- The appellant's residence application was initially declined due to her husband's past sexual offence convictions and lack of character waiver.
- The IPT found that INZ did not properly weigh the lapse of time since the offences and the lack of risk to the appellant.
- The Tribunal reversed INZ's decision, emphasising the genuine and stable nature of the partnership and special circumstances hindering the husband's relocation to China.
- A character waiver was deemed appropriate, leading to the successful granting of the appellant's residence visa.
Background
The appellant, a 56-year-old female national of China, has been mostly in New Zealand since January 2015. She met her New Zealand-citizen husband, aged 68, in August 2017, started living together in October 2017, and married in October 2018. She was granted two partnership-based work visas from June 2018 to September 2020. Her daughter, who lived in New Zealand for 10 years, returned to China in November 2019.
Prior to Appeal
The appellant applied for residence under the Family (Partnership) category on 22 January 2019. Her husband, when supporting her application, failed to disclose his previous convictions for sexual offences in 1993. Immigration New Zealand (INZ) raised concerns about the genuineness of their partnership due to the husband’s nondisclosure. The appellant, upon learning the truth about her husband's past, reaffirmed her trust and commitment to him.
Immigration New Zealand Assessment
INZ's assessment acknowledged the genuine and stable nature of the appellant’s relationship with her husband. However, it focused on the husband’s character issues due to his past sexual offence convictions and the subsequent need for a character waiver. INZ declined the character waiver, noting the seriousness of the offences but not sufficiently considering the length of time since the offences occurred and the lack of risk to the appellant.
Immigration New Zealand Decision
INZ declined the appellant's residence application on 24 August 2020, stating her husband did not meet the character requirements for a supporting partner, as he was not granted a character waiver.
IPT Assessment
The Immigration and Protection Tribunal (IPT) found that INZ's decision was incorrect. The Tribunal emphasised that INZ failed to give proper weight to the length of time since the husband’s offending (27 years with no similar offences) and the lack of identified risk to the appellant. The Tribunal determined that these factors, along with the genuine and stable nature of the partnership, were compelling enough to justify a character waiver.
Special Circumstances
The Tribunal noted the difficulty for the husband to relocate to China due to his age, the differences in living conditions, and his unsuccessful attempt to secure a Chinese visitor visa. These circumstances were deemed significant and should have been accorded more weight in the character waiver assessment.
IPT Determination
The Tribunal concluded that INZ's decision was unreasonable and incorrect. It reversed the decision, stating that a character waiver should have been granted. The Tribunal directed that a residence visa be issued to the appellant, as she met all other criteria under the Family (Partnership) category.
