False, misleading or withheld information under Section 58

At a glance

A24.1 imposes an obligation on every visa applicant to inform Immigration New Zealand of all relevant facts, including any material change in circumstances that may affect a decision on their application [A24.1]. A24 sets out the procedure immigration officers must follow when they have reason to believe that a person has provided false or misleading information, or has withheld material information, in connection with a visa application, an expression of interest, or a person's immigration status [A24]. The instruction requires officers to give the person an opportunity to comment, to consider their response, and, if the belief remains, to refer the matter for a decision under section 58 of the Immigration Act 2009 [A24]. Potential outcomes include cancellation of a visa or a formal finding that false information was provided, which may affect character assessments under Character requirements.

Obligation on applicant (A24.1)

Under A24.1, every person applying for a visa must provide all relevant information, and must continue to update INZ of any relevant change in circumstances throughout the processing of the application. This obligation continues until a final decision is made. A material change is any fact or circumstance that could influence the assessment of the application, even if the change occurs after the application is lodged. Failure to inform INZ of a relevant change, or providing false or misleading information, may lead to a finding under section 58 of the Immigration Act 2009, and can affect the person's character assessment [A24.1].

Definition

The instruction at A24 provides a structured process for dealing with information that appears to be false, misleading, or improperly withheld. It is separate from the substantive character grounds in A5.25 and A5.45 (which determine whether false information triggers a character waiver requirement). A24 instead governs the immediate procedural steps when an officer identifies such information during processing.

Application in decisions

When an immigration officer becomes aware of information suggesting that a person may have provided false or misleading information or withheld material information, the officer must [A24]:

1. Put the information to the person – provide a copy of the relevant information and clearly indicate why it is believed to be false, misleading, or why the withholding is material [A24].
2. Give a reasonable opportunity to comment – the person must be given sufficient time to respond and explain, supply further evidence, or correct any misunderstandings [A24].
3. Consider the response – the officer must genuinely consider any explanations or evidence provided before forming a final view [A24].
4. Form a belief – if, after considering the response, the officer still has reasonable grounds to believe that false, misleading, or withheld information was provided, the matter must be referred to a more senior officer or to the chief executive for a decision under section 58 of the Immigration Act 2009 [A24].
5. Possible outcomes – a finding under section 58 may lead to cancellation of any visa held by the person, or a determination that the information was false, misleading, or withheld, which can then be used in character assessments under A5 [A24].

Residence class visa applications and R5.11 — For residence class visa applications, instruction R5.11 in the Residence chapter explicitly states that if an immigration officer is satisfied that any information or documentation submitted in the application is false or misleading, the application must be assessed (with respect to that false or misleading information) in accordance with A24.15 [R5.11]. This instruction should be read in conjunction with the verification obligations at R5.10 (see Supporting documents).

Interpretation & edge cases

• The obligation to provide the person with an opportunity to comment is consistent with the principles of fairness and natural justice. Officers should also ensure any subsequent decision-making respects those principles (see Fairness and Natural Justice).
• "Material" information means information that could have influenced the decision on the original application or expression of interest, not necessarily that it would have led to a different outcome [A24].
• A24 applies even if the information was supplied by a third party (such as an agent), and the person may still be held responsible if they knew, or ought to have known, that the information was false or misleading [A24].
• The referral under section 58 does not automatically result in an adverse outcome; the senior officer will assess all the circumstances, including any compassionate factors, although the discretion is limited [A24].

Section 58(6) assessment criteria (A24.5)

A24.5 sets out the mental-state requirements for a finding under section 58(6) of the Immigration Act 2009 [A24.5].

• For false or misleading information: the immigration officer does not need to determine whether the applicant knew the information was false or misleading, knew it was provided to INZ, or intended to deceive [A24.5]. Likewise, the officer does not need to determine whether the applicant's agent knew the information was false or misleading [A24.5].
• For withholding relevant information or failing to advise of a material change: the officer must be satisfied that the applicant or their agent knew about that information [A24.5]. However, the officer does not need to determine whether the applicant intended to withhold or deceive, or whether the information would have necessarily led to a decline [A24.5].

Note on previous applications: Section 58(6) cannot be used to decline an application on the ground of false, misleading, or withheld information in a previous application. In that situation, officers must apply the character instructions at A5.25 or A5.45 [A24.5].

Consideration before decline for temporary entry class visas (A24.10)

Where a temporary entry class visa application has been found to involve false, misleading, or withheld information, the immigration officer's default position is that the application should normally be declined [A24.10]. However, the officer must not decline the application under section 58(6) without first considering the circumstances of the particular application [A24.10]. This requirement introduces an element of procedural fairness by ensuring that the officer weighs the scale and nature of the misinformation or omission against any relevant compassionate factors before reaching a final decline decision.

Note: For the purpose of A24.10(a), "withheld information" includes any failure to advise of a material change of circumstances [A24.10].

Assessing residence class visa applications under Section 58(6) (A24.15)

A24.15 applies specifically to residence class visa applications when there is false, misleading, or withheld information [A24.15].

• The immigration officer must be satisfied that the applicant, personally or through an agent, submitted false or misleading information or withheld relevant information that was potentially prejudicial to granting the visa, or failed to inform INZ of a material change in circumstances before the decision [A24.15].
• The mental-state requirements for a finding under section 58(6) are the same as those set out in A24.5 (see Section 58(6) assessment criteria above). In summary: for false or misleading information, the officer does not need to determine whether the applicant knew the information was false or misleading, knew it was provided to INZ, or intended to deceive [A24.15]. For withholding relevant information or failing to advise of a material change, the officer must be satisfied that the applicant or their agent knew about that information [A24.15]. The officer does not need to determine whether the applicant intended to withhold or deceive, or whether the information would necessarily have led to a decline [A24.15].
• Applications for a residence class visa with false, misleading or withheld information will normally be declined [A24.15].
• However, the officer must not decline the application under section 58(6) without considering the circumstances of the application [A24.15]. This mirrors the requirement for temporary entry class visas in A24.10.
• Note: For the purpose of A24.15, "withheld information" includes failure to advise of a material change of circumstances [A24.15].
• Previous applications: A24.15 cannot be used to decline a residence class visa application where the ground is false, misleading or withheld information in a previous application. In that situation, the officer must follow the character instructions at A5.25 [A24.15].

Citations

• A24 — Considering false, misleading or withheld information under Section 58
• A24.1 — Obligation on applicant to inform of all relevant facts including changed circumstances
• A24.5 — Assessing whether section 58(6) of the Immigration Act 2009 applies
• A24.10 — Deciding whether to decline an application for a temporary entry class visa under section 58(6)
• A24.15 — Assessing and deciding an application for a residence class visa in instances of false, misleading or withheld information
• R5.11 — Verification and false information