Application of Evidence Rules in Resident Visa Applications: A Practical Guide to the Two-Way Method

When representing clients in applying for a resident visa, it is often necessary to support the application with facts and legal grounds. This is especially important when handling complex visa applications, where effectively applying evidence rules is crucial.

Based on my professional experience, particularly in handling complex applications originating from mainland China, I have summarised a simple yet effective two-way method that I would like to share with you.

1. Preliminary Assessment of the Case Officer’s Familiarity with the Application Matter

1. Familiar Areas for the Case Officer:

If the case officer is familiar with the application matter and its background, it is recommended to organize the evidence according to the civil litigation evidence rules — specifically, the principle of high probability. This means we need to provide sufficient and relevant evidence to meet a high standard of proof.

2. Unfamiliar Areas for the Case Officer:

If the case officer is unfamiliar with the application matter, it may be necessary to organize the evidence according to the criminal litigation evidence rules — specifically, the principle of excluding reasonable doubt. In this case, we need to provide more detailed and diverse evidence to eliminate possible doubts.

It is important to emphasize that although the legal basis for resident visa applications belongs to the civil law domain, and the application of civil litigation evidence rules has been confirmed multiple times by IPT, in practice, each visa case is unique, and the cognitive level and experience of case officers also vary. Therefore, we need to flexibly apply evidence rules according to specific situations to ensure that clients successfully obtain their resident visas.

2. How to Assess the Case Officer’s Familiarity

We generally believe that for legal relationships and facts occurring within New Zealand or other developed countries, case officers are more familiar; whereas, for legal relationships and facts occurring in mainland China or other developing countries, case officers may be unfamiliar with certain aspects and thus requires more information to ensure that the visa application meets the requirements. Therefore, it is necessary to organize the evidence more cautiously.

For example, in the case of same-sex partner relationships within mainland China (where legal recognition is not yet granted), merely providing communication records showing a shared address may not be sufficient to prove the authenticity of the relationship. At this point, we should consider providing more detailed evidence, such as conversation records that are both verifiable and have a narrative quality, to cross-reference and strengthen the evidence.

3. Investor Categories

The above two-way method is also applicable to investor visa applications.

In processing these applications where the wealth originates from mainland China or developed countries, I have found that the review standards are not entirely consistent: the requirements for documents and proof from mainland China are significantly higher. This also illustrates the necessity and applicability of the two-way method.

1. Wealth Originating from Developed Countries:

For applications where wealth originates from developed countries, it is generally presumed that business specialists are more familiar with these cases. Thus, organizing the documents according to immigration regulations usually makes it relatively easy to obtain an AIP letter.

2. Wealth Originating from High-Risk Areas:

For applications where wealth originates from regions identified by Immigration New Zealand as medium-to-high-risk areas (such as mainland China), it is recommended to apply the principle of excluding reasonable doubt as much as possible, particularly concerning the legality of assets. LIAs and lawyers should focus on the admissibility, authenticity, and probative value of the evidence, organizing multiple sources of evidence to cross-reference and form a complete and effective chain of evidence to prove the legality of the nominated funds, especially seed funds.

Conclusion

Finally, it is essential to emphasize that throughout the entire application process, LIAs and lawyers should tailor the application and evidence strategy to the specific situation. Flexibly applying evidence rules is just one of the effective measures, but it is a critical one.

Author: Yun (Jessica) Meng