A 5-year-old boy’s Māori heritage was not enough to keep his Indian migrant mother in the country on a family violence visa - but a middle-aged American woman with no children was permitted to stay under the visa’s “special circumstances” because she was due to inherit US$2 million.
Community Law Centres o Aotearoa is calling for an urgent review of the family violence visa after research published this month showed immigration authorities largely dismissed domestic violence suffered by migrant women in decisions declining the visa.
It left some women facing deportation, reliant on an abusive ex-partner to stay in New Zealand, or trapped in a violent relationship, with some considering taking their own lives to avoid the stigma and harassment they would attract as divorced women once deported to their home country.
In one case, an international student had household appliances thrown at her by a fiance 17 years her senior who threatened to kill her, but the Immigration and Protection Tribunal described the abuse as not out of the ordinary or uncommon.
The research, by former Community Law lawyer and national coordinator Sarah Croskery-Hewitt, analysed 49 decisions of the Immigration and Protection Tribunal between 2012 and 2021 under the Victims of Family Violence (VFV) visa and found many of them normalised or minimised the impact of family violence.
The report, Fighting or Facilitating Family Violence? Immigration Policy and Family Violence in New Zealand, showed New Zealand’s family violence visa eligibility criteria was more narrow than comparable visa schemes internationally.
The visa policy requires applicants for residence to establish they are “unable to return to their home country” because of the impacts of stigma or a lack of financial support.
Community Law Centres o Aotearoa chief executive Sue Moroney said the requirement was being interpreted narrowly and with a high threshold by the tribunal, which determined appeals on decisions made by Immigration New Zealand.
It meant few victim-survivors, many of whom were from Fiji and India, could access family violence residence visas, Moroney said, putting migrant women in danger.
“The current settings for family violence survivors who are foreign nationals have been in place for more than 20 years with minimal change to eligibility criteria, even though successive immigration ministers have committed to reviews since 2012.
“However, no reviews have taken place, and concerns about the adequacy of the family violence visa policy, raised by both domestic and international organisations, remain unresolved.”
Moroney said the report shone a light on all IPT decisions concerning the family violence visa for the first time, and the results were concerning.
The report, funded by the Borrin Foundation, found:
- The IPT has to make complex assessments and decisions about victim safety and family violence risk prediction, often without access to appropriate expertise;
- Decisions frequently minimised appellants’ fears of abuse if they were to return to their home country, dismissing threats of violence as “speculative”;
- Many decisions normalised or minimised the impact of family violence.
Croskery-Hewitt said the normalising of family violence was particularly surprising in the context of Victims of Family Violence visa appeals, given the policy sought to end violence against women and children and explicitly included international obligations to that effect.
“It seems perverse, in light of these obligations, to cite the ‘commonness’ of family violence in New Zealand as a reason that an immigration response is not warranted,” she wrote.
Also of concern was inconsistency in the rationale for denying appeals.
A woman’s resilience in the face of violence was a reason she could withstand a return to a hostile environment, according to the report.
But conversely, the IPT questioned the contributions to New Zealand of those who did not display the same resilience to deny them access to the visa, Moroney said.
In the case of the 37-year-old Indian mum, the tribunal said the fact she was well-educated and previously owned her own businesses meant she could support her young Māori son in India.
The boy’s father argued his son should remain in New Zealand so he could identify as Māori, but the tribunal said there was no evidence the boy’s twice-yearly visits with his father were of such value that it required him to stay in New Zealand.
Although the mother was the primary caregiver and her son had just started school, he only spoke English and she needed a court order to remove him from New Zealand, the tribunal said the child was not a “special circumstance”.
Neither was her risk of social exclusion in India, a patriarchal society in which divorced women are shunned and vulnerable to discrimination and sexual harassment in the workplace.
By contrast, a 56-year-old American woman with no children was allowed to stay in New Zealand despite her field of work being removed from the long-term skills shortage list.
But because she could make a significant contribution to New Zealand through her hospice work and a potential future inheritance of US$2 million ($3.22m), this qualified her under special circumstances.
“The context of her experiences of violence appeared to be of little relevance to the finding of ‘special circumstances’,” Croskery-Hewitt wrote.
Shakti, an advocate and refuge for Asian, African and Middle Eastern women, said it had long advocated for a review of the visa policy.
Shakti legal adviser Manisha Saini said the policy was dated and did not necessarily address the situations victims of family violence face or their needs.
“The testing criteria for establishing ‘inability to return home’ certainly needs further clarity and needs to be updated,” Saini said.
“The current criteria leads to skewed and sometimes unfair results, depending on the country a victim hails from.”
Immigration Minister Michael Wood said the Government had expanded access to the Victims of Family Violence work visa to include people who were on partner-based visas linked to temporary migrants, and further work was planned to consider other changes.
Wood said the expansion, which came into effect on February 28, enabled eligible migrants to obtain a six-month open work visa independent of their partner.
However, Moroney said this did not address the fundamental issues with the visa, and Saini said the decision to limit the visa’s duration to six months was questionable.
“Six months is practically not enough time for a migrant recovering from experiencing family violence to find employment, housing, etc to establish themselves independently.
“Employers usually do not entertain candidates who have less than six months of work rights. It is similarly difficult to be considered for rental accommodation when your visa is so short.
“The duration of the visa should be at least a year for it to provide a viable means for a victim to gain independence and consider future options.”
Moroney called on the Government to undertake a review and ensure the IPT received family violence-related training.
CLCA would write to the tribunal to express concern at the report’s findings.
A spokesperson said tribunal chairman, District Court Judge Charles Treadwell, became aware of the report days after it was published but he was bound by convention and could not comment.