BM (Malaysia) [2020] NZIPT 505020

IPT decision 505020 published on the Ministry of Justice website is summarised below for educational purposes.

  • Malaysian appellant in NZ for 20 years, unlawfully for 19.
  • Married to NZ resident, father to NZ citizen child.
  • Repeated visa denials due to drink-driving convictions.
  • INZ did not grant character waiver, citing recent offences.
  • IPT found exceptional humanitarian circumstances for allowing temporary stay.
  • Focus on family unit's stability, wife's mental health, and child's best interests.
  • Tribunal granted a 12-month work visa, acknowledging efforts to reform character.

Background

The appellant, a 40-year-old Malaysian citizen, arrived in New Zealand in March 2000 on a visitor visa and remained unlawfully for 19 years. He married a New Zealand resident, originally from Taiwan, in November 2016, with whom he has a four-year-old daughter, a New Zealand citizen. The appellant has primarily been the family's financial provider and is deeply integrated into his family life in New Zealand.

Prior to Appeal

Initially, the appellant sought a work visa in February 2018, which was declined in March 2018. Subsequent applications for a visitor visa and residence under the Family (Partnership) category were made, revealing his three drink-driving convictions (2004, 2016, 2018). His applications were repeatedly declined due to character concerns, and no character waiver was granted.

Immigration New Zealand Assessment

Immigration New Zealand (INZ) assessed the appellant's case, focusing on his drink-driving convictions, which led to the finding that he was not of good character. This resulted in the denial of a character waiver for his visa applications. INZ acknowledged his family ties in New Zealand but emphasised the recency of his last offence (2018), maintaining that there was an insufficient lapse of time to ensure no reoffending.

Immigration New Zealand Decision

INZ declined the appellant’s applications for both temporary and resident visas, concluding he was not of good character due to his drink-driving history. They found no justification for granting a character waiver, particularly due to the recent nature of his last offence.

IPT Assessment

The Tribunal found exceptional humanitarian circumstances, considering the appellant's established family life in New Zealand, the mental health of his wife (suffering from depression and anxiety), the best interests of his child, and their family unit's stability. The Tribunal noted the negative impact on the family's well-being if the appellant were deported. They also acknowledged his completed drink-driving program and the two-year lapse since his last offence.

IPT Determination

The Tribunal allowed the appeal, directing the grant of a 12-month work visa. It concluded that deportation would be unjust and unduly harsh due to the significant negative impact on the appellant's family, particularly considering the interests of his wife and daughter. The decision also noted it would not be contrary to public interest to allow the appellant to remain temporarily in New Zealand, giving him an opportunity to demonstrate his reformed character and eligibility for residence.

author headshot Michael Yoon
Last modified on 17 January 2024 by
Michael Yoon
Michael has been working as a lawyer in New Zealand since 2006. Over the years, he has successfully helped thousands of clients to get their desired outcome. Clients find Michael knowledgeable, approachable and professional — a trusted expert.

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