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(written by Alain Koetsier, Licensed Immigration Adviser)
Before we discuss the topic for today, we’ll begin with a short horror story:
John is a work visa holder. One evening after work, he goes out with some friends for drinks. It’s a colleague’s birthday, so he has few more beers than usual. When he leaves the bar, he monitors how drunk he feels and decides he’s clear-headed enough to drive home.
While John is driving home, a police officer stops him and asks him to undergo a breath test. The first test involves speaking into a small hand-held device. John fails this test, and is asked to undergo another: blowing into a plastic tube. He fails that test as well. At this point, the police officer informs John that he is detained, and will need to go with him to a mobile testing centre for an evidential breath test. John wisely asks the police officer to contact a lawyer on his behalf before taking the final evidential test (as anyone should in this situation!). After receiving legal advice, he takes and fails the last test. He is now told by police that he’ll need to face charges in the local District Court.
Some time later, the case is heard in court and John is convicted for driving while intoxicated. Despite the conviction, he feels relieved: the judge noted that it was a first-time offence and nobody was harmed, so imposed a modest punishment: a $500 fine plus court costs, no prison time, and a 6-month disqualification from driving. John is glad that this awful episode is behind him, and is ready to get back to normal life.
Several weeks pass, and John receives a letter from Immigration New Zealand. To his horror, the letter is titled ‘DEPORTATION LIABILITY NOTICE’: it informs him that he is now required to leave the country, and failure to do so may lead to deportation.
John’s mind races: “How could this happen? All I got was a $500 fine! I thought I’d put this behind me! I only drove drunk once, and nobody was hurt! I swore to myself and to the judge that I’d never do it again! I’ve been in New Zealand for years, why would INZ ruin my life like this?”
Unfortunately, many people think of drink driving as just another traffic infraction, similar to not wearing a seatbelt, or driving a few kilometres over the speed limit. This misperception is reinforced by the relatively light penalties courts often give to first-time offenders. But drink driving is not a minor offence. Drunk drivers are not monsters – most are ordinary people who simply made a serious mistake – but drink driving is still a serious public safety issue, since it can lead to the death or injury of other people on the road. INZ therefore does not treat the matter lightly.
If you’re a migrant who drives a car and drinks alcohol from time to time, you should be aware that the immigration consequences of drink driving can far outweigh the criminal consequences. You owe it to yourself to know your legal rights and responsibilities, just in case things go wrong.
Before a temporary or resident visa holder can be deported for drink driving, they must receive a ‘warning letter’ called a Deportation Liability Notice, or DLN. The letter will say that you should leave the country as soon as possible of your own volition, and that if you choose to stay you may be deported at a later date.
The law grants INZ considerable leeway when it comes to deporting temporary visa holders. All that is necessary is for there to be “sufficient reason”. So what is sufficient reason?
Section 157(5) of the Immigration Act 2009 gives a few examples:
For the purposes of subsection (1), sufficient reason includes, but is not limited to,—
Drink driving certainly counts as “criminal offending”, so represents sufficient reason to deport a temporary visa holder. And contrary to popular belief, a discharge without conviction or diversion (not the same as acquittal) can still lead to a DLN: note the wording above of “criminal offending”, as opposed to “criminal conviction” – since a discharge or diversion recognises that a criminal offence occurred, s157(5)(b) still applies even if the offender was not convicted.
In fact, INZ can even issue an s157 DLN before the court has made a decision. Last year, a Work Visa holder was issued with an s157 DLN for being charged with domestic violence, even though the trial was ongoing and he had pled ‘not guilty’. S157 can be used even when no charges have been filed at all: for example, in 2019 a family of unruly tourists were issued on-the-spot DLNs at a Burger King, following a string of disorderly antics during their holiday in New Zealand.
The point here is not that INZ can haphazardly deport temporary visa holders whenever it likes – this is not true. Rather, the key takeaway is that s157 DLNs are issued at INZ’s own discretion, independently of the justice system. If INZ deems a temporary visa holder a threat to the public, then the permission to be in New Zealand can be revoked.
Character requirements for further temporary visas
Let’s return to the individual in the initial story, John. Let’s imagine that he never got a DLN, and is now ready to renew his visa and extend his stay here as a worker. Unfortunately, his problems are not over yet: despite the judge’s light sentence, he will fail to meet character requirements for the next temporary visa application, and will need to obtain a ‘character waiver’ for any temporary visa application he submits from now on.
A character waiver is INZ’s assessment on whether to grant you a visa, even though you don’t meet character requirements. These are not granted lightly, as the immigration officer needs to be confident that you will not reoffend. Have you shown remorse for drink driving? Have you taken steps in your own life to address its causes, such as seeking therapy or treatment for alcoholism? Were you going through a personal crisis at the time, causing you to behave uncharacteristically on the night you drove drunk, and is the crisis over and unlikely to re-emerge? And as always: what evidence can prove your claims?
Another important consideration is the length of time since the event: you may be refused a character waiver if the event was recent, but be granted one several years later after a period of continued good behaviour. However, this could mean being ‘locked out’ of New Zealand for an extended period.
Character requirements for resident visa applications
When a temporary visa holder is ready to apply for residence, character requirements are a little different. As long as you were not sentenced to prison, the conviction will impact character eligibility for five years only. If applying during this period, a character waiver will be needed. After the five years has passed, you should meet character requirements for residence despite the past conviction.
No such time limit exists for temporary visa applications, where character waivers are required indefinitely.
Deportation liability will make you ineligible to apply for residence.
A resident visa holder convicted of drink driving may be issued a DLN if, at the time of conviction, they:
Resident visa holders should be careful to avoid any convictions at all in the first two years of visa approval – any conviction for which the maximum potential penalty would be 3 months imprisonment can trigger deportation liability, and a surprisingly large portion of criminal offences in New Zealand have such maximum penalties. Drink driving is one of them. It does not matter if you were not actually sent to prison – all that matters is that the offence had the potential of a 3-month prison sentence.
If the resident visa holder is convicted of multiple drink driving offences (three convictions or more), they may become liable for deportation within 5 years of obtaining the resident visa.
Applying for a Permanent Resident Visa
A Permanent Resident Visa has the same character requirements as a resident visa – therefore, a drink driving conviction will make you ineligible for PR for five years, unless a character waiver is granted.
If you are liable for deportation as a resident visa holder, you cannot apply for PR.
You should immediately contact a Licensed Immigration Adviser or lawyer for help, as there is only a limited amount of time to resolve the situation.
You may respond to the DLN, explaining to INZ why the deportation should not take place. For temporary visa holders, the time limit for this explanation is just 14 days. For residents, the opportunity to explain may be given before the DLN is issued. Your response will be assessed and INZ or the Minister will decide to (1) maintain deportation liability, or (2) suspend deportation liability for up to five years (with conditions such as not incurring further drink driving convictions during the suspension), or (3) immediately cancel the deportation liability altogether.
You also may, within 28 days of the DLN being issued, appeal your deportation liability to the Immigration and Protection Tribunal, on the grounds that there are circumstances of an exceptional humanitarian nature that would make the deportation unusually oppressive for you and/or other people in your life (such as your children) – the standard for humanitarian circumstances is very high, and simply being sad to leave New Zealand is not enough. Disagreeing with INZ’s decision to issue the DLN is not grounds for appeal to the Tribunal.
At any time after the 28-day appeal period ends, INZ may issue a “deportation order” – this is much more serious than a DLN. Whereas a DLN only means that you may be deported later, a deportation order means that you are already effectively deported, even if still in New Zealand. Even if leaving New Zealand voluntarily, you will be considered “self-deported”.
Once a deportation order is in force, your visa is cancelled, you can be held in jail, and after leaving New Zealand (either voluntarily or by force) you will face prohibition on re-entry. Temporary visa holders deported for drink driving offences will be banned from re-entry for 5 years; for resident visa holders the ban is for life. The prohibition can be lifted, but is not done so easily. Furthermore, being deported from New Zealand can seriously affect your eligibility to travel to other countries, as the deportation will most likely have to be declared to other countries’ immigration agencies.
All this is to say that if your appeal against the DLN fails, or if you choose not to appeal the DLN, it is far preferable to leave New Zealand than to wait for INZ to issue a deportation order against you.
There is good news at the end of this: if you don’t want to face the problems described above, there is a way to 100% guarantee you won’t…don’t drive while intoxicated! If you do, a mistake made over a single night could affect your life for years to come.
Many migrants often feel that their immigration status is out of their control: completely at the mercy of Immigration New Zealand’s decisions to approve or decline their visa applications, or the Minister’s interpretation of when to reopen SMC “very soon”.
However, there are many aspects of your immigration status where you alone are the decision-maker. Much as your choice in study and career can help you achieve positive results, your choice to follow the law and act responsibly can ensure that worst-case scenarios never present themselves.
Drive safely, and get in touch with us if you ever need help with your immigration matter!
Disclaimer: This piece is for informational purposes only and should not be read as immigration advice. This brief summary does not reflect the full complexity of the law. If you have been charged with a crime, please contact a lawyer for legal advice. For matters involving immigration, please contact a Licensed Immigration Adviser or lawyer. If you are concerned about your alcohol consumption, don’t be ashamed: contact CADS for help.