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LL; Removal Appeal No: 43534 [2001] NZRRA 7 (3 December 2001)

Last Updated: 6 May 2011

Appeal No AAS43535

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DECISION OF THE REMOVAL REVIEW AUTHORITY

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[1] [LL] (hereinafter referred to as the appellant) is a citizen of Tonga who was born on [X] April 1970 and who has appealed to this Authority against the requirement to leave New Zealand.

Background

[2] The appellant arrived in New Zealand on 19 February 1996 and later departed this country on 17 May that year.

[3] She subsequently returned to New Zealand on 5 September 1996 and was granted a 12-week visitor's permit valid until 28 November 1996.

[4] On 29 September 2000 an appeal was received by this Authority against the requirement to leave New Zealand based on humanitarian grounds.

[5] On her appeal form the appellant declared that she has never married. On a supplementary form provided to this Authority on 23 February 2001 she declared that she had adopted a daughter, a New Zealand citizen, who was born on [X] June 1999.

[6] She declared that her parents are deceased but had previously lived in Tonga. She has a sister who was granted a work permit on 20 September 2001 valid to 13 March 2004. She has a brother who is a permanent resident of New Zealand while another brother continues to reside in Tonga.

[7] Enquiries by the New Zealand Police confirm that as at 21 June 2001 the appellant had no convictions.

Relevant Legislation

[8] This is an appeal brought pursuant to the provisions of section 70 and section 47 of the Immigration Act 1987 which provide as follows:

“70. Persons unlawfully in New Zealand as at 1 October 1999—

(1) This section applies to any person who is in New Zealand unlawfully immediately before 1 October 1999 and in respect of whom a removal order is not in force at that time.

(2) This section ceases to apply to a person once the person leaves New Zealand.

(3) The provisions of this Part (as substituted by section 34 of the Immigration Amendment Act 1999) apply to a person to whom this section applies subject to the following modifications:

(a) The person may appeal to the Removal Review Authority under section 47 at any time before 1 October 2000, despite having been in New Zealand unlawfully for more than 42 days, unless earlier required to appeal by virtue of a notice served under paragraph (b); and the provisions of this Part then apply accordingly with any necessary modifications:

(b) If before 19 August 2000 an immigration officer serves a notice in the prescribed form on the person that the person is obliged to leave New Zealand or appeal to the Removal Review Authority under section 47 within 42 days, then—

(i) The person may appeal under section 47 within 42 days of being served with the notice, despite having been unlawfully in New Zealand for more than 42 days; and

(ii) If the person fails to appeal within 42 days after being served with the notice (or if any appeal made is unsuccessful, and section 53(1)(b) applies), the person may be the subject of a removal order, and is liable to be removed from New Zealand under this Part, at the end of that period:—

and the provisions of this Part apply accordingly with any necessary modifications:

(c) At any time on or after 1 October 2000, the person may be the subject of a removal order, and is liable to be removed from New Zealand under this Part, unless—

(i) The person has at the time an appeal pending under section 47 (including any appeal to the High Court or Court of Appeal in respect of such an appeal); or

(ii) The person is at the time no longer unlawfully in New Zealand.

(4) The chief executive of the Department of Labour must communicate the obligation on persons to whom this section applies to leave New Zealand, and the implications for persons who do not meet the obligation, in such a way that a reasonable opportunity is created for all persons to whom this section applies to know about the obligation and its implications.

(5) Any notice given under subsection (3)(b) must inform the person of the implications of not leaving New Zealand or not appealing under section 47 within 42 days.”

[9] The relevant provisions of section 47 are:

“47. Appeal against requirement to leave New Zealand—

(1) A person who is unlawfully in New Zealand may appeal to the Removal Review Authority against the requirement for that person to leave New Zealand.

(2) The appeal must be brought within 42 days after the later of—

(a) The day on which the person became unlawfully within New Zealand; or

(b) The day on which the person received notification under section 31 of the confirmation of the decision to decline to issue a permit, in the case of a person who, while still lawfully in New Zealand, had lodged an application under section 31 for reconsideration of a decision to decline another temporary permit.

(3) An appeal may be brought only on the grounds that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand.

(4) For the purposes of subsection (3), 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 does not in itself constitute exceptional circumstances of a humanitarian nature.

(5) The following people may not appeal under this section ... [not applicable].”

[10] The identical phrase “exceptional circumstances of an humanitarian nature that would make it unjust or unduly harsh” before a removal order could be cancelled under the previous section 63B has been brought forward into the present section in respect of a person being removed from New Zealand. There is no longer however, any discretion given to the Authority to reduce the period during which the removal order must remain in effect although the present legislation does not permit the service of a removal order until a period of 7 days has elapsed from notification of the appeal to the appellant. But that consideration does not, in my view, alter the scope of the test that was applied under the previous section which still required a finding whether exceptional circumstances existed that would make it unjust or unduly harsh for the removal order to remain in force before an application of the discretion whether to reduce or uphold the term of the removal order. In the circumstances it is appropriate to continue to apply the observations of the Court of Appeal in Rajendra Patel v Removal Review Authority [2000] NZAR 200, 204 who observed:

"Section 63B appeals start from the premise that the appellant[s] are in New Zealand unlawfully and are seeking an exemption. The stringent statutory wording, "exceptional circumstances of a humanitarian nature ... unjust or unduly harsh", using strong words imposes a stern test. In its natural usage, "exceptional circumstances" sets a high threshold necessarily involving questions of fact and degree. Associated in the test under the paragraph is that it be "unjust or unduly harsh" to remove on that account. It is a composite test and the whole picture is to be viewed, both circumstances and effects, and as part of that whole picture, the effects on others as well as the person removed may require consideration (Nikoo v Removal Review Authority [1994] NZAR 509, 519)."

[11] New Zealand has obligations under international law, particularly under the International Covenant on Civil and Political Rights 1966, the Optional Protocol to that Covenant, the Convention of the Rights of the Child 1989 and New Zealand's reservations to that Convention. The Court of Appeal in Tavita v The Minister of Immigration [1994] 2 NZLR 257 has identified these obligations as being relevant considerations in immigration decisionmaking. This Authority notes the observations contained in Tavita to the effect that a balancing exercise is required. That exercise involves the International Conventions, their relationship to the particular case, and other relevant matters. This Authority also has regard to the rights and interests of the members of the appellant's immediate family who are New Zealand residents or citizens. I recognise that the breaking up of a family may cause emotional and financial hardship both for those who must leave and for those who stay. These are matters, to the extent they are likely in any particular case, to which the Authority should give substantial weight when considering whether or not there are exceptional circumstances of a humanitarian nature which would make it unduly harsh or unjust to require the appellant to leave New Zealand.

[12] When the Authority comes to consider the public interest aspect of the relevant criteria there are some countervailing considerations that the Authority needs to consider. The Authority should consider the public interest in ensuring the integrity of New Zealand's immigration laws and policies and the need to ensure that those with children or immediate family resident in New Zealand do not automatically become entitled to remain in New Zealand, thus creating an incentive for visitors and those unlawfully in New Zealand to have children while in New Zealand in anticipation of themselves being able to remain in New Zealand.

[13] The Court of Appeal in Puli'uvea v Removal Review Authority [1996] 3 NZLR 538 has re-emphasised that, in the immigration context, the starting point must be the position of the person who is unlawfully in the country, or who is being deprived of residency rights. That involves an examination of the interests of the child and the importance of the family being allowed to remain in this country.

[14] As the Court emphasised, in referring to Article 3 of the Convention on the Rights of the Child, the best interests of the child is a primary but not the paramount consideration. What has to be undertaken is a balancing exercise.

[15] The integrity of New Zealand's immigration laws on the one hand needs to be balanced against family considerations, including the interests of the child on the other, in determining whether exceptional circumstances of a humanitarian nature exist in any given case.

[16] Section 50 provides that an appeal to this Authority under section 47 is to be determined on the papers and with all reasonable speed. Section 50(2) states that on any section 47 appeal it is the appellant's responsibility to ensure that all information, evidence and submissions the appellant wishes to have considered in support of his or her appeal are received by this Authority within the 42 day period.

[17] In determining an appeal the Authority may seek and receive such information as it thinks fit, and consider information from any source but may not consider any information which relates to matters arising after the date the appeal was lodged unless satisfied there are exceptional circumstances justifying the consideration of such. The Authority must also of course disclose to the appellant for comment any potentially prejudicial information that it proposes to take into account.

[18] Where the Authority allows an appeal, it may direct an immigration officer to grant the successful appellant a residence or temporary permit subject to such requirements or conditions as the Authority may determine.

[19] Otherwise (subject to sections 115A and 116), if a person's appeal to this Authority is unsuccessful and that person is still unlawfully in New Zealand seven days after the decision has been notified to him or her, that person is liable for removal from New Zealand.

Grounds of Appeal

[20] These were prepared by an agent for the appellant. They were as follows:

“1. [LL] is a Tonga citizen by birth. She arrived in New Zealand on 5 Sep 1996 and was granted a visitor's permit to 12 weeks. [LL] has one sister [TP] who is married to a New Zealand Resident with three New Zealand born children and two brothers and one of whom is residing in New Zealand.

2. [LL] is adopted (Tongan adopted – Ohi Faka Tonga) the child of her sister ([TP]) since she was born. They both agree, the parents and [LL] to let the appelant to adopt [NP] a daughter born 26 June 1999. Enclosed a letter from the appelant and birth certificate of [NP].

3. [TP] and her husband [SP] are prepared to be [LL]'s sponsor in New Zealand. [LL] intend to financial support her adoptive daughter in New Zealand. Enlosed is pay slips from [LL]'s employer and appeal fees's $500.00 ASB Bank Cheque No. [X].

4. [LL] is a law abiding person and has not committed any criminal activities.”

[21] In addition, the appellant wrote a letter confirming that she had agreed to adopt her niece. A birth certificate was supplied confirming that [NP] was born on [X] June 1999 in New Zealand.

Decision

[22] The appellant's case rests principally on the ground that the appellant now has an adopted daughter in New Zealand who is a New Zealand-born citizen. But it is plain that the appellant adopted her niece when all parties knew that the appellant had no lawful status in this country. It is plain that her niece had previously been part of her sister's family which has three New Zealand-born children. The ages of the other children were not revealed but there is no evidence to suggest that they were not an integrated family unit prior to the adoption by the appellant. Nor is there any evidence to suggest that the adoption was carried out because of any particular hardship arising from the family unit which dictated an adoption by the appellant should occur.

[23] It is not necessary that a formal adoption according to New Zealand law should be carried out in order for the appellant to be recognised as the principal caregiver for her child. But there is no evidence before this Authority which suggests that, in the event that the appellant returns to Tonga without her child, the child will not continue to live with her natural mother and father.

[24] Whether the child will accompany the appellant is a matter for the appellant to decide. As the child is a New Zealand citizen, that is a decision ultimately for the appellant who may have the primary responsibility for the care of her child as set out in Articles 18(1) and 27(2) of the Convention on the Rights of the Child. However, if both elect to travel to Tonga there is no suggestion that the child could not enjoy a normal family life in that country consistent with the expectations and conditions in Tonga. I note the fact that Tonga may be considered a poorer country than New Zealand does not of itself amount to exceptional circumstances of a humanitarian nature (see Ronberg v Chief Executive of Department of Labour [1995] NZAR 509). There is no suggestion or evidence to suggest that if the appellant's child was to accompany the appellant the child would suffer exceptional deprivation such as jeopardise the child's right to an adequate standard of living (see Article 27(1) of the Convention on the Rights of the Child).

[25] I note that the appellant's sister and her husband are prepared to sponsor her in this country. It also appears that the appellant is working in New Zealand although she has no permit to do so. Where a person such as the appellant elects to undertake work in New Zealand in such circumstances this Authority will attach little weight to the fact that she is self-supporting. The local labour market requires careful control and it is axiomatic that work permits issued to overseas visitors are a means of ensuring that jobs are not lost, or are controlled in such a way that New Zealand citizens and others lawfully in this country and entitled to work here are not disadvantaged. It is trite to observe that were it otherwise, there would be little point in having work permits in the first place.

[26] I also note that the appellant has family resident in Tonga. Were it not for the fact that she has elected to adopt her niece, there would have been no impediment for her to return to her home country at the end of the temporary permit granted to her. As it was, she elected to default on that obligation and remain unlawfully in New Zealand. She did not agree to adopt her niece, it appears on the documentation provided, until or around the time the appeal was lodged to this Authority. The letter from the appellant dated 20 September 2000 speaks in the present tense of agreeing to adopt her niece. Whatever date the agreement was made, it could not have been before the date of birth of her niece in 1999, so that in the interval the appellant has remained in this country an independent and single woman.

[27] In the circumstances the policy considerations of ensuring the integrity of New Zealand immigration laws must be given proper weight. It is not policy to encourage those who remain unlawfully in New Zealand with the expectation that the longer they do so the more likely it is they will succeed in an appeal of the kind now made, compared with those who legitimately arrive in this country as a result of a residence permit granted here or residence visa granted overseas.

[28] In Prasad v The Chief Executive of the Department of Labour AP [2000] NZAR 10, 23 McGechan J observed:

"... that it is open to an Authority to have regard to the integrity of New Zealand's immigration laws when making the determinations under s63B(2)(a) and (b). Indeed, such may well be unavoidable. However, an Authority should do so with moderation, in the sense that the integrity of New Zealand's immigration laws is no more than one factor amongst others. There should not be a single focus on the integrity factor so as to necessarily preclude the availability of the s63B exception.”

[29] I adopt those remarks as equally applicable to the new legislation.

[30] In all the circumstances I am not satisfied that exceptional circumstances exist of such a nature that would make it unjust or unduly harsh for the appellant to be removed from New Zealand. Such a finding relieves me of having to consider the question of public interest under section 47(3).

[31] The appeal is dismissed.

[32] I note for the attention of the appellant and her advisor that pursuant to section 53(1)(b) of the Act, the appellant has a period of seven days after the date on which this decision is notified to her to leave New Zealand before she is at risk of having a removal order served on her. Should a removal order be served on the appellant after that seven-day period she would be prevented from returning to New Zealand for a period of five years.

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G Turkington

Removal Review Authority