17 Sep 2018

Fijian overstayer's 20-year fight for residency

From Voices, 7:00 am on 17 September 2018

An immigration lawyer is calling for more compassion from the government in its handling of overstayers.

Overstayers like Renuka.

She's been in New Zealand illegally for more than 20 years. Or to look at it another way, for two decades Renuka has been fighting to stay here.

We’re not going to give too much away about Renuka, because she’s at immediate risk of deportation. But we can say, she’s a slight woman in her mid-fifties. There’s no grey in her hair or lines on her face, but she does have a weary air about her.

Family Meal

Family Meal Photo: Supplied

Renuka’s path to residency has been winding and full of obstacles and it has currently hit a brick wall.

It all began when she met a couple in Fiji, at the funeral of a family member, and they invited her to New Zealand. The idea was that they would show her around New Zealand - she’d never travelled overseas before then - give her room and board, and in return she would look after their young daughter and do odd-jobs around the house.

Renuka stepped off the plane in 1996. She had a three-month visitor's visa and after that time was up, the couple suggested applying for an extension. Renuka, who knew nothing about visa applications did question if this would be possible and was assured that it would be no problem and the couple would handle it.

This is where things start to go wrong for Renuka.

“They extended for six months,” she tells me as we sit round the dining table in a family member’s home, “When it was finished, I said well I have to go now. They said no, no, no. You stay over here and we’ll extend again.”

So she agreed and everything happily continued as it always had, until Renuka was invited to attend a family wedding in a different part of the country.

She was given a lift to the wedding but when her ride decided to stay an extra night she found herself marooned. She called to explain the problem and was told she needed to find another way home.

“They said come by train, but I knew nothing about trains.”

The train had already left anyway.

When she finally got back - one day later - things were different.

“They started shouting and pushing me,” she recalls “They were very angry. They thought I was not coming back. But they had my passport and visa, I had to come back.”

She describes being grabbed around the upper arm, hard enough to leave a big dark bruise.

“He was shaking me and I started crying. And the young girl was crying too and yelling ‘why are you hurting aunty, leave her alone’.”

This is the child Renuka had been looking after for the last year or so. Her defence of Renuka ended the assault - but Renuka still shut herself away in her room for the rest of the night.

The next day friends noticed something was wrong and a distraught Renuka told them what had happened. The couple had her passport and were not letting her use the phone. She didn’t know what to do.

Police generic

Photo: RNZ / Richard Tindiller

Her friends were concerned enough to call the police, who visited Renuka’s home later that evening.

“I told them at least I am happy you people are here. I can go back to Fiji, they have got my passport.”

Police got the passport back, but when they opened it up they discovered there were no visa extensions in it.

Renuka was floored, “what am I going to do?”

This was a very good question. Without a visa Renuka was unlawfully in the country and because she was unlawfully in the country, she couldn’t apply for a new visa.

On top of that, now that she’s an overstayer, once she leaves New Zealand she won’t be allowed back in for another five years. Although people are allowed to re-apply for visas once that time is up, they have to declare they overstayed and that’s likely to have a negative impact on the application.

Police recommended she return to her brother and advised her to contact Women’s Refuge.

Women’s Refuge advised her to get a lawyer.

The lawyer advised her to apply for residency on humanitarian grounds and assured her he would get it done.

Renuka said the lawyer took all her information and all the details of her situation. Then asked for $1000 in fees - more money than Renuka had seen in her life.

Renuka’s family paid the money and she was relieved to have an expert sorting out her visa problems. She got on with making a life for herself, checking in with the lawyer periodically.

"Every month I call, sometimes I get him, sometimes I don’t. I’m waiting, waiting.”

Renuka is eventually told not to contact him, he’ll contact her when he hears from Immigration New Zealand.

So Renuka, who is still relatively new to New Zealand and its ways, who has been abused and subjugated, backs off and leaves the lawyer alone to do his job … for more than 15 years.

“I was still waiting… and then in 2015 - he dies.”

Renuka contacted the lawyer’s family for her files, but was told there was no record that she was ever a client. There are no residency applications in her name. She’s devastated.

Cyclone Winston damage

Cyclone Winston damage Photo: Supplied

It’s about this time that the upheaval in Renuka’s life is mirrored in her homeland, as Cyclone Winston blasts through the Pacific.

Everything Renuka’s family had in the islands is gone - the home she grew up in, her family's livelihood. There was now nothing left to return to.

Here in New Zealand, another lawyer was brought in to look at her case - more money passed hands - but this lawyer turned out to be a fraud.

Finally, more than 20 years after Renuka first arrived in New Zealand, a lawyer called Diana Bell from Pacific Legal Limited picked up her case and saw immediately that there was a humanitarian case for residency.

Diana Bell, immigration lawyer with Pacific Legal Ltd

Diana Bell, immigration lawyer with Pacific Legal Ltd Photo: Supplied

“Yes, perhaps [she was] responsible for finding out whether or not advisors were doing the work. But then again, money was paid on the understanding things would be done,” explains Diana.

Given that Renuka was already an overstayer, there weren’t many options for her.  

They decide on appealing to the immigration minister - who has the discretion to grant residency.

The request is denied.

They appeal to the Ombudsman on the grounds that the case notes weren't complete and there were no clear reasons for the refusal and Renuka is invited to make another application.

That was also refused. And worst of all, no reasons for that refusal were given.

This is where Diana has real issues with the process.

She says it feels like there’s some sort of unknown criteria, and if clients don’t meet it their cases aren’t even considered.

“It means there’s uncertainty that individual cases have been looked at on their own merit”

Diana says the other problem is that decision-makers don’t have to give their reasons for rejection.   

“We’re left with dealing with behind closed-doors decision-making.”

She understands that these types of requests are absolutely discretionary but still wants to see more balance. She said it would be a step forward to give a record of reasons or even just a brief summary.

“That would definitely help us represent our clients better, but also give [them] some sort of resolution.”

Diana knows the Ministry of Immigration has withheld information, but Diana doesn’t know what it is or what impact it’s had on Renuka's appeal.

The Associate Minister of Immigration Kris Fa’afoi’s name is on Renuka’s rejection letter. But it’s not clear if he’s actually even seen the case as ministers are able to delegate decision-making.

He chose not to give RNZ an interview, but via email said there were good reasons for the clause that allowed ministers or delegates to reject applications without explanation and that it was a long-standing convention which there were no plans to change.

Civil Defence Minister Kris Faafoi making the announcement.

Civil Defence Minister Kris Faafoi making the announcement. Photo: RNZ / Rebekah Parsons-King

But Diana Bell doesn’t think that’s good enough. She said the Act allows decision-makers to give reasons.

“It says ‘under no obligation’, doesn’t necessarily mean must not provide reasons, so definitely an opportunity there and it’s one that should be taken up.”

She said when you’re faced with the reality of the impact these decisions have on a person, and their family, it’s very hard to inform them of a refusal and then to be unable to give them any reasons means they have no closure.

I visited Renuka at the home of one of her family members. It's a tidy suburban house, warm and inviting as are the people who welcome me in, offer me food and drink and eagerly tell me just how much Renuka means to them.

Renuka’s brother-in-law describes how she cared for him when he was basically paralysed.

“[Renuka] is next to my mother,” said her tearful niece, “She’s the second-best mother I have. She has given me that love and she is giving that love to my kids. If she goes far away from here. I don’t know what’s going to happen to me. I will break.”

“If somebody needs help for anything, she’s always available,” said Renuka’s brother-in-law, “If something does happen - I don’t even want to think of it - but if it does, it will be the biggest loss.”

He said if they knew she would be safe in Fiji that would be some consolation, but there is nothing left for her there.

“Everything’s flat as a pancake.”

Like the rest of the family, he is frustrated and a bit angry.

“It’s just mean. This has all happened because of one or two individuals. She has to go through all this because of someone else’s stuff-ups.”

Diana Bell feels Renuka's case has some pretty clear humanitarian merit, but it's hard to fight when they don't know why Renuka was refused a visa.

She just wants to ensure this isn’t the end for Renuka.  

“It’s really seeing there is some transparency and seeing she [Renuka] has a fair opportunity to put her case forward,” said Diana.

Renuka has a message for Immigration New Zealand too.

“I’m very worried... Why aren’t they listening to me? I haven’t done anything wrong.”