Residence Appeal No: 15584 [2007] NZRRB 413 (10 December 2007)

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RESIDENCE REVIEW BOARD NEW ZEALAND
AT WELLINGTON	RESIDENCE APPEAL NO: 15584
Before:	S Pearson (Member)
Representative for the Appellant:	Adele Jane Cornelius
Date of Decision:	10 December 2007
Category:	Family (Partnership)
Decision Outcome:	Section 18D(1)(a)

[2] This is an appeal against the decision of Immigration New Zealand (INZ) declining the application because the appellant's husband who sponsored her application was ineligible on the basis that he had successfully sponsored two other applicants previously.

[3] Enclosed with the appellant's application was a letter dated 2 May 2007 from her representative, which provided a detailed background of the previous sponsorships under the Family (Spouse) category successfully undertaken by the appellant's New Zealand-citizen husband.

[4] The appellant's sponsor first came to New Zealand in 1994 as a student. He obtained residence in New Zealand under the then General category in mid-1995, and became a citizen in 1997.

[5] The appellant's sponsor married his first wife, a Thai national, in mid-1995 and in October of that year her application for residence under the Family (Spouse) category, based on the couple's relationship, was approved. However, they separated in 1997 and the marriage was dissolved in 2000.

[6] The sponsor began a relationship with his second wife, a citizen of South Korea, in late 1999 and they married in mid-2000 following the dissolution of his first marriage. His second wife obtained permanent residence under the Family (Spouse) category based on this marriage in late 2000. A child was born to the couple in May 2001, and is a New Zealand citizen by descent. However, they separated and were divorced in late 2004.

[7] The sponsor met his current wife, the appellant, in 2003 and they were married in August 2005 in Australia, where the sponsor had been employed. Their first child was born in November 2006 and is also a New Zealand citizen by descent.

[8] The following documents were provided: the originals and certified copies of the certificate of marriage between the appellant and her sponsor; the birth certificate for their son; the appellant's Korean passport and the New Zealand passports of her sponsor and their son.

[9] Also enclosed were the New Zealand marriage certificates relating to the sponsor's first and second marriages, each endorsed with the date of dissolution of the marriage.

[10] The original and a certified copy of the birth certificate for the sponsor's eldest son was provided, along with a number of photographs of the sponsor with this son.

[11] Evidence submitted in support of the genuineness of the couple's partnership included: a joint tenancy agreement; a joint rent receipt; the originals of invoices from utilities in joint names; the originals of statements from joint bank accounts; photographs taken of the couple together with their child; and a dozen letters of support from friends and acquaintances.

[12] On 11 June 2007 INZ wrote to the appellant setting out the policy at F2.10.10 which defined an eligible sponsor for the purposes of the Family (Partnership) policy. The letter advised the appellant that because her sponsor had previously successfully sponsored two other applicants he therefore did not appear to be an eligible sponsor. Details of the previous sponsorships were provided and the appellant was invited to respond within 21 days.

[13] After INZ received confirmation that the appellant would not provide a response to the potentially prejudicial information, the application was assessed by INZ.

[14] In its letter of 13 June 2007, INZ 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 04 May, 2007.

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

Under present Immigration policy the grant of residence to the partner of a New Zealand citizen or resident is by no means automatic. For residence to be approved, we must be satisfied that you and your New Zealand citizen or resident partner have been living together for 12 months or more in a partnership that is genuine and stable. In addition, your New Zealand citizen or resident partner must support your application and be an eligible sponsor. It is not always easy to determine whether an application meets the above criteria, and decisions on applications based on partnerships are not made lightly.

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.

We wrote to you on 11 June, 2007 advising that we had information that was potentially prejudicial with regards to your residence application. An electronic copy was also sent to your agent. This letter offered 21 days to respond.

Communication and confirmation from your agent has been received stating that the offer of 21 days to reply will not be responded to and further requested a decision to be made regardless.

Your immigration history notes that your sponsor has previously and successfully sponsored two other applicants and therefore is not an eligible sponsor. The details from our records are as follows:

First wife: [details of marriage, approval of residence, separation and divorce listed]

Aside from sponsorship issues it appears you would otherwise meet Partnership Policy requirements, however we are not satisfied that the following applicable policy has been met:

F2.10.10 Definition of 'eligible sponsor' for the purposes of Partnership policy

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."

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

[17] The representative provides submissions, dated 27 July 2007. The following documents are produced:

3. A copy of the application for waiver of policy by way of special direction pursuant to section 130 of the Immigration Act 1987, made to the Minister of Immigration in June 2006.

4. A photocopy of the Associate Minister's response dated 3 August 2006 advising that he was not prepared to intervene.

5. Certificates of employment, testimonials and a letter of support relating to the sponsor's previous and present employment in New Zealand.

6. A copy of a letter dated 12 April 2006 from the sponsor's first wife and mother of his first New Zealand-born son.

[19] The Board has been provided with the INZ files in relation to the appellant and has also considered the submissions and documents provided on appeal. An assessment as to whether the INZ 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 policy.

[20] The application was made on 4 May 2007 and the relevant policy criteria are those in Government residence policy as at that time.

[21] The policy at F2.5 (effective 28 November 2005) sets out how partners of New Zealand citizens and residents qualify for residence. F2.5.d.i provides that an application under Partnership policy will be declined if the application is not supported by a New Zealand citizen or resident partner who is an eligible sponsor.

[22] The definition of an "eligible sponsor" is set out at F2.10.10, the relevant parts of which are as follows:

"F2.10.10 Definition of 'eligible sponsor' for the purposes of Partnership policy

i has not previously supported or sponsored more than one other successful principal applicant* under Partnership policy, or

ii has not supported or sponsored any other successful principal applicant* under Partnership policy in the five years immediately preceding the date the current application is made*, or

[23] It is not in dispute that the appellant's sponsor had successfully sponsored residence applications for both of his previous wives.

[24] INZ correctly put to the appellant, in the letter dated 11 June 2007, that she was caught by the policy at F2.10.10.a and therefore did not have an eligible sponsor.

[25] When the appellant declined to produce any further comments relating to her husband's sponsorship of his two previous wives, INZ assessed and declined the application.

[26] The Board finds that INZ correctly declined the application as the appellant's husband was not eligible to sponsor the present application.

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

[28] 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.

[29] Pursuant to section 18F(4A)(b), the further evidence submitted by the appellant on appeal is admissible for the purpose of considering whether or not to make a determination under section 18D(1)(f).

[30] The appellant is a 35-year-old citizen of South Korea. Her application for residence failed because she did not have an eligible sponsor under the Family (Partnership) category and did not satisfy any other category of residence policy.

[31] According to her medical certificate, the appellant is an accountant. No evidence of her qualifications, work experience or her English language skills has been provided.

[32] The sponsor through his representative provided full disclosure from the outset of his previous two marriages and the fact that he successfully sponsored those two wives who obtained New Zealand residence in 1995 and 2000 respectively.

[33] The reasons for the failure of the sponsor's first two marriages were reiterated as part of the representative's detailed submissions on appeal.

[34] On the basis of the explanations provided to the Board it appears that INZ had been correct to find that the sponsor had been living in a genuine relationship with both of his previous wives and there were genuine reasons for the failure of both marriages. However, neither of those marriages exceeded five years' duration and INZ, in its assessment of the present application, reasonably considered that while this also appeared to be a genuine marriage, in light of the sponsor's previous history, it was unable to comment on the stability of the appellant's partnership with the sponsor. The Board notes the community recognition of the partnership from friends and acquaintances.

[35] The appellant and her sponsor have a son who was born in New Zealand in November 2006 and is a New Zealand citizen by descent due to the New Zealand citizenship of his father.

[36] There are several photographs of the couple with their child. The sponsor states in his affidavit that if the appellant is not granted permanent residence in New Zealand he will return with them to Korea because living here without his wife and child is simply not an option as they are both very important to him.

[37] In his affidavit dated 25 July 2007, the sponsor explains that he entered into a separation agreement with his second wife, in which he surrendered his interest in the family home in order that she would have a place to bring up the child of the marriage. His second wife and his eldest child apparently continue to live in that home in the South Island. Until the sponsor relocated to the upper part of the North Island he saw his eldest son three times a week. It is submitted that he travels frequently to visit his son but no evidence in this regard has been supplied.

[38] The sponsor explains that at present he is easily able to travel to the South Island to visit his eldest son but if he were to return to South Korea it would make his ongoing relationship with that son extremely difficult. He acknowledges that, when he worked in Australia for 12 months from February 2005 to February 2006, he was separated from his eldest son by a greater distance than between the North and South Islands, but flew to see him.

[39] However, there is nothing in the evidence before the Board to indicate how frequently the sponsor exercised access to his oldest son either when he was in Australia, or subsequently. While the Board acknowledges that visiting from Korea would be a much more costly and time-consuming exercise, it is an available option along with other means of maintaining a viable relationship, such as telephone calls and correspondence.

[40] The Board has carefully considered the fact that the sponsor has two children who are New Zealand citizens by descent and that if he decides to return to Korea with the appellant in the event that she does so, this will have implications for both of his children. In all probability it will be more difficult to maintain the same level of visits to his eldest son who is presently seven years old. His youngest son, who is an infant, will accompany his mother if the appellant is obliged to relocate to her home country.

[41] The Board notes the case law developed by the Court of Appeal since Tavita v Minister of Immigration [1994] 2 NZLR 257, including recent decisions: Chief Executive of the Department of Labour v Taito [2006] NZAR 420, and Huang v Minister of Immigration [2006] NZHC 1149; [2007] NZAR 163. These decisions have consistently held that the best interests of both children are a primary, but not a paramount, consideration. Articles 3 and 27 of the United Nations Convention on the Rights of the Child 1989, are also considered.

[42] There is insufficient information before the Board to ascertain how much access the sponsor presently exercises to his eldest child and whether they enjoy a close and ongoing relationship. If the sponsor chooses to relocate to South Korea with the appellant then he will be in a position to have ongoing contact with his younger son. There is nothing in the evidence to indicate that the welfare or development of either child will be prejudiced if he does so.

[43] The Board acknowledges that if the sponsor was to return long-term to Korea, it would be more difficult for his two sons to get to know each other as brothers and for "both of them to feel that they are equally loved by [him]".

[44] While there is no requirement that the sponsor leave New Zealand, the impact of his dilemma on the appellant is considered by the Board as part of her special circumstances. She addresses this difficulty in her affidavit on appeal, expressing the guilt she would face if the relationship between her husband and his eldest son was damaged because he chose to return to South Korea with her.

[45] On appeal the representative cites the policy objective at F1 of the INZ Operational Manual. This notes that the objective of the Family category policy is to strengthen families and communities while reinforcing the Government's overall objectives in immigration policy. It is accepted that the sponsor has settled in New Zealand and is employed in a valuable role in the tourism industry. He is making a significant contribution to New Zealand in this way.

[46] Against that, there is a clear policy bar against people in the sponsor's circumstances from being able to sponsor more than one previous residence application under the Family (Partnership) policy. The Board has considered the fact that the sponsor's previous two wives applied under the then Family (Spouse) category but finds this does not eliminate the issue.

[47] The policy at F2.1 contributes to the overall Family category policy objective by allowing the partners of New Zealand citizens and residents to apply for residence in order to live with their partner in New Zealand. However, the policy also states that partners of New Zealand citizens and residents do not have an automatic right of permanent residence in this country.

[48] The appellant is a young woman. She is married to a fellow countryman who is now a New Zealand citizen. She has produced clear medical certificates and a clear Korean police certificate along with the original and a translation of her family census register. The Board notes that INZ considered that there was evidence that the appellant was currently residing in New Zealand in what appeared to be a genuine partnership. However, because the appellant's sponsor is caught by a policy prohibition and could not be an eligible sponsor, something significant would be required to establish special circumstances that would justify a recommendation to the Minister.

[49] The Board notes that when the appellant made a case to the Minister for a special direction he was not prepared to intervene but noted that the appellant had not explored her eligibility for any other category of Government residence policy. It is clearly open to the appellant to consider whether she wishes to lodge an Expression of Interest for residence under the Skilled Migrant category on the basis of her background as an accountant. The Board can give no guarantee as to the outcome of such an application, but also notes that now that the appellant has exhausted the appeal process, it is open to her to approach the Minister again.

[50] On her application form the appellant disclosed that her parents and two siblings reside in South Korea. She visited New Zealand briefly in 2003, 2004 and 2005 for longer periods since February 2006. She was granted a work permit upon her most recent arrival in July 2007 which is valid until June 2008. Her significant nexus to New Zealand is through her husband and son, but she also has a family nexus to her homeland through her parents and siblings.

[51] The Board has considered the positive aspects that this appellant is a young, healthy, apparently well-educated mother of a New Zealand-citizen child and is presently married to a New Zealand citizen. Should the sponsor elect to return with the appellant to their home country, there is no impediment to his returning at any time to live or to visit his eldest son.

[52] Ultimately, the fact that the sponsor finds himself in a difficult situation, because he has another New Zealand-citizen son from a previous marriage, does not create special circumstances. The Board finds that the appellant's circumstances, considered cumulatively, are not special and do not warrant the Board recommending that the Minister consider making an exception to policy in this case.

[53] 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.

New Zealand Residence Review Board

Residence Appeal No: 15584 [2007] NZRRB 413 (10 December 2007)