Residence Appeal No: 15402 [2007] NZRRB 299 (29 August 2007)

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RESIDENCE REVIEW BOARD NEW ZEALAND
AT WELLINGTON	RESIDENCE APPEAL NO: 15402
Before:	E M Riddiford (Member)
Representative for the Appellant:	Indopacific Education Services
Date of Decision:	29 August 2007
Category:	Family (Partnership)
Decision Outcome:	Section 18D(1)(a)

[1] The appellant is a married man from India aged in his mid-thirties. His application was supported and sponsored by his New Zealand-citizen spouse.

[2] This is an appeal against the decision of Immigration New Zealand (INZ) declining the application because it was not satisfied the appellant and sponsor had been living together for 12 months or more in a genuine and stable partnership, or that the partnership was genuine and stable.

[3] The issue for the Board on appeal is whether INZ' decline decision was correct and if so, whether the appellant has special circumstances that warrant a recommendation to the Minister of Immigration for consideration as an exception to Government residence policy requirements.

[4] The appellant made his application on 27 October 2003 soon after his return to India from New Zealand.

1. The couple's marriage certificate. They married in New Zealand in November 2002.

2. Birth certificate for the couple's child, who was born in New Zealand in May 2003.

3. A letter, dated 17 December 2002, for the appellant's landlord in respect of premises situated at A Street, B City. The appellant's tenancy commenced on 14 November 2002 ("address 1").

4. The couple's tenancy agreement for premises at B Street, B City, dated 12 May 2003 ("address 2"). The tenancy itself commenced the following day.

5. An undated ANZ Bank printout for the couple's joint account, showing an available balance of $1,600.

[6] On 7 November 2003 INZ wrote to the appellant for additional evidence, examples of which were listed in the letter, in terms of identified policy requirements. The letter also explained why the evidence was required, namely in order to establish the following: that the couple were living together, that their partnership was genuine and stable, that they were committed to each other emotionally and exclusively, and were financially interdependent.

[7] On 18 November 2003 INZ received an undated letter from the sponsor, who at the time was visiting India with the couple's child. She asked INZ for an appointment for the couple to see INZ as soon as possible. She was due to have an operation check-up in New Zealand on 26 November 2003, and she would love her husband and the father of her daughter to be there.

[8] After no action by INZ for nearly a year, it wrote to the appellant on 4 November 2004 and advised that INZ was currently not satisfied with the evidence on file. It requested further evidence that his relationship with the sponsor was genuine and stable. The appellant was asked to provide evidence such as: photographs of the couple together, and evidence of their communication with each other, such as cards, letters, telephone bills and text records. The appellant was also invited to produce any other evidence of his relationship.

[9] The letter referred to a copy of policy in F2.20.15 that INZ had enclosed, dealing with the types of evidence that could be provided of a couple living together in a genuine and stable partnership.

[10] On 22 November 2004 INZ received notification that the appellant had instructed a representative in India. After INZ agreed to an extension of time, INZ received a letter from the appellant, undated, on 25 January 2005. The appellant confirmed that his sponsor and daughter had visited India in 2003 to see him and meet his family.

[11] The appellant's letter then listed the documents he was enclosing to show his relationship was genuine and stable. These included:

1. Photograph albums of the couple and their child in New Zealand and India (photocopies of over 50 photographs are on the file).

2. Passports for the appellant's sponsor and daughter, each showing six-month Indian visas issued on 28 October 2003; and flight booking details, dated 18 December 2003, for their travel back to New Zealand from India.

3. Two cards to the appellant from the spouse dated in December 2004, together with two envelopes sent by the sponsor to India, also dated in December 2004; an envelope addressed jointly to the couple in New Zealand at address 1; an envelope addressed separately to the appellant, and another addressed to the sponsor, both at address 1. The postmarks all appear to be dated in December 2002 and January 2003.

4. A consignment note addressed to the appellant in India from the sponsor in New Zealand sent on 14 December 2004.

[12] INZ interviewed the appellant on 16 February 2005. The interview was conducted in both English and Hindi and the interview transcript on the file is signed by the appellant at the bottom of each page.

[13] There is no activity evident on the file after the interview until 17 May 2005, when INZ received a letter sent by facsimile from the appellant. He complained about INZ' delay in processing the appellant's application lodged more than 18 months previously. He was presently undergoing mental stress and anxiety from being away from his daughter.

[14] In addition, the appellant expressed disappointment at what he described as INZ' casual approach to dealing with his application. In this respect, he noted that he had been allocated three separate INZ officers, he had attended an interview, provided documents as requested, and had been assured at his interview that a decision would not be long. The appellant hoped his request would be taken seriously and that his case would be processed on a priority basis without any further delays.

[15] On 17 November 2005 INZ sent a request through to New Zealand for an INZ risk investigator to visit the three addresses the appellant had mentioned during his interview and to interview the sponsor. This was to establish the following: if the appellant's marriage was genuine, whether the sponsor's family was aware of the marriage, and if the appellant and sponsor had been living together or not.

[16] The INZ Relationship Check report, dated 6 March 2006, confirmed that the INZ risk investigator had visited all three addresses, and had interviewed the sponsor at her parents' address where she was living. The risk investigator concluded in his report that the sponsor was truthful in her replies.

[17] Attached to the report was the interview transcript, dated 27 February 2006. The sponsor had signed the bottom of each page. There was also another photograph taken of the appellant and sponsor together, but it was not dated or otherwise identified.

[18] On 27 March 2006 INZ wrote to the appellant and outlined concerns arising from INZ' site visits and interviews about whether the appellant and sponsor were in a genuine and stable relationship.

[19] First, the letter noted the site visits by the INZ risk investigator to the addresses where the couple had claimed to have lived together. Neighbours spoken to had lived in that particular area for several years but no-one was able to identify the appellant and his sponsor. INZ was therefore unable to establish the appellant's and sponsor's interview claims to have been living together in New Zealand.

[20] Second, during the appellant's and sponsor's interviews, both had told INZ that the only reason they married was because of the child. It therefore appeared to INZ that the marriage took place only as an obligation.

[21] Third, the sponsor had mentioned in her interview that the appellant had stopped all financial support for her and their child. There was therefore no element of interdependence in their relationship.

[22] Finally, the sponsor had told INZ that if the application was not successful she would not go back to India, and would carry on with her life in New Zealand. INZ was therefore concerned that there was no commitment to maintain the relationship on a long-term and exclusive basis.

[23] The letter advised that when these concerns were added to the lack of evidence of the appellant's ongoing relationship with the sponsor, in the form of telephone bills, letters, email exchanges and such like, the INZ officer did not believe the appellant and his sponsor were in a genuine and stable relationship.

[24] Consequently, in terms of the policy extracts set out in the letter, INZ advised that it was not satisfied the appellant met requirements in F2.5.a of the Family (Partnership) category.

[25] On 11 April 2006 INZ received the appellant's undated letter. He again expressed disappointment with INZ' approach and noted it was now more than 29 months since he had made his application. The appellant responded point-by-point to each of INZ' concerns, as follows.

[26] As to whether the neighbours could identify the appellant and his sponsor, the appellant challenged whether anyone in New Zealand knew their neighbours, given the fast pace of life.

[27] In respect of INZ' concern that the couple married out of obligation, the appellant denied that anyone had forced the couple to marry; they had decided to marry and live together because they wanted to, and so they could have a bright future for their child. If they felt obliged to marry, then the sponsor would never have visited him in India to meet with his family and stay with them, and nor would they have sent cards and letters to each other.

[28] The appellant disputed the sponsor's claim that he had ceased financial support. He had sent the sponsor things she required from time to time. Whenever she required money he asked his friends to pay her, after which he reimbursed his friends' families in India.

[29] Finally, in respect of the sponsor's apparent refusal to return to India if the application was not successful, the appellant wrote that he was sure the sponsor had said this, and that in a way she was right. If he were in her place he would have said the same. He submitted that when they got married his commitment to the sponsor was to stay in New Zealand and take care of her and his daughter. They never thought of settling in India. Therefore, at the interview the sponsor was not even prepared to "answer this mentally". Again, it all came down to them living together in New Zealand, not in India.

[30] In response to INZ' concerns about an ongoing relationship, the appellant offered for INZ to review all his text messages from the sponsor in New Zealand, of which his mobile phone held a record.

[31] Most of the documents, photographs and cards which the appellant's letter listed as enclosed had been previously provided. New documents were: a copy of the appellant's tenancy agreement which commenced on 12 November 2002, in respect of the premises at address 1; and a courier receipt from TNT in respect of an unidentified package sent from India, which the sponsor uplifted on 13 December 2005.

[32] The couple were separately interviewed by the same INZ officer (the sponsor by telephone) on 11 July 2006. Interview transcripts, dated 10 August 2006, are on the file. Attached to the appellant's signed interview report is additional evidence he brought to the interview of the couple's communication. These consisted of eight telephone receipts for telephone calls to a New Zealand number over a three-month period in 2006, and another TNT delivery receipt, dated 10 April 2006.

[33] On 10 August 2006 INZ wrote an 11-page letter to the appellant requesting comment and additional documents. It advised that after assessment, the INZ officer was not yet satisfied that the appellant met all the criteria of the Family (Partnership) category necessary for his application to be approved. INZ' concerns arose from its interviews with the appellant and his sponsor, and the lack of documents to establish the partnership was genuine and stable.

[34] The letter set out the Family (Partnership) category requirements in F2.5; the definition of "genuine and stable partnership" in F2.10.1; and the factors listed in F2.20.b relating to whether the couple were living together in a genuine and stable partnership. In terms of that policy, the letter advised that INZ' concerns related to: whether the partnership was stable, namely likely to endure; the existence, nature and extent of the parties' common residence; their degree of commitment to a shared life; whether there was common care and support of the child of the partnership; and the couple's performance of common household duties.

[35] The letter then detailed nine areas of concern arising from interview discrepancies. In each case, verbatim extracts from the interviews were set out and emphasis given to the discrepancies by underlining them, and sometimes also bolding them.

[36] The discrepancies related to: how often the couple saw each other each week, prior to the marriage; whether or not the appellant was working prior to the marriage; how long the sponsor stayed in Auckland with the couple's daughter prior to the appellant's departure for India, and whether or not the appellant had stayed with the sponsor in Auckland for a weekend, or a day, prior to his departure; whether the child was born by caesarean or was a normal delivery; the appellant's lack of knowledge about the sponsor's serious medical problem after the child's birth; when and how often the appellant had visited the sponsor during the two weeks she was unconscious following the birth; which other cities the couple had visited together in New Zealand; how often the couple cooked at home or had takeaways; and where and with whom the sponsor had stayed in India.

[37] The letter went on to describe three additional discrepancies. They related to: which (if any) friends had accompanied whom to the bar, where the couple claimed they first met; which establishments the couple and their wedding party had visited after the marriage ceremony; and whether or not the couple's daughter spoke to the appellant on the telephone, during his calls to the sponsor.

[38] The INZ letter then advised that various of the sponsor's statements during her interviews had led INZ to believe that she had a "very minimal" degree of commitment to lead a shared life. On 27 February 2006, she "categorically informed" the INZ risk investigator that if the application was declined she would not come to India to live with him. During the sponsor's telephone interview on 11 July 2006 she had also made a series of statements.

[39] The spouse's concerning comments were emphasised in the letter as before, surrounded by adjoining text, which has been omitted from the verbatim extracts which follow:

"But I cannot go on like this ... but I cannot wait for him forever - I have to move on.";

"If I knew that he had to go back to India, I would not have married him ... I have to fight this for my girl - she needs him. She needs both her parents.";

"If you just keep interviewing me and don't let him come here, I will have to look for someone who will be here with me and my daughter. ... I will not waste much more time -she wants a father.";

"I am not going to wait for another few years for immigration to approve this application - I will look for someone else - someone who will be in NZ with my daughter";

[40] Next, the letter advised that the sponsor had informed the INZ officer during the interview that she had never sent the appellant an email, letter or gift in the past two and a half years. In addition, the appellant and the spouse had been living separately since 24 December 2003. Yet, there was no evidence on file to suggest that the sponsor had any compelling reasons, such as occupational commitments, to be away from the appellant. The fact the sponsor had never initiated any communication with the appellant, and had not made many efforts to be with the appellant in the past two-and-a-half years, reflected her lack of emotional commitment to the relationship.

[41] The letter also expressed INZ' belief that the appellant's level of commitment to lead a shared life with the sponsor was also minimal. INZ' concerns specifically related to: the appellant's failure to take the sponsor for a medical check-up during her entire pregnancy; his lack of awareness of the details of the sponsor's medical complications after she gave birth; and his claim that the sponsor recognised him a day after she gave birth, whereas the sponsor stated she was unconscious for two weeks after her surgery; the fact the appellant never took his daughter for her immunisation and medical check-ups; their failure to attend any parenting classes before the baby was born; the sponsor's claim that the appellant did not support her and the baby financially, and the lack of evidence to show the sponsor supported the appellant financially. This indicated there was no financial interdependence on each other.

[42] The letter advised that the above factors led the INZ officer to believe that the appellant and his sponsor lacked an intention to maintain this relationship on a long-term and exclusive basis. In addition, when the above information was considered together, it seemed that the appellant's relationship with the sponsor was perhaps not likely to endure.

[43] In terms of F2.20.15 (again set out) the letter also asked the appellant to submit further "verifiable documentary evidence" to prove: public recognition of the partnership; evidence of the parties' emotional and exclusive commitment to each other; evidence of financial interdependence and joint ownership of assets; and any further evidence of the couple's relationship.

[44] The appellant's response in his representative's email sent to INZ on 14 September 2006 responded point by point to each of INZ' concerns. There was no new supporting evidence.

[45] In its letter of 13 November 2006, which is over 16 pages long, INZ set out the decision to decline the application. Because of space constraints, what follows is a substantially edited version.

"I am writing in relation to your application for a residence visa which was lodged on 27 October, 2003.

We have assessed your application and we must inform you that for the reasons set out below we cannot approve residence to you on the basis of your relationship to a New Zealand resident or citizen.

Please find below, my assessment of your application and your response to our concerns, against the above policy:

a. A partnership is genuine and stable if a visa or immigration officer is satisfied that it:

b. Factors that have a bearing on whether two people are living together in a partnership that is genuine and stable* include but are not limited to:

vii children of the partnership, including the common care and support of such children by the parties;

During the course of processing the application we conducted interviews with you and your sponsor. An investigation officer met your wife in NZ and obtained signed statements from her. Various discrepancies/concerns arose as a result of these verifications and interviews. I have pasted below relevant excepts of the interview with you and [the sponsor]. These responses highlight the various discrepancies between the information given by both of you:

My assessment of your response -Your response is clearly contradictory to what [the sponsor] had said. [the sponsor] had said that if the applicant is working, they would only meet in the evening or night. She did not state that in a busy week they would only meet thee to four times.

[The sponsor] was not sure if you were working. She was also not sure of what you did (working in an Orchard or panel beating). However, during the interview, you assured me that [the sponsor] knew that you were working in an orchard. In your response to my PPI, you claimed that [the sponsor] never stated that you did panel beating- this is not correct. Though she did mention that you were perhaps working in an orchard, she was not at all sure about it. She was not even sure if you were working and this is contradictory to what you had claimed in your interview.

· Discrepancy about the duration of [the sponsor] and [the couple's child]'s stay in Auckland -

[The sponsor] informed me that after moving out of [B Town], she and her daughter lived with her aunt [AA] for 4 months. However, you informed me that

Approx 1 week or 10 days before you left for India, [the sponsor], her sister and [the couple's child] went to Auckland to be with [the sponsor's half-sister]'s mother. In your response, you have not addressed this discrepancy.

[The sponsor] informed me that you spent one week with her and your daughter before leaving for India. However, you said that on the day you left for India (erroneously mentioned by you as 22 October 2003 instead of 21 Oct 2003) , you left B Town at 05:30am, reached Auckland by 10:30am , went to meet [the sponsor] at her aunt's place and took the afternoon flight to India. Therefore, as per the information given by you, you only spent a few hours with [the sponsor] and your daughter before leaving for India. You have not addressed this discrepancy in your response.

· You stated that [the couple's child] was born via a caesarean. However, [the sponsor] informed me that it was a normal delivery.

In your first interview in this office on 16 February 2005, you had clearly stated the following:

"Was this a normal delivery or caesarean?". In your reply you stated the following:

· Your lack of knowledge of [the sponsor]'s medical condition after [the couple's child]'s birth

[The sponsor] informed me during the interview, that she was unconscious for two weeks after her child was born. However, you claimed that when you met her on 16 May 2003 (the day their child was born) evening, she was very much conscious and smiled at you. You have not commented on this discrepancy

My assessment of your response - This is a plausible explanation and I have accepted it.

While [the sponsor] said that you both mostly ate outside, you said that you both mostly cooked at home as you could not afford buying food from outside. Hence, your response does not address our concern.

[The sponsor] informed me that she stayed with [a friend]'s family in Jallandhar for one week. However, you categorically informed me that apart from Delhi and Amritsar, [the sponsor] did not go anywhere else. This discrepancy has not been addressed by you.

Though I am not entirely satisfied with this explanation, I am prepared to give you the benefit of doubt and accept this explanation at face value.

[Which bars or restaurants the wedding party visited after the wedding ceremony]

It is unusual for someone to not remember the place/s where they went to celebrate their wedding. However, I am prepared to accept that as you and [the sponsor] were enjoying yourselves, you did not remember the names of the restaurants/bars you went to after your wedding.

But I am rather concerned that the applicant had informed me that they went to a bar and then to a Chinese restaurant after their marriage. However, according to [the sponsor], they went to two different bars. The applicant has not provided an explanation to this contradiction.

While [the sponsor] said that your daughter [the couple's child] does not speak to you on the phone, you informed me that she does speak (a few words) to you on the phone. I do understand that you are keen to be with your family; however, you have not addressed this concern in your response.

Apart from the above, the following statements of [the sponsor], lead us to believe that her degree of commitment to lead a shared life is very minimal:

I do understand your anguish from being separated from your family for such a long time.

However, I do not buy your argument that in "English speaking countries", no one waits for their spouses if they are not around. The statements of [the sponsor] quoted above, clearly reflect that the only reason she wishes to continue with this relationship is because of her daughter; there is no other motivation for her to be in a relationship with you. Also, she does not intend to wait much longer for you.

All the statements quoted above, in combination, clearly reflect her lack of serious commitment to you. Hence, our concerns about her commitment to this relationship still stand.

[Listed factors that led INZ to believe the appellant's level of commitment to lead a shared life with the sponsor was also minimal]

You had categorically stated in both the interviews that you never took [the sponsor] for checkups to the hospital. Moreover, the following information given by [the sponsor], clearly proves that you never took her for any pre natal check ups to the hospital:

"Were did you go for pre natal check ups before [the couple's child] was born?

I don't know- but even though he did not come with me, it does not make him a bad father."

Hence, I am not convinced with your response that you took her to hospital several times for check ups.

In your response to my PPI, you informed me that you visited [the sponsor] everyday of the two weeks that she was unconscious in the hospital. You claimed that I had misunderstood you . I do not believe that there has been any misunderstanding as is evident from the following excerpt from your interview on 11 July 2006:

In your response to my PPI, you have claimed that you took your daughter for immunisation. However, this is contradictory to the information given by you in both your interviews and to the information given by [the sponsor]. In the interview at this office on 11 July 2006, you had categorically stated the following:

I am satisfied with your explanation as to why you never attended any parenting classes.

All the above factors lead me to believe that you and your wife do not have any intention of maintaining this relationship on a long-term and exclusive basis. Also, considering all the above information in combination, it seems that your relationship with your wife is perhaps, not likely to endure. Hence, I am not satisfied that your relationship with [the sponsor] is genuine and stable. Hence, you do not meet section [F2.5.a] of the above policy.

ii a visa or immigration officer is not satisfied that the partnership on which the application is based is genuine and stable*; or

As explained above, I am currently not satisfied that you and [the sponsor] are in a genuine and stable partnership. Hence, you do not meet section [F2.5.d.ii] of the above policy.

I am unable to approve this application because you do not meet sections F2.5.a and d.ii of the above policy.

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

... 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."

[47] The appellant appeals on the ground that his special circumstances are such that an exception to the applicable Government residence policy should be considered.

[48] The appellant's submissions are contained in his statement dated 18 December 2006. Documents already provided to INZ have been re-presented on appeal, together with a further TNT consignment note in respect of a document sent from India and uplifted by the sponsor on 17 October 2006. There is also a letter dated 23 December 2002 addressed to the couple at their first address in New Zealand, which does not appear on the INZ file, together with an express mail pack sent to the appellant at the same address from within New Zealand, without a date stamp. Inside are details about New Zealand cricket ticket-refund terms and conditions.

[49] The appellant has been provided with the INZ file in relation to the appellant and has considered the submissions and documents provided on appeal. The application was made on 27 October 2003 and the relevant policy criteria are those in Government residence policy as at that time. All policy references are to policy effective 29 September 2003.

[50] The criteria for residence applicants under the Family (Partnership) category of Government residence policy are contained in F2.5, effective 29 September 2003. INZ declined the application in terms of the appellant's failure to satisfy INZ that he met the requirements in F2.5.a and d which state:

"F2.5 How do partners of New Zealand citizens and residents qualify for residence?

a. To be issued with a residence visa or granted a residence permit under Partnership policy applicants must provide sufficient evidence to satisfy a visa or immigration officer that they have been living together for 12 months or more in a partnership that is genuine and stable* with a New Zealand citizen or resident*.

ii a visa or immigration officer is not satisfied that the partnership on which the application is based is genuine and stable*; or

[51] Before the Board can consider the appellant's sole ground of appeal, that he has special circumstances, it must first determine whether INZ' decline decision was correct. In that regard, as some of the appellant's submissions on appeal relate to the decision itself, it is necessary to address them at this point.

[52] First of all, the appellant blames INZ' delay for keeping the couple apart. He submits that he would have been in a better position to answer the questions if they had been asked earlier than three years from when the events in question had occurred. In those circumstances it was understandable his memory failed. While he acknowledges the discrepancies in the couple's answers he submits that there was a "match" of more than 60% in what they said.

[53] In addition, the appellant submits that the reason he kept so few documents in support of their relationship was because of his genuine intentions and love for his family. Otherwise, he would have deliberately kept documents and written everything down so he could answer whatever questions INZ might put to him in the future.

[54] Referring to INZ' interviews with the couple in 2006, the appellant also complains that his took over six hours, and submits that the INZ officer took a negative approach to every answer the couple gave.

[55] The Board has carefully considered all the evidence that formed the basis for INZ' decline decision and the manner in which it processed and assessed the application in light of the applicable policy.

[56] The Board acknowledges that a three-year wait for INZ to make its decision on a residence application is hardly ideal. However, in this case, the Board finds no unreasonable delay on INZ' part. This is principally because of the nature of the investigations INZ undertook. They included two sets of separate interviews with the couple, documented appropriately with question-and-answer transcripts; three site visits; and several opportunities for the appellant to provide additional evidence and to respond to INZ concerns. These were detailed to the appellant in terms of relevant evidence and applicable policy.

[57] The Board also does not accept the appellant's submission that delay by INZ compromised his ability to provide supporting documentation of the couple's relationship while they were living together, or to remember events that occurred three years previously.

[58] Certainly, the Board has noted that it was 16 months before the appellant was interviewed for the first time by INZ, while the sponsor was not interviewed until over a year later. In addition, the Board notes that the appellant complained twice to INZ about the delay that his application was taking, and his stress at being away from his family in New Zealand.

[59] On the other hand, the Board notes that early on in INZ' letter of 7 November 2003, the appellant was put on notice that his supporting evidence was inadequate in terms of identified policy requirements. He was also fully informed in that letter about the type of evidence he would need to provide in order for his application to be successful.

[60] When INZ came to re-interview the couple in July 2006 the appellant had responded in detail to the first set of INZ' concerns contained in its letter of 27 March 2006. However, the Board finds that he provided only limited and superficial updated supporting evidence to address INZ' concerns about whether the couple were in a genuine and stable partnership, or had ever lived together for the required minimum 12-month period. For INZ to re-interview the couple was another chance for the appellant to show INZ that his partnership met policy requirements.

[61] No time is recorded on the transcript of the appellant's second interview, but the Board accepts it was likely to have been lengthy due to the probing nature of INZ' questions. However, the questions shown in the transcript cannot be described as unfair in the sense they are oppressive or indicate bias or pre-determination. The Board also takes into account that the appellant's complaint about the second interview's length was only made on appeal. The time lapse does not add to the complaint's credibility, particularly in light of the appellant's otherwise articulately argued responses to the concerns INZ raised in its letter of 10 August 2006 following the interview.

[62] The Board's finding that generally INZ ensured a fair process throughout adds weight to the Board's view that there appears to be nothing unfair about the second interview process.

[63] The Board finds that INZ' delay in finalising the application was not unreasonable in the circumstances and INZ' attention to fairness and natural justice requirements ensured the appellant's case was not prejudiced by the delay. Furthermore, some of the delay, such as INZ' decision to re-interview the appellant and his sponsor which led to more correspondence between INZ and the appellant, was an integral part of INZ' faultless processing and determination of the application.

[64] The appellant provided limited supporting evidence of the partnership despite numerous opportunities, and INZ gave justifiable reasons and reasoning for rejecting most of the appellant's explanation for the interview discrepancies. He also failed to respond to some of the material discrepancies. The Board finds that INZ' conclusion that it was not satisfied the appellant and his sponsor had been living together for 12 months or more in a genuine and stable relationship was reasonably based on the evidence. It was similarly reasonable for INZ to conclude that the appellant and his sponsor did not have a genuine and stable partnership.

[65] The Board confirms that INZ correctly declined the application on both grounds.

[66] Of the three new documents the appellant provided with his appeal one is undated and the other two are dated prior to INZ' decline decision. In addition, the Board's Secretariat received an undated letter from the sponsor on 15 August 2007 just as the decision was being finalised. The Board's ability to take into account evidence dated before the INZ decline decision as well as subsequent evidence is governed by the provisions in section 18F of the Act.

[67] In respect of the evidence dated before the decline decision there is nothing to indicate why the documents could not have been given to INZ before it made its decision. As for the late evidence, although the Board is not obliged to consider it (refer section 18F(2)(b)) the Board confirms it does not indicate any material change of circumstances or "particular event" in terms of section 18F(6) that would materially affect the appellant's eligibility for residence. The Board therefore finds the new and late evidence is inadmissible.

[68] The Board will however take this evidence into account as part of the consideration which follows about whether the appellant has special circumstances.

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

[71] The appellant first arrived in New Zealand on a student visa in August 2001, and held student permits until August 2002. He last held a visitor's permit which expired in December 2002. He departed from New Zealand in October 2003 and has not returned since. INZ records also indicate that the appellant's application for a visitor's permit on partnership grounds was 'lapsed' by INZ after the appellant departed New Zealand.

[72] The appellant applied for residence under the Family (Partnership) category, in an application supported and sponsored by his New Zealand-citizen spouse. She was born in the Cook Islands and is aged in her late twenties. The couple met and married in New Zealand in November 2002 and their daughter was born in May the following year.

[73] INZ' decline decision was based on findings that it was not satisfied the partnership was either genuine or stable or that the couple had been living together for 12 or more months as claimed; a decision which the Board has confirmed was correct on both grounds.

[74] Otherwise, INZ assessed in November 2006 that the couple's legal marriage came within the policy definition of "partnership", and that the appellant's spouse supported his residence application. The appellant also met health and character requirements.

[75] The appellant's strong family nexus to New Zealand arises from his marriage to a New Zealand citizen spouse, and their New Zealand-born child.

[76] The appellant submits on appeal that INZ' decline decision is responsible for keeping him apart from his spouse and daughter who will suffer as a consequence; that it was impossible for the couple to prove to INZ their love and affection "on a piece of paper"; and that it is only human that if not given a chance to meet one's partner for many years, one starts to lose hope and wants to move on.

[77] As evidence of his spouse's commitment to their relationship, the appellant points to what she told INZ; that she was still waiting for him because she wanted her child's father to be there while she was growing up. The appellant also advises that he intends to bring his spouse to India in 2007, and that both are ready to fight for their rights until they get together once again in New Zealand. He asserts that in the meantime he has been continuously supporting his spouse and daughter financially and by sending gifts. His spouse will confirm that whenever she needs money he has sent it.

[78] Turning first to marriage partnership considerations, Article 23 of the International Covenant on Civil and Political Rights provides that the family is the natural and fundamental group unit of society. Underlying Article 23 and similar provisions in other international agreements are the principles that individuals have rights to freely enter and participate in a marriage and to enjoy family relationships.

[79] It is with Article 23 in mind that the Board has considered the appellant's submissions on appeal and whether the appellant has special circumstances.

[80] The Board does not accept that INZ is to blame for keeping the couple apart. It was the appellant who was responsible for satisfying INZ his partnership met the Family (Partnership) policy requirements. In that regard the Board notes that this policy was introduced shortly before the appellant made his application, partly in response to the fraudulent abuse of the more liberal previous Family (Spouse) policy. Of necessity then, the Family (Partnership) policy requires more than a marriage certificate, more than the birth of their child, and, indeed, more than the appellant's expressed desire to live with the sponsor and their child in New Zealand.

[81] Although the appellant's application was declined because the appellant did not meet the partnership policy's 'living together for 12 months', and 'genuine and stable partnership' requirements, the Board weighs as a positive factor that the appellant organised for the spouse to travel to India with their child in late 2003. However, the appellant only responded in very general terms to the discrepancies INZ raised about how much time the couple actually spent together in India, and did not respond to INZ' concern that there were no occupational reasons preventing the spouse from re-joining him in India.

[82] The Board notes the appellant's declared intention for the spouse to travel to India this year but has no evidence of proposed or actual dates and there is nothing in the recent letter from the spouse about travel to India.

[83] The Board acknowledges that it would take a strong relationship to survive more than three years spent thousands of miles apart, but does not accept that a relationship breakdown in such circumstances is inevitable. Ongoing geographical separation is a reality faced by committed couples the world over.

[84] In any case, although the appellant cannot return to New Zealand permanently at present, it was open to him to reapply for a temporary permit on partnership grounds before INZ declined his residence application, and he still can. There is no evidence he has done so.

[85] As to the limited evidence of ongoing contact given to INZ and on appeal, the Board specifically notes the absence of letters and cards from the end of 2004; the few consignment notes up to October 2006 which merely show a parcel was despatched from India (but not who by) which the spouse collected; and receipts to show eight calls to New Zealand over a period of months in 2006, but nothing to show the number being called was the spouse's.

[86] Further, although on appeal the appellant claimed continued financial support for his spouse and daughter he provided no corroborating evidence, explaining that this was due to the method he used to get the money to the spouse. However, the Board considers it would have been possible for the appellant to obtain financial documents relating to the transactions and supporting statements from those involved in the cash transfer arrangement.

[87] The interests of the appellant's New Zealand-born child who is a New Zealand citizen as a result, are a primary consideration for the Board. This is consistent with New Zealand's obligations under the Convention on the Rights of the Child.

[88] The Board also takes account of case law developed by the Court of Appeal since Tavita v Minister of Immigration [1994] 2 NZLR 257. Most recent decisions are those of the Court of Appeal in Chief Executive of the Department of Labour v Taito [2006] NZAR 420, and the High Court in Huang & Ors v Minister of Immigration (High Court Auckland, CIV-2005-404-5202, 29 September 2006). These have consistently held that the child's best interests are a primary, though not the paramount consideration, in the assessment of whether or not to remove a parent unlawfully in New Zealand. The same principles apply in the case of a parent who cannot reside permanently in New Zealand, like the appellant.

[89] The child's identity includes her parents' Indian/Punjab and Cook Island heritages and her New Zealand birthplace. The spouse's parents and siblings are all in New Zealand, where the child has lived nearly all of her life.

[90] The child is now four and has lived all her life with her mother. The Board has given the appellant the benefit of any doubt and presumed she lived with both parents from birth until the appellant's departure from New Zealand in 2003. Since then the appellant has not been in the same country as the child, apart from a brief period in 2003.

[91] The appellant's family are all in India. The child went as a baby to India with her mother in 2003. However, it emerged from the interviews that the spouse and child only met some of the appellant's four siblings, and the appellant did not take them to meet his parents, who disapproved of the marriage.

[92] Although not clear, the Board has presumed that the appellant's declared intention to bring the spouse back to India this year includes the child. Even without visits, modern telecommunications enable meaningful relationships to be established and maintained between parents and children separated by geography, if that is the parents' wish.

[93] Yet, in this case there is limited evidence of ongoing contact between the child and her father, the appellant, and no material new evidence on appeal. The Board has read the spouse's letter provided at the latest possible moment. It shows deep sadness and distress at having to raise the couple's child on her own, and resentment that it should be for INZ and the Board to decide whether the appellant can be with her and their daughter. She does not express any feelings (positive or negative) for the appellant and does not refer to any communication between the child and the appellant, or provide evidence of any.

[94] The appellant told INZ that he has an Honours degree in Mathematics. While in New Zealand he apparently completed a one-semester Preliminary Certificate in Travel and Tourism Studies and sat an IELTS (English language) test. Otherwise, the appellant told INZ that he would work weekends at an orchard with his friend, but was aware he could not do so legally.

[95] Despite the absence of supporting documentary evidence, the Board accepts for the purposes of its consideration of special circumstances that the appellant is an educated man with a good command of English. Although these factors favour successful settlement in New Zealand, the appellant has no known occupation-related qualifications, employment experience or special skills likely to benefit New Zealand's economy or society at large.

[96] In the context of the appellant's strong family nexus to New Zealand, the Board has considered New Zealand's international obligations towards families and to protect the child's best interests. The Board is satisfied that the child's best interests lie in remaining with her mother in New Zealand or in any other country of her choice including India.

[97] Balancing the Board's finding in respect of the child's best interests together with all of the appellant's other circumstances the Board finds that the couple's mutually expressed wish that they be reunited in New Zealand, and the appellant's positive settlement factors relating to his command of English, his tertiary education and time spent in New Zealand are outweighed by negative factors relating to the marriage partnership and the father-child relationship.

[98] In those respects, the Board has negatively weighed the absence of evidence to show there has been ongoing meaningful communication between the appellant and his spouse or the appellant and their child since early 2004. Nor does the evidence show any attempt by the appellant to facilitate the spouse's return to India since 2003, or his return temporarily to New Zealand since he left in 2003.

[99] This appeal is determined pursuant to section 18D(1)(a) of the Immigration Act 1987. The Board confirms the decision of INZ 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 exist which warrant consideration by the Minister of Immigration as an exception to that policy under section 18D(1)(f) of the Act.

[101] The Board advises the appellant (and his spouse) that he is not prevented from lodging a further residence application based on his partnership. The Board can give no indication of the likelihood it will be successful.

New Zealand Residence Review Board