Appendix one – Immigration Act 1987 and domestic violence
The Immigration Act 1987 sets out the framework for determining who may enter and remain in New Zealand on a temporary or permanent basis, and the rights of New Zealand citizens to be in New Zealand. It outlines processes for a range of immigration decision-making, including on visas (offshore) and permits (onshore), refugee status, refugee status cancellation, permit revocation, removal and deportation. The Immigration Act establishes the decision-making powers of the Minister, visa and immigration officers, refugee status officers, relevant appeal bodies, and the courts. The Act also provides for the detection and prosecution of people who have used false or misleading information to get a visa or a permit. Monitoring of migrants’, sponsors’ and third parties’ (employers and education providers) compliance with the Act and conditions of stay is also covered. Specific policies which (amongst other things) relate to the rules and criteria under which eligibility for the issue or grant of visas is determined are set out in the Immigration Operations Manual.
The Department of Labour’s Victims of Domestic Violence (VDV) policy enables people temporarily in New Zealand who have been living together in an established relationship with a New Zealand citizen or resident, and who had intended to seek residence in New Zealand on the basis of that marriage or relationship, to apply for a work or residence permit:
- If that marriage or relationship has ended due to domestic violence by the New Zealand citizen or resident, and
- If they returned to their home country, they would be disowned by their family and community as a result of their relationship ending, and have no means of independent support.
The details of the policy, which applies to both women and men, are set out in sections S4.5 (residence permit) and WI5.30 (work permit) of the Operations Manual. The policy was strengthened in April 2007 to include a protection order as evidence of domestic violence for the purposes of the policy.
The following evidence must be provided in support of domestic violence having occurred:
- A final protection order against the New Zealand citizen or resident partner or intended partner under the Domestic Violence Act 1995, or
- a relevant New Zealand conviction of the New Zealand citizen or resident partner or intended partner of a domestic violence offence against the principal applicant or a dependent child of the principal applicant; or
- a complaint of domestic violence against the principal applicant or a dependent child investigated by the New Zealand Police where the New Zealand Police are satisfied that domestic violence has occurred and
(in all cases) referral to the New Zealand Immigration Service by a Child, Youth and Family approved Refuge Organisation.
The definition of ‘domestic violence' in the policy is linked to the meaning set out in s.3 of the Domestic Violence Act 1995.
However, recent research has further proposed that:
- The VDV policy include a consideration of the interests of children when determining whether a woman’s application for residence and/or a work permit should be granted
- Immigration officers considering applications for residence under the VDV policy be enabled to consider a wider range of evidence in determining whether domestic violence within the meaning of section 3 of the Domestic Violence Act 1995 has occurred, but that the rules be drafted to specifically exclude information from the abuser.
The Department of Labour (DOL) is further reviewing the VDV policy, in consultation with the Ministry of Women’s Affairs, to identify if its provisions and operations could be even further improved. This work includes considering the above recommendations.
The VDV policy links to character criteria for sponsors of partners. A perpetrator of domestic violence that has resulted in granting residence to a person under the VDV policy cannot sponsor a subsequent partner for residence or a temporary permit. Additional character criteria for sponsors of partners came into force from 5 November 2007. A person with a conviction for domestic violence or sexual crimes cannot sponsor a partner for residence or support a partner’s or an intended partner’s temporary entry application, unless they are granted a character waiver. The exclusion from sponsoring in regard to the current and new criteria is set at seven years.
Further, as part of the Immigration Act Review, which was tabled in Parliament in August 2007, Cabinet has agreed that the legislation will provide that sponsors of applicants for residence or a temporary permit have to be acceptable to the Minister of Immigration or an immigration officer. Application of section 3 of the Domestic Violence Act could mean that some sponsors may be deemed as unacceptable for the purposes of an application for residence or for a temporary permit on the basis of partnership. The Immigration Bill is currently before the Transport and Industrial Relations Select Committee.
