- The appellant, an Indian citizen with a New Zealand resident partner and an autistic child, appealed INZ's decision to decline his SSRV application.
- INZ's assessment was flawed, particularly in considering the appellant's family circumstances.
- The Tribunal cancelled INZ's decision and ordered a new, fair assessment of the appellant's application.
Background
The appellant, a 28-year-old citizen of India, arrived in New Zealand as a student in September 2010. He commenced a relationship with a Samoan-born New Zealand resident in 2012 and was granted residence based on their partnership on 28 April 2014. They had a son in February 2015. The appellant has four convictions in New Zealand: drink-driving in October 2014 and February 2018, driving while disqualified, and giving false details in December 2014.
Prior to Appeal
The appellant applied for a Second or Subsequent Resident Visa (SSRV) on 22 February 2019, acknowledging his convictions. On 11 June 2019, Immigration New Zealand (INZ) informed him that due to his offences, he required a character waiver and an exception to the instructions. The appellant's representative responded on 5 July 2019, providing letters from various supporters and outlining the appellant's remorse, the impact of his absence on his family, and his reformed character.
Immigration New Zealand Assessment
INZ's assessment on 8 July 2019 acknowledged the appellant’s eligibility for an SSRV but highlighted his offences requiring a character waiver. INZ focused on the appellant's repeated offences, questioning his remorse and contribution to New Zealand. The assessment lacked a balanced consideration of the appellant’s circumstances, particularly the impact on his New Zealand citizen partner and autistic child.
Immigration New Zealand Decision
INZ declined the appellant's SSRV application on 29 July 2019. The decision was based on the assessment that the appellant's surrounding circumstances were not compelling enough to warrant an SSRV as an exception to the immigration instructions.
IPT Assessment
The Tribunal found INZ's assessment flawed, particularly in failing to properly consider the appellant's family circumstances in New Zealand. The Tribunal noted that INZ did not conduct a proper waiver/exception assessment and failed to record such an assessment, breaching transparency requirements.
Special Circumstances
The Tribunal highlighted that INZ did not adequately consider the impact of the appellant's absence on his partner and autistic son. The Tribunal emphasised the need for a fair and proper assessment, including the appellant’s long residence in New Zealand, his relationship with his New Zealand citizen partner and child, and the specific needs of his autistic son.
IPT Determination
The Tribunal concluded that INZ's decision was incorrect, cancelling it and returning the application for a new assessment. The Tribunal directed INZ to reassess the application, considering the appellant's updated situation, his family's circumstances, and all relevant factors in accordance with A5.25.1, RV1.25.1, and fairness provisions at A1.5.