New Zealand Case Law: Decisions & Judgments

Topic

Character waiver

Legal area

Court

7 Mar 2023

NANDA v NEW ZEALAND POLICE [2023] NZHC 415

Citation

[2023] NZHC 415
Court

High Court

Counsel's failure to advise on the possibility of discharge without conviction and immigration consequences constituted a material error creating a miscarriage of justice; the offending was low to moderate and, because the conviction triggers statutory immigration consequences (including inability to sponsor for five years and potential deportation liability for ten years), those consequences are out of all proportion to the gravity of the offence and a discharge without conviction is warranted.
2 Nov 2021

GASU v NEW ZEALAND POLICE [2021] NZHC 2948

Citation

[2021] NZHC 2948
Court

High Court

The High Court upheld the District Court: the offending was properly assessed as low to moderate after mitigation; the appellant failed to establish that a conviction would causally and materially worsen his immigration prospects or lead to deportation such that the consequences would be out of all proportion to the gravity of the offending; therefore refusal to discharge was correct and the appeal was dismissed.
8 Jul 2021

SINGH v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2021] NZHC 1695

Citation

[2021] NZHC 1695
Court

High Court

Application for discovery dismissed because it was premature (Ministry had not produced its file), the materials sought (training records, templates, collated data and website guidance) were not shown to be necessary or sufficiently relevant to the s157(2) inquiry, disclosure would be disproportionate or raise privacy concerns, and internal guidance has no legal effect on the correctness of the decision.
18 Jun 2021

SOK v R [2021] NZCA 252

Citation

(2021) 29 CRNZ 962
Court

Court of Appeal

Fresh evidence was admitted but appeal dismissed: although a real risk of deportation existed, that risk arose from the offending and the subsequent immigration status and administrative decisions rather than the mere fact of conviction; because INZ had already declined the visa and a discharge could not now materially reduce the deportation risk or reinstate prior visa rights, the consequences of conviction were not out of all proportion to the gravity of the offence and discharge was not warranted.
8 Apr 2020

BONG v R [2020] NZCA 94

Citation

[2020] NZCA 94
Court

Court of Appeal

The Court granted extension of time and leave to admit fresh expert evidence which established the appellant was unlawfully in New Zealand and that a conviction would likely trigger deportation and materially impede return; those immigration consequences were disproportionate to the low-level offending, so the conviction was quashed and the appellant discharged without conviction under s106.
3 Oct 2019

ZT v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT [2019] NZHC 2513

Citation

[2019] NZHC 2513
Court

High Court

Leave to appeal was granted on the specific legal question whether the Tribunal erred in law by failing to assess the R 5.95.5 surrounding circumstances in light of the underlying purpose (R 4.1), because it was seriously arguable that INZ and the Tribunal did not apply the purposive lens required; leave to judicially review was refused because the Wednesbury unreasonableness threshold was not met and the Tribunal's decision had evidential foundation.
6 Apr 2017

MCKELVEY v MINISTER OF IMMIGRATION [2017] NZHC 659

Citation

[2017] NZHC 659
Court

High Court

Given the constrained scope of review for absolute discretion under the Immigration Act, the delegate was shown to have had before him the materials alleging delay and the new evidence of a scam, and his decision to refuse s17 and s61 relief was reasonably open to him on the totality of the available material (non‑disclosures, health failings and deportation), so the application for judicial review fails.
30 Sept 2016

SINGH v MBIE and IPT [2016] NZHC 2337

Citation

[2016] NZHC 2337
Court

High Court

Leave to appeal and review was declined because the issues could be adequately dealt with on appeal, had little or no prospect of success, and were not of sufficient general or public importance; the application to amend to include the humanitarian decision was dismissed as time-barred under the jurisdictional 28-day limits in ss 245 and 249 and could not be cured by court rules; costs awarded to first respondent on a 2B basis.
3 May 2016

KAUR v THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT & ORS [2016] NZHC 872

Citation

[2016] NZHC 872
Court

High Court

Leave to cross-examine the delegated decision maker was granted only in respect of whether he in fact turned his mind to whether the applicant had a character issue requiring a waiver before deciding, because that factual question was squarely raised in the pleadings, inadequately addressed by affidavit and necessary to decide the review fairly; other areas for cross-examination were refused because affidavit material and documents supplied were sufficient or the matter was one of law.
19 Dec 2014

FU v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2014] NZHC 3346

Citation

[2014] NZHC 3346
Court

High Court

Leave to appeal was refused because the Tribunal's conclusions that the applicant had provided false or misleading information and that INZ correctly declined a character waiver were permissible on the evidence; the Tribunal properly considered the totality of surrounding evidence (including an anonymous report and the applicant's prolonged unlawful stay and work) in assessing intention on the balance of probabilities; no legally tenable argument demonstrated an improper onus or material legal error of wider public importance.