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MN; Removal Appeal No:AAS44794 [2004] NZRRA 9 (2 April 2004)

Last Updated: 19 November 2011

Appeal No AAS44794

IN THE MATTER of the Immigration Act 1987

and

IN THE MATTER of an appeal under Section

_{47 of the Act by [MN]}

_{DECISION OF THE REMOVAL REVIEW AUTHORITY}

[1] This is an appeal from [MN] (“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 the former Republic of Yugoslavia and his birth date is [X] May 1980.

[3] The appellant arrived in New Zealand on 30 September 1999 and on arrival was granted a visitor’s permit valid to 30 December 1999. Thereafter he was granted by the New Zealand Immigration Service (NZIS) work permits, the last of which expired on 15 February 2002.

[4] The reason that the appellant was granted work permits was that on

15 February 2000 he applied for refugee status. He was interviewed by the Refugee Status Branch (RSB) of the NZIS and a decision declining the appellant’s claim for refugee status was issued on 21 November 2001. He did not appeal that decision to the Refugee Status Appeals Authority.

[5] On 14 March 2002 his appeal to this Authority was received by the

Authority. In that appeal he disclosed the following:

(a) his mother was residing in New Zealand on a work permit; (b) he has a brother and sister residing in Yugoslavia;

(c) he is married to [BW], a New Zealand citizen;

(d) he was convicted of an offence of injuring with intent on [X] October 2001 for which he was sentenced to five months periodic detention plus 15 months suspended sentence.

[6] In support of his appeal the following were enclosed:

(a) a copy of his marriage certificate, the marriage having occurred at [L] on

[X] October 2001;

(b) an undated letter of support from his wife;

(c) letter dated 3 March 2002 signed by the appellant; (d) copy of the RSB decision of 21 November 2001.

[7] Since the appeal was lodged, a letter dated 10 March 2002 from [AH] has been received by the Authority, this letter being in support of the appellant’s appeal.

[8] On 17 April 2003 the Authority’s Secretariat wrote to the appellant’s solicitor seeking information in respect of the appellant. The information sought in particular was that the Authority requested a copy of the Police summary of facts and the sentencing notes of the judge who sentenced the appellant on [X] October

2001 at the [W] District Court. In addition, the appellant was invited to make submissions relevant to section 7(1)(b) of the Immigration Act 1987.

[9] On 5 May 2003 the appellant’s solicitor wrote to the Authority enclosing a copy of the Police summary of facts together with a statement from the appellant and one from his wife, [BW]. Subsequently, notes of the Judge’s sentencing the appellant were received by the Authority on 9 July 2003.

_{Grounds of Appeal}

[10] The grounds of appeal are set out in the appellant’s solicitor’s letter to the

Authority dated 13 March 2002 and can be summarised as follows.

(a) The test in section 47 follows closely the one in the former section 63B. In the recent High Court decision of AB & C, a family of Peru v Department of Labour the High Court emphasised the importance of international conventions and their impact on immigration cases. The immigration conventions protecting the family are a relevant consideration as to whether there are exceptional circumstances of a humanitarian nature.

(b) The appellant is a young man who came to New Zealand on 30 September

1999 with his mother. They left Yugoslavia at a time of great upheaval and uncertainty. Yugoslavia has had a period of instability and wars and many thousands of people have fled that country to seek resettlement in other European countries and elsewhere. The appellant applied for refugee status on 15 February 2000 and that was declined on 21 November 2001

(c) A copy of the refugee decision sets out the background of the appellant and his life in former Yugoslavia. It is apparent that the appellant had a great potential in that country, being of above average intelligence and showing good prospects in sport. He was opposed to the war that Yugoslavia was in and was not prepared to fight in that war and left the country. His credibility was accepted by the RSB. The refugee decision appears to have been declined essentially on the grounds that there has been some semblance of stability in Yugoslavia and that the former regime has been overthrown. However, as in any war or upheaval it takes a long time for a country to re- establish itself.

(d) An important factor in this case is that the appellant has now formed a relationship and is married to a New Zealand citizen and that it is a genuine relationship of mutual love and affection. The deportation of the appellant would inevitably lead to a break-up of a legally binding marriage. His partner has strongly indicated that she does not wish to leave New Zealand and live in Yugoslavia.

(e) As to the public interest, the appellant has been convicted of a criminal charge of injuring with intent which the appellant deeply regrets. There is

no indication that he is any further risk to the community and was given a suspended sentence.

(f) The couple are available for an interview should the Authority so direct the

NZIS to conduct one.

_{Relevant Legislation}

[11] 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].”

[12] 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.

[13] 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)).

[14] 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)).

[15] 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

[16] For the purposes of this decision I have read with a great deal of care all that has been submitted on behalf of the appellant, letters of support from his wife [BW] and the detailed decision of the RSB given on 21 November 2001.

[17] I also record that the appellant arrived in New Zealand on 30 September

1999 in the accompaniment of his mother, [GN] who has also appealed to the Authority. The Authority is delivering a separate decision in respect of this appellant’s mother.

[18] It is also important to observe that the appellant’s grandparents, Mr and Mrs [N], arrived in New Zealand on [X] December 1997 on which date they both were granted residence permits in New Zealand. The appellant’s grandfather died in New Zealand on [X] September 2001. It is also relevant to record that an uncle of the appellant (a brother of the appellant’s mother) received New Zealand residence on [X] April 1996. The appellant’s sister died tragically in Serbia on [X] January 2004. This information was received by the Authority in respect of the appellant’s mother’s appeal. The Authority has no doubt that the tragic death of the appellant’s sister in Serbia and the death of his grandfather in September 2001

will have had an emotional affect on him and are relevant matters in respect of his appeal to this Authority. It is part of the family dynamic that the Authority must take into account.

[19] In Tupou v Removal Review Authority [2001] NZAR 696 the High Court held that in substance the same approach should apply to section 47 as applied to the earlier form of the legislation under section 63B. In addition, the test that this 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 at 204. Permission to remain on an exceptional humanitarian circumstance basis is to be the exception not the rule. It is not to be allowed to swamp the rule as was stated in Prasad v Chief Executive, Department of Labour [2000] NZAR 10 at page 18.

[20] In his submissions to this Authority, the appellant’s solicitor Mr Petris referred to a decision of the High Court in AB & C, a family of Peru v Department of Labour (High Court, Wellington, AP280/00 8 June 2001), a decision of Justice Durie. Counsel notes the importance of international conventions and their impact on immigration cases. The importance of international conventions was explored in Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA). This Authority has consistently considered and applied international conventions. In particular, the International Covenant on Civil and Political Rights 1966 Article 23 recognises the family as the natural and fundamental group unit of society. Those issues are but part of all matters that this Authority must consider in determining an appeal under section 47 of the Act.

[21] The appellant was convicted and sentenced in the District Court at [W] on [X] October 2001 in respect of an offence of intent to injure. This followed the appellant being found guilty by a jury. As I indicated earlier in the Background to this decision, I have the notes of the Judge who sentenced the appellant on [X] October 2001. I have read the six typed pages of the Judge’s sentencing notes. These notes reveal that the appellant was involved in a consensual fight in a carpark. After the fight was over the appellant stomped the head of his opponent, resulting in quite serious injuries. The assault was described by the judge as a fairly serious one. The judge after considering the appellant’s age and his lack of any previous convictions was of the view that the appropriate sentence was 15 months’ imprisonment but that would be suspended given that the judge was of the view that the appellant had a low risk of re-offending together with his personal qualities and his ability to make something of himself in life. Another factor was

that the appellant’s mother and grandmother are in a new country and they rely upon the appellant because of the standard of English that the appellant has as against that of his mother and grandmother.

[22] As a result of the appellant’s conviction, the provisions of section 7(1)(b) of the Immigration Act 1987 apply to him. This section reads:

“(1) Subject to subsection (3) of this section, no exemption shall apply, and no permit shall be granted, to any person –

(a) Who, at any time (whether before or after the commencement of this Act), has been convicted of any offence for which that person has been sentenced to imprisonment for a term of 5 years or more, or for an indeterminate period capable of running for 5 years or more; or

(b) Who, at any time within the preceding 10 years (whether before or after the commencement of this Act), has been convicted of any offence for which that person has been sentenced to imprisonment for a term of 12 months or more, or for an indeterminate period capable of running for 12 months or more; or

...”

[23] Notwithstanding the fact that the appellant had his sentence suspended, nevertheless he was convicted and sentenced to imprisonment for a term of 12 months. He did not physically enter a prison to see out his sentence but it was hanging over his head in that if he re-offended he ran the risk of in fact being imprisoned. The effect of section 7 is such that a case would have to be made out for a special direction in terms of section 7(3) of the Act or this appeal being allowed and the Authority granting a permit to the appellant notwithstanding the provisions of section 7(1). Section 52(3) enables the Authority to so direct.

[24] Further, section 7(1)(b) continues to apply whether the sentence is of immediate effect or is deferred or suspended in whole or in part (section 7(2)(a)). A further and significant fact so far as the appellant is concerned is that the length of his sentence was such that section 7(1)(b) means that he cannot return to New Zealand for ten years unless he is granted a special direction by the Minister.

[25] I have specifically raised the above provisions of the Act as they do raise serious issues that have to be addressed in this appeal and also whether or not it would be contrary to the public interest to allow this appeal. Before turning to that aspect, there are other issues that need to be addressed.

[26] The first aspect refers to the appellant’s marriage to a New Zealand citizen on [X] October 2001. That marriage occurred whilst the appellant was awaiting the outcome of his refugee status application and his trial in respect of the criminal matter. At the time of their marriage the appellant and his wife would have been aware that there were no guarantees that the appellant would be able to remain in New Zealand permanently. Family relationships are considered and accorded a high value following the Court of Appeal decision Tavita v Minister of Immigration (supra). Articles 23(1) and (2) of the International Covenant on Civil and Political Rights 1966 provide that the family is the natural and fundamental group unit of society and is entitled to protection by society and the state and in (2) the right of men and women of marriageable age to marry and found a family shall be recognised. The principle from the Covenant that the freedom to enter and participate in a marriage and enjoy family relationships is an important right that must clearly be taken into account when applying legislation which governs this appeal. The principle is particularly pertinent when applying the broadly expressed test that an appeal may be allowed in exceptional circumstances of a humanitarian nature where it would be unjust or unduly harsh for the person appealing to be removed from New Zealand. However, in my view it would be simplistic and wrong to conclude that the simple fact of marriage to a New Zealand citizen or person entitled to permanent residence in New Zealand must give the spouse the right to a similar status.

[27] This Authority has in a number of decisions stressed that marriage to a New Zealand citizen or resident or a person who is the holder of a temporary permit would not in itself necessarily meet the high test this Authority has to apply in determining appeals under section 47 of the Act. In other words, marriage itself will not necessarily result in an appellant meeting the relevant criteria.

[28] Notwithstanding the above, I have carefully considered all the evidence and read carefully the letters written in particular by the appellant’s wife and the appellant. I can readily understand that there may very well be emotional harm suffered by the appellant and his wife in the event that this appeal is not allowed. She has made it clear that she does not wish to leave New Zealand. That is a factor I take into account in determining this appeal. However, whether or not she accompanies the appellant overseas is a decision the couple will need to decide.

[29] I recognise that the possible break-up of the family may cause some emotional and financial hardship. The appellant will have the opportunity available

to him to lodge an application for residence whilst he is out of New Zealand following his departure. I appreciate that the appellant will need to address the provisions of section 7 of the Act in the event that he proceeds to lodge an application for residence.

[30] The criminal charge and the sentence that was imposed upon the appellant was significantly serious and would meet the criteria of being contrary to the public interest to allow this appeal. I am not prepared to limit the impact of the sentence imposed.

[31] Another matter that needs to be addressed relates to the appellant’s submission in terms of his country of birth. The appellant’s grandmother returned to Serbia, the Authority understands, to look after or give support to the appellant’s siblings residing in that country. Certainly at the time that the appellant and his mother left Yugoslavia for New Zealand there were major issues facing that country. Since then changes have occurred in that country as recorded in the US Department of State Country Report on Human Rights Practice (2003),

25 February 2004. That report notes that Serbia and Montenegro (SaM) is a constitutional republic consisting of the relatively large Republic of Serbia and the much smaller Republic of Montenegro. Difficulties have continued in that country and the Authority accepts that Serbia will not be transformed overnight. However, there is no evidence before this Authority that this appellant will face any serious or significant difficulties on his return to that country. The appellant has raised the issue of not having a current passport. That is a matter that he will need to resolve with the appropriate immigration officials. It is not a matter that this Authority can resolve.

[32] The appellant’s solicitor in his submissions referred to the decision of the RSB. I have read that decision. The RSB accepted the appellant’s claim as credible. The RSB recorded that the appellant did not have a well-founded fear of returning to Yugoslavia for reasons set out in the decision. The decision was useful to me in being able to understand some of the appellant’s background. The test this Authority has to apply is quite different to the matters that have to be considered under the 1951 Convention Relating to the Status of Refugees.

Nevertheless, this Authority can have regard to the decision of the RSB if considered relevant to an appeal before this Authority. As the appellant’s solicitor pointed out:

“... it will take years before the country returns to some normality, although some progress is being made.”

However, reviewing all the evidence that I have before me satisfies me that this appellant will not encounter significant difficulties on his return to his country of birth.

[33] I am satisfied on all the evidence that I have read that the circumstances of this appellant have not met the test of exceptional circumstances of a humanitarian nature such that it would be unjust or unduly harsh for this appellant to be removed from New Zealand. I am fully aware that this will come as a major disappointment to the appellant but having considered all the evidence both singularly and cumulatively I find that there are no exceptional circumstances of a humanitarian nature such as would make it unjust or unduly harsh for him to be removed from New Zealand. The first statutory requirement of section 47(3) has not been met and accordingly it is unnecessary for me to consider the public interest issue arising under that subsection.

[34] 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.

[35] The appeal is dismissed.

_{DATED at Wellington this 2}nd _{day of April 2004}

W Olphert

Chairman

Removal Review Authority