Forgotten visa application: Couple's residency case taken up by minister

A Brazilian couple, whose advisor forgot to apply for their residency, has taken their case to Parliament hoping to secure the right to remain in the country.

Initially, Associate Minister of Immigration Chris Penk declined to review the case, but after being approached by RNZ, a spokesperson said he had now decided to reconsider the couple's case due to "new circumstances".

Newton and Nubia Santos paid thousands of dollars to have their application for the one-off 2021 Residence Visa (RV2021) submitted by the advisor. However, due to staffing issues, the application was forgotten to be processed.

The couple has taken the case to Parliament and started a petition asking for a review of their case.

In two days, the petition accumulated more than 2400 signatures.

Santos said they wanted to be a voice for other people who might be going through the same situation.

"We immigrants know how important it is to stay in a country where we have lived for so many years and fought to stay and become a part of the community.

"It is very frustrating and exhausting to go through all this because of the failure of a licensed person who was paid to do their job. No immigrant deserves to go through this."

Santos and his wife currently hold work visas, which expire in September.

The one-off residency pathway in 2021 would have granted them cheaper access to education and public services, as well as the ability to seek or pursue other career opportunities.

Immigration NZ advised the couple to submit an application via the Skilled Migrant Category Residence Visa (SMC) as an alternative.

This category applies to those who currently work or have a job offer from an accredited employer and qualify for 160 points for their skills and work in the country.

Points can be obtained by meeting several requirements, such as earning high wages or having qualifications for jobs on the skilled migrant list.

However, the couple's lawyer, Fisher Foley's Ana Martins, said they did not qualify.

"Newton and Nubia did not meet the 160 points threshold for residency under the Skilled Migrant Category in March 2023. Newton's initial assessment yielded 170 points.

"Despite a revision in October 2023, Newton still falls short of the new criteria, which requires a high income sustained over three years. Their representative's efforts to clarify Newton's ineligibility were disregarded by the decision-maker."

She raised concerns regarding the consistency of the decisions made in cases like this.

"It has come to our attention that another applicant, in a similar situation, was granted residence through a decision made by the decision-maker on behalf of the Associate Minister.

"We wonder how many other cases were decided differently from this one and we wish to understand the reasons behind these discrepancies."

Green Party immigration spokesperson Ricardo Menéndez March supported Santos' petition and said the Penk could do more.

He wrote to Penk in March requesting intervention on the couple's visa circumstances.

"I implore you to reconsider Newton and Nubia's application for residence in New Zealand. Granting them residency would rectify the injustice they have faced," the letter read.

Penk declined to review the case.

"A delegated decision-maker previously declined to intervene in this case, and it is not the minister's intention to review such cases, except in the unlikely event that there has been a significant change in circumstances," he said in an email to Menéndez March shared with RNZ.

Ministers could step in to grant visas at their discretion, Menéndez March said.

"Chris Penk has an opportunity to make things right for people who have been failed by the system and immigration advisers. Ministers intervene to grant people visas and make exemptions to requirements regularly."

Immigration NZ should explore creating a 'settled' residency pathway, he said.

"So we don't have situations where people who have lived here almost a decade can be so easily discarded by the system.

"People who are failed by the system deserve support, not punishment."

After RNZ approached Penk, in a statement, a spokesperson said he had now decided to reconsider the couple's case due to "new circumstances related to the application".

They did not give details, only saying any decision in any particular case was made solely at Penk's discretion.

"In accordance with the Immigration Act, [the minister] is not legally obliged to give reasons for any decision made."

rnz.co.nz

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