Turner Hopkins Solicitor Mahafrin Variava explores the Character Requirements of Supporting Partners: Policy and Challenges. In the first of a two-part series, she discusses a case where Turner Hopkins represented a client in this area, and suggests that the example is a timely reminder that caution is required when assisting clients under this policy.
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Under E7.45 and R5.95 of INZ’s Operations Manual, the character requirements for partners supporting ‘partnership-based applications’ is discussed. It is stipulated that: the policy applies to any partner who has been convicted of any offence involving domestic violence, or of a sexual nature. The policies also confirm that it applies whether the offence was committed in New Zealand or overseas.
We have not seen much in the way of discussions around E7.45 or R5.95 – which signals caution. The fact that there is little discussion suggests that there are not that many cases. However, these cases are far more common than we think. The need for discussions around these cases stem from two observations. The first, being that these cases are complex and sensitive. The second, being the offences themselves, being “high” on the spectrum of “seriousness”.
A quick search of IPT residence decisions for R5.95, will lead to a finding that the most recent decision was over a year ago in November 2017[1]. Although the Operation’s Manual advises that an Immigration Officer must not automatically decline the application – most applications return refused (after a character waiver assessment). The question then, is why this happens, what are the challenges and what are some considerations going forward.
Case study
A client we represented recently (who for the purposes of this article we will refer to as Mr A), provided a timely reminder that caution is required when tackling cases under this policy.
Mr A was a New Zealand Citizen who lived in the United States for several years. While living in the United States, he committed two offences of a sexual nature against children under the age of 16. For the first offence, he was sentenced to probation. For the second, he received a sentence of 10 years imprisonment.
After serving his sentence, Mr A was deported back to New Zealand. Since his arrival in New Zealand, Mr A changed his name, he obtained meaningful employment, rekindled his relationship with his family and was believed to be in a genuine and stable relationship with the partner he was now supporting for a temporary visa application.
Issues
We faced a few challenges with this case. The first being that the primary applicant had a 14-year-old daughter that was living with her and Mr A – which would explain INZ’s concerns (and rightly so). The second, being that we were given a short extension, and, in this time, it would have difficult to obtain all the Court documentation from the USA. There was also more than one offence of a sexual nature and of course, there was the sensitivity surrounding the case that had to be handled with care.
Our submissions
The information we received from the Courts in the United States was limited and gave us a brief insight into the charges and the sentence. In addition, there was no detailed record of the Judge’s decision rationale.
Our approach, therefore, was to focus on the positives, but also, give INZ an insight into the surrounding circumstances and Mr A’s history. We focused on his remorse, the lack of rehabilitation services offered to him during his incarceration (in comparison to New Zealand), the stigma associated with being a child sex offender; and having his criminal history and details globally accessible through the National Sex Register (USA).
We addressed the progress Mr A had made since his return to New Zealand, which included obtaining meaningful employment, contributing to community initiatives and offering assistance to individuals seeking help, entering a genuine and stable relationship and rekindling his relationship with his family in Aotearoa.
What Immigration New Zealand said
The issues surrounding Mr A’s character triggered E7.45.a and its associated policies. INZ then sent a letter to Mr A seeking further comment regarding his character and his offending. INZ also advised Mr A that he did not meet good character requirements and therefore a waiver of character requirements would be needed.
Despite our thorough submissions, INZ declined the client’s application based on the character of the supporting partner. The character waiver assessment showed that despite the numerous positive steps Mr A had taken, these were not sufficient to overcome INZ’s overriding concerns. Nonetheless, INZ reached this conclusion after examining all factors and considering all relevant information. The bottom line being that it acknowledged the client and the supporting partner were in a genuine and stable relationship, however, the safety of the principal applicant’s daughter – was paramount.
For more information about this case or any immigration matter, please contact the author.
Turner Hopkins Solicitor Mahafrin Variava has specialised in Immigration Law for over three years. She takes great pride in providing a service that transcends beyond cultural and language barriers and attributes this to her own experiences as a migrant facing challenges accessing legal services. Mahafrin primarily acts for individuals and their families but has also advised Government departments and employers on maintaining an immigration compliant workforce and on matters related to refugees and asylum seekers. Outside of work, Mahafrin volunteers at the Community Law Centre and believes in doing what she can to give back to Aotearoa. Contact Mahafrin at mahafrin@turnerhopkins.co.nz or connect via LinkedIn
