Son and daughter may stay in New Zealand, but mother must return to Tonga, says Tribunal

    Kuo tali ha tuofefine ta’u 31 mo ha tuonga’ane ta’u 29 ke foaki ‘ena pepa nofo fonua Nu’u Sila’ kae tu’utu’uni ke fakafoki ‘ena fa’ē ta’u 55 ki Tonga. Ko e ta’u ‘eni ‘e 19 e ‘ova ‘a e fa’ee’ ‘i Nu’u Sila’ ni pea kuo tu’utu’uni ke foaki ‘ene visa ngāue māhina ‘e hiva ke ngāue ai mo fakamā’opo’opo ‘ene nga’oto’ota’ ki he foki ki Tonga. Taimi tatau, ‘e malava ke ‘apalai ‘i Tonga ha’ane pepa nofo fonua Nu’u Sila ke ne foki mai’aki koe’uhi he ko hono mali ua ‘i Nu’u Sila’ kuo ‘osi pepa ia.

    The New Zealand Immigration and Protection Tribunal has allowed a brother and sister to stay in the country, but has turned down an appeal against deportation by their mother.

    The three family members, a  55-year-old mother, her 31-year-old daughter and her 29-year-old son, all citizens of Tonga, were all living unlawfully in New Zealand.

    The mother was born in Tonga in 1963. She married, and she and her husband had two children, the daughter born in May 1987 and the son in July 1989. The couple later divorced. The former husband still lives in Tonga.

    In December 1996, the mother and the two children came  to  New  Zealand.  They were granted visitor visas, valid to February 1997, after which they were unlawfully in New Zealand.

    In December 2003, the mother married  her  second  husband,  a  Tongan-born New Zealand resident.   His mother, sister and six married children live in Tonga.

    In September 2006, she was granted a work visa on the basis of her partnership, and this was renewed in April 2007, valid until March 2008. The daughter and the son were granted visitor visas in line with their mother’s visas.

    In May 2007, the son was married.  He and his wife had three children, all   New Zealand citizens, born in July 2007, July 2009 and July 2012. His wife recently left him.

    In July 2018, the appellants were granted visitor visas to test their  eligibility for resident visas. However, their requests for further  visas were unsuccessful.

    The Tribunal said that in assessing he circumstances of the appellants, it was satisfied, on  the basis of their lengthy settlement in New Zealand and the best interests of the son’s children, that they met the high threshold required for exceptional circumstances of a humanitarian nature.

    The Tribunal said that the son and the daughter, who arrived as children, could not be held initially responsible for their unlawful status.

    They had been settled in New Zealand for a lengthy period and formed a supportive family unit together with the son’s three young  New Zealand-citizen children.

    The son and daughter were therefore allowed to stay in New Zealand.

    “However, the mother has known throughout of her unlawful status of 19 years,” the Tribunal said.

    “She married her husband knowing that she did not have the right to ongoing status here and she and her husband must reasonably have turned their minds to what would occur if she was required to leave”

    She had  spent most of her life in Tonga and was familiar with the language and lifestyle.

    Her husband, being a citizen of  Tonga, would have the right to visit her or settle there again. His mother, sister and six married children all live in Tonga.

    However, the Tribunal noted that the mother had a possible  pathway to New Zealand residency through her husband and this can be processed to completion while she was in Tonga.

    The Tribunal directed that a work visa  be granted to the mother,  valid for nine months,  to give her time to get  her affairs in order, in relation to her visa application and living arrangements, before leaving New Zealand.  

    Should the processing of the mother’s application not be completed within the  nine months, Immigration  New Zealand had  the  discretion  to grant  a further temporary visa until the processing was completed.

    The main points

    • The New Zealand Immigration and Protection Tribunal has allowed a brother and sister to stay in the country, but has turned down an appeal against deportation by their mother.
    • The three family members, a  55-year-old mother, her 31-year-old daughter and her 29-year-old son, all citizens of Tonga, were all living unlawfully in New Zealand.

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