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5
possess a residence class visa Mr Rath had not obtained a residence Y
and cease to be an overseas class visa by the required date (30
person by 30 June 2021
June 2021)
s9(2)(a)
5.
Mr Rath has not complied with Condition 4 or Condition 5 and is now in breach of both
conditions.
6.
The Consent states that if Mr Rath does not comply with Conditions 3, 4, or 5 then he must
dispose of the Investment pursuant to Condition 9 (and by the process set out in that
condition).
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7.
We note that Mr Rath (and entities associated with him) have been involved in two court
cases (in relation to which we have opened separate investigations): Act
(a) civil action against Mr Rath related to the ship “Persevere” – brought by a US lender
(ST Liberty LLC) and alleging breaches of the loan and security agreement and first
preferred ship mortgage; s9(2)(ba)(i)
(i)
Discontinued in July 2022 s9(2)(ba)(i)
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(ii) s9(2)(ba)(i)
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(b) civil and criminal action against Mr Rath brought by Inland Revenue consisting of
over 100 charges alleging false and fraudulent use of GST tax returns with the
intention of obtaining a financial advantage s9(2)(ba)(i)
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Recommendation under
8.
Given Mr Rath has not complied with Condition 4 or Condition 5 and is now in breach of
both conditions, we recommend that:
(a) the case progress to implementation phase
(b) Mr Rath be notified that he is required to dispose of the Investment pursuant to
Condition 9
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(c)
the disposal process be amended to take into account the Inland Revenue case.
Asset concerned
9.
Approximately 28.74ha of land located at 244-246 Georges Road, Waipara, Canterbury
(Titles: CB41A/409 and CB40C/475).
1 CIV-2021-404-302. OIO investigation opened 15 March 2021. http://inca/#/ca/71894
2 Email from Fee Langstone to Andre Baldock, dated 26 July 2022. https://linzone/id:A4966599
3 CIV-2021-409-533. OIO investigation opened 22 February 2022. http://inca/#/ca/75642
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(c) s9(2)(a)
(d) s9(2)(a)
16. s9(2)(a)
Brief summary of information reviewed/inquiries made since triage
Key steps taken
17. In June and July 2021, I reviewed the consent and monitoring files to identify documents
and information of relevance to our assessment of Mr Rath’s compliance with his consent
conditions – and sought information from M&I staff with knowledge of the files.
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18. In July 2021 we sought information from Mr Rath via Lane Neave – who Mr Rath had
instructed to act for him in April 2021 in response to our enquiries concerning allegations
related to Mr Rath’s ownership and sale of the yacht ‘Perservere’.
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19. Lane Neave were unable to finalise terms of engagement with Mr Rath and ceased acting
for him. Mr Rath did not instruct another legal advisor and responded to our queries himself
and with information provided to him by his immigration advisor, Malcolm Pacific
Immigration (
Malcolm Pacific).
20. Information provided by Mr Rath has been included in the sections below.
Compliance with Condition 4 – apply for a residence class visa by 1 June 2020
Information
21. By 1 June 2020, Mr Rath was required to have submitted an application for a residence
class visa to Immigration NZ – and to have provided the OIO with evidence the condition
had been complied with.
22. Mr Rath did not apply for a residence visa by 1 June 2020 – and we have no correspondence
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on file with Mr Rath about it until 16 December 2020 when the Monitoring team sent Mr
Rath a reminder letter which: the
(a) informed Mr Rath that we have no record of him having complied with Condition 4
(b) requested that he report to us concerning his progress against Condition 4 by no later
than 15 January 2021.5
under
23. We note that on 21 December 2020 Catherine Reid informed the OIO that she no longer
acts for Mr Rath – and forwarded the reminder letter on to Mr Rath.
24. On 22 December 2020, Mr Rath informed Monitoring that:
(a) “We are in the process of filling my application for residency. It should be completed
& submitted prior to the 15th of january. s9(2)(a)
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(b) he could provide confirmation once the visa application is lodged in the new year.6
25. On 15 January 2021, Mr Rath informed Monitoring that he had submitted his residence
visa application earlier that day.7 There is no record of Monitoring acknowledging receipt
of the information or responding to Mr Rath about his compliance with Condition 4.
5 Email from OIO Monitoring to Catherine Reid, dated 16 December 2020. https://linzone/id:A4300096
6 Email from Colin Rath to OIO Monitoring, dated 22 December 2020. https://linzone/id:A4309456
7 Email from Colin Rath to OIO Monitoring, dated 15 January 2021. https://linzone/id:A4323252
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Information in and attached to this report may be legally privileged
26. However, the Obligation Monitoring file in INCA concerning Condition 4:
(a) contains an internal note stating “extension granted until 15 January 2021” – which
corresponds with the information contained in the reminder letter
(b) was updated on 19 January 2021 to show the compliance status as “complied”.
27. We note that there are no other internal records concerning the extension (such as who
approved it, on what basis etc) and the matter (compliance with Condition 4) was not
referred to Enforcement.
28. On 23 June 2021, Monitoring referred Mr Rath’s likely non-compliance with Condition 5 to
Enforcement – on the basis that he was unlikely to possess a residence class visa by the
required date, 30 June 2021. We then sought submissions from Mr Rath concerning the
reasons for his non-compliance with Conditions 4 and 5.
29. Mr Rath provided the following submissions concerning Condition 4:8
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(a) there was a delay in the purchase of the vineyard due to the OIO process – consent
was granted on 19 January 2018 – 15 months after entering into the agreement for
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sale and purchase – and settlement took place on 29 June 2018
(b) Mr Rath was granted a work visa under the Entrepreneur Category –s9(2)(a)
(c)
the resident visa under the Entrepreneur Category could only be lodged after the
accounts were finalised at the end of Year 2 s9(2)(a)
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30. We sought further information from Mr Rath about why he had not applied for the residence
class visa by 1 June 2020 – or sought a variation to the condition.9 On 3 September 2021,
we received further submissions from Mr Rath, including:
(a) “
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s9(2)(a)
I was in the process of finalizing
the annual report and gathering all the required documentation from overseas to
apply for the residency application. The documentation from the States took alot
the
longer than expected to receive, some documents took several months due to Covid
and government delays as there are worldwide. Our Residency application process
all started in April, 2020 and took over 9 months to get all the required information
in, documented, and accepted by immigration.”
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(b) further information about his Entrepreneur work visas – including that 10
s9(2)(a)
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31. s9(2)(a)
8 Email from Colin Rath to Andre Baldock, dated 20 July 2021. https://linzone/id:A4615923
9 Email from Andre Baldock to Colin Rath, dated 19 August 2021. https://linzone/id:A4616688
10 Email from Colin Rath to Andre Baldock, dated 3 September 2021. https://linzone/id:A4631380
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Information in and attached to this report may be legally privileged
s9(2)(a)
Compliance with Condition 5 – possess residence visa and cease to be an OSP by 30
June 2021
32. Condition 5 required that by 30 June 2021, Mr Rath must possess a residence class visa
and cease to be an overseas person.
33. As discussed above, Mr Rath applied for a residence class visa on 15 January 2021.
34. On 15 June 2021, Mr Rath provided Monitoring with a letter from Malcolm Pacific setting
out that while INZ has accepted Mr Rath’s residence visa application – it has not yet been
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allocated to a case officer due to “operational and resourcing issues”.11
35. Monitoring acknowledged receipt of the information from Mr Rath, then subsequently
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referred the matter to Enforcement on the basis that Mr Rath was likely to breach Condition
5. We then sought further information from Mr Rath.
36. On 20 July 2021, Mr Rath provided us with correspondence between INZ and Malcolm
Pacific stating that the application was unlikely to be allocated in July as INZ only had one
person doing residence visa work and there were five people in the queue ahead of Mr
Rath.12
37. On 25 August 2021, Mr Rath provided us with further correspondence from INZ that they
Information
had still not progressed his application due to Covid-19 and lockdown issues.13
38. In May 2022, we sought information from INZ directly concerning the status of Mr Rath’s
residence visa application – particularly as by this time we had become aware of two
serious court cases against Mr Rath which were potentially going to impact on the
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assessment of his application.
39. s9(2)(a)
the
s9(2)(a)
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40. We invited Mr Rath to provide us with any further submissions of relevance. On 22 July
2022 Mr Rath responded as follows:
(a) “I believe the residency requirements have been addressed by myself & Mr.
Thompson previously as shown in previous emails. But, they are obviously mute [sic]
points presently.”
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(b) “The property is on the market for sale with the intent to sell as soon as possible.
Which most likely will not settle until actual tourism returns to New Zealand late next
year.”
11 Email from Colin Rath to OIO Monitoring, dated 15 June 2021. https://linzone/id:A4520871
12 Email from Colin Rath to Andre Baldock, dated 20 July 2021. https://linzone/id:A4615923
13 Email from Colin Rath to Andre Baldock, dated 25 August 2021. https://linzone/id:A4880666
14 Filenote of cal between OIO and INZ, dated 24 May 2022. https://linzone/id:A4947033. Email from INZ to OIO,
dated 24 May 2022. https://linzone/id:A4900889
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Otherwise
Investigation team members
Lead Investigator (note
responsible for setting strategy
meeting and devising
Investigation Plan)
Track I or Track II Investigation
Date of First Advisory Group
(note ordinarily 30 working days
for Track II and 20 working days
for Track I Investigation)
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Comments/Guidance on
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Investigation
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Official
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10
