- The appellant, a Chilean citizen, was denied a NZ residence visa due to failing character requirements following two driving convictions.
- Immigration New Zealand declined the visa as the appellant did not qualify for a character waiver.
- The appeal focused on her same-sex relationship and experiences in Chile but was unsuccessful as no special circumstances were found.
- The Tribunal upheld INZ's decision, citing the appellant’s knowledge of her limited stay in NZ when she started her relationship.
The appellant, a 33-year-old citizen of Chile, arrived in New Zealand in February 2018 on a scholarship from the Chilean government to study for a graduate diploma. In April 2018, she met her New Zealand-citizen partner and began a relationship in May 2018. The couple started living together in May 2019. The appellant's partner, born in Colombia, entered New Zealand in January 2011 with her family as refugees and is now a New Zealand citizen.
Prior to Appeal
In August 2021, the appellant applied for a resident visa under the Partnership category based on her relationship. She submitted various documents including a form completed by her partner, a timeline of their relationship, letters from friends, travel documents, and bank statements. Initially, the appellant declared no convictions.
Immigration New Zealand Assessment
Immigration New Zealand (INZ) conducted a New Zealand police check on 17 August 2021, revealing two convictions: driving with excess breath alcohol in January 2021 and driving while disqualified in July 2021. INZ raised concerns regarding her meeting the character requirements for a residence visa and the non-disclosure of her convictions.
Immigration New Zealand Decision
On 17 December 2021, INZ declined the appellant's residence application. The decision was based on her failure to meet good character requirements and not being granted a character waiver. Her convictions were considered under clauses A5.25.f and A5.25.h, pertaining to offences committed while holding a temporary visa and offences involving drunk driving, respectively.
The Tribunal evaluated the appeal against INZ’s decision, considering the appellant's history, relationship, and the nature of her convictions. It noted the challenges of living as a lesbian couple in Chile, yet also recognised the improving situation for LGBTQ+ rights there. The Tribunal acknowledged her contribution to New Zealand and the genuine and stable nature of her partnership.
The Tribunal considered the appellant's special circumstances, including her same-sex partnership, experiences as a lesbian in Chile, and her commitment to her partner. However, it concluded these circumstances were not exceptional enough to warrant a recommendation for an exception to the residence instructions. The decision was influenced by the fact that the appellant began her relationship knowing she had no long-term right to remain in New Zealand.
The Tribunal confirmed INZ’s decision as correct, finding that the appellant did not meet the character requirements for a residence class visa. It also determined that there were no special circumstances warranting consideration for an exception to residence instructions under section 188(1)(f) of the Immigration Act 2009.