Disappointment after losing case tests after government halts temporary visa applications


Families and couples separated by border closures have lost a legal challenge to immigration decisions.

The coat of arms of New Zealand.
Photo: New Zealand Radio

Divided families have raised funds to support the case brought by two New Zealanders, who claimed the government chose administrative convenience in its decisions, which prevented them from being reunited with their partners.

The case also alleged that immigration decisions during the pandemic had been discriminatory and violated the Bill of Rights.

Michael Witbrock and David Higgs, whose partners are Chinese and Indonesian respectively, took the case to the High Court.

They fought decisions to extend the suspension of temporary visa applications and then cancel existing applications.

One of the categories of temporary entry visas excepted was for partners and children of a New Zealand citizen or resident, but did not cover partnerships where the couples had previously been unable to live together.

Witbrock said he could not live with his partner in a same-sex relationship in China and that Higgs could not live in Indonesia with his fiancée.

Justice Walker described the difficulties faced by couples because they cannot meet the requirements of “living together”.

“This is a particularly acute problem for people of certain ethnic and religious backgrounds because their culture, society and/or religious beliefs do not allow partners to live together before marriage,” he said. stated in its decision.

“It is also a barrier for those who live in countries that discriminate against same-sex relationships and other members of the LGBTQIA+ community. This is described in plaintiffs’ evidence as a ‘Catch-22’; couples must live together to meet partnership visa requirements still need a visa to be able to live together in New Zealand for cultural, societal or religious reasons.”

He said the men were also taking action for other visa applicants and partners affected by the measures.

Hundreds of families have been separated by the decision to suspend visa processing and have to reapply, which has left them facing an even longer wait.

But the government argued that no one could get a visa while border restrictions were in place, and that there was no identifiable ‘queue’ for an applicant to lose a place when their request had expired.

Immigration New Zealand (INZ) estimated that around 40,460 applications would be lapsed, of which more than half (24,144) were visitor visa applications. But he said he could not determine which of those visitor visas were relationship-based without reviewing each individual application.

The men said the Immigration Minister failed to consider obligations under international human rights conventions and the discriminatory impact of his decisions under the Bill of Rights Act.

They “argue that the relative “reasonableness” of suspension decisions has diminished over time given the increasing availability of widespread pre-departure testing, vaccinations, shorter stays at MIQ, and length of separation from families”.

“Global policy” of non-intervention

Immigration expert Katy Armstrong told the High Court that other pathways for overseas partners were effectively closed or, in the case of humanitarian exemptions, subject to very high decline rates.

“The Associate Minister for Immigration, to whom the Minister has delegated authority to issue visas under Section 61A of the Immigration Act 2009, has effectively put in place a general policy of not intervene in cases where the applicant is abroad during the pandemic and the border closure.”

The men’s lawyer, Stewart Dalley, said the minister was prioritizing “administrative simplicity” over international obligations, not trying to address the problems caused by the border closure in more nuanced ways.

But the court ruled that administrative ease was part and parcel of an allocation of scarce resources, a matter that was a matter for government policy-making.

Judge Walker said the case did not show that the rulings “disproportionately affected identified subgroups of people in a way amounting to indirect discrimination”.

He concluded that, partly because INZ was unable to provide figures on those affected, there was no compelling evidence on which to draw firm conclusions about whether the impact was disproportionate.

“At first glance, it may seem arbitrary to single out the genuineness of a relationship based on the stipulation of living together when other avenues have been narrowed, but it is a matter best examined in a challenge to partnership instructions. “

People in genuine relationships could be affected by the regulations for reasons other than religion, ethnicity, gender or sexual orientation, he added.

Dalley told RNZ that a challenge to the partnership policy itself could not be made in 2021 given that it was written years before, nor could the border closure – as judicial reviews must generally be filed within 28 days of the policy decision being made.

“It’s a very disappointing result after a long wait. However, from the start, we always knew that one of the reasons for bringing the case was to draw attention to the problem and put pressure to try to get some movement to allow partners to apply for visas and granting visas This was a matter of high public policy and it was in the public interest to be heard.

“While he is aware of the problems and despite the assurances, it is disappointing to see that separated families have not been prioritized in any way when it comes to the opening of borders and the processing of visas – especially since the judge seems to accept that the minister preferred administrative ease over the fundamental rights of families.”

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