Find out more about relevant overseas persons, individuals with control and the investment test criteria.

The OIO must first:

  • Identify the ‘relevant overseas person’ and the ‘individuals with control’;
  • Then apply the investor test criteria.

Relevant Overseas Person and Individuals with Control

The ‘relevant overseas person’ (ROP) and ‘individuals with control of the relevant overseas person’ (IWC) are concepts used in the Overseas Investment Act 2005 (Act) to focus our assessment, including the investor test, on the entities and individuals behind an investment.

These concepts reflect the commercial reality that for many investments, looking at the person or entity purchasing an asset will be insufficient and it is necessary to look through them to identify ultimate ownership and control.

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Investor Test Criteria

The investor test criteria are fundamentally the same for all consent applications regardless of whether an application relates to sensitive land, significant business assets or fishing quota. The four core investor criteria are:

Business experience and acumen

Applicants must demonstrate that the individuals making up the ROP and IWC for an investment (ROP / IWC individuals) collectively have business experience and acumen relevant to the overseas investment being made.

“Experience” means knowledge or skill gained over time; “acumen” refers to the ability to make good judgments and quick decisions.[1] Each is to be assessed in a business context and must be relevant to the investment being made. Business experience and acumen that contributes to an investment’s success may be treated as relevant even though the ROP / IWC individuals may need to supplement it with the experience and acumen of others to ensure the investment succeeds (eg. by entering into arrangements with an industry expert such as a winemaker or farm manager).

More or less specific expertise may be required depending on the nature of the investment. For example, an individual seeking consent to acquire a lifestyle property may only need to demonstrate fairly generic business experience and acumen whereas an investment in a large gold mine would need to meet a much higher standard.

We will look for evidence that demonstrates that the ROP / IWC individuals have sufficient business experience and acumen to make a success of the investment. Matters we will consider include whether the ROP / IWC individuals have:

  • Experience in the same type of industry and investment;
  • A track record of successful business activity;
  • Other relevant experience, including general business experience and acumen;
  • Relevant qualifications; and
  • Where others are contributing expertise such as industry experts, whether they have appropriate business experience and acumen.

Information you must include in your application:

  • Curriculum vitae for each ROP / IWC individual, and other key individuals such as industry experts, detailing their background, qualifications and work experience;
  • Your submissions on why the ROP / IWC individuals, collectively, have the necessary business experience and acumen for the investment being made.

[1] Tiroa E and Te Hape B Trusts v Chief Executive of Land Information New Zealand - [2012] 3 NZLR 808, para 40.

Demonstrated financial commitment

Applicants must show that the ROP has taken actions that demonstrate financial commitment to the investment (intentions are not sufficient).  Examples include: 

  • Incurring due diligence costs in connection with the investment;
  • Entering into an agreement for sale and purchase to acquire the relevant assets;
  • Paying the deposit required under the agreement for sale and purchase;
  • Engaging professional advisers; and
  • Previously acquiring other business assets associated with the proposed investment (eg. a staged development where the ROP has already invested in the first stage and is seeking consent to acquire assets necessary for the second stage).

Information you must include in your application includes:

  • Your submissions on how the ROP has demonstrated financial commitment to the overseas investment.

Good character

Consent cannot be granted unless the people who will control the investment are of good character (see s16(1)(c) / 18(1)(c)). The people who must satisfy the good character requirements are the ROP/IWC individuals.

See more information about ROP/IWC individuals

See more information about good character

Ineligible individual(s) under the Immigration Act

This part of the investor test provides that ROP / IWC individuals must not be individual(s) of the kind referred to in section 15 or 16 of the Immigration Act 2009.

Sections 15 and 16 of the Immigration Act provides that no visa or entry permission may be granted, and no visa waiver may apply, to any person who, broadly:

  • Has been sentenced to imprisonment:
    • for more than 5 years; or
    • for more than 12 months in the previous 10 years.
  • Has been the subject of a removal order;
  • Has been removed or deported from New Zealand or any other country;
  • Is likely to commit an offence that is punishable by imprisonment;
  • Is, or is likely to be a threat or risk to security, public order or the public interest; or
  • Is a member of a terrorist entity designated under the Terrorism Suppression Act 2002.

Section 19(2) (for sensitive land and significant business assets applications) and section 57I(2) of the Fisheries Act (fishing quota applications) provides guidance on applying the immigration criteria. Note that section 17(1) of the Immigration Act allows the Minister of Immigration to make a special direction allowing a visa or entry permission to be granted despite sections 15 and 16 of that Act.

A statutory declaration will usually be required with each application that evidences the good character and immigration criteria.

See how to prepare statutory declarations for the OIO for further information

Disclaimer

This website provides general information only. The OIO and LINZ do not assume any responsibility for giving legal or other professional advice and disclaim any liability arising from the use of the information. If you require legal or other expert advice you should seek assistance from a professional adviser.

Last Updated: 17 February 2017