Immigration fraud – what it means and what are the defences
Scope of the Offence
Part 10 of the Immigration Act 2009 contains a number of offences.
Section 342 of the Act relates to one of the more serious offences and establishes the criminal offence of providing false or misleading information in the context of immigration matters.
This offending may arise in several different ways. For example, making false statements or providing misleading information in support of visa applications, requests for changes to visa conditions, appeals to the Minister of Immigration or Immigration and Protection Tribunal, producing false documents to immigration officers, completing border requirement documents falsely, or failing to comply with responsibilities under section 103 of the Act.
The scope of the offence under section 342 is quite broad, encompassing various forms of deception in the immigration context. According to Singh v The Associate Minister of Immigration, [2016] NZHC 1941:
"Under section 342(1) of the Immigration Act 2009, it is an offence to provide false and misleading information in support of any application or request for a visa, or any appeal. Also, under section 342(1)(b) it is an offence to supply information to an immigration officer or a refugee and protection officer knowing that it is false or misleading."
This indicates that the provision covers not only direct applicants but also extends to individuals who may provide false or misleading information in support of another person's application. The offence requires the element of knowledge - the person must know that the information provided is false or misleading in a material respect.
For information to fall within the scope of section 342, it must be false or misleading "in any material respect." This suggests that minor or immaterial inaccuracies are unlikely to constitute an offence. The information must be sufficiently significant to potentially influence the immigration decision-making process.
Types of Information Covered
The section covers various types of information:
Statements, information, evidence, or submissions in support of:
Visa applications or requests for entry permission
Expressions of interest in a visa
Requests for variation, waiver, or cancellation of visa conditions
Appeals to the Minister or the Tribunal
Documents produced or surrendered to immigration officers or refugee and protection officers
Documents completed as part of border requirements
This comprehensive coverage ensures that the provision applies throughout the immigration process, from initial applications to appeals, and across different forms of communication with immigration authorities.
Potential Defences
While not explicitly stated, potential defences to a charge under section 342 may include:
Lack of knowledge - demonstrating that the person did not know the information was false or misleading
Immateriality - arguing that the false or misleading information was not material to the immigration matter
Application of the Refugee Convention exception - showing that the circumstances meet the criteria under Article 31.1 of the Refugee Convention
In terms of knowledge, a critical element of the offence is that the person must know that the information provided is false or misleading. This creates a subjective test focused on the state of mind of the provider of the information. Mere inaccuracies without knowledge would not constitute an offence under this section.
The wording of the Act, as cited in Immigration Act 2009, 2009 No 51, repeatedly emphasizes this knowledge requirement with phrases such as "knowing that it is false or misleading" and "in a manner that the person knows to be false or misleading."
Our immigration lawyers are specialised in immigration law, which encompasses refugee, human rights, and deportation. If you have concerns about returning to your home country, or you have been made liable for deportation, we encourage you to contact one of our team for advice.
