MP (Skilled Migrant) [2020] NZIPT 205774

The appellant, a 40-year-old Filipino citizen, arrived in New Zealand in May 2016 on a work visa and has remained on various work visas since. His family, including his wife and two children, joined him in June 2017. He applied for residence under the Skilled Migrant category in March 2019, claiming points for his employment as a Can Maker, which matches the ANZSCO occupation of Fitter (General), a skill level 3 occupation.

In his residence application, the appellant disclosed a conviction for driving with breath alcohol over the legal limit from August 2018. He requested a character waiver, providing detailed submissions about the circumstances of his offending and his family's settlement in New Zealand, including letters from himself, his wife, and various colleagues. He also applied for a work visa under the Work to Residence - Talent (Accredited Employers) category in May 2019, for which a character waiver was granted.

Immigration New Zealand acknowledged the appellant's drink-driving conviction and requested further information for a character waiver consideration. The appellant's representative emphasised the low seriousness of the offence and the significant impact a declined waiver would have on his family. Despite these submissions, Immigration New Zealand identified concerns, including the seriousness of the offence and its potential danger to public safety.

On 17 March 2020, Immigration New Zealand declined the residence application, stating that the appellant did not meet character requirements and was not granted a character waiver. The decision hinged on the assessment of the appellant's character in light of his drink-driving conviction.

The Tribunal found Immigration New Zealand's character waiver assessment flawed. Significant issues included a failure to consider a previous character waiver granted for the same offence, mischaracterisation of the offence's seriousness, overlooking supportive evidence from the appellant's employer and colleagues, inadequate consideration of the appellant's family's integration in New Zealand, and neglecting the best interests of his minor child under the Convention on the Rights of the Child.

The Tribunal noted the appellant's strong familial ties and settlement in New Zealand, his value and contribution to his employer, and the impact on his family, including a minor child. The Tribunal found that these factors were not adequately considered by Immigration New Zealand in its decision-making process.

The Tribunal determined that Immigration New Zealand's decision was not correct due to its flawed assessment and failure to act fairly as required by the residence instructions. Consequently, the Tribunal set aside the decision and referred the application back to Immigration New Zealand for a correct assessment, with directions to consider all relevant circumstances, including the previously ignored factors.