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Removal Appeal No: 46330 [2006] NZRRA 107 (29 June 2006)

Last Updated: 22 January 2012

REMOVAL REVIEW AUTHORITY
NEW ZEALAND

AT WELLINGTON REMOVAL APPEAL NO: 46330

Before: V J Shaw (Member)

Representative for the Appellant: P Kündig

Date of Decision: 29 June 2006

DECISION

INTRODUCTION

[1] The appellant is a citizen of Ukraine, aged 28 years.
[1] The appellant arrived in New Zealand on 19 October 2004. His work permit was revoked on 17 August 2005 effective from 8 September 2005. On 19 October 2005, the Authority received this appeal against the requirement to leave New Zealand, pursuant to section 47 of the Immigration Act 1987 (“the Act”).
[1] The principal issue in this appeal is whether the appellant’s relationship with a New Zealand citizen and her young son gives rise to exceptional humanitarian circumstances.

BACKGROUND

[1] The appellant is a Ukrainian seaman. He declares as his immediate family his parents residing in Ukraine.
[1] On arrival in New Zealand on 19 October 2004 the appellant was granted a work permit current to 11 December 2005 in accordance with a group visa issued in Moscow on 14 October 1994 authorising the employment of foreign crew on X fishing vessel. At the completion of his employment contract the appellant did not

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leave New Zealand in mid-2005 with the other crew members from X fishing vessel who departed New Zealand.

[6] On 15 August 2005, the appellant submitted an application for a work permit on partnership grounds. The application was supported by AA, a New Zealand citizen with whom he had formed a relationship.
[6] On 17 August 2005, Immigration New Zealand (“INZ”) issued a Notice of Revocation of the appellant’s work permit effective from 8 September 2005.
[6] On 26 September 2005, INZ wrote to the appellant, via his representative, requesting comment on potential prejudicial information to which the representative responded with a detailed submission.
[6] On 13 October 2005, INZ advised that it declined to grant the appellant a further work permit primarily on the ground that he was not "a bona fide applicant” as he had breached the terms of his work permit.
[9] The appellant has no criminal convictions in New Zealand or Ukraine. THE APPELLANT’S CASE
[9] The grounds of appeal are set out in the representative’s written submission. These can be summarised as follows:

• (a) The appellant’s relationship with AA began shortly after his arrival in
  New Zealand although they were not in a position to live together until mid-June 2005.
• (a) INZ declined the appellant’s application for a partner based work
  permit after wrongfully concluding that the appellant was not “a bona fide applicant” because he had breached the conditions of his initial work permit. Yet at the time he submitted his application the appellant genuinely believed he was able to remain in New Zealand until 11 December 2005. Even if this was not so, as the appellant now accepts, it was a matter which went to character assessment and was not relevant to the bona fides of his partnership with AA.

(c) The INZ decision to decline the appellant a further partner based

work permit was essentially predetermined. Assessment of the

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application was inflexible and “poisoned” by the negative view taken of appellant’s failure to leave New Zealand with the other crew members. There was no consideration given to the nature of the appellant’s relationship with AA or their circumstances.

(d) Against this background, the chances of the appellant being able to
return in the future to New Zealand on a temporary permit are virtually nil. INZ in Moscow would be influenced by the earlier negative assessment of the appellant.
(d) The effect of removing the appellant would be to permanently
separate him from AA and her 10 year old son, BB. It is not realistic for AA and her son to travel to Ukraine and stay there for an extended period in order to establish the bona fides of their relationship for the purpose of submitting a residence application.
(d) AA’s son, BB, suffers from dyspraxia and other disabilities and he
requires extra care and support. He has developed a close relationship with the appellant. He would not cope well with having to live in Ukraine and would be adversely affected by his and his mother’s separation from the appellant.

[12] Submitted in support of the appeal was the following evidence:

(i) Letter of support from AA in which she describes her meeting the appellant in October 2004, the nature of BB’s disability and his reliance on her, the bond that has developed between BB and the appellant and her anxiety that they are able to stay together as a family.
(i) Copy of AA’s New Zealand passport.
(ii) Copies of two letters written by the appellant's representative to INZ in
respect of revocation of the appellant’s work permit and his application for a partnership based work permit.

(iv) Miscellaneous invoices and postal envelopes addressed to the
appellant and AA to corroborate that they share the same address
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(v) Birthday card from BB to his mother written in both English and
Russian.
(vi) Two photographs showing the appellant with AA and her sister and the appellant with AA’s father and a friend.

[13] On 17 May 2005 the Authority wrote seeking additional information including medical evidence in respect of the child BB. In response the Authority received the following additional information:

(a) A lengthy letter from AA describing how, in the months since the
appeal was filed in October 2005, she, BB and the appellant have continued to grow as a stable family unit. She also writes in detail of BB’s relationship with the appellant which will be referred to below.
(a) A letter of support from AA’s sister in which she refers to the
appellant’s patient and understanding nature, his supportive and loving relationship with AA, the supportive role he plays in BB’s upbringing and her and her family’s concern for the well-being of AA and BB should they be forced to separate from the appellant.
(a) Letter of support from BB’s father. He states that he has a good
relationship with his son who stays with him every second weekend and a week or so over the Christmas holidays. During the last 12 months that the appellant has been a part of BB’s life his father has noticed that BB’s awareness of Russian culture has increased and that he prides himself on being able to speak a little Russian. He often tells his father about the things he does with the appellant with whom he seems to enjoy spending his time. BB and the appellant are said to have developed a good friendship and BB is benefiting from the stable environment that his mother and the appellant are providing for him. Should the appellant be forced to leave New Zealand it would be very upsetting and disruptive for BB.
(a) Letter of support from neighbours confirming that they first met AA
and the appellant when they moved to their present address in April 2005 and that since this time they have found AA and the appellant have been great neighbours and good friends.

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(e) A second letter of support from neighbours who state that they have
been neighbours of AA for the past 7 years. Over the 12 months or so that the appellant and AA have been living together they have observed that the appellant is a very caring man with a loving and supportive nature towards AA and BB. BB has multiple disabilities and special needs; the appellant has become a great father figure to BB and a secure bond has developed between them.
(e) Letter of support from a friend which confirms the growing
relationship between AA and the appellant and the attachment between the appellant and BB. They are a happy family and BB especially a very happy boy. The friend, who is Russian with a Ukrainian partner, is concerned that BB would not adapt well to living in the Ukraine.
(e) Letter of support from AA’s mother and father confirming that AA, BB
and the appellant have become a family and that AA and the appellant enjoy a trusting and caring relationship. The appellant understands BB’s special needs and with his help and love BB has become a well rounded young boy. Splitting the family up would not be in the best interests of all concerned.
(e) Letter from the Electorate Secretary for a Member of Parliament who
states that she first met the appellant and AA in August 2005 and has seen them on several occasions since. They appear to have a total commitment to each other while BB has grown in confidence and is obviously happy in the appellant’s company.
(e) Three envelopes posted in the Ukraine and addressed to the
appellant at the address he shares with AA.
(e) Copies of a bank statement for an account in the names of AA and
the appellant.
(e) Two photographs of the appellant and AA.
(e) Letter from a paediatric neurologist to BB’s general practitioner dated
21 June 2004 which sets out a diagnosis of neonatal polycythaemia and hypoglycaemia. Problems identified are complex partial
seizures, learning difficulties and problems with communication and

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socialisation. The general practitioner has added a handwritten note, dated 25 May 2006, to the effect that BB’s condition remains essentially unchanged.

(m) Psychiatric assessment summary dated 9 April 2002 when BB was aged 6 years. The report refers to BB having epilepsy and developmental delays. He had presented with very high anxiety levels. For example, prior to commencing on Epilim in the year prior, he would ask the same question hundreds of times during one day. He was described as being unable to dress himself and once dressed in the morning by his mother he was not able to remove items of clothing. He was also described as very clumsy and unco-ordinated with his speech at times quite difficult to understand. He also had poor social relations with other children.
(n) An occupational therapy assessment report dated 7 May 2002 in respect of BB. This records that BB had been referred for assessment by a clinical psychologist regarding delayed development and possible motor planning difficulties. The report is a detailed assessment of BB’s motor performance and fine motor/visual motor skills. In summary his assessment results
showed characteristics of a bilateral sequencing dyspraxia, with specific difficulties in postural control, motor co-ordination and praxis, fine motor and visual motor interactions.
(o) Letter from an educational centre dated 20 May 2006 which has assessed BB with a view to designing a learning programme for him. He is described as having a short concentration span and easily distracted by other children. In terms of reading, spelling and mathematics he is two to three years behind actual age.

STATUTORY GROUND OF APPEAL
[14] This appeal has been lodged pursuant to section 47 of the Act, the relevant provisions of which are:

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“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
(a) 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.”

[15] As the Court of Appeal observed in Rajendra Patel v Removal Review Authority & Anor [2000] NZAR 200, 204, in respect of the former and substantially similar section 63B(2):

“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 Removal Review Authority [1994] NZAR 509, 519).”

ASSESSMENT

[15] The Authority has been provided with the INZ file in relation to the appellant and has also considered the submissions and documents provided on appeal.

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Unfairness

[17] Mr Kündig has expressed concerns about the manner in which INZ officers dealt with the appellant’s application for a work permit on partnership grounds. In particular, he submits that the decision to decline the application was predetermined and “poisoned” by the negative view taken of the appellant’s failure to leave New Zealand with the other crew members at the end of his employment contract.
[17] Such unfairness, Mr Kündig argues, resulted in no proper assessment being made of the appellant's relationship with AA and the mistaken finding that the appellant was not a "bona fide applicant". Such a prejudicial finding has the potential to unduly influence the assessment of any future application the appellant may file from offshore for a further visa on partnership grounds. To place the appellant in such a disadvantaged position will further accentuate the negative effects of his removal particularly for his New Zealand partner and her son.
[17] The Authority is mindful that it does not sit in review of INZ decisions to decline or revoke temporary permits; L v The Removal Review Authority and the Chief Executive, Department of Labour (HC, Wellington, CIV-2005-485-1601, 3 March 2006). The mere fact that there may have been errors or unfairness in the decision to revoke a temporary permit or decline to grant such a permit does not, of itself, equate with exceptional humanitarian circumstances. However, where unfairness contributes to an overall situation that can properly be described as exceptional humanitarian circumstances it may well be relevant to this Authority’s assessment of whether the statutory threshold of exceptional humanitarian circumstances has been met. Patel v Removal Review Authority [1994] NZAR 419 at 427 and Jiuming v Department of Labour [1998] NZAR 219 at 225.
[17] It is proposed therefore to first assess the evidence in respect of the appellant's relationship with AA and BB so that the complaints of unfairness can be considered within the overall context of the consequences of removal.

Relationship with New Zealand partner and her son

[17] The evidence establishes that the appellant and AA formed an intimate relationship in the weeks after the appellant arrived in New Zealand when his ship still remained in port. Thereafter they continued to see each other whenever the ship returned to port to unload and after fishing was completed in May 2005. The

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appellant eventually was free to stay permanently in AA’s home from around the middle of June 2005. Thereafter they have continued to live together.

[22] There is extensive corroborating evidence from family, friends, neighbours and the father of BB as to the warm and loving relationship between the appellant and AA: there is no apparent reason to question the genuineness of the relationship.
[22] Not only has the appellant formed a close relationship with his partner AA but the evidence is very clear that a bond has developed with AA’s young son BB.
[22] It seems that AA separated from BB’s father when BB was aged 2 years.
[22] According to the medical evidence BB, as well as suffering from epilepsy, has suffered from a range of physical, psychological and social problems, the overcoming of which has required considerable effort and commitment on the part of his mother over the years.
[22] AA has written in some detail about BB’s excessive dependency on her, her efforts to provide him with a secure environment and to prepare him for his teenage years. It is apparent that BB enjoys a good relationship with his father with whom he spends every second weekend and one week during the Christmas holidays. However, a clear theme that emerges from the various letters of support from family members and friends is the positive benefits BB has derived from being able to live with his mother and the appellant within a normal family unit.
[22] According to AA, the appellant provides a full-time male role model for BB; BB strives to emulate him and has grown in confidence.
[22] AA’s sister, writing of the relationship between the appellant and BB refers to the appellant being very involved in BB’s upbringing, his compassion and understanding of BB and the stability and routine he has been able to provide. Similarly AA’s parents and two sets of friends have also written of the positive relationship between BB and the appellant, the appellant’s understanding of BB’s special needs and BB’s new happiness and obvious attachment to the appellant.
[22] The Authority places particular weight on the evidence of BB’s father. The father wrote a letter of support for the appellant’s application for a partnership work permit filed in August 2005. He candidly acknowledged his initial concerns at AA’s new relationship but stated that over the months he had come to realise that the

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appellant was genuine in his desire to make a life with AA and BB. He had, he wrote “no hesitation or concerns whatsoever that the appellant is a positive influence on my son’s life”.

[30] In his recent letter in support of this appeal BB’s father writes of his own positive relationship with BB and how they enjoy their time together. Concerning his son’s relationship with the appellant he describes how BB often speaks to him of the things he has done with the appellant with whom he enjoys spending time. BB and the appellant have a good friendship and the stable environment being provided by AA and the appellant can only be of benefit to BB. BB is now comfortable in both his family units and, it is his father’s opinion, that requiring the appellant to leave New Zealand would be very upsetting and disruptive for BB.
[30] The most likely consequence of the appellant being removed from New Zealand would be separation of family members. The Authority is in no doubt that separation would be emotionally distressing for AA and in particular for BB. BB is a child who has struggled with a range of disabilities including, at times, excessive anxiety. Over the last year he has responded most positively to the appellant’s affection and encouragement and the family environment that the appellant’s relationship with his mother has allowed for.
[30] Separation from the appellant for an indefinite period would be highly unsettling for BB who, perhaps more than the normal child, needs security and routine. Separation would risk retarding the rate of progress BB has managed in recent times. The stress and unhappiness his mother would also experience following separation from a new partner would also have a negative impact on BB’s wellbeing.
[30] AA considers that the alternative of accompanying the appellant to Ukraine is not a practical option for BB. She very much doubts he would have access to the medical and other specialist educational services that he currently enjoys while he would also be removed from the support of her own family and his father. In short, she believes, it would be a destabilising and backward step just when BB has made such positive progress in overcoming some of his difficulties. The Authority accepts that this is a realistic assessment of the situation.
[30] The Authority is required to have regard to the Convention on the Rights of the Child 1989. The relevant provisions call for a balancing exercise with the basic rights of the family and any children as the starting point; Tavita v Minister of

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Immigration [1994] 2 NZLR 257 at 265 and Prasad v Chief Executive, Department of Labour [2000] NZAR 10 at 14.

[35] In the present case I am satisfied that the interests of BB must be given significant weight. His circumstances, I find, constitute exceptional circumstances of a humanitarian nature which make it unjust or unduly harsh for the appellant to be removed from New Zealand.
[35] In balancing the needs of BB against the need to maintain the integrity of New Zealand's immigration laws it is relevant to consider the background to the appellant becoming unlawfully in New Zealand and the allegations of unfairness and pre-determination that have been made.

Dealings with INZ

[35] The Authority has carefully read the INZ file, in particular, the correspondence and file notes concerning the appellant's application for a partnership work permit filed on 15 August 2005. It is unnecessary for the purpose of disposing of the issues raised by Mr Kündig to set out a detailed account of the sequence of events. However in assessing the appellant's claim that he did not understand that he was in breach of his work permit, the key factor relied on to decline the application, it is useful to set out the method of issuing the group work visa which included the appellant.
[35] The appellant was one of a large number of seamen included in a group work visa submitted by a “group leader”, in this case the master of the vessel involved in a joint venture. INZ records show that the visa was approved on the basis that employment contracts for the crew members had been provided and there was a guarantee of repatriation, minimum wages and medical costs.
[35] A copy of the appellant’s individual employment contract on the INZ file establishes that the contract came into force from the time the appellant boarded the ship and was for a period of six months plus or minus two months, or in other words between four and eight months. There was no contractual requirement that the appellant leave New Zealand on the completion of the contract although if he did not do so he became liable for the costs involved.
[35] INZ has confirmed to the Authority that at the time the group visa was issued the practice was to issue one approval letter to the agent responsible along with an enclosed leaflet in Russian which advised crew members that it was illegal

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to stay in New Zealand beyond the time stated on the visa, that it was the holder's responsibility to leave New Zealand prior to the expiry date and, if the holder failed to do so, INZ had a right of removal. It was the responsibility of the agent to communicate this requirement to the crew members.

[41] Although his work contract was for a maximum of eight months, on arrival in New Zealand on 19 October 2004, a simple stamp was placed in the appellant's seaman’s passport authorising him to be in New Zealand for the purpose of work until 11 December 2005. The nature of his work was not specified though it was stated to be “subject to conditions in your visa”. The stamp also stated “You should leave New Zealand before expiry of your permit or face removal”.
[41] It would seem that the only significant information about the conditions of his work permit that would have been conveyed to the appellant either via the brochure (assuming he even saw it) or on his work permit was that he was required to leave New Zealand at the expiry of his permit or face removal.
[41] In correspondence with INZ the appellant advised that he had met with the captain and fleet manager in June 2005 and advised of his intention to remain in New Zealand because of his relationship with AA. He had been warned that if any difficulties arose with that application he could only remain in New Zealand until 11 December 2005 when his permit expired. He was not told he would be in breach of his permit if he failed to leave New Zealand and thereby gained the impression that he was entitled to be in New Zealand up until December.
[41] In two letters sent to INZ from the fleet manager during August 2005, after he was challenged as to his reasons for not notifying INZ that the appellant had not left New Zealand with the other crew at the end of June, the fleet manager explained in obviously ambiguous terms that he "explained the repercussions of him staying here in New Zealand".
[41] The appellant also maintains (and it is corroborated by other evidence) that prior to this meeting he visited INZ and sought advice as to staying in New Zealand from an officer at the counter. He was told that he could make an application for a partnership based work permit. It is obvious from the
documentation that forms part of the application that he set about preparing this application from mid-June 2005. However a delay ensued in filing the completed application because of the need to obtain a police check and other documents from Ukraine and have them translated.

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[46] There is a delay of some six weeks between the end of June 2005 when it can confidently be said that the appellant’s seaman’s contract was at an end and the filing of his application for a partnership based work permit on 15 August 2005. Technically, as the work permit granted on 14 October 2004 was in relation to his employment contract to work as a seaman on board a named vessel, once that work contract was completed the appellant’s entitlement to the work permit ceased. The appellant says he did not understand this implied term of his permit and that he had assumed he was able to remain in New Zealand up until 11 December 2005.
[46] That he might have mistakenly made such an assumption is plausible when considered against the background discussed above. I am prepared to give the appellant the benefit of the doubt.
[46] Mr Kündig has submitted that the determination of the work permit application was pre-determined and "poisoned" by the negative view adopted of the appellant's failure to leave New Zealand with the other crew.
[46] It is clear from the file that soon after INZ received the application a B & I officer became involved and that this officer was not pleased at the fleet manager's failure to formally notify INZ in writing of the appellant’s failure to depart New Zealand in June 2005. She appears to have mistakenly been of the view that the failure of the appellant to leave New Zealand with the other crew was, in itself, a breach of his work permit and that as a foreign crew member he was not entitled to apply for a further permit in New Zealand.
[46] A file note made by the B & I officer on 16 August 2005 records: `I have advised [immigration officer determining the partnership application] that the client would not be entitled to any permit in New Zealand and that he should refer the file to B & I”.
[46] A further file note dated 17 August refers to a telephone conversation the B & I Officer had with AA. It states:

`I detailed the situation to her regarding the contractual obligation of foreign seamen and that he was not entitled to any other permit while in New Zealand. He has failed to repatriate and must do so immediately before he can request anything else. I advised her that she could apply to sponsor him back but he must do that from his home country.”

[52] Looking at the history of the matter in the round the Authority concludes
that, at the very least, the appellant’s attempt to change to a partnership based
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work permit was marred by misunderstanding on both sides that resulted in little or no consideration being given to the nature of the relationship between the appellant and AA which was the very basis of the application.

[53] Mr Kündig’s submission that there is nil likelihood of the appellant being successful in any future application filed from off-shore may well be overstating the case. However, the finding that he was not a bona fide applicant and the dismissal of every explanation provided by the appellant and AA concerning their motivations, conduct and relationship would not augur well for a speedy return to this country.
[53] The impact of the appellant's removal I find to be significant. Realistically it will lead to indefinite separation from his partner and BB. The strain this will place on AA and the harmful consequences for BB has been outlined above. When considered against the overall background, I find that the consequences for BB outweigh the need for compliance with normal immigration procedures.
[53] I find that there are exceptional circumstances of a humanitarian nature such that it would be unjust or unduly harsh for the appellant to be removed from New Zealand. It would not be contrary to the public interest to permit the appellant to remain in New Zealand.

CONCLUSION

[53] Pursuant to section 52 (2)(a) of the Act I direct INZ to grant to the appellant a work permit for a period of 18 months. This will enable him to lodge a residence application on the basis of his partnership with AA. He should not delay in making this application. In the event that his residence application has not been determined prior to the expiration of the 18 months, INZ should grant to the appellant a further work permit for such a period as may be necessary to enable his application to be finally determined.
[53] The appeal is allowed.

V J Shaw

Member

Removal Review Authority
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