Turner Hopkins Solicitor Mahafrin Variava concludes her two-part series on the Character Requirements of Supporting Partners: Policy and Challenges. She writes: “While it is acknowledged that a fair process is followed by allowing the partner the opportunity to comment on the surrounding circumstances … the end product is still that the seriousness of the offence holds significant weight in the assessment of the application.” Read Part 1 here.
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Reflections
The wording under both the temporary policy and residence visa applications when considering a character waiver are similar. For example, INZ advises that officers must not automatically decline an application – thus hinting at the need for caution when assessing such applications.
Phrases such as “consider the surrounding circumstances”, “compelling enough” and “circumstances include but are not limited to the following factors as appropriate” are also included. What is also key is that “Officers must make a decision only after they have considered all relevant factors”.
At first glance, the consideration of all these factors certainly suggest that Officers undertake a thorough assessment process before arriving at the decision. However, a critical view would be that the process is arguably superfluous due to the nature of the offence, which will likely see a negative outcome of the character waiver assessment and a decline.
While it is acknowledged that a fair process is followed by allowing the partner the opportunity to comment on the surrounding circumstances – thus giving the client a fair pathway and displaying that INZ has in fact taken steps in achieving fairness and natural justice in their decision making; the end product is still that the seriousness of the offence holds significant weight in the assessment of the application.
It would be worth observing the rates of decline against those of approval under these policies in recent years; and even go as far as comparing cases of domestic violence and offences of a sexual nature (especially where minors are also included in an application).
The wider context
While there are no statistics, or numbers that show a trend in the rates of decline under this policy – one can safely say that especially in cases of prior offending of a sexual nature – these will likely be decided the same way. These cases demonstrate that INZ (despite considering whether a character waiver is warranted) will look to the gravity of the offence; and will apply a narrow approach in interpreting policy. Whether this warrants a review of the assessment process and how decision makers arrive at an outcome – is yet to be decided.
An aspect worth considering is the impact on the clients, their relationships and their lives. If the relationship ends, based on a decline – then should a principal applicant apply for a visa in the future based on partnership (with another partner), INZ may raise questions about the principal applicant’s intentions. There is no doubt INZ will have a good look at the evidence surrounding the new relationship (perhaps even verify it through an interview) but given the circumstances and in the interests of ensuring that it arrives at the right decision – this would be reasonable.
Finally, I pose the following question “Where does it stop?”. Mr A was an individual who wished to move on with his life, visit his partner’s home country and start a family without facing the ongoing stigma associated with his past. We must remind ourselves that in the end, we are dealing with people – negative decisions can often set them back and deter their progress.
If the intention of our justice system is in fact to give offenders an opportunity to integrate into their communities – then this must be reflected across all government bodies and must be factored into their decision making.
For more information about this case or any immigration matter, please contact the author.
Turner Hopkins Solicitor Mahafrin Variava has specialised in Immigration Law for over three years. She takes great pride in providing a service that transcends beyond cultural and language barriers and attributes this to her own experiences as a migrant facing challenges accessing legal services. Mahafrin primarily acts for individuals and their families but has also advised Government departments and employers on maintaining an immigration compliant workforce and on matters related to refugees and asylum seekers. Outside of work, Mahafrin volunteers at the Community Law Centre and believes in doing what she can to give back to Aotearoa. Contact Mahafrin at mahafrin@turnerhopkins.co.nz or connect via LinkedIn.
