There are various points at which immigration and family law intersect; whether it is regarding final parenting orders of New Zealand citizen children granted to a temporary visa holder or an adoption order for a surrogate child born overseas. The focus of this piece is the intersection between an application for a protection order and the domestic violence visa policy. The domestic violence immigration policy has been in place since 2010, however it is not one that is widely discussed in the media or among practitioners. While those who fall into this category may only be relatively few, it is still an incredibly important and complex area of both immigration and family law that practitioners need to be aware of.
The domestic violence immigration policy in New Zealand allows for the grant of a work visa and/or residence to a non-resident (ie, someone who does not hold a New Zealand resident visa) victim of domestic violence who had been in a partnership with a New Zealander. The applicant will need to show that they:
- were in a partnership with a New Zealand citizen or residence class visa holder; and
- had intended to seek residence in New Zealand on the basis of that partnership; and
- that partnership has ended due to domestic violence by the New Zealand citizen or residence class visa holder or someone with whom the applicant is living in a domestic relationship; and
for a work visa
- a need to work in order to support themselves.
for a residence visa
- are unable to return to their home country because they would either have no means of independent financial support from employment or other means, and have no ability to gain financial support from other sources; or they would be at risk of abuse or exclusion from their community because of stigma.
In order to satisfy the third requirement, the applicant must provide evidence of domestic violence having occurred. There is a common misconception, both in the legal community and among visa applicants, that a final protection order is the only means of providing this evidence of domestic violence. This is not the case. There are, in fact, four different ways in which an applicant can provide evidence of domestic violence having occurred, only one of which is a final protection order.
The other accepted evidence ranges from a conviction for domestic violence to statutory declarations from competent persons who are satisfied that the applicant is a victim of domestic violence. Therefore, while a final protection order may assist in an application for a domestic violence visa, it is by no means a requirement. These alternatives must be brought to the attention of applicants and the court (via expert evidence or otherwise) to ensure that all parties involved are fully informed of the relevant immigration policy.
It is therefore of paramount importance that family practitioners advise non-resident clients to engage immigration practitioners in family violence matters.
Pooja Sundar email@example.com is a senior solicitor at Auckland immigration law firm Ryken and Associates.