By Yvanca Clarisse
17 August 2021
A criminal conviction is not an accessory many New Zealanders aspire to collect during their lifetime. Yet, depending on the nature and severity of offending, for most New Zealanders, the consequences of a criminal conviction may wind-up with embarrassment and/or a hindrance for travel plans or future employment opportunities until the Clean Slate Regime applies. For temporary and resident visa holders, however, a criminal conviction could mean becoming subject to a Deportation Liability Notice and being sent away from their families and newly built lives in New Zealand. As a result the stakes are very different.
The legal consequences of criminal conviction can range from inability to secure further temporary visas in New Zealand, or being ineligible for grant of permanent residence in New Zealand, difficultly in travelling overseas and/or migrating to another country as well as difficultly in securing employment either in New Zealand or abroad.
The ultimate legal consequence is deportation from New Zealand. In certain circumstances, the deportation may mean that the deported person can never return to New Zealand, in others, they would be barred from returning to New Zealand for periods ranging from two to five years.
When advising temporary or resident visa holders in criminal matters careful scrutiny and understanding of their immigration status, family and work situation is of the utmost importance before any legal advice should be provided about further progress of the criminal case and/or entering a plea.
Where temporary visa holders will be subjected to scrutiny from an Immigration Officer and/or Compliance Officer as a result of the offending itself,1 resident visa holders will only be subjected to an assessment by the Minister of Immigration or his/her delegated decision makers when a conviction is entered against them.2
Generally, resident visa holders will want to know from their criminal lawyer whether they can avoid a conviction. A discussion with your client about the possibility of applying for a discharge without conviction requires careful consideration of your clients’ circumstances and a proper application of the current case law in this area.
Until recently, the Court of Appeal – although expressing the view that Courts were generally reluctant to intervene in the decision-making process of a specialist body such as Immigration New Zealand or the Minister of Immigration – had found that if there was a real and appreciable risk that a defendant would be deported as a result of his or her conviction, and that this was not a mere prospect of deportation and when this would also result in the break up the family unit, a discharge without conviction could be granted for offending that was at the lower level of the scale of the offence.3 In two very recent Court of Appeal decisions, the Court of Appeal has moved away from that approach.
In Sok v R4 the Court of Appeal found that the Court may distinguish between liability to deportation and the risk that a person will ultimately be deported, holding that the court would not “usurp” immigration powers by granting a discharge where the offending is not serious and the exposure to deportation liability would be a disproportionate consequence in itself. The Court of Appeal found that in those cases the Court does not need to make predictions about what immigration authorities will do. The Court found that Rahim v R appeared to fall within this category and further held that these cases involve offending that was not intrinsically serious, or which was not a serious example of its kind, and in which there were substantial personal mitigating features.
It is interesting to note that Mr Sok fell within s157 of the Immigration Act and would be assessed by Immigration New Zealand as result of the offending itself and not only if he were to be convicted of that offending.
Shortly after the decision in Sok v R, the Court of Appeal was asked to consider the issue of deportation as a consequence of offending again in Zhu v R5.
Mr Zhu, however, fell within section 161 of the Immigration Act.
The Court of Appeal again discussed the issue of causation, citing the decision in Sok v R, and found that it would not always be enough to show that but for conviction a given consequence would not happen, and that causation is a question of substance and degree, requiring judicial judgment. The court further concluded that where it is satisfied that immigration decision-makers will consider the circumstances that are said to justify a discharge, including the gravity of the offending and the offender’s personal circumstances, a court should usually reason that this assessment is a consequence of the offending rather that the conviction, in which case a discharge without conviction should not be granted.
Although this finding of the Court of Appeal is at odds with the wording of s161 of the Immigration Act6 – particularly since the section is only triggered by the entry of a conviction and not the offending itself – unless Zhu is overruled by the Supreme Court or distinguished by a later decision of the Court of Appeal, a discharge for a visa holder will now need even more careful consideration.
It is also important to note that the situation can be more intricate if the resident visa holder is already subject to a suspended Deportation Liability Notice and reoffends within the suspension period.
For further detailed advice or assistance with regards to the matters discussed in this article, including criminal and immigration matters please get in touch with the team at Pitt & Moore.
 Section 157 of the Immigration Act 2009.
 Section 161 of the Immigration Act 2009.
 Rahim v R  NZCA 182.
 Sok v R  NZCA 252.
 Zhu v R  NZCA 254.
 But not at odds with s157 of the Immigration Act 2009 – as was the case in Sok v R.
Disclaimer: The information contained in this publication is of a general nature and is not intended as legal advice. It is important that you seek legal advice that is specific to your circumstances.