By Elizabeth Rabiyan

Introduction

For the past seven months, Aotearoa New Zealand citizens and sisters Nadine Mortaja and Heba Mortaja have anxiously followed updates from their uncle, aunt, and three cousins who are attempting to escape Israel’s genocide in Gaza.  Originally living in the North of Gaza, their uncle and his family have been displaced numerous times further south.  They are now waiting for their names to be called from a list controlled by the Israeli and Egyptian governments before they will be allowed through the Rafah Border Crossing into Egypt.[1]  Obtaining a place on the list costs $5,000 per person.[2]  It is a process the Mortajas call “dystopian”.[3] 

The Mortaja sisters are unsure where their family members will go if they eventually escape through the Egyptian border.  Under the current New Zealand visa options open to Palestinians, it is not likely the Mortajas’ family could travel to New Zealand and be reunited.

This article examines three possible avenues for Palestinians to flee to New Zealand.  I argue the best policy would be for New Zealand to establish a Palestinian humanitarian visa.  This is the policy a broad coalition of Palestinian, refugee, and human rights organisations have been demanding for months.[4]

Visitor Visa

Immigration Minister Erica Stanford has stated that Gazans are able to travel to New Zealand on visitor visas and that Immigration New Zealand (INZ) is fast-tracking applications from Gazans.[5]  Since 7 October 2023, 54 visas of all types (out of 81 applications) have been issued to Palestinians compared to 340 visas for Israelis.[6]  More specifically, only 17 visitor visas for Palestinians have been approved out of 34 applications.[7]  There are thought to be around 400 Palestinians stuck in Gaza who have New Zealand family members.[8] 

The requirements for the visitor visa include demonstrating good health; genuine intentions to depart New Zealand when the visitor stay expires in six to nine months; evidence of onward travel; and enough money to live on while in New Zealand.[9]  These requirements make the visitor visa an inappropriate immigration tool for Gazans right now.

First, Palestinians are unlikely to be in good health after months of starvation and bombing.  Only a third of hospitals in Gaza are functioning in any capacity, and across Gaza there is a dire shortage of healthcare workers, medical supplies, and fuel to treat life-altering injuries.[10]  INZ’s assessment of whether a visitor visa applicant has an acceptable enough standard of health includes reviewing whether they will need hospitalisation, high-cost pharmaceuticals, or high-cost disability services during their stay.[11]  It is reasonable to expect an injured and malnourished person fleeing a genocide to need these services.

Second, it could be difficult for Palestinians leaving Gaza to evidence a genuine intention to return to Palestine in the near future.  Documents that demonstrate an anticipated return are those showing home ownership, employment, school enrolment, and family ties in the home country.[12]  These documents have little relevance for Gazans who no longer have homes, workplaces, or schools, and whose existing family is scattered.

Third, Palestinian applicants may have difficulty demonstrating sufficient funds after seven months of unemployment and loss of material possessions under bombing.  INZ requires applicants to evidence savings totalling $1,000 per month of the proposed stay.  The burden is higher for pregnant applicants, who must demonstrate they have an additional $9,000 available to pay for maternity services.  The financial requirements can alternatively be met through sponsorship by a  resident or citizen family member or organisation in New Zealand.[13]  However, families and organisations must also raise the $5,000 fee per applicant to cross into Egypt and the costs of airfare.  Hence, the costs are onerous, especially for larger families.

According to INZ, Gazan applicants “remain subject to the same visa requirements as other visa applicants”.[14]  In other words, the visitor visa parameters have not been adjusted to make the visa more appropriate for the horrifying situation Palestinians currently face.  This could partially explain the low number of Palestinian applicants to the visitor visa category.  The Mortajas’ uncle did not apply for a visitor visa because they assumed he would not be approved under the current criteria.

Humanitarian Visas

Humanitarian visas are used by countries all over the world.  This type of visa is intended to respond to an emergency situation by enabling a large number of people within a specific group to quickly flee to a safe country.[15]  There are numerous advantages to a humanitarian visa in New Zealand, including the fact that - unlike the visitor visa - it can combine with a pathway towards permanent residency, allows access to national healthcare, and provides work and school authorisation.[16] 

Russia invaded Ukraine on February 24, 2022.  Erica Stanford and Christopher Luxon - who were at that time opposition Members of Parliament - rightfully jumped into action.  They urged the then-Labour government to establish a special humanitarian visa for Ukrainians with New Zealand family members.[17]    On March 9, 2022, Erica Stanford stated, “It’s been 14 days since Russian bombs started falling on Ukraine, yet the Government has done nothing to expedite visas for wider family members of Kiwi-based Ukrainians”.[18]  Then-Immigration Minister Michael Wood subsequently advanced a policy proposal for a Ukrainian humanitarian visa.[19]  Cabinet quickly put the visa into effect on March 15, 2022.[20]  The rapidity with which the Ukrainian humanitarian visa was adopted has led many, including Green MP Ricardo Menéndez March, to ask when Palestinians can expect similar treatment.[21]

The government can show flexibility when setting the Palestinian humanitarian visa requirements, as they were flexible when creating the Ukrainian visa.  For example, the Ukrainian visa was originally intended only for immediate family members of New Zealanders.  The visa was later expanded to include extended family, provided the extended family applicant had at some point lived with the sponsoring family for a substantial period of time.[22] 

Palestinians may require a visa that allows their extended family members to apply, even if the sponsor and applicants have never resided together.  There is a large Palestinian diaspora, or population dispersion, that has never lived with their family members in Palestine.  That is the case for the Mortajas, who have never lived in Gaza.  They point out that this was not by choice.   In 1948, the newly developing state of Israel expelled and ethnically cleansed nearly 800,000 Palestinians from their lands during what Palestinians call the ‘Nakba’ or ‘catastrophe’.[23]  Israel does not recognise a Palestinian right to return to those ancestral lands.[24]  Yet families like the Mortajas maintain strong ties to their extended family in Gaza via phone and Internet communication.  Health requirements should also be removed if the humanitarian visa is to help the most Palestinians possible.

It is within the scope of the Immigration Minister’s power to create a humanitarian visa category in response to a crisis such as a genocide.[25]  The Immigration Act 2009 further grants the Immigration Minister the authority to certify specific instructions related to visas.[26]  Lastly, it is the prerogative of New Zealand’s Executive Branch to develop and carry out immigration policies.[27]  Erica Stanford’s position, however, is that humanitarian visas would not be useful to Gazans who cannot pass through the Rafah Border Crossing.  She has stated that she does not want to give people “false hope” that they might be able to travel to New Zealand given the heavily restricted border situation.[1]   She further maintains that the visitor visa category is sufficient for those who are able to escape.[28]  The Mortajas, along with other Palestinian activists, do not accept Stanford’s reasoning and have tried numerous times to meet with her, but have been rebuffed.[29]

Refugee Status

Asylum or refugee status presents as the logical solution for those fleeing persecution and violence.  However, there are several considerations that make this less effective as an immediate immigration solution for Gazans.

The first aspect is the unique situation of Palestinians with regards to the 1951 Refugee Convention.  According to Stewart Dalley, an Immigration Attorney and Chair of the The Law Association’s  Immigration and Refugee Law Committee, this is an area of law that is often not well understood.[30]  Technically, the Convention does not apply to Palestinians if they are “at present receiving from [the United Nations Relief and Works Agency (UNRWA)] protection or assistance.”[31]  This is the case unless “such protection or assistance has ceased for any reason.”[32]  In other words, for a Palestinian living in one of the five UNWRA-supported zones - which includes Gaza - to be eligible for refugee status in New Zealand, UNWRA must no longer be providing them with protection.[33]  This is clearly the situation in Gaza where UNWRA has confirmed it is no longer functioning.[34]  UN Advocate General Nicholas Emiliou recently stated that Palestinians should not have to prove they personally cannot access UNWRA assistance in situations where the living conditions have become generally intolerable.[35]  However, the New Zealand Immigration and Protection Tribunal has historically considered Gazan refugee claims on a case-by-case basis[36] and it is unclear if that position will change in response to this genocide.

The second issue is that Palestinians themselves may be wary of applying for refugee status.[37]   If a refugee applicant visits their home country, INZ may determine that they made their application fraudulently or that the conditions have changed and it is now safe to return to that country.[38]  There is thus “a risk of cessation of refugee status for any refugee who returns to their home country.”[39]  Essentially, applying for refugee status typically means the applicant is not planning on returning home in the near future.

Many Palestinians do want to return home as soon as possible.  Their fear is that they will be prevented from ever doing so.  Nadine and Heba Mortaja recall the fact that many Palestinians still hold keys to houses their families lived in before the original expulsion of Palestinians in 1948.  The keys are a symbol of the land they are struggling to return to.  A humanitarian visa - including one leading to permanent residency - could allow for travel back and forth to Palestine until Palestinians can return home permanently.

New Zealand’s International and te Tiriti Obligations

New Zealand is a contracting party to the 1948 Genocide Convention, and thus has an obligation “to prevent and to punish” genocide.[40]  A standard interpretation of the Genocide Convention would likely focus on obligations to prevent a State Party’s (here, Israel’s) illegal actions.[41]  However, a wider view could consider failure to grant visas as contributing to a complicity in genocide.  There is also support for the idea that Ministers must have regard to international conventions such as the Genocide Convention when exercising discretionary powers such as granting visas.[42]

Other countries’ support for Palestinians has included filing charges in the International Court of Justice, cutting diplomatic ties with Israel, and providing evacuation assistance to reunite Gazans with their family in the diaspora.  Brazil sent a presidential aircraft to bring 32 Gazans, including family members of Brazilian citizens, from Egypt to Brazil.[43]

The situation for Palestinians further calls into question the existence and enforcement of colonial borders in both Palestine and Aotearoa.  University of Auckland Lecturer Dylan Asafo points out that an Aotearoa where Māori would be able to freely exercise tino rangatiratanga would likely take a very different approach to Palestine than that taken by Western states.[44]  Te Pāti Māori has called for decisive action on Gaza, including expelling the Israeli and United States ambassadors and recognising the State of Palestine.[45]  There are reasons to believe that under a co-governance structure that was truly founded on te Tiriti o Waitangi, Māori would exercise control over the sphere of immigration.[46]  Given significant Māori support for the Palestinian struggle against settler-colonial violence,[47] it seems likely that such a Māori governance structure in Aotearoa would respond quickly to Palestinians calling for visas.

Conclusion

As this article was being written, Israel seized the Rafah Crossing with the catastrophic result that even grievously injured Gazans cannot leave and aid cannot enter.[48]  However, a glance at social media indicates that countless Gazans are still crowdfunding the $5,000 fee to get on the Rafah Crossing list in the hopes of escaping once the border reopens.  New Zealanders have already lost family members to genocide.[49]  Immediately establishing a humanitarian visa is one action New Zealand should take to prevent further loss of life.

[1] Interview with Nadine Mortaja, Preschool Teacher, and Heba Mortaja, Graduate Teaching Assistant (Auckland, 24 April 2024).

[2] Daniel Estrin “What does it take to flee Gaza? Thousands of dollars, paid to an Egyptian broker” (2 March 2024) National Public Radio <www.npr.org>.

[3] Mortaja, above n 1.

[4] Amnesty International “NZ Government must grant visas for Palestinians” (press release, 21 March 2024).

[5] Interview with Erica Stanford, Immigration Minister (Jack Tame, Q+A, TVNZ, 17 February 2024).

[6] Immigration New Zealand “Situation between Israel and Hamas” (statement, 16 April 2024).

[7] Response from Immigration New Zealand (INZ) (21 May 2024) (Obtained under Official Information Act 1982 Request to INZ, Ministry of Business, Innovation and Employment (MBIE)).

[8] Amnesty International, above n 4.

[9] Immigration New Zealand “Visitor Visa” <www.immigration.govt.nz>.

[10] World Health Organisation “Rafah incursion would substantially increase mortality and morbidity and further weaken an already broken health system” (statement, 3 May 2024).

[11] Immigration New Zealand (INZ) Operational Manual at A4.15.

[12] Immigration New Zealand “Visitor Visa” <www.immigration.govt.nz>.

[13] INZ Operational Manual, above, at V2.20.

[14] Response from INZ, above n 7.

[15] United Nations High Commissioner for Refugees (UNHCR) “Humanitarian Pathways” <www.unhcr.org>.

[16] Immigration New Zealand “Temporary visa for family of Ukrainians in New Zealand” <www.immigration.govt.nz>.

[17] Russell Palmer “National urges visa for Ukrainians fleeing 'unhinged' Putin's war” (1 March 2022) Radio New Zealand <www.rnz.co.nz>.

[18] Erica Stanford “Desperate Ukrainian families can’t wait for Govt” (press release, 9 March 2022).

[19] Office of the Minister of Immigration “2022 Special Ukraine Policy” (14 March 2022).

[20] New Zealand Government "Government offers shelter for around 4000 family members of Ukrainians in NZ” (press release, 15 March 2022).

[21] (21 March 2024) 774 NZPD (Questions to Ministers, Immigration).

[22] Immigration New Zealand “2022 Special Ukraine Visa changes to eligibility and expressions of interest timeframes” (announcement, 28 February 2023).

[23]Ilan Pappe The Ethnic Cleansing of Palestine (Oneworld Publications, London, 2006) at xiii and xvii.

[24] At 252-253.

[25] Ministry of Business, Innovation & Employment Briefing for the Incoming Minister of Immigration (June 2022) at [39-40].

[26] Immigration Act 2009, s 22.

[27] Doug Tennent, Katy Armstrong, and Peter Moses Immigration and Refugee Law (3rd ed, LexisNexis, Wellington, 2017) at 137.

[28] (21 March 2024) 774 NZPD (Questions to Ministers, Immigration).

[29] Mortaja, above, n 1.

[30] Interview with Stewart Dalley, Immigration Attorney (the author, Auckland, 27 April 2024).

[31] Convention and Protocol Relating to the Status of Refugees, Article 1D.

[32] Convention and Protocol Relating to the Status of Refugees, above n 30.

[33] Dalley, above n 29.

[34] “UNRWA: ‘UN flag no longer enough to protect Palestinians’” (4 November 2023) Middle East Monitor <www.middleeastmonitor.com>.

[35] Alex Papasotiriou “Refugee Status for Palestinians Where UNRWA Assistance Has Ceased” (31 January 2024) <https://immigrationbarrister.co.uk>.

[36] Tennant, Armstrong, and Moses, above n 27, at 217.

[37] Megan Williams “Wounded Gazans are receiving care in Italy, but their future in the country is uncertain” (13 April 2024) CBC/Radio Canada <www.cbc.ca>

[38] Immigration Act 2009, ss 143-145.

[39] Dalley, above n 29.

[40] Convention on the Prevention and Punishment of the Crime of Genocide, Article I.

[41] Interview with Dylan Asafo, University of Auckland Lecturer (by the author, Auckland, 6 May 2024).

[42] Tennant, Armstrong, and Moses, above n 27,  at 34.

[43] Government of Brazil “Brazil's presidential plane takes off from Egypt to Brazil with the group rescued from Gaza” (press release, 13 November 2023).

[44] Dylan Asafo “Gaza and the International Community" (podcast, 4 April 2024) 1/200 <www.1of200.nz>.

[45] Te Pāti Māori “Statement on Gaza” (statement, 31 October 2023).

[46] Arama Rata “Rangatiratanga and immigration” (5 December 2021) E-Tangata <https://e-tangata.co.nz>.

[47] Interview with Ayla Collin, Organiser (Hineani Melbourne, Waatea News, 22 February 2024).

[48] Israel takes control of Rafah crossing, further cutting aid” Otago Daily Times (online ed, Dunedin, 11 May 2024).

[49] Matt Hayes “How New Zealand is blocking one of the few avenues for escape from Gaza” The Post (online ed, Wellington, 24 April 2024).

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