Tribunal Upholds Rejection of Residence Application Due to Criminal Non-Disclosure

OUTCOME: Dismissed

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 207483 [NAME], [NAME]

Appellant: [redacted]

Respondent: [redacted] Ministry of Business, Innovation and Employment

Before: [NAME] (Member)

Representative for the Appellant: [redacted]

Counsel for the Respondent: [redacted] 26 May 2026 ___________________________________________________________________ RESIDENCE

DECISION ___________________________________________________________________ [1] The appellant is a 61-year-old citizen of Fiji whose application for residence [NAME] the 2021 [APPELLANT] category was declined by Immigration New Zealand. THE ISSUE [2] Immigration New Zealand declined the appellant’s residence application because, in the course of applying for several earlier visas, the appellant failed to declare that he had been convicted of larceny in Fiji, and while his application for residence was being processed, he withheld that he had been charged with sexual offending in New Zealand. [3] The principal issue for the Tribunal is whether Immigration New Zealand was correct to decline the application, and if so, whether the appellant has special circumstances such as to warrant a recommendation that the Minister of Immigration consider an exception to Government residence instructions.

2 [4] For the reasons that follow, the Tribunal finds that Immigration New Zealand correctly declined the application and that the appellant does not have special circumstances.

BACKGROUND [5] The appellant was born in Fiji. He is divorced and has one daughter, aged 29 years, who is a Fijian citizen and a New Zealand permanent resident. The appellant has no contact with his daughter. The appellant also has a son, however no evidence has been provided as to the son’s age or whether he has contact with the appellant. [6] On 30 March 2000, in Fiji, the appellant was convicted of one charge of larceny. He was sentenced to be “bound over” for 12 months and fined FJ$35. (In Fiji, a sentence of being “bound over” is a non-custodial sentence where a person is ordered to be of good behaviour for a specific period, often accompanied by a monetary bond that is payable if the order is breached.) [7] In June 2018, while in Fiji, the appellant applied for a visitor [APPELLANT] and did not declare his conviction for larceny in 2000. He was granted the [APPELLANT], and first arrived in New Zealand in August 2018, aged 53. He has not departed since. [8] In December 2018, the appellant applied for an essential skills work [APPELLANT] which was granted in July 2019. In July 2020 and September 2021, he applied for further such work visas. The first application was withdrawn before a decision was made, and the second application was granted in February 2022. The appellant did not declare his conviction for larceny in any of those [APPELLANT] applications. [9] On 17 March 2022, the appellant lodged an application for residence [NAME] the 2021 [APPELLANT] category. In his application, he declared his conviction for larceny in Fiji. [10] In November 2022, the appellant was arrested and charged with sexual offending against an extended family member between 2018 and 2022 in New Zealand. He was released on bail. The appellant denies the 16 charges of sexual offending and is scheduled to appear for jury trial in the District Court in July 2026. [11] In February 2026, the appellant applied for a visitor [APPELLANT]. He was granted an interim [APPELLANT] whilst awaiting the outcome of that application.

3 Relevant Residence and Immigration Instructions [12] Immigration instructions effective when the appellant made his residence application on 17 March 2022 required that he be of good character (see instruction S6.10.a.i and A5.1.a). If an applicant fails to meet the necessary character requirements and the character requirements are not waived, the application may be declined (A5.1). [13] Instruction A5.25 (effective 30 March 2015) stated that, unless a character waiver was granted, a residence class [APPELLANT] would not normally be granted to any person who had been convicted at any time of any offence involving dishonesty (A5.25.c) or any offence of a sexual nature (A5.25.d). A residence class [APPELLANT] would also not be granted to any person who had made any statement or provided any information, evidence or submission that was false, misleading or forged, or had withheld material information (A5.25.i). [14] Instruction A5.35 provides that when an applicant has been charged with an offence which, on conviction, would make them either ineligible for a [APPELLANT] (A5.25) or not granted a [APPELLANT] unless granted a character waiver (A5.25.a−.f), residence applications will usually be deferred for up to six months. [15] Instruction R5.20.1.d.i. states that it is the responsibility of an applicant to inform an immigration officer of any relevant fact, including any material change in circumstances that occurs after the application was made, if that fact or change in circumstances might affect the decision on the application. Immigration New Zealand’s Assessment Conviction for dishonesty in Fiji [16] When completing his application for a resident [APPELLANT], the appellant disclosed his conviction for larceny in Fiji in 2000. [17] On 13 July 2022, Immigration New Zealand wrote to the appellant to advise him of its concern that, due to his conviction for an offence involving dishonesty, he did not meet the character requirements. [18] On 4 August 2022, the appellant’s representative provided further information regarding the circumstances of the offending in Fiji. The representative sought the grant of a character waiver.

4 [19] On 14 December 2022, Immigration New Zealand wrote to the appellant inviting further comments or information regarding his conviction. [20] On 3 February 2023, the representative provided additional comments. The representative did not disclose to Immigration New Zealand that, on 3 November 2022, the appellant had been charged with offences of a sexual nature (doing an indecent act with a [NAME] aged [NAME] 12). [21] Immigration New Zealand records indicate that, on 7 July 2023, it determined a character waiver would be granted in respect of the appellant’s conviction for larceny in Fiji in 2000. However, before completing its assessment of the residence application, Immigration New Zealand appears to have received an updated New Zealand Police vetting report for the appellant. Failure to disclose pending charges of a sexual nature in New Zealand [22] On 22 September 2023, Immigration New Zealand wrote to the appellant advising him that his New Zealand Police vetting report (20 September 2023) indicated he had 16 pending charges of a sexual nature which had not been declared. It appeared the appellant had withheld material information in the course of applying for a resident [APPELLANT] (in breach of instruction A5.25.i). Immigration New Zealand observed that the pending charges had an upcoming court date (July 2024) and, pursuant to instruction A5.35.1.a, it deferred the application for six months for an update to be provided, by 22 March 2024. Subsequent deferrals of the application [23] Pursuant to instruction A5.35.a, the application was deferred on two further occasions; to 22 September 2024 and then to 7 March 2025. [24] On 3 April 2025, Immigration New Zealand wrote to the appellant advising that it could not defer processing the application any longer. It noted that, if the deferral period came to an end without the character impediment being removed or there being an outcome to the case, it must assess the application (instruction A5.35.5.g). Immigration New Zealand set out its concern regarding the appellant’s New Zealand charges of a sexual nature and its concern that he had a conviction in Fiji involving dishonesty. It observed that it appeared that he had withheld material information by failing to disclose the Fiji conviction in his first and subsequent [APPELLANT] applications, and by failing to disclose that he had been charged

5 with sexual offending while his residence class [APPELLANT] application was being processed. It requested a response by 17 April 2025. [25] On 1 May 2025, Immigration New Zealand invited the representative to make submissions in support of a character waiver, by 15 May 2025. [26] In correspondence between 13 and 15 May 2025, the representative requested a further (fourth) deferral of the application. [27] On 19 May 2025, Immigration New Zealand declined to grant a subsequent deferral. Character waiver assessment [28] On 19 May 2025, Immigration New Zealand conducted a character waiver assessment. It set out the process by which it sought information related to the appellant’s conviction in Fiji and pending charges in New Zealand, the appellant’s explanations, and the representative’s submissions and evidence provided in response. It noted that, in July 2023, an immigration officer had found a character waiver should be granted in respect of the historic conviction in Fiji. [29] Immigration New Zealand summarised the reasons why the appellant considered that he should be granted a character waiver for the Fiji conviction and New Zealand charges, and the evidence provided in support. Immigration New Zealand weighed the factors for and against a character waiver. It found that the factors in favour of granting a waiver were not compelling enough to outweigh the factors against. Specifically, it noted that the Fiji conviction was minor and historical with mitigating circumstances, however, the pending charges in New Zealand were serious and raised a high public safety concern. It noted the appellant’s trial was not expected until 2026 and further delay in a decision by Immigration New Zealand would result in a high risk to the public. It observed that the appellant’s failure to declare the Fiji conviction and failure to inform it of the New Zealand charges was a breach of integrity and undermined the appellant’s credibility. It noted the appellant had not provided a response or explanation for his lack of transparency. His repeated failures to disclose key information, without any mitigating explanation, was highly concerning. [30] Immigration New Zealand noted that the appellant had not provided substantial information or evidence of compelling humanitarian circumstances, contribution to New Zealand, or hardship that might justify the granting of a

6 character waiver. Given this, Immigration New Zealand declined to grant a character waiver. Immigration New Zealand’s Decision [31] On 16 June 2025, Immigration New Zealand declined the appellant’s residence application because he did not meet the good character requirements and had not been granted a character waiver. It referenced instructions A5.1, A5.25.i, A5.25.d and f, A5.25.10, A5.35.5.g. Immigration New Zealand included a copy of its character waiver assessment with the decision. STATUTORY GROUNDS [32] The appellant’s right of appeal arises from section 187(1) of the Immigration Act 2009 (the Act). Section 187(4) of the Act provides: (4) The grounds for an appeal [NAME] this section are that— (a) the relevant decision was not correct in terms of the residence instructions applicable at the time the relevant application for the [APPELLANT] was made; or (b) the special circumstances of the appellant are such that consideration of an exception to those residence instructions should be recommended. [33] The residence instructions referred to in section 187(4) are the Government residence instructions contained in Immigration New Zealand’s Operational Manual; see www.immigration.govt.nz. THE APPELLANT’S CASE [34] On 28 July 2025, the appellant lodged this appeal on both grounds in section 187(4). In submissions filed with the Tribunal on 10 September 2025, the representative submits that Immigration New Zealand’s decision was not correct because it refused to consider a further deferral while the appellant’s criminal charges were pending and conducted an unfair assessment by proceeding with a character waiver assessment on the basis of the unproven charges, in breach of the presumption of innocence. As a result, given the appellant is now over 60 years old, he is no longer eligible to (re)apply for residence and that has resulted in a disproportionate and unreasonable outcome.

7 [35] In the alternative, it is submitted the appellant’s circumstances are special arising from the historic and minor nature of his conviction in Fiji, the unproven nature of the New Zealand charges, his age, his long-term contribution to New Zealand and his established personal and community ties here. [36] In support of the appeal, the representative provided the following new documents: (a) A statutory declaration (9 September 2025) from the appellant stating that his conviction in Fiji was minor and was a regrettable mistake made in his youth. He denies the New Zealand charges of sexual offending. (b) A letter (8 September 2025) from the appellant’s landlord stating that he is a reliable tenant and person of good character. (c) Letters (25 August, 5 September and 6 September 2025) from three of the appellant’s colleagues who have worked with him over the past three to seven years and speak of him as hardworking, reliable and a person of good character. [37] On 18 March 2026, the Tribunal advised the representative that the appeal would shortly be considered and requested any updating information be sent by 27 March 2026. No response was received. [38] On 28 April 2026, the Tribunal sought from the appellant a response to specific questions regarding the status of his criminal charges in New Zealand. On 5 May 2026, the representative stated that the appellant denies the sexual offending and all charges are scheduled for jury trial commencing in July 2026. The representative had requested a copy of the summary of facts from the appellant’s lawyer and provided the Tribunal with the appellant’s brief of evidence for the criminal matters. Further information provided by the appellant [39] The starting point is that the Tribunal cannot consider further information provided by an appellant that was not before Immigration New Zealand at the time that it made its decision to decline the application (section 189(1) of the Act).

8 [40] There is a relevant exception to section 189(1) where, as in this case, the Tribunal considers that the further information provided on appeal is necessary for its determination of whether the appellant has special circumstances (section 189(3)(b)). The Tribunal takes the additional documents into account, as necessary, for its determination of whether the appellant has special circumstances. Information sought from the District Court registry [41] On 30 April 2026 the Tribunal sought information from the District Court registry regarding the appellant’s criminal charges. On 11 May 2026, it received information from the registry confirming that the appellant faces 16 charges of sexual offending. The District Court records indicate that on 3 November 2022 he was charged with two offences, on 20 February 2023 he was charged with five further offences and on 26 April 2023 he was charged with an additional nine offences. The District Court registry confirmed that the appellant is scheduled to appear for callover (a pre-trial hearing) in June 2026 and for jury trial commencing in July 2026. ASSESSMENT [42] The Tribunal has considered the submissions and documents provided on appeal and the files provided by Immigration New Zealand in relation to the appellant’s residence application, and Immigration New Zealand’s relevant electronic records. The Tribunal has also considered the information provided by the District Court registry. [43] An assessment as to whether the Immigration New Zealand decision to decline the appellant’s application was correct in terms of the applicable residence instructions is set out below. This is followed by an assessment of whether the appellant has special circumstances which warrant consideration of an exception by the Minister of Immigration. Whether the Decision is Correct [44] The application was made on 17 March 2022 and the relevant criteria are those in the residence instructions as at that time. Immigration New Zealand declined the application because the appellant did not meet the good character requirements and had not been granted a character waiver.

9 Relevant instructions [45] An applicant [NAME] the 2021 [APPELLANT] category must be of good character (S6.10 and A5). Instruction A5.25 (effective 30 March 2015) states that applicants will not normally be granted a residence [APPELLANT] if any of the provisions at A5.25.a–i. apply, unless they are granted a character waiver. [46] Of specific relevance to this appeal are A5.25.c. and i.: A5.25 Applicants normally ineligible for a residence class [APPELLANT] unless granted a character waiver Applicants who will not normally be granted a residence class [APPELLANT], unless granted a character waiver (see A5.25.1(b) below), include any person who has been: … c. convicted at any time of any offence involving dishonesty; or … i. in the course of applying for a [APPELLANT] (or a permit [NAME] the Immigration Act 1987), has made any statement or provided any information, evidence or submission that was false, misleading or forged, or withheld material information; or … Effective 30/03/2015 [47] An applicant is obliged to inform Immigration New Zealand of all relevant facts, including any change in their circumstances, between the time of making the application and the time a decision is made (see R5.20.1.d (effective 2 December 2013)). [48] Where an applicant has been convicted of an offence [NAME] A5.25.c or made any false statement or withheld information [NAME] A5.25.i, an immigration officer must consider the surrounding circumstances of the application to decide whether they are compelling enough to justify the grant of a character waiver (see A5.25.1.b). [49] Where an applicant has been charged with any offence (which, on conviction, would make them ineligible for a residence class [APPELLANT]) an application will usually be deferred for up to six months (see A5.35, effective 13 May 2019). Second and subsequent deferrals may be made; however, if any second or subsequent deferral period comes to an end without the character impediment being removed or an outcome to the case, an officer must proceed to conduct a character waiver assessment:

10 A5.35 Application usually deferred Applications for a residence class [APPELLANT] will usually be deferred for up to six months if, at the time the application is assessed: … b. the applicant: [redacted] has been charged with any offence which, on conviction, would make either A5.20 or A5.25(a) to (f) apply to that applicant; or … A5.35.1 Action The immigration officer must: a. defer the decision on the application for up to six months; and b. inform the applicant of the decision to grant a deferral and the period of the deferral, in writing; and c. await the outcome of the charge, investigation or questioning, or await cancellation or execution of the arrest warrant; and d. if removal of the character impediment is confirmed, continue processing the application normally; and e. if the character impediment is not removed, refer to the Head of [NAME] or [APPELLANT] Manager for their decision on whether to grant a second or subsequent deferral [NAME] the provisions at A5.35.5. A5.35.5 Second and subsequent deferral periods a. In cases where the deferral period is coming to an end and the applicant is still awaiting the outcome of the charge, investigation or questioning, or awaiting cancellation or execution of the arrest warrant, a second or subsequent deferral period may be imposed. b. A decision on a second or subsequent deferral will only be made after appropriate consultation with National Office and the Legal Services of the Ministry of Business, Innovation and Employment about: i. whether a second or subsequent deferral is justified in the circumstances; and ii. whether the deferral period is reasonable, given the likely timeframe of any outcome being reached and the efforts the applicant is making to reach an outcome. c. A decision to grant a second deferral must be made by a Head of [NAME] or [APPELLANT] Manager or above. d. If the character impediment is not removed by the end of the second deferral period, the Head of [NAME] or [APPELLANT] Manager may impose a subsequent deferral [NAME] the provisions at A5.35.5. e. The length of the subsequent deferral period will be decided according to the length of time it is expected for a decision on the charge, investigation or questioning, cancellation or execution of the arrest warrant to be made.

11 f. The applicant must be informed of any decision to impose a second or subsequent deferral and the period of the deferral, in writing. g. If the subsequent deferral period comes to an end without the character impediment being removed or an outcome to the case, officers must assess the application as in A5.25.1. Effective 13/05/2019 Failure to declare and withholding relevant information [50] The first reason Immigration New Zealand relied on to decline the appellant’s residence application was that he had provided false or misleading information by failing to declare his Fiji conviction in previous temporary [APPELLANT] applications and failed to declare his pending charges in New Zealand during the processing of his resident [APPELLANT] application. Immigration New Zealand found that his failure to inform it of both matters brought him within instruction A5.25.i. [51] In 2000, the appellant was convicted of larceny in Fiji. On 13 June 2018, he lodged an application for a visitor [APPELLANT]. He then lodged three subsequent work [APPELLANT] applications in December 2018, July 2020 and September 2021. He did not declare this conviction in any of the four [APPELLANT] applications. [52] The Tribunal is satisfied that Immigration New Zealand was correct to find that the appellant withheld material information when he failed to declare his conviction in Fiji in his four temporary [APPELLANT] applications. It was correct to find that those failures meant he would not normally be granted a resident [APPELLANT], unless a character waiver was granted (A5.25.i). [53] On 17 March 2022, the appellant lodged his application for a resident [APPELLANT]. Between November 2022 and April 2023, he was charged with 16 offences of a sexual nature in New Zealand. The appellant did not inform Immigration New Zealand of the pending charges. It appears that Immigration New Zealand became aware of the charges when it sought an updated Police vetting report in September 2023. [54] The vetting report disclosed that the appellant had been charged with 10 charges of doing an indecent act with a [NAME], one charge of indecently assaulting a [NAME] and five charges of unlawful sexual connection with a [NAME]. The offending was alleged to have occurred between August 2018 and October 2022 at the complainant’s parent’s house. The complainant is an extended family member of the appellant.

12 [55] The Tribunal is satisfied that Immigration New Zealand was correct to find that the appellant failed to declare the pending charges of a sexual nature while his application for residence was being processed. It was a relevant fact that would have affected the decision on his application because, if convicted, he would be ineligible for a residence class [APPELLANT] unless granted a character waiver (R5.20.1.d and A5.25.d). By failing to disclose that he had been charged with sexual offending, the appellant failed to comply with instruction R5.20.1. As identified by Immigration New Zealand, the withholding of this material information meant that he would not normally be granted a resident [APPELLANT], unless a character waiver was granted (A5.25.i). Conviction for a dishonesty offence [56] Separately to his failure to declare his conviction and pending charges, Immigration New Zealand found that the appellant would be ineligible for a residence class [APPELLANT] (unless granted a character waiver) as he had been convicted of an offence involving dishonesty. [57] Immigration New Zealand recorded that the appellant’s Fijian police certificate dated 7 February 2022 disclosed he had been convicted of one charge of larceny (known as theft in New Zealand). The offence date was 30 March 2000, and the appellant was sentenced to be “bound over” for 12 months in the sum of FJ$35. [58] In a letter (3 February 2023) to Immigration New Zealand the representative confirmed the appellant had been convicted of larceny in Fiji. The representative set out the circumstances of the offending, stating the appellant was an owner- operator of a [NAME] and, on 30 March 2000, he provided transport to a Mr [NAME] who was found to have stolen petrol from a property. Both Mr [APPELLANT] and the appellant were charged with larceny (theft). [59] The Tribunal is satisfied Immigration New Zealand was correct to find that the appellant’s conviction in Fiji was for an offence involving dishonesty and therefore, instruction A5.25.c. was engaged and the appellant would not normally be granted a residence class [APPELLANT], unless granted a character waiver pursuant to A5.25.1. [60] Immigration New Zealand records indicate that a character waiver assessment was conducted on 7 July 2023. The preliminary outcome, after consideration of the Fiji conviction only, was to grant the appellant a character

13 waiver. However, the subsequent receipt of a Police vetting report altered Immigration New Zealand’s final decision on the residence application. Pending charges of a sexual nature and deferral of residence application [61] As noted, the appellant’s Police vetting report (20 September 2023) disclosed that he was facing 16 charges for sexual offences which he had not disclosed to Immigration New Zealand. [62] On 22 September 2023, Immigration New Zealand wrote to the appellant noting the charges and that there was an upcoming court date in July 2024. It advised that, pursuant to instruction A5.35.1.a, the application would be deferred for an update to be provided in six months. Two further deferrals were subsequently granted. [63] The Tribunal is satisfied Immigration New Zealand was correct to defer the appellant’s application, pursuant to instruction A5.35.b. The appellant’s pending charges engaged instruction A5.25.d. in that, if convicted, he would not normally be granted a residence [APPELLANT], unless granted a character waiver pursuant to A5.25.1. Refusal to grant subsequent deferrals [64] Given the appellant’s New Zealand charges were pending, the application was deferred to 22 March 2024. A second and third deferral were granted to 22 September 2024 and 7 March 2025. [65] On 3 April 2025, Immigration New Zealand wrote to the appellant advising that it could not defer the application any longer. [66] The representative submits Immigration New Zealand’s statement in its letter of 3 April 2025 that it “cannot defer” the appellant’s application any longer was incorrect. It is submitted that there is no numerical limit on the number of deferrals the Head of [NAME] or [APPELLANT] Manager may impose [NAME] instruction A5.35.5.f.–g., provided the timeframe is reasonable in light of the anticipated outcome of the proceedings. [67] While the representative is correct that there is no numerical limit on the number of subsequent deferrals Immigration New Zealand may impose, there is also no mandatory requirement that a second or subsequent deferral be imposed – it is entirely discretionary. Where an applicant has been charged with an offence

14 which, on conviction, would make A5.25.a. to f. apply, applications for a residence [APPELLANT] will usually be deferred for up to six months (A5.35). When a decision has been made to defer an application, an immigration officer must await the outcome of the charge, investigation or questioning (A5.35.1.c.), and, if removal of the character impediment is confirmed, either continue processing the application (A5.35.1.d) or, if not removed, refer the matter to the Head of [NAME] or [APPELLANT] Manager for their decision on whether (or not) to grant a second or subsequent deferral [NAME] instruction A5.35.5. If no subsequent deferral is granted, and the current deferral period comes to an end without the character impediment being removed or an outcome in the case, an officer must assess the application [NAME] A5.25.10 (that is, carry out a character waiver assessment). [68] In this case, on 22 September 2023, Immigration New Zealand advised the appellant they had granted the first deferral for six months, to 22 March 2024. As at March 2024, Immigration New Zealand was aware the appellant was due to appear in court on the charges in July 2024. Therefore, pursuant to instruction A5.35.a, it exercised its discretion [NAME] A5.35.5 to grant a second deferral (to September 2023) and a third (to March 2025) while the charges remained pending. [69] In imposing a second and third deferral, Immigration New Zealand was exercising its discretion [NAME] instruction A5.35.5.a. The use of the word “may” in instructions A5.35.5.a. and d. makes it explicit that the decision to grant a second or subsequent deferral is discretionary and not mandatory. [70] On 3 April 2025, Immigration New Zealand wrote to the appellant advising that it “cannot” defer processing the application any longer. It referred to instruction A5.35.5.g noting that, if the deferral period is coming to an end without the character impediment being removed or an outcome to the case, it must assess the application as in instruction A5.25.1 (that is, conduct a character waiver assessment). [71] The Tribunal rejects the submission made that Immigration New Zealand’s use of the word “cannot” demonstrates it wrongly considered it could not impose a further deferral. Immigration New Zealand had granted a second and third deferral and, in doing so, had exercised its discretionary power [NAME] instruction A5.35.5. However, by April 2025, it determined it would not exercise its discretion for a fourth deferral. In declining to exercise its discretion to grant a further subsequent deferral, the Tribunal is satisfied Immigration New Zealand acted consistently with instruction A5.35.5.

15 [72] The Tribunal also rejects the submission that the determination was premature, procedurally unfair, and/or that the proper course was to await the outcome of the criminal proceedings. That is not a requirement [NAME] the applicable instructions. In cases such as this, where the application had been on-foot for three years, Immigration New Zealand was not obliged to continuously defer the application. [73] Lastly, the Tribunal rejects the submission that, when considering whether to grant a subsequent deferral, Immigration New Zealand must consider “humanitarian and contribution” factors or whether a “disproportionate and unreasonable outcome” would result. Consideration of such factors, nominated by the representative, is not required by instruction A5.35.5 (or elsewhere in instructions). [74] The Tribunal is satisfied Immigration New Zealand acted fairly and pursuant to instructions when it decided not to exercise its discretion to impose a fourth deferral of the appellant’s residence application. Whether the character waiver assessment was fair and correct [75] Having found that the appellant did not meet the character requirements of instructions, Immigration New Zealand was required to assess whether to grant the appellant a waiver of the character requirements. [76] The Tribunal has acknowledged in previous decisions involving character waivers that undertaking such assessments is a difficult task. Immigration New Zealand must consider the surrounding circumstances of the application to decide whether they are compelling enough to justify the grant of a character waiver (A5.25.1.b., effective 30 March 2015). Guidance can be found in instructions to ensure fairness and natural justice principles prevail in making a character waiver assessment. Such an assessment must be undertaken in accordance with the requirements of A5.25.1.b. and in a procedurally fair manner (A1.5, effective 29 November 2010). [77] Immigration New Zealand conducted its waiver assessment on 19 May 2025. Before conducting the assessment, it first provided the appellant with an opportunity to provide a response or submissions regarding his failure to disclose his conviction involving dishonesty in previous applications. It received the appellant’s response on 3 February 2023. Upon becoming aware of his pending sexual charges in New Zealand, it then provided him with three further

16 opportunities to respond to his failure to disclose those charges. It received the appellant’s responses on 22 March 2024, and 13, 14 and 15 May 2025. [78] The Tribunal is satisfied that Immigration New Zealand’s character waiver consisted of a proper assessment of all relevant information provided by the appellant. The immigration officer recorded that the reason why the appellant was not of good character was due to his failure to disclose his conviction in Fiji in previous applications and failure to disclose that, while his application for a resident [APPELLANT] was being processed, he was charged with sexual offending in New Zealand. The immigration officer acknowledged that the dishonesty conviction was historic and relatively minor. However, the officer also recorded that the charges laid in New Zealand were serious and concerned allegations of sexual offending against a child, which raised serious public interest concerns. [79] The immigration officer acknowledged that while the charges laid in New Zealand were not proven, the scale of those charges, their duration and the appellant’s failure to be transparent about them were considered compelling risk factors. [80] Against the seriousness of the appellant’s offending and charges and his failure to disclose them, the immigration officer considered the appellant’s current circumstances. The officer observed that the appellant had not provided substantial information or evidence to show compelling humanitarian circumstances, had not demonstrated his contribution to New Zealand, or the undue hardship he would suffer if he was not granted a character waiver. [81] Having considered the full character waiver assessment, the Tribunal finds that there was no evidence of Immigration New Zealand improperly weighing the evidence before it. Ultimately, in considering whether Immigration New Zealand properly conducted its character waiver assessment, the issue is not whether the Tribunal agrees with the assessment, but whether a fair process was followed, and a reasonable decision was made (see [NAME]) [2021] NZIPT 206284 at [49]): The Tribunal notes that the subjective nature of a character waiver assessment means that it is possible that different decision makers may arrive at different outcomes on the basis of the same facts. The Tribunal’s role is not to displace Immigration New Zealand’s decision where it has correctly and fairly assessed the information, even if it may have arrived at a different outcome.

17 [82] After weighing up the factors for and against granting a character waiver, Immigration New Zealand found overall that the factors against granting a character waiver outweighed the factors in favour of doing so. The Tribunal finds that Immigration New Zealand’s identification and balancing of the factors in the appellant’s case was conducted in accordance with its fairness obligations [NAME] A1.5. All relevant factors were considered, and the conclusion Immigration New Zealand reached was a reasonable one on the facts before it. Conclusion on correctness [83] The Tribunal finds that Immigration New Zealand’s decision to decline to grant the appellant a character waiver and therefore decline the appellant’s application for residence was correct because he did not meet the good character requirements and had not been granted a character waiver (S6.10.a.i). In his first four [APPELLANT] applications, the appellant had failed to disclose his dishonesty conviction in Fiji, and, while his application for a resident [APPELLANT] was being processed, he failed to disclose that he had been charged with sexual offending in New Zealand. By electing to defer the application on three occasions, and then declining to exercise its discretion to further defer the application, to await an outcome on the appellant’s charges, Immigration New Zealand acted fairly and according to instructions. In declining to grant a character waiver, the Tribunal is satisfied the character waiver assessment was conducted fairly, that all relevant factors were considered and that the conclusion Immigration New Zealand reached was a reasonable one on the facts before it. Whether there are Special Circumstances [84] Where the Tribunal found the decision of Immigration New Zealand to be correct, it has the power to consider whether the circumstances of the appellant are special, such that they warrant consideration by the Minister of Immigration of an exception to the residence instructions. [85] Special circumstances are “circumstances that are uncommon, not commonplace, out of the ordinary, abnormal”; [NAME] v Minister of Immigration [2004] NZAR 615 (CA) at [24] per Glazebrook J. [86] Whether an appellant has special circumstances will depend on the particular facts of each case. The Tribunal balances all relevant factors in each case to determine whether the appellant's circumstances, when considered cumulatively, are special.

18 Personal and family circumstances [87] The appellant is 61 years old. He arrived in New Zealand nearly eight years ago as the holder of a visitor [APPELLANT]. When he arrived in August 2018, he lived in suburb A in city A with his wife and son, although he states that he was separated from his wife and they lived together for the sake of their son only. The appellant advises that he is now divorced. No further details are provided regarding whether he has contact with his son. [88] In November or December 2018, the appellant (alone) moved to suburb B. From late 2018, until mid-2019, he remained there, living with his extended family members. In mid-2019, he moved to city B for work. [89] The appellant has held three work visas, the first of which was granted in July 2019 and the last of which expired in February 2026. The appellant states (10 February 2026) that from mid-2019 until July 2022, he worked as a [NAME]. There is no evidence before the Tribunal regarding the appellant’s employment after July 2022. [90] In addition to his wife and son, who he has not lived with since late 2018, the appellant also has an adult daughter who is 29 years old and a permanent resident of New Zealand. The representative states (5 May 2026) that the appellant does not have contact with his daughter. [91] The appellant currently holds an interim [APPELLANT], whilst awaiting the outcome of his application for a visitor [APPELLANT]. Pathway to residence [92] In March 2022, the appellant lodged his application for residence [NAME] the 2021 [APPELLANT] category. The representative submits that, as the appellant is now more than 60 years old, he now has no alternative pathway to residence through his employment. Consequently, it is submitted that the decision to decline his application for residence [NAME] the 2021 [APPELLANT] category carries permanent and irreversible consequences for him. [93] It is correct that, given the appellant’s age, he will not be eligible to apply for residence through pathways such as the [NAME] or the Work to Residence category (both of which require an applicant to be 55 years or younger). However, the appellant was 57 years old at the time he lodged his

19 application for residence, so those pathways were already closed to him. In any event, the passage of time is not a special circumstance. [94] Given the Tribunal’s findings above (that Immigration New Zealand’s decision to decline the residence application was correct), the natural consequence is that the appellant will have to meet the applicable instructions for any new [APPELLANT] application that he makes. Historic larceny charge and pending sexual charges [95] It is submitted that special circumstances arise out of the historic and minor nature of the appellant’s conviction for larceny in Fiji in 2000, and because the appellant denies the sexual charges laid against him in New Zealand. The representative refers to the presumption of innocence and submits that the appellant’s circumstances give rise to special circumstances. [96] The correctness and fairness of Immigration New Zealand’s character waiver assessment is addressed above at [75]–[82]. Both the Tribunal, and the officer that completed the character waiver assessment, acknowledge that the appellant’s conviction for larceny in Fiji in 2000 is historic, and that the appellant has not been convicted of the sexual charges in New Zealand. However, Immigration New Zealand declined the application on the basis the appellant had failed to declare his conviction in Fiji (in four previous applications) and withheld relevant information when he failed to disclose he had been charged with sexual offending in New Zealand while his residence application was being processed. Notwithstanding the historical nature of the appellant’s prior conviction in Fiji, and irrespective of whether the appellant is convicted of the sexual offending in New Zealand, the core issue lies in the appellant's failure to declare his conviction and failure to disclose that he had been charged with offending in New Zealand. The appellant’s lack of transparency directly undermines the integrity of the immigration framework, and that lack of transparency is the greater concern, not the historical or unproven nature of his conviction and charges, respectively. [97] The Tribunal finds that the historic nature of the appellant’s conviction and the fact the sexual charges in New Zealand are not yet proven does not give rise to special circumstances.

20 Settlement in, and contribution to, New Zealand [98] It is submitted the appellant has made a long-term contribution to New Zealand and has established personal and community ties here. However, little evidence is before the Tribunal to demonstrate this. In a statement (9 September 2025), the appellant says that he has been living and working in New Zealand for seven years. However, no details are given as to his current employment or his living arrangements. He states he is divorced from his wife and no longer lives with his son. He has no contact with his adult daughter. [99] The evidence before the Tribunal suggests the appellant does not have a family nexus to New Zealand and his connection to New Zealand does not appear to extend beyond his employment and having spent several years in this country as a temporary [APPELLANT] holder. Health requirements [100] Immigration New Zealand records do not include a finding as to whether the appellant had an acceptable standard of health for residence. Discussion on special circumstances [101] The appellant has lived in New Zealand for close to eight years and his employment history suggests a level of settlement typical of temporary [APPELLANT] holders. However, he does not have a nexus to New Zealand through his family as he does not live with his wife or son and has no contact with his adult daughter. His ineligibility for employment-related residence pathways due to exceeding the 55-year age threshold is merely a consequence of the passage of time. Significantly, neither the historical nature of his Fijian conviction, nor the unproven status of his New Zealand sexual charges, gives rise to special circumstances, as the core concern remains his fundamental lack of transparency with Immigration New Zealand and his breach of disclosure obligations. Conclusion on special circumstances [102] Having regard to circumstances of the appellant, as disclosed, the Tribunal finds that the appellant does not have special circumstances that warrant a recommendation that the Minister of Immigration consider an exception to residence instructions.

21 Certified to be the Research Copy released for publication.

[NAME] Member DETERMINATION [103] This appeal is determined pursuant to section 188(1)(a) of the Immigration Act 2009. The Tribunal confirms the decision of Immigration New Zealand to decline the appellant's application for residence as correct in terms of the applicable residence instructions. The Tribunal does not consider that the appellant has special circumstances which warrant consideration by the Minister of Immigration as an exception to those instructions [NAME] section 188(1)(f) of the Act. [104] The appeal is unsuccessful. Order as to Depersonalised Research Copy [105] Pursuant to clause 19 of Schedule 2 of the Act, the Tribunal orders that, until further order, the research copy of this decision is to be depersonalised by removal of the appellant’s name and any particulars likely to lead to the identification of the appellant or his family members. “[NAME]” [NAME] Member