The year 2020 has been the most challenging in decades. With all the covid-19 issues of 2020, I believe there is nothing better to share than a success story of uniting a couple after Immigration NZ (“INZ”) almost tore the family apart.
A kiwi mother of two children approached us for assistance after INZ declined her husband’s resident visa and partnership work visa applications on character grounds. As a result, the husband became unlawful, facing deportation and at risk of being separated from his wife and children.
The background was complex, but we will provide you with a brief overview.
The husband is an Afghani citizen who lived in Pakistan and arrived in New Zealand on a Visitor Visa in December 2015 to marry his now New Zealand wife. They married in January 2016, and they have since had two New Zealand-citizen daughters. The elder daughter is two years of age, and the younger daughter is aged 11 months.
In October 2018, he made his application for residence, which was supported by his wife. He declared that he had no convictions. INZ received clear police certificates from New Zealand and Afghanistan. However, he was required to produce a police certificate from Pakistan as he lived there for several years. He asked a family friend to get the police certificate from Pakistan. INZ made enquiries with the police station said to have issued the police certificate. The station advised INZ that the document was a forgery.
INZ said that because he produced a forged document, he would not normally be granted a residence class visa unless granted a Character Waiver. INZ considered it more likely than not that he had provided a forged police certificate. INZ did not believe the husband’s explanation that he did not know how to obtain a police certificate, because he was given information on how to obtain one.
In a situation like this, even if he did not know that the police certificate was fraudulent, he is responsible for any documents provided to INZ.
In the Character Waiver request, INZ were asked to weigh the fact that the wife and the children were lawfully residing in New Zealand. The husband had strong ties to New Zealand, and it would not be safe for his family to relocate to Afghanistan, if he had to return, due to instability in the region. His wife would struggle to care for them without his support because of her compromised psychological health. The husband provided evidence that he applied for a police certificate via the correct channels which he did not receive by the time INZ decided the application. However, INZ’s main concern was that, because he had not been lawfully in Pakistan, he could not get any government documents such as police certificates. It speculated that he may have been aware of that fact and so that is was why he had decided to provide INZ with a forged police certificate.
In its conclusion, INZ focused on the forged evidence which had been produced and concluded that this outweighed the positive factors that existed. INZ declined both the residence application and the partnership work visa application on character grounds.
We submitted two appeals on behalf of the husband with the Immigration and Protection Tribunal (“IPT”):
- A Residence Appeal against INZ’s decision to decline the residence application; and
- a Humanitarian Appeal against his liability for deportation, as he had become an overstayer.
The Residence Appeal
In the Residence Appeal we presented legal arguments identifying the flaws in INZ’s Character Waiver assessment. Mainly, INZ failed to go through this exercise in a fair and balanced manner. We agreed that the husband had not followed the correct process in obtaining the police certificate. However, in the meantime he had applied for and received a new and valid police certificate through the correct channels.
The IPT agreed with INZ that the provision of the false document was serious. However, the IPT also agreed that INZ’s Character Waiver assessment was flawed for the following reasons:
- INZ conducted a “Cursory” assessment of the positive factors. It failed to assess the independent medical evidence that had been produced as to the nature of the wife’s health difficulties and the impact that her health challenges had on her life;
- INZ appeared to accept that the wife could not reasonably be expected to relocate to Afghanistan in the event that he had to return. However, it then failed to expressly recognise that the effect of the husband returning to Afghanistan without his family would be, in all reality, a permanent separation of this family unit. No regard was given to what would be in the children’s best interests which had to be treated as a primary consideration;
- The husband’s continued presence in New Zealand and support of his wife and children was of real importance to the functioning of the family unit, and it impacted on an assessment of his potential contribution and the strength of his ties to New Zealand;
- INZ did not engage in a proper weighing and balancing of the various factors for and against the grant of a waiver that existed.
The Residence Appeal was successful and the application was returned to INZ for a correct assessment, including verification of the new police certificate.
The Humanitarian Appeal
The IPT found that the prospect of deportation of the husband before he had the Character Waiver assessment done properly by INZ for his residence application, made for “exceptional circumstances of a humanitarian nature”. The IPT also accepted that there was a public interest in the protection of the family unit and ordered the grant of a 12-month work visa to the husband. This would allow him to remain here for the time being while his residence application is reassessed and to seek work to support his family and also to plan, along with his wife, for their family’s future.
This was a great outcome for the family. They now have an opportunity to get the residence application correctly assessed by INZ, and a valid visa for the husband to resume employment and continue to support his family. The family unity has been preserved for the time being.
What we have learned?
Not every client has a perfect story. Some clients may have made mistakes during their application process, or may have not had appropriate representation. In the above scenario, our client did not apply for the police certificate through the appropriate channels and was responsible for the documents provided to INZ. His former representative did not obtain the correct information or documents on his status in Pakistan.
But this does not mean we cannot help. Our role as immigration specialists is to move up a gear, and find a solution. It’s all about transparency, dig deep and lay out all the facts on the table. This includes identifying facts which the client may not see as important or relevant, and then help to fix their mistakes when possible.
Don’t be afraid to seek professional assistance when needed. Contact us if you or someone you know is in a similar situation.