Migrants in New Zealand facing a third year apart from their families are hoping the first judicial review of New Zealand’s international border closures will bring about new border rules.
Auckland University professor Michael Witbrok and Levin businessman David Higgs have taken Immigration Minister Kris Faafoi to court – challenging his decision to cancel all offshore visas and suspend the processing of any new ones until at least August next year.
Witbrok’s husband is in China, while Higgs was due to marry his Indonesian fiancée last year.
Their lawyers, Stewart Dalley and Pooja Sundar, argued on their behalf in the High Court at Auckland on Wednesday, alleging that the situation amounts to international law being broken. It’s hoped if the case is successful, it will pave the way for thousands of others to reunite with their families on New Zealand’s shores.
“In the face of a pandemic, in the face of some tragedy befalling a country, if you have to do something which means you have to delegate international obligations, then you notify the UN that this is what you are doing. New Zealand hasn’t done so,” Dalley said.
They say at least 3000 families across various visa categories are believed to have been affected by the Government’s decision to cancel thousands of visa applications and stop processing new ones when the pandemic hit.
The suspension has been extended several times and is now not due to lapse until at least August next year.
“I don’t think we can say this was anything other than administrative ease,” Dalley said.
“It was administrative ease over the rights of families and children.”
At Wednesday’s judicial review, Crown Counsel Matthew Mortimer-Wang spoke on behalf of Faafoi. He says international law is taken into consideration, but ultimately the line does need to be drawn somewhere.
“The minister is the decision-maker at the end of the day. But feels, and is aware of those obligations, and the need to try to draw a line somewhere, with the knowledge that will have real-world consequences.”
Higgs says he hopes that ultimately, those in charge of New Zealand’s borders will rethink these restrictions.
“We want them to reconsider, rethink, reconfigure how they are treating split families and how they can get them back together.”
Higgs is a New Zealand citizen but because he met his partner online, they hadn’t had a chance to live together and prove their relationship was genuine before the pandemic hit.
“I went over there and spent time and got to know the family and the kids. You know, we fell in love, wanting to get married. We’ve worked through Covid, through all the ups and downs. To be told that we can’t be together is devastating for both us.”
Witbrok told 1News earlier this year that the policies around what defines a genuine partnership seems discriminatory. He had to fight to prove that his marriage to a Chinese man was genuine and by the time they had gathered all the required evidence, the pandemic hit.
“If they had accepted that we were genuinely married, it would have been possible to get him into the country in time,” he said.
“It makes it particularly hard to take.”
Dr Kuhan Padmanathan is a Wellington GP who has called New Zealand home for 14 years. It's his hope that the judicial review will bring about change that could reunite him with his wife here in New Zealand.
If that doesn’t happen, he’s thinking of taking his much-needed skills elsewhere.
“Family is more important than government policy. If it doesn’t suit my needs, I will take my skills and leave. There are plenty of countries who would be happy to have me. I’m UK-trained - I might consider going back to the UK to work.”
His wife, who is currently in Malaysia, is also a doctor skilled in obstetrics and gynaecology.
“She’s about one exam away from becoming a specialist and she’s keen to come and work here and live with me.”
But because they were unable to prove their relationship was genuine due to Immigration New Zealand’s narrow definition of a partnership under current legislation, their application was declined.
They are unable to challenge this while the current suspension on the processing of offshore visas remain in place.
“When you are letting in sports persons, the Wiggles, Google founders, movie set personnel but neglecting the family unit… that’s active neglect and discrimination of our needs,” he said.
“So what is my incentive to provide for the Covid response on the frontline? I put my life on the frontline every single day. What is my incentive to continue to do that?”