The High Court decision will impact thousands of other cases
Gill Bonnett
Auckland, December 12, 2021
Immigration Minister Kris Faafoi chose administrative ease over the rights of families and children, lawyers told the High Court in Auckland.
They were representing two New Zealanders have taken the government to court over the government’s stance on overseas visa applications during the pandemic.
The Court’s decision on their case could affect thousands of migrants and their partners and children separated by the closure of international borders since the pandemic began in 2020.
A legal crowd-sourcing fund reached its target of $50,000 target on December 8, 2021, the day on which the case came up in the Court.
About the Plaintiffs
Auckland University Professor Michael Witbrock, whose husband is in China, and Levin businessman David Higgs, whose fiancée is in Indonesia, have moved the Court appealing against the government’s immigration policy.
Higgs was due to marry his fiancée Riani Yudhi Prihatin last year, but her visitor visa application, like that of thousands of others, was cancelled. He cannot live with her in Indonesia because of his work commitments in New Zealand, compounded by a respiratory illness last year and diabetes.
Higgs, who owns a business in Levin, said that he and fiancée applied for her visa in February 2020, soon after which Covid-19 hit New Zealand.
“We were to be married in June last year, and she was coming over for our official engagement party. I have met her family in Indonesia. We fell in love and wanted to get married and live our lives together. It is horrible to be kept apart. It has been devastating and ripping for the children. They are expecting to have a dad; their father passed away because of cancer eight years ago and the seven-year-old son has not known a father,” he said.
Witbrock has different challenges.
“Government breached international law”
He cannot not live with his husband in China because they could face harassment as members of the LGBTQI community.
Their lawyers Stewart Dalley and Pooja Sundar said that the government did not take into account couples who could not live in a foreign country first, before being allowed to do so in New Zealand.
“They have been unable to bring their partners into New Zealand during the pandemic, not only because of border restrictions, but also because immigration stopped processing their visas, then cancelled them,” Ms Sundar said.
Mr Dalley told the Court that the Minister used a blunt tool by cancelling all temporary visas.
He said that the government decided it was too hard to find which visitor visas were for tourists and which ones were for partners and children, so cancelled them all for administrative convenience.
He said that the Minister does not believe that he has international obligations to couples who have not lived together, nor to the families of migrants.
Visa processing closed
Visa processing overseas has been suspended since last year and their applications were cancelled earlier this year. The two plaintiffs said that the decisions of the government have breached international obligations and immigration requirements about couples having to live together to qualify for partnership visas are discriminatory.
Some cannot move abroad to live with their partner due to family, medical or cultural reasons, they said and moved the Court to consider the visa applications of their partners in China and Indonesia.
But the Crown Counsel Matthew Mortimer-Wang said that the government had considered international law when it made its decisions and that other avenues were open to partners.
The government made a general rule as it had thousands of applications which it could not approve or reject while the border was closed.
But that did not mean it overlooked individual rights, he said.
Unfriendly immigration policy
New Zealanders with overseas partners must have lived together before being eligible for partnership visas – not easy before the pandemic, but harder and riskier now.
How long they must have lived together is not set in stone but has precluded many couples for cultural and practical reasons. It works against couples who have not lived as a couple before marriage for religious reasons and against New Zealanders who cannot take an (undetermined) leave of absence from work to live abroad first.
Those who cannot apply for partnership visas because of ‘living together’ requirements have to apply for a general visitor visa, but those are not being processed during the Covid restrictions.
Gill Bonnett is Immigration Reporter at Radio New Zealand. The above report and pictures have been published under a special arrangement with www.rnz.co.nz
