Immigration admit mistake over woman's visa

10:00 am on 16 December 2015

Immigration officials who thwarted a French woman's attempt to stay in the country with her tetraplegic partner have had a change of heart.

They said they made a mistake when they ruled that Inda Yansane was not eligible for residence .

Inda Yansane and Andrew McMillan

Immigration New Zealand have had a change of heart over Inda Yansane and Andrew McMillan's case. Photo: RNZ/Diego Opatowski

Ms Yansane and Andrew McMillan met in 2011 through their common love of music.

In its first decision, Immigration New Zealand agreed the pair were in a stable, loving and committed relationship but turned down Ms Yansane's visa application because they were not living together.

The couple appealed and the immigration and protection tribunal ruled the couple lived together most of the week, but Mr McMillan's home, shared with a full-time carer and his mobility dog, was too small for Ms Yansane to move her things in.

Ms Yansane, 38, said with the certainty of residence status she will be able to sell her home in France and they can buy a bigger house together.

"The tribunal in the end said no, they actually live together but even if you think they don't, they have perfectly good and justifiable medical reasons for not living together yet," she said.

Mr McMillan, 42, who uses a wheelchair after a BMX accident, said immigration officials did not even visit his home to see their situation before deciding his partner did not qualify for residence.

"It's really good as a compact unit for me to just have somewhere to be, but it's completely inconvenient to have two people here plus a 24/7 caregiver, and all of my working gear, my studio gear and stuff I need - plus Biff, our dog, my mobility dog," he said.

The tribunal said: "[He] lives in a specially modified unit located at the back of his sister's property," said "He requires, on a daily basis, a specially designed chair, a standing chair, ceiling hoist, two ramps, a sliding board, swivel plate and a wheelchair-accessible van.

"Lodged in support of the appellant's submission was a letter from her partner (typed using finger splint and voice recognition software) confirming their love for one another and the complications arising from his living arrangements."

It found Immigration New Zealand told her not to take irreversible steps before a residence decision, but then questioned why she had not sold her home abroad to help finance a bigger house for them.

"The appellant was in a catch-22 situation as far as her French property was concerned because, if she were to sell it in order to prove to Immigration New Zealand that she and her partner were making efforts to live together, she would have to do so without any guarantee that she could stay together with him in New Zealand,"

Immigration New Zealand have had a change of heart over Inda Yansane and Andrew McMillan's case.

Photo: RNZ/Diego Opatowski

The couple said they had tried to spend as much time as possible living together, but the practicalities of Mr McMillan's home and circumstances meant there was not enough space for Ms Yansane to move in and she lived in a shared house.

The couple's lawyer Emma Davis said Immigration New Zealand did not apply its own rules, which state staff have to consider the reasons why a couple might not be living together.

"It was unusual because on the face of it you had a couple who were so clearly in a genuine and stable relationship, and Immigration accepted that, they made that quite clear that there was no doubt about their relationship.

"It was almost like the immigration officers just didn't know what to do because they couldn't tick their boxes that said they were living together," she said.

Immigration New Zealand (INZ) area manager Michael Carley said in a statement its completely accepted the findings.

"INZ carefully considered all the circumstances when it reassessed the residence application and visited Ms Yansane's accommodation and that of her partner.

"INZ is satisfied that the couple are in a genuine and stable relationship and that there are genuine and compelling difficulties preventing the couple from living together all the time.

"INZ takes full responsibility for its errors in this case which needs to be viewed in the context of an organisation that makes more than 650,000 immigration decisions a year. INZ is pleased that outstanding issues surrounding Ms Yansane's immigration status have now been resolved."

The full tribunal decision can be found here