Immigration New Zealand helpless in Dahiya case
Gurjinder Singh – 
I have read with interest your articles on the plight of Dr Ram Chander Dahiya (71) and his wife Savitri (70) in your March 15, 2017 issue, in which you had quoted them as saying that they have been refused Resident Return Visa (RRV) and Permanent Residence Visa (PRV) by Immigration New Zealand (INZ) and that the High Court had imposed costs for wasting the Court’s time.
Immigration Act 2009 has been enacted by Parliament. Nobody can bend or change it. Even the courts respect these limitations.
The main instructions for Permanent residency for indefinite period are as follows:
RV2.5.1 Significant period of time spent in New Zealand: A Principal Applicant (PA) has demonstrated a commitment to New Zealand if they have been in New Zealand as a resident for a total of 184 days or more in each of the two 12-month portions of the 24 months immediately preceding the date their application for a Permanent Resident Visa (PRV) was made (i.e., in each of the two 12-month portions, a period or periods that amount to 184 days or more).
Example: 2010 to 2011(one year period) 184 days or more; 2011 to 2012: 184 days or more.
The PA must be in New Zealand at the time of making the application immediately after completion of 24 months. In the previous instructions, it was clear that person must be holder of Resident permit at the time of making application. One can have only if he/she was in New Zealand.
If the person has competed 184 days in second leg, but at the time of completion of the 24 months immediately preceding the date their application, he is outside New Zealand. He is not entitled for this PR, but SSRV (Second or Subsequent Resident Visa), as he was in New Zealand at the time of completion of his period of one year, first leg.
RV2.20 Declining applications for Permanent Resident Visas: If a PRV application is declined, the applicant may be assessed under the instructions for variation of travel conditions (RV3) or a SSRV (RV4). If the applicant is eligible for variation of travel conditions or a SSRV, an immigration officer may grant the appropriate variation of travel conditions or SSRV in place of a PRV with the applicant’s permission.
RV3.5.1 Time spent in New Zealand: To meet the requirements regarding time spent in New Zealand, the Principal Applicant must have been in New Zealand as a resident for a total of 184 days or more in at least one of the two 12-month portions in the 24 months immediately preceding the date the application for variation of travel conditions was made (i.e., in at least one of the two 12-month portions, a period or periods that amount to 184 days or more).
In the present case, the couple had not qualified for RV 2.5.1, INZ offered to process an SSRV for them for returning resident visa for one year. The label pasted inside the passport denoted its validity date. This would have allowed them to return to New Zealand any time before expiry date.
Upon their return to this country, if they wished to apply for a PRV again, they would need to demonstrate their commitment to New Zealand either by spending 184 days or more in each of the two 12-month portions immediately preceding the next application.
The legal position
INZ officers are obliged to apply the residence instructions and may not exercise any discretion as to how to apply them, unless such discretion is expressly provided for in the relevant instructions.
RV2.5.1 provides no discretion.
There is no place for exception to policy in the instructions.
It is clear therefore that the application was correctly declined.
The burden was on the couple to follow the law.
The remedy now
The couple can only show by filing appeal under section 378 that there are special circumstances that warrant consideration by the Immigration Minister of an exception to the government’s residence instructions for the grant of PR for an indefinite period.
Whether they have special circumstances will depend on the particular facts of each case. “The special circumstances are those that are uncommon, not commonplace, out of the ordinary, abnormal” as determined in the Rajan vs Minister of Immigration (2004) NZAR 615 (CA) at [24] per Glazebrook J.
Gurjinder Singh is a Licensed Immigration Advisor and an Enrolled Barrister & Solicitor (NPC) based in Papatoetoe, Auckland.
Photo: Dr Ram Chander and Savitri Dahiya
