Discharge Without Conviction Application - Section 106 Sentencing Act 2002 - Immigration and Deportation Consequences - s 106 Application

What immigration evidence is required for a Section 106 application?: Practitioners must file an opinion letter from a New Zealand Immigration Advisers Authority (IAA) licensed adviser or an immigration lawyer. The letter must identify the client's visa type, confirm the specific deportation liability threshold under s 161 of the Immigration Act 2009, address visa cancellation risk, and quantify travel restrictions including the Australian character test, US ESTA ineligibility, UK entry clearance rules, and any other jurisdictions materially affecting the client's work or family circumstances.

Jurisdiction: The application is made in the New Zealand District Court or High Court as part of the sentencing process under Sentencing Act 2002 ss 106-108. Immigration consequences are assessed by the sentencing judge as indirect consequences under s 107.

The Process at a Glance: Confirm the client's current immigration status and visa type. Instruct an immigration lawyer or IAA adviser to prepare a formal opinion letter on deportation and travel ban consequences. Document the specific countries and visa regimes affected. Prepare the immigration consequences section of the sentencing submissions citing Bolea v R. File the immigration expert letter as part of the sentencing bundle. Present the immigration consequences with specificity at the sentencing hearing.

Key Legislation and Case Law: Sentencing Act 2002 ss 106-108 (discharge without conviction and deemed acquittal). Immigration Act 2009 s 161 (deportation liability threshold). Z v R [2012] NZCA 599 (the three-step approach of gravity, consequences and proportionality); Bolea v R [2024] NZSC 46 (the risk of deportation is a consequence of conviction to be weighed under s 107). Australian Migration Act 1958 s 501 (character test). UK Borders Act 2007 (entry clearance restrictions).

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