It will be interesting to see that how the government will choose to respond to the latest lawsuit mounted against Immigration Minister’s two recent decisions.
The first decision is dated 23 June 2021, related to the continued suspension of the processing of offshore visa applications until 06 February 2022. The second, dated 07 July 2021, is the Minister’s decision to issue instructions to Immigration New Zealand to lapse or return and refund offshore visas, including applications made by partners of New Zealanders and migrants.
The governments usually respond to such litigations with utmost care and conservatively, refusing to concede much ground and often hiding behind technicalities, especially when it is confident that it can manage any political fallout that may arise from the outcome of the judicial review decision.
Noted Immigration Lawyer Alastair McClymont is sceptical that the government may be tempted to take that route in dealing with this lawsuit because it is confident of its overwhelming majority in parliament and high polling numbers in the latest polls, and the apparent absence of will within the Kiwi-Indian and the wider migrant community to stand-up and ask tough questions from the representatives of the government.
Speaking to the Indian Weekender in an exclusive interview, Alastair said, “If the government chooses to quash the litigation based on technicalities, then it is an obvious sign of arrogance and defeats the whole purpose of judicial review.”
The alternative to this is a quiet reflection and revisiting of the government’s decisions that are being challenged in the court.
“Judicial Reviews are often seen as an opportunity for making the government to listen to people through other means [if the government is not listening directly] Alastair said.
“During judicial reviews discussions in courts, the crown prosecutors are encouraged to have meaningful conversations with the government, particularly advising them about the potential fallouts of an adversarial outcome in court proceedings,” Alastair said.
“That is the opportunity for the government to listen to people’s aspirations and revisit its earlier course of actions.”
Notably, one of the decisions under judicial review is of lapsing of around 50,000 visa applications filed offshore after 6 August 2020, that would have cancelled a large chunk of General Visitor Visa based on the relationship with NZ citizen and residents – a pathway used primarily by members of Kiwi-Indian community - to bring their spouses in the country.
For quite some time, members of the Indian community have been experiencing a systemic bias by Immigration New Zealand against relationships based on Indian marriages for visa purposes.
Given that in Indian culture, along with many other cultures of the world, living together before marriage is not an option, Immigration NZ has not been approving partnership visa applications, and instead as an ad-hoc solution issuing an alternative “general visitor visa” based on the relationship with their New Zealand based partners.
In 2019, the issue came up to the fore when Immigration New Zealand started a mass rejection of applications emanating from their Mumbai office, apparently to clear the long burgeoning visa processing queue, on the grounds of not issuing the alternative “general visitor visa” based on the relationship with their New Zealand based partners.
On persistent media probing and community outrage, especially against a racist barrage against the Indian community by a then Minister of the crown under the current government, Prime Minister Jacinda Ardern intervened and made claims that the issue has been fixed and the perceived bias against Indian marriages for the purpose of visa was removed.
That claim, as it turned out, was not correct, and Immigration New Zealand’s bias against relationships based on Indian marriages continued and no “Partnership visas” were issued for entering into the country.
As a band-aid solution then, INZ returned to the pre-May 2019 position of issuing an alternative “general visitor visa” to facilitate members of the Kiwi-Indian community to bring their overseas-based spouses.
When the NZ government closed the borders in March 2020 – all such Kiwi-Indians who had married their overseas-based partners as per their traditional Indian marriages were not allowed to enter New Zealand. (This also included people who have already arrived in New Zealand on such alternatively issued visitor visas and were travelling overseas at the time of border closure).
Surprisingly, and unfortunately, the Kiwi-Indian community and their leaders had not taken up on the issue that was clearly discriminatory and biased against Indian marriages.
In that regard, this latest opportunity of judicial review of the Immigration Minister’s decisions can also be an opportunity for fixing a long persisting bias in immigration rules against relationships based on Indian marriages.
However, it will all depend on the collective will of the members of the Kiwi-Indian community and their leaders to raise their voice against this discrimination against Indian marriages within NZ’s immigration rules.
Ideally, relationships based on Indian marriages should also be eligible for “partnership visas” just like partners of other Kiwis and not an ad-hoc arrangement of “General Visitor Visa based on relationships that can be scrapped on the flimsiest pretext.