BF (Permanent Resident) [2019] NZIPT 205547

IPT decision 205547 published on the Ministry of Justice website is summarised below for educational purposes.

  • The appellant's PRV application was declined due to not meeting character requirements, primarily related to two drink-driving convictions.
  • INZ's character waiver assessment was found flawed, lacking a balanced consideration of positive factors and the impact on the appellant’s family.
  • The Tribunal directed reassessment, considering all relevant information and character waiver under correct legal instructions.

Background

The appellant, a 38-year-old UK citizen, was originally granted a New Zealand residence visa in 2016 following a successful humanitarian appeal against deportation. He had become unlawfully present in New Zealand but was allowed to stay due to exceptional humanitarian circumstances related to his New Zealand-citizen daughters.

After living and working in New Zealand, he travelled to the UK in December 2018, causing his resident visa to expire. Upon his return in January 2019, he was granted a visitor visa and subsequently applied for a Permanent Resident Visa (PRV).

Prior to Appeal

Prior to the PRV application, he was charged with driving with excess blood alcohol. His application was supported by various documents, including his conviction history, evidence of financial support to his family, and character references.

Immigration New Zealand Assessment

Immigration New Zealand's (INZ) initial assessment noted the appellant's failure to meet the good character requirements for a residence class visa, particularly under instructions A5.25.f and A5.25.h, due to his recent drink-driving conviction and a previous one in 2010. The appellant was then asked to provide comments or information to justify waiving these requirements.

Immigration New Zealand Decision

INZ declined the PRV application on 18 July 2019. The decision was based on the appellant's failure to satisfy character requirements and the lack of a compelling case to waive these requirements. INZ considered both positive and negative factors but concluded that the negative aspects, particularly the recent drink-driving conviction and its associated risks, outweighed the positive factors.

IPT Assessment

The Tribunal found flaws in INZ's character waiver assessment, particularly in how the factors were weighed and balanced. The Tribunal noted that INZ did not adequately consider the impact on the appellant's daughters, wife, and ex-partner if he was not granted a waiver. Additionally, the Tribunal identified that INZ did not apply the correct instructions, focusing incorrectly on whether the appellant’s circumstances warranted a PRV instead of a residence visa.

Special Circumstances

The Tribunal did not explicitly discuss 'special circumstances' but implicitly considered factors like the appellant's strong family ties in New Zealand, his contribution to the community, and the negative impact on his family as relevant to the assessment of his character waiver.

IPT Determination

The Tribunal concluded that INZ's decision to refuse the PRV was incorrect, primarily due to flawed character waiver assessment and the application of incorrect instructions. The Tribunal cancelled INZ's decision and referred the application back to INZ for reassessment, directing consideration of all information regarding the appellant’s character and any other outstanding matters related to his PRV application.

author headshot Michael Yoon
Last modified on 23 January 2024 by
Michael Yoon
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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