My colleague, James Turner, wrote a blog on drink driving conviction (DUI) and its implications on people who hold resident visas or applying for a resident visa. As we have pointed out multiple times in various blogs, the consequences of drink driving offences are serious, not just in the immigration context but also in the risk it places on other people’s safety.
Today, I will discuss a success story of a fortunate client who secured a resident visa after two drink driving convictions. The moral of our story is that while a DUI conviction will not automatically disqualify you from securing a visa in New Zealand, it is not worth the risk.
What happens if you get a DUI conviction when you have visa applications with INZ?
For temporary entry applications, any New Zealand convictions with a possible imprisonment sentence of three months or more will fail the good character requirements. A DUI conviction carries an imprisonment sentence of up to three months. INZ will have to undertake a character waiver assessment to consider whether the surrounding circumstances are “compelling enough” to justify making an exception to the good character requirements. From our experience, INZ does not take DUI offences lightly and can decline character waiver requests for applicants with DUI convictions.
For example, if you have filed a temporary entry visa application with INZ and received a DUI conviction, you will face the risk of INZ declining your visa application on character grounds. There is an option of filing a reconsideration request or even an appeal with the Immigration and Protection Tribunal (IPT) on humanitarian grounds if you end up as an overstayer. However, the reconsideration request will likely be declined for the same reason. As for the appeal, there is a high threshold to meet the humanitarian circumstances test. Very likely, the appeal will be unsuccessful. As a consequence, you will also become liable for deportation and your dream of securing residence in New Zealand will come to an end.
Similarly for resident visa applications, if you get a DUI conviction INZ could decline the residence application on character grounds. See the NZ Herald article published in July 2022 regarding a young migrant’s residency dream that ended because of a single drink driving offence. You can file a residence appeal with the IPT on two grounds: that the INZ decision was incorrect, and/or that you have special circumstances that warrant the grant of a resident visa as an exception to instructions. To argue that the INZ decision was incorrect will likely focus on the process followed by INZ in doing its character waiver assessment process, which can be tricky. It will probably require the IPT to determine whether INZ conducted its character waiver assessment in a fair and balanced manner.
Therefore, pursuing an appeal with the IPT is not an easy exercise. You will find cases where the IPT accepted INZ’s character waiver assessment. In other cases, the IPT rejected INZ’s assessment and returned the application to INZ for a correct assessment. Bear in mind that the subjective nature of a character waiver assessment means that different immigration officers may reach different decisions based on the same facts. Therefore, there is no guarantee that a character waiver will be granted in a particular case or result in a successful appeal with the IPT.
We recently secured a resident visa for a client who collected not one, but two DUI convictions while INZ was processing his resident visa application. As a result of the two DUI convictions, INZ invited our client to provide a character waiver submission. A character waiver assessment requires INZ to consider the surrounding circumstances and decide whether or not they are compelling enough to justify waiving the good character requirements. Those circumstances include the following factors:
- seriousness of the offence
- whether there is more than one offence
- how long ago the offence occurred
- the applicant’s immediate family in New Zealand
- the applicant’s strong emotional ties to New Zealand
- the significance of the applicant’s potential contribution to New Zealand
INZ is required to conduct a balancing exercise by listing the positive and negative factors and give appropriate weight to each relevant factor to determine whether the applicant should be granted a character waiver. We provided INZ with a detailed submission in favour of granting our client a character waiver. For example, we aimed to convince INZ that our client has shown remorse for his actions, and the steps he took to turn his life around and mitigate any risk of reoffending. In our client’s case we provided credible evidence such as completing CADs counselling sessions, Advanced Defensive Driving Certificates and so on. Also, the seriousness of the offence is generally indicated by the term of imprisonment or the size of the fine. We looked at the court’s sentencing notes to determine the level of the fine and sentence imposed by the court. Our client’s employment and contribution to New Zealand also added weight in favour of INZ granting him a character waiver.
Our client was extremely fortunate to secure residency in New Zealand despite his DUI conviction. His willingness to commit to good behaviour helped his case. Our client comprehended the seriousness of the offences and the impact it had on his life. The convictions made him live through two years under extreme stress and uncertainty. His employment and immigration status in New Zealand were both at risk. This also included the associated costs to pay the lawyers handling his criminal and immigration matters, along with the court-imposed fines, undertaking rehabilitation counselling sessions and driving courses. All of this caused emotional and financial stress to our client, which could have been avoided by thinking of the consequences of drink driving before getting behind the wheel.
Moral of the story – is don’t drink and drive. It is not worth the risk. However, this does not mean we cannot help. As discussed above, securing a character waiver is not a walk in the park and you need professional help to ensure a strong and convincing case is advocated on your behalf with INZ. Please contact us if you have or someone you know has a DUI, and help is needed in dealing with Immigration NZ or in preparing an appeal.