The appellant, a 32-year-old Indian citizen, arrived in New Zealand in September 2010, initially on student and work visas. He completed diplomas in Hospitality Management and Management in 2011 and 2014, respectively. His employment history included working at a vape store and a service station. He faced legal issues, including convictions for driving with excess blood alcohol in 2014 and 2015. The appellant formed a relationship with his partner, a New Zealand citizen, in June 2015, and they started living together from about July 2015. They have a daughter born in November 2016.
Prior to Appeal
The appellant's journey through the immigration process involved multiple applications and appeals:
- Work Visa Applications: His first work visa application in July 2016, based on his partnership, was declined due to doubts about the genuineness and stability of the relationship. A second application in February 2017 was also declined, leading to his unlawful status in New Zealand.
- First Appeal to Tribunal - Deportation: In August 2017, he appealed against deportation, which the Tribunal allowed in December 2017, granting him a 12-month work visa.
- Applications for Work and Resident Visa: In May 2019, he applied for both work and resident visas based on his partnership. During the assessment, he provided extensive evidence to support his claims.
Immigration New Zealand Assessment
Immigration New Zealand's assessment raised concerns about the credibility of the appellant's evidence and his partnership's genuineness. They questioned the consistency of information provided, including addresses, living arrangements, and the extent of the couple's shared life. INZ also noted the appellant's criminal history (drink driving convictions) as impacting his character assessment.
Immigration New Zealand Decision
Immigration New Zealand declined the appellant's work visa application in February 2020 and his residence application in January 2022. The primary reasons were doubts about the genuineness and stability of his partnership due to separate residences and limited shared time, along with credibility concerns about the couple's evidence.
The Tribunal found that Immigration New Zealand's decision to decline the application was incorrect. It concluded that INZ had not considered all relevant information and failed to assess the application properly. The Tribunal highlighted several aspects overlooked by INZ, including the couple's consistent intention for temporary separation, their efforts to be together, and the financial and employment constraints impacting their living arrangements.
The Tribunal identified special circumstances related to the couple's separation, which included the appellant's employment commitments and the partner's preference for living in a smaller community close to her family. The Tribunal also considered the impact of the appellant's criminal convictions and his efforts to remain with his family in New Zealand.
The Tribunal cancelled the INZ decision and referred the application back to Immigration New Zealand for reassessment. It directed INZ to consider the totality of the circumstances, including the genuine and compelling reasons for the couple's separation and their efforts to maintain their relationship.