AN (Skilled Migrant) [2023] NZIPT 206637

IPT decision 206637 published on the Ministry of Justice website is summarised below for educational purposes.

  • The appellant, a skilled migrant from India, faced residence application decline due to two drink-driving convictions.
  • Immigration New Zealand did not grant a character waiver, citing the convictions as failing good character requirements.
  • The Tribunal found the assessment flawed, especially in balancing the seriousness of offences and the appellant's community ties.
  • Only the appellant's second conviction was relevant under A5.25.h of the instructions.
  • The decision was cancelled, and the application was referred back to Immigration New Zealand for a proper reassessment.

Background

The appellant, a 33-year-old Indian citizen, arrived in New Zealand in August 2013 on a student visa. He completed a Diploma in Business Management (Level 7) in 2014 and subsequently obtained work visas. He married in January 2017; his wife joined him in New Zealand in January 2018. The appellant has two convictions for driving with excess breath alcohol: the first in October 2016, resulting in a $450 fine and a six-month disqualification from driving, and the second in February 2021, leading to a $700 fine, a 28-day disqualification, an alcohol interlock order, and a zero-alcohol licence.

Prior to Appeal

On 14 October 2019, the appellant applied for residence under the Skilled Migrant category as a bio tissues processing technician. After his second conviction in February 2021, he applied for a further work visa but was declined in December 2021. His subsequent request for reconsideration was declined in January 2022. He lodged a deportation appeal in February 2022, which was declined in July 2022, but a six-month work visa was granted.

Immigration New Zealand Assessment

Immigration New Zealand (INZ) raised concerns about the appellant's character in September 2022, referencing his two drink-driving convictions and the applicability of A5.25.f and .h of the residence instructions. The appellant responded with submissions and supporting documents, emphasising his remorse, the stressful circumstances leading to his offences, and his community ties in New Zealand.

Immigration New Zealand Decision

On 22 December 2022, INZ declined the appellant's residence application. The decision was based on the assessment that the appellant did not meet the character requirements of A5.25.f and .h of the instructions and was not granted a character waiver.

IPT Assessment

The Tribunal found that INZ did not fairly balance the positive and negative factors in the appellant’s character waiver assessment. It noted that INZ incorrectly elevated the seriousness of the appellant’s offences and the risk of reoffending while undervaluing his ties to New Zealand and the impact on his wife. The Tribunal observed that the appellant’s first conviction fell outside the scope of A5.25.h and only the second conviction was relevant.

Special Circumstances

The Tribunal considered the appellant's emotional ties and settlement in New Zealand, his wife's status as an innocent party, and the appellant's remorse and efforts to address his alcohol use. These factors were deemed not to have been given due weight in INZ's assessment.

IPT Determination

The Tribunal cancelled INZ's decision and referred the application back to INZ for a correct assessment. It directed INZ to reassess the application without a further lodgement fee, considering all previously provided information, new evidence about the appellant’s commitment to abstaining from alcohol, and any additional updates. The Tribunal highlighted that its decision does not guarantee the success of the appellant’s application but ensures it will be reassessed by INZ.

author headshot Michael Yoon
Last modified on 8 January 2024 by
Michael Yoon
Principal Immigration Lawyer
Michael has been working as a lawyer in New Zealand since 2006. Over the years, he has successfully helped thousands of clients to get their desired outcome. Clients find Michael knowledgeable, approachable and professional — a trusted expert.

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