Families and couples separated by the border closure have lost a legal challenge against immigration rulings.
The New Zealand coat of arms. Photo: Radio NZ
Split families crowd-sourced funds to support the case brought by two New Zealanders, who claimed the government chose administrative convenience in its decisions, which prevented them from being reunited with their partners.
The case also alleged immigration decisions during the pandemic had been discriminatory and were in breach of the Bill of Rights.
Michael Witbrock and David Higgs, whose partners are from China and Indonesia respectively, brought the High Court case.
They fought the decisions to extend the suspension of temporary visa applications and then to lapse existing applications.
One of the temporary entry visa categories excepted were partners and children of a New Zealand citizen or resident, but did not cover partnerships where couples had been previously unable to live together.
Witbrock said he could not live with his partner in a same-sex relationship in China, and Higgs was unable to live in Indonesia with his fiancee.
Justice Walker outlined the difficulties couples said they faced because they cannot meet the 'living together' requirements.
"This is a particularly acute problem for people from certain ethnic and religious backgrounds because their culture, society and/or religious beliefs do not allow partners to live together before marriage," he said in his ruling.
"It is similarly an obstacle for those living in countries which discriminate against same sex relationships and others in the LGBTQIA+ community. This is described in the plaintiffs' evidence as a 'Catch-22'; couples must live together to meet the partnership visa requirements yet require a visa to be able to live together in New Zealand for cultural, societal or religious reasons."
He said the men were also taking the action for other visa applicants and partners affected by the measures.
Hundreds of families were separated by the decision to suspend visa processing, and are having to reapply, which left them facing an even longer wait.
But the government argued no-one could be granted visas while border restrictions were in place, and there was no identifiable "queue" for an applicant to lose a place in when their application was lapsed.
Immigration New Zealand (INZ) estimated about 40,460 applications would be lapsed, of which more than half (24,144) were visitor visa applications. But it said it could not determine which of those visitor visas were based on relationships without looking at each individual application.
The men said the immigration minister failed to consider obligations under international human rights conventions and the discriminatory impact of its decisions under the Bill of Rights Act.
They "argue that the relative 'reasonableness' of the suspension decisions has diminished over time given the increasing availability of widespread pre-departure testing, vaccinations, shorter MIQ stays and the length of separation of families".
'Blanket policy' of no intervention
Immigration specialist Katy Armstrong told the High Court that other avenues for overseas partners were effectively closed, or in the case of humanitarian exemptions, subject to very high decline rates.
"The Associate Minister of Immigration, who has been delegated the Minister's power of issuing visas under s 61A of the Immigration Act 2009, has effectively put in place a blanket policy of not intervening in cases where the applicant is offshore during the pandemic and the border closure."
The men's lawyer, Stewart Dalley, said the minister prioritised "administrative ease" over international obligations, not working to solve problems wrought by the border closure in a more nuanced way.
But the court ruled administrative ease was part and parcel of an allocation of finite resources, a matter for government policy-making.
Justice Walker said the case did not show that the decisions "disproportionately affect the identified subgroups of persons in a manner amounting to indirect discrimination".
He concluded that, partly as INZ was unable to provide figures on who was affected, there was no cogent evidence on which to draw any safe conclusions about whether the impact was disproportionate.
"On its face, it may appear arbitrary to distinguish the genuineness of a relationship based on the living together stipulation when other pathways have been narrowed, but that is a matter better examined in a challenge to the partnership instructions."
People in genuine relationships could be affected by the regulation for reasons other than religion, ethnic origin, sex or sexual orientation, he added.
Dalley told RNZ a challenge to the partnership policy itself could not be made in 2021 given it was written years prior, nor could the border closure - as judicial reviews generally need to be filed within 28 days of the policy decision being made.
"This is a very disappointing result following a long wait. However, from the very beginning we always knew one of the reasons for bringing the case was to draw attention to the issue and apply pressure to try and get some movement on allowing partners to apply for visas and the granting of visas. This was an issue of high public policy and was in the public interest to be heard.
"Despite being aware of the issues and despite assurances, it is disappointing to see that split families have not been prioritised in any way with regard to the border opening and visa processing - especially considering the judge seems to accept that the Minister did prefer administrative ease over the fundamental rights of families."