Residence Appeal No: 16626 [2010] NZRRB 224 (18 November 2010)

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RESIDENCE REVIEW BOARD NEW ZEALAND
AT WELLINGTON	RESIDENCE APPEAL NO: 16626
Before:	V J Vervoort (Member)
Representative for the Appellant:	N Robertson and N Appleton
Date of Decision:	18 November 2010
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 it was not satisfied that the appellant and his wife, a New Zealand citizen, were in a genuine and stable relationship.

[3] The principal issue for the Board is whether the appellant has special circumstances such that warrant a recommendation to the Minister of Immigration for consideration of an exception to policy.

[4] The appellant's application for residence under the Family (Partnership) category was made on 21 June 2007. He was living in China and his wife, the sponsor of the application, was living in New Zealand with the couple's child, now aged 7. The wife is a New Zealand citizen of Taiwanese descent. The couple met in the United Kingdom in December 2002, they were married there in June 2003 and their son was born there later in the same year.

[5] The couple lived together in the United Kingdom until January 2006 when the wife returned to New Zealand to decide whether this was the country where the couple would live in the future. The appellant remained in the United Kingdom until October 2006 when he returned to China, in order to prepare documentation required for his application for residence in New Zealand. The wife travelled to the United Kingdom and on to China with the appellant at that time. She returned to New Zealand in November 2006. It is not clear whether the son went to China with his parents.

[6] On 22 May 2009, INZ wrote to the appellant advising him that it had completed the first assessment of his application and it appeared that he and his wife were not in a genuine and stable relationship because they had been living separately since November 2006. The policy at F2.30 (Determining if the couple is living together in a partnership that is genuine and stable), F2.30.1 (Assessment of periods of separation) and F2.20.15 (Evidence of living together in a partnership that is genuine and stable) was cited. The appellant was invited to provide comment and send additional information to support his application by 22 June 2009.

[7] Counsel responded on 30 July 2009 on behalf of the appellant with a detailed explanation and a bundle of documents to support the claim that the couple were in a genuine and stable relationship but had been unable to live together for a number of reasons. The reasons for the couple's separation included that: the appellant had been unable to get a passport; it had not been appropriate to make a temporary application to visit New Zealand; the wife had been unable to afford to visit China as she had been in receipt of a domestic purposes benefit for a period, had spent 2008 working and in 2009 was a university student.

[8] Copies of correspondence largely from the wife to the appellant were provided, together with telephone accounts from the wife's New Zealand landline and copies of calling cards she used to call the appellant.

[9] INZ arranged to interview the appellant in person in China on 26 November 2009 and to interview his wife by telephone in New Zealand on the same day. There was a record of the interview on the INZ file.

[10] By letter of 3 December 2009, INZ wrote to the appellant and stated it was not satisfied that his application met all the criteria of the Partnership policy. There were discrepancies between his responses and those of his wife during their respective interviews.

[11] The discrepancies, which were itemised in detail, focussed on whether the appellant's parents-in-law had ever visited him and his wife in the United Kingdom, how much money he took from the United Kingdom back to China, who telephoned whom and when the last telephone contact between the couple occurred, whether the appellant had a valid passport and his financial circumstances.

[12] The combination of discrepancies meant INZ was not satisfied that the couple were in a genuine and stable relationship which would be maintained on a long-term and exclusive basis.

[13] The appellant was invited to comment. Enclosed with the letter was a copy of the interview report and the relevant Partnership policy.

[14] Counsel provided a substantive response to INZ on 29 January 2010. In short, the discrepancies were explained and, in particular, the appellant's failure to advise his wife that he had held a current passport since 2008 was the result of his forgetfulness. His lack of financial support of the appellant was because of his own financial situation and the fact that he did not wish to become indebted to his father again. The lack of telephone contact in recent months was because the wife was busy studying. This meant the appellant had to take more responsibility for making telephone calls and as he knew that she was busy he did not call her as often as he might otherwise have done.

[15] Counsel argued that the discrepancies were entirely understandable and were adequately explained. Moreover, the limited number of topics covered in any immigration interview meant the appellant and his wife were unable to demonstrate the level of their relationship and their commitment to each other. The couple were in a genuine and stable relationship and it was suggested that INZ re-interview the couple in order to give them a greater opportunity to demonstrate their commitment to each other.

[16] INZ prepared an assessment of the application on 2 March 2010 and it was declined by letter of 3 March 2010.

[17] INZ acknowledged counsel's responses to the issues raised and then analysed each response. It did not find the explanations and reasons given to be compelling. It was acknowledged that the couple had married in June 2003, had a son from their relationship and had lived together for a number of years. However, on the basis of the information now before it, INZ was not satisfied that there were compelling reasons for the couple to remain separated for three years or that they had made genuine efforts to be together. When all the circumstances outlined were taken together, INZ did not believe that the appellant had been able to demonstrate beyond a reasonable doubt that he was in a genuine and stable relationship with his wife and, accordingly, his application did not satisfy policy.

"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."

[19] The appellant appeals on the ground that the decision of INZ was not correct in terms of the relevant Government residence policy and on the further ground that, if correct, he has special circumstances that warrant consideration of an exception to Government residence policy.

[20] Counsel makes submissions dated 21 April 2010 and also provides copies of the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, Tau'ili'ili v Chief Executive of the Department of Labour (High Court, Wellington CIV2009-485-75. 10 July 2009, Joseph Williams J) and Tavita v Minister of Immigration [1994] 2 NZLR 257.

[21] After the appeal was lodged and before it had been allocated to a Member of the Residence Review Board for consideration, counsel advised the Appeal Authorities Secretariat that the appellant's circumstances had changed (26 August 2010). In particular, his wife had withdrawn her support for his appeal. Counsel stated she was in the process of taking instructions from the appellant as to whether further submissions would be made.

[22] Attached to counsel's letter was a letter to the Residence Review Board from the wife in which she confirmed that she had withdrawn her support and sponsorship from the appellant's application for residence (25 August 2010).

[23] On 20 October 2010, the Board caused the Secretariat to write to counsel advising that the appellant's appeal was now being considered. The withdrawal of his wife's sponsorship for his application was noted, as was the advice that counsel had, in August 2010, been in the process of taking instructions from the appellant. Out of fairness to the appellant, counsel was given the opportunity to provide further submissions, if any, to the Board by close of business on 29 October 2010.

[25] The Board has been provided with the INZ file in relation to the appellant and has considered the submissions made on appeal. The Board has also considered the further information provided as to the wife's withdrawal of sponsorship from the appellant's application.

[26] The Board is required to make an assessment as to whether the INZ decision to decline the appellant's application was correct in terms of the applicable Government residence policy. This is followed by consideration of whether the appellant's special circumstances warrant a recommendation for consideration by the Minister of Immigration for an exception to policy.

[27] The appellant's application for residence was made on 21 June 2007 and the relevant policy criteria are those in Government residence policy as at that time.

[28] The relevant policy was the Family (Partnership) policy (in effect on 28 November 2005) and found at F2.5 of the INZ Operational Manual. The policy at F2.5.a states that applicants must provide sufficient evidence to satisfy INZ that they have been living together for 12 months or more in a partnership that is genuine and stable. INZ was not satisfied that the appellant and his wife were living together in a genuine and stable partnership.

[29] The Board notes INZ was correct to be concerned about the genuineness and stability of the couple's relationship, given the number of years that they had lived apart. The information, evidence and explanations provided by the couple about their time spent living apart and the nature of their ongoing communication and relationship was not compelling.

[30] The submissions made on appeal challenged the correctness of the INZ decision to decline the application. Counsel identified several procedural errors in the INZ assessment. In particular, that INZ had applied an incorrect standard of proof to its consideration of the appellant's evidence.

[31] Counsel correctly noted that INZ had stated the appellant was required to prove "beyond reasonable doubt" he was in a genuine and stable relationship with his wife. This standard of proof is the criminal standard, which is not the standard of proof applicable in administrative decisions. This error would have been a sufficient reason in this case for the Board to have cancelled the INZ decision on procedural grounds and to have directed that it be reassessed.

[32] However, the Board was provided with further information critical to the ultimate success of the appellant's application. This was that the wife had withdrawn her sponsorship and, without a sponsor, the application could not succeed and therefore any reassessment to address INZ's error would be nugatory.

[33] Out of fairness to the appellant, an opportunity was given for the provision of further submissions, but no further submissions were received.

[34] In short, the withdrawal of the wife's support, for whatever reason, is evidence that the couple's relationship is not stable.

[35] The Board finds that the INZ decision to decline the application on the ground that the appellant's partnership was not genuine and stable was correct.

[37] 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.

[38] Whether an appellant has special circumstances will depend on the particular facts of each case. The Board balances all relevant factors in each case to determine whether the appellant's circumstances, when considered cumulatively, are special. Special circumstances are "circumstances that are uncommon, not common place, out of the ordinary, abnormal"; He v Chief Executive of the Department of Labour (High Court, Wellington CIV 2008-485-1300, 13 November 2008, Ronald Young J) at [42].

[39] The appellant, a citizen of China, is a married man. His wife and son are New Zealand citizens. His application under the Family (Partnership) category failed because INZ was not satisfied that the couple's relationship was genuine and stable. Since lodging the appeal the wife has withdrawn her sponsorship and support of the residence application.

[40] The couple met in the United Kingdom in 2002, and married in 2003 and had their son there. They lived there together with their child until January 2006, when the wife returned to New Zealand in order to determine whether this was the country in which the couple would both live and raise their child. The appellant remained in the United Kingdom until October 2006 when his wife travelled to the United Kingdom and then accompanied him to China. The wife returned to New Zealand, where she and their son have lived since November 2006.

[41] In his application the appellant disclosed that his parents and two siblings, a brother and a sister, are all resident in China. The appellant lives in close proximity to his family in China.

[42] According to the appellant's INZ file, he went to the United Kingdom in August 1996 and made an unsuccessful application for refugee status. He disclosed to INZ that he worked in the United Kingdom from September 1996 to October 2006 in the food industry. His first two positions from September 1996 to March 2003 were as a Kitchen Hand and then as a Second Chef. From March 2003 to October 2006, he was the co-owner and Head Chef of a Chinese takeaway business.

[43] From the submissions made to INZ, it appears that the appellant is now employed by his father in a family-based cement business in China.

[44] No evidence has been provided to the Board as to the appellant's educational or employment background beyond what has been disclosed above.

[45] The appellant provided clear United Kingdom and Chinese police certificates and INZ was satisfied that he was of an acceptable standard of health after he had undergone treatment for Hepatitis B.

[46] INZ acknowledged that the couple had lived together for three years in the United Kingdom but by the time the application was determined they had lived apart for more than three years.

[47] The appellant has not seen his wife or son since November 2006. No evidence has been advanced as to the quality of the appellant's relationship with his son. The appellant has had telephone contact with his son from time to time. There was evidence on the INZ file of the wife sending letters and photographs about the son's activities and development to the appellant.

[48] The appellant's forgetfulness over key matters such as his passport validity raised reasonable concerns as to whether the relationship was genuine and stable and whether it would endure. He provided no financial support to his wife and child. At best the couple's relationship appeared rather one-sided, with the wife making most of the effort as far as ongoing communication was concerned.

[49] For whatever reason, the wife withdrew her support from the application in August 2010. No further evidence was advanced by the appellant to the Board as to his circumstances as a result of his wife's decision or what implications it has from his perspective for his relationship with their son, now aged 7.

[50] The submissions on appeal, provided before the wife withdrew her support, stated it was in the son's best interests for him to remain in New Zealand and to have the appellant join him here. Further, it was submitted that there was a right to family unity.

[51] As far as the son's best interests are concerned, no evidence has been produced to the Board that he will experience anything other than what has been the norm for him over the past four years. He will remain in his mother's day-to-day care and continue to attend school. There is no obvious reason why the appellant cannot maintain contact with his son through telephone conversations and the like. In the future, as time and circumstances allow, the son is not precluded from visiting him in China if all parties wish that to occur.

[52] As to family unity, the wife's decision to withdraw support naturally affects the possibility of family unity. That was a decision that she was free to make and which the Board cannot look behind.

[53] The strongest and only factor in the appellant's favour is that he has a New Zealand-citizen child resident in New Zealand. That gives him a family nexus to New Zealand.

[54] However, balanced against that is the fact that the appellant has lived apart from his son since November 2006. The evidence before INZ and the Board is of limited contact between the appellant and his son since then. Most of the contact has emanated from the wife in New Zealand. The appellant's interest and support for his son and his wife appears less than proactive.

[55] The appellant has no other nexus to New Zealand but he has a family, social and cultural nexus to China where his parents and siblings reside and where he has lived all his life apart from the approximately ten years he spent in the United Kingdom, of which three were with his wife and son.

[56] There is no evidence before the Board that the appellant has any skills or other attributes which are in demand in New Zealand or which indicate that he could make any social, economic or other contribution which could fairly be characterised as uncommon or out of the ordinary.

[57] The Board finds that, having considered all of the appellant's circumstances as they have been disclosed to it, they are not such as to warrant a recommendation for consideration by the Minister of Immigration for an exception to policy. There is nothing about the appellant's circumstances which is special.

[58] 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 Immigration Act 1987.

New Zealand Residence Review Board

Residence Appeal No: 16626 [2010] NZRRB 224 (18 November 2010)