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Removal Appeal No: 46331 [2006] NZRRA 117 (26 July 2006)

Last Updated: 25 December 2012

REMOVAL REVIEW AUTHORITY NEW ZEALAND

AT WELLINGTON REMOVAL APPEAL NOS: 46331

46332

Before: S Pearson (Member)

Representative for the Appellants: Dilki Rajapakse

_{Date of Decision: 26 July 2006}

_DECISION

INTRODUCTION

[1] The appellants, who are husband and wife, are citizens of Bangladesh, aged 39 and 29 respectively. For ease of reference throughout this decision they will at times be referred to as “the husband” and “the wife”. The appeal includes their elder child, aged four years.

[2] The husband first arrived in New Zealand in October 2002 on a visitor’s visa, and left the country in May 2003. The appellants and their dependent child came to New Zealand in February 2004 on visitor’s visas. The husband obtained a student permit in April 2004. The husband’s, wife’s and child’s temporary permits were revoked in August 2005, effective 15 September 2005 (for the husband) and 16 September 2005 (for the wife and child).

[3] On 19 October 2005 the Authority received the appeals against the requirement to leave New Zealand pursuant to section 47 of the Immigration Act

1987 (“the Act”).

[4] The principal issue is whether ongoing medical treatment recommended as the result of a stroke suffered by the elder child in March 2005 would amount to exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellants to return to Bangladesh.

BACKGROUND

[5] After an initial visit to New Zealand by the husband in October 2002, the appellants arrived in New Zealand in February 2004. The husband obtained a student permit on 6 April 2004 and commenced studies with a college of homeopathy (“the College”) that year.

[6] The appellants’ file contained an application for a long-term business visa and permit which had been accepted for consideration by the New Zealand Immigration Service (NZIS) on 19 May 2004. The representative’s letter, dated

10 May 2004 that accompanied the application, stated that the husband was currently in New Zealand on a student permit, studying for a diploma in homeopathy at the College that was New Zealand Qualifications Authority (NZQA) registered. It was anticipated that the husband would apply for full membership of the New Zealand Council of Homeopaths on completion of his studies.

[7] Evidence of the husband’s Bangladesh Homeopathic Board examination results were supplied along with documentation relating to a homeopathic pharmacy business he had set up in that country.

[8] As part of his proposed Business Plan the appellant stated that he had enrolled at a three-year course of study in homeopathy which comprised workshops every second weekend, and therefore enabled him to work full-time. A certified true copy of an IELTS certificate dated in March 2003 showed an overall band score of 5.0.

[9] The business plan supplied by the appellants’ representative indicated that the husband intended to establish a homeopathic clinic in New Zealand, targeting the 40 to 60-year-old age group and the Asian migrant community.

[10] On 1 April 2005 the appellants’ representative supplied certified copies of documents in support of the husband’s long-term business permit application. The documentation included a Certificate of Achievement in Acute Prescribing dated

4 December 2004 from the College in New Zealand. The translated documents recorded that the husband’s trade licence for his homeopathic pharmacy business was renewed for the period 2004-2005, notwithstanding the fact that he was not living in Bangladesh at the time.

[11] After some correspondence, the NZIS wrote to the appellant on 21 June

2005 stating that he had not fulfilled all of the requirements under the long-term business policy and therefore his application was declined.

[12] As part of its assessment of the long-term business permit application the NZIS received information that the appellant was exceeding the 15 hour per week employment allowed under his student permit.

[13] In response to an NZIS enquiry about the appellant’s homeopathy studies, the College sent a fax on 22 August 2005 to confirm that the appellant’s attendance was 90%. He was described as:

“... a very committed student with high attendance and he is achieving good academic results, in summary he is a model student.”

The appellant was confirmed as being in the second year of a four-year diploma in homeopathy.

[14] In a letter dated 2 September 2005, the appellant’s employer confirmed that he was only working 14-17 hours per week. However, at the conclusion of its assessment the NZIS issued the husband with a Notice of Revocation of a Temporary Permit dated 25 August 2005, effective 15 September 2005 on the ground that he had breached the provisions of the permit by working more hours than he was entitled to. The wife’s Notice of Revocation of a Temporary Permit was dated a day later.

The Appellants’ Dependent Children

[15] A second child was born to the appellants, in April 2004, shortly after the wife’s arrival in New Zealand.

[16] The appellant’s elder child (“the child”), who is included in the appeals as a dependent, was admitted to hospital on 18 March 2005 as the result of suffering a stroke (“a CVA”) which left him paralysed on the right side of his body unable to eat normally or to speak. He was discharged from hospital on 8 April 2005 and initially received treatment as a neurology outpatient.

THE APPELLANTS’ CASE

[17] The representative’s submissions, dated 25 November 2005, begin with a detailed response to the circumstances surrounding the revocation of the appellants’ permits.

[18] The appellant denies that he was working for more hours than was stipulated in his temporary permit. The claim that the NZIS misunderstood the information provided by the manager of the company who employed him is repeated.

[19] It is also submitted that the appellant was into his second year of a four- year diploma in homeopathy, having satisfactorily completed the requirements for the first year. While his application for a Long Term Business Visa had been declined he had been continuing with his studies when his temporary permit was revoked.

[20] A letter dated 4 October 2005 from the College records that the husband is a merit student with excellent attendance and would complete the second year of the homeopathic course in December 2005.

The Financial Situation

[21] The representative points out on appeal that the husband is the sole breadwinner for the family and is currently without a work permit and is therefore struggling financially.

[22] A paediatric social worker’s report dated 31 March 2005 describes the child as requiring “ongoing intensive physiotherapy and occupational therapy”. It is recorded that the husband practised as a qualified homeopathic doctor in Bangladesh for ten years and had been granted a student permit to December

2007 to enable him to complete a diploma in homeopathy in New Zealand.

[23] An assessment of the husband’s financial situation calculated his income as being between $250-$300. However, this work and his studies have been interrupted by his son’s illness, and all of his savings have been depleted to pay for the family’s medical bills, living expenses and tuition fees.

[24] The social worker’s report details the avenues that would be pursued to ascertain the appellants’ eligibility for any financial assistance regarding the child’s

medical expenses. The husband recently paid his 2005 tuition fees at the College which amounted to $7,000 and a further $7,000 for his wife’s confinement with their second child in 2004. He has arranged a loan from the Bangladesh Association of $700 to cover part of the child’s hospital bills.

[25] A certified true copy of an appeal for help for the child from the then President of the Bangladesh Association New Zealand Incorporated, is submitted. The appeal summarises the cost of the child’s initial stay in hospital as being

$37,500.00. The hospital requires payment of this amount within one year. There is also an ongoing cost of therapy three days a week at a cost of $125 per day.

[26] The representative’s submissions summarise the child’s medical progress and point out that the family is experiencing great financial difficulties, and has been assisted by his family in Bangladesh and the Bangladeshi community in New Zealand. The husband has arranged to make weekly payments to the hospital towards the accumulating medical costs.

The Child’s Health

[27] A Paediatric Neurology Service Clinic letter dated 3 August 2005 summarises the child’s progress. His gross motor skills are improving and he is able to walk with only a mild hemiplegic gait. However, there is little functional use of his right hand and while his attempts at verbal communications are improving his speech was poorly comprehensible. He uses a nasogastric tube and experiences swallowing difficulties.

[28] It is submitted that the child will have some degree of permanent disability and if he was to return home at present he would be deprived of adequate rehabilitation and medical care facilities which would limit his chances of a normal life in the future.

Further Information on Appeal

[29] In a letter dated 20 January 2006 the representative enclosed a certified copy of a letter from the relevant health board confirming an account balance as at

21 December 2005 of $7,289.58. There is also a certified copy of a statement from the College recording that the husband has completed the second year of the course with a merit pass in Ethics and Communication and has completed the Materia Medica component of the course.

[30] On 24 May 2006 the Authority directed its Secretariat to write to the appellants’ representative providing them with an opportunity to provide updated medical evidence outlining the extent and nature of medical treatment that was required as a result of the CVA the child suffered in March 2005. The appellants were also asked to provide an expert opinion on the medical facilities available in Bangladesh for the child and his ability to undertake international air travel.

[31] The appellants’ representative replied in letters dated 15 June 2006 and

21 June 2006, after an extension of time to 27 June 2006 had been agreed. [32] The documents submitted include:

1. Certified copies of letters of support from members of the Bangladeshi community in New Zealand. One of these letters, dated 12 June 2006, summarises the community support that has enabled the hospital bill of about NZD39,000 to be almost repaid but points out that the child requires a surgical procedure called “fontan conversion surgery”. This operation is not available in Bangladesh and is beyond the means of the family in New Zealand.

2. A certified copy of a letter from the appellant’s general practitioner which advises that the child has a congenital heart disease and suffered a CVA in

2005. The statement records that the child is improving through hydrotherapy and attending a kindergarten.

3. Several pages from the kindergarten attended by the child including a supportive letter from the head teacher dated 2 June 2006 describe his considerable progress in gross motor skills and language development.

4. A letter dated 6 June 2006 from a Child Specialist at the Interventional Cardiologist and Neonatal Intensivist Unit of the Cardiac Hospital in Dhaka, Bangladesh, which states that the required surgery and subsequent rehabilitation is not available in that country.

5. The original of a letter dated 9 June 2006 from the Paediatric Neurology Service of the relevant health board that had been treating the child following his initial admission in March 2005 following a stroke.

6. A certified copy of a letter dated 20 June 2006 from the Service Manager of the Paediatric Cardiology department advising that the cardiologist, who

saw the child on 3 May 2005 as an outpatient, is currently overseas and would return in late June 2006. The letter advises that as soon as the cardiologist returns a letter would be forwarded to the Removal Review Authority.

7. A photocopy of a clinic letter from the Cardiology Registrar of the health board written after an Outpatient Clinic on 3 May 2005. This letter details the child’s medical problems as follows:

“1. Cyanotic congenital heart disease

a) Tricuspid atresia, restrictive muscular VSD

b) Pulmonary stenosis and ASD

c) Surgical correction in India December 2003 d) Glenn and MPA shunt

2. Left middle cerebral artery territory infarct of presumed embolic origin a) Dense right hemiplegia

b) Right sided neglect

c) Impaired cough and swallowing d) Aphasia

3. Non resident family

1. Challenging issues surrounding appropriate rehabilitation and ongoing care post discharge
   

Medication

1. Warfarin as per INR”

This letter is addressed to the appellant’s general practitioner with a copy to a doctor at the Ascot Heart Institute and Research Center Limited in New Delhi, India and to the Paediatric Cardiologist at the District Health Board. This letter records that the appellant is in New Zealand as a student and needed two years to finish his study programme “but may consider taking him to India for the repeat cardiac surgery”.

[33] The Authority’s Secretariat wrote another letter, dated 10 July 2006, observing that nothing further had been received. A final extension of time, to

21 July 2006, was allowed for any further medical opinions. The appellants were also invited to respond to the potentially prejudicial information that the child’s congenital heart condition and operation in India in December 2003 had not been disclosed on his medical certificate, completed in February 2004.

[34] In a reply dated 19 July 2006, the representative stated that it was understood that the cardiologist’s reply had been forwarded directly to the Authority. Through his representative the appellant insisted that the child’s medical condition had been fully disclosed to the Medical Examiner and therefore

he could not comment on why no reference had been made of the child’s heart operation on the medical certificate.

STATUTORY GROUND OF APPEAL

[35] These appeals have been lodged pursuant to section 47 of the Act, the relevant provisions of which 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.”

[36] 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

[37] The Authority has been provided with the NZIS files in relation to the appellants and has also considered the submissions and documents provided on appeal.

[38] The appellant, a qualified homeopath with an established business in Bangladesh, visited New Zealand and obtained a student permit in April 2004. He commenced a four-year part-time homeopathic course of study which would give him full membership of the New Zealand Council of Homeopaths.

[39] While it has been claimed that the appellant has been “grossly ill treated” by the NZIS with regard to the revocation of his student permit, the main focus on appeal has been the health issues of the appellant’s oldest son. It is also not the function of the Authority to review the NZIS decision to revoke the appellant’s temporary permits.

[40] The couple have a younger child who was born in New Zealand and who enjoys good health. However, neither the older child nor his parents have any lawful right to remain in this country. The Authority has considered New Zealand’s obligations under the relevant international conventions.

[41] In all decisions affecting children such as this one, Article 3.1 of the

Convention on the Rights of the Child is noted by this Authority:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

[42] The decision of the Court of Appeal in Tavita v 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 are involved, New Zealand’s obligations under the International Covenant on Civil and Political Rights, and the optional protocol thereto, together with the United Nations Convention on the Rights of the Child 1989 must be taken into account.

[43] The Court of Appeal’s decision in Puli’uvea v Removal Review Authority (1996)14 FRNZ 322, refined the Tavita decision. Puli’uvea makes it clear that the interests of a child must be “a primary consideration”, not the “paramount” consideration.

[44] In this appeal the child, whose health issues form the basis of the appeal, is not a New Zealand-born child while his younger sibling is. The Court of Appeal decisions emphasise a more general point regarding the importance of family units, and the best interests of the children are a primary consideration that must be balanced against other relevant considerations.

Rehabilitation Following the CVA

[45] In the absence of any further comment from the paediatric cardiologist who last saw the child in May 2005, at an outpatient clinic, the Authority considers the medical reports that have been submitted.

[46] The child suffered a CVA in March 2005 and was discharged from hospital in April 2005. The paediatric neurologist, in a letter dated June 2006, records that the child has not accessed neurological and rehabilitation services since August

2005 because of the family’s financial circumstances.

[47] Had the child continued to access the rehabilitation services he would have been seen initially every four months by a neurologist with the frequency diminishing as his progress stabilised. Therapy sessions would have been gradually reduced from an intensive weekly regime to every other month within the two-year period after the date of the CVA. A video fluoroscopy, an inexpensive procedure costing about $300, would have also been available to investigate any swallowing difficulties.

[48] The child is apparently not receiving specialised neurological rehabilitation but has had the benefit of the necessary intervention immediately following his CVA. There is a limit to what can be done for him in terms of rehabilitation services which were intended to be reduced as the child’s condition stabilised. Detailed documents, and a letter dated in June 2006, from the head teacher of the kindergarten attended by the child record his impressive progress in both motor development and language skills since he started in August 2005. It is clear that the child is making progress without ongoing medical rehabilitation.

[49] On the basis of the information before the Authority, there is little evidence of the child receiving any medical treatment beyond visits to a general practitioner and his language and motor skills have progressed only through the activities

provided by his local kindergarten. Such informal educational activities are likely to be available in the child’s home country.

Future Surgery

[50] In the outpatient clinic letter dated 3 May 2005, the paediatric cardiologist recorded that the child had a cyanotic congenital heart disease for which he had undergone an operation in India in December 2003. The cardiologist discussed the need for further surgery with the husband, who indicated that he would consider repeat surgery in India.

[51] A letter from a paediatric cardiologist in Dhaka advises that the necessary operation and multidisciplinary management is not available in Bangladesh at the moment. This specialist advises that a “fontan” operation would reduce the chance of a future “embolic manifestation”.

[52] There is no evidence before the Authority to indicate that the child is unable to travel to India for surgery. In the letter dated in June 2006, the paediatric neurologist in New Zealand comments that from a neurological point of view there is no contraindication to the child flying.

[53] The recommended surgery is therefore not being carried out in New Zealand because of funding constraints and the family are considering a second operation in India, where the child has already had surgery. Had they remained in their home country this option would have been the logical choice.

[54] In the present situation it has not been submitted that the family would be substantially disadvantaged in terms of having to reintegrate themselves back into their community in Bangladesh. The appellant has submitted evidence that his homeopathic pharmacy business in his home country is still extant. There is no evidence that indicates the New Zealand-born child, who has New Zealand citizenship by birth, would be disadvantaged by going to Bangladesh with his parents.

[55] While the husband may wish to remain in New Zealand to establish a homeopathic pharmacy business, his long-term business visa application was declined and his student permit was revoked for unrelated reasons. While removal of the husband would prevent him from completing the homeopathic qualification in New Zealand, he already holds a homeopathic qualification and has a business based on this in his home country.

[56] While the appellants have a New Zealand-born child, the fact of this other child’s New Zealand citizenship does not confer an automatic entitlement of residence on his or her parents. The Authority routinely points out that a parent’s desire to take advantage of what they perceive to be superior health, education and employment facilities in New Zealand, does not meet the stringent test set out at section 47 of the Act.

[57] In the Authority’s judgement the family’s circumstances as a whole are not such that it is either unjust or unduly harsh to require that the family return to their homeland and access the medical facilities in either Bangladesh or India that they utilised for their son’s congenital heart condition prior to their arrival in this country.

CONCLUSION

[58] The Authority has considered all aspects of the circumstances of the appellants as disclosed to it. Taken collectively, the Authority finds that there are no exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellants to be removed from New Zealand. The first statutory requirement of section 47(3) has not been met and accordingly, it is unnecessary for the Authority to consider the public interest issue arising under that subsection.

[59] The appeals are dismissed.

[60] In dismissing these appeals, the Authority draws to the attention of the appellants and their representative 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 a removal order served on them. Should a removal order 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.

.................................................. S Pearson

Member

Removal Review Authority