Residence Appeal No: 14850 [2006] NZRRB 50 (27 February 2006)

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RESIDENCE REVIEW BOARD NEW ZEALAND
AT WELLINGTON	RESIDENCE APPEAL NO: 14850
Before:	M A Malaghan (Member)
Representative for the Appellant:	The appellant represented herself
Date of Decision:	27 February 2006
Category:	Special Policies (Victims of Domestic Violence)
Decision Outcome:	Section 18D(1)(a)

[2] This is an appeal against the decision of the New Zealand Immigration Service (NZIS) declining the application because it was not satisfied the appellant was a person who would be disowned by her family and community if she returned to Fiji, or that she would have no means of independent support or ability to gain such support, as required by policy. The principal issue for the Board is whether the appellant has special circumstances such that a recommendation should be made to the Minister for his consideration of an exception to Government residence policy.

[3] The appellant made an application on 20 October 2003 under the Partnership policy of the Family category.

[4] She provided evidence of her marriage to a New Zealand resident in October 2003.

[5] On 3 August 2004 the appellant and her husband were interviewed by the NZIS to determine if they were living together in a relationship that was genuine and stable. That interview did not identify any particular discrepancies in the accounts given by either the appellant or her husband.

[6] In September 2004 the NZIS received a letter from the appellant's husband withdrawing his sponsorship for the appellant's residence and work permits. He advised that the relationship was abusive and stressful and that he had been unaware of a previous conviction she had had in Fiji.

[7] As a result of this letter the NZIS wrote to the appellant and informed her that her husband had withdrawn his sponsorship. She was given an opportunity to respond to this. She did so in a letter dated in September 2004. She explained the circumstances of her relationship with her husband and the fact that they had reconciled and agreed to attend marriage counselling in an effort to ensure their marriage lasted, especially as they were expecting a baby.

[8] The appellant wrote another letter to the NZIS in September 2004. She included copies of a number of emails between her and her husband which indicated that the couple had reconciled and that the appellant was pregnant.

[9] In December 2004 the appellant was physically assaulted by her husband. Her general practitioner referred her to the Accident Compensation Corporation (ACC) noting her injury that was caused when she was assaulted and punched on the right side of her jaw. She suffered a cut lip and gum and injury to her lower back.

[10] In a letter dated in December 2004 the appellant explained to the NZIS the circumstances surrounding the assault. The couple argued after the appellant's husband failed to pick her up earlier in the evening as arranged. He grabbed her and punched her in the face. She called the police. After the police took a statement they advised her to leave the premises where she lived with her husband. The appellant's husband was charged with assault and released on non-association bail.

[11] A letter dated in December 2004 confirmed that ACC had agreed to cover the appellant's injury incurred earlier that month.

[12] A women's refuge wrote to the NZIS in January 2005 to confirm it was supporting the appellant following her husband's assault. A police report with a summary of facts was attached to that letter.

[13] On 14 February 2005 the NZIS wrote to the appellant noting various documents it had received relating to the relationship between the appellant and her husband and concluding that the documents painted a picture of a rather volatile relationship indicating that it was not stable or being maintained on a long-term and exclusive basis. It also noted that although the appellant's husband had withdrawn his sponsorship in September, a later letter from the appellant indicated that the couple wanted to continue their marriage. Despite this, the NZIS had not received notification from the appellant's husband that he wished to continue to support her application. The appellant was invited to comment.

[14] In February 2005 the appellant retained the services of a representative who requested her application for residence under the Partnership policy be converted to the Victims of Domestic Violence policy. The representative claimed the appellant met the criteria of that policy and as evidence provided a police report of the domestic violence and a letter from the women's refuge.

[15] On 18 March 2005 the NZIS wrote to the appellant regarding her application under the Domestic Violence category. Her attention was drawn to the requirement to provide documentary evidence of her inability to return to her home country and the relevant policy provisions were set out. She was advised that the comments alone were insufficient to address the policy requirement that if she returned to her home country she would be disowned by her family and community as a result of her marriage break up and would have no means of independent support.

[16] In April 2005 the appellant wrote to the NZIS requesting an update on her application to renew her work permit, which she made in January 2005. The appellant noted that her initial application was made on 23 October 2003 and since then had been renewed once in August 2004 and expired at the end of January 2005.

[17] The appellant instructed a new representative who advised that although the appellant did not have a work permit, she was unable to leave New Zealand as she was eight months pregnant. Furthermore, her family circumstances in Fiji were such that her parents were not prepared to take her in.

[18] An application was made under section 35A of the Immigration Act 1987, for the grant of a work permit under the Special Work Permit policy for Domestic Violence. This was granted in August 2005 for one year.

[19] On 19 April 2005 the NZIS interviewed the appellant in relation to her application for residence under Victims of Domestic Violence. She advised that her baby was due in May 2005 and that there was a possible health problem with one of the baby's kidneys. It was noted that she was currently living with her brother and his family and that she had uncles and aunts also living in New Zealand. While she was in touch with her family in Fiji she had not told her father about her current situation because of his frail health. He had recently suffered two heart attacks. Her education and employment history were set out.

[20] The domestic violence she had suffered was recorded in some detail. She claimed that after two months of marriage her husband verbally abused her and on occasions chased her out of the house. He started an affair and according to the appellant was "going with prostitutes". At his insistence she had had an abortion. It was noted that the appellant had reported the abuse to the police, her doctor, and a women's refuge. She had received counselling, medical treatment and physiotherapy. The appellant was not sure if she and her husband would reconcile although she would like to have him back and hoped having a baby would change him. As to returning to her home country, she stated that her sister was the only person in her home who was aware of her situation and that she would be a burden on the family if she returned with a child. Her family was Muslim and father was a regular attender at the mosque. The appellant also believed that she would have great difficulty finding employment in her home country.

[21] The appellant's mother wrote to the NZIS in April 2005. She had not been aware of the difficulties the appellant was having until January 2005. Her husband had not been informed because it was considered that the stress could bring on another heart attack. She stated that both she and her husband were elderly and not in good health and did not receive a pension. They were supported by their younger daughter. As Muslims the appellant would bring shame on their family if she returned with a baby and no father. Such a situation was not acceptable in their culture. She did not know how the appellant would be able to support herself if she returned to Fiji with her baby. In New Zealand her son, the appellant's brother, was in a position to take care of the appellant.

[22] The appellant's brother confirmed his support and that he would take care of, and responsibility for, the appellant.

[23] In May 2005 the appellant's representative provided two articles: "Rule by the DANDA: Domestic Violence among Indo-Fijians" by Shireen Lateef of the University of Melbourne - Pacific Studies, Vol 13, No. 3 - July 1990; and "Shifting Boundaries in Marriage and Divorce in Muslim Communities", to support the claim that the appellant could not return to Fiji.

[24] Later that month the NZIS wrote to the appellant to give her an opportunity to comment on a number of issues it considered could be prejudicial to her application being approved. The appellant responded in June 2005. She referred to her mother's letter and the fact that her father was not aware of her situation, and that her mother was not prepared to accept her back in the family because of her father's medical condition and the embarrassment she would bring on the family. She provided evidence that her son was born in May 2005 and had some health issues. In particular, he had a dilated kidney that needed to be monitored and a testes which required an operation in six months time. She advised that her husband had changed his mind and now wanted to live with her and her son and to support her son. She attached a brief letter of support from her husband dated in June 2005.

[25] As to other issues raised by the NZIS, the appellant advised that the aunt and uncle, with whom she had previously lived when she was working in Fiji, had migrated to America. Although she was on good terms with her previous employer in Fiji, she could not get her job back as the position had been filled by a more experienced woman. As to maintenance from her husband, she claimed it was difficult to enforce maintenance payments from Fiji. The only support she said she would be entitled to in Fiji was $20. Her son was only two weeks old and she did not want him to be separated from his father. If she had to return to Fiji she did not know when her son would be able to see his father. She advised that she was on maternity leave but would return to her job in New Zealand as a personal assistant/sales manager. She had been selected for that position because of her previous experience and qualifications.

[26] In its letter of 13 June 2005, the NZIS set out the decision to decline the application (verbatim):

"We are writing with regard to your application for residence which was accepted for consideration on 20 October, 2003.

We regret to advise that your application for residence in New Zealand under the Domestic Violence category, cannot be approved.

We have assessed your application and we must inform you that for the reasons set out below we cannot approve residence to you.

You originally lodged an application for residence based on your relationship with [the appellant's husband] but later asked for the application to be considered under the Domestic Violence category.

I have considered all the information presented with your application, during our interview on 19 April 2005 and in subsequent correspondence. On 23 May 2005 I wrote to you outlining information that I had obtained from various sources that was contrary to the information you had presented regarding your inability to return to your home country.

On 8 June 2005 you wrote to me expressing your views on the findings in my letter of 23 May 2005. I have taken all your comments into consideration and can appreciate why you would prefer to remain in New Zealand rather than return to Fiji.

S4.5.d. requires that a person would be "disowned by their family and community if they returned to their home country". I have given weight to the letter from your mother expressing her concern about you returning home and her conclusion that you would be better off in New Zealand. Whilst it may not be convenient for your family for you to return there is no evidence that you would be disowned by your family whom you agree you are in regular contact with. Fiji now has Women's refuges in three different towns and the Government is taking active steps to protect and encourage women in society. Therefore support is available outside your family network, should it be required.

S4.5.e. requires that a person "if they returned to their home country, would have no means of independent support or ability to gain that independent support". Your employment record from Fiji shows a steady progression both in terms of the positions you held and salary paid. You are suitably qualified for the work previously undertaken and there are other means of financial support open to you, e.g. maintenance from your husband.

Whilst giving due consideration to all your comments and circumstances I am not satisfied that you meet the criteria in S4.5.d. and e.

As you do not meet the minimum policy requirements under the Family category, we are unable to approve your application.

Your application has also been carefully considered under all of the other residence categories. On the basis of the information given in your application, however, you do not meet the requirements for any of them. Your application for residence in New Zealand is therefore regretfully declined."

"Where a visa officer or immigration officer has refused to grant any application for a residence visa or a residence permit, being an application lodged on or after the date of commencement of the Immigration Amendment Act 1991, the applicant may appeal against that refusal to the Residence Review Board on the grounds that -

(a) The refusal was not correct in terms of the Government residence policy applicable at the time the application for the visa or permit was made; or

(b) The special circumstances of the appellant are such that an exception to that Government residence policy should be considered."

[28] The appellant appeals on the ground that she has special circumstances such that an exception to policy should be considered.

[29] The appellant provided submissions with her application and a copy of her son's birth certificate.

[30] Further information, requested by the RRB, was received from the appellant in January, including:

‹› Copies of email messages from the appellant, or relating to her husband dated variously in 2005.

‹› An article about Fiji, reputed to be from the New Zealand Herald, dated 9 January 2006.

‹› Parenting Orders, Family Court, dated in October 2005 and related documentation giving the appellant full-time, day to day care of her son.

‹› Various letters from a women's refuge dated between September and December 2005 relating to court proceedings against the appellant's husband.

[31] The Board has been provided with the NZIS file in relation to the appellant and has also considered her submissions and documents provided on appeal. An assessment as to whether the NZIS decision to decline the appellant's application was correct in terms of the applicable Government residence policy is set out below. This is followed by consideration as to whether the appellant's special circumstances warrant consideration of an exception to that policy.

[32] The application was made on 20 October 2003 and the relevant policy criteria are those in Government residence policy as at that time.

[33] While there was no appeal on the ground that the refusal was incorrect in terms of policy, the Board must assess the NZIS decision against policy. The policy applicable to the appellant's application under this category of Government residence policy, as at the date of her application, can be found in S4.5 (effective 29 September 2003). This provides:

i who are holding a work permit granted under WI5.30 Special work permits for victims of domestic violence, or

iii who have been living together in an established relationship with a New Zealand citizen or resident, and

b. had intended to seek residence in New Zealand on the basis of that marriage or relationship, and

c. that marriage or relationship has ended due to domestic violence by the New Zealand citizen or resident, and

d. has been, or would be, if they returned to their home country, disowned by their family and community as a result of their marriage to or relationship with the New Zealand citizen or resident which has ended, and

e. if they returned to their home country, would have no means of independent support (e.g.state financial support) or ability to gain that independent support (e.g through employment or marriage) for whatever reason, and

f. meet health and character requirements policy (see A4 and A5); may be granted a residence permit.

Note: Applicants for residence under this policy are exempt from the requirement to pay the Settlement information fee (see R5.85).

i a relevant New Zealand conviction of the New Zealand citizen or resident spouse or partner or intended spouse of a domestic violence offence against the principal applicant* or a dependent child* of the principal applicant; or

ii a complaint of domestic violence against the principal applicant* or a dependent child* investigated by the New Zealand Police where the New Zealand Police are satisfied that domestic violence has occurred; and

b. referral to the New Zealand Immigration Service by a Child, Youth and Family approved Refuge Organisation.

Note: For the purpose of this policy, 'domestic violence' has the meaning set out in s.3 of the Domestic Violence Act 1995.

Applicants who are married to a New Zealand citizen or resident must provide the original or certified copy of their marriage certificate.

a. Principal applicants* must provide evidence in the form of documents and/or information provided at an interview with an immigration officer, that they:

i have been, or would be, if they returned to their home country, disowned by their family and community as a result of their marriage to or relationship with the New Zealand citizen or resident which has ended, and

ii if they returned to their home country, would have no means of independent support (e.g. state financial support) or ability to gain that independent support (e.g. through employment or marriage) for whatever reason.

b. The NZIS may refer to any relevant information when determining the ability of the applicant to return to their home country."

[34] The NZIS declined the appellant's application as it was not satisfied that she would be disowned by the community, or by her family, with whom she was in regular contact. It was also not satisfied that she would have no means or ability to gain independent support given that she had a good employment record in Fiji and she could claim maintenance from her husband.

[35] Apart from these two issues the appellant otherwise met the criteria of the Special Policies (Victims of Domestic Violence) category. She provided evidence that she had been married to a New Zealand resident and had applied for residence in New Zealand on the basis of that marriage. That marriage had ended following a domestic violence incident. The appellant's husband was charged with assault and the police were satisfied that domestic violence had occurred. A women's refuge had referred her case to the NZIS.

[36] The appellant argued that she was unable to return to Fiji because her family would not, and indeed could not, support her. Her evidence of this was a letter from her mother, who, while acknowledging that she was aware of the appellant's domestic situation, advised that she was unable to help the appellant and she did not have the financial resources to do so. She made it clear that neither she nor her husband were in good health and could not cope with any added stress. Her husband who was frail, having suffered two heart attacks, had not been informed of the appellant circumstances for fear that he might suffer another heart attack. She was also concerned about the fact that the family was from a conservative rural area and it was simply not acceptable for the appellant to return to Fiji with a child and no husband.

[37] The appellant was advised of the evidential provisions of policy and that comments alone were insufficient to meet the policy requirements. Although the NZIS considered the submissions made by the appellant and her mother, there was no independent evidence of her parents' alleged poor health. Apart from these submissions the appellant has not provided any evidence or further information to support this claim.

[38] The Board is satisfied that the appellant does have contact with her family in Fiji, and while they may be embarrassed, even ashamed of the situation she now finds herself in, the evidence does not establish that they would go so far as to disown her.

[39] As to whether the appellant would have means or ability to gain independent support, the Board has considered her education, qualifications and good employment record and agrees with the NZIS that her employment opportunities in Fiji are reasonable.

[40] Although the appellant claimed that it would be difficult for her to enforce a maintenance order against her husband if she was not in New Zealand, the Board agrees with the NZIS that there are legal avenues available through which maintenance orders can be made and if necessary enforced. In any event, this would not be of much assistance as in New Zealand the amount is only $13.00 per week and her husband is not even paying that.

[41] The Board is aware that efforts are being made by the government in Fiji to protect women against domestic violence, abuse and discrimination. The appellant provided two articles to support her claim that she would be disowned by her family and community if she returned to her home country. She then had the opportunity to comment on NZIS research which indicated that discrimination in Fiji was not as bad as suggested by the appellant. She was also referred to the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), which Fiji had acceded to in 1995. The appellant did not provide any further documentary evidence to counter this.

[42] Although the appellant has only appealed on the ground that she has special circumstances her appeal submissions relate to her inability to find suitable work in Fiji to support herself and child and to her concerns about being ignored by her family in Fiji if she has to return. However, she provided no new information or evidence on appeal to support these claims.

[43] Accordingly, the appellant has failed to establish that she would have no means of independent support and no ability to gain such support.

[44] The Board finds that the NZIS decision to decline this application was correct.

[45] The Board has received information on appeal pursuant to section 18F(2)(b) of the Act. The Board is satisfied that the information the appellant has now provided would not be material to the decision made by the NZIS, however, it is relevant and will be taken into account by the Board pursuant to section 18D(1)(f) of the Act.

[46] The Board has power pursuant to section 18D(1)(f) of the Act to find, where it agrees with the decision of the NZIS, that there are special circumstances of an appellant that warrant consideration by the Minister of Immigration of an exception to policy.

[47] Whether an appellant has special circumstances will depend on the particular facts of each case. The Board balances relevant positive and negative factors in each case to determine whether the appellant's circumstances, when considered cumulatively, are special.

[48] The appellant's application for residence was first made under the Family Partnership policy in October 2003. This was converted to the Victim of Domestic Violence policy in February 2005. The Board has found that this application was correctly declined by the NZIS as the evidence presented did not show that the appellant would be disowned by her family and community or that she would have no means or ability to gain independent support in her home country.

[49] The appellant is from a Fiji Indian family who are practising Muslims. She is 33 years of age. She came to New Zealand in October 2003 and entered into a marriage with a New Zealand resident, who is also a Fiji Indian. The couple have one child, who was born in May 2005, and her husband has two children from an earlier marriage.

[50] It is clear that the appellant's relationship with her husband had been volatile and within months of the marriage there were periods of separation, when either the appellant voluntarily left her husband or was ordered out of the house by him. Matters came to a head in December 2004 when the appellant's husband assaulted her. The appellant's husband has subsequently be convicted and sentenced for assault. A final protection order was made by the Family Court in August 2005 and a Parenting Order grants the appellant the full-time, day to day care of her son.

[51] Following her son's birth, there was some suggestion that the appellant and her husband might reconcile for the sake of their child and their marriage. However, on appeal it is clear that reconciliation is not an option. Although the appellant tried to give her husband the opportunity to be involved with his son, he has shown no interest in doing so. The last contact he had with the appellant was in December to advise her he was leaving New Zealand. NZIS records indicate that he returned from Fiji after one month.

[52] Shortly after the birth of her son the appellant advised that he had a dilated kidney and a testes that might require an operation. There has been no further mention of these health issues and hopefully they have been resolved. It is not alleged that living in Fiji would jeopardise his health. In any event the Board does not find that these health issues amount to special circumstances.

[53] Despite the appellant's wish that her husband maintain a relationship with his son in New Zealand, this has not happened. The Board is mindful of the rights of New Zealand-born children which have been clearly addressed both in domestic law in Tavita v Minister of Immigration [1994] 2 NZLR 257 and in international law which New Zealand respects in the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. However, in any situation, while the rights of the child are among the primary matters to be assessed, they have never been the overriding consideration in an assessment.

[54] In this case the child's rightful place is with his mother, the appellant, who has exclusive responsibility for the child's day to day living arrangements, wherever she may lawfully live. NZIS records indicate that the appellant's husband is a Fijian citizen and does travel reasonably regularly to Fiji. Therefore, it could be possible for him to establish a relationship with his son in Fiji, should the parties so agree, or for the appellant and/or her son when older, to visit his father in New Zealand. The Board is satisfied that as her husband has, to date, shown no interest in having a relationship with his son, remaining in New Zealand, on the speculative basis that one day he may show an interest in his son, is not something that can be considered special.

[55] In New Zealand the appellant and her son live with her only brother and his family. Not only is he prepared to support her and her son, but her parents in Fiji have also stated that he is in a position to provide that support where as they are not.

[56] While it is clear that the appellant's relationship with her brother is close and supportive the Board must also consider the appellant's relationship with her family in Fiji with whom she has kept in contact during her time in New Zealand. Her parents are reported to be elderly and in poor health. Her mother is a diabetic and her father an invalid who has suffered two heart attacks. The family have chosen not to inform him of the appellant's circumstances for fear that it might provoke another heart attack. The appellant's younger and only sister is the breadwinner in the family. The family live in a conservative rural area and are practising Muslims, and it is said that it would be bring shame on them and their community for the appellant to return to live with them as a solo mother, given the circumstances that ended her marriage. However, although the Board acknowledges these facts, it is not established that the appellant would be disowned by her family, if she returned to her home country. The Board finds that while the appellant's family situation maybe strained and embarrassing for the family, that situation does not make the appellant's circumstances special. It is likely that once back in Fiji, normal relationships will be established. But even if they are not, this would not amount to special circumstances

[57] The Board has also considered the ability of the appellant to support herself in Fiji. The quality of the submissions that the appellant has made through the processing of her application and on appeal establish that the appellant is an articulate and fluent English speaker and given her employment history, even in difficult employment times, has found employment suitable to her qualifications and experience. She has held a number of responsible jobs as a personal assistant to senior company executives. However, she states that it would not be easy now for her to find suitable employment in Fiji in order to maintain herself and young son as jobs are scarce, there are more qualified young people in the market and there is racial discrimination. It is understandable that the appellant would be apprehensive about her chances of employment in Fiji, however, the Board is satisfied that given her qualifications and experience, she would be able to find employment.

[58] The Board is also mindful of the fact that the appellant has had an employer-related conviction in Fiji. She pleaded guilty to mishandling funds of her employer, at a time when her father was sick. This minor offence occurred nearly ten years ago. The appellant repaid the money before appearing in Court and she was bound over to be of good behaviour for twelve months. Her employment was not terminated as a result of the conviction and it has not harmed her employment prospects in New Zealand. The NZIS accepted her explanation and found she was of good character. While this is a factor that could weigh against her future employment opportunities in Fiji, it must be balanced against her good employment history and work experience.

[59] The appellant has been advised she is entitled to family assistance from her husband. This was calculated at $13 per week, however, this has not been paid as her husband is not employed. According to the appellant, her husband left his job so that he could get a benefit and not have to pay for his son. Hence, while more difficult to enforce in Fiji, this modest sum and the husband's unwillingness to pay, means it is of little benefit to the appellant. In the meantime, it appears that the appellant has been working as a personal assistant although she has not advised whether this is full or part-time work, or what her income is. She was able to secure this position on the quality of her skills and experience. Her current work permit is not due to expire until August 2006. In Fiji the appellant has advised that she would be entitled to $20 a week which presumably is some form of family support.

[60] The appellant also has a brother in New Zealand who has provided financial support here and may well be able to provide some assistance in Fiji.

[61] The Board finds that the appellant will be able to support herself in Fiji, and while she may have greater prospects and more state support here, her circumstances in Fiji will not be such to make her circumstances special.

[62] The Board has considered the appellant's circumstances but on balance does not consider they are such as to warrant a recommendation to the Minister that the appellant's case be considered as an exception to Government residence policy.

[63] This appeal is determined pursuant to section 18D(1)(a) of the Immigration Act 1987. The Board confirms the decision of the NZIS to decline the appellant's application for residence as correct in terms of the applicable Government residence policy. The Board does not consider that special circumstances which would warrant a recommendation to the Minister of Immigration under section 18D(1)(f) of the Act exist in this case.

New Zealand Residence Review Board

Residence Appeal No: 14850 [2006] NZRRB 50 (27 February 2006)