues that one race is inferior or superior to another or used hostile language to insight discrimination; or Member of group that promotes discrimination based on colour, race, ethnicity, national origin (but not gender or sexual orientation??); or If supporting another person’s INZ application, made false/misleading/forged statements.

is normally ineligible for residence visa or permit unless granted a character waiver

Residency Path How do you get a Character Waiver?

INZ Operational Manual Sec. A5.25.1

INZ officers must not automatically decline residence applications on character grounds [but]… consider surrounding circumstances… [to see if circumstances are] compelling enough to justify waiving the good character’ requirement.

Residency Path How do you get a character waiver?

Sort of a “Totality of the Circumstances” Test INZ Operational Manual Sec. A5.25.1—7 factors INZ Officers Look at to determine if waiver is granted: 1.

2.

3.

4.

5.

6.

7.

Seriousness of offense; More than 1 offense?; Significance of false info (can applicant supply credible explanation for providing false info?); How long ago did the relevant event occur?; Does Applicant have immediate family here?; Does Applicant have strong emotional/physical ties here?; Will Applicant’s potential contribution to NZ be significant?

Residency Path What INZ may v must do when deciding to grant a character waiver.

A5.25.1(d): INZ officers may also consult National INZ Office and Compliance with “fairness and natural justice requirements�

A5.25.1(e): INZ officers must record consideration of Surrounding circumstances, noting all factors taken into account, and the reasons for granting/denying waiver A5.25.1(f): Any decision to waive good character requirement must be made by seconded visa officer or an officer with schedule 1 delegations.

Residency Application Example Applicant Applicant has has aa offense offense of of Driving having consumed excessive Driving having consumed excessive alcohol, alcohol, which does not carry a prison sentence with which does not carry a prison sentence with the the conviction. conviction.

He wants to apply for He wants to apply for Residency Residency

Normally, Normally, will will not not be be issued issued aa residence residence visa visa or or permit permit (IOM A5.25(h)) (IOM A5.25(h)) unless: unless:

Character Character waiver waiver (IOM A5.25.1(b)) (IOM A5.25.1(b))

Temporary Path INZ Operational Manual Sec. A5.40 

Applicant who is or was:  

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Convicted of offense against immigration; or Provided false, misleading, forged, or withheld material in the course of applying for INZ visa or permit; or At the time of application, charged w/ offense under Sec 7(1) (see “Bad People” slide 22) or under investigation or wanted for questioning for this offense; or Imprisoned; If supporting another person’s INZ application, made false/misleading/forged statements then…

Will not normally be issued a temporary visa or permit unless granted a character waiver.

Temporary Path How do you get a Character Waiver?

INZ Operational Manual Sec A5.40.1—INZ officers must not automatically decline application & look at:  Significance of false info (can applicant supply credible explanation for providing false info v. intent to deceive?); and  Are there compelling reasons to travel to NZ

Then, officer must record reasons for granting/denying application and, if declining must raise an “Alert” against the applicant.

Temporary Application Example Applicant Applicant has has aa offense offense of of Driving Driving having having consumed consumed excessive excessive alcohol, alcohol, which which does does not not carry carry aa prison prison sentence sentence with the conviction with the conviction He He wants wants to to apply apply for for aa Temporary visa or permit Temporary visa or permit

No No Character Character Waiver Waiver needed needed because because this this was was not not an an offense offense that carries a prison sentence that carries a prison sentence with with itit (IOM (IOM A5.40) A5.40)

Example 1: Successful Character Waivers 

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Facts & Procedure: Residence App. lodged under Samoan Quota Scheme –denied because provided false information to INZ 3 times Issue: Appeal – character waiver?

Law: (IOM: A5.25.i: submitted false/ misleading/omitted info in the course of applying for a New Zealand visa or permit), INZ needed to establish whether, on the balance of probabilities, it was more likely than not that the applicant committed such an act Held: Yes, INZ to review intent of applicant to mislead coupled with weighing all seven factors under A5.25.1 plus any further relevant factors (RESIDENCE APPEAL NO: 16246, 21 July 2009)

Residency Path How do you get a character waiver?

Sort of a “Totality of the Circumstances” Test

INZ Operational Manual Sec. A5.25.1—7 factors INZ Officers Look at to determine if waiver is granted: 1.

2.

3.

4.

5.

6.

7.

Seriousness of offense; More than 1 offense?; Significance of false info (can applicant supply credible explanation for providing false info?); How long ago did the relevant event occur?; Does Applicant have immediate family here?; Does Applicant have strong emotional/physical ties here?; Will Applicant’s potential contribution to NZ be significant?

Example 2: Unsuccessful Character Waivers 

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Facts & Procedure: Fiji applicant under skilled migrant. Did not declare conviction: Fiji crim. records say convicted for assault w/bodily harm.

Issue: Appeal– character waiver?

Law: A5.25 (g) denial unless waiver.

Held: Denied. INZ was right to deny because he had criminal conviction and failed to disclose on residence application.

(RESIDENCE APPEAL NO: 16357, 15 Jan 2010)

Easy v Hard Character Waivers 

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Easier to get character waivers for lying/forged documents because of mens rea element.

BUT Harder to get character waivers for:  

Sexual offenses Violent acts

WHY?

Good Character Waiver Cases to Take a Look At 

Mens Rea Element:  

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Chiu v Minister, 9942 NZLR541 RRB 161959

Appeals Residence Review Board re: the obligation of Applicants to notify INZ of any relevant changes. (s. 34(g)) If applicants don’t, then this is cause for denial under SM3.5  

RRB 15025 RRB 15141

What options are there for complex cases? 

Overstayers or Criminal Histories?

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Most clients have 2 options:  

(1) Appeal under section 35A (2) File a ‘Special Direction Request’ under section 130 (total Discretion of Minister)

1 Option– Appeal under s 35A st

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Section 35A (discretion of Immigration officers if no deportation, removal, or permit or/and if person not subject to Sec. 7(1) = “really bad people”)  

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This allows case officers a grant of permit in special cases. Hinges on discretion!

In New Immigration Act = s 61: ability to get residence permit despite not meeting policy. Policy is definitely relevant but not necessarily the deciding factor.

If revocation of residency permit, appeal under section 22 (humanitarian grounds)

If You Don’t Ask, You Don’t Get Main Point of s. 35 A= total discretion on an ad hoc basis If you’re going to make an appeal, give INZ ALL compelling evidence UPFRONT. It’s okay to include documentation such as:    

Are there natural born Kiwi kids here?

Is the appellant a viable part of the work force?

Good character ? (we will discuss this later on) Owe any money to the Crown? (Pay this before filing)

2nd Option: s 130 Special Direction Request 

The Minister may from time to time give to the DOL, or to any other immigration officer or to any visa officer, either in writing or orally, a special direction in respect of —  (a) Any person, permit, visa, or document; or  (b) Any 2 or more persons, permits, visas, or documents where by reason of any specific event, occurrence, or unusual circumstances there is a common link between those persons, permits, visas, or documents,—

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in relation to any matter for which such a direction is contemplated TOTAL DISCRETION!

Justice’s discretion not to grant warrant 

(S60, sub-s(3) of Act) A Judge may issue a warrant of commitment on the application of an

A Judge may issue a warrant of commitment on the application of an immigration officer if satisfied on the balance of probabilities that the person in custody is the person named in the removal order and that any of the following applies:  

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(a) A craft is likely to be available, within the proposed period of the warrant of commitment, to take the person from New Zealand: (b) The practical difficulties that meant that the person could not be placed on an available craft within 72 hours are continuing and are likely to continue, but not for an unreasonable period: (c) The other reasons the person was not able to leave New Zealand within the 72-hour period are still in existence and are likely to remain in existence, but not for an unreasonable period: (d) In all the circumstances it is in the public interest to make a warrant of commitment.

BUT… Justice in Koshiya case had discretion to decide not to issue warrant

What About the Really Bad People? 

People who Normally will not be Granted any type of visa under Sec. 7 of the Act  

Imprisoned for 1+ years (1)(a)(b) Removal Order (1)(c)  

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Make this go away by getting cancellation of removal order under sec. 58 (officials can do it, not necessarily minister) BUT Must pay Crown.

Ever been deported from NZ or other country (1)(d) Terrorists (e-g) People who the Minister believes are bad (h-i)

But can still lodge Application depending on what type of visa they are seeking

Bad People Seeking Residency Bad people normally ineligible for Residency unless: (IOM A5.20)

Person is eligible for visa or permit under Govt Residence Policy

Special Direction (7(3)(a)(ii) Imm. Act) (most can be done by officials)

Person is already a holder of a returning resident’s visa who returns to NZ during currency of that visa

Bad People Seeking Temporary Bad People normally ineligible for temporary visa or permit unless: (IOM A5.35)

Otherwise eligible for visa or permit under temporary entry AND

Special Direction from the Minister (Sec 7(3)(a)(ii) of Imm. Act)

I AM INZ

INZ is a demi-god 

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INZ has discretion to revoke a Residency Permit if procured by administrative error, fraud, forgery, false, misleading, or concealment of relevant info (Immigration Act, sec. 20) Internal Affairs has discretion to deprive citizenship if procured by fraud, false representation, willful concealment, or mistake (Immigration Act, sec. 17); but this is much harder to do 

However, if there is deprivation of citizenship, person barred only for 5 years. Can they apply again?

Theoretically yes.

DISCRETION is often the KEY  

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Treat INZ respectfully and they may go the extra mile for you.

INZ essentially holds significant discretionary power ( even more under new Act) and at this face-to-face level considerable progress can often be made.

If no joy next steps may include appeal (RRB / new appeal process from November this year  Immigration and Protection Tribunal ) , special direction, Court (judicial review/Crown law etc)

A couple of War Stories 

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DOL v Koshiya, CRI-2007-055-00265, 7 Sept. 2007 Facts & Procedure: Respected Muslim Cleric; overstayer; exhausted all formal remedies; INZ issued warrant Issue: Should DOL grant warrant?

Held: No, voluntarily leave instead based on Judge’s discretion Further examples : I) world class violinist II) incarcerated lawyer III) Aussie motorcycle club members

Relevant Changes New Act effective 29/11/10   

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Biometric provisions to combat ID fraud Universal Visa System like Australia If Deportation Order in Force, they can still remain here lawfully while they appeal 1 tribunal replacing 4 tribunals Detention/Monitoring based on level of risk v just a general 6 month limit

Highlighted New Provisions Affecting Criminal Clients with Immigration Problems Streamlined Deportation Process Act 1987: Separate provisions for removal, revocation, deportation Act 2009: balancing efficiency v fairness in 1 Provision :   

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Person can lawfully be in NZ while they appeal (even working and studying if visa allows it) Minister can suspend deportation order via a “good behavior bond” If offender has been sentenced for 2+ yrs, may NOT be released for deportation until they served either 2 years or 1/3 of their sentence, whichever is less Minister can order early release of any foreign national (not just resident offenders) from prison

If Deported, What is the Period of Prohibition? 

Under new Immigration Act 2009 (effective 29/11/2010) 

If unlawfully in NZ for:    

not more than 12 months = 2 year bar More than 12 months = 5 year bar 2nd or subsequent time = 5 year bar Sufficient reasons for temporary visa holder to be deported (discretion based) = 5 year bar

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BUT if visa granted based on false id, fraud, forgery, character issue not disclosed, refugee status cancelled because of fraud, residence class holder convicted of offense, person of threat/risk then, PERMANENT BAR!

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If leave NZ voluntarily, then NOT subject to any bar on entry (Koshiya case)

Highlighted New Provisions Affecting Criminal Clients with Immigration Problems 4 Tribunals Merged into 1 The Immigration & Protections Tribunal replaces the 4 existing appeal bodies for purposes of judicial economy (streamline the appeal process). 

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Act of 1987: more than 1 ground for appeal = multiple appeals Act of 2009: single appeal = if more than 1 grounds for appeal, appeals must be lodged together. 

Prime Minister will designate either the Min of Justice or DOL or a new dept?

Highlighted New Provisions Affecting Criminal Clients with Immigration Problems Detention & Monitoring Act 1987: 6 month limit on immigration detention except where foreign national hinders their own departure.

Act 2009: Tiered Detention System, allowing courts greater discretion to issue warrants.

Detention will not be based on the level of risk the foreign national represents

Handy Resources 

Immigration New Zealand 

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Public Acts 

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legislation.co.nz

Immigration Act 2009 (effective 29 Nov. 2010) 

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immigration.govt.nz

dol.govt.nz/actreview/

Immigration Operations Manual: 

immigration.govt.nz/opsmanual/index.htm

Marcus Beveridge, Principal QCL 

Firm: Queen City Law  

www.queencitylaw.co.nz Level 8,203 Queen Street, Auckland

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Phone: 09 970 8810

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Email: marcus@queencitylaw.co.nz christine@queencitylaw.co.nz

Q&A яБо

Any questions ?