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YC and XH; Removal Appeal No:AAS44620 [2003] NZRRA 3 (27 June 2003)

Last Updated: 5 June 2011

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DECISION OF THE REMOVAL REVIEW AUTHORITY

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[1] [YC] and [XH] (“the appellants”) are citizens of China who were born on [X] December 1957 and [X] September 1957 respectively and who have appealed pursuant to section 47 of the Immigration Act 1987 (“the Act”) against the requirement to leave New Zealand.

Background

[2] [XH] arrived in New Zealand on 22 April 1996. [YC] arrived on 10 December that year. They were granted a series of temporary permits that finally expired both on 1 July 2001. I observe that the appellants married in New Zealand on [X] November 2000.

[3] [XH] made an application for refugee status shortly after her arrival in New Zealand. In support of her application she stated that she had been forced by family planning authorities to undergo two terminations of pregnancies during the early 1990s. The application for refugee status was declined, as was an appeal to the Refugee Status Appeals Authority (RSAA) on 17 June 1999. At that stage she was divorced from her previous husband and had one son who was then aged 14 years who lived in China.

[4] In the meantime she lodged an appeal with this Authority on 22 December 1998. Essentially she submitted that life in China had become intolerable due to conflicts with Chinese authorities on every aspect of living. Additionally she was pregnant and did not wish to be forced to undergo another abortion. She added that her child would not receive an education in China. For the reasons expressed by this Authority on 2 August 2000 the appellant was permitted to remain in New Zealand and was granted a visitor's permit current to 28 February 2001. In its essentials this Authority rejected a submission that her second child would not receive an education in China, but that a forced termination amounted to exceptional circumstances of a humanitarian nature justifying her giving birth in this country and remaining here until she had fully recovered.

[5] [YC] first applied for refugee status on 5 June 1997 but subsequently withdrew the application on 29 September 2000. However, both he and his wife lodged a further application for refugee status on 2 October 2001. [YC]'s application was declined on 18 February 2002 and an appeal was subsequently lodged with the RSAA but was withdrawn on 3 December 2002.

[6] His wife's applications followed the same pattern. An application for refugee status was declined on the same date as was an appeal to the RSAA withdrawn on 3 December 2002.

[7] Subsequently, an appeal was lodged by both appellants with this Authority based on humanitarian grounds on 10 August 2001. On her appeal form, [XH] confirmed that she was married and that she had two children: a son living in China at an address unknown who was born in 1985; and a New Zealand-born child [JC] who was born on [X] November 2000. She declared her father, mother, a brother and sister as all resident in China.

[8] [YC] declared his marriage and the birth of the couple's New Zealand-born son in New Zealand. He also declared a daughter as living in China who was born in 1983, a stepbrother and cousin as living in his homeland.

[9] [YC] declared that he had had parking tickets and had convictions of driving a vehicle without a warrant of fitness for which he had been fined approximately two years prior to the filing of his appeal. While his wife declared that she had been convicted of careless driving and fined. Enquires by the New Zealand Police in respect of both confirmed that both had careless driving convictions but I regard them as irrelevant to the outcome of these appeals.

Grounds of Appeal

[10] In support of the wife's appeal the solicitors acting for her submitted that she was extremely grateful to be granted a limited permit to permit her to give birth to her second child. She was convinced that news of the second child would cause the authorities to take most extreme measures against her and her son. She had not intended to become pregnant but when she discovered her condition she had a deep desire to give birth to the baby.

[11] The solicitors rehearsed the reasons why she sought refugee status; essentially because life in China is intolerable. It was submitted that countrywide information indicated that China's birth control programme is applied in different ways throughout a very large country. It was submitted that controls are tighter in cities such as her home city of [G]. She had already suffered two involuntary terminations and did not want to be subject of further attention from the authorities.

[12] She did not hold a passport and had not been able to obtain a replacement from the Chinese authorities. If she is required to return to her homeland she would require a travel document which could be provided by the Department of Internal Affairs. This, however, would attract attention on her return to China.

[13] Reference was made to a decision of the High Court of Australia and the Australian Refugee Review Tribunal regarding the harshness with which people such as [XH] would be treated on her return. It was probable that a very substantial fine would be imposed upon her. This would prevent the family advancing their child's education and general welfare. In respect of the husband's appeal, the solicitors submitted that he too would suffer the punishment exacted against his wife and it would reflect on the family as a whole. In all the circumstances exceptional circumstances of a humanitarian nature applied.

Relevant Legislation

[14] These appeals have been lodged pursuant to section 47 of the Act. 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].”

[15] 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).”

[16] 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 decision making. 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.

[17] 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.

[18] The Court of Appeal in Puliuvea [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.

[19] 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.

[20] 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.

[21] 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.

[22] 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.

[23] 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.

[24] 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.

Decision

[25] In its decision of 18 February 2002 the Refugee Status Branch (RSB) of the New Zealand Immigration Service (NZIS) concluded that [XH] would not suffer any penalties in addition to those imposed by the Chinese authorities in their general approach to others who breach the one-child policy. The penalties (most likely fines) were not so unduly harsh as to amount to persecution. In wide-ranging assessments of country information also referred to in RSAA decisions Refugee Appeal No 2124/94, April 1996; Refugee Appeal No 70365/96, 4 April 1997, Refugee Appeal No 70996/98, 27 August 1998; and Refugee Appeal No 71232/98, 28 January 1999, the RSB noted family planning policy is implemented as a law of general application, the focus of which is population control. It is a policy that is widely breached, so much so that it was reported (see Guardian Weekly 18-24 May 2000 at page 29) as an estimate that only 60 million of the 300 million children under 14 in China at that time were from single-child families. There was a range of punishments for having a second child without permission from fines to the demolition of the offender's home. More recent reports reflected the determination, however, from the Chinese authorities to crack down on illegal practices and to ensure that state officials did not violate a citizen's property and other rights which was reflected in a new law stipulating that breaches of the family planning policy are to be punished with a fine only.

[26] It also turned to the High Court decision that was referred to by the appellant's solicitors of Chen Shi Hai v the Minister of Immigration and Multicultural Affairs [2000] High Court of Australia 19 (13 April 2000). That decision had been referred to in support of a submission that [XH]'s New Zealand-born child would suffer persecution if the child travelled to China. The case was distinguished on the basis that it was directed at giving relief to the child itself, not the parents. In fact the parents were not granted refugee status.

[27] However, I note that the undesirability of dislocating the family unit is a strong factor to be considered under Articles 9 and 10 of the Convention on the Rights of the Child. However, Hai proceeded on the basis of unchallenged findings of fact that the child would be the subject of persecution and the question at issue was whether that fell within a Convention reasons because of its membership of a particular social group. The High Court found that it did. But the factual analysis under which it relied is challenged here.

[28] The RSB also referred to the latest Home Office report in October 2001 which provided at 6.37:

“Any problems with officials over non-registered status that would logically be the case are, in practice, rarely meaningfully enforced, with the situation being particularly unclear in rural areas. The question of lack of registration limiting access to services such as health and education is misleading: health services in rural areas have never been free of charge; likewise education is increasingly fee-paying at all levels. Such services are accessible upon payment. The (PRC) State Council has stated that unregistered children will be registered unconditionally as part of the fifth national census in January 2001.”

[29] The RSB also noted that the earlier involuntary terminations had already been dealt with in China so that any problems she might face upon return to China would be unrelated to those events. It concluded there was no real chance she would be persecuted within Article 1A of the Convention on Refugees and there was no reason why her passport could not be renewed with the Chinese authorities.

[30] I also note that a similar submission had been made in respect of an earlier application for refugee status by [XH] that ultimately failed before the RSAA on 17 June 1999. That claim was rejected largely because it fell outside the ambit of Article 1A of the Convention on Refugees. In short, she could not demonstrate reasonable grounds for persecution based on race, religion or membership of a particular social group or political affiliation.

[31] This Authority was also referred to a Refugee Review Tribunal (Sydney, Australia) (N00/32273) decision dated 21 August 2000 that remitted a refugee application for reconsideration. The applicants were a married couple with two children who were citizens of China and had breached China's family planning policy by having four children. For the reasons expressed the Tribunal was satisfied the penalties that might be exacted upon the family were sufficient to amount to persecution of a particular social group, particularly the children. It followed the parents might be entitled to remain in Australia to protect the interests of the children. Again, I note the factual basis rested on the way such children would be denied basic facilities such as health and education in the Fujian province and “city” where they were expected to return. It did not follow that this was of general application as the findings of the RSB demonstrate.

[32] The test to be applied by this Authority is by its nature wider than the political Convention on Refugees. The question is whether a fine of any magnitude will so severely impact on the family that the New Zealand-born child and the appellant would suffer unduly within the principles discussed.

[33] In the end, after a careful review of all of the submissions and the findings of the RSB and RSAA noted earlier, I find that there is no evidence before me which suggests that the imposition of a fine will so impact on the family unit (if one is imposed at all) that the parents will be unable to provide basic necessities of life for their child (assuming the child travels to China). Nor do I find that they will be unnecessarily handicapped in their access to health or educational facilities. I do not accept there will be persecution for example in the way that was accented in Hai (above).

[34] The imposition of a fine or denial of health and educational facilities in China has been considered by this Authority on a number of occasions. The fact that welfare services such as health and schooling may not be freely accessed by second-born children in China does not mean that such services will be denied to the child. Nor does the imposition of a fine necessarily amount to such a handicap that the exceptional circumstances test is invoked, especially as many fines imposed are part of the domestic law of China and are not peculiar to the appellants (See for example: Removal Review Authority decisions 42422/42423 (14 February 2002); 44460 (24 January 2002); and 42039 (4 April 2000).

[35] Whether the child will accompany the appellants on leaving New Zealand is a matter for joint decision. As the child is a New Zealand citizen that is a decision ultimately for the parents who have the primary responsibility for the care of the child 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 China there is no reason that the child could not enjoy a normal family life in that country consistent with the expectations and conditions of others in that country. I note, for example, the fact that China 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, Department of Labour [1995] NZAR 509). There is no suggestion or evidence to suggest that if the appellant's child was to accompany both parents the child would suffer exceptional deprivation such as to jeopardise the child's right to an adequate standard of living (see Article 27(1) of the Convention on the Rights of the Child).

[36] Nor do I consider that the other difficulties the appellants foresee as a result of returning to China after such a substantial period are so exceptional or unusual. To the extent that the appellants have raised lifestyle differences, particularly those that conflict with the Chinese authorities, I note findings have already been made under the Political Convention on Refugees that such differences do not qualify. Complaints that [XH] in particular had been harassed by the Chinese authorities for her political reviews were rejected as not credible by the RSAA in its decision of 17 June 1999.

[37] An appeal to this Authority is under section 50 of the Immigration Amendment Act 1999. It is an appeal which is determined by the Authority “on the papers” under section 50(1). No provision exists for a viva voce hearing of the appellant. In the circumstances, the decision of such a tribunal as the RSAA, which has the advantage of seeing and hearing the appellant is to be given proper weight. Unless the appellant is able to demonstrate that the decision of the RSAA is plainly wrong, or that there is now information before this Authority which was not reasonably available to that tribunal which may lead to a different result, the Authority will accept its findings. In Talukder v Removal Review Authority [2000] NZAR 194, 198 the Court of Appeal observed that while its conclusions are in no way binding on this Authority, it is clearly reasonable “to pay regard to its comments and findings on substantially similar evidence affecting those humanitarian considerations within (its) province”. That is not to say humanitarian circumstances may not still exist as plainly a finding that the appellant does not qualify for refugee status will often raise different questions to the answer required under section 47(3). Nothing relevantly fresh has been raised to displace those findings on the appellants' views and I accept the findings of the RSAA about them. There is nothing materially relevant which transports those findings to the wider area of exceptional circumstances of a humanitarian nature I need consider further.

[38] Finally, I note that while the appellants have been in New Zealand for a considerable period, there is nothing to indicate that they cannot continue with their lives in China. The couple are resourceful and on the evidence before me, are in good health.

[39] 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).

[40] In dismissing these appeals I note for the attention of the appellants and their advisor that pursuant to section 53(1)(b) of the Act, the appellants have a period of seven days after the date on which this decision is notified to them to leave New Zealand before they are at risk of having removal orders served on them. Should removal orders be served on the appellants after that seven-day period they would be prevented from returning to New Zealand for a period of five years.

[41] The appeals are dismissed.

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G L Turkington

Removal Review Authority