The Immigration and Protection Tribunal recently considered an appeal by the man after Immigration New Zealand (INZ) refused his residency application, finding he had failed to disclose the murder charge while his application was being processed.
The tribunal said the appeal turned on immigration character requirements and the non-disclosure of the charge, rather than the unresolved murder allegation itself.
Murder charge overseas
According to its decision, the tribunal heard that the man, who is not named, arrived in New Zealand almost 20 years ago on a work visa.
Over the following years, he worked on dairy farms, spending about 12 years in the industry.
After returning overseas in 2016, he came back to New Zealand with an essential skills work visa and resumed work with a former employer.
In April 2022, he lodged a residency application under the special 2021 scheme, a pathway created for many migrants already living and working in the country.
According to the decision, the man travelled home in January 2023 for a funeral.
Events after the death led to a family conflict that culminated in a family member being killed and the man being charged with murder.
A court ordered that he could not leave the country while the criminal proceedings were ongoing.
He has remained there since, while continuing to fight for residency in New Zealand.
The man argued he should not lose his chance at residency before the criminal proceedings were resolved.
Lawyers acting for him argued the evidence against him was weak and said they believed he would ultimately be acquitted.
Residency battle
INZ raised concerns that the man failed to disclose information that could affect his application after learning of the murder charge through overseas authorities.
The man maintained he had not deliberately withheld the information.
During the residency process, he outlined his otherwise good character and his attachment to New Zealand and requested that, if a further deferral until the conclusion of his criminal case was not possible, INZ grant him a resident visa conditional on the case outcome.
The Immigration and Protection Tribunal has considered the man’s appeal.
He urged INZ not to pre-empt the outcome of the criminal proceedings, saying both countries’ legal systems presumed people innocent until proven guilty.
But after his application was declined, the man argued on appeal that INZ should have waited for the criminal case to conclude and had unfairly treated him as though he had already been convicted.
He said the circumstances surrounding the death, the criminal proceedings and the impact on his family had severely affected him.
Medical evidence before the tribunal showed he experienced acute stress and anxiety and received counselling after the events.
The tribunal accepted it would have been extremely stressful and that the man’s wife and children also experienced significant hardship as a result.
The family said they struggled financially because the man was unable to return to New Zealand and resume the work that had supported them for years.
The tribunal also heard evidence suggesting the murder allegation was inconsistent with the man’s previous character.
His former New Zealand employer described him in glowing terms and said he had never witnessed the worker use violence against people or livestock.
The employer urged authorities to either keep the residency application on hold or allow the man to remain eligible until the criminal case was concluded.
The tribunal acknowledged the criminal case had remained unresolved for years but found INZ was not required to keep postponing a decision indefinitely while awaiting an outcome.
It ruled the decision to decline the man’s application was correct, stating he did not meet character requirements and had not been granted a character waiver.
The tribunal also found INZ appropriately exercised its discretion to defer the application while awaiting an outcome on the charge.
“With the subsequent deferral period coming to an end without an outcome to the appellant’s criminal case, Immigration New Zealand was required to proceed with a character waiver.
“The tribunal is satisfied that Immigration New Zealand’s character waiver assessment was conducted fairly, that all relevant factors were considered, and that its decision to decline to grant a waiver was reasonable on the facts before it.”
The tribunal found no special circumstances to warrant asking the Minister of Immigration to make an exception.
It noted that even if the criminal proceedings were resolved in the man’s favour, he could still apply for a temporary visa.
However, it said the success of any such application would not be straightforward.
Tara Shaskey is an assistant editor and reporter for the Open Justice team. She joined NZME in 2022 and has worked as a journalist since 2014.
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