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High Court of New Zealand Decisions |
Last Updated: 11 July 2010
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY AP No.280/00
ORDER MADE PROHIBITING PUBLICATION OF NAMES OF APPELLANTS AND ANY DETAILS THAT MAY LEAD TO THEIR IDENTIFICATION
FURTHER ORDER MADE THAT FILE IS NOT TO BE SEARCHED WITHOUT OF A JUDGE
IN THE MATTER of the Immigration Act 1987
AND IN THE MATTER of an appeal under s 115A of the Act
BETWEEN A, B and C, a family of Peru
Appellants
AND THE CHIEF EXECUTIVE, DEPARTMENT OF LABOUR
Respondent
Date of Hearing: 22 May 2001
Date of Judgment: 8 June 2001
Counsel: E.D. Patchett for Appellants
I.C. Carter for Respondent
JUDGMENT OF DURIE J
Solicitors:
Recordon & Co, Auckland for Appellants
Crown Law
Office, Wellington for Respondent
Introduction
[1] This is an appeal against a decision of the Removal Review Authority refusing to quash orders that the appellants, who are husband, wife and daughter, be removed from New Zealand. They are citizens of Peru. The decision also affects the parent’s second child, a son, who was born in New Zealand.
[2] The matter before the Removal Review Authority involved the interplay of two statutory directions. One was a requirement to consider the humanitarian aspects of the case. Here the family’s first stated concern was the claimed danger they would face in Peru on account of their graphic past experiences. A second concern was that they would be severed from extended family members living in New Zealand. A third was a concern for their son, who was born in New Zealand, (and who was not the subject of a removal order as a result).
[3] The other statutory direction was a requirement to consider the public interest in allowing the appellants to stay. Of the items under this head the main, as appearing from the Authority’s decision, was the husband’s involvement, as a Police Officer in Peru, in Police acts of inhumanity towards a Peruvian action group.
[4] After hearing the appellants and conducting inquiries, the Authority declined to cancel the removal order, giving special weight to the husband’s activities while a Police officer in Peru.
[5] By the relevant Act, where a party is dissatisfied with any determination of the Authority in its proceedings as being erroneous in point of law, that party may appeal on that question of law to this Court. In other words, this is not a general appeal and the Court is restricted in the matters that may be canvassed. In this case, several errors are claimed in respect of many parts of the Authority’s decision, but they boil down to a single question of whether the Authority properly considered all relevant matters.
[6] As a preliminary point, the recent addition of s 129T to the Immigration Act 1987, by the Immigration Amendment Act 1999, stresses the need to protect the identity of certain claimants under the Act. In keeping with the spirit of that provision, and because the circumstances appear to warrant it, I made an order in the course of proceedings restricting the publishing of material on the case that might identify the appellants. This decision has been drafted to suit.
Background
[7] In considering the facts, reliance is placed on findings in the decision and in other proceedings that the decision refers to. Those findings reflect the proclivity of tribunals that give effect to an international convention on refugees to give applicants for refugee status the benefit of the doubt on certain claims of fact. Accordingly, the background now given, so far as it relates to events in Peru, may substantially derive from the appellants’ own assertions.
[8] As a young man, as he still is, the husband was admitted to the police force of his home country, Peru. Within a few years he was posted to the anti-terrorism division and, on assignment to an emergency area in a rural city, he was on undercover work to infiltrate the networks of members of the Sendero Luminoso. These have been described as guerrillas and as terrorists. One report on record contends they had been responsible for killing 51 persons including 34 civilians. The city to which the husband was posted was under army control, and, as Sendero Luminoso members were taken by the army, or arrested by the police, the husband was involved in their interrogation.
[9] These matters were before another tribunal, the Refugee Status Appeals Authority, in earlier proceedings. That Authority found that human rights abuses, including torture, were part of a widespread and systematic campaign carried out by the Peruvian government against the Sendero Luminoso. It noted from certain material that acts of Police torture were commonly reported in emergency zones.
[10] The Refugee Status Appeals Authority more particularly found serious reasons for considering that, as a police officer, the husband was involved in these crimes against humanity. Indeed, the husband admitted that, volunteering to describe the activities, though the Authority considered the husband ‘had seriously understated the degree of his actual involvement in Police torture’. Presumably that was notwithstanding the ‘benefit of the doubt’ principle, or it may have been thought that the principle did not apply in that instance.
[11] In any event it appears that the husband’s role as an undercover agent became known to the Sendero Luminoso, who responded with various threats and attacks against the husband, his parents and his wife and children. One attack has left the husband virtually blinded in one eye, and in another, he suffered a shot wound to his leg. In the course of this he sought permission to resign from the police on several occasions but this was refused.
[12] However, the husband had family in New Zealand. In 1992, following what appears to have been the first attack on the family, or the family home, the wife and daughter came to New Zealand for about two months. During that time a son was born. The mother returned to Peru and in the same month, the family shifted to Chile, following telephoned threats.
[13] I do not recount the fuller story of threats and attacks after the family returned to Peru. It is enough to say that the husband was eventually released from service, and [in] 1994 the family arrived in New Zealand. Others of the family, some of who were also the targets of threats apparently on account of the role that the husband had played, have arrived here since. Later, the wife’s stepfather, who remained, was shot and killed in an attack on persons in a club. Elsewhere it has been argued that the shot, which was direct to the head, was consistent with Sendero Luminoso retributions, but the responsibility of the Sendero has not been proven. An assumption by the Refugee Status Appeals Authority, in other proceedings, that the Sendero was responsible, derives from the benefit of the doubt principle that I have mentioned.
[14] The appellants, and the son born in New Zealand, have remained in New Zealand since coming here in 1994.
[15] Within two weeks after arriving in New Zealand, the husband applied for refugee status. About a year later, his application was declined. He then appealed.
As already indicated, the appeal came before the Refugee Status Appeals Authority. That was in 1997. The Authority dismissed the appeal. I have also already indicated how the reasons are important for this case. The Authority found, on the information then available, that the appellant had a well-founded fear of persecution if he returned, and that his refugee status was made out. However, the Authority went on to find that the husband was excluded from the benefits of the United Nations Convention Relating to the Status of Refugees, on which claims to refugee status depend, by virtue of article 1F(a) of that Convention. This provides that the Convention shall not apply ‘to any person with respect to whom there are serious reasons for considering that . . . he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes’. Torture on a systematic scale was held to amount to a crime against humanity. The husband was found to have been a member of a state agency that had committed crimes against humanity as part of a systematic and widespread campaign against the Sendero Luminoso, and that the husband himself had committed torture. That being the case, the Authority concluded that the appellant had committed crimes against humanity and was excluded from the benefits of the Convention.
[16] That is not an issue before me. The finding is merely noted as background. In fact that finding fell for judicial review in this Court (to maintain confidentiality the case is not cited). Again, there was no right of appeal, and the matters considered on judicial review are constrained. Williams J found there was nothing in the judgment to suggest that the Authority did not correctly apply the required standard of proof and the correct approach to interpretation. He found that the husband had failed to make out any ground for judicial review.
[17] However, Williams J drew two conclusions that are significant for this case. First, in considering the husband’s role, in light of the submissions made, he considered that frequent participation in ‘persecutorial acts’ was unnecessary to fall within the prescription of article 1F(a), as that article spoke only of ‘a crime against humanity’ in the singular. In other words, the extent of the husband’s involvement was not significant for the purposes of that case. It may very well be, however, that it is important for this case.
[18] The second conclusion was in response to a submission that the exclusion by article 1F(a) could not apply to the wife. Williams J held that the wife had not been included in the husband’s application in any event. He noted that since the date of the Authority’s decision the wife had made a separate application for refugee status. He then went on to observe that, for the future, the form of application might well be reconsidered “to provide for a separate statement by the included spouse of any reasons relating to them and the children”. He added “reference should also be made to the principle of family unity and the possibility of exclusion”. That informs the appellants’ approach to the current proceedings. The wife has been at pains to stress the difference in her case, and that of her daughter, that they were not part of any Police activities, and that her appeal requires separate consideration.
[19] I have mentioned that the wife had made a separate application for refugee status. Now I add that this was declined and that an appeal, determined in November 1999, was also unsuccessful. The essential finding was that, as a result of the arrests of top leaders of the movement, the threat posed by the Sendero had been ‘substantially reduced’ in the intervening years. Its activities had become confined ‘to operations in jungle regions or the slums of Lima or other unspecified large cities where members are attempting to rebuild networks for the group’. The conclusion was that the wife could genuinely access the domestic protection of her state, ‘which is meaningful, by living in another part of Peru’.
[20] In April and May 1999 respectively, the wife and daughter, and then the husband, were served with removal orders. It is from the dismissal of their subsequent appeals, to the Removal Review Authority, that this appeal is now made.
[21] Further background, pertinent to this appeal, concerns the location of extended family members.
The extended families
[22] The best I can make from the record is as follows. The first family member to arrive in New Zealand was the husband’s brother, who came here in 1987. Since then, another two of his brothers have arrived, in 1989 and 1991 respectively. Seemingly, two have been granted residency and one has refugee status. One, like the husband, is a former officer of the Peruvian police. Each brother is married with children in this country. There is a married sister who lives in Peru, but it seems all other siblings are here.
[23] Following certain death threats, the husband’s parents also came to New Zealand, arriving here in 1998. I am not sure of their current status here.
[24] The wife has no family in Peru. Her father is deceased. I have mentioned that her step-father was shot and killed in Peru. Her mother arrived here in 1998 and sought refugee status in 1999. The wife’s only other relation is a half-brother whom she has cared for as a son and of whom she had legal custody. He came to New Zealand in 1995.
[25] The half-brother sought refugee status at about the same time as the husband and wife in this case. His application was declined and likewise his appeal was unsuccessful. Then, along with the husband and wife, he too was served with a removal order. And with them, he appealed to have the removal order cancelled. However, as an administrative exercise in the processing of the appeals, the case of the half-brother was severed from that of the others. It was heard later, and he was successful. He now has residency.
[26] I cannot say that I have referred to all of the family who now live in New Zealand and who, it seems, support each other in various ways in their new lives here. For example, there is a reference to a niece within the husband’s family who was granted residency last year, and some references to aunts and uncles who I could not readily slot into a family tree. However, those matters are by the by. At this stage of proceedings, and for the purposes of this case, the current position need not be determined precisely. It seems, from the record:
[27] Of course, the half-brother’s status results from events post the decision now under appeal. But the subsequent events remain relevant. Had the half-brother’s case been heard with this, according to the appellants’ proclaimed intentions, it would have added to the number of her family entitled to be in New Zealand, or who might gain residency, and from whom she might be severed.
Statutory background
[28] Those who seek the protection of this country normally will apply, in the first instance, for status as refugees. In most cases the test to be applied is straightforward. The question is whether the person seeking that status has a well-founded fear of persecution in the home country for some convention reason (see Convention . . . Article 1A(2)). The test has universal application being founded upon an international convention of wide acceptation amongst states for the protection of refugees. Of course there are other matters to be taken into account, as the background to this case has shown, but that is the main test.
[29] Failing success of such an application, and if a person is not otherwise validly here, an order for removal seems certain to follow. But there is a right of appeal. On reading the statutory provision for this, in s 63B of the Act, immediately it is apparent that the test is not the same as that which applies to applicants for refugee status. It is much broader and rests primarily on exceptional humanitarian grounds. As if to emphasise the importance of the distinction the Act specifically provides that another body will hear the removal appeal, the Removal Review Authority, not the Refugee Status Appeals Authority that deals with the applications first mentioned.
[30] The full text of s 63B is printed in an appendix. For the purposes of this case I need only focus on relevant parts of the two matters on which the Removal Review Authority must be satisfied if a removal order is to be cancelled. The Removal Review Authority may cancel the order only if it satisfied as to both of the following:
[31] That which may constitute ‘exceptional circumstances of a humanitarian nature’ does not need to be determined in this appeal, but obviously, the severance of persons from family with rights of permanent residence in New Zealand must come into the reckoning. This is especially so when children are involved. Indicative are other international instruments in which New Zealand has an interest. Article 23 of the International Covenant on Civil and Political Rights recognises the family as the natural and fundamental group unit of society. Article 24 acknowledges the right of the child to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. The United Nations Convention on the Rights of the Child 1989 provides further as to children. By Article 9, States parties shall ensure that a child shall not be separated from his or her parents against their will, except where competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interest of the child. The full texts of the relevant extracts are in the appendix. These matters were explored in Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA).
[32] While these instruments have particular significance for the young son, who was born in New Zealand and has a right to be here, ‘exceptional circumstances of a humanitarian nature’ are not limited by definition to concerns for children. Nor need ‘family’ be constrained to the nuclear family if circumstances otherwise require. Consideration may extend not just to the effect on children of losing contact with grandparents, for example, but to the effect that that has on grandparents. The categories of ‘exceptional circumstances’ need not be closed, and cannot be, for ultimately all must depend upon a full consideration of the actual circumstances of the particular case.
Background to appeals
[33] In this case there were three appeals, one of which was in respect of two persons. There was the husband’s appeal, an appeal for the wife and daughter, and the appeal of the wife’s half-brother. Reasonable expectations were that these would be heard together, because of common factors and for an overview of the family position, but that there would be separate decisions for each. While they had family in common, in crucial respects the circumstances for each appellant were also different.
[34] As mentioned, an administrative decision was in fact made that the half-brother’s appeal would be heard separately, and later.
[35] In the case of the husband, wife and daughter, the grounds for appeal, as summarised by the Authority, were as follows:
The decision under appeal
[36] The Authority’s conclusion with regard to the husband is to be found in this passage (at para 72):
“In my view the humanitarian concerns that arise in . . . [the husband’s] case are outweighed by the public interest issues that arise. In my view it would be contrary to the public interest to permit . . . [the husband] to remain in New Zealand.”
[37] The conclusion on the public interest can be seen to arise from two findings. The first was that the husband had been involved in torture, and that torture is contrary to the Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment, to which New Zealand is a signatory. Under that Convention, no exceptional circumstances whatsoever can be invoked as a justification, including internal political instability, and declining a safe haven is one of the few ways in which New Zealand can signal its disapproval. The Authority quoted extensively from the decision of the Refugee Status Appeals Authority denying the husband refugee status on account of crimes against humanity.
[38] Second, in New Zealand, the appellant had been convicted of an assault which ‘mirrors his attitude to his activity as a policeman ... in Peru’ and ‘which shows an attitude towards violence that should have no place in New Zealand’.
[39] With regard to the wife and daughter the Authority concluded (at para 73):
“. . . I note that there appears to be no real risk to their physical safety if they return to Peru . . . . . I am not satisfied that there are in their cases exceptional circumstances of a humanitarian nature that would make it unduly harsh or unjust for them to be removed from New Zealand.”
[40] The conclusion as to risk was founded upon the earlier determination of the Refugee Status Appeals Authority denying refugee status to the wife and daughter, upon the ground that the threat posed by the Sendero continues to diminish significantly. The decision in this case cited passages from the earlier decision including an opinion that it was open to the wife and daughter to live in the southern part of Peru where there was less trouble.
Consideration of the decision
[41] In its decision, the Authority quoted extensively from the prior determinations of the Refugee Status Appeals Authority and expressly as to part and by implication as to the balance, it adopted the findings of fact, and conclusions, in both cases. There appears no reason why the Authority should not have considered the earlier determinations of the other body. Section 63D(4)(a) appears wide enough to allow of it. There are also good reasons why it should have, for a fear of persecution is frequently a factor germane to both proceedings - as it was in this case. As the Court of Appeal observed in Talukder v Removal Review Authority [2000] NZAR 194, at 198:
“While the Refugee Status Appeal Authority’s conclusions are in no way binding on the Removal Review Authority, it was clearly reasonable for the latter to pay regard to its comments and findings on substantially similar evidence affecting those humanitarian considerations within his province.”
[42] In that case, as considered by the High Court Talukder v Removal Review Authority (High Court, Auckland, M 140/95, 30 March 1995, Thorp J) the Removal Review Authority found that it had the same or similar material to that which was before the Refugee Status Appeal Authority and on that material it reached the same conclusion. The Removal Review Authority then turned to the material that was not before the Refugee Status Appeals Authority. It found that even then it could still not differ from the earlier finding. Finally it considered the material as a whole to conclude that there were no exceptional circumstances of a humanitarian nature. Thorp J considered, at p 9, that on a sensible construction of the Removal Review Authority’s decision it showed no failure to recognise that its task was more expansive. That view was upheld on appeal.
[43] But in this case the circumstances are different. Looking at the decision as a whole, I am left with an inescapable conclusion that the Authority has not performed its separate and distinct function. I think it obvious that the prior determinations of the Refugee Status Appeals Authority, most especially on the husband’s acts of torture, had an inordinate and undue influence on the mind of the Removal Review Authority. Even allowing that one Authority is entitled to refer to the findings of the other, in this inquisitorial jurisdiction, in this case the effect was that the Removal Review Authority failed to perform its quite independent and separate duty to consider the matter under its own, much wider terms of reference. I refer not only to the extensive references to the earlier decisions, making up a substantial part of the decision in this case, and a relative failure to analyse them in humanitarian terms. I refer also to the comparatively facile treatment of the whole of the humanitarian aspects of the case. That is considered later in more detail.
[44] Repeating that earlier said, the primary test, for those seeking refugee status, is whether they have a well-founded fear of persecution in the home country. For those seeking relief from a removal order the test is much broader and rests primarily on exceptional humanitarian grounds. In emphasis of that distinction the Immigration Act specifically provides that one body will hear refugee status cases, and another will determine appeals against removal orders. When one body adopts the findings of the other, all care must be taken to ensure that the findings of fact are reassessed against the adopting body’s own criteria. There can be no room for adopting both fact and outcome, expressly or implicitly.
[45] In this case, Williams J, in my respectful view, had already indicated a warning. The refugee status application in fact fell to be determined on a collateral factor, that the husband was excluded from the benefits of the refugee convention by virtue of article IF(a), which refers to the commission of a crime against humanity. That was held to include torture and the husband had been involved with torture while a member of the Peruvian police. But, as Williams J noted, “Frequent participation in such acts is unnecessary, art 1F(a) only speaks of ‘a crime against humanity’ in the singular”. In emphasising that that was so, the point was left open to consider that where the convention does not directly apply, as here, then the extent of participation could be highly relevant. That must especially be so when, as in this case, the tests relate to humanitarian and public interest factors.
[46] I can find no serious evaluation of the extent and quality of the husband’s involvement in torture for the purposes of the tests to be applied in this case. There was mention of a submission of counsel that the context in which the husband acted in Peru was entirely different from that of New Zealand and that the husband was merely following Peruvian procedures and superior orders. The Authority’s rejoinder that the convention that refers to torture disqualifies superior command as justification gives effect to a significant approach for the purposes of that convention. But that was not conclusive for the purposes of this case. The tests were different. The Authority had still to consider whether, in the totality of the circumstances, it would still be contrary to the public interest to allow the husband to remain. In that respect, it seems to me, the degree of participation was highly relevant. The Authority could not entirely rely on the findings of the earlier Authority for that Authority had no need to consider whether there was more than a single incident. Moreover, for the purposes of the Authority in this case, the whole of the circumstances had to be weighed. But lacking is the necessary holistic approach.
[47] The same may be said of the finding on ‘fear’. Refusal of refugee status may be appropriate if the fear of retribution is no longer real in the sense that physical retribution is unlikely; at least if precautions are taken like moving to southern Peru. But that is for the purposes of that application. In considering the same in humanitarian contexts, the simple fear of returning to a place, because of gross historic experiences and continuing anxieties, and the impact of that on children, may in itself constitute an important part of the overall mix.
[48] Section 115A, the text of which is in the appendix, provides for an appeal to this Court where the decision of the Authority is erroneous in point of law. I find that in adopting the process that it did, the Authority failed to perform its function as it was required to do, and I find that to be an error of law.
[49] That is enough to dispose of the appeals in respect of the husband, and of the wife and daughter. However, to reinforce the conclusion and for the sake of the now inevitable rehearing, mention is made of other matters raised by counsel for the appellants, Mrs Patchett. These tended to dwell on particular, alleged errors, omissions or opinions. In that respect I am conscious of a very proper submission of Mr Carter for the respondent. He emphasised that decisions that cover a range of matters, like those of the Authority, must necessarily be economical on the facts of an individual case - see De Borja v Removal Review Authority [1999] NZAR 471, 477 (HC). That must surely be so. Not every single point can be covered where facts are multitudinous. However, I think the matters raised by Mrs Patchett are readily marshalled under the headings I now give. Reviewing matters under them is an aid to achieving an overall view in the context of errors of law.
The need for reasons
[50] Mrs Patchett referred to a number of relevant matters of fact that attracted the Authority’s attention. The Authority’s comments were usually adverse to the appellants’ positions and usually related to matters of family circumstance. Yet, she submitted, nothing was drawn together and assessed in order to reach the eventual conclusion that there were no exceptional circumstances that would make removal unduly harsh. I think Mrs Patchett is right. In some cases, a recitation of facts accompanied by opinions may be enough to indicate a tribunal’s line of reasoning to justify the conclusion made, but not here, where an overall assessment and a balancing was required. I come to the view that the reasons for the decision were less than adequately stated, and in the result, it is not manifest from the decision that the humanitarian aspects of the case were properly assessed. The matter before the Authority, the protection of humanitarian standards, is a matter of major importance in the advancement of international norms, and full reasons were to be expected.
[51] The failure to give clear reasons in this case must amount to an error of law. The required standard was addressed in Patel v Removal Review Authority [1994] NZAR 560 (HC) at 566:
“I accept that a sound general approach, where reasons are required, is that decision-makers should set out an understanding of the relevant law or legal principles, their findings of fact, and the application of the law to the facts they have found.”
[52] The same applies to the husband’s appeal where the finding was that humanitarian concerns were outweighed by public interest factors. Logically, humanitarian concerns can not have been weighed unless they were first identified in terms of fact and law, then quantified as to whether they were exceptional. The position appears to be that although the Act suggests that a matter may be determined on a failure to satisfy the Authority on either one of the matters on which the Authority must be satisfied, in reality the Authority cannot avoid considering, and weighing, both. I presume this must be so because the public interest cannot be divorced from humanitarian matters.
Predisposition
[53] As judicial officers generally know, the colouring of facts with intermittent opinions, especially when not balanced with possible competing views, may indicate a predisposition. The safer course is a dispassionate account followed by a reasoned assessment. But allowances must be made for the circumstances of the case, or even the robustness of the examiner, and in the end the question is one of degree. In this case Mrs Patchett referred to a number of opinions that punctuate the findings of fact. I refer to examples.
[54] Mrs Patchett challenged the opinion that the wife’s mother and half-brother were here unlawfully. She objected to both the tone and the assumption. She argued that that opinion, especially with regard to the mother, was simply incorrect on the evidence. A further observation that mothers who have children in New Zealand are not automatically entitled to residence was unobjectionable in terms, but was argued to indicate a mindset that was not justified on the facts. She submitted that there was nothing from which to infer a nefarious intent in this case. An equally valid conclusion would be that the mother left Peru on account of an attack, and the birth of a son in New Zealand was coincidental. Likewise, Mrs Patchett contended, an opinion that the family unit would stay together, for the children would accompany their parents, was not balanced by reference to other facts like severance from the wider family or to an assessment of the impact on the children. Similarly, while reference was made to the projected severance from the wife’s family, severance from the larger family of the husband had not warranted comment apart from a brief mention of that fact.
[55] Particular reference was made to the opinion on the husband’s conviction for assault, described by the Authority as ‘particularly nasty’ and ‘quite vicious’, and which led to comments about an attitude to violence which should have no place in New Zealand. Upon considering the Police summary and the sentence in fact imposed, I cannot see how the Authority’s description and comments could be warranted. I think they are perverse to that extent, using that word in its refined legal meaning of an irrational inference from facts. I think that is the sense that was contemplated in Neale v Hereford in Worcester County Council (1986) 1 ICR 471 which provides a useful summary as to what constitutes a question of law.
[56] Mrs Patchett then contended that some matters of fact that should have been considered had not been. She especially mentioned evidence of the wife’s medical condition. Also, while the ‘sadness and disruption’ to the wife and daughter was mentioned, it was merely a passing observation. There was no similar thought that the maternal and paternal grandparents would be severed from their children, or perhaps more importantly, their grandchildren. Relevant to that is the observation of the Court of Appeal in Patel v Removal Review Authority [2000] NZAR 200 (CA) at 204, with reference to the high threshold envisaged by the terms ‘exceptional circumstances’ and ‘unjust or unduly harsh’ and the need for the whole picture to be viewed. The Court noted that “as part of that whole picture, the effects on others as well as the person removed may require consideration ...”. See also Nikoo v Removal Review Authority [1994] NZAR (HC) 509 at 519.
[57] With particular reference to the husband’s appeal, Mrs Patchett referred to medical evidence of ill health arising from excessive anxiety over the events, relating this time to the husband’s mother. The Authority considered that the deleterious effects of anxiety were unrelated in time to immigration events, but, Mrs Patchett submitted, the observed medical condition in fact followed on the heels of a decision declining refugee status for the patient’s daughter and grandchild. Mrs Patchett can only be right in that conclusion.
[58] Mrs Patchett submitted further that there was no express reference to the significance of facts some of which had been noted, but others of which had been omitted. For example, there was no assessment of the significance of the fact that the husband had three brothers, all of whom had lived in New Zealand for some considerable time and had families of their own. Or that the only remaining sibling was a married sister in Peru. Further, the medical evidence was criticised, which it was open to the Authority to do, but no assessment was made of such medical evidence as the Authority considered could be relied upon.
[59] Finally, there was nothing particular about the impact on the New Zealand born son.
[60] Taking a broad view, I think the whole points to a situation that could only lead the appellants to the view that their pleas to humanity had not been properly heard. That perspective could only have been allayed had the Authority gathered its conclusions and weighed them with other matters and relevant criteria but that was not done.
Procedure
[61] In addition, Mrs Patchett argued that for a proper view of the overall circumstances, the appeals of each the husband, wife and daughter, and the wife’s half-brother should have been heard as one, and a composite overview maintained even though, eventually, there would need to be separate determinations for each. The half-brother’s appeal had in fact been severed, as an administrative exercise. Later, the removal order affecting him had been cancelled. It followed, Mrs Patchett argued with prescience, that this considerably enhanced the residency prospects of both the wife’s mother and her half-brother. Had the appeals been heard together, the highly pertinent fact would then have been apparent that all of the wife’s family would be in this country, with reasonable expectations of staying, and none in Peru. She argued that by managing the process as it did, the Authority did not maintain the full overview of the circumstances that was required.
[62] For completeness I record that Mrs Patchett argued as well that while it was right to hear the appeals together, then to reach separate conclusions for each, care was needed to ensure that findings in one case did not permeate to the other where they had no relevance. She argued that findings on the husband’s possible breaches of human rights, while serving with the Peruvian Police, had coloured the perception of the wife’s separate appeal to the instincts of humanity. The two cases were intermingled in the structure of the decision. She relied on phrases in the decision that countenance the appeals as the husband’s appeal. She added that no public interest factors had been brought into account in considering the wife’s appeal, as though the public interest factors affecting the husband were so notorious as to invade the wife and daughter’s case. Having found as I have, I need not comment on this argument, though there is obviously a need to carefully apportion findings of fact when combining appeals for hearing. I am of opinion, however, that the appeal of the half-brother was wrongly severed, and that the severance prejudiced the case for the husband and wife.
[63] Putting all together, I come to the overall conclusion that the decision lacks a clear enunciation of the reasoning leading to the eventual decision, a balanced evaluation of the facts and a proper assessment of the composite effect on the scale of humanitarian concerns. No doubt the Authority had a clear assessment in mind, but its mind had to be made clear.
[64] Before referring this matter for rehearing I add a postscript. In the course of this decision I have found it necessary to make some observations on the facts. These could be taken, albeit erroneously, as reflecting a point of view on the appropriate outcome. Those matters of fact were referred to only for the reasons that I have given. It is not for this Court to indicate a view of the facts that might influence a proper determination by an expert, inquisitorial body more experienced in dealing with such matters.
[65] In now considering the terms for rehearing, the comments I have made on the severance of the half-brother’s appeal mean that the outcome of that appeal should be considered upon rehearing. It also seems appropriate that the whole matter should be looked at afresh and in light of all of the evidence as may now be available. Accordingly:
Decision
[66] The appeals of the husband and wife, and with the latter, the daughter, are allowed. The matter is remitted to the Removal Review Authority with a direction that those appeals be heard concurrently, but with separate decisions for each, and de novo, admitting for that purpose any additional evidence or information that is now available.
[67] The appellants are entitled to costs. Memoranda may be filed.
Appendix
s 63B Immigration Act 1987 (as substituted by the Immigration Amendment Act 1991)
“63B APPEAL TO REMOVAL REVIEW AUTHORITY ON HUMANITARIAN GROUNDS -
(1) Any person on whom a removal order is served on or after the date of
commencement of the Immigration Amendment Act 1991 may, within
42 days after the
date of service of the order, appeal to the Removal Review Authority for an
order -
(a) Cancelling the removal order; or
(b) Reducing the period
during which the removal order would otherwise remain in force,-
on
exceptional humanitarian grounds.
(2) The Removal Review Authority may cancel the removal order in respect of
any person, or may reduce the period during which it would
otherwise remain in
force, only if it is satisfied that-
(a) Because of exceptional circumstances
of a humanitarian nature, it would be unjust or unduly harsh for the person to
be removed
from New Zealand, or, as the case may be, for the removal order to
remain in force for the full period of 5 years following the person’s
removal from New Zealand; and
(b) It would not in all the circumstances be
contrary to the public interest to allow the person to remain in New Zealand or,
as the
case may be, to reduce the period during which the removal order would
otherwise remain in force following the person’s removal
from New
Zealand.
(3) For the purposes of subsection (2)(a) of this section, the mere fact that a person’s circumstances are such that the person would meet any applicable Government residence policy requirements for the grant of a residence permit shall not in itself constitute exceptional circumstances of a humanitarian nature.
(4) The Authority shall not consider an appeal under this section unless the
appeal -
(a) Is made in the prescribed manner; and
(b) Is accompanied by
the prescribed fee (if any); and
(c) Is brought within the 42-day period
referred to in subsection (1) of this section.
(5) The appellant shall, in the notice of appeal,-
(a) Set out all the
grounds and the full circumstances on which the appeal is based; and
(b)
Include an address in New Zealand at which any communication relating to the
appeal may be notified to the appellant.
(6) An appeal under this section may be made concurrently with an appeal under section 63A of this Act.
(7) The provisions of section 63D of this Act shall apply in relation to an appeal under this section.
(8) An appeal under this section may at any time be withdrawn by notice in writing to the Authority.
(9) The Authority shall, as soon as practicable after coming to a decision on an appeal, notify the appellant in writing of its decision and the reasons for that decision.
(10) Subject to section 115A of this Act, the decision of the Authority on an appeal under this section shall be final, and, except where a Court otherwise directs, the Authority shall have no jurisdiction to reconsider the appeal after the appellant has been notified of the decision.”
Section 115A Immigration Act 1987 (as amended by the Immigration Amendment Act 1999)
“115A Appeal against decision of Removal Review Authority on question of law
(1) Where any party to any appeal to the Removal Review Authority under this Act (being the person who appealed to the Authority or the chief executive of the Department of Labour) is dissatisfied with any determination of the Authority in the appeal proceedings as being erroneous in point of law, that party may appeal to the High Court on that question of law.
(2) Every appeal under this section shall be brought within 28 days after the date on which the decision of the Authority to which the appeal relates was notified to the party appealing, or within such further time as the High Court may allow on application made before the expiry of that 28-day period.
(3) On any such appeal the High Court is to determine the question or
questions of law and do any 1 or more of the following things:
(a) Confirm
the decision in respect of which the appeal has been brought:
(b) Remit the
matter to the Removal Review Authority with the opinion of the High Court on it,
together with any directions as to
how the matter should be dealt with:
(c)
Make such other orders in relation to the matter as it thinks fit.
(5) Subject to subsections (2) to (4) of this section, every appeal under this section shall be dealt with in accordance with rules of Court.”
International Covenant on Civil and Political Rights
“Article 23
(1) The family is the natural and fundamental group unit
of society and is entitled to protection by society and the State.
. .
.”
“Article 24
(1) Every child shall have, without any discrimination
as to race, colour, . . . national or social origin . . . the right to such
measures of protection as are required by his status as a minor, on the part of
his family, society and the State.”
United Nations Convention on the Rights of the Child 1989
“Article 9
(1) States Parties shall ensure that a child shall not be
separated from his or her parents against their will, except where competent
authorities subject to judicial review determine, in accordance with applicable
law and procedures, that such separation is necessary
for the best interest of
the child. Such determination may be necessary in a particular case such as one
involving abuse or neglect
of the child by the parents, or one where the parents
are living separately and a decision must be made as to the child’s place
of residence.
. . .
(4) Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents of the child, that State party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.”
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