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Husband separated from spouse over visa issues takes case to High Court

By 22 July 2021April 8th, 2024No Comments

An Auckland University professor who has not seen his husband for 18 months is taking the Immigration Minister and chief executive of the Ministry of Business, Innovation and Employment (MBIE) to the High Court.

Michael Witbrock married his partner, who is from China, in New Zealand in August 2019. The pair lived together but not long enough to meet New Zealand’s immigration requirements to prove they were legitimately married.

Speaking to 1 NEWS, Witbrock says he feels the process has been “discriminatory” and he has had to fight to prove his marriage is genuine.

Many families have been separated as a result of Covid border restrictions, with visa applications being suspended because of the pandemic.

But now a legal application has been made – the first of its kind – related to Covid and decisions made by Immigration Minister Kris Faafoi. A legal team is going to the High Court, seeking a judicial review of several decisions made by Faafoi and Immigration New Zealand.

In particular, the suspension of the processing of all offshore visa applications and the cancellation of a number of visa applications where a decision was yet pending.

Today Auckland firm D&S Law filed High Court proceedings on behalf of Witbrock, seeking judicial review of two recent decisions made by the Immigration Minister.

In a statement tonight, D&S Law said the grounds for the action are that “the Minister failed to properly consider the obligations under international conventions, which New Zealand ratified and placed on him when making these decisions as it continues to separate partners and families”.

“The decisions made also result in discrimination on the basis of race, religion, sex and sexual orientation, as these social groups are not always permitted to live together with their partners depending on which country they are based.

“Freedom from such discrimination is protected by the New Zealand Bill of Rights Act 1990.”

1 NEWS has contacted Faafoi and MBIE for comment but have said they are “not in a position to comment at this stage”.

An emotional Witbrock told 1 NEWS “it seems reasonable for New Zealand just to trust that your relationship is genuine and let your partner be together with you”.

He said he feels New Zealand’s immigration policy is effectively “discriminatory against gay people because this denial of our relationships is exactly the way we’ve been discriminated against in the past”.
Witbrock, who works in the science faculty at Auckland University, says he doesn’t expect the Government to change border restrictions or receive special treatment but says he’s asking the Government “to show a little kindness in its approach to immigration”.

“It has taken a toll, especially on my partner. At least I’m here and in a reasonably good position and able to talk with him every day but his life is on hold. And we should be enjoying a normal relationship and we could have been.”

He says Immigration NZ denying their initial relationship caused the delay which has now spiralled into months of separation.

“If they had accepted that we were genuinely married, it would have been possible to get him into the country in time.”

“It makes it particularly hard to take for him,” Witbrock said.

By the time the couple had prepared the “extensive” information demanded by Immigration NZ, “they weren’t issuing visitor visas”.

“We were left in this state of having been denied.”

Pooja Sundar, one of two lawyers representing Witbrock, says the couple are being discriminated against because of their sexual orientation.

“Some people’s culture, their ethnic background, their religion or sexual orientation doesn’t allow them to live together. Michael is one of them. His husband is in China and China doesn’t recognise same sex relationships,” Sundar explained.

What went wrong?

Witbrock’s husband applied for a visa to come to New Zealand to be reunited with Witbrock in November 2019.

Immigration NZ finally determined the couple are in a genuine and stable relationship after extensive evidence was provided and were prepared to grant a visitor visa, but due to the suspension on issuing such visas, he has not yet been granted one.

A subsequent border exemption request was declined by Immigration NZ.

The couple have not seen each other in person since January 2020. The applicant’s partner is a citizen of China where he currently lives.

It would be more difficult for the pair to reside in China given the lower recognition of same-sex relationships in that country, compared with New Zealand. But now New Zealand’s immigration restrictions have made reuniting impossible for now.

Sundar says the firm is in “for the long haul” with Witbrock’s case.