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BEL AND KAO V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC WN CIV 2006 485 865 [2007] NZHC 546 (29 May 2007)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                                     CIV 2006
485 865

              UNDER                       the Immigration Act 1987

              IN THE MATTER OF            an appeal
from a decision of the Removal
                                          Review Authority pursuant to s 115A of the
            
                             Immigration Act 1987

              BETWEEN                     VANDA BEL AND PICH TEVY KAO
       
                                  Appellants

              AND                         THE CHIEF EXECUTIVE OF THE
             
                            DEPARTMENT OF LABOUR
                                          Respondent


Hearing:      24 May 2007

Counsel:      J Petris for Appellants
              W L Aldred and M L Campbell for Respondent

Judgment:     29 May 2007 at 12.15
p.m.


              RESERVED JUDGMENT OF RONALD YOUNG J



[1]    The appellants are citizens of Cambodia who have a New Zealand
born
daughter.    The last of their temporary permits entitling them to remain in
New Zealand expired on 6 May 2005.            
 They were then required to leave
New Zealand. The matter came before the Removal Review Authority who, on
22 December 2005, dismissed
their appeals.


[2]    This appeal is to be on a question of law pursuant to s 115A of the
Immigration Act.


[3]    The questions
of law identified by the appellants are:

       (1)    The Authority's decision is in violation of the relevant Articles of
   
          the International Covenant on Civil and Political Rights and the
BEL AND KAO V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF
LABOUR HC WN CIV 2006 485
865 29 May 2007

              Authority did not interpret and apply s 47in a manner consistent with

             the relevant Articles. In particular the questions of law for
              determination by the Court are:

      
       (a)     Whether the decision of the Authority amounts to an
                      arbitrary interference with the appellants'
family, contrary to
                      Articles 17(1) and 23(1) of the International Covenant of
                      Civil and
Political Rights and, in addition, a violation of
                      Article 24(1) in relation to the appellants' child due to
a
                      failure to provide her with the necessary measures of
                      protection as a minor.

    
         (b)     Whether the Authority interpreted and applied s 47 in a
                      manner consistent with the Articles
referred to in
                      paragraph (a).

       (2)    Whether the Authority took an unreasonable view of the facts,
              namely in its view that it was safe for the appellants to return to
              Cambodia.

[4]    The latter ground
of appeal (2) was abandoned at hearing.


Factual background


[5]    Mr Bel is a Cambodian citizen who was born in 1980. He is married
to
Ms Kao also a Cambodian citizen born in 1981.              They met while studying in
New Zealand and married in September 2001.
On 23 September 2001 Ms Kao gave
birth to their daughter Dalyza Pichana Bel. Given she was born in New Zealand
Dalyza Pichana Bel
acquired New Zealand citizenship by birth (Citizenship Act
1977 s 6(1)(a)). Neither of the appellants, however, have citizenship
or permanent
residence of New Zealand.


[6]    In 1999 Mr Bel was working in his uncle's green grocer's shop in Phnom
Penh. Four
unemployed soldiers came to the shop and demanded money. Mr Bel
refused saying he was only an employee. The soldiers left. However,
at the end of
the day when Mr Bel locked up the shop and took the daily takings to his uncle he
was confronted by the soldiers who
beat him and robbed him of the money. Physical
threats were made if he informed the police. Mr Bel's parents became concerned
and
decided that they should arrange for him to study in New Zealand and so in 2000
he came to New Zealand. He went initially to Naenae College.

[7]    After the birth of their child the appellants had difficulty
coping financially.
Because of that financial pressure the appellants considered returning to Cambodia
but decided not to do so because
they believed they could be in danger on return.
They were influenced also by the fact that Mr Bel's brother in law, who was a police
officer, had been killed in Cambodia in 2002. Mr Bel says there is endemic violence
and widespread extortion and threats in Cambodia.


[8]    In 2003 Ms Kao went to Cambodia to assess the situation. She thought the
country had deteriorated since her last visit and
the prospects of violence in
Cambodia remained high.


The Authority's decision


[9]    The Authority noted that these appeals were
lodged pursuant to s 47 of the
Immigration Act. It said the pivotal question was whether the appellants' situation
established "exceptional
circumstances of a humanitarian nature" such that it would
be unjust or unduly harsh to require their return. The Authority considered
the
meaning of such phrases (see Patel v Removal Review Authority & Anor  [2000]
NZAR 200, 204).       It considered New Zealand's obligations under International
Covenant on Civil and Political Rights and the Rights of
the Child and the way in
which those obligations might be considered relevant in immigration decision-
making (see Tavita v Minister
of Immigration  [1994] 2 NZLR 257). In addition, the
Authority mentioned the importance of ensuring the integrity of New Zealand's
immigration law, the need to consider
the interests of the child, the importance of the
family being allowed to remain in New Zealand and especially Article 3 of the
Covenant
on the Rights of the Child.


[10]   As to the evidence regarding the robbery of Mr Bel, the Authority concluded
that this did not
establish that the military were so corrupt that it "had descended into
wholesale stand-over tactics" nor was it suggested that the
police would take no
action and that State protection was unavailable. As to the killing of Mr Bel's
brother in law, the Authority
said there was no evidence that that was politically
motivated or that it had any direct relationship to Mr Bel's family beyond the
fact he

was his brother in law. The Authority considered that the suggestion that violence
being directed towards the family still
remained a real possibility was "so vague and
speculative as to be distinctly unhelpful." The Authority therefore concluded that
there was no evidence to justify a finding that the appellants would be subject to
violence if they return to Cambodia. The Authority
also noted that Mr Bel's parents
were reasonably well off and that the difficulties that often arose for persons
re-establishing
themselves in their home land would not be severe for the appellants.


[11]   The Authority then turned to consider the position
of the appellants' child. It
acknowledged the child's right to live in New Zealand. It observed that if the
family, however, all
decided to return to Cambodia there was no evidence that child
would not be able to enjoy a normal family life consistent with the
conditions
experienced by other families in Cambodia. Nor was there any suggestion, if the
child returned, she would suffer exceptional
deprivation "such as to jeopardise her
right to an adequate standard of living". The Authority accepted that the appellants
were
well settled in New Zealand but said they must have understood throughout,
given they had no residence permit or long-term business
visa, that their stay would
always be temporary.        The Authority therefore concluded that exceptional
circumstances did not
exist such that it would be unjust or unduly harsh for the
appellants to be removed from New Zealand.


Discussion and submissions


[12]   To return, therefore, to the grounds of appeal. It is important to keep in mind
the limited grounds available to the appellants.
Section 115A(1) provides as follows:

       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 Secretary 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.

[13]   It is for the appellants to satisfy me
that there is a question of law identified.
There is a limited discretion available to the Removal Review Authority. Section
47(3)
imposes a stern test, exceptional circumstances, and sets a high threshold
which invariably involves questions of fact and degree.
The second element that
such a removal be unjust or unduly harsh requires the whole of the circumstances to
be considered. See Patel
v Removal Review Authority & Anor  [2000] NZAR 200,
Yusuf v Chief Executive Department of Labour  [2003] NZAR 693, and Tupou v
Removal Review Authority  [2001] NZAR 696


Counsel's submissions


[14]   The appellants' submissions focused on three Articles in the International
Covenant on Civil and
Political Rights.


       (1)     Article 17(1): No one shall be subjected to arbitrary or unlawful
               interference
with his privacy, family, home or correspondence.


       (2)     Article 23(1): The family is the natural and fundamental group
unit of
               society and is entitled to protection by society and the State.


       (3)     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.


[15]   In addition, the appellants referred to the Convention on the Rights of the
Child and in particular Article
3(1) which provides:

       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.

[16]   The appellants say that the Authority inappropriately attached no great
weight to the appellants being well
settled in New Zealand. They submit that it
would be an arbitrary interference in the family contrary to Article 17 and Article


23 to remove them from New Zealand . In addition, the appellants say in terms of
Article 24 that it would constitute a failure to
provide the child with the necessary
measures of protection if removal of her parents were ordered. They say, therefore,
that the
removal of the parents and by this the child from New Zealand would be
arbitrary and inconsistent with the Articles mentioned above.
They say that given
the time the parents have been in New Zealand returning to Cambodia would be
dangerous for the father and not
in the best interests of the child.


Discussion


[17]   The overwhelming New Zealand authority supports the general proposition
that removal of a family member does not breach international obligations as such:
See Patel v Minister of Immigration  [1997] 1 NZLR 252; Schier v Removal Review
Authority  [1998] NZAR 230; Puli'ueva v Removal Review Authority  [1996]
14 FRNZ 322; Qiong & Ors v Minister of Immigration & Anor  [2007] NZAR 163;
Al-Hosan v Deportation Review Tribunal (HC AK CIV 2006-404-292 3 May 2007).
I accept, where the appellants have a child born in
New Zealand, that particular care
must be taken to carefully consider the position of the child if a removal decision is
contemplated:
See Ding & Ors v Minister of Immigration  (2006) 25 FRNZ 568.
Here, however, unless the appellants choose otherwise, a removal order would
involve the child and her parents leaving New Zealand
and no interference therefore
in the child's family life. She would continue to enjoy the advantage of living with
her parents. The
appellants are Cambodia citizens who are entitled to return to
Cambodia and can do so with their child.


[18]   There is no evidence
to support the proposition that by doing so somehow
this country would be failing to protect the appellants' family group. The appellants
have family in Cambodia but no other family in New Zealand. There is evidence
that at least the husband's family are well off. The
appellants' child is still young
and there is nothing to suggest she would not be well able to adapt to circumstances
in Cambodia
given she will have her mother and father. The Authority has already
concluded that there is no reason to suppose any particular
physical danger to the

appellants upon return to Cambodia, nor that the police force is incapable of
protecting them should that
be necessary.


[19]   As the Authority observed, there is nothing to suggest that if the child was to
accompany both parents back
to Cambodia that she could not enjoy a normal family
life in the context of Cambodia. There is no evidence that she would suffer
any
deprivation such as to jeopardise her right to an adequate standard of living. It may
well be that conditions in New Zealand
for a child growing up are favourable when
compared with Cambodia. However, this is well short of establishing exceptional
circumstances
of a humanitarian nature that would make it unjust or unduly harsh to
that child for her parents, who are unlawfully in New Zealand,
to be removed from
New Zealand. Here, as I have observed, there are reasons relating to wider family
contact and include cultural
imperatives that could favour a return to Cambodia.
This, of course, is well short of the exceptional circumstances making it unjust
or
unduly harsh for either parents or child or both to be required to leave New Zealand.
For the reasons given, therefore, this ground
of appeal will be dismissed.


[20]   The second ground of appeal alleges that the Authority failed to interpret the
Immigration
Act in a way which was consistent with New Zealand's international
obligations. See, for example, Schier v Removal Review Authority
 [1999] NZLR
703. In particular, the appellants say that the decision to remove the parents is a
violation of the relevant Articles under the International
Covenant on Civil and
Political Rights and in addition the Convention on the Rights of the Child require a
focus on the best interests
of the child in terms of Article 3. The appellants submit
that these two propositions should inform a consideration of whether or
not
exceptional circumstances have been established pursuant to s 47.


[21]   It is now well established that insofar as the wording
of legislation allows
such legislation should be read in a way consistent with New Zealand's international
obligations. Here, however,
what the appellants urge me to do is reach a conclusion
that because in its submission the best interests of the child would be served
by
living in New Zealand rather than Cambodia and that removing the appellants would
mean a breach of Articles 17 and 23 of the International
Covenant on Civil and
Political Rights, then exceptional circumstances would be established.

[22]    I reject that approach. I
have already concluded there was no breach of
Article 17 or 23. This family, as far as the parents are concerned, have lived in
New
Zealand for six years and the child for some five years. It could not be said that
to remove the parents from New Zealand was an
arbitrary interference in this family.


[23]    There has been no comprehensive evidence from the appellants about the best
interests
of the child in terms of Article 3(1) (see Ding [14]). While the parents may
prefer to stay in New Zealand and keep their child in
New Zealand there was, as I
have said, little or no attempt made to highlight the relative advantages and
disadvantages of New Zealand
and Cambodia residence. Nor, in any event, does
Article 3(1) say the interests of the child must be paramount. It is a factor to
take
into account and of course by its nature a serious factor. But even if established that
the best interests of the child was
to remain in New Zealand, this would not, by
itself, necessarily be determinative. By itself it would not necessarily establish the
s 47(3) test. These factors were all considered by the Authority.


[24]    The appellants have therefore not established that the
Authority was in error.
The Authority's decision properly considered the place of International Conventions,
to which New Zealand
is a signatory, in interpretation of New Zealand law.            It
reached a decision properly open on the facts. No error of law
has been identified.


[25]    The second substantive ground of appeal, relating to an allegation that the
Authority took an "unreasonable"
view of the facts, was abandoned.


[26]    The appeal will therefore be dismissed. The Respondent is entitled to costs
on a 2B basis.




.................................
Ronald Young J