FX (Partnership) [2020] NZIPT 205782

The appellant, a 40-year-old Malaysian citizen, arrived in New Zealand on a visitor visa in March 2000 and became unlawfully resident thereafter. His life in New Zealand has been marked by a series of drink-driving offences and efforts to regularise his status, influenced heavily by his family relationships within the country. He married a Taiwan citizen and New Zealand resident in November 2016, with whom he has a New Zealand-citizen daughter born in September 2017. His attempts to remain in New Zealand are deeply entwined with his familial connections, particularly following the birth of his child.

The appellant's journey through the immigration process began earnestly in July 2018, when he requested a work visa on the basis of his relationship and his daughter's best interests. This application, and subsequent applications, were hampered by his drink-driving convictions. Notably, in April 2019, he applied for residence under partnership, disclosing his convictions. Immigration New Zealand (INZ) subsequently declined his applications, citing character grounds.

INZ's assessment centred on the appellant's character, notably his drink-driving convictions. INZ noted that the offences, spanning 14 years with the most recent in 2018, were serious and indicated potential harm to others. The appellant's unlawful status during these offences further compounded the character concerns. Despite acknowledging his familial ties in New Zealand and completion of offender programmes, INZ did not find these factors sufficient to outweigh the negative aspects of his character.

INZ declined the appellant's residence application on the grounds that he did not meet the good character requirements and was not granted a character waiver. This decision was influenced by his three drink-driving convictions, particularly the most recent one, and his prolonged unlawful stay in New Zealand.

The IPT assessed the appeal focusing on whether INZ’s decision was correct under the relevant residence instructions and whether special circumstances existed. The Tribunal agreed with INZ's assessment of the appellant's character and the seriousness of his offences. While acknowledging the appellant's strong family ties in New Zealand and the best interests of his daughter, the Tribunal was not convinced these factors outweighed his offending history and unlawful status.

The Tribunal explored the notion of special circumstances, particularly the familial nexus in New Zealand and the best interests of the appellant's daughter. However, it concluded that these circumstances did not outweigh the negative aspects of his prolonged unlawful stay and his history of drink-driving offences.

The Tribunal upheld INZ's decision to decline the residence application, finding no special circumstances that would warrant consideration of an exception to the residence instructions. The Tribunal emphasised the recency of the appellant's last offence and his long history of unlawful residence as key factors in its decision.