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KN; Removal Appeal No:AAS44497 [2002] NZRRA 2 (21 February 2002)

Last Updated: 5 June 2011

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DECISION OF THE REMOVAL REVIEW AUTHORITY

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[1] [KN] (hereinafter referred to as “the appellant”) is a citizen of Thailand who was born on [X] January 1972 who, together with his child [TC] who was born on [X] October 1994 and is also a Thai national, appealed to this Authority against the requirement to leave New Zealand. I add that the appellant's wife, [SC], also a Thai national, has appealed and included [TC] on her appeal form under [...]. This appeal is considered separately under that number.

Background

[2] The appellant and his wife and dependent child, [TC], arrived in New Zealand on 9 April 1999 and were granted visitor's permits valid to 9 July that year. Subsequently, a work permit was granted to the appellant and a student permit for [TC] that expired on 2 April 2001. His wife was granted a visitor's permit to the same date.

[3] In the meantime, an application for refugee status had been lodged by the family on 19 May 1999. Ultimately, this was withdrawn in February 2001. Following the withdrawal of the application, the permits granted to the family which had earlier been expressed as current to 24 May 2001 were revoked effective, as I have observed, from 2 April 2001.

[4] On his appeal form the appellant declared that his parents lived in Thailand, as do three siblings. He declared that he was married to his present wife and that in addition to [TC] the couple also have a New Zealand-born son, [A], born at [K] Hospital in [P] on [X] April 2000.

[5] I note that a letter from a Dr [L], dated 11 May 2001, confirms that his wife was expecting a second child on [X] December 2001. In effect, the couple have three dependent children, two of whom will be New Zealand-born children and entitled to remain in this country.

[6] Enquiries by the New Zealand Police confirmed that as at 19 April 2001 the appellant had a breath alcohol conviction that resulted in a fine of $500 and disqualification from driving. This occurred on [X] July 2000 in the District Court at [P]. For present purposes, I attach no significance to that conviction and I have not asked the appellant to provide comment upon it.

Relevant Legislation

[7] This is an appeal brought pursuant to the provisions of section 47 which provides:

“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].”

[8] 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).”

[9] 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 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.

[10] 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.

[11] 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.

[12] 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.

[13] 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.

[14] 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.

[15] 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.

[16] 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.

[17] 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

[18] These were provided by submissions from the solicitors for the appellant and the children. It was submitted that humanitarian circumstances could be listed as follows:

“(a) The family have opened a restaurant in [A] which is operated by a relative. The Thai Restaurant employs two staff. If the family leave New Zealand the capital base will be lost and the restaurant will close with the loss of employment and income. It is in the best interest of New Zealand to promote investment and business.

(b) The family was affected by the collapse of the Thai economy. They are likely to find it extremely difficult to offer their children the quality of life they enjoy in New Zealand.”

[19] This Authority's attention was also drawn to the 2000 Transitional Policy that persons who fell into the established categories apply to the New Zealand Immigration Service (NZIS) for a permit permitting them to remain in New Zealand. The appellants did not fit any category. It was submitted that the appellants would have satisfied the Transitional Immigration Policy but for the existence of their refugee application which was an excluded category and which was subsequently withdrawn. It was submitted that:

“The new government has considerably expanded the basis for Residence Policy which has included the possibility of several thousand overstayers obtaining residence.”

[20] It was submitted that under the former section 63B of the Immigration Amendment Act 1991 the test of exceptional circumstances was strict and limited residence policy. It was submitted that the current residence policy is a relevant consideration although not determinative of the outcome. It was acknowledged that section 47(4) applied. In other words, the fact that an appellant may qualify under applicable Government policy for residence does not of itself amount to exceptional circumstances of a humanitarian nature. Nonetheless, it was submitted that the Transitional Policy was an indication of a more liberal approach to immigration and therefore a relevant consideration for the Authority to consider.

[21] The Authority's attention was drawn to Article 3(1) of the Convention on the Rights of the Child that 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.”

[22] It was submitted that the Convention requires this Authority to generally examine the rights of the child and that in the circumstances it was not in the best interests of the New Zealand-born children to be raised in Thailand. New Zealand has an obligation to its citizens. It was also submitted that the removal of parents with New Zealand-born children is inconsistent with the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

[23] In particular, I was referred to a report of the Human Rights Commission into a complaint of a Mr and Mrs [RA] of January 1985. This report conducted by the Human Rights Commission Act 1981 in Australia concluded that Mr and Mrs [RA]'s expulsion from Australia was inconsistent and contrary to human rights. The focus of the inquiry was a deportation of the parents and their Australian-born child. At that time, the birth of a child to non-Australian citizens did not result in automatic qualification for Australian citizenship for the Australian-born child, a situation that does not exist in New Zealand. In the circumstances, the proposed deportation of the family including the child was held to be contrary to human rights and having regard to the Conventions referred to.

[24] This Authority's attention was also referred to Communication No. 930/2000: Australia 16 August 2001, concerning a report from the Human Rights Committee that concluded that the removal of the parents of an Australian-born child cannot be arbitrary in the circumstances of that case where it was held there was a violation of Articles 17, 23 and 24 of the International Covenant on Civil and Political Rights. For the purposes of this decision it is unnecessary for this Authority to set out the relevant Articles. In summary, the effect of the Articles is to prevent arbitrary interference by the state in the family unit. I shall return to that report shortly.

[25] It was submitted that the decision of the Court of Appeal in Tavita discussed under the principles relating to the relevant legislation was correct and that the Court of Appeal permitted a role for the United Nations Human Rights Committee in cases such as this. It was submitted that Puli'uvea, also discussed above under legislation, was incorrect as was another uncited decision. Although not expressly stated, it is implicit in that submission that that Court's failure to give paramount consideration to the relevant Conventions in Puli'uvea and the decisions of the relevant United Nations Committee is not correct.

Decision

[26] There is nothing in the legal submissions made to this Authority that persuades me the discussion under legislation is wrong. It is relevant to note that in the last and most recent decision cited, being a report of the Human Rights Committee, Communication No. 930/2000: Australia 16 August 2001, the Committee observed at paragraph 7.3:

“It is certainly unobjectionable under the Covenant that a State party may require, under its laws, the departure of persons who remain in its territory beyond limited duration permits. Nor is the fact that a child is born, or that by operation of law such a child receives citizenship either at birth or at a later time, sufficient of itself to make a proposed deportation of one or both parents arbitrary. Accordingly, there is significant scope for State parties to enforce their immigration policy and to require departure of unlawfully present persons. That discretion is, however, not unlimited and may come to be exercised arbitrarily in certain circumstances. In the present case, both authors have been in Australia for over fourteen years. The authors' son has grown in Australia from his birth 13 years ago, attending Australian schools as an ordinary child would and developing the social relationships inherent in that. In view of this duration of time, it is incumbent on the State party to demonstrate additional factors justifying the removal of both parents that go beyond a simple enforcement of its immigration law in order to avoid a characterisation of arbitrariness. In the particular circumstances, therefore, the Committee considers that the removal by the State party of the authors would constitute, if implemented, arbitrary interference with the family, contrary to article 17, paragraph 1, in conjunction with article 23, of the Covenant in respect of all of the alleged victims, and, additionally, a violation of article 24, paragraph 1, in relation to [BW] due to a failure to provide him with the necessary measures of protection as a minor.”

[27] It concluded therefore that there was a violation in that case of the Optional Protocol to the International Covenant on Civil and Political Rights to which Australia was a party because of the arbitrary manner in which the parents of their son, a long-term resident in Australia, were to be deported and the impact it would have on the family unit.

[28] There is nothing inconsistent with that report and the discussion already provided by this Authority under the principles applicable in examining the Court of Appeal decisions in Tavita and Puli'uvea. It is unnecessary to rehearse in detail what has already been stated. Suffice to say, what is required is a consideration of the relevant International Conventions as they apply to a particular case. The Conventions do not provide that parents have a fundamental right to remain in the country of their children's birth where citizenship is automatically granted to the children. The best interests of the child are not the paramount consideration even though they are a primary consideration.

[29] Nor does this Authority attach any significance to the fact that the appellant may have qualified for the October 2000 Transitional Policy but for the existence of an application for refugee status. As the appellant and his solicitor recognise, section 47(4) expressly provides that the mere fact that a person may qualify for residence under applicable Government policy does not of itself amount to exceptional circumstances of a humanitarian nature. The fact that the appellant and his family did not qualify was a matter expressly provided for in the Transitional Policy. The express direction under section 47(4) serves to emphasise the limited weight this Authority may attach to the present situation when the appellant did not even fall within any applicable Government policy permitting residence. Persons who had made an application for refugee status were disqualified from being considered. Such applications would be dealt with under the separate criteria provided by the NZIS Refugee Status Branch that examines whether applicants are refugees within the relevant Convention. That was the situation that applied to the appellants who ultimately elected not to pursue their application any further and were ultimately too late to apply for a permit under the Transitional Policy. In the circumstances of this case, I am not prepared to find that exceptional circumstances exist because he might have qualified under the Transitional Policy but for the existence of that application.

[30] The situation then is that the appellant and his family elected to become involved in a family enterprise running a restaurant and knowing that they had no guarantee that their refugee application would be accepted. There could be no guarantee of any long-term stay in this country. Nor am I prepared to infer that the restaurant's collapse is imminent because of their departure to Thailand. The “family members” are doubtless available to assist in its running. But even if the restaurant is to close, that is a result that was entirely foreseeable from the outset in the event that an application for residence and other permits failed.

[31] A work permit granted to the appellant was simply an interim measure to enable him to support himself and his family pending the determination of the application for refugee status. Once it was withdrawn the permit was revoked.

[32] Collapse of the Thai baht is a relevant consideration but does not amount to exceptional circumstances of a humanitarian nature in this case. There is no evidence before me of persons such as the appellant and his family being unable to continue to make their own way in life in Thailand consistent with the aspirations and conditions of others placed with similar economic constraints.

[33] In Ronberg v Chief Executive of Department of Labour [1995] NZAR 509, 526-527 McGechan J said:

“Mere economic betterment – the fact that a person can live more comfortably in New Zealand than elsewhere – perhaps with employment instead of unemployment – is not the type of humanitarian consideration in contemplation in the statute. It would usually have difficulty qualifying in itself as an “exceptional circumstance” rendering removal “unjust or unduly harsh”. It was not intended New Zealand house the world. In reality economic considerations which can come into play will co-exist with serious physical and emotional harm. Poverty in itself will not suffice. Poverty, starvation and disease might do so. These are questions of degree; but clearly mere economic considerations – per se – are not an intended element.”

[34] I have had close regard to the interests of the children. Unlike the situation referred to in Communication No. 930/2000, the appellant's child has been in New Zealand for only a comparatively short time and in circumstances where a student permit was issued to him as an interim measure only. There is no evidence before me that this child, now in his seventh year, has formed such peer associations or become so bound to the New Zealand education system that his removal to Thailand will irretrievably jeopardise his welfare.

[35] The two young New Zealand-born children are entitled to remain in this country. Whether the children will accompany the appellant and his spouse should they elect to leave New Zealand is a matter for joint decision. As the children are New Zealand citizens that is a decision ultimately for the parents who have the primary responsibility for the care of their children as set out in Articles 18(1) and 27(2) of the Convention on the Rights of the Child. If all elect to travel to Thailand there is no suggestion that the children could not enjoy a normal family life in that country consistent with the expectations and conditions in that country. There is no suggestion or evidence to suggest that if the appellants' children were to accompany both parents the child would suffer exceptional deprivation such as to jeopardise the children's right to an adequate standard of living (see Article 27(1) of the Convention on the Rights of the Child).

[36] It is to be noted that the appellant's parents and his siblings reside in Thailand and I infer that the family network will be able to assist in the multifarious ways that can be expected on the appellant's return to his home country.

[37] I have also had regard to the fact that the family unit has become undoubtedly well settled in the meantime while the application for refugee status was being considered. But again, that situation has arisen purely as a result of the appellant pursuing an application which in this instance was withdrawn. It is not policy to encourage those who remain in New Zealand with the expectation that the longer they do so the more likely it is that they will succeed in an appeal of the kind now made compared with those who legitimately arrive in this country and as a result of a residence permit granted here or residence visa granted overseas in the first instance.

[38] In Prasad v Chief Executive 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.”

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

[40] 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).

[41] The appeal is dismissed.

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

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G Turkington

Removal Review Authority