An overstayer mother facing deportation is fighting to be made legal for a day so she can file an application to remain with her 5-year-old New Zealand citizen son.
Chinese national Fiona Xiao, 35, who has been here unlawfully since 2006, fears that deportation could mean a permanent separation from her child who can’t enter China under its Covid-19 border rules.
Xiao, originally from Guangzhou, China, was married to a New Zealander, but is now divorced and says all that’s left in her life is her son, Ivan.
“Ivan is my everything. All I want is for him to have a normal life and be just like any other child in New Zealand. I want him to go to school, have friends and not have worries,” she said.
“I know that can’t happen when I’m an overstayer. I am scared too, I worry every day because I know that if I’m deported, it means I may never see Ivan again.”
Xiao has had previous applications and appeals declined multiple times, but says her situation has changed as a result of the Covid-19 pandemic.
Ivan is a New Zealand citizen and will not be able to go with her if she is deported because current Chinese border restriction rules bar entry to foreign nationals.
Xiao says her ex-husband, who is still in New Zealand, is no longer involved in the care of their son.
Since her divorce, Xiao said she had been moving addresses to avoid authorities. She has been told by people in the previous two places where she lived that INZ officers were looking for her.
“I cannot legally work so I do chores and cooking in exchange for accommodation. Some days we don’t have much food to eat at all,” she said.
“If on my own I can cope, but I cannot bear that my son has to live a life like that too which is why I am begging for the Government to let me be legal for my boy’s sake.”
Xiao’s immigration adviser Harris Gu of TDA Immigration says Xiao knows what she had done was wrong, but believes there was strong humanitarian grounds for her to remain.
“Covid-19 has changed everything, and if deported Ivan can’t go with her and Fiona will be faced with a five-year ban from re-entering New Zealand. That is an eternity for a mother to be separated from a young son,” Gu said.
“With this global pandemic, I think INZ should have a heart. The least they could do is just let Fiona be legal for one day to make a humanitarian appeal and application.”
Xiao first arrived in NZ with her father in December 2005 on a Limited Purpose Permit after having been declined visitor visas.
An INZ spokesman said LPPs were granted to allow holders to enter NZ “for an expressed purpose only” and in Xiao’s case was to visit her father’s sister.
“The LPP was granted due to concerns about the potential of overstaying,” the spokesman said.
In 2006, Xiao and her father made requests to extend the permit on the basis of a family emergency, but these were declined.
Her father then left the country in March that year, but Xiao remained even after her visa expired in June 2006.
“Ms Xiao has sought ministerial intervention which has been declined, and she has repeatedly failed to comply with lawful directions to leave,” the INZ spokesman said.
“Despite having opportunities to return home to China, Ms Xiao has chosen to remain … as she is unlawfully in NZ and liable for deportation, INZ may take action to deport her.”
Xiao said she decided to stay on in NZ even though she knew it was wrong because she fell in love, and had followed her “heart and not the head” at the time.
In 2010, Xiao’s application for a work visa on partnership grounds was refused and a request for ministerial intervention in 2010 was also declined.
Two years later, she took her complaint to the Ombudsman and was invited to approach the associate immigration minister at the time but failed to make submissions within the two-month timeframe.
In 2015, Xiao gave birth to her son. A child born in New Zealand becomes a citizen by birth if at least one of their parents is a citizen or resident.
Since 2018, Xiao has made two further visitor visa requests as an overstayer under Section 61 of the Immigration Act, but both times INZ refused to consider them.
“While Ms Xiao was married to a New Zealand citizen, the marriage has since ended in divorce,” the INZ spokesman said.
“Ms Xiao has a child, though she has not provided a birth certificate and confirmation of custody arrangements or documentation to confirm the parent-child relationship.”
The spokesman said there was an expressed legal obligation for all unlawful people to leave New Zealand.
“People who are overstayers, regardless of nationality, must appreciate that if there are no special circumstances that call for the grant of a visa they are expected to leave NZ or face deportation.”
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