Immigration fraud investigation and criminal prosecution – questions and answers
Under New Zealand law there may be several avenues available for individuals to defend themselves against allegations of immigration fraud. These include statutory defences such as lack of knowledge, reasonable excuse, and due diligence, as well as procedural strategies like applying for a discharge without conviction under the Sentencing Act 2002.
The legislative framework, particularly the Immigration Act 2009, Immigration Amendment Act 2013, and the Immigration Advisers Licensing Act 2007, sets out the elements of immigration fraud offences and the available statutory defences. Case law demonstrates how courts assess intent, knowledge, and the seriousness of the offending, while administrative decisions highlight the importance of due care and the role of licensed immigration advisers. Ultimately, the viability of any defence will depend on the individual’s circumstances and the evidence available.
Immigration Act 2009 and Immigration Amendment Act 2013
The Immigration Act 2009 is the principal statute governing immigration offences in New Zealand. It provides that a person may be liable for deportation if convicted of an offence involving the provision of fraudulent, forged, false, or misleading information, or the concealment of relevant information, in relation to a visa or entry permission application (Immigration Act 2009).
The Immigration Amendment Act 2013 further clarifies that unlawful entry includes arriving in New Zealand using a false identity or a visa obtained through fraud, forgery, or misrepresentation (Immigration Amendment Act 2013, 2013 No 39).
Immigration Advisers Licensing Act 2007
This Act makes it an offence to provide immigration advice without a licence or exemption. However, it provides a statutory defence if the accused did not know they were providing immigration advice and exercised all reasonable care and due diligence to avoid doing so, or if they did not know they were unlicensed and took reasonable steps to ensure they were licenced.
Passports Amendment Act 2002
This Act criminalises the forgery and use of false New Zealand travel documents, but also provides a defence of “reasonable excuse” for certain actions, such as possessing or using a forged document without knowledge of its falsity.
Sentencing Act 2002
Section 106 of the Sentencing Act 2002 allows a court to discharge an individual without conviction if the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. This is a procedural strategy rather than a substantive defence, but it can be highly relevant in immigration fraud cases (Singh v Ministry of Business, Innovation and Employment, [2023] NZHC 2139).
Can I challenge the elements of the offence?
Lack of knowledge or intent
A central strategy in defending against immigration fraud is to challenge the prosecution’s evidence of knowledge or intent. Most immigration fraud offences require proof that the accused knowingly provided false or misleading information, or acted with recklessness as to its truth (Immigration Act 2009; LL v Sun [2019] NZIACDT 3).
If an individual can demonstrate that they were unaware of the fraudulent nature of the information or documents submitted, this may provide for a complete defence.
For example, in LL v Sun, the tribunal found that the obligation not to act contrary to immigration legislation is not one of strict liability. A lack of knowledge of the conduct (i.e., not knowing that false information was added to an application) can be a valid defence, even though ignorance of the law is not.
Similarly, in INZ (Calder) v Ji [2019] NZIACDT 50, the accused successfully argued that he did not know the documents were fraudulent when lodged, and he took prompt steps to investigate and disclose the issue once it was brought to his attention. This approach provides a helpful example of the importance of both lack of knowledge and on this occasion the proactive cooperation with authorities.
Reasonable excuse and due diligence
Some statutes expressly provide a defence of reasonable excuse. Under the Passports Amendment Act 2002, for instance, a person who uses or possesses a forged or false travel document may avoid liability if they can show a reasonable excuse for their actions.
The precise scope of “reasonable excuse” will depend on the facts, but it may include situations where the individual was misled by a third party or had a genuine, honest belief in the authenticity of the document.
The Immigration Advisers Licensing Act 2007 also provides a defence for those who did not know they were providing immigration advice or were unlicensed, provided they exercised all reasonable care and due diligence. Naturally, this places an onus on the accused to demonstrate the steps they took to avoid the prohibited conduct.
Lack of involvement or delegation to others
Where fraudulent conduct is carried out by a third party, such as an immigration adviser or a spouse, the individual may defend themselves by showing they were not involved and had no knowledge of the fraud. In Minister of Immigration v Q, [2018] NZHC 3173, the court considered a case where the applicant’s husband had committed passport and immigration fraud without her knowledge. The court’s analysis suggests that lack of knowledge or involvement can be a significant factor in avoiding liability for deportation or prosecution.
A similar principle was recognised in The Queen v Yan Yong Ming, [2012] NZHC 1205, where the accused argued that, as a wealthy businessman, he relied on others to handle his immigration affairs and was unaware of the specific fraudulent actions taken on his behalf. The court accepted that it was possible for someone to be unaware of the details of fraudulent conduct, even if they knew applications were being made in their name.
What procedural strategies should I consider?
Challenging the evidence and factual basis
Defendants may also challenge the factual basis of the prosecution’s case, including the authenticity of the allegedly fraudulent documents, the accuracy of the information provided, or the procedures followed by immigration authorities.
For example, in INZ (Calder) v Tian, the accused challenged the factual and procedural basis of the complaint, arguing that the allegations were based on selective or incorrect analysis.
Similarly, in Shadforth (Appeal), [2019] NZIACDT 42, the accused demonstrated that proper procedures were followed and that there was no intention to mislead, which contributed to a finding that there was insufficient evidence of wrongdoing.
Mitigating factors and sentencing considerations
Even where a defence is not available or is unsuccessful, individuals may seek to mitigate the consequences of prosecution by highlighting factors such as lack of sophistication or premeditation, cooperation with authorities, or the absence of prior offending.
In Meyer v Police, [2018] NZHC 3434, the court considered the level of sophistication and premeditation in the offending as relevant to sentencing.
Administrative decisions also emphasise the importance of honesty, care, and the use of licensed immigration advisers. Individuals who can demonstrate that they acted in good faith, relied on professional advice, or took steps to rectify any errors may be able to reduce the severity of penalties or avoid the most serious consequences (Balatbat v Sparks, [2016] NZIACDT 27; L v Kim, [2015] NZIACDT 73).
Discharge without conviction
Even where the elements of the offence are made out, an individual may be eligible to consider applying for a discharge without conviction under section 106 of the Sentencing Act 2002. This strategy is particularly relevant where the consequences of a conviction (such as deportation or loss of employment) would be disproportionate to the gravity of the offence.
Exceptions and caveats
Strict liability offences: While most immigration fraud offences require proof of knowledge or intent, some regulatory breaches may be strict liability offences, where the defence of lack of knowledge may not be available.
However, the authorities provided suggest that, at least in the context of providing immigration advice and submitting applications, knowledge or recklessness is generally required (LL v Sun, [2019] NZIACDT 3).
Burden of proof: The burden of proving a statutory defence, such as reasonable excuse or due diligence, typically rests on the accused. The standard is usually the balance of probabilities.
Third-party conduct: Where fraud is committed by a third party, the individual must show genuine lack of knowledge and involvement. Mere reliance on others is not always sufficient if there are indications of wilful blindness or recklessness (The Queen v Yan Yong Ming, [2012] NZHC 1205).
Discharge without conviction: The availability of a discharge without conviction is discretionary and depends on the court’s assessment of proportionality. It is not a substantive defence and does not apply to all cases (Singh v Ministry of Business, Innovation and Employment).
Conclusion
Individuals in New Zealand accused of immigration fraud may have several legal strategies and defences at their disposal. These include challenging the prosecution’s evidence of knowledge or intent, relying on statutory defences such as reasonable excuse or due diligence, demonstrating lack of involvement in third-party fraud, and seeking a discharge without conviction where the consequences of conviction would be disproportionate. The success of these strategies depends on the specific facts, the statutory framework, and the court’s assessment of the gravity and consequences of the offending. Ultimately, the most effective defence will be one that is tailored to the individual’s circumstances and supported by credible evidence.
Our immigration lawyers are experienced in dealing with immigration prosecutions, deportation, refugee, human rights, and immigration appeals. If you have concerns, we encourage you to contact one of our lawyers.
