Unreasonable approach by INZ to the removal of the ability to support a Partnership Category visa for deemed perpetrators of family violence

Background

In 2018, the Ombudsman received six complaints from New Zealand citizens and residence class visa-holders about Immigration New Zealand’s (INZ’s) application of the Victims of Family Violence (VFV) visa category. [1]

The complainants were former partners of individuals who had obtained VFV visas, after their relationships with the complainants had ended.

The complainants all raised the same issue with the Ombudsman. They had sought to support a new partner’s visa application but were then told by INZ they were ineligible to act in a support capacity. This was because their former partners had been granted VFV visas, on the basis that the complainants had perpetrated family violence. However, the complainants had not been informed by INZ that their former partners had received VFV visas. Nor had they been told that they were ineligible to act in a support capacity in future.

The complainants advised the Ombudsman that they would have disputed the allegations of family violence if the opportunity had been provided. They highlighted that the allegations were untested and not verified through any court or formal process.

Broadly speaking, the following process occurred:

• The complainants successfully supported their (former) partner’s visa application based on their relationship. At some stage, the partnerships ended and in due course the complainants formed new relationships.
• The complainants’ former partners applied for and obtained a VFV visa. During the application process, INZ accepted evidence that the complainants had perpetrated family violence against their former partners. [2]
• In accordance with INZ instructions, the complainants were not:
  • given the opportunity to respond to the evidence against them;
  • informed that INZ had accepted evidence that they had perpetrated family violence; or
  • advised that they were no longer eligible to act in a support capacity for any further partnership category visas.

Subsequently, the complainants’ new partners applied for partnership category visas, based on their relationships with the complainants. At that stage, the new partners were advised by INZ that the application could not proceed. The complainants were not eligible to support a Partnership Category residence visa application, as INZ had accepted evidence, in the context of a separate VFV application, that that they had perpetrated family violence against their former partners.

INZ family violence special residence visa

In summary, a person is eligible for a VFV residence visa, subject to health and character requirements, if:

• the partnership that was intended to form the basis for their residence application has ended due to family violence; and
• the person is unable to return to their home country.

The VFV visa category is intended to assist victims of family violence who do not have residence rights, and cannot return to their home country for financial, social or cultural reasons. [3] The grant of a VFV visa means the person who has been accepted by INZ in terms of immigration instructions S4.5.5 to be the perpetrator of family violence becomes ineligible to support future visa applications under the partnership category. [4]

The VFV category was introduced in 2001, requiring the applicant to provide INZ with established evidence of family violence based on information from the courts or police. There was no requirement for INZ to contact the alleged perpetrator before or after the grant of a VFV visa to the applicant. In other words, there was a policy of ‘non-notification’ to protect the safety of the victim.

In early 2009, immigration instructions were amended to expand the category of acceptable evidence to include non-judicial evidence of family violence. This included statutory declarations from the applicant and appropriate professionals. [5] This change occurred because research indicated that very few victims of domestic violence pursued a formal complaint through legal channels. This meant that they were ineligible for the VFV residence visa despite falling within the policy objectives of assisting victims of family violence, in the absence of evidence from the courts or police about family violence.

In order to maintain the privacy and safety of victims of family violence, the ‘non-notification’ aspect of those accepted to be perpetrators of violence was maintained. This approach meant that some individuals were unaware they were deemed perpetrators of family violence under INZ’s immigration instructions and were therefore disqualified from sponsoring their new partners.

Footnotes

1. Immigration residence instructions are certified by the Minister of Immigration and are government policy. Return to text
2. Under Immigration Instruction S4.5.5 Evidence of family violence acceptable evidence of family violence includes a final Protection Order under the family Violence Act 2018; a New Zealand family violence conviction; complaint of family violence investigated by the Police; or statutory declaration that family violence has occurred. Return to text
3. Refer to immigration instructions S4.5. Return to text
4. Refer to immigration instructions F2.10.10, WF2.5 and V3.15.5. Return to text
5. See ftn 2, above for the types of acceptable evidence. Return to text