Successful appeals by tda (selected)

Willie Ye and others v Minister of Immigration and Yueying Ding Alan Qiu and Stanley Qiu v Minister of Immigration and others - [2009] NZSC 76

This case involved three Chinese families who were the clients of TDA Immigration. INZ wanted to deport the overstayer parents of New Zealand citizen minor children. The Supreme Court found that INZ had acted unlawfully as stated by the Court in its official media statement:

The decisions were made during the course of proceedings designed to remove from New Zealand overstayer parents of children born in New Zealand at a time when those children acquired New Zealand citizenship at birth. The principal issue concerned the effect and reach of s 47(3) of the Immigration Act 1987 and the weight to be given to the children’s interests. 

The subsection provides that overstayers may be allowed to remain in New Zealand if they can show, firstly, exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh to remove the overstayer and, secondly, that it would not be contrary to the public interest to allow them to remain. The Supreme Court has held that this test was applicable to the circumstances in which the officers made their decisions but was not properly applied by the officers. Hence each decision was made on an incorrect legal basis. 

XIUFANG XI & ORS V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC WN CIV-2006-485-000936 21 November 2007

NZIS (INZ) declined TDA Immigration client Xiufang Xi on the grounds she had improperly transferred her funds to New Zealand. The Court ruled that NZIS had acted unfairly and unlawfully and without competent knowledge of the Chinese banking system

[78] Next in the overview I refer to three other internal emails sent by the original officer. One is appended to the affidavit of Mr Tuariki Delamere, formerly the Minister of Immigration, and now an immigration consultant. In this email the same officer is responding to an internal request for information about a different file. It is dated 17 February 2005, and he says:

It is the inconsistency we struggle with here. On one hand, we are aware that Chinese individuals are not allowed to exchange large amounts of RMB currency into USDs, but then on the other hand we hear stories that people have been allowed to. Credibility issue really. This is not assisted by no official word from the Chinese government so we know for certain one way or the other.

[75] It will be recalled from earlier in the judgment that I did not agree with the Residence Review Board’s focus on the legality of the transfer in terms of Chinese foreign exchange policy. Although the actual ultimate decision-maker in his evidence rejects the proposition that it influenced his decision, it is clear from this last response that the original officer was focused on it. I repeat an observation made earlier – the material on the file leaves one with no confidence that NZIS, at least at that time, actually knew what the Chinese foreign exchange rules were. There is no apparent reason why an explanation that the Bank made it available from its surplus quota was regarded by NZIS as unlawful in terms of China’s foreign exchange policy.

206492e 24 JAN 2023

Skilled Migrant category / Pakistan / customer service manager / INZ declined the application as position not considered skilled. 

206404e 23 MAR 2022 

Skilled Migrant category / India / store manager / Thirsty Liquor / INZ declined the application as position not considered skilled. 

206290e 27 JAN 2022 

Skilled Migrant category / India / Liquor Centre / manager / INZ declined the application as position not considered skilled.

206341e 16 DEC 2021 

Skilled Migrant category / China / office coordinator / INZ declined the application as position not considered skilled. 

206330e 7 DEC 2021 

Skilled Migrant category / India / restaurant manager / INZ declined the application as position not considered skilled. 

206253e 18 OCT 2021 

Skilled Migrant category / India / Bottle-O / liquor store manager / INZ declined the application as position not considered skilled.

201675e 11 SEP 2014 

Business (Migrant Investment – Investor 2) category / China / INZ declined the application as appellant failed to transfer nominated investment funds to NZ within specified timeframe / Is Union Pay part of the Chinese banking system?

205413e 14 JUN 2019 

Business (Entrepreneur Residence Visa) category / China / INZ declined the application as business failed to comply with NZ employment law / assessment flawed.

204778e 27 JUL 2018 

Business (Entrepreneur Residence Visa) category / China / NZ declined the application as business not benefitting NZ / further, business failed to achieve revenue forecasts / and, not satisfied business had potential to become profitable in following 12 months.

202414e 26 MAY 2015

Family (Dependent Child) category / India / joint appeal / sisters / INZ declined the application as appellants not declared in parents’ previous residence applications / assessment flawed.

204508e 19 JUN 2018 

Family (Partnership) category / India / INZ declined the application as appellant failed to meet good character requirements / drink driving conviction / character waiver not granted. 

203209e 15 JUN 2016

Family (Partnership) category / India / INZ declined the application as not satisfied couple living together in genuine and stable relationship or that relationship likely to endure / assessment flawed / failure to consider all relevant information.

202906e 31 MAR 2016 

Family (Partnership) category / Tonga / conviction / INZ declined the application as appellant considered not of good character and not granted a character waiver / convicted of sexual offence and failed to declare charge and conviction.

200765e 31 OCT 2012 

Family (Partnership) category / China / INZ declined the application as not satisfied couple living together in genuine and stable relationship / assessment flawed / failure to consider evidence that couple lived together for two years.

200101e 31 MAY 2011

Family (Partnership) category / China / INZ declined the application as not satisfied couple in genuine and stable relationship for 12 months or more / assessment flawed / while partnership poorly documented, INZ failed to consider whether couple ought to be afforded an interview.

15919e Precedent 29 SEP 2008

Family (Partnership) category / India / INZ declined the application as it was not satisfied the appellant in a genuine and stable partnership.

802143  30 MAR 2023 

China / Protestant Christian / fears persecution as a Christian / wife (now deceased) established house church often gathering in couple’s home, assisted by appellant.

801432  18 APR 2019

India / joint appeal / husband and wife / Sikh / woman / appellants fear serious harm from wife’s family following their marriage (honour killing) / appellants met at secondary school and established a secret relationship, necessary due to Sikh and local cultural customs.

801065  22 JUN 2017 

India / Hindu / Brahmin caste / fears serious harm at hands of violent ex-boyfriend and uncle / appellant and her mother targeted by uncle and his associate over ongoing family property dispute / appellant subject to physical, psychological and physical abuse by NZ-based ex-boyfriend.

505748  14 APR 2023 

Non-resident / India / served with deportation liability notice / two driving convictions / failed to disclose convictions in previous visa applications / length of stay — over eight years / family well-settled / immediate deportation will cause family hardship and disruption.

505349  7 OCT 2021 

Non-resident / Vietnam / partnership-based work visa declined / NZ-citizen wife not an eligible sponsor / acted as partner in two previous successful residence applications / couple in genuine and stable partnership / wife works full time and is sole income earner / appellant is NZ-citizen daughter’s primary caregiver and provides day-to-day care.

504950  22 JUN 2020 

Non-resident / Vietnam / woman / work visa declined / appellant’s husband died during processing of visa / appellant wishes to remain with NZ-citizen daughter / length of stay — over 12 years / unlawfully in NZ — 11 years.