Win a no win situation by thinking outside the box

As immigration practitioners, we are usually faced with difficult cases that seem to be a no-win situation. Such situations reminded me of one of my favourite quotes from the popular TV show “Suits”, where Harvey Spector said “Win a no-win situation by rewriting the rules”.

I recently received a thank you letter from the Immigration & Protection Tribunal (IPT) acknowledging my representation in a residence appeal case. It made me think again as to what made this case special and how we managed to win the Appeal. The simple answer, to win a no-win situation, is we needed to think big and get creative.

Background

We were approached by a NZ citizen, a mother of two young children. Her husband is an Afghani citizen living in Pakistan. She only lived with him for approximately two months and has not seen her husband for three years since their marriage.

With the Covid-19 Pandemic and the border closures, it made it almost impossible for them to re-unite and live together as a family. Under the current border restrictions, for our client to travel to New Zealand he must hold a Partnership Work Visa or a Resident Visa. Given the couple have lived together for less than 12 months and the lengthy period of separation, Immigration NZ (INZ) will not approve the Partnership Work Visa application or a Resident Visa under the Family Partnership Category.

At this point, my initial opinion was there is no way for them to re-unite, unless the New Zealand citizen wife relocated with the children to either Pakistan or Afghanistan to live with her husband and get a chance in securing a Partnership Work Visa. However, this was not a feasible option for the NZ citizen wife and their children for various reasons, such as the Covid-19 pandemic outbreak in the region, and safety and security risks. These reasons could also apply to many people, therefore, we had to pause and think outside the box. How can we make this family’s circumstances special and advocate on their behalf to unite together in New Zealand?

Our strategy was to make an “Out of Policy” residence application. We submitted a Residence application to INZ knowing it will be declined as they do not meet the 12 months of living together requirement to be granted a Resident Visa. Once the Residence application is declined, we will appeal to the IPT that our client has special circumstances that warrants the grant of Residence as an exception to the residence instructions.

As predicted, the Residence application was lodged and declined on the grounds I mentioned above.

The Residence Appeal

We lodged the Residence appeal on the grounds that the decision to decline the residence application was correct but our client has special circumstances that warrants consideration by the Minister of Immigration to grant Residence as an exception to instructions.

Winning a Residence appeal on special circumstances is difficult. In the High Court decision of Rajan V Minister of Immigration [2004] NZAR615 (CA), Justice Glazebrook defined special circumstances as “circumstances that are uncommon, not commonplace, out of the ordinary, abnormal”. So we needed to make our client’s case stand out, which was not a walk in the park.

The first step was to demonstrate that our client has no option to re-unite with his family other than being granted Residence as an exception to instructions. The Covid-19 Pandemic outbreak is worldwide and the security issues in Pakistan and Afghanistan are shared by many people. Therefore, we had to dig deep into our client’s situation to identify the relevant factors that made his case special and uncommon, which would assist the IPT with its decision.

We argued that our client’s special circumstances arose primarily out of his relationship with his New Zealand citizen wife, the best interests of his two New Zealand-citizen children, and the significant difficulties that the wife and children will face if required to live in Afghanistan or Pakistan.

Here are some of the points we argued that:

  • Our client is in a genuine and stable partnership with his New Zealand-citizen wife and they have two New Zealand-citizen children.
  • The living circumstances for Afghanis living in Pakistan are not safe and will have a negative impact on the wife and children.
  • The COVID-19 outbreak in Afghanistan and Pakistan is serious.
  • There were genuine and realistic reasons, with evidence, why the New Zealand wife cannot relocate to Afghanistan or Pakistan. Simply stating that there are security issues in the region or the Covid-19 pandemic outbreak is out of control will not convince the IPT to decide in our client’s favour. We needed to go beyond the basic information. For example, in our case, the NZ Citizen wife’s experience from her last visit to Afghanistan and Pakistan was traumatic. She and her children encountered health issues due to being in a different environment with lack of health services. We provided medical reports that confirmed that she suffered from stress-related disorders and depression which would get worse if she returned to any of those two countries.
  • Outlined the difficult position of Afghanis living in Pakistan particularly in the Covid-19 environment. This was backed up by recent reports from Amnesty International, European, Human Rights Watch World Report 2021 and various other genuine sources.
  • We outlined to the IPT with supporting documents that the best interests of the NZ Citizen children would be met by being raised by both parents in New Zealand.

The Appeal outcome

A copy of the decision can be found on the IPT website. The Tribunal found that our client had special circumstances that warranted the grant of residence as an exception to instructions.

The IPT was satisfied that our client and his New Zealand citizen wife are in a genuine and stable partnership, despite their lengthy separation. The best interests of their two New Zealand-citizen children are best served by them being reunited with their father in New Zealand. The wife and the children have a strong family nexus and support in New Zealand. By contrast, our client and his family have no realistic option to live together in a safe and secure environment outside New Zealand. They face significant difficulties in living together in Pakistan and Afghanistan, due to the security issues and health risks there, complicated by the current pandemic.

Final outcome

The Associate Minister of Immigration agreed with the IPT’s recommendation and granted Residence to our client. He will now be able to join his wife and children in New Zealand where they can live in a safe environment.

To get to this stage, it required extensive research outside the Immigration policy. We had to rely on international sources, evidence and documents to back up our client’s claims. We had to ask the client the right questions and give them clear instructions/guidance on what documents they can provide to back up their claims.

If you or someone you know is facing a similar situation where they don’t believe there is hope, let them contact us. We can help identify their options and provide them with the right guidance to achieve their goals.

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