RESIDENCE REVIEW BOARDNEW ZEALAND |
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AT WELLINGTON |
RESIDENCE APPEAL NO: 14978 |
Before: |
D J Plunkett (Member) |
Representative for the Appellant: |
M
Clark |
Date of Decision: |
29 May 2006 |
Category: |
Skilled Migrant |
Decision Outcome: |
No Jurisdiction |
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DECISION
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[1] The appellant is a citizen of India, aged 28.
[2] This is an appeal against the decision of the New Zealand Immigration Service (NZIS) declining the application because the appellant had failed to inform the NZIS that he was working unlawfully in breach of his student and visitor permits and therefore did not meet the character requirement of Government residence policy. The issue for the Board is whether it has jurisdiction to consider this appeal.
[3] The appellant arrived in New Zealand on 17 February 2003 (departing in November 2003) and then again on 18 February 2004 and was granted student permits on both occasions. He held such a permit until 31 March 2005, the last two student permits being granted on 15 March 2004 and 14 July 2004 (valid to 31 March 2005). On 23 March 2005, the appellant was granted a visitor's permit, for the period until 30 June 2005.
[4] The appellant submitted, electronically, an Expression of Interest for residence in New Zealand some time before 7 October 2004 (the first entry the Board can find on the NZIS file).
[5] On 3 February 2005, the appellant was invited to apply for residence.
[6] On 16 February 2005, the appellant applied for residence under the Skilled Migrant category. In his application, he stated he has a Bachelor of Commerce degree in accounting from an Indian university, had worked as an accountant in India and had an offer of employment in New Zealand as an assistant accountant.
[7] In June 2005, the NZIS received information from an anonymous informant that the appellant was working full-time in telesales.
[8] On 29 June 2005, the NZIS wrote to the appellant advising that it had received information that he had been working full-time in breach of his temporary permits. He was informed that while on a student permit he was only entitled to work a maximum of 15 hours per week, except during the summer vacation but that since 23 March 2005, he was not entitled to undertake any employment as he had been on a visitor's permit. His employer had confirmed to the NZIS on 27 June 2005 that he worked there.
[9] The letter referred to the declaration he had given on his residence application form that he would inform the NZIS of any relevant fact affecting his application and that there were no matters which could affect the assessment of his good character. He was also referred to paragraph A5.25.i of the character provisions of Government residence policy. The letter states that, as he had withheld material information and provided misleading information, as provided in A5.25.i, he was ineligible for a residence permit unless granted a character waiver. His comments were invited.
[10] The appellant's solicitors replied to the NZIS on 20 July 2005 advising that he had resigned from his employment on 4 July 2005. The appellant apologised. He had thought that, as his residence application was nearing completion, it would not be problematic if he continued working at the place where his student permit had allowed him to work.
[11] The appellant's solicitors sent a further explanation on 18 August 2005, saying that he was on a valid student permit at the time of lodging his Expression of Interest and was therefore allowed to work. He acknowledged that he continued working for his employer while he had a visitor's permit as he had been offered a promotion with a higher remuneration. He was deeply remorseful but was in a desperate financial situation and felt compelled to continue working in breach of his visitor's permit. He came from an economically modest background and had to borrow an "astronomical sum" for an Indian family of modest means in order to study at a university in New Zealand. He is extremely apologetic and was not thinking due to the stress caused by his financial situation.
[12] In its letter of 28 October 2005, the NZIS set out the decision to decline the application (verbatim):
"I am writing with regard to your application for residence under the Skilled Migrant Category, which was accepted for consideration on 16 February 2005.
After assessing all of the information submitted as part of your application, it has been determined that your application for residence in New Zealand under the Skilled Migrant category will not be approved.
In my previous letter dated 29 June 2005 we advised you of information that was potentially prejudicial to the outcome of your application. This information related to your eligibility for residence in terms of meeting character policy requirements, and the relevant applicable policy was clearly set out in that letter. You were further informed in that letter that unless granted a character waiver you were ineligible for a residence visa or permit, and were given a reasonable timeframe in which to respond and provide any comments or explanation in relation to this potentially prejudicial information.
An assessment of your application has been made taking into account all of the information available, and a character waiver assessment has been conducted in accordance with policy. The outcome of that assessment was that a character waiver was not granted, and your application for residence has been declined.
I have enclosed the policy that was applicable to your case. As you have been advised previously, the particular policy provision applicable to your situation is A5.25(i). As a character waiver has not been granted to you, you are ineligible for a residence permit or visa in accordance with government immigration policy.
Your application has also been carefully considered under all of the other residence categories. On the basis of the information given in your application, however, you do not meet the requirements for any of them. Your application for residence in New Zealand is therefore declined."
[13] The Character Waiver Assessment Template of 27 September 2005 follows (verbatim):
"Character Waiver Assessment Template
[The appellant] (principal applicant)
Relevant Policy - Skilled Migrant Category
Conclusion on Eligibility under Skilled Migrant Category Policy
From the information submitted it appears that the Principal Applicant meets all the requirements under the Skilled Migrant category to be approved residence. This is subject to full verification being completed and no adverse findings being found.
Reasons why a Character waiver is being considered
The principal applicant has breached the conditions of his visitor's permit by undertaking full-time employment with [named employer] in the Telesales division.
Background
‹› The applicant submitted an Expression of Interest into the Pool on 17 August 2004, which was selected for consideration on 18 August 2004. As a result of preliminary assessment, the applicant was invited to apply for residence under the Skilled Migrant Category. He duly submitted an application for residence on 16 February 2005. At this time he was the holder of a student permit which entitled him to work 15 hours per week and full time over the summer vacation.
‹› On 23 March 2005 the applicant was issued with a visitor's permit, which stated clearly on the permit 'The holder shall not undertake employment in NZ'.
‹› On 25 June 2005 an anonymous informant emailed information through the NZ Immigration website to me, stating that the applicant had been working full time for the past year at [named employer] Telesales. The informant stated that the applicant was his colleague, and this information had come to his attention when the applicant had bragged about deceiving NZ Immigration with regard to this.
‹› A call was placed by myself to [named employer] Telesales to confirm this information, and the operator confirmed that a [the appellant] was working in the Telesales division on 27 June 2005.
‹› As a result, this information was put to the applicant for comment, along with a request for evidence of the applicant's tax history for at least the previous year from the date of the letter, which was 29 June 2005.
‹› The applicant submitted a Summary of Earnings from the NZ IRD showing that his total taxable income during the financial year from 1 April 2004 to 31 March 2005 was NZ$40,607.00.
‹› The agent confirmed in their fax dated 20 July 2005 that the applicant had resigned from his position on 4 July 2005.
By failing to inform the NZ Immigration Service that he was undertaking full-time employment in breach of the conditions of his temporary entry permit, the applicant has provided misleading information and withheld material information as is outlined in policy under A5.25(i) as follows:
Applicants who will not normally be issued with a residence visa or granted a residence permit, unless granted a character waiver (see A5.25.1(b) below), include any person who has been:
i. in the course of applying for a New Zealand visa or permit, has made any statement or provided any information, evidence or submission that was false, misleading or forged, or withheld material information;
Effective 15/12/2003
Applicant's explanation and/or comments
‹› The agent has stated that the applicant apologizes to the NZ Immigration Service for his actions. The applicant thought that his residence application was nearing completion, and that it would not be problematic if he continued working for the [named employer] where he had previously been working as his student permit allowed.
‹› The agent further requests that we take into account the fact that [the appellant] has an application for residence pending before the Immigration Service with a job offer in a skill shortage area. The applicant's offer of employment as an 'Assistant Accountant' is not in fact in a skill shortage area as applicable to Skilled Migrant Category policy (refer to the Long Term Skills Shortage List, Appendix 6 of the NZIS Operations Manual).
‹› The agent has stated that the applicant acknowledges that he was working while on a visitor's permit, and that he is deeply remorseful of his actions and was in a financially desperate situation, and it was due to this situation that the applicant felt compelled to continue working for his employer.
‹› The agent is requesting that a character waiver be granted on the grounds that their client is remorseful of his actions, which were a result of financial pressures on the applicant in relation to the loans he had taken out to fund his university studies in New Zealand.
Consideration of applicant's surrounding circumstances
‹› The offence of breaching the conditions of a permit entitling a person to remain in New Zealand is a serious offence.
‹› The applicant has provided an explanation as to why he committed the offence and provided false and misleading information, and withheld material information, as follows:
‹› He is from an economically modest background, and in order to fund his NZ studies he had to take out a student loan from a lending bank in India and had to borrow money from his father and aunt.
‹› The sum required for the loans was approximately NZ$20,000 per annum, and the loans attract a daily interest charge. The applicant was therefore very worried about the increases on his total loan.
‹› He was not thinking clearly due to the stress caused by his financial situation. He wanted to alleviate his debt and did not want his family to bear the long term burden of guaranteeing his loan repayments.
‹› The evidence submitted by the applicant indicates that he was working full-time during the period from 1 April 2004 until 31 March 2005. This is reasonable to infer since he earned a total of over NZ$40,000 taxable income during this period. It would therefore appear that in addition to breaching the conditions of his visitor's permit, the applicant also breached the conditions of his 2 previous student permits issued on 15 March 2004 and 31 July 2004 respectively by working in excess of the permitted 15 hours per week. Therefore the offence of breaching the conditions of his temporary entry permits would appear to have been repeatedly committed by the applicant during this period.
‹› The applicant worked for a period of at least 3 months illegally while on a visitor's permit. He did not cease that employment until NZ Immigration informed him of the potentially prejudicial information they had received regarding this illegal employment.
‹› The applicant arrived in NZ on 17 February 2003 and has been here since that date apart from a period of 2 and a half months during the summer period of 2003/2004.
‹› The applicant does not appear to have any immediate family in NZ, and AMS shows that none of his immediate family have ever been to NZ.
‹› Whether the applicant has a strong emotional or physical tie to NZ cannot be determined as no information has been submitted by the applicant on this point. It would appear however that the applicant wishes to remain in New Zealand.
‹› The applicant has studied for and obtained a New Zealand Diploma in Business from [a tertiary institution], and has a job offer as an Assistant Accountant for [named company], with an offered salary of NZ$30,000.00 per annum. The agent has requested that we consider the fact that the applicant's offer of employment is in skills shortage area. However this occupation is not in fact an occupation for which NZ has a skills shortage. Only Chartered Accountants that meet certain requirements are in a shortage situation in the Auckland area as reflected by the Immediate Skills Shortage List, which is relevant to temporary entry work permit policy. The Long Terms Skills Shortage List, which lists shortage occupations relevant to the Skilled Migrant Residence Category, does not list the occupation of the applicant. I have therefore considered this request, but have decided that the applicant does not have a job offer in a skill shortage area. The merits of the application have been assessed accordingly.
‹› Given the above, it would seem that the applicant's contribution to New Zealand would be limited. The applicant has poor credibility and has shown a disregard for NZ's immigration laws and policies.
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Negative |
Positive |
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1. |
If applicable, the seriousness of the offence (generally indicated by the term of imprisonment or size of the fine); |
6. |
Whether the applicant has some strong emotional or physical tie to New Zealand; |
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[The appellant] did not inform NZIS he had undertaken fulltime employment and is in breach of the conditions of his temporary entry permit. A5.25.(i) applies. In the course of applying for a NZ visa or permit, has made any statement or provided any information, evidence or submission that was false, misleading or forged, or withheld material information. This is considered to be a serious offence. |
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In applying for Residence under SMC would indicate the applicant has some emotional or physical ties to New Zealand. Applicant has been studying and visiting in New Zealand. |
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2. |
Whether there is more than one offence; |
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[The appellant] has breached the terms and conditions of his temporary permits whilst studying and on a visitors permit. [The appellant] did not advise NZIS of this. |
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How long ago the relevant event occurred; |
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Applicant has been in breach of the conditions of his permit from 01/04/2004 to 31/03/2005. Recently resigned from his position in July 2005 when the information was put to him. |
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3. |
If applicable, the significance of the false, misleading or forged information provided, or information withheld, and whether the applicant is able to supply a reasonable and credible explanation or other evidence indicating that in supplying or withholding such information they did not intend to deceive the NZIS; |
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The applicant's agent has stated that the applicant apologises to NZIS for his actions. The applicant thought that his residence application was nearing completion and that it would not be problematic if he continued working for the [named employer], where he'd previously been working as a student permit allowed. The agent has further requests that the fact that [the appellant] has an offer in a skill shortage area. The applicant's offer of employment is an "Assistant Accountant". The agent has stated that the applicant acknowledges that he was working while on a visitors permit and is deeply remorseful of his actions and was in a financial desperate situation, and it was due to this situation that the applicant felt compelled to continue working for his employer. |
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5. |
Whether the applicant has any immediate family lawfully and permanently in New Zealand; |
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[The appellant] does not have any immediate family in New Zealand |
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Whether the applicant's potential contribution to New Zealand will be significant. |
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As the applicant has breached the conditions of his temporary permits, the applicant has poor credibility and has shown a disregard for NZ's immigration laws and policies. |
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Overall Assessment: |
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The offence of breaching the conditions of a permit entitling a person to remain in New Zealand is a serious offence. Taking into account [the appellant's] comments I do not believe that he has given a credible explanation regarding his actions. [The appellant] has clearly breached the terms and conditions of his temporary permits. This information was not declared on his EOI or his application for residence. The occupation of Assistant Accountant is not considered to meet the definition of skilled employment as per SM7.10.
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Decision
On balance of all the factors, my decision is to refuse the character waiver based on the above information."
[14] Section 18C(1) of the Immigration Act 1987 ("the Act") provides:
"Where a visa officer or immigration officer has refused to grant any application for a residence visa or a residence permit, being an application lodged on or after the date of commencement of the Immigration Amendment Act 1991, the applicant may appeal against that refusal to the Residence Review Board on the grounds that -
(a) The refusal was not correct in terms of the Government residence policy applicable at the time the application for the visa or permit was made; or
(b) The special circumstances of the appellant are such that an exception to that Government residence policy should be considered."
[15] The appellant appeals on the ground that the decision of the NZIS was not correct in terms of the applicable Government residence policy and on the further ground that, if correct, his special circumstances are such that an exception to that policy should be considered.
[16] The appellant's representative provided extensive submissions, dated 6 December 2005. He provided a number of documents, notably two decisions of the Board; Residence Appeal Nos 13767 (10 November 2004) & 14088 (24 March 2005).
[17] The Board wrote to the appellant's representative on 20 December 2005 advising that the appeal might be precluded by section 18C(2A) of the Act and inviting submissions.
[18] The representative forwarded submissions to the Board on 31 January 2006.
[19] The Board has been provided with the NZIS files in relation to the appellant and has also considered the submissions and documents provided on appeal.
[20] The application was made on 16 February 2005 and it is Government residence policy in force at that date that is relevant. However, the first issue for the Board, prior to any assessment as to whether the application meets the relevant criteria, is whether the Board has jurisdiction to consider this appeal at all.
Jurisdiction
[21] According to section 18B(2) of the Act, the function of the Board is to hear appeals brought under section 18C.
[22] Section 18C(2A)(b)(i) provides:
"(2A) No appeal lies under this section in respect of-
(a) ...
(b) any refusal or failure of the Minister or a visa officer or an immigration officer to issue a residence visa or grant a residence permit to a person who has been invited to apply for residence if a ground for the refusal or failure is that the Minister or officer is satisfied that the person,-
(i) whether personally or through an agent, in expressing his or her interest in obtaining an invitation to apply for residence submitted false or misleading information, or withheld relevant information that was potentially prejudicial to the person; or ..."
[23] The appellant worked full-time in telesales from about April or June 2004 (it is not clear to the Board when he started working full-time) until he resigned in early July 2005. This employment was in breach of a condition of his student permits granted on 15 March 2004 and 14 July 2004 (which allowed employment for only 15 hours per week during term time but unrestricted during the Christmas-New Year holiday period) and in breach of his visitor's permit of 23 March 2005 (which prohibited employment).
[24] None of the above is disputed by the appellant.
[25] In the appellant's Expression of Interest form seeking residence in New Zealand, he made the following declaration:
"Make sure you understand the declarations below before you agree to them.
Important
‹› I understand that if I make any false statements, or provide any false or misleading information, or have changed or altered this form in any material way, my Expression of Interest may be declined, or my residence visa or permit may later be revoked, I lose any right to appeal and that I may also be committing an offence and be liable for prosecution.
‹› I understand the notes and questions in this form, and I declare the information given about myself, my partner and any children is true and complete.
...
‹› I declare that I will inform the New Zealand Immigration Service (NZIS) of any relevant fact or any change of circumstances that may: (i) affect the decision on my Expression of Interest form and application for a permit, or (ii) affect the decision to grant a permit that relies on the visa for which I am expressing interest and applying.
‹› I declare that there are no matters or warrants outstanding, or investigations of any kind, which would have any current or future affect on the assessment of my good character or the good character of any other persons including in this Expression of Interest."
[26] The appellant was advised by the NZIS on 29 June 2005 that he was working unlawfully, that he had made the same declarations as above in his residence form and that, as provided in A5.25.i of the character requirement of Government residence policy, he had withheld material information and provided misleading information.
[27] In response, the appellant apologised and expressed remorse. He admitted breaching his visitor's permit, explaining that he did so as he desperately needed the money to clear debts incurred in paying for student fees in New Zealand.
[28] The NZIS decision letter of 28 October 2005 stated that an assessment of his character had been conducted and the outcome was that a waiver was not granted. That assessment noted that he had not informed the NZIS that he had undertaken full-time employment in breach of a condition of his permits and that he had been in breach from 1 April 2004 to 31 March 2005 (the Board observes that he was working in breach of his permits until early July 2005). The assessment recorded that the appellant had not declared that he was working in breach of his permits in either his Expression of Interest or his application for residence.
[29] The appellant's representative correctly concedes in her submissions of 31 January 2006 that information was withheld by him.
[30] In those submissions, the representative contends that the Board has misunderstood the grounds of the appeal, since it does not concern the substance of the NZIS decision but rather failures in the way the decision was reached. It is argued that the NZIS did not properly follow the correct procedures as required by Government residence policy, in particular the process for granting a character waiver (A5.25.1.b). The representative relies on Residence Appeal Nos 13767 (10 November 2004) and 14088 (24 March 2005), decisions of this Board which deal with procedural errors by the NZIS in considering character issues.
[31] However, whatever faults there are in the NZIS assessment of character or the procedures followed, none of this can be reviewed by the Board if it does not have jurisdiction to consider the appeal.
[32] The Board finds that it does not have jurisdiction.
[33] Turning to section 18C(2A)(b)(i), it is clear that "a ground" of the refusal of the officer to grant the residence permit was that the officer was satisfied that the appellant, in expressing his interest in obtaining an invitation to apply for residence, withheld relevant information that was potentially prejudicial to him. The Board particularly notes that the officer found that the appellant had "provided misleading information and withheld material information" (see concluding words in Background section of the character assessment) and that the "information was not declared on his EOI" (see "Overall Assessment" section at the end of the character assessment).
[34] The relevant information is that he was working unlawfully. It is relevant and potentially prejudicial to him, since working unlawfully (and not disclosing that when he sought the temporary permits obtained on 14 July 2004 and 23 March 2005) would jeopardise the appellant's ability to meet the good character requirement of policy.
[35] This is due to the operation of A5.25.i of the Character Requirements policy, as cited by the officer:
"Applicants who will not normally be issued with a residence visa or granted a residence permit, unless granted a character waiver (see A5.25.1(b) below), include any person who has been:
...
i. in the course of applying for a New Zealand visa or permit, has made any statement or provided any information, evidence or submission that was false, misleading or forged, or withheld material information;
Effective 15/12/2003"
[36] The fact that he was working unlawfully would have been material, and quite possibly fatal, to the grant of those student and visitor's permits (see, for example, E5.1.b, E5.10.a.ii of Temporary Entry policy dated 26 July 1999 or E6.5.a dated 1 April 2004). He has accordingly "withheld material information", in the "course of applying" for those permits, namely that he was working in breach of his earlier permits. Indeed, in his visitor's permit application of 8 March 2005 (for the permit granted on 23 March 2005), he falsely stated that he was not employed regularly.
[37] That being the case, he falls foul of A5.25.i, the assessment of good character being a critical aspect of his Expression of Interest (see SM2.b, e; dated 31 August 2004).
[38] The appellant was required to disclose this information (that he was working unlawfully) in submitting an Expression of Interest. The Board refers to the last two clauses of the declaration contained in the Expression of Interest form. It is a "relevant fact" affecting both the decision on his Expression of Interest and the subsequent decision whether or not to grant a permit (for residence) for which he was expressing an interest. It is also a "matter" which could (indeed, would) have an effect on the assessment of his good character.
[39] The appellant is therefore caught by section 18C(2A)(b)(i) of the Act.
[40] The Board has no jurisdiction to consider this appeal.
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D J Plunkett
Member
Residence Review Board