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Borjas v The Minister of Immigration [2002] NZDRT 1 (13 February 2002)

Last Updated: 7 June 2012

Decision No 1/2002: DRT 11-12/01 IN THE MATTER of the Immigration Act 1987

AND

IN THE MATTER of an appeal under section

104 of the Immigration Act 1987

BETWEEN JORGE GABRIEL

SANTANA BORJAS (DRT 11/01)

and NANCY LUCIA LOZANO de

SANTANA (DRT 12/01)

Appellants

AND THE MINISTER OF

IMMIGRATION

Respondent

BEFORE THE DEPORTATION REVIEW TRIBUNAL

NA McFadden — Chairman PM Burrows JP— Member RH Weller JP - Member

HEARING at Auckland on 26 September 2001

APPEARANCES

A Chauca for Appellants M Gearry for Respondent

DECISION

1.0 Background:

1.1 The Appellants appeal Notices of Revocation of Residence Permit made by the
Minister of Immigration Act and pursuant to Section 20(1)(ca) of the Immigration Act 1987 ("the Act").

1.2 The Notice in respect of the Appellant Borjas is dated 3rd May 2001 and is

acknowledged on its face as having been received on 28 May 2001. The Notice of Revocation in respect of the Appellant de Santana is dated 3rd May 2001, is not on its face acknowledged as received by that Appellant, but contains a Certificate that

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the Notice was served on her on 25 May 2001 at 33 Sale Street, Auckland. There was no argument put to us that either of the Notices had not been received by the respective Appellants.

1.3 Section 20(1)(ca) was inserted into the Act by Section 18 of the immigration

Amendment Act 1999 which came into force on 1 October of that year. The section added to the grounds upon which the Minister of immigration may revoke a Residence Permit as follows:-

`That the permit (including any permit deemed by Section 44(2) to be a residence permit) was granted to a person who was, but is no longer, recognised as a refugee in New Zealand, that earlier recognition having been procured by fraud, forgery, false or misleading representation, or concealment of relevant information".

1.4 The respective appeals are made under Section 22 of the Act on humanitarian grounds. Section 22(4) provides that the Tribunal shall not confirm the revocation of a residence permit if it is satisfied that it would be unjust or unduly harsh for an Appellant to lose the right to be in New Zealand indefinitely, but subject to that provision, the Tribunal on any appeal may, having had regard to the matters set out in Section 22(6), confirm or quash the Notice of Revocation, as it thinks fit.

1.5 The Appellants' son, Jorge Santana Lozano arrived in New Zealand on 13

November 1992 and applied for refugee status on 24 November 1992, on the basis of his persecution, he allegedly having been employed by Seguridad Industrial SA as bodyguard of Maria Elena Moyano, an activist who was targeted and eventually murdered by terrorists. The son's Application was declined on 15 April 1993. On 27 April 1993 the Appellants' son lodged an Appeal with the Refugee Status Appeals Authority and that Appeal was dismissed on 8 February 1995, On or about 1 December 1994 the Appellants lodged an Application for Refugee Status based on their son's Application (which was then subject to appeal) and on the basis of persecution on political grounds. They claimed that as parents, they were themselves in danger of suffering physical harm at the hands of the persecuting agent because they were his parents, or for not disclosing their son's whereabouts. The Appellant Borjas claimed that terrorists had targeted their son with threats, had

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punished him physically both before and after the death of Mrs Moyano, and that he and the Appellant de Santana, were still in danger of persecution, even after their son had left Peru.

1.6 Following the decision of the Refugee Status Appeals Authority to dismiss the son's

Appeal, the New Zealand Immigration Service ("NZIS") declined the Application for Refugee Status for both Appellants. Those decisions were appealed to the Refugee Status Appeals Authority, and their appeal was upheld by Decision dated 20 March 1997. On 21 April 1997 the Appellants lodged Application for Residence based on their refugee status, and were granted Residence Permits on 26 June 1997.

1.7 Following the decision of the Refugee Status Appeals Authority to grant the

Appellants refugee status, their son made Application for a Judicial Review of the Appeals Authority's decision in respect of his Application.

1.8 At some time between April 1997 and November 1997, the Refugee Status Branch of NZIS, having made enquiries through the British Embassy in Lima, Peru, came to the conclusion that the Appellants' son has provided or procured false information and/or documentation in support of his claim for refugee status, upon which the Appellants' claim had been based. On or about 17 November 1997 the Refugee Status Branch of NZIS made Application to the Refugee Status Appeals Authority for a determination as to whether the refugee status granted to the Appellants had been properly granted, and if not, as to whether the grant of refugee status to them should be cancelled.

1.9 The Appellants' son had by this time made Application for Judicial Review and after

a process of negotiation, agreement was reached that the son's Appeal should be reheard by a different panel of the Refugee Status Appeals Authority. Due to the complexity of the matter, the panel of the Authority which reheard the son's Appeal, also dealt with the Refugee Status Branch Application for Determination of the Appellants' status.

1.10 Evidence was given to the effect that the son's work reference from Seguridad Industrial SA was forged and although that company existed, it had at no time

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employed the Appellants' son, nor the person who had signed his letter of employment. It was also found that the letter of reference for the Appellant's son, provided when he had applied for a Visitor's Visa in 1992, was true and correct and that letter established that the Appellants' son had in fact worked for an accounting firm for much of the time frame that he purported to be working as a bodyguard for Mrs Moyano. The Appeals Authority concluded that the evidence submitted by the son was false and accordingly, dismissed his claim for refugee status. At the same time the Authority upheld the Application of the Refugee Status Branch in respect of the Appellants, and concluded that their refugee status should be cancelled. The Authority concluded that the Appellants' son's Application, upon which the Appellants had based their on Refugee Status Application, contained a false document which dramatically altered the version of events purported to have occurred in Peru, and on that basis the Appellants' status was cancelled. That Decision issued on 17 November 1998.

1.11 But by this time the Appellants had obtained (on 26 June 1997) New Zealand

Residence. In September 1997, the Appellants lodged an Application for
Citizenship, but the Citizenship Office determined that it would not progress those Applications on the basis of the Appellants then circumstances.

1.12 In January 2000 the Border & Investigations Section of the NZIS sought an interview with the Appellants, and after some difficulties with correspondence, an interview was held on 24 August 2000. The letter requesting the interview stated:-

`The Service is considering whether there is a case to revoke your residence on the grounds that you were granted Refugee Status and subsequent residence by fraud, false or misleading representation and by concealment of relevant information about the dangers you faced in your home country.

I would like to formally put the above information to you for written comment and also obtain from you an explanation as to why you think the Immigration Service should not pursue action against you. The interview will also cover your financial and domestic situation and any effect the Service action may have on any family in New Zealand.".

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1.13 By 13 February 2001 no decision had been advised to the Appellants or their Counsel and the Appellants' Counsel wrote to NZIS seeking advice. No response was obtained. On 6 March 2001 the Appellants' Counsel wrote to NZIS again, and was advised that a particular question was to be put to the Appellants for comment. By letter dated 13 March 2001 the Appellants' Counsel was advised that written comment by way of Affidavit was to be submitted addressing the statement

"You were granted Refugee Status and subsequently residence by fraud, false or misleading representations and by concealment of relevant

information about the dangers you faced in your home country.

A copy of the Refugee Status Appeals Authority Decision cancelling the Appellants' refugee status (dated 17 November 1998) was attached to that letter.

1.14 On 3 April 2001 an Affidavit dated 2 April 2001 was lodged with the NZIS responding to the statement. The Affidavit states, amongst other things:-

"it has been the Decision of the Refugee Status Appeals Authority not to accept the evidence given by our son and ourselves in the previous hearing. Accordingly the issue of credibility has been decided unfavourably. That is not to say that there is evidence that we have procured refugee status by fraud, forgery, false or misleading information or concealment or relevant information"

and

"Our position has consistently been the same. Our claim for refugee status has been based on the fact that we have received threats and generally have suffered persecution within the meaning of the United Nations Convention"

and

'While it is true that our claim for refugee status was largely dependant on the claim of our son, that is not to say that our evidence must be disregarded

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or treated as fraudulent because of the fact that the evidence found in our son's claim was not accepted as credible"

and

'We reiterate our position that persecution in the form of telephone threats and a physical attack on me, Jorge Gabriel Santana Borjas, have occurred. Our evidence has been limited to the incidents and occurrences of which we have knowledge and which are within our own experiences. Regrettably, in the light of the developments connected to our son's claim, evidence has not been accepted by the latest panel of the Authority".

2.0 The Appellants' Case:

2.1 Counsel submitted that the Appellants had been living in New Zealand for a period

of seven years as at the date of hearing, and had not only assimilated New Zealand culture, but had also blended into New Zealand society. Counsel said that the Appellants had committed themselves to New Zealand since arrival, had no criminal convictions and presented no burden to the State. The Appellants are both employed and had acquired assets, including their own home of which they are justifiably proud. Mr Borjas at age 62 and Ms de Santana at age 58 have not found it an easy task to fit into New Zealand society, but were motivated to succeed and to be close to their son and daughter resident in New Zealand. As at the date of hearing the Appellants' son, Mr Lozano, remained in New Zealand unlawfully and was being sought by the Border & Investigations Branch of NZIS in order that a Removal Order could be served on him.

2.2 Counsel said that it would be a "shocking experience" for the Appellants to return to

Peru, and that they would suffer the mental anguish of being unable to be with their children and four grandchildren in New Zealand, three of whom are New Zealand Citizens. He said that they would be practically without immediate family in Peru.

2.3 Counsel submitted that the Appellants had the ability to support themselves and to

contribute to the whole family by remaining in New Zealand. The Appellants only daughter and son lived in New Zealand and had done so since before the

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Appellants arrived here, and that they now had four grandchildren, three of whom had been born in New Zealand.

2.4 Counsel said that the Appellants would qualify for residence under the Family

Category in that they `Would have an equal number of children in New Zealand than in any other country" and he advised the Tribunal that an Application for Residence on that basis was to be lodged with the NZIS.

2.5 Counsel said that the experiences suffered by the Appellants in terms of threats,

telephone calls and physical harm (to Mr Borjas) had occurred and they would not retract from that. He added "consequently in their own minds they have not been involved in any fraud nor have they attempted to use or conceal fraudulent evidence in support of their refugee claim. In this respect it should be pointed out that as opposed to the son's case, the Authority has not contrasted the Appellants' evidence with any documentary material to adduce fraud on their part. Simply their evidence has not been accepted". Counsel acknowledged "... from a technical or logical point of view, as their claim has heavily relied on their son's case (the son having been the primary target) it would be quite predictable that if the son's case failed their case would also collapse as a result. As indicated an argument that this should not necessarily be the case was not accepted by the Authority".

2.6 Counsel submitted that 'Mere was a reasonable expectation on the part of the Appellants that their humanitarian circumstances would be taken into account before deciding on revoking their Permits. Moreover the length of time taken by the New Zealand Immigration Service since the Authority's Decision (17 November 1998) in order to proceed with the revocation process and the delays the Appellants have experienced during the revocation process, seem unfairly long periods, again building up an expectation on the Appellants to continue with their lives in New Zealand as usual".

2.7 There was provided to the Tribunal a Medical Report from Dr Bruce Solomon dated 25 September 2001 advising that Mr "Jorge Santana" who we understand to be the Appellant Borjas, had severe stress related to his current immigration issues and upcoming interview. The Certificate said that he had been prescribed medication and offered help from a Psychologist. It was sought that he be excused from the interview on medical grounds.

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2.8 We were also provided with a Statement from Mr Bruce E Wells of Wells Apparel Ltd who confirmed that the Appellant de Santana had been employed by that company since 1997 and Mr Wells described her as friendly, honest and always punctual, liked by her colleagues, and an asset to the company.

2.9 We received a written Brief from the Appellant Borjas. Mr Borjas describes himself

as a plasterer. He said that he and his wife left Peru for fear of persecution, they felt safe in New Zealand and were happy to be close to their loved ones. After arrival they were advised that they should lodge an Application for Refugee Status and at that time their children's applications had not been determined. They lodged a joint Application for Refugee Status based on the position of their son, who they stated was being persecuted by members of a terrorist organisation for matters connected to his employment. Mr Borjas said that he and his wife had experienced telephone threats and that he had personally been physically attacked by persons who identified themselves as the persecutors of their son. He said that in the course of that attack he was left unconscious and was hospitalised.

2.10 Mr Borjes said that he had later learned that his son had included in his claim for refugee status information "... which does not agree with the truth or has actually happened". He said that he understood that his son had received advice in New Zealand that he should "exaggerate" his claim to make it more credible and following that advice he had "enlarged" details of his claim, which in turn had affected the details included in the Appellants' claim. He added "the truth of the matter is that we have believed our son and have therefore been guided by the assertions contained in his statement".

2.11 The Appellant Borjas detailed the history of his Applications and dealings with the NZIS, much of which we have detailed in the introduction section to this Decision. Mr Borjas said that he was aware of the seriousness of giving untrue information to immigration authorities. He said that he could only apologise for that, but reaffirmed that the causes of persecution had existed, and that he had personally suffered a physical attack by persecutors.

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2.12 He said that he had been living in New Zealand for over seven years, he was aged 62, his wife 58 and he had more familiarity with and had more attachment to New Zealand than to his country of origin. He said that he and his wife had received temporary assistance by way of benefit on their arrival in New Zealand, but he had

• endeavoured to seek employment and to become self supporting so as not, at any stage, to be dependant on the State. He said that he had managed to obtain employment as a plasterer and had been in work for in excess of five years.

2.13 He said that his only two children were now resident in New Zealand, and that his daughter's Application for Citizenship had already been approved. Of his four grandchildren, three are New Zealand Citizens. Even although his son was in New Zealand unlawfully, he was hopeful that the Authorities would deal with his son's situation on humanitarian grounds.

2.14 He said that he and his wife had purchased a house in Auckland and he expressed his view that New Zealand was now the family's home. He said he would suffer immense psychological harm in returning to Peru, as he would not be able to be close to his family and would encounter serious difficulties readapting to the system in Peru. He added that given his age he would encounter great difficulties in finding employment to support he and his wife. He said that when in Peru, he had been well off by Peruvian standards.

2.15 The Appellant de Santana provided a written brief, it was substantially in the same terms as that of Mr Borjas.

2.16 in cross-examination Ms de Santana said that in the course of making their Application for Refugee Status, everything which had been stated was in accordance with her son's statement. She said that it was not until she and her husband had obtained residence, and her son's Application declined, that her son told them that he had "altered things in a particular way". She said that she now knew that the statements made by her son were not correct and she apologised for that. She said that she had been aware that her son had worked in security, but she did not know for whom, she said that sometimes he lived at home and sometimes at other places, and she never knew exactly who he was working for.

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2.17 She said that she had worked as a Clothes Designer in Peru, and that she had earned in the 1992 year a net figure of 24,132 soles (the equivalent of approximately NZ$12,000.00) in her business "Creaciones Nancy". She said that she presently worked as a machinist.

2.18 She said that when she and her husband left Peru, they had a three storey home, of which two storeys were completed. When New Zealand Residence was obtained the house was sold at a price of "30 to 40,000 US dollars". Half the price had been paid, and the other half was being paid off by the purchaser. She said that her home in Auckland had been purchased for NZ$326,000.00, of which a NZ$48,000.00 deposit had been paid and the balance remained owing on mortgage.

2.19 She said that she had three sisters, three brothers and a father living in Peru. Her father and three siblings lived in Lima, the other two in the provinces. She said that she was still in contact with her brothers and sisters. The Appellant Borjas had eight brothers, three of whom live in Lima, the others in the province of Ica. The Appellants' daughter and grandchildren lived with her and the daughter's children were aged 15 and 8. The 8 year old was born in New Zealand, the 15 year old in Peru. The Appellant's son is living in Pakaranga, with his wife and their two children aged 7 and 3, both of whom are New Zealand Citizens. She said that her son's children had a maternal grandparent living in Auckland. She said that her daughter works at a plastics company in Auckland and that her eldest granddaughter took her sister to school and collected her after school. She said that she had been self employed for 9 to 10 years, and she did not feel that she would be able to obtain any work in Peru because of her age and because she did not have the equipment and machinery she would require.

3.0 The Respondent's Case:

3.1 Counsel submitted that the ages of the Appellants were not a significant factor in

establishing justice or undue harshness. Counsel submitted that that the Appellants had proven skill, which should have enabled them to establish themselves in New Zealand, and there was not in Counsel's submission any reason why they could not re-establish themselves in Peru. Counsel acknowledged that the Appellants had

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been lawfully resident in New Zealand for a period of seven years as at the date of hearing, but had a number of siblings remaining in Peru and whilst their daughter and four grandchildren lived in New Zealand, their son was living in New Zealand unlawfully. Counsel referred us to the Evidence given by the Appellant Borjas to the RSAA to the effect that the income he had derived from his work in Peru was reasonably good, and that he regarded himself as well off. Counsel drew our attention to the Appellant Borjas' taxable income for the years 1998 to 2000 as having been $30,000.00, $25,000.00 and $50,000.00 per annum gross. Counsel said that the Appellants own a property in Auckland could be sold and the capital applied to the purchase of housing in Peru, and referred to the Appellant de Santana's Evidence that they had received part payment for their house, with a substantial balance remaining owing. Counsel submitted to that the monies available to the Appellants would enable access to capital to purchase a home, equipment or to commence a business.

3.2 Counsel submitted that the refugee status claims of the Appellants had been wholly

based on their son's claim for refugee status and for the Appellants to have retained their refugee status, relied on their son's status as a refugee being upheld. in making its determination the RSAA was required to decide on whether or not the refugee status accorded to the Appellants may have been procured by fraud, it being a pre-requisite that the Authority find positively in that regard before it could go on to consider whether it was properly made or not. Counsel referred us to the RSAA decision of November 1998, in particular "for the reasons which we have explained at some length in the context of the son's Appeal, we have found that there is not a shred of truth to the son's case and we have specifically rejected the claim that he was employed by Seguridad Industrial SA and that he was Mrs Moyano's bodyguard in the period August 1991 to February 1992. In the course of making these findings we have commented adversely on the conflicts of evidence between the son and his parents, on the improbabilities in their claims and the remarkable similarities in the claims made". The Authority went on to say "it is our finding that the grant of refugee status to Jorge Gabriel Santana Borjas and his wife, Nancy de Santana was procured by the act of unwilling concealment by them of the truth, with purpose of deceiving this Authority. That is, there was fraud, false or misleading representation and concealment of relevant information". The Authority found that the Appellants procured refugee status by fraud, false or

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misleading representation and concealment of relevant information, not that they may have, the latter being all that was required to trigger their enquiry as to cancellation or not. Counsel submitted that it was not open to this Tribunal to revisit that RSAA finding, or to accept the Appellants' contention that they did not willingly commit fraud, or that just because their son's story was found to lack truth, the same did not apply to their case.

3.3 Counsel submitted that it was incorrect for the Appellants to say that they were not

aware of the basis upon which revocation of their Residence Permits was made. The Appellants were advised that the basis of the revocation was that they had been granted refugee status and subsequently a Residence Permit by fraud. Counsel added that the Appellants would not qualify under the Family Category for residence either, since by deceiving of the NZIS, they would be likely to fail the character requirements for a grant of residence.

3.4 Counsel said that the case struck at the integrity of the immigration system and at

the heart of the grant of the refugee status, namely that an Applicant was required to have a well founded fear of persecution. Counsel said that there was abuse on the part of the Appellants, the grant of refugee status was not properly made, and the finding of the RSAA that there was no truth in their son's Application for Refugee Status lead to the conclusion that the derivative claim by the Appellants was not accepted either. Counsel sought that the notices of revocation be confirmed.

3.5 In reply, Counsel for the Appellants said that they were not highly employable, and

that it would be extremely difficult for them to obtain work. He added that the only viable option would be for them to start a business anew and, given that it had taken nine years to establish their last business, having regard to their ages such was not a real possibility. The Appellants' Counsel disputed that the Appellants were "well off" and said that it was necessary to look at those words in their context — being "well off" in Peru was not the same compared against the standards in New Zealand. Counsel said that the Appellants were not involved in the fraud they did not have knowledge of the fraud until after residence had been obtained. All and any statements which had been made by the Appellants had been guided by the statements of their son, it appears to draw a distinction between the information

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provided by the son and that provided directly by the Appellants. There was however no argument that the Appellants had relied upon their son's statements. Counsel sought that the Notice be quashed.

4.0 Discussion:

4.1 These Appeals are the first appeals to come before this Tribunal in relation to

Notices issued under Section 20(1)(ca) of the Act.

4.2 Section 20(4) of the Act provides that subject to Section 22(5) the Tribunal may

confer or quash the revocation of a Residence Permit, as it thinks fit. However, the Tribunal is constrained by Section 22(5) in that it may not confirm the revocation if it is satisfied that it would be unjust or unduly harsh for the Appellants to lose the right to be in New Zealand indefinitely. The criteria to which the Tribunal shall have regard is set out in Section 22(6).

4.3 The Appellants are aged 62 and 58 respectively. Although we were provided with a Medical Certificate which indicated that the Appellant Borjas was suffering from stress and had been provided with medication and a reference to a Psychologist, there was no evidence put to us that either of the Appellants were otherwise than in good health. It is not surprising that the Appellant Borjas and even possibly Ms de Santana, were suffering from stress given the process and the length of time over which it has continued. That said, the Appellants were both clearly capable people who had in their words been "well off" by Peruvian standards when in Peru, who had established businesses there, apparently successfully, and had been successful also in establishing businesses and maintaining work while in New Zealand.

4.4 The Appellants have been in New Zealand lawfully for seven years, during which

time they have established a business in the case of the Appellant Borjas and in the case of the Appellant de Santana, has established a good work record and she is well thought of by her employer. The Appellants also own a home at Howick, in which it appears that they live with their daughter and two grandchildren. The Appellants' daughter is in work, and the grandchildren at school. The Appellants' daughter arrived in New Zealand as a refugee some time before the Appellants,

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and one of the daughter's children is a New Zealand Citizen. As we understand the Appellants' daughter who is separated from her husband, is not a New Zealand Citizen (although Mr Borjas told us that her Citizenship Application had been approved).

4.5 The Appellants' son does not hold refugee status, and he is at present in New Zealand unlawfully. His two children are New Zealand citizens by birth. The Appellants have a number of siblings still living in Peru, and details of those are set out earlier in this decision. The Appellants seem to have capital (in terms of money owing to them in respect of a house sold in Lima), and own a property in Auckland, albeit with a substantial mortgage. They commenced living in that property in late May early June 2001, and that house it appears was purchased after their interview with the Border & investigations Branch of the NZIS in August 2000.

4.6 We were surprised that no evidence was made available to us by the Appellants from their daughter or son. Clearly the Appellants' daughter and grandchildren are in close contact with the Appellants, given that they live with them, but we were not provided with any information as to the relationship, nor as to what effect from the Appellants' perspective there could be on those children in the event of confirmation of the revocation of the Notice. Given that the Appellants were legally represented, we do not consider that it is the task of this Tribunal to take matters further than that. We were also advised that the son's children had maternal grandparents resident in New Zealand, but the Appellant de Santana seemed not to be aware of what element of contact those children had with them, nor were we provided with any significant evidence as to the Appellant's son's children or their circumstances. Again we found this rather surprising given that the Appellants acknowledged that they knew the whereabouts of their son.

4.7 We have set out in detail earlier in this Decision the basis upon which the

Appellants' Residence Permit was revoked. Counsel for the Appellants by implication sought that we drew a distinction between the evidence which had been given to the RSAA by the Appellants' son and the RSAA's finding in respect of it against the evidence given by the Appellants themselves. Counsel said that before the RSAA "it was contended on behalf of the Appellants that the finding of the Authority regarding the evidence presented by the son should not necessarily effect

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the outcome of the Appellants' claim, namely if the son had used false information/documentation to boost his case or make it more credible, this should not necessarily make the Appellants' case false or their evidence not credible". The Appellants themselves said in their Affidavit our claim for refugee status in New Zealand has always been based on the fact that our son was being persecuted by a members of a terrorist organisation for matters connected to his employment" and "I have later learned that in fact our son had included information in his claim for refugee status which does not agree with the truth or what has actually happened. We understand that our son has unfortunately received advice in New Zealand that he should "exaggerate" his claim to make it more credible. Following this advice he had "enlarged" details of his claim which in turn had affected the details which we have included in our claim. The truth of the matter is that we have believed our son and have therefore been guided by the assertions contained in his statement".

4.8 While it is not open to us to reopen the hearing before the RSAA, it seems clear

from that Decision that the evidence put before the RSAA did not satisfy the RSAA that the fraud perpetrated by the Appellants' son was not known to the Appellants. Indeed the Appellants' acknowledge firstly that they relied on what their son had said, and secondly that they acknowledge that their son's claim for refugee status "does not agree with the truth or what has actually happened". Whilst Counsel for the Appellants has said "it is appropriate to point out in this respect that as opposed to the son's case, the Authority has not contrasted the Appellants' evidence with any documentary material to adduce fraud on their part. Simply their evidence has not been accepted"— the fact of the matter is that by the Appellants own admission they relied upon the statements of their son. Those statements have been found to be untrue. Their status as refugees relied wholly on the status of their son.

4.9 The fact of the matter is that the Appellants knew at some stage of the proceeding

that their son had falsified events, and have benefited from that.

4.10 The Appellants' Counsel has said "their knowledge of the causes of persecution was limited to their own experience" the Appellants say that they received phone calls and the Appellants Borjas was physically assaulted — but if their son did not work for the security firm or was not a bodyguard for the late Mrs Moyano, as

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appears to be the case, we do not see the link between the assault and the alleged persecution, from which the grant of refugee status flowed.

4.11 We address first the question of knowledge. The Appellants in their Affidavit of 2nd April 2001 state "it has been the decision of the Refugee Status Appeals Authority not to accept the evidence given by our son and ourselves in the previous hearing. Accordingly the issue of credibility has been decided unfavourably. That is not to say that there is evidence that we have procured refugee status by fraud, forgery, false or misleading information or concealment of relevant information". But it is not a question of whether it is the Appellants who have provided such information, but rather whether the information has been provided leading to (in the context of this case) refugee status having been acquired. This matter has been addressed previously both by this Tribunal and by the High Court. In Zheng Chin Man v, Minister of Immigration (High Court Wellington AP39/90) the High Court concluded that the fraud, forgery or misrepresentation need not be that of an Applicant for a Permit. In Rajan v Minister of Immigration (unreported — N1115/94 — High Court Auckland 31 July 1995) the Presiding Judge noted:-

"It is my conclusion that the Minister may revoke a Residence Permit where that permit was procured by the fraud etc of another. I reach this conclusion for two reasons. First, the Section does not state that the fraud, forgery, false or misleading representation or concealment of relevant information must be that of, or within the knowledge of the holder of the permit. It is consistent with the scheme of this part of the Act that a person should cease to have a Residence Permit where that permit was obtained by fraud etc irrespective of whose fraud etc resulted in the procurement of that permit".

In Lodhia v Minister of Immigration (DRT4/96) this Tribunal, differently constituted said:-

"The law does not require personal knowledge or intent that the Residence Permit was procured by forgery or misleading representation or concealment of relevant information. To do so would run coach and four through the policy of the Act and fuel the various means by which permits may be obtained dishonestly or improperly. However, where we are required to deal

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with humanitarian concepts in order to decide what is unjust or unduly harsh there is scope in proper cases to consider the personal responsibility and involvement of the individual permit holder".

4.12 The Tribunal has considered the matter recently also in Decisions such as Khan Rahman & Others v Minister of Immigration (DRT10/98) and Lobeindino-Tecson v Minister of Immigration (DRT3/00), and Bhuiyan v Minister of Immigration (DRT10/01). It has been made clear in all of those Decisions that the law does not require personal knowledge or intent for there to be a revocation of a Residence Permit. Indeed, Section 20(1)(ca) was only inserted into the Act in October 1999, and that provision does not require personal knowledge or intent either, indicative of the view of Parliament that such was not required. However, whether the Appellants did or did not have knowledge may be relevant to us in proper cases as this Tribunal established in Lodhia. Thus the matter of personal knowledge is not required but the issue may be relevant. In this case the Appellants did have knowledge of their son's fraud. They acknowledged in their Brief of Evidence although they take the position that the fraud, forgery, false or misleading information or concealment was not on their part, and had nothing to do with them. The fact is it occurred and they are aware of that, and have been for some time.

4.13 The Appellants stated that they reiterated their "... position that the persecution in the form of telephone threats and a physical attack on me, Jorge Gabriel Santana Borjas, have occurred. Evidence has been limited to the incidents and occurrences of which we have knowledge and which are within our own experiences". However if the Appellants' son did not have the links as the RSAA found, although there may have been assaults and threats, the mere fact that they have occurred could not have been linked with the persecution by the particular group as claimed by the son, and subsequently the Appellants

4.14 Counsel for the Appellants put to us that the advice given to the Minister in order to decide whether or not revocation of the Residence Permit should follow was "incomplete or partial". As we have recorded in many previous decisions, this Tribunal's task is not to revisit the Minister of Immigration's decision, but to make an original finding. As the High Court concluded in FAA v Minister of Immigration [1996] 2 NZLR 243 the Tribunal's task is to evaluate the position, not to judge

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whether the Minister is wrong. The Appellants have put their evidence before the Tribunal, and we make our decision on the basis of what is before us.

4.15 There was some suggestion that the delay which has occurred between the decision of the RSAA on 17 November 1998 and the issue of the Notice of Revocation in May 2001 was such as to render the process susceptible to a challenge for undue delay. We must accept that there has been a considerable delay between the decision of the RSAA and the issuing of the Notice of Revocation. There have been delays, delays which the NZIS should always make its best endeavours to avoid, but given the litigation process which has been gone through, and the additional appeal and judicial review proceedings on the part of the son (and quite obviously all of these matters are to one extent or another linked), it is not surprising that a delay has occurred. We do not think that this is a case in which delay to the extent it occurred should work in favour of the Appellants. Another matter we raise here is that it appears that the Appellants were aware of the embellishment and "enlarging" (the Appellants' words) on the part of their son.

4.16 We are conscious of the provisions of the international Covenant on Civil and Political Rights 1996 Article 23(1) of which states 'the families the natural and fundamental group unit of society and is entitled to protection by society and State" and the comments of Dame Justice Cartwright in Tevita Lisiate v Department of Labour (M1109/96) — "extended family, while often important is not a substitute for immediate family members" and of the decision of the High Court in Tevita v Minister of immigration [1994] 2 NZLR 257. The United Nations Convention on the Rights of the Child states that Article 3(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, Courts of Law, administrative authorities or Legislative bodies, the best interests of the child shall be a primary consideration". In this case the Appellants' children are adults. The Appellants' daughter lives with them, but she travelled to New Zealand and

obtained refugee status prior to the arrival of the Appellants. Clearly she
established her life here, but has commenced living with her parents since her separation and divorce. She is in work, and from the evidence made available to us, the youngest grandchild is taken to school and collected from school by the eldest grandchild. The Appellants' daughter's children live with the Appellants also. The Appellants' son is married and has two New Zealand born children. He is

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unlawfully in New Zealand, and will we assume, once located, be deported to Peru. When that occurs the situation for the Appellants will in effect be the same as it was when their daughter and her children were living in New Zealand, and the Appellants and their son living in Peru. It may be that the Appellants' son chooses not to stay in Peru, but he will have the opportunity to do so.

4.17 There was no evidence put before us as to dependency on the Appellants by either of their children, or by either of the children on the Appellants.

4.18 We have no doubts that it is not the Appellants preference to return to Peru, and that they would prefer to live in New Zealand. However, as this Tribunal concluded in Faavae v Minister of Immigration (DRT8/96) "the test expressed as "unjust" or "unduly harsh" goes beyond considerations of convenience or ordinary hardship. The test may be met by a particular circumstance or by a combination of circumstances, which cumulatively disclose on balance, unjust or undue harshness". The Appellants are in good health, have family (although not their children) living in Peru, have done well whilst in New Zealand, and have a home in New Zealand. They have been successful in establishing businesses either in Peru or in New Zealand, and their skills we have no doubt are portable and will stand them on good stead if they are to be returned to Peru. It is notable that in the face of revocation of Residence Permits, the Appellants saw fit to buy their home, a decision they made in full knowledge of the situation. We are not satisfied that it would be unjust or unduly harsh for the Appellants to lose the right to remain in New Zealand indefinitely.

4.19 We turn now to our residual discretion under Section 22(4). We conclude that there are no reasons that could lead us to a conclusion that our residual discretion should be exercised in favour of quashing the Notice of Revocation. In reaching this decision we give strong emphasis to the matter that the integrity of Immigration Policies, Procedures and Laws must be applied to protect the Sovereign State, and in particular prevent persons obtaining rights to residence by improper means easily accomplished and perhaps difficult to detect. A matter recognised in unambiguous judgements of the High Court in cases such as Zheng Chin Man v Attorney-General (High Court Wellington AP39/40, Judgment 14.5.93) and Rajan v Minister of Immigration (High Court Auckland, M115/94, HC141/94, Judgment 25.7.95) and

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recognised by this Tribunal in cases such as Thonqkam v Minister of immigration (DRT22/92). In this case the Appellants' son sought refugee status on the basis of a certain state of affairs, the Appellants by their own admission relied on those statements and on that alleged state of affairs to advance their own position and obtain refugee status. They advantaged themselves by the falsehood on the part of their son, leading to an outcome that New Zealand did not receive persons who were genuinely refugees. As we have said in many decisions, the immigration authorities and the people of New Zealand are entitled to rely on the utmost frankness and honesty by immigrants. Without that the interests of the Sovereign State cannot be protected.

4.20 Whilst we have some sympathy for the position in which the Appellants find themselves, we do not exercise our residual discretion in favour of revocation of the notice, and accordingly, the Appeal is dismissed and the Notice of Revocation is confirmed.

4.21 We are conscious that the Appellants have a dwelling house and in the case of the Appellant Borjas a business which he will wish to realise upon. We consider it appropriate in the circumstances of this case to direct, pursuant to Section 22(7) of the Act, that a Temporary Permit be granted to the Appellants for a period of six months from the date of this Decision, to enable them to tidy their affairs as they see fit. The Tribunal will notify the Appellants in writing of the terms of this direction, the right of the Appellants under Section 22(8) of the Act. The Registrar is directed to notify the Appellants accordingly,

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Dated'this 13th day of February 2002

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Chairman