Family violence survivor's long battle to remain with her children in New Zealand

Sunday, 19 July 2020

Sara* spent thousands of dollars and many hours gathering evidence to support her right to stay in New Zealand with her children after leaving her partner.

A woman who fled family violence only to face a fight to stay in New Zealand with her children says the battle with Immigration New Zealand (INZ) took all her strength.

Sara* left her European home country and moved to the South Island with her Kiwi husband and their three children several years ago.

After the move, the troubled relationship worsened, and Sara said she endured emotional and physical abuse. But with her husband threatening to pull support for her residence visa, she endured the violence to stay with her children.

But when her children increasingly became the target of her husband’s outbursts, Sara was left with no choice, and she and the children left the family home, she said.

* Domestic abuse survivor faced deportation after she left violent husband

* Mum of four faced deportation over husband's domestic violence conviction

At a Women's Refuge, Sara obtained a parenting order awarding her day-to-day care of her children, and a protection order against her ex-husband. It meant a few weeks of safety, but it wasn't easy.

Sara* moved to New Zealand with her Kiwi partner and their children.

'I was super stressed, I had anxiety, two of my children have PTSD.'

And there was another stressor: the uncertainty of her residency in New Zealand. Separated from her husband, she could no longer gain a residence visa through her partnership.

Sara can’t take her children out of New Zealand as a court order prevents their removal.

However, with her family in Europe unable to support her, and a stand-down period for government benefits, a move back to her home country as a single parent would be impossible, she said.

And with her children’s strong connection to New Zealand, bringing them up here is best for them, she believed.

Under New Zealand immigration law, there is provision for victims of domestic violence to obtain residency. However, applicants must demonstrate that returning home would mean financial hardship or danger, and in July 2019 Sara’s application was denied.

'We are not satisfied that you are unable to return to your home country', the letter from INZ read.

Sara said she was frustrated and helpless at the ruling. But it wasn't unexpected.

'You’re doing all this effort and work, but you know what you’re doing is futile because you’re not going to make that benchmark. My lawyer told me the benchmarks they use are third world country, you almost have to be a refugee.'

Associate Minister of Immigration Poto Williams assessed Sara’s application.

Leaving her children behind in New Zealand with their father, or in foster care, was unthinkable, Sara said.

She channelled her energy and dwindling funds into an appeal, hiring an immigration lawyer and getting a psychologist's report to show her children depended on her as their caregiver, a 'humiliating' experience, she said.

'I had to prove that my children truly saw me as their mother and depended on me emotionally in that way.'

She was beset with obstacles as she dealt with INZ: changing case managers, missing documents and endless repetition of facts.

'It was frustrating. I felt I was not being heard most of the time: I felt I was talking to deaf men’s ears.'

Late last year, the Immigration and Protection Tribunal told Sara INZ's decision was correct, but recommended the “special circumstances” of her case be assessed by the Minister of Immigration.

At the end of 2019, Associate Minister of Immigration Poto Williams granted Sara’s residency.

Shielding her children from what was happening was impossible.

'You’re so close together; you can say, you can’t show this to the kids, you have to be careful, but two months in a safe house living close together, they did know.”

'[The children] express a lot of things, but it doesn't come out in a verbal way.'

A report from a lawyer outlined the harm Sara and her family had endured.

'I have seen them at their most frightened and vulnerable. They have suffered multiple forms of family violence over the past few years and have been exposed to some traumatic events … I am deeply concerned for the wellbeing of these children, and for [Sara] herself, if she is forced to leave New Zealand without them.'

Senior solicitor Elly Fleming, who specialises in immigration, has worked on several cases like Sara's in the past two years.

'It's not uncommon, unfortunately.'

Migrants had to prove they would suffer financial hardship or persecution back home, she said.

'That's not the case for women who come from first world countries,' Fleming said.

However, the support systems in developed countries did not preclude hardship for returning migrants, she said.

But demonstrating hardship was 'a tough bar to get to'.

Current laws did not take children into account, she said.

'INZ has no discretion and can't take into account what can happen to the children.'

With clear evidence of domestic violence and a parenting order in place, decisions in cases like Sara's should be clear cut, Fleming said.

'The Family Court has made that decision that this parent cares for those children. The immigration system should recognise this, and doesn't.

'Commonsense should prevail: if you leave the country without your children, who's going to look after them? It just makes no sense.'

Fleming said the arduous and expensive process also puts stress on already traumatised families. Some with limited English would also struggle to navigate an unfamiliar system.

Ultimately, the tribunal who examined the appeal could not change the decision, it could only recommend the Immigration Minister intervene, Fleming said.

“Women have no clear pathway through the process, and the pathway doesn't take into account whether there are resident children involved.

“It shouldn't be this hard.”

INZ general manager border and visa operations Nicola Hogg acknowledged there were multiple case officers working on Sara’s application “which was not ideal”.

“But our records show that the communications with [Sara] were consistent. INZ was satisfied that domestic violence had occurred, but not satisfied that she would be unable to return to her home country.”

INZ immigration policy team leader Andrew Craig said the ministry had been considering a review of partnership visa settings this year, which included the response to family violence issues. However, that had been delayed due to Covid-19, he said.

“The residence category for victims of family violence allows partners of New Zealand citizens or residents to remain in New Zealand, when there is high risk of further harm in returning to their home country.

“The policy recognises the trauma that victims of domestic violence experience, while acknowledging that people without other claims to reside in New Zealand may be able to return home safely, with means to support themselves and rebuild their lives,” Craig said.

The fight to stay in New Zealand had cost Sara thousands of dollars, long hours and took every ounce of strength as she called on every avenue for support.

'All the time you’re trying to fight, you want to rebuild your life and you have Immigration doing the opposite.

'My anger gives me strength to fight; gives me the adrenaline. But I have my moments where I collapse completely.'

*Stuff has agreed not to name Sara to protect her and her children’s privacy.