KEY POINTS:
An attempt by a woman to save her husband from expulsion by having him declared a taonga by the Waitangi Tribunal has failed.
However if the couple can obtain evidence for a more plausible argument, they can reapply for a tribunal hearing.
Rosina Hauiti's Tongan husband, Mofuike Fonua, has failed to gain residence status since his work permit expired last November.
He has lived in the country since May 2005 but has until next week to leave on his own before a removal order is issued.
Ms Hauiti sought an urgent Waitangi Tribunal hearing, claiming that under article two of the Treaty Mr Fonua is a taonga and should be allowed to stay in New Zealand.
In his submission for an urgent hearing, the couple's lawyer, Tuariki Delamere, argued that spouses within the "sanctity of marriage" weretaonga, and therefore Maori were guaranteed "the right to retain their taonga".
"If your own family aren't taonga, aren't precious, then nothing is. I think my family is taonga," he told the Herald last night.
Tribunal Judge Carrie Wainwright said yesterday she would not hear Ms Hauiti's case because the information provided by Mr Delamere did not show that policy or practice was inconsistent with the principles of the Treaty of Waitangi and a breach of Ms Hauiti's Treaty rights.
"The Waitangi Tribunal is not a forum for appeals against immigration decisions.
"The argument that Mr Fonua is a taonga to his wife, and therefore decisions affecting him would impugn her Treaty rights, are not at all persuasive. On that basis, it would be available to applicants to argue that when a Maori's wife or husband is wrongly charged with a crime, their own Treaty rights are impugned.This is clearly not tenable."
The couple's complaints should be further taken up with immigration authorities or through the ordinary court system, Judge Cartwright said.
"The fact that applying to the ordinary courts is more expensive does not mean that the Waitangi Tribunal can be supplanted as the forum to which the complaints can be made."
However, if Ms Hauiti receives documents under the Official Information Act that create a more plausible argument, she can apply to the tribunal again.
Since Mr Fonua's work permit expired, the couple had worked with immigration officials to sort out his status but authorities did not believe the marriage was legitimate.
Ms Hauiti had previously said that past domestic violence issues during their 20 years of being together could have influenced this view. Mr Delamere said his clients were waiting for Mr Fonua's file from Immigration which might shed some light on why the department thought the marriage was not legitimate.
They hoped the new details would get them a tribunal hearing.
"It's not over yet."
