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AT; Removal Appeal No:AAS 45354 [2004] NZRRA 1 (23 January 2004)

Last Updated: 16 November 2011

Appeal No AAS 45354

IN THE MATTER of the Immigration Act 1987

and

IN THE MATTER of an appeal under Section

_{47 of the Act by [AT]}

_{DECISION OF THE REMOVAL REVIEW AUTHORITY}

[1] This is an appeal from [AT] (“the appellant”), who has appealed pursuant to section 47 of the Immigration Act 1987 (“the Act”) against the requirement to leave New Zealand.

_Background

[2] The appellant is a citizen of Iran, he came to New Zealand on 4 April 2000, and immediately applied for refugee status. The appellant received temporary permits while his refugee status was determined. His final temporary permit was revoked with effect from 24 April 2003, this was a routine process following the completion of refugee status processes.

[3] The appellant has parents, a sister and three brothers living in Iran. The appellant has a sister living permanently in New Zealand with her family. The appellant does not have any children.

[4] The Refugee Status Branch of the New Zealand Immigration Service initially considered the appellant’s claim for refugee status. The claim was declined, the appellant appealed to the Refugee Status Appeals Authority. In a decision dated 17 March 2003 the appeal was dismissed.

_{Grounds of Appeal}

[5] The appellant has advanced the present appeal on two grounds. First that his sister is suffering from depression, and if he leaves New Zealand her condition would deteriorate.

[6] The appellant is a homosexual man, and does not wish to return to Iran as he would be at risk of persecution, and “would have to return to living a lie in Iran.” In short, homosexuality is not accepted by the authorities in Iran, and gay people are at risk of being harmed simply because they are gay.

_{Relevant Legislation}

[7] This appeal has 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 persons may not appeal under this section ... [not applicable].”

[8] Section 50(1) 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.

[9] 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 (section 50(4)). The Authority must disclose to the appellant for comment any potentially prejudicial information that it proposes to take into account (section 50(5)).

[10] 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 (section 52(2)).

[11] Otherwise, subject to sections 115A & 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 (section 53(1)(b)).

_Decision

[12] In Tupou v Removal Review Authority (High Court, Auckland, M1926-SW00, 23 February 2001), the applicability of the decisions on appeals under the former legislation (ie, section 63B of the Act), to the current form of the legislation (ie, section 47) was considered. The Court held that, in substance the same approach should apply to section 47 as applied to the earlier form of the legislation. It is accordingly clear that the test the Authority must apply under section 47(3) is a high test, as expressed by the Court of Appeal in Rajendra Patel v Removal Review Authority [2000] NZAR 200, 204:

“Section 63B appeals start from the premise that the appellants 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 RRA [1994] NZAR 509, 619). As applied to the present case, are the mental state and the dependence of Ramila on Mr Patel ‘exceptional circumstances of a humanitarian nature’ such that it would be ‘unjust or unduly harsh for him to be removed from New Zealand.”

[13] In Prasad v Chief Executive, Department of Labour [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.”

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

[15] The first issue to consider is the appellant’s claim for refugee status. The appellant claimed that he had been politically active, and was at risk of persecution. The RSAA found that the appellant was not a credible witness, and rejected his evidence on which his claim was founded “in its entirety”.

[16] As this Authority is independent of the RSAA, it can reach a different view of the same material. I approach this matter de novo, given the different jurisdiction. However, the decision of the RSAA is not irrelevant. The Court of Appeal in Talukder v Removal Review Authority [2000] NZAR 194 at 198 considered the relationship of this Authority and the RSAA. The Court made it clear the RSAA’s determinations are not binding on this Authority; but found this Authority may have regard to the RSAA’s findings on substantially similar evidence. To do so is not inconsistent with making an independent judgement in respect of the material. Approaching the matter in this way, I have considered the material before the RSAA, and the views it reached.

[17] The appeal was lodged without explanation as to whether the appellant accepted that he had fabricated the account on which his claim was made, or whether he had some basis on which he challenged that finding. Accordingly, the secretariat of this Authority wrote to the appellant’s counsel and asked whether there was either a challenge to that finding, or an explanation. While counsel

responded to the letter, no attempt was made to either challenge the finding, or explain why the appellant fabricated evidence.

[18] Accordingly, the findings of the RSAA are accepted, they are consistent with the material before me, and I am satisfied the RSAA’s conclusion is correct. However, the matters advanced in the claim for refugee status do not have a direct bearing on the outcome of this appeal, as the grounds for the present appeal are different.

[19] In support of the ground that the appellant’s sister’s mental health would be affected by the appellant being removed, a report dated 5 June 2003 from a psychiatrist was produced. The report addressed the appellant’s sister’s mental health. The report diagnoses a major depressive illness, of moderate severity. Key background in the report is that:

• The appellant’s sister and her husband came to New Zealand, and were able to remain on the basis of refugee status. The couple now have two children.

• The appellant’s sister and her husband established a successful business, but subsequently faced business difficulties and were declared bankrupt.

• The appellant’s sister is also suffering from Occupational Overuse

Syndrome.

• The business and financial stressors have impacted adversely against both the appellant’s sister and her husband.

• The appellant’s sister is also stressed in relation to the prospect of the appellant having to return to Iran.

• The appellant’s sister has “slipped progressively” as a result of concern for her brother having to return to Iran, and all the more so due to the appellant’s involvement in the family life of her family. The appellant’s sister is affected by hypercholesterolaemia, and being treated with istatin.

• There is a high probability of deterioration in the appellant’s sister’s

condition if the appellant is required to return to Iran.

• The appellant’s sister was prescribed medication, with no formal follow-up with the psychiatrist required, unless the appellant’s sister was not responsive to the medication.

[20] It is clear the appellant’s sister’s mental health difficulties are the result of multiple factors. It is far from uncommon for migrant families to suffer emotional upset and distress arising from the inability of all family members to live in the same country. The pressures faced by the appellant’s sister are not exceptional. I accept that the appellant’s sister may be more vulnerable than many due to possible predisposing factors, and the pressure arising from financial problems. However, I do not accept that either the nature of the concerns the appellant has for her brother; or the appellant’s sister’s mental and/or physical health can be regarded as exceptional circumstances, in the context of the statutory test that applies to appeals to this Authority.

[21] The material in support of the appeal expands upon the circumstances, by adding statements from the appellant and his sister, and submissions from counsel. The essence of these elements are that:

• The appellant and his sister are very close;

• The closeness has developed while in New Zealand, as the appellant’s sister has been somewhat isolated in the New Zealand community (due to language and cultural barriers);

• The appellant has confided in his sister that he is gay, which is not something he can disclose to other family members;

• The appellant’s sister is not able to receive the support she might have from her husband, as he has himself been badly affected by their financial problems.

[22] Counsel suggested that a report from the United Nations High Commissioner for Refugees (Background Note for the Agenda Item: Family Reunification in the Context of Resettlement and Integration (2001)) was

significant. However, it really adds nothing to the significance that family relationships always have before this Authority. It is well recognised by this Authority that family relationships are to be accorded a high value. The Court of Appeal’s decision in Tavita v The Minister of Immigration [1994] 2 NZLR 257 refers to some of the international documents which confirm that. However, there is nothing in the Tavita decision, or other relevant jurisprudence, that suggests an overriding principle that migrants can expect family members to be entitled to enter New Zealand. Ordinarily New Zealand immigration law and policy must be complied with, and that law and policy does recognise family values and relationships. There are certainly exceptional family situations, which are not provided for in immigration law and policy, which establish a basis for allowing an appeal to this Authority. However, the circumstances in this case are far from the threshold for allowing this appeal – notwithstanding the high value accorded to family relationships.

[23] The other, and to an extent related, ground is the appellant’s fear of returning to Iran as he is gay. The grounds are related to the extent that the appellant’s sister’s concerns will be heightened by fear of harm coming to her brother.

[24] A letter of support was provided from the [P] Centre, which works with the lesbian, gay, bisexual, and transgender communities of Aotearoa – New Zealand. The letter records that the appellant has been in contact with the Centre for some two years (as at July 2003), and is part of the gay community in [A]. The letter states:

“It strikes us that it would be inhumane to send [the appellant] back to Iran after he has experienced freedom in New Zealand. It is only since living in this country and being exposed to liberal western values that he has been able to truly live as a gay man. There is no Gay movement in Iran and no discernible Gay lifestyle. If he is forced to return to Iran it will have serious consequences on his emotional welfare.

That he only really started to come to terms with his sexuality some time after his arrival in New Zealand is of no great surprise.”

[25] The letter also confirm that it is the writer’s knowledge and belief that homosexuals are at risk of being killed if their sexuality comes to the attention of unsympathetic persons in Iran.

[26] It is well established that persecution because a person is homosexual can be a basis for claiming refugee status (Refugee Appeals 1312; 71091; and 71623).

The appellant did not include the fact that he is gay as part of the grounds on which he claimed refugee status. Both his counsel and the letter from the [P] Centre explain the reasons for that omission. The appellant was, it appears, neither aware that being gay could assist his refugee status, nor fully cognisant of his sexuality. I proceed on the basis that is correct.

[27] It is important to recognise that where there has been a change of real significance, then it is open to make a further claim for refugee status. The test in s.129J of the Act is that “circumstances in the claimant's home country have changed to such an extent that the further claim is based on significantly different grounds to the previous claim”. The appellant, it appears, claims that his new awareness and experiences relating to his sexuality have created risks for him on returning to Iran.

[28] It should be clearly recorded that if an appeal is brought before this Authority, and facts are established that meet the threshold for allowing the appeal, then appeals will be allowed. It will be of no significance that appellants might be able to claim refugee status, or have some other avenue available to obtain an immigration permit that will address their circumstances.

[29] However where there is no persuasive factual material, in determining whether it is “unjust or unduly harsh for the person to be removed from New Zealand”, it may be material as to whether or not an appellant has pursued an available mechanism to have their claim tested and accepted. It is not necessarily possible to equate the justice of two appellants being required to leave New Zealand when one appellant has:

● Chosen not to test their claim of potential persecution in an appropriate and available mechanism; and the other

● Has no mechanism except the appeal to this Authority to present their claim.

[30] Furthermore, failure to test a claim in an appropriate and available process may have a bearing on evidential issues.

[31] These issues arise without impinging on the fact that this Authority’s jurisdiction must be exercised by applying the relevant statutory test, and other processes such as claiming refugee status have their own independent and separate statutory basis.

[32] It is not necessary to determine the precise limits of the jurisdiction to bring a second refugee claim. It is sufficient to note that there have been a number of refugee claims considered on the basis that persons have altered their religious beliefs. The principles are illustrated in Refugee Appeal No.72323/2000. Accordingly, changes in a claimant’s circumstances or characteristics, which will cause the authorities in their country of origin to have a different attitude, have been accepted as meeting the test in s.129J.

[33] This appeal has been brought on the basis that the appellant has a new view of his sexuality and lives his life accordingly. In principle, the appellant could at least attempt to test his claim in a second claim for refugee status. Should be do so, he could expect the claim to be tested in a searching manner. However, for the reasons discussed below, on the basis of the material before me, I am not satisfied that the appellant faces a substantial risk of persecution if he returns to Iran. The views of this Authority on the basis of the material before it of course are in no sense a determination of refugee status.

[34] Regardless of the potential availability of a second claim for refugee status, the appellant is entitled to have the material presented assessed against the statutory criteria for allowing this appeal. I have considered the material as a whole. I have had regard to the material from the [P] Centre, and also a publication of the United Nations High Commissioner for Refugees Background Paper on Refugees and Asylum Seekers from the Islamic Republic of Iran (supplied by Counsel for the Appellant). I accept that if a person adopts an openly gay lifestyle in Iran they are likely to be persecuted. However, the same would be true for a woman who dressed and behaved in the manner that is ordinary for women in New Zealand. Persecution would also follow if many persons in New Zealand conducted a heterosexual relationship in Iran in a manner that would be unremarkable in New Zealand. Similarly, people who practised their religion in the manner that attracts no attention in New Zealand may be persecuted should they do the same in Iran. In short, this Authority is well aware that conduct that is

ordinary and unremarkable in New Zealand, would be strongly condemned and punished in Iran. The same is true in many other countries.

[35] The statutory threshold for allowing this appeal is not reached simply because a person is unable to enjoy the personal liberty and choice in their country of origin that they enjoy in New Zealand. While I accept a person’s sexuality is often at the core of the psyche, it is very common indeed for persons to be affected in the manner in which they can express their sexuality due to the conditions in a particular society. This particular appellant is gay, others may be affected in the relationships they can pursue due to prohibitions on interfaith relationships, and others are limited in they way they can express their sexuality through their appearance (ranging from compulsory wearing of beards, to Islamic dress codes, and to transgender people).

[36] This appellant, it appears was able to live in Iranian society until recently, attracting no particular attention, and not be persecuted. There is nothing that satisfies me the appellant will not be able to do that again. I readily accept that the appellant will find it unattractive not to be free to express his sexuality in the manner he does in New Zealand. However, the appellant is little different from large numbers of people who are affected in similar ways by controlling and intolerant regimes, of the kind that are in authority in Iran. I am not satisfied that is sufficient to allow this appeal. To give the issue dimension and perspective, it should be recognised that a significant element of any human population will be gay. Iran is notable for its intolerance and persecution of gay people, but it is far from the only regime of that kind. It is unrealistic to suggest that simply because a person is gay and comes to New Zealand from such a country, that they can expect to remain permanently in New Zealand. There are a number of factors that may dictate such an outcome, ranging from the person having been identified as a particular target in their country of origin, to having a relationship with a New Zealand citizen that entitles them to a visa or permit.

[37] It is important to consider all of the elements supporting the appeal in totality, the fact that no single element is sufficient in itself is not significant, if the totality of the material does reach the threshold. In addition to the factors considered, and identified as grounds of appeal, there have been a number of testimonials supplied. The speak very favourably of the appellant, I accept the appellant has successfully established himself in the New Zealand community,

both in his work, and socially and is well regarded by the people who know him. However, taking all elements into consideration I am not satisfied that either that there are exceptional circumstances present, or that it would be unduly harsh or unjust to remove the appellant from New Zealand and require that he return to Iran.

[38] In dismissing this appeal I note for the attention of the appellant and his advisor/s 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 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.

[39] The appeal is dismissed.

_{DATED at Wellington this 23}rd _{day of January 2004}

G Pearson

Removal Review Authority