The Immigration and Deportation Tribunal is prepared to consider the circumstances of children who are without fault  

We recently acted for a Chinese couple and their young four year old son. Immigration NZ had served the parents with Deportation Liability Notices.

 

Background

The husband arrived in New Zealand in 2004 under a fraudulent passport. Shortly after he applied for and was granted a resident visa. He subsequently met his wife in 2009. She applied for a resident visa in 2011 which included her husband’s fraudulent details. A resident visa was granted and the couple had their first child. As the couple were residents their child was automatically granted New Zealand citizenship at birth.

In 2014 Immigration NZ commenced an investigation into the husband. He was convicted of passport fraud and sentenced in the District Court. Immigration NZ then took steps to remove the couple and their son from New Zealand. The husband and wife were served with deportation liability notices.

The wife’s deportation appeal was primarily focused on the fact that she and her child were without fault. It was also focused on the consequences deportation would have for their child in China. It was accepted that the child would be unable to access education, health care or any other government services in China until he obtained Chinese citizenship.

To obtain Chinese citizenship the child would be required to undertake a complicated and uncertain process. If successful the process could take approximately two years.

If the child did manage to obtain Chinese citizenship he would be required to renounce his New Zealand citizenship as dual citizenship is not recognised in China. 

 

Determination

During the two day appeal hearing we raised a number of arguments. The primary argument was that the husband’s wife and their child were innocent parties to any fraud or misleading information submitted to Immigration NZ. We relied upon the recent Supreme Court decision in Guo v Minister of Immigration [2015] NZSC 132 to support our arguments.

The Tribunal’s determination is interesting, in that, it accepted that in cases involving vulnerable children (who are without fault), that this may form part of an overall assessment of “exceptional humanitarian circumstances”. Accordingly, a person’s innocence is a factor which the Tribunal will take into account as part of its assessment of “exceptional humanitarian circumstances”.

In terms of the remaining part of the Tribunal’s assessment under “unjust or unduly harsh and public interest” tests, innocence will also be relevant.

The Tribunal found in favour of our clients’ appeal on a number of grounds which included her innocence in misleading Immigration NZ.

 

Conclusion

This is a helpful precedent which could be relied upon for any similar type of humanitarian appeals before the Tribunal.

If you are facing an Immigration NZ investigation, or have been served with a Liability for Deportation Notice you should act urgently and get the advice you need.

 

Young Hunter Immigration Team

Simon Graham – Senior Associate – sgg@younghunter.co.nz

Christine Le Beau – Senior Solicitor – cll@younghunter.co.nz

Adam Curtin – Solicitor – akc@younghunter.co.nz

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