Character Waiver

• Character Issues in Visa Applications – What to Do?

Facing a Potentially Prejudicial Information (PPI) letter from Immigration New Zealand (INZ) can be alarming. This letter indicates that INZ believes you may not meet the character requirements for a visa, often due to a criminal conviction or a finding of providing false or misleading information.

Consider these two imaginary scenarios:

1. Criminal Conviction: You have returned home and consumed alcohol. However, your co-worker called you, asking you to pick her up because she missed the bus and it is now very late. She does not know when the taxi will arrive, and she feels unsafe waiting for a taxi alone in the dark. You decided to leave home to pick your co-worker up as you were concerned about her safety. Along the way, you are stopped by police. Your breath-alcohol level exceeds the legal limit, and you are charged. Following your criminal lawyer's advice, you plead guilty, resulting in a fine and a criminal conviction. However, when you apply to extend your work visa, INZ sends a PPI letter stating you are now ineligible for a visa due to the conviction.

2. False or Misleading Information: Years ago, your partner applied for an Australian visa, listing you as a secondary applicant. The application was declined. Four years later, you secured a job in New Zealand, and your work visa was approved. Three years into your job, you apply for residence. In the application, you are asked if you have ever had a visa application declined, and you answer no. INZ sends a PPI letter, noting that your partner's old declined application, where you were listed, means you may have provided false or misleading information and thus may not be eligible for residence.

• The Importance of Professional Advice

In both situations, seeking advice from an experienced immigration professional is highly recommended. This expense is often worthwhile, as professional guidance can help prevent errors in your application or decisions that negatively affect your immigration status.

It's crucial to understand that INZ's definitions of terms like 'application,' 'conviction,' or 'sentenced to imprisonment' can be different from common usage. Even a fine-only sentence can create a criminal record that seriously impacts future visa applications.

INZ has the authority to decline visas in certain circumstances, which include, but are not limited to:

• Being sentenced to imprisonment (which may include a suspended sentence).
• Having a New Zealand conviction for an offence that carries a maximum penalty of three months or more imprisonment.
• Providing false or misleading information or withholding material information in any visa application or request for entry permission.
• Having convictions for specific serious offences like drug, dishonesty, sexual, or violent offences.

It is not uncommon for applicants who believe they meet all requirements to receive PPI letters regarding false or misleading information. Often, these individuals did not intend to mislead but failed to explain their circumstances clearly enough for INZ to fully understand the situation.

• What needs to be addressed in a character waiver submission?

Even if you've reached the point of receiving a Potentially Prejudicial Information (PPI) letter, all is not lost. In most cases, you can request that Immigration New Zealand (INZ) grant you a character waiver. This is not a simple request; it requires a well-reasoned and detailed submission.

An effective character waiver submission must thoroughly address several key areas:

Clear Explanation of the Incident

Since a criminal record or a finding of false/misleading information suggests a lack of good character, it's crucial to give a detailed account of the circumstances. You must explain how and why the incident occurred, including any relevant setting or mitigating factors, so INZ can fully understand the situation.

• For a conviction: Detail the seriousness of the offence, how long ago it occurred, and whether it was a one-time event. For instance, in the first example above, you could explain a drink-driving conviction as a one-off incident driven by altruistic concern for a vulnerable co-worker's safety, as opposed to habitual reckless behaviour. The time elapsed since the offence is also a relevant factor.
• For false/misleading information: You must explain your understanding of the question asked and what you intended to convey. Often, this involves clarifying an unintentional misinterpretation rather than an attempt to deceive.

Evidence of Change of Circumstances

You should provide evidence that positive changes have occurred since the conviction. This helps INZ assess whether granting you a waiver would be contrary to the public interest.

• Provide evidence of rehabilitation programs attended, involvement in community service, or other proactive steps taken to mitigate the possibility of repeating the offence.
• If a significant period has passed without a repeat offence, coupled with a stable employment history, this demonstrates that positive change has occurred and the risk of future offending in New Zealand is minimal.

Your Potential Contributions to New Zealand

This is your opportunity to outline the benefits you offer to New Zealand.

• If you are a skilled worker or have experience in an area of constant worker shortage, provide supporting evidence.
• Secure letters of support from past and current employers, customers, or clients to vouch for your skills and contributions.
• If you are already working in New Zealand, explain why you would be difficult to replace and the impact your departure would have on your employer or community.
• Contributions are not limited to professional skills; the familial contributions you make to family members who are New Zealand citizens or residents will also be considered.

Your Familial Ties to New Zealand

Having immediate family members who are New Zealand citizens or residents is generally a positive factor in your character waiver request. However, a lack of family ties here does not automatically mean your character waiver request will not be granted.

• Why Engage Immigration Professionals?

If you have a serious character issue, such as a criminal conviction or a finding of false/misleading information, you are generally ineligible for a visa unless a character waiver is granted. For many, the ability to work or reside with family in New Zealand is vital.

Engaging with immigration professionals is highly beneficial because:

1. Impartial Storytelling: They provide a third party to submit your narrative in an elaborate and comprehensible manner.
2. Legal Expertise: Professionals are familiar with the relevant immigration law and the legal arguments required for a convincing submission. They can cite and apply the law to your specific case, resulting in the strongest presentation possible and maximizing your chance of success.

If you instruct us to submit an application which requires a character waiver, we would:

• Interview you to fully understand your case.
• Review your immigration file (where possible).
• Review and help compile strong evidence and supporting documents.
• Craft the strongest possible character waiver submission.

• Examples of Past Successful Character Waiver Requests

Below are anonymized and generalized examples illustrating complex character issues that we have successfully navigated by securing a character waiver from INZ. These cases demonstrate the essential elements of a compelling submission: clear explanation, evidence of change, and demonstrated contribution. We have altered specific identifying facts while retaining the core legal and strategic challenges to protect client confidentiality.

Example 1: Historical Non-Disclosure Due to Technicality

1. Character Waiver for Historical Non-Disclosure

The Issue: A client applying for residence was questioned about the non-disclosure of minor, decades-old criminal convictions from their home country in a previous NZ visa application. INZ became aware of the convictions via a police certificate required for the residence visa and issued a PPI letter, alleging the client had provided false or misleading information.

The Strategy: The submission established that the non-disclosure was not intentional but was a result of a legal technicality or change in the law in the client's home country which caused the conviction to reappear on a police check after many years. We successfully argued that:

• The client had previously been advised the offense was spent or not disclosable.
• The client had a clean record for a substantial period since the offense occurred.
• The client was now a highly skilled migrant with significant potential contributions to New Zealand.

The Outcome: The combination of proving lack of intent to deceive and demonstrating a clean and contributory life led INZ to grant the character waiver, and the residence visa was approved.

Example 2: Misunderstanding and Non-Disclosure of a Fine-Only Conviction

2. Character Waiver for Misunderstanding of 'Conviction'

The Issue: A client applying for a work visa was issued a PPI letter concerning a non-disclosure of a prior New Zealand conviction (e.g., drink-driving). The client had only received a fine and believed they were never 'convicted' since they did not receive a prison sentence. Additionally, INZ raised a related concern regarding the employer's initial non-disclosure of an intent to sponsor a family member.

The Strategy: We submitted a comprehensive character waiver request addressing the dual concerns:

• For the client: We argued that the non-disclosure was due to a genuine language barrier and misunderstanding of the legal definition of 'conviction' in the NZ context. We provided evidence that the client had no further offending and was a valued employee, demonstrating a low risk of reoffending.
• For the employer: We provided a clear explanation of the timeline, demonstrating that the employer's decision to hire the family member only arose after an unsuccessful external search.

The Outcome: INZ accepted the explanation of genuine misunderstanding and the evidence of rehabilitation, granting the character waiver. The client was issued a substantive work visa.

Example 3: Misrepresentation of Employment Type Leading to Integrity Concerns

3. Character Waiver for Misstating Employment Details

The Issue: A skilled tradesperson applying for residence received a PPI letter alleging they had provided false or misleading information regarding their work experience. The client had claimed a full-time employment history but had mistakenly used the term 'was employed' when they were actually self-employed with additional sporadic contract work. This misstatement led to INZ receiving conflicting information during verification.

The Strategy: We prepared a detailed submission that required extensive evidence to correct the record and prove the client's integrity. The key arguments were:

• No Intent to Mislead: The client's use of the incorrect term was due to a genuine lack of understanding of the legal distinction between employment and self-employment/contracting.
• Full-Time Experience Confirmed: We provided detailed business documentation (e.g., tax records, certification papers) to prove the client was engaged full-time in the specified trade, even if self-employed, thereby meeting the skills criteria.
• Mitigating the Past Error: The character waiver submission successfully requested INZ to look past the previous misstatement, as the client had not benefited and the core claim (the five years of skilled work) was factually correct.

The Outcome: The comprehensive explanation successfully addressed INZ's concerns regarding the client's integrity. The character waiver was granted, and the client's residence application was approved.

Example 4: Character Waiver for Conviction Under Questionable Circumstances

4. Character Waiver for Historical Conviction Involving Imprisonment (Suspended Sentence)

The Issue: A client applying for a work visa was rendered ineligible due to a single, historical conviction in their home country for a serious offense (e.g., a drug-related charge). Although the client did not serve time and received only a suspended sentence, this outcome triggered the character instruction for having been sentenced to imprisonment, making a character waiver mandatory.

The Strategy: The challenge was to secure a waiver for a conviction that involved a suspended sentence. We crafted a submission that argued the procedural fairness of the original conviction was highly questionable, supporting this claim with third-party evidence:

• We detailed the client's version of events, emphasizing extreme mitigating circumstances (e.g., circumstances of arrest, lack of access to legal representation, or pressure to plead guilty).
• We provided impartial, published information about the legal/judicial environment in the relevant jurisdiction to substantiate the argument that procedural rights may not have been adhered to.
• We leveraged the client's current profile, emphasizing their extensive, high-skilled work experience in a shortage area, demonstrating a strong, low-risk contribution to New Zealand.

The Outcome: INZ accepted the arguments concerning the questionable nature of the historical offense and the clear evidence of rehabilitation. The client was granted a character waiver, allowing them to first secure a work visa and later successfully transition to residence, proving that a suspended sentence is not an absolute bar to a New Zealand visa.

Contact Mathews & Associates for an initial, no-obligation, and confidential consultation if you have character issues and are contemplating representation for your visa application.

Disclaimer:

The contents of this article are for general information only and does not constitute legal advice and should not be substituted for professional legal advice obtained from your lawyer. If you would like legal advice, please contact Mathews & Associates to discuss your legal matter.

About the Author:

Charn Tiebtienrat MMus, LLB (Canterbury)

Charn brings a unique blend of legal expertise and entrepreneurial experience to Mathews and Associates Lawyers Limited.

After immigrating to New Zealand in 1995, Charn earned his Bachelor of Laws (LLB) from the University of Canterbury. He was immersed in business from a young age, growing up in a family of successful entrepreneurs who owned and operated businesses in New Zealand and Thailand, including the highly regarded Suk Jai Thai Restaurant in Whangārei until late 2022. This experience gave him an invaluable, practical understanding of commercial contracts, commercial leases, employment agreements, and visa applications long before attending law school.

Charn has developed a strong specialisation in Immigration Law, training under top practitioners, including two years with prominent Wellington immigration and refugee lawyer Kamil Lakshman. Under her supervision, Charn managed visa applications as well as high-level immigration work, including successful residence and humanitarian appeals to the Immigration & Protection Tribunal, requests for Ministerial Interventions, and securing the cancellation or suspension of deportation liability for his clients. Charn is known for his thorough approach, carefully assessing a client's history and circumstances to devise the most suitable immigration strategy. He finds Immigration Law a uniquely fulfilling area, as every successful decision means helping his clients and their families settle or reunite in New Zealand.

Joining Mathews & Associates in July 2025, Charn practises commercial law while continuing to practise Immigration Law under the supervision of our director, Christopher Perry. Charn’s business acumen enables him to understand both the legal and commercial aspects when reviewing complex commercial agreements such as franchise and lease. As for his immigration cases, Charn retains his thorough approach and has already achieved successful outcomes for a number of clients.