Long-term migrant's residency appeal fails while awaiting murder trial

A migrant dairy worker facing a murder charge in Africa has failed in his last chance of settling permanently in New Zealand.

By Gill Bonnett of RNZ

The 58-year-old had not told immigration authorities about the alleged murder, which occurred less than a fortnight after he flew home to Kenya.

He had arrived in New Zealand in 2007, working as an assistant herd manager until 2016 and returning to the same farm in 2019 as a herd manager, with his employer saying he wanted him back and describing him as "almost like a member of our family".

But the immigration and protection tribunal (IPT) has upheld the decision to deny him residence.

In 2022, the man was one of 200,000 people who applied for a short-lived residence visa category, which had 'settled, skilled or scarce' criteria - his job fell into the latter category.

His application also included his wife, aged 52, and their two children, 23 and 15, who have not yet been to New Zealand.

Immigration New Zealand (INZ) was considering his application when the man went back to Kenya after his mother died.

The death of another relative - seemingly in amid family conflict - occurred 11 days later, and the man and one of his brothers were later charged.

"In January 2023, the appellant returned to Kenya, following the death of his mother," said the appeal tribunal decision. "It was evidently his intention to return to his employment in New Zealand. However, this event appears to have precipitated an intra-family dispute that resulted in the appellant and his co-accused being charged with the offence of murder later that month."

Three months later, the Kenyan High Commission confirmed to Immigration New Zealand that the court had charged the appellant with murder and "ordered that he not travel out of the country without leave of the court".

The man did not himself notify INZ about the criminal case, until after they wrote to him about it. The agency later ruled that not disclosing the charge was deliberate and was grounds for rejecting his residence visa. The question of whether he was guilty of murder remained undecided.

INZ deferred its final decision three times to await his trial - although the man said it was not for long enough and one of those deferrals was only for 36 days.

"The tribunal observes that the court proceedings in respect of the appellant's criminal charge of January 2023 were beset by delays. Update letters from [the man] and his lawyers referred to numerous and various reasons, not least initially because the appellant's co-accused had absconded, and the court was awaiting his arrest."

The trial has still not taken place.

The tribunal disagreed that INZ had wrongly inferred the man's guilt, or treated his outstanding charge as a conviction.

"He submits that he has always been truthful in his dealings with Immigration New Zealand (going so far as to have advised of a traffic offence that was not necessary to disclose) and has never before been in trouble with the law.

"Several character references from his former employers describe him in wholly positive terms ... letters from [his] lawyers state that the evidence against the appellant is weak and will likely lead to his acquittal."

The man, who was not represented by a lawyer at the tribunal, also argued he had not intended to withhold information. He and his child were suffering with mental illness after the January 2023 death, and that had taken a toll on him.

"In his letter to Immigration New Zealand, the appellant outlined the facts of the case that resulted in his charge, referred to the police corruption that was rife in Kenya and had impacted on his predicament, and the timeframe of the legal process of his case."

But the tribunal ruled that "Immigration New Zealand is not obliged to continually defer an application, or necessarily await the outcome of a decision on such matters".

The Kenyan man said his family's humanitarian circumstances should also be considered. His wife and children had depended on his work in New Zealand and the family were experiencing very difficult financial circumstances without his income.

"He does not want his older child to have to forfeit her university degree and future career, and he provides evidence that his younger child's school fees are in arrears," which had led to her being forced to miss classes.

However, the tribunal found that INZ correctly declined his application and he did not have special circumstances to warrant asking the immigration minister to consider whether he should be granted residence.

"The appellant has a lengthy connection to New Zealand, having spent approximately 12 years working here on dairy farms during the last 19 years. His contribution to New Zealand through consistent employment, and time spent here as a lawful temporary visa holder, are factors that are not commonplace among residence applicants. However, his immediate family remain living in Kenya and have not travelled to New Zealand, and he has found himself living in Kenya for the last three and a half years.

"While he has not been convicted, and the evidence suggests that he is otherwise of good character, this outstanding charge makes it inappropriate that the tribunal recommend an exception to instructions be considered," it said.