MX (Partnership) [2022] NZIPT 206429

IPT decision 206429 published on the Ministry of Justice website is summarised below for educational purposes.

  • A long-term Samoan resident in New Zealand, initially entering with a false identity, was granted residence despite INZ's decline due to special circumstances.
  • The Tribunal considered her 30-year stay, family ties, and absence of active enforcement against her or her husband's citizenship status.
  • The case highlights the balancing of immigration integrity with individual humanitarian circumstances.

Background

The appellant, a 51-year-old Samoan citizen, arrived in New Zealand in 1991 using a false identity. She married her Fijian-born husband in 1996 using this identity and supported his successful residence application. The couple, now both New Zealand citizens, have three children and two grandchildren. After her passport fraud was discovered in 2000, she was convicted for immigration offenses but remained in New Zealand. Attempts to regularise her status from 2015 to 2017 were unsuccessful.

Prior to Appeal

The appellant's journey to regularise her status involved multiple visa requests under section 61 of the Immigration Act 2009, all declined. In July 2018, she sought Ministerial intervention. Subsequently, in 2019, she was granted a 12-month work visa, opening a pathway to residence. She made a residence application under the Family (Partnership) category in September 2020, supported by her husband.

Immigration New Zealand Assessment

Immigration New Zealand (INZ) raised concerns about the application in March 2021, noting that it likely would be declined due to residence instructions R5.35, which preclude approval if based on a relationship with a New Zealand citizen who originally obtained residency as the partner of the applicant. The appellant's response acknowledged her past fraud but highlighted her longstanding settlement in New Zealand and requested waivers on character and medical grounds.

Immigration New Zealand Decision

INZ declined the application in September 2021. They cited the breach of instruction R5.35 and did not assess other aspects like health or character due to the overriding ineligibility under the residence instructions.

IPT Assessment

The Tribunal acknowledged that the appellant's application correctly could not be approved under INZ's current instructions. However, it considered whether the appellant's special circumstances, including her long-term settlement in New Zealand, family ties, and lack of a pathway to residence, warranted a recommendation for an exception to these instructions.

Special Circumstances

The Tribunal found special circumstances due to the appellant's 30-year residence in New Zealand, strong family nexus, and lack of active steps by INZ to revoke her husband’s citizenship or deport her. It was noted that her diabetes does not negatively impact her day-to-day life and her husband's historic family violence offence was deemed not significant for the case.

IPT Determination

The Tribunal recommended to the Minister of Immigration that the appellant's special circumstances warranted consideration as an exception to instructions under section 188(1)(f) of the Immigration Act 2009. The Minister granted residence, acknowledging her established life, family connections, and the fact that no steps were taken against her or her husband's status despite their knowledge of her immigration offence.

author headshot Michael Yoon
Last modified on 8 January 2024 by
Michael Yoon
Principal Immigration Lawyer
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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