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JC and KF; Removal Appeal No:AAS45093 [2004] NZRRA 8 (5 March 2004)

Last Updated: 19 November 2011

Appeal No AAS45093

AAS45094

IN THE MATTER of the Immigration Act 1987

and

IN THE MATTER of an appeal under Section

47 of the Act by [JC] (appeal number 45093) and [KF] (appeal number 45094).

_{DECISION OF THE REMOVAL REVIEW AUTHORITY}

[1] These are appeals from [JC] (appeal number 45093) (the appellant), and his dependent children, and also [KF] (appeal number 45094) (the appellant’s daughter), who have appealed pursuant to section 47 of the Immigration Act 1987 (“the Act”) against the requirement to leave New Zealand. [JF] and [DF] (the dependent children) are referred to in the appellant’s appeal form. However, they were previously included as dependent children in their mother’s appeal which was invalid, and a removal order has been served which affects them, and accordingly it may be that on a strict view they should not be regarded as dependent children in the appellant’s appeal. Regardless, I will treat the dependent children as though they were validly included in their father’s appeal as dependent children. For reasons I discuss below I am obliged to, and do consider the circumstances of the family as a whole. It makes no difference whether the children are formally included as dependent children or not to the outcome of the appeal.

_Background

[2] The appellant, the dependent children, and the appellant’s daughter are all citizens of Chile. The appellant’s wife is also a citizen of Chile, and also in New Zealand unlawfully, she attempted to lodge an appeal (including the dependent children), but it was invalid. Accordingly, the family directly affected by these

appeals comprises a married couple, their daughter who is now an adult, and two sons. The sons are 17 years of age (turning 17 this week), and 6 years of age respectively.

[3] The appellant came to New Zealand on 3 June 2001. He received a temporary permit, he claimed refugee status and was issued further temporary permits.

[4] The appellant’s sons came to New Zealand with their mother on 21 July

2001, and the appellant’s daughter came to New Zealand on 27 November 2001.

[5] The whole family held various temporary permits, while refugee status was determined. The final temporary permits for the appellant and the appellant’s daughter were revoked with effect from 21 November 2002, when the refugee status process was complete. The revocation was a routine process in those circumstances. The temporary permits held by the appellant’s wife and the dependent children expired on 8 September 2002.

[6] The appellant has parents and brothers living in Chile, the appellant’s wife also has parents and siblings living in Chile.

[7] The whole family applied for refugee status. The claims were considered by the Refugee Status Branch, and refugee status was declined in respect of each of them. They all appealed to the Refugee Status Appeals Authority (RSAA), which considered the appeals jointly, and issued one decision, dated 26 August 2002. That decision should be read with this present decision. The RSAA determined the appeals on the basis that they were prima facie manifestly unfounded or clearly abusive. However, it is important to note that the RSB had found all the evidence given credible, the lack of merit was not founded on lack of credibility.

[8] The full particulars of the appellants’ claims for refugee status appear in the decision of the RSAA. Broadly, the basis of the claims for refugee status were:

● The appellant unwittingly purchased a stolen car from his brother. His brother stole the car back, and the appellant complained to the police. The appellant agreed to tape a discussion with his brother, who was suspected of associating with drug traffickers, and money laundering.

● The appellant’s brother was arrested, along with three or four colleagues.

They were detained for ten months, but not tried for any offence. The appellant was warned that the men involved with the stolen car wanted to kill him.

● Prior to the release of the persons detained the appellant went to stay with friends in one town, and then another. Both friends received telephone calls telling them not to assist.

● The family went to stay with a relative in another town in early May 2001, and the appellant left Chile in early June, his wife and the two sons left in mid-July, and the appellant’s daughter left in November of the same year.

● The family sought refugee status on the basis that they would be harmed by the business associates of the appellant’s brother, and would not be protected by the police in Chile, as they were involved with organised crime.

● The family also claimed they would be harmed by the Chilean Government, which would not want information disclosed about official links with illicit activity.

[9] Having acted within the “manifestly unfounded or clearly abusive jurisdiction”, the RSAA then proceeded on the basis that the appellants would not be interviewed, and their account would be accepted.

[10] The RSAA was satisfied that the appeal must fail, as:

● No action was taken while the appellant’s brother and his associates were in prison, therefore no one outside that group was interested in the appellant;

● While threatening telephone calls were made to the friends the appellant stayed with, no attempt was made to harm the appellant or his family;

● There were no problems in the place where the family relocated to;

● The facts suggested that no real attempt was made to harm the family, and

there was no reason to believe there would be any attempt to harm in the future; and

● The family had the ability to relocate within Chile to avoid localised trouble

(as illustrated by the move to another to town).

[11] The RSAA also found that any fear of persecution was not for a “Convention ground” i.e. not due to “race, religion, nationality, membership of a particular social group, or political opinion.” However, this was secondary to the findings that the family was not likely to be harmed, and could in any event avoid potential harm by relocating.

_{Grounds of Appeal}

[12] In outline the basis for the appeals are:

● The family is in grave danger if they return to Chile, and relocation within Chile “may well prove farcical given the extent and level of corruption in Chile” (identification cards, which citizens must obtain and carry would facilitate them being located);

● Two members of the family have serious medical problems. Namely the appellant’s wife has mental health needs, and the youngest child requires ongoing treatment following cancer;

● It is important for the family to remain in New Zealand for medical care, and for the appellant to work and provide for the family’s particular needs;

● The family are successfully established in their occupational, and educational pursuits, and well adapted to New Zealand life.

[13] The materials accompanying the appeal amplify the basis for the appeal, those broad headings however capture the essence of the grounds. The accompanying materials amply attest to the high regard in which the family is held in the community.

[14] While the grounds for appeal identified concerns regarding the appellant’s wife having a depressive condition, and his youngest child having had cancer, medical reports did not comprehensively address the issues. Furthermore, it was pointed out that the grounds relating to fear of being harmed in Chile had been reviewed in the refugee status process, and the Court of Appeal’s decision in Talukder v Removal Review Authority [2000] NZAR 194, at 198 permitted regard to be had to the RSAA’s findings. The appellants were accordingly given the opportunity to provide further information or submissions if they wished to do so.

[15] The agent for the appellant and the appellant’s daughter responded and provided medical reports.

[16] The medical report regarding the youngest child indicated that he had a history of bilateral retinoblastoma, a cancer of the eyes. He had been diagnosed with the condition when he was two years of age, and had been treated with chemotherapy for six months, and had his right eye surgically removed. The report indicated that there was no signs of recurrence, but six monthly assessments were required to the age of 7 years.

[17] The medical report regarding the appellant’s wife indicated that her mental health difficulties dated from the time she left Chile. There were reports from Mr [R], a psychologist/psychotherapist, and Dr [L] a general practitioner. The reports indicate a need for psychotherapy to address: Generalised anxiety, with panic attacks; sleep difficulties; depression; and social withdrawal. There is no diagnosis of a major depressive disorder, or other major mental health problem. That is however not to trivialise the difficulties the appellant’s wife faces, it is evident from the description that the difficulties she has have a serious effect on her.

[18] The appellant also wrote (translated on 22 August 2003), and expanded on the grounds for the appeal. The key points are:

● The only ophthalmology centre that specialises in grave retinoblastoma cases in Chile is in the city where the family experienced their difficulties with the appellant’s brother and criminal elements.

● The appellant could not meet the cost of treatment for the consequences of his son’s retinoblastoma. That being due to a combination of the high cost,

and the inability to earn a reliable income from having to change constantly to avoid danger.

● The family’s needs are being met in New Zealand.

● The youngest child would be discriminated against in Chile because of his history of retinoblastoma, and would be forced to attend a special school; whereas in New Zealand he is treated normally, and is happy and succeeding.

● The appellant’s wife is badly affected by depression and anaemia, and is recovering in New Zealand.

● The appellant’s older son is now settled in school in New Zealand, and the community, and sees no opportunity outside New Zealand.

● The appellant is well-placed for employment opportunities in New Zealand. [19] The information concerning the youngest child’s condition left some

uncertainty. Accordingly, the Authority’s secretariat wrote again and sought further

particulars concerning likely further treatment. Furthermore, it was pointed out that the family had come to New Zealand more than a year after surgery on the youngest child, and some six months after his chemotherapy was completed. Further comment was invited on those matters, including the implications regarding the availability of treatment, and the likely cost of ongoing treatment.

[20] The surgeon treating the youngest child supplied a further report. The report described the foreseeable ongoing care:

“With [the child’s] history of bilateral retinoblastoma, he will require regular ophthalmic examination through the Eye Clinic as an outpatient to examine his retina to ensure there is no recurrence of tumour activity.

To date his ocular disease has been quiescent. So far, I would expect that he has excellent vision in his remaining eye. As he grows older the risk of further tumour activity does diminish with the need for further treatment. However, I would recommend regular visits on an indefinite basis.

Gene studies have not been undertaken whilst he has been under my care in Auckland. However, as he has bilateral retinoblastoma this would indicate that he has a germ line mutation in the RR1 gene. This means that he is at increased risk of developing secondary tumours in other parts of his body as he gets older.

Vigilance of any symptoms should therefore be necessary and immediate attention by your family doctor is important to follow up on these.

I am unable to comment on the availability of the appropriate management in Chile. At this stage, I do not foresee [DF] requiring ongoing tumour treatment. He has

excellent vision in his remaining eye and therefore does not have any special

needs because of his vision. He does wear an ocular prosthesis that may require changing for cosmetic appearance, perhaps on a 1-2 yearly basis. This would be with an ocularist.

I am unable to comment on the cost of assessment and fitting of this.”

[21] In addition the appellant wrote, and explained that he had been in a good position of employment, and had been able to afford medical treatment for his child’s retinoblastoma. At the present time his retinal examination cost $1,300 every six months, and the prosthesis $2,000 every two years. The appellant claimed that the same treatment in Chile would cost tens of thousands of dollars. He made no attempt to explain how an eye examination, and maintenance of a prosthesis could cost so much more in Chile. In this letter, the appellant said his work skills were very specialised, and he could only work in a particular city in Chile.

[22] In terms of addressing the findings of the RSAA regarding ongoing risk, the only additional material was the assertion from the appellant that the family faced ongoing danger. There was neither additional factual material, nor an analysis that suggested the reasoning of the RSAA was wrong.

_{Relevant Legislation}

[23] 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].”

[24] 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 the appeal are received by this Authority within the 42-day period.

[25] 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)).

[26] 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)).

[27] 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

_{Threshold for allowing these appeals}

[28] 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.”

[29] 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.”

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

_{The appellants’ claims relating to fear of returning to Chile}

[31] This Authority does not, in any sense, have a jurisdiction to hear appeals from decisions of the RSAA. The two Authorities each have a different and independent jurisdiction. However, the same factual circumstances can be material in both jurisdictions, which is the case in these appeals.

[32] 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.

[33] The credibility of the family’s claims was sustained in the refugee status process. I adopt that finding.

[34] Accordingly, I proceed on the basis that the family had been threatened in the manner previously described. The difficulty with the claim, in the RSAA’s assessment, was that while threats had been made there had been opportunity to harm the family, and that had not happened. Furthermore, the source of the threat was a very small number of people, not a widespread threat extending to the Government of Chile as the appellant claimed. While they were in prison the people who made the threats did not have the influence, or perhaps the inclination, to harm the family.

[35] Viewing the material as a whole, I can only reach the same view as the RSAA. I accept that the family became involved unwittingly in an unpleasant incident. They were threatened, and have no doubt become very frightened. While the family genuinely believe that they are at serious risk in Chile, the facts do not support their understandable subjective fears.

[36] It is important to appreciate that, as noted, the jurisdiction of this Authority encompasses wider issues than a determination of refugee status. Subjective fears are relevant to the present jurisdiction, which is not the case when determining refugee status. Accordingly, while reaching essentially the same view regarding the danger to the family in Chile as the RSAA, that is not determinative of this appeal it simply establishes one of the grounds of the appeal.

_{Family issues and approach to determination}

[37] The decision of the Court of Appeal in Tavita v The Minister of Immigration [1994] 2 NZLR 257 addresses the issue of children born in New Zealand to persons who are not entitled to remain in New Zealand permanently. In that case, the Court held that where such children (they are New Zealand citizens by birth) are involved, New Zealand’s obligations under the ICCPR, and the Optional Protocol thereto together with the United Nations Convention on the Rights of the Child 1989 must be taken into account.

[38] This is not a case where there is a New Zealand born child whose interests are affected. However, the decision in Tavita does emphasise a more general point. A high value is accorded to family units, and maintaining their integrity. However, that cannot be elevated to a general proposition that international treaties mean that family considerations outweigh the conventional restraints that countries place on migration into their territory.

[39] Furthermore, it is necessary for this Authority to consider all the elements supporting the appeals. If a single element reaches the threshold for allowing an appeal then of course the appeal will be allowed; however if the cumulative weight of all elements reaches the threshold the appeal will also be allowed, it does not matter that no single element is sufficient. Clearly, in the present case it is important to have regard to the totality of the circumstances, the “whole picture”, as there are multiple elements in support of the appeals.

[40] Furthermore, the statutory test for determining these appeals does not confine the consideration to harm or injustice to appellants alone. If removal of an appellant has harmful effects on others, then that must be considered. In the present case while the appellant’s wife does not formally have an appeal, I have had regard to effects on her, as they inevitably impact on the whole family – including dependent children. Similarly, whether or not the dependent children are removed impacts on the appellant and his daughter. In short, the appeals concern the whole family, because the material before me established that the fate of each family member impacts on the other members in this particular case. Accordingly, I have considered the circumstances of the family as a whole, without finding it necessary or appropriate to distinguish between the various members. Accordingly, the fact that the appellant’s wife, and possibly the dependent children,

are not appellants makes no difference to either the issues I have considered, or the outcome of the appeals.

[41] It is of course impossible not to have considerable sympathy for the appellants and their family, it is evident they have suffered a great deal of dislocation from the combination of health difficulties, combined with their fears of being harmed. However, the issue is whether the appellants and their family should effectively be granted asylum, rather than have to return to the country where they are citizens.

[42] It is not realistic to contend that simply because a person has suffered greatly in their country of origin, it is unjust or unduly harsh to expect them to return; and that they have the right to demand residence in another country. Regrettably, there is a significant portion of the world’s population that suffers conditions that by New Zealand standards would be considered harsh and unacceptable. None-the-less it is beyond New Zealand’s resources to provide asylum either to all of the world’s population that faces serious adversity; or to the group of such people who have either transported themselves to New Zealand, or can do so.

[43] It is virtually universal for countries to have a high threshold before extending asylum on the basis of difficulties in a claimant’s country of origin, whether the difficulties in the country of origin are economic, natural disasters, social difficulties (general or peculiar to the claimant), conflict in the myriad of ways it is manifest, or other kinds of adversity. One mechanism for providing asylum is the United Nations Refugee Convention of 1951, and it is very specifically defined. An appeal to this Authority is a much more general mechanism provided by New Zealand. If an appellant reaches the threshold, residence can be granted on the basis of the whole range of humanitarian circumstances, having full regard to both objective and subjective elements. However, perhaps in part due to the question of resources, the threshold for allowing an appeal is significant (as is evident from the authorities referred to).

_{Determination}

[44] I readily accept that the family has suffered to a significant degree in Chile. However for the reasons already addressed, I do not consider that it has been

established either that the family is at risk of serious harm anywhere in Chile, or that they cannot safely relocate elsewhere in Chile.

[45] That conclusion has an impact on the health issues that relate to the youngest child. The medical reports do not indicate there is likely to be a high level of treatment on an ongoing basis. The appellant claims that the danger to the family would be such that they would effectively be constantly moving to avoid danger, that would compromise his ability to earn an income, and consequently necessary medical treatment would be out of reach.

[46] I can only conclude that the appellant’s fears do not match the established facts. I am not satisfied that the family would be forced to live an iterant life.

[47] The appellant claims that medical treatment would be very expensive, the surgeon treating the child could not quantify the cost. However, it is clear that the surgeon contemplates relatively low-level intervention in the form of eye examinations, and maintenance of a prosthetic eye.

[48] The material does not satisfy me that the family will be unable to meet the needs contemplated by the surgeon in Chile. It is significant that the family was able to access high level services to treat retinoblastoma in Chile. The claim that a much less significant care is unaffordable due to the threat of harm is not reconcilable with my finding regarding the real extent of that threat.

[49] The appellant’s subjective concerns may be a barrier to re-establishing a stable income. However, the appellant’s initiative and industry in coming to New Zealand and establishing himself in the New Zealand community and in employment suggest he will be able to address the issues when forced to make a more objective assessment of the family’s circumstances on returning to Chile.

[50] It is very difficult to accept that the foreseeable medical needs of the youngest child will cost as much as the appellant claims. There is no attempt to explain why the cost of eye examinations and prosthetic maintenance should be many times as much in Chile as they are in New Zealand. This assertion lacks both substantiation, and plausibility. Furthermore, the appellant’s claims that his work skills are so specialised he can only work in one city in Chile are not convincing. Given the appellant’s demonstrated ability to work (using his

specialised skills) in a different country, with language and cultural barriers, it is not convincing that he could not adapt to different work in Chile. Indeed, the evidence establishes that the need for relocation is only an alternative, and it may well be the family can relocate back to the city where they formerly lived.

[51] I have considered the mental health issues affecting the appellant’s wife. However, they are not so grave as to weigh heavily in relation to the statutory test.

[52] I give some weight to the concern that the youngest child will be discriminated against. However, given his good level of functioning, and the lack of any evidence beyond making that claim; I am not satisfied that this issue is sufficiently serious to carry great weight. However, more significantly, it cannot realistically be asserted that there is any basis for thinking that a child who is a citizen of Chile who has suffered from retinoblastoma will be treated so badly they cannot be expected to live in their country of origin. The claim that Chilean society treats children who suffer retinoblastoma badly does not sit well with the fact that sophisticated and successful medical care is available to treat the condition in Chile, and the appellant’s child received such treatment there.

[53] The appellant claims that the only city in Chile where treatment for the youngest child is available is the city where the threats originated, and they cannot go there. The city is a very large one. I am not satisfied the evidence establishes that travelling there from time to time to access medical treatment could pose any real danger (if relocation is in fact necessary).

[54] I have also considered the fact that the family is established in New Zealand. However, it is not a substantial factor, it is not at all exceptional and could only be a factor that adds incrementally to the other elements.

[55] In my judgement the family’s circumstances as a whole are not such that it is either unjust or unduly harsh to require that the family to return to Chile, and address the difficulties they face there. It is neither unjust or unduly harsh to expect this family to face the difficulties they have in the country where they are citizens.

_Conclusion

[56] The appellants’ appeals fail. Viewing the grounds in totality, they do not reach the threshold for allowing these appeals.

[57] As the appeals fail on the first limb of section 47(3), it is unnecessary to consider whether “it would not in all the circumstances be contrary to the public interest to allow the [appellants] to remain in New Zealand.”

[58] In dismissing these appeals I note for the attention of the appellants and their advisor/s 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.

[59] The appeals are dismissed.

_{DATED at Wellington this 5}th _{day of March 2004}

G Pearson

Removal Review Authority