run”. They “do not have to be unique or very rare but they do have to be truly an exception rather
than the rule”.43 The Department of Internal Affairs assumes in its guidelines that the same
threshold applies to s 9(1)(c), and there seems no reason why that should not be so.44
On the other hand, unlike s 207(1) of the Immigration Act, the circumstances on which a s
9(1)(c) applicant relies do not need to be “humanitarian”. Section 9(1)(c) expressly contemplates the
possibility that humanitarian circumstances can ground such an application. But “other” exceptional
circumstances may also suffice.
And to be clear, not all of the circumstances on which Roland Kun relied were humanitarian.
His application and supporting documentation provided extensive evidence of the considerable
skills, experience and intellect that he and his wife Dr Le Roy brought with them to New Zealand, and
of the contribution that they could thus make (both individually and in combination) to New Zealand
society. Nevertheless, it is perhaps fair to say that this aspect of the Kun family’s circumstances had
a weaker claim to exceptionality than the humanitarian dimension. In any event, that was the
Department’s view. The reasons why the Minister himself ultimately concluded that Mr Kun’s
circumstances were exceptional have not been recorded. But the Department’s advice and
recommendation to the Minister (on which we can assume he is likely to have placed considerable
reliance) identified no exceptionality in the non-humanitarian aspects of Mr Kun’s circumstances.45
On the other hand, Mr Kun’s highly unusual humanitarian predicament was quite clearly
exceptional in any sense of the word, and the Department recognised as much.46 His unique
circumstances involved the political persecution of an elected representative of a neighbouring
Pacific nation (in large part, for his public defence of the rule of law) and, importantly, the indefinite
separation of young New Zealand-resident children from their primary caregiver. There was no
prospect of an end to this separation, and no apparent alternative to a grant of New Zealand
citizenship to resolve the situation. If Mr Kun had been in New Zealand, there is little doubt that his
circumstances would have qualified him for humanitarian relief within the various pathways
available in the Immigration Act and associated policy frameworks (including, potentially,
recognition of Mr Kun as a refugee).47
-
Public interest
A potential obstacle for Mr Kun arose, however, from the settled Departmental understanding of the
meaning of “public interest” and of its relationship to the exceptional humanitarian circumstances
requirement.
At the outset, it is helpful to recognise the inherent tension between the two concepts that
underlie s 9(1)(c). An evaluation of “exceptional circumstances” looks inward, inviting a focussed and
personalised assessment of the situation of the individual. This is underscored by the language of s
9(1)(c), which confines the exceptional circumstances assessment to circumstances “relating to the
43
Ye v Minister of Immigration, above n 42, at [34].
For the current position, see “Application for New Zealand Citizenship, Adult: Guide notes” New Zealand
Government <www.govt.nz> at 3; “New Zealand Citizenship – Operational Policy”, above n 11, at 17. The
policy guidance extant at the time Mr Kun’s application was determined was to similar effect.
45
Jeff Montgomery to Minister of Internal Affairs, “Application for New Zealand citizenship – Mr Roland Tulen
Kun” (18 May 2016) (on file with author).
46
Jeff Montgomery to Minister of Internal Affairs, above n 45.
47
See for example Refugee Appeal No 74665/03 [2005] NZAR 60 (RSAA), defining the term “being persecuted”
in the criteria for refugee status as “the sustained or systemic violation of basic human rights, demonstrative
of a failure of state protection”. The pathways available in the immigration context to deal with the
humanitarian circumstances of migrants are discussed further below at nn 88–90 and associated text.
44
9
Electronic copy available at: https://ssrn.com/abstract=3094731
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