Kim Dotcom – “good character”?

For my first blog in 2012 I’ve decided to wade into the argument about why Kim Schmitz/Dotcom got New Zealand Residence, when he is now the subject of proceedings to extradite him to the US to face major internet piracy charges.  I can claim some authority to do this, given that I was interviewed on Radio NZ’s Morning Report about it just after Dotcom’s Auckland home was raided.

Since then, people have claimed that it was anomalous – even hypocritical – to let Dotcom in here to live but refuse him permission to buy a large country property.  The Prime Minister has been drawn in to admit that there appears to be a mismatch between the Immigration “good character” policy and the “good character” test applied by the Overseas Investment Commission (“OIC”).  No-one has really analysed the differences between the two tests, nor has anyone asked why they are different.

The Tests

The OIC sees a character assessment as including “both moral factors and the reputation of the person concerned”.  Someone can be declined the right to own land even if they have no offences on their record.  On the other hand, Immigration usually only carries out a character assessment for Residence for those who have prior convictions.  The only thing Immigration could look at in Dotcom’s application was the importance of his German criminal history rather than other rumours or possible investigations at the time that he was assessed back in 2010.  Someone can also fail the character test if they pose a threat to “New Zealand’s international reputation” – whatever that means.  If Dotcom applied now he wouldn’t get through, and people like Winston Peters would be satisfied.

Why the Difference?

So why is the OIC test so broad, and why is the Immigration test so narrow?  I believe that the answer starts with the fact that people get Residence if they can show that the can make a positive contribution to the country.  They may bring work skills, business experience or a pot of money to invest.  In family reunification cases they help to “strengthen communities” by adding to the family unit of a migrant relative.  On the other hand, someone applying for (say) a Visitor’s Visa can be declined simply because they are under investigation or facing criminal charges which have not yet been proved.  They are coming here temporarily.  The stakes for New Zealand are not so high, so Immigration can afford to be less forgiving.

You could say that foreign investors buying large pieces of property – such as in the Crafar Farms case – also contribute significantly to New Zealand.  The difference there is that the buyer takes on a significant responsibility to manage the land properly.  The sort of land administered by the OIC may have an ecology requiring careful treatment, or have historic significance.  It is called “sensitive land” in the legislation for this reason.  Someone does not need to be a criminal in order to mess up our environment or do things to upset the balance of nature which New Zealand is justly proud of.  In most cases an applicant for Residence does not take on that level of responsibility when they get their visa.

Dangers Ahead

Owing to pressure from the Opposition and Mr Pters, the Government may be pushed into bringing the two tests into line – which really means applying the OIC character test to Residence Policy.

This would create another obstacle in Residence applications.  A husband applying to join his wife, or a doctor taking up a position in a hospital facing a shortage of specialists, could be declined because of charges brought against them which were later dropped.  The same could happen because they got caught up in a sex scandal manufactured by their local media.

Making it even harder for people to get Residence is directly contrary to the Government’s stated immigration objectives of attracting people of value – and not just monetary value.  It contradicts the previous Minister’s own claims that without significant ongoing migration into the country, New Zealand’s economy will shrink by the 2020s.  I, for one, will fight it when and where I can.

Advertisements

About Simon Laurent, Lawyer

Principal of LaurentLaw Barristers & Solicitors. NZ immigration law specialist.
This entry was posted in Immigration Industry, Immigration Visas, Property and tagged , , , , , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s