Official discrimination against Indian migrants gets nasty

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Alastair McClymont

Alastair McClymont

Auckland, 21 July 2021

Migrants protest in New Delhi demanding right to return to New Zealand (Source: Facebook)

High Court case should be an eye-opener, yet the community is silent. 

Judicial Review proceedings filed in the Auckland High Court on July 21, 2021 seek to review the Minister of Immigration’s decision to cancel offshore visa applications that discriminate against certain types of relationships.

In October 2019, I wrote an article for this newspaper (please read it here) about this government’s war against Indian migrants. The article was written out of continued frustration with this government’s constant targeting of the Indian community in punitive immigration actions.

Campaign of discrimination

The cancelling of certain types of offshore relationship visas is a continuation of the government’s campaign of discrimination and is something that the High Court has now been asked to review.

The particular target in 2019 was the mass decline of large numbers of partnership applications by the Mumbai branch office on the grounds that the couple were not actually “living together” at the time of the decision.

An uproar ensued, the Prime Minister intervened and claimed that “we have fixed” the problem. Of course, the Prime Minister did not actually do anything to fix the problem, what she fixed was the adverse media attention by creating the illusion of fixing the problem.

The same problem still exists now, with Indian based partnership applications still being actively discriminated against, and yet again, MPs in the Labour-led government this time knowing about the problem but choosing to ignore it.

In October 2019 the Labour MP for Mt Roskill, Michael Woods,  responded to my article in this newspaper not with an apology, or a promise to actually resolve the problem, but personal abuse against me and my law firm. Please read Mr Wood’s response here.

I will remind readers again of the origin of the problem, how it was temporarily resolved, by whom, and how the government have yet again, by stealth, returned to their discrimination against many Indian based marriages.

A Partnership Visa can only be granted if a couple is or have been actually living together in a single home.

Many New Zealand based Indians return to India, marry, then return home to New Zealand and await their marriage partner’s visa.

How it was played out

Prior to May 2019, INZ resolved this anomaly by simply granting General Visitors Visas to the partner, rather than an actual partnership visitor’s visa.

In May 2019 the then Immigration Minister, Iain Lees-Galloway, was under public pressure to do something about the backlog of visa applications at the Mumbai branch Office of INZ.

In response, the Mumbai Immigration New Zealand (INZ) branch hit upon the idea of stopping the practice of granting General Visitors Visas and undertook an exercise of declining on mass many Indian based partnership visas.

An uproar ensued, the Prime Minister became involved and she announced that she had fixed the problem by creating a new customarily arranged marriage visa policy.

But that was not even necessary, because what actually resolved the problem was in the background, INZ simply reverted to their previous practice of granting General Visitors Visas. In October 2019 INZ encouraged applicants, advisors and lawyers to simply submit relationship-based General Visitors Visas instead of arranged marriage visas or partnership visas.

A dismal failure

The Customarily Arranged Marriage Visa policy was a dismal failure as the ability to meet the strict criteria is so difficult, that the policy has an extremely low success rate. It really only applies to very traditional arranged marriages, and not the type of marriage most common in India in modern times, where the married couple have some involvement in their choice of partner.

So, the Prime Minister took credit for solving the problem, yet INZ themselves actually solved it by simply reverting to their previous solution, before the Minister of Immigration had put pressure on Mumbai to clear their backlog.

The crux of the problem was actually the failure of the government to draft and design a modern culturally appropriate partnership visa policy.

Covid and after

Everything returned to normal until Covid hit. Remember, INZ now actively encouraged applicants who did not live together (with the sponsor returning to New Zealand) or who has entered into a very traditional cultural marriage, to apply for General Visitors Visas.

Once Covid hit, the Minister of Immigration announced that all offshore visa processing would be suspended.

However, once the government began processing offshore partnership visas again, they decided not to process the same General Visitors Visa applications which INZ had been encouraging many Indian couples to apply for.

In June 2021 I was advised that an Indian based organization has explained the problem to Labour MPs who took the matter to the Labour Party caucus, explaining that the decision not to process relationship-based General Visitors Visas was discriminating against many Indian marriages.

The response of the Immigration Minister and Prime Minister to this problem?

Visitors Visas cancelled

They made the decision to then cancel all offshore General Visitors Visas, including that Indian based relationship General Visitors Visas that INZ had encouraged applicants to apply in October 2019.

So yes, the war against Indian migrants does continue MP Michael Woods, but this time you and your party do know about it, you are aware of the issue and yet have decided to again discriminate against many Indian based marriages. And the reason INZ gave the Minister for not fixing the problem? It is too difficult.

Case against Minister

High Court proceedings for Judicial Review were filed on July 21, 2021, alleged discrimination and abuse of New Zealand’s human rights obligations.

Whilst the plaintiff, in that case, is a Chinese National in a partnership with a New Zealander, the principle is exactly the same for many Indian marriages, being that INZ has cancelled applications for relationships where the couple have been unable to live together for a long period of time in the applicant’s own home. The court proceedings allege that the Minister failed to consider New Zealand’s international obligations to protect family relationships.

The family relationships that exist in many traditional Indian marriages have been under attack for several years now, and these High Court proceedings seek to challenge the government’s decision to ignore these international obligations.

The war against Indian migrants is alive and well and continues unabated.

It is in the hands of the Indian community now to make their feelings known to the Labour Party MPS who continue to treat the Indian community and their fundamental rights to marry and build a family, with total disregard.

Alastair McClymont is an Immigration Law Specialist at McClymont & Associates, Barrister & Solicitors based in Auckland.

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