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DV (South Africa) [2023] NZIPT 505934 (17 August 2023)

Last Updated: 15 November 2023

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND	[2023] NZIPT 505934
RŌPŪ TAKE MANENE, TAKE WHAKAMARU AOTEAROA
Appellant:	DV (South Africa)
Before:	B L Burson (Member)
Counsel for the Appellant:	A James
Date of Decision:	17 August 2023
DEPORTATION (NON-RESIDENT) DECISION

[1] This is a humanitarian appeal by the appellant, an 11-year-old citizen of South Africa. The appellant suffers from a significant intellectual disability and associated global developmental delay. Her mother acts as her responsible adult.

[2] This appeal was lodged contemporaneously with the appellant’s refugee and protected person status appeal. Having declined the refugee and protected person status appeal, the Tribunal must now consider the humanitarian appeal.

THE ISSUE

[3] This is the second time the appellant has appealed to the Tribunal against her liability for deportation. The Tribunal (differently constituted) which determined her first humanitarian appeal in 2016 accepted that, at that time, the appellant had exceptional circumstances of a humanitarian nature but that, in the circumstances as existed at that time, it was not unjust or unduly harsh for her to be deported. Her appeal was dismissed; see BK (South Africa) [2016] NZIPT 502853.

[4] It is now seven years later. The appellant’s parents and her only sibling, a younger brother, aged nine years, have been granted permanent residence in New Zealand. As will be discussed below, the appellant has exceptional circumstances of a humanitarian nature. The primary issues on appeal are:

• (a) Whether the granting of permanent residence status to the appellant’s family and wider circumstances of the family as they exist now mean that it is now unjust or unduly harsh for the appellant to be deported; and if so
  
  • (b) Whether the public interest in minimising the burden on scarce public health resources is outweighed by other public interest considerations such that it would be contrary to the public interest overall for the appellant to be deported.
    

[5] For the reasons which follow, the Tribunal answers each of the questions in the affirmative and directs that the appellant be granted a resident visa.

BACKGROUND

[6] There is a lengthy background to this appeal.

Arrival in New Zealand

[7] The background circumstances as existed as at the time of the first humanitarian appeal are set out in BK (South Africa) at [5]–[13]. In summary, the appellant’s father arrived in New Zealand in February 2015 and, in June 2015, he was granted a one-year essential skills work visa which authorised him to be employed as a sheep farm worker/shearer. The appellant, her mother and brother arrived in New Zealand on 3 September 2015. They held concurrent work and visitor visas as the partner and dependent children of a worker.

[8] The family established themselves in a rural town in the South Island where they have remained living to this time.

[9] Further temporary visas were issued to the appellant’s parents and brother in 2016. However, the appellant was declined a further temporary visa as Immigration New Zealand determined that she was not of an acceptable standard of health. In particular, the appellant’s global developmental delay, blindness and chronic medical conditions were deemed likely to impose significant costs and/or demands on the New Zealand health system. The appellant became unlawful in New Zealand in July 2016, and she duly lodged her first humanitarian appeal against her deportation liability with the Tribunal.

The First Humanitarian Appeal: BK (South Africa)

[10] By decision dated 25 October 2016, the Tribunal dismissed the appellant’s appeal. The Tribunal noted country information which established that, unlike in New Zealand where she was being schooled in a mainstream school, in South Africa, the appellant would likely have to attend a special school for children with disabilities. It noted, at [30]:

Many children with disabilities are turned away from mainstream schools (who may require parents to pay for special assistants) and are referred to special schools. They may have to wait up to four years in care centres or at home for a placement in a special school which, unlike the majority of mainstream schools, also often charge fees which some parents cannot afford. Children with disabilities enter the school system later and often drop out or finish school without successfully completing basic education due to the poor quality of education at many mainstream and special schools. An estimated half-a-million children with disabilities are not in school.

[11] It was therefore in her best interest that she be allowed to remain in the New Zealand education system. Although the Tribunal found, at [47], that the appellant’s circumstances in South Africa “may even be considerably better than many disabled children from poor families living in townships and rural areas”, it also noted that:

... the appellant is a young child with multiple disabilities who faces huge challenges. Any loss in educational opportunities will impact on her development and ultimately reduce her capacity for independent living. It is therefore accepted that the appellant’s reduced educational opportunities in her home country gives rise to exceptional humanitarian circumstances.

[12] Turning to the other limbs of the statutory test, the Tribunal noted that:

• (a) “[i]t has long been a fundamental requirement of immigration instructions that applicants for both temporary and [resident] visas be of an acceptable standard of health so as to minimise the burden and/or demands on public health and special education services that flow from migration” (at [52]); and
  
• (b) at that time, the appellant’s family were recent arrivals to New Zealand and that her parents held only temporary work visas and were without any other significant nexus to New Zealand (at [54]).
  

[13] Consequently, the Tribunal concluded, at [55], that “any harshness involved in the appellant’s deportation does not go beyond what is acceptable to maintain the integrity of New Zealand immigration system.” It was not, therefore, unjust or

unduly harsh for the appellant to be deported. It granted the appellant a three-month visitor visa to allow “her parents to plan for and better finance the family’s return to South Africa”; (at [60]).

High Court Proceedings

[14] The appellant’s parents were granted leave to appeal the Tribunal’s decision by the High Court. On 8 June 2017, the High Court issued a judgment dismissing the appeal finding that the Tribunal applied the “unjust and unduly harsh” part of the relevant statutory test correctly. A subsequent application for leave to appeal to the Court of Appeal was refused on 12 October 2017.

[15] On 3 November 2017, the appellant again became unlawfully in New Zealand. On 30 May 2018, a request for the Minister of Immigration to intervene in the appellant’s case was refused by a delegated decision maker.

The First Refugee and Protection Claim and Appeal: CT (South Africa)

[16] On 14 August 2018, the appellant lodged her first claim for refugee and protected person status. By decision dated 20 June 2019, the Refugee Status Branch (now called the Refugee Status Unit) declined to recognise the appellant as a refugee or protected person. Her appeal against that decision was dismissed by the Tribunal (differently constituted) in June 2020; see CT (South Africa) [2020] NZIPT 801643. In assessing her claim, the Tribunal considered extensive country information, particularly as to the appellant’s ability to access quality education in South Africa, which it described as “[t]he main focus of this appeal”; see [75]. This country information was considered against relevant international human rights law.

[17] The Tribunal noted that the education system for children with disabilities in South Africa was still developing compared to that in New Zealand. Nevertheless, the evidence did not establish that receiving such education as was available in South Africa would have such impact on the appellant’s long-term functioning or ability to live a dignified life such that it could be characterised as serious harm to amount to “being persecuted” under the Refugee Convention. Nor was she at risk of any other harm entitling her to recognition as a refugee or as a protected person under the Immigration Act 2009 (the Act).

Grant of Residence to the Appellant’s Family

[18] On 10 January 2018, the appellant’s father applied for residence under the Skilled Migrant category of instructions relying on the father’s employment. According to Immigration New Zealand’s electronic records, it appears that the appellant was left of this application. Instead, the appellant’s parents sought a special direction from the Minister who, by decision dated 30 May 2018, declined to intervene. Pending the determination of the residence application of her family in December 2019, the appellant applied for a further student visa as the dependent of a worker as her then current student visa was due to expire in January 2020. She was granted an interim visa until September 2020.

[19] In December 2020, Immigration New Zealand granted residence to each the appellant’s family members. At the time that her family were granted residence, the appellant was unlawful in New Zealand. This was because, in September 2020, Immigration New Zealand determined that the appellant was ineligible for a medical waiver and her interim visa expired September 2020. In January 2022, she was granted a student visa as the dependent of a New Zealand resident and in January 2023, was granted a further student visa which expires in January 2024.

[20] In February 2023, the appellant’s parents and brother were granted with permanent resident visas.

The Second Refugee and Protection Claim and Appeal: DT (South Africa)

[21] In October 2021, the appellant lodged her second claim for refugee status. Her mother again acted as her responsible adult. After interviewing the appellant’s mother, by decision dated 24 November 2022, the Refugee Status Unit found that the second claim did not meet the jurisdictional requirements of the Act to permit it to consider the substance of the claim. This decision was also appealed to the Tribunal. By decision dated 16 August 2023 and issued simultaneously with this decision, the Tribunal has dismissed the second refugee and protection person appeal.

[22] After noting the submissions from counsel and noting the need to avoid a narrow technical approach in a case concerning a vulnerable minor, in April 2023, the Tribunal confirmed that it accepted that the jurisdictional requirements of the Act were satisfied. With counsel’s consent, the Tribunal exercised its discretion to

determine the appeal on the papers. In dismissing the second appeal, the Tribunal noted in particular:

(a) The evidence of the appellant’s mother that, if required, she would return to South Africa to care for the appellant, but the appellant’s father and brother would remain in New Zealand. However, noting the focus of the refugee and protected person inquiry was on breaches of the appellant’s human rights in South Africa, the disarticulation of the family unit resulting from the decision taken by the appellant’s parents on their gaining permanent residence in New Zealand did not amount to a breach of her human rights by the South African government. This element of the claim thus fell outside the scope of the Refugee Convention and the protected person jurisdiction; see [47].

(b) As for the appellant’s rights relating to education and health, while accepting that there were concerns about the availability and adequacy of education for persons with disabilities in South Africa, it could not be said that the South African government was failing to discharge its obligation under international human rights law such as was necessary for the appellant to be recognised as a refugee; see [48]–[50]. Similarly, in relation to the appellant’s health, the Tribunal found that there was a functioning healthcare system which the appellant had accessed in the past, and would be able to do so in the future; see [51]–[54].

STATUTORY GROUNDS

[23] The grounds for determining a humanitarian appeal are set out in section 207 of the Act:

• (1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—
  
  • (a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
    
  • (b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.

[24] The Supreme Court stated that three ingredients had to be established in the first limb of section 47(3) of the former Immigration Act 1987, the almost identical predecessor to section 207(1): (i) exceptional circumstances;

(ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand; Ye v Minister of Immigration [2009] NZSC 76; [2010] 1 NZLR 104.

THE APPELLANT’S CASE

[25] The appellant’s case is set out in the appeal form and submissions lodged with the Tribunal on 6 April 2023 and in the mother’s statement dated 26 April 2022. It can be summarised as follows:

• (a) Deportation of the appellant will result in her separation from her father and brother. The appellant’s predicament in South Africa is thus framed by “a divided family unit and the appellant being denied a loving father and brother, affecting her emotional wellbeing.”
  
• (b) The appellant has been living in New Zealand now for most of her life. She and the family are settled here, and they have strong nexus to New Zealand through their community.
  
• (c) The failure by Immigration New Zealand to grant the appellant a residence visa is discriminatory and this is contrary to New Zealand’s international obligations under the 1989 Convention on the Rights of the Child (the CRC), Articles 7 and 24 of the 2006 Convention on the Rights of Persons with Disabilities (the CRPD) and the 1966 International Covenant on Economic, Social and Cultural Rights (the ICESCR).
  
• (d) While the appellant will have access to special education in South Africa, it is not directed towards inclusive education as it is in New Zealand and this will have an impact upon the appellant’s development.
  

[26] In support of the present appeal, the appellant relies on the same bundle of documents relied on in respect of her second refugee and protected person status appeal, namely:

• (a) The statement dated 26 April 2023 from the appellant’s mother who confirms the grant of permanent resident status to all the family apart from the appellant. The appellant’s mother confirms that she would accompany the appellant to South Africa while the appellant’s father and brother would remain here in New Zealand. She states that the appellant now attends the same school as her brother on full-time basis and receives 15 hours per week teacher aid support. The appellant is thriving in her school environment. The mother reports improvement of the appellant’s condition in that “she no longer has the major seizures that were a regular part of her life, and epilepsy is in remission.” She is seen by a paediatrician on a six-monthly basis.
  
  • (b) The April 2022 report of Dr Kate Gibson, the appellant’s clinical geneticist regarding a diagnosis in April 2022 of the appellant having megalencephaly-polymicrogyria-polydactyly-hydrocephalus syndrome 1 (MPPH1). According to a letter (12 April 2022) from Dr Kate Gibson, MPPH1:

... is a disorder that causes megalencephaly or overgrowth of areas of the brain with polymicrogyria or abnormal folding of the brain which is usually bilateral. Head circumference can be increased. Hydrocephalus is increased fluid around the brain and polydactyly is the addition of extra fingers or toes. As a consequence of these structural brain changes, epilepsy and learning difficulties along with a hypotonia and particular oromotor dysfunction are reported. There is a huge variability among individual with this condition, and we would expect [the appellant to] be less severely affected than the reports in the literature given her mosaicism.

The Tribunal notes that, in that letter, Dr Gibson had earlier explained that the reference to the appellant’s ‘mosaicism” indicates that the relevant gene change had only been found in small proportion of the appellant’s cells.

(c) Outpatient clinic reports (14 December 2022 and 12 July 2023) prepared by the appellant’s paediatrician. In the December 2022 report, he reports that the appellant has had “almost complete seizure control” since she started a particular medication in July 2021, which remains “well tolerated” such that the appellant was now on a relatively low dose. He notes that the appellant continues to develop well at school and is remembering names and activities she has undertaken and can form two-to-four-word sentences with improved clarity. Nevertheless, her function varies day-to-day, and

on some days, she has trouble with balance and coordination as well problems with attention and speech. The paediatrician reports that the appellant’s gait his improving and her weight had stabilised. Overall, however, the paediatrician concludes:

At age 10, it is clear the [the appellant] has a significant intellectual disability. Her learning remains at a preschool level and she requires significant support with her activities of daily living.

In the July 2023 report, he confirms that the appellant’s seizures remain under control and her motor functions were unchanged apart from slight improvement with her right food. The report notes steps being taken to help her parents manage the appellant’s transition into puberty.

(d) A functional vision report (1 December 2022) and vision reports (24 February 2023 and 23 May 2023) from Blind and Low Vision Education Network New Zealand. The former report notes that, while there is uncertainty as to whether the appellant is able to see colour, she seemed to prefer bright coloured shapes over patterned ones. She was particularly visually engaged with objects that provided movement. The appellant showed a preference to look out of her left eye, displaying an obvious head tilt. She does not have binocular vison so would likely have difficulty with activities which require her to use depth perception such as walking up or down stairs. The February 2023 vision report makes a number of recommendations to her teachers on how to support her vison in the classroom such as using pictures as providing visual clues for the appellant and giving her “visual breaks” during the day by giving her tasks or resources such as audiobooks where she does not have to rely so much on her vison. The May 2023 report is in the nature of an addendum to the February report and contains observations of the speech language therapist assisting the appellant who praises the appellant’s learning environment and states that the appellant “has great relationships with learning assistants, peers and others” and is “doing really well in getting her message across.”

(e) A copy of the appellant’s 2022 end-of-year school report, prepared by her two teachers and three teacher aids. They report that the appellant “eagerly” participates well in class, interacting with her peers with whom she has developed close friendships. Also, the

appellant thrives on practical hands-on learning and can follow instructions. Her oral language was developing, and she is beginning to use longer sentences to communicate. The appellant often demonstrates an understanding “well above her oral communication level” and showed a keen interest in letters and numbers while her peers are also learning the same.

(f) A copy of the appellant’s individual education plan (1 May 2023) which sets out her present skills, short term goals and strategies in relation to a range of target areas including communication, social skills and physical activities. Describing ‘what is going well at home’, the plan states that the appellants language has “exploded”, in that she is constantly learning new words and putting them into context. Describing ‘what is going well at school’, the plan describes the appellant as being “a fully integrated member of our class” with “lots of friends”. It also noted that she still faces balance and coordination challenges when fatigued. The plan sets out the steps to be taken in anticipation of the appellant transitioning to the local secondary school the following academic year (Year 7).

(g) Photos of the appellant taking part in school lessons and sporting activities.

(h) A copy of decision of the Supreme Court in Ellis v R [2022] NZSC 114 and the accompanying statement of Tikanga principles.

[27] At the Tribunal’s request, counsel has sought details of estimated costs of public health and special education services. In a memorandum dated 24 July 2023, counsel advised that according to costs of special education set by the Ministry of Education, the estimated cost for her education to date was approximately $50,000 and would be approximately $74,000 as at the time she reached 18 years of age. Beyond that it was difficult to estimate but, if she were to continue her education from 18 to 21 years of age, this would cost an additional

$31,800.

[28] As for the public health costs, her counsel, Mr James, notes that the appellant saw the consultant paediatrician for review purposes and not surgery. In the report of 12 July 2023, the appellant’s paediatrician confirms that it is highly likely that the appellant would require supervised living as an adult. This will be an additional public cost.

ASSESSMENT

[29] The Tribunal has considered the submissions and documents provided by the appellant. It has also considered her refugee and protected person status appeal file and the decisions in her earlier appeals.

Whether there are Exceptional Circumstances of a Humanitarian Nature

[30] Exceptional circumstances of a humanitarian nature “must be well outside the normal run of circumstances” and, while they do not need to be unique or very rare, they do have to be “truly an exception rather than the rule”: Ye v Minister of Immigration, at [34].

The appellant’s state of health

[31] The appellant suffers from a significant intellectual disability. Although now

11 years of age, her learning remains at a preschool level, and she requires significant support with her activities of daily living.

[32] Her functioning varies day-to-day and some days she has trouble with balance and coordination as well as problems with attention and speech. She does not have binocular vison and will likely have difficulty with activities which require her to use depth perception such as walking up or down stairs. Nevertheless, the medical and other support she has received in New Zealand has resulted in some improvements. Since 2021, with the help of medication, she has “almost complete seizure control”. Her oral language skills have also developed, and she is now beginning to use longer sentences to communicate. According to her teachers, the appellant often demonstrates an understanding “well above her oral communication level”.

[33] As against this, in April 2022 she was diagnosed with megalencephaly- polymicrogyria-polydactyly-hydrocephalus syndrome 1 (MPPH1). This is an overgrowth of areas or abnormal folding of the brain. As this is not present in all of her cells, it is anticipated she will be less severely affected by the epilepsy, learning difficulties and motor dysfunction associated with this condition.
[34] As at that time, the appellant remained under the care of a consultant paediatrician. She continued to receive ongoing resourcing scheme (ORS) funding for at least 15 hours of teacher aid per week and her school receives specialist inputs from Blind and Low Vision Education Network New Zealand. In

his December 2022 report, the appellant’s consultant paediatrician refers to her also receiving ongoing physiotherapy. The Tribunal observes that, even if not as severely affected as she might be by MPPH1, this diagnosis is likely to increase the range and/or amount of specialist care the appellant may need in New Zealand throughout her schooling.

[35] Looking to the long term, she will need support beyond her school years. In his December 2022 report, the appellant’s consultant paediatrician states that, while it is not important that a clinical psychologist is engaged at this time to confirm her disability, such a diagnosis is important for the appellant “to receive disability support services when she leaves school”.

[36] Because of her conditions, Immigration New Zealand has found that the appellant was not eligible for a medical waiver to be granted residence in line with the rest of her family.

Circumstances in South Africa

[37] While there are no practical impediments to the appellant and her family returning to live as a family unit in South Africa, her mother’s statement of 26 April 2022 makes clear that her parents have decided that only the mother will accompany the appellant to South Africa if she were to be deported. This decision is based on the fact that the appellant’s father’s employment prospects, and thus his ability to provide for the family, are better in New Zealand. They also consider it in the best interests of her younger brother that he remains in New Zealand where he has started schooling and has greater life opportunities.

Extent of settlement in New Zealand

[38] The appellant has been living in New Zealand since she arrived in September 2015 with her mother and brother when aged three years and four months. Her father had arrived approximately seven months earlier, and was later granted an essential skills work visa. Her family were granted further temporary visas until December 2020 when they were issued with resident visas. The appellant herself remained mostly lawfully in New Zealand until September 2020 when her then current temporary visa expired. At risk of deportation, the second refugee and protected person status claim was filed on her behalf. In January 2022, the appellant was issued with a further student visa and remains the holder of a current student visa, granted in January 2023, which is valid until January 2024.

[39] She and her family have lived in the same rural community in the South Island since they arrived in New Zealand, now approaching some eight years later. In this time, her parents and brother have transitioned from being temporary migrants to permanent residents. While, unlike them, the appellant has had brief periods of being unlawful in New Zealand, she has nevertheless lived mostly lawfully and spent most of her life in New Zealand in this one community.

[40] She has commenced her primary schooling there, as has her brother. It is clear from the various school reports that the appellant is settled into her school and made friends with her classmates. From the perspective of the appellant as a child, this is a strong nexus to New Zealand in its own right.

[41] The grant of permanent resident status to her family also means she has a nexus to New Zealand via them. Although they were only granted resident status in December 2020, it is clear from newspaper articles contained on the appellant’s refugee and protected person status appeal file that the family are well-integrated into their local community. Both are in employment and her mother has volunteered doing secretarial work for a local organisation. There is much community support for the family and their circumstances. As far back as 2017, letters have been written to the editor of the local newspaper expressing dismay in the community as to the appellant’s potential deportation. A Change.org petition with over 2,000 signatures was sent to Immigration New Zealand, requesting the appellant be allowed to remain living here.

Best interests of the children of the family

— The appellant

[42] The best interest of the appellant is to be weighed as a primary consideration for the Tribunal; see Article 3(1) of the CRC. The High Court has stated that the best interests of the child are neither paramount nor the primary consideration, but they are to be given important and genuine assessment: see O’Brien v Immigration and Protection Tribunal [2012] NZHC 2599 at [32].
[43] In BK (South Africa) at [30]–[34], the Tribunal noted country information concerning the appellant’s conditions to access education for children with disabilities. Due to failures to implement policy recommendations, many children with disabilities are turned away from mainstream schools (who may require parents to pay for special assistants) and are referred to special schools. It noted, at [30]:

... Many children with disabilities are turned away from mainstream schools (who may require parents to pay for special assistants) and are referred to special schools. They may have to wait up to four years in care centres or at home for a placement in a special school which, unlike the majority of mainstream schools, also often charge fees which some parents cannot afford. Children with disabilities enter the school system later and often drop out or finish school without successfully completing basic education due to the poor quality of education at many mainstream and special schools. An estimated half-a-million children with disabilities are not in school.

[44] These findings were adopted in the appellant’s first refugee and protected person status appeal, CT (South Africa) at [106]–[115] and also in the second such appeal, DT (South Africa) at [54]–[56]. In the latter, the Tribunal observed that, in recent years, much of government attention in South Africa will have been necessarily focused on dealing with the economic and social impacts of the COVID-19 pandemic, leaving little time and/or capacity to deal with the problems relating to improving access to and quality of special needs educational facilities. In BK (South Africa) at [34], the Tribunal noted that the education the appellant could expect to receive in South Africa would most likely be at a special school, the fees for which would impose a significant financial burden on the family. This is still likely to be true, although the capacity of the father to earn a higher income in New Zealand to help pay for these costs will place the family in a relatively better position than they were prior to their departure for New Zealand.

[45] Thus, although the family could return to South Africa, the quality of education that the appellant would receive in South Africa would likely be less than what is and will be available to her in New Zealand where she is and will continue to be educated in mainstream public schools. She will receive a significant level of support throughout her education at no cost to her parents.

[46] As regards to the appellant’s best interest, the Tribunal agrees with the assessment in BK (South Africa) at [35] that:

... given the deficiencies in the provision of education for the disabled in South Africa, the appellant’s developmental progress, acquisition of life skills and life chances generally, will be far better assured if she is able to remain in the New Zealand education system.

[47] To this must be added the fact that her parents and brother have now been granted permanent resident status here. The appellant’s developmental progress is in no small part enabled by the support provided by her loving and caring parents. Her development and emotional wellbeing are best served by continuing to live within this family unit as a whole, as it exists in New Zealand.

[48] There can, on the Tribunal’s view, be little doubt in the appellant’s best interests that she is able to remain with her family in New Zealand on a permanent basis. Not only will she continue to enjoy the love and support of all of her family, but she will also be able to maintain her established therapeutic relationships which will be permanently disrupted if she were to be deported and which she will face considerable difficulty re-establishing in South Africa.

— The appellant’s brother

[49] The Tribunal needs to also weigh the best interests of the appellant’s nine-year-old brother. He arrived in New Zealand at two years and nine months of age. Although no information has been provided about him for the purposes of this appeal, he has lived in New Zealand most of his life and is likely to have little, if any, recollection of life in South Africa. He has begun his schooling here and, like his sister, will have made friends and settled into the life of the community where the family have lived since they arrived.

[50] His parents are of the view that it is in his best interests that he remains living in New Zealand where he is now a permanent resident. The Tribunal agrees. It is in his best interest that he remains living here on a permanent basis as part of a stable family unit which includes his sister, the appellant. It is to be reasonably anticipated that his sister’s deportation will cause him emotional distress. Arguably more significantly, given his mother’s indication that she would feel compelled to accompany the appellant back to South Africa, the appellant’s brother would be separated from her also and deprived of her day-to-day support and guidance of his mother as he matures. This can be expected to cause the brother significant emotional distress and impact upon his emotional development. These adverse effects arise as the result of events over which he has had no control.

[51] For this reason, the Tribunal is satisfied that it is also in the appellant’s brother best interests that the appellant remains living permanently in New Zealand.

Impact of return on New Zealand-resident mother

[52] The appellant’s deportation will result in the mother returning with her to live in South Africa. The appellant’s various conditions the relative lack of in-school support available in South Africa, and the absence of her husband, means that the mother would likely have to play a more active role in supporting her development.

While the appellant’s mother is committed to doing what she can to try and secure a dignified and fulfilling life for the appellant as best as she can, shouldering this day-to-day responsibility without the in-person support of her husband can be expected to take an emotional toll on her. To this can be added the emotional toll of simply being separated from her husband and young son for extended periods of time.

Tikanga and the appellant

[53] At the centre of this appeal is an 11-year-old child who, while facing substantial life challenges arising from her significant intellectual disabilities, has been making real progress in meeting these challenges. Mr James invites the Tribunal to consider the appellant’s situation through the prism of tikanga, noting the Supreme Court’s consideration of them in respect of Mr Ellis — a non-Māori; see Ellis v R [2022] NZSC 114. The Tribunal declines to rest its assessment of the statutory test through the lens of tikanga in this case as the context and circumstances do not require it; see Ellis at [117]–[118]. That said, noting the clear statement by the tikanga experts engaged by the Supreme Court, the Tribunal acknowledges that (a) tikanga can apply to non-Māori, and (b) that mana is one of the principles, concepts and values of tikanga of which “everyone has a form”, and it accepts that the appellant possesses such mana by reason of her human person.

Conclusion on exceptional humanitarian circumstances

[54] Counsel is critical of Immigration New Zealand’s decision not to grant the appellant a medical waiver, arguing that is discriminatory and contrary to New Zealand’s obligations under a range of treaties. These submissions are noted, but the appellant has not met the requirements to be recognised as a refugee or protected person and it is settled that the Tribunal does not have jurisdiction on a humanitarian appeal against deportation liability to review, consider the merits of, or overturn visa decisions by Immigration New Zealand. This latter point was affirmed by the High Court in Li v Chief Executive of the Ministry of Business, Innovation and Employment [2017] NZHC 2977, [2018] NZAR 265 at [13] and [19]. The gaze of this appeal is only on the consequences or effects of deportation and whether these are exceptional circumstances of a humanitarian nature.

[55] As to these, the Tribunal notes that the appellant and her family are now well-settled in New Zealand. The decision of the appellant’s family is that only the mother would return to South Africa with the appellant, leading to the upset of the appellant’s now very-established routine and (at least, temporary) separation of the appellant from her father and brother.

[56] What is clear is that, in making significant progress here, the appellant has not simply relied on support services provided by New Zealand (although this undoubtedly has been a significant factor), but also benefitted from the devotion of her parents who are now permanent residents of New Zealand. The family are firmly established as part of their local community. The appellant has lived here for nearly eight years and has established herself in her school community where she has made friends. The loss of this community and friend network can be reasonably expected to cause her a significant level of emotional harm. Moreover, any reduction in the level of educational opportunities she now enjoys can be expected to sufficiently impact on her development and her quality of life: particularly, to a substantial level, in the immediate unravelling of her personal routines and, in the longer term, in the likely separation from her father and brother.

[57] Weighing these matters, the Tribunal is satisfied that she has exceptional circumstances of a humanitarian nature.

Whether it would be Unjust or Unduly Harsh for the Appellant to be Deported

[58] To determine whether it would be unjust or unduly harsh for an appellant to be deported from New Zealand, the Supreme Court stated, in Ye v Minister of Immigration, that an appellant must show a level of harshness more than a “generic concern” and “beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system” (at [35]).

[59] Apart from the period from September 2020 to January 2022, the appellant has been lawfully in New Zealand since she arrived in September 2015. The appellant has a current student visa, valid until 17 January 2024. The Tribunal is considering her humanitarian appeal against her future deportation liability now because under the Act, her having filed a refugee and protected person status claim, the Tribunal is obliged to undertake this mandatory sequence of assessment; see AU (Afghanistan) [2017] NZIPT 502815 at [54]–[55].

[60] Yet, in real terms, the Tribunal is considering the appellant’s humanitarian appeal because the appellant is ineligible to be granted a medical waiver in order that she might also be granted a resident visa alongside those which were granted to her family. As observed by the Tribunal when first assessing the appellant’s first appeal against her deportation liability, “[i]t has long been a fundamental requirement of immigration instructions that applicants for both temporary and [resident] visas be of an acceptable standard of health so as to minimise the burden and/or demands on public health and special education services that flow from migration”; see BK (South Africa) at [52].

[61] Under health instructions, applicants for residence must have an acceptable standard of health unless they have been granted a medical waiver. Instructions A4.10.b (effective 15 December 2017) states that applicants are considered to have an acceptable standard of health if they are assessed as being, among other things, unlikely to impose significant costs or demands on New Zealand’s health services or special education services. As at the time the medical waiver was sought, “significant costs” were defined as costs in excess of $41,000 (see A4.10.2, effective 15 December 2017). More recently, these have increased to

$81,000 (see A4.10.2, effective 4 September 2022).

[62] It remains the case that the appellant has continued to place demands on the special education services for the disabled. Given her recent diagnosis of MPPH1 and noting the observations of her consultant paediatrician in his December 2022 report, she can be expected to place costs and demands on services for the disabled beyond her schooling and into the foreseeable future.

[63] That a grant of residence to the appellant would impose these costs on the public purse is, therefore, something which must necessarily be given appropriate weight.

[64] As against this, the Tribunal agrees with counsel for the appellant, Mr James, that the grant of permanent residence to her family is also a weighty factor in this context. Whereas at the time of the Tribunal’s first assessment of this element of the statutory test of whether it would be unjust or unduly harsh to deport her, her family were themselves the holders of temporary visas with no expectation that they would be able to remain permanently in New Zealand, the position is now fundamentally different. As permanent residents, they can remain here for the rest of their lives should they choose to do so.

[65] Yet, it must have been contemplated by her parents at the time they made the decision to migrate to New Zealand, and at the time they made an application for residence, that the appellant’s significant health concerns might be a factor which would weigh against her being allowed by Immigration New Zealand to remain here on a permanent basis and thus a difficult decision on family separation may need to be made. Having elected not to include the appellant in the application for residence, it is unlikely that the appellant will ever have an acceptable standard of health for the purposes of immigration instructions and be entitled to a medical waiver on the basis she now is the dependent child of a residence class visa holder (see R5.96, effective 30 July 2012). That this situation has now come to pass cannot therefore be something which has come as a bolt- out-of-the-blue.

[66] The very fact that immigration instructions make clear that applicants for residence need to have an acceptable standard of health mitigates against the separation of the family precisely because she has been found not to have an acceptable standard of health being of itself an exceptional humanitarian circumstance. This is also something to weigh.

[67] That the appellant is now effectively settled in New Zealand and making significant developmental progress is, in part, a reflection of the multiple visa applications made by her parents to allow the family as a whole to remain living lawfully in New Zealand. Nevertheless, the Tribunal accepts that the family migrated in good faith for the appellant’s father’s work. While it was known that she had a medical condition, she has, until now, held only a temporary visa. Her parents have exercised legal pathways available to them including to appeal to the Tribunal.

[68] Moreover, the appellant has not played any part in these decisions nor the other circumstances in which her future life and life experiences are to be determined. Unlike the situation pertaining when the Tribunal considered her first humanitarian appeal in October 2016, the fact is that she has, by now, lived here most of her life. From the school reports and photographs filed in support of the refugee and protected person status appeal, the appellant has become part of the fabric of her school. The Tribunal is also cognisant that the Minister of Immigration has declined to intervene. However, that decision was over five years ago now and the appellant’s circumstances are different. Noting the exceptional humanitarian circumstances and the real and significant progress that she has made since being in New Zealand, the degree of settlement of herself and her

family, and her need for the support of all of the family members, after careful reflection as to the level of harshness required to be established under this limb of the test, the Tribunal is satisfied that it would now be unjust or unduly harsh for the appellant to be deported from New Zealand.

Conclusion on injustice or undue harshness

[69] For the foregoing reasons, assessed cumulatively, the Tribunal finds that deportation of the appellant would be unjust or unduly harsh.

Public Interest

[70] Where the Tribunal has determined that there are exceptional humanitarian circumstances which would make it unjust or unduly harsh for the appellant to be deported, it must also be satisfied that it would not be contrary to the public interest to allow the appellant to remain in New Zealand. This involves the weighing of those factors which would make it in the public interest for the appellant to remain against those which make it in the public interest that the appellant leaves: Garate v Chief Executive of the Department of Labour (HC Auckland, CIV-2004-485-102, 30 November 2004), at [41].

[71] There is a clear public interest in minimising the burden on scarce public resources for the education and overall care of persons with disabilities. Given this has been a feature of New Zealand immigration policy settings for some time, this policy element of the public interest must necessarily be recognised and weighted, in the appellant’s case, negatively.

[72] Mr James submits that granting the appellant residence is in the public interest because it is an outcome “consistent with Government directions as to the eligibility for public funded education and health services, as well as with statutory requirements.” He argues that under direction B16 of the Health and Disability Services Eligibility Direction 2011, the appellant continues to be eligible to receive funded services and is entitled to be regarded as a domestic student under the Education (Domestic Students) Notice 2023. As such, she is entitled to free education from her fifth birthday, until she reaches 19 years of age under section 33 of the Educational and Training Act 2020. Mr James draws attention to section 34 of that Act which confers on the domestic students the right to enrol, attend and receive education at State schools as this ensures New Zealand’s compliance with its obligations under the 2006 Convention of the Rights of Persons with Disabilities. These submissions are noted, but the Tribunal has

doubts as to whether the appellant’s eligibility to receive such publicly funded support is of itself a public interest factor to be weighted.

[73] What unquestionably is in the public interest is that New Zealand’s compliance with its international law obligations for the reason memorably espoused by Cooke P in Tavita v Minister for Immigration [1994] 2 NZLR 257, at p266, in terms of avoiding complaints that “New Zealand’s adherence to the international instruments has been at least partly window-dressing.”

[74] The best interests of the appellant are a primary consideration. New Zealand is a signatory to the CRC, and Article 23(1) specifically provides:

States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.

[75] New Zealand’s positive obligations towards the appellant derive from Article 2(1), which makes clear that, consistent with international human rights law more generally, it is the fact of the appellant being within New Zealand’s jurisdiction which gives rise to the obligation to respect, protect and fulfil this (and her other) right:

States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

[76] While there is a public interest in ensuring New Zealand complies with this obligation, it does not mean that there can never be any circumstances in which a non-citizen child with disabilities can be deported from New Zealand. The best interests of a disabled child remain a primary consideration, not the paramount one. It does require, however, that the best interests of a disabled child in remaining here are specifically identified in the context of their life and family experiences, and appropriately weighed when the statutory test in a humanitarian appeal against a deportation liability is applied, including in relation to the public interest.

[77] This particular appellant has been living in New Zealand for eight of her 11 years being cared for by both parents and with her brother. It seems she has become part of the social fabric of the local community in the town where she and her family have resided since arriving in New Zealand. She has developed clearly beneficial therapeutic relationships. Having considered the appellant’s personal, health, family and overall living circumstances, the Tribunal has found that it is in her best interests to reside in New Zealand.

[78] Finally, the clear public interest in maintaining the integrity of the appellant’s family unit in New Zealand is consistent with New Zealand obligations under Article 23 of the 1966 International Covenant on Civil and Political Rights and in circumstances where the appellant’s parents and only sibling have been granted residence and have the right to remain in New Zealand indefinitely.

Conclusion on public interest

[79] The appellant’s continued presence in New Zealand will pose a financial burden on the New Zealand taxpayer. However, the appellant’s family have been given permanent resident status in New Zealand. The Tribunal is satisfied that, given her settlement and progress to date, the best interests of the appellant and the best interests of her younger brother outweigh the amount of costs that arise in her case if she be granted residence. In addition, her being allowed to remain here on a permanent basis with her family members who have been granted permanent resident status, is the outcome most consistent with New Zealand’s obligations under international law across a range of important areas including not just in relation to children, but also in relation to families and to persons with disabilities in the appellant’s position.

[80] For the foregoing reasons, assessed cumulatively, the Tribunal is satisfied that it would not, in all the circumstances, be contrary to the public interest to allow the appellant to remain in New Zealand.

DETERMINATION

[81] For the reasons given, the Tribunal finds that there are exceptional circumstances of a humanitarian nature which would make it unjust or unduly harsh for the appellant to be deported from New Zealand.

[82] The Tribunal also finds that it would not in all the circumstances be contrary to the public interest for the appellant to remain in New Zealand on a permanent basis.

Order for Grant of a Visa

[83] Pursuant to section 210(1)(a) of the Act, the Tribunal orders that the appellant be granted a resident visa.

[84] The appeal is allowed.

Order as to Depersonalised Research Copy

[85] Pursuant to clause 19 of Schedule 2 of the Immigration Act 2009, the Tribunal orders that, until further order, the research copy of this decision is to be depersonalised by removal of the appellant’s name and any particulars likely to lead to the identification of the appellant. This is because this appeal is linked to the appellant’s refugee and protected person status appeal to which the confidentiality provisions of section 151 of the Act attach.

“B L Burson” B L Burson Member

Certified to be the Research Copy released for publication.

B L Burson Member