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Removal Appeal No: 46303 [2006] NZRRA 123 (31 July 2006)

Last Updated: 26 December 2012

REMOVAL REVIEW AUTHORITY NEW ZEALAND

AT WELLINGTON REMOVAL APPEAL NOS: 46303

46304

Before: S Pearson (Member)

Representative for the Appellants: P Thoman

_{Date of Decision: 31 July 2006}

_DECISION

INTRODUCTION

[1] The appellants are a married couple in their thirties.

[2] For ease of reference throughout this decision the couple will at times be referred to as “the husband” and “the wife”. The three dependent children are included in the husband’s appeal. All five appellants are citizens of Chile.

[3] The appellants, including the two dependent children aged 12 and 5 respectively, arrived in New Zealand on 30 May 2004. The oldest dependent child aged 16 arrived in New Zealand on 9 May 2004. All of the appellants’ last permits were revoked on 1 August 2005, effective 22 August 2005.

[4] On 29 September 2005, the Authority received the appeals against the requirement to leave New Zealand, pursuant to section 47 of the Immigration Act

1987 (“the Act”).

[5] The principal issue is whether return of the appellants and their dependent children to Chile would amount to exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for them. The appellants’ family now includes a child who was born in New Zealand in October 2005.

BACKGROUND

[6] The husband and dependent children applied for refugee status with the Refugee Status Branch (RSB) on 5 August 2004. The wife’s application was lodged the next day. All of the appellants’ applications were declined by the RSB on 28 January 2005 and their subsequent appeals to the Refugee Status Appeals Authority (RSAA), which heard their appeals on 9 June 2005, were dismissed on

22 July 2005.

[7] The appellants’ case for refugee status was set out in the RSAA decision. The appellants claimed the family were harassed and threatened by agents of a corrupt businessman and a politician with whom the husband had been associated.

[8] The RSAA found that, as the perpetrators of the harassment, the businessman and the politician had been tried, convicted and sentenced in court for corruption, any information the husband might have had relating to their illegal activities was now irrelevant.

[9] The RSAA also found that there was no evidence that the husband’s former membership of the Christian Democratic Party put him at risk of serious harm or made him a target for personal revenge.

[10] The appellants have no criminal convictions recorded in New Zealand.

THE APPELLANTS’ CASE

[11] The husband provides a personal statement. He also supports his wife’s appeal and there is no separate statement from her.

[12] In his statement, the husband explains that he was born in Chile into a working class family. Despite his humble origins he was able to attend a university and trained in the area of IT as a systems analyst. After successful employment, where he was promoted to become head of the IT and technical department of a company, he set up his own business as an IT consultant in 2001.

[13] The husband outlines the impact on the family of him suffering the financial loss of the equivalent of NZD25,000 as a result of becoming the victim of fraud in

1999. The Chilean courts have not satisfactorily resolved this problem.

[14] The main cause of concern for the appellants is their alleged harassment by a powerful and corrupt pair of men. The husband provides details of the alleged leakage of sensitive computer files that he had been associated with as part of his computer consultancy work. He had been contracted to eliminate a virus on a businessman’s computer and as part of this work became aware that the businessman was involved in corrupt practices with a politician.

[15] The husband submits that he and his family have been harassed and threatened because of his knowledge of the information that was on the businessman’s computer files.

[16] It is submitted that the businessman offered the appellant a sum of money in order to keep quiet about this information. The appellant declined to accept this money and deleted the files off his own computer.

[17] Some months later the appellant was contacted by the businessman and threatened with harm if the information was not handed over.

[18] Threatening telephone calls persisted for some months despite the fact that the businessman and the politician were publicly exposed for corruption and convicted in court.

[19] It is submitted that as a result of the fear caused by the ongoing harassment the appellant liquidated his assets in order to bring his family to safety in New Zealand.

Further Submissions

[20] The Authority directed its Secretariat to write to the appellants’ representative pursuant to section 50(4)(a), (5) and (6) of the Act. The Secretariat enclosed a copy of the joint RSAA decision with respect to the appellants and their dependent children.

[21] The Secretariat’s letter, dated 15 June 2006, noted that the Court of Appeal in Talukder v Removal Review Authority [2000] NZAR 194, at 198, stated that while the RSAA’s conclusions were in no way binding on the Removal Review Authority (RRA), it was clearly reasonable for the RRA to have regard to the RSAA’s findings on substantially similar evidence affecting any humanitarian considerations within the RRA’s jurisdiction. It was noted that the appeal to the RRA made reference to some of the grounds that were advanced in support of the

claim for refugee status but there was no new evidence or submissions to challenge the factual conclusions reached by the RSAA.

[22] The appellant’s representative responded in a letter dated 14 July 2006, submitting that there are exceptional reasons of a humanitarian nature that would make it unduly harsh for the appellants to be removed from New Zealand. The submissions were grouped under the following headings:

(a) the fact that the appellants have a New Zealand-born child;

(b) the credibility findings of the RSAA and the current situation in Chile; (c) the husband’s job offer in an area of skills shortage.

[23] The representative also submitted that it would not be contrary to the public interest to allow the appellants to remain in New Zealand on the basis that they have been in New Zealand for approximately two years and have worked hard during that period and become established in the community.

[24] These submissions are addressed in the Assessment part of this decision.

STATUTORY GROUND OF APPEAL

[25] 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.”

[26] 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

[27] 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.

The RSAA Decision

[28] The appellants had their claims for refugee status heard by both the RSB and the RSAA. Both found that the appellants were not refugees within the meaning of the Convention as they did not have a well-founded fear of being persecuted in Chile.

[29] The RSAA noted that one serious incident of harm had occurred when the husband was pulled from his car and assaulted in 2002. Prior to corruption charges being laid against the businessman and the politician, some threats and intimidation had occurred. However, the appellants remained living in the same house and there were no more incidents of harm to any member of the family despite ongoing threats.

[30] The RSAA also noted that the information possessed by the husband as a result of his work on computer repairs, was no longer secret following the trial and conviction of the businessman and the politician on corruption charges. The RSAA found the husband’s claim that he continued to be at ongoing risk of serious harm because of a desire for revenge was “entirely unconvincing”.

[31] The submission before this Authority is that the danger of reprisals continues as the husband’s parents still receive threatening calls. It is claimed that the RSAA accepted the husband’s claim, that he had information concerning the bribery and corruption and that he had been assaulted, was credible. It is submitted that the husband was not just assaulted on only one occasion and that the threats, assaults and harassment that occurred should cumulatively be considered as amounting to “serious harm”.

[32] It is claimed that the prison sentences handed down to the corrupt businessman and the politician mean that they remain free to exact revenge and therefore the risk of serious harm continues. However, the husband was not an informer or a witness at the trial. He was not a pivotal figure in the conviction of the businessman and the politician. The Authority does not find that there is any risk of harm that would constitute exceptional circumstances.

[33] It is submitted that in Chile the social and political situation is quite different from that of New Zealand and the desire for revenge is such that the convicted men will ensure that the husband is harmed if they find out that he has returned to Chile.

[34] The Authority has considered the Court of Appeal decision in Talukder v Removal Review Authority [2000] NZAR 194 and points out that the Talukder decision does not deny the existence of humanitarian circumstances as the RSAA finding that a particular appellant does not qualify for refugee status will often consider different issues to those required under section 47(3). However, it is noted that the RSAA, which had the advantage of interviewing the appellants in person, found that they were not at risk of ongoing harassment in Chile.

[35] Country information is provided to indicate that while Chile has moved towards open democracy, human rights abuses continue and the husband believes the police could not offer him genuine protection. However, the Authority finds the husband’s fears remain subjective and do not constitute exceptional

circumstances. This Authority agrees with the findings of the RSAA that the appellants and their children are not at risk.

[36] The representative’s response to the Secretariat’s letter of 15 June 2006 does not add anything to the arguments that have already been considered by the RSAA.

New Zealand-Born Child

[37] The appellants have a child who was born in New Zealand in October 2005 and therefore she is a New Zealand citizen by birth.

[38] The Authority has considered the United Nations Convention on the Rights of the Child, the preamble and relevant Articles of which were cited by the representative.

[39] 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.

[40] The Court of Appeal decision in Puli’uvea v Removal Review Authority (1996)14 FRNZ 322 made it clear that the interests of a child must be “a primary consideration” but not “the paramount consideration”. The interests of the appellant’s New Zealand-born child must therefore be balanced against other relevant considerations.

[41] The Authority cannot agree with the representative that it would be against the principles and objectives of the Convention if the New Zealand-born child was to accompany her parents to Chile. In her submissions the representative states that there is “a slight chance” that this child may face some danger in Chile because of her parents’ circumstances. Neither the country information nor the appellants’ circumstances indicate that the child’s safety or well-being will be compromised.

[42] The Authority accepts that, while the husband became unwittingly involved in an unpleasant situation and the family were threatened, the facts do not support

their subjective fears that it is untenable for them to return to Chile. There is nothing to indicate that any of the appellants or their children will be in danger in Chile. The statements made by the three children included in the appeals have been considered. While it is understandable that they feel settled in New Zealand, it would not be unjust or unduly harsh for them to accompany their parents to Chile to live.

Job Offer in an Area of Skills Shortage

[43] It is submitted that the husband is a skilled IT specialist and it is accepted that New Zealand has IT industry staff shortages but the husband is not working in the IT industry in New Zealand. He has provided a copy of an employment agreement with a New Zealand company as a carpet and vinyl layer. The Authority accepts that the husband has an offer of permanent employment in this area that is also on the Immediate Skills Shortage List.

[44] As the representative notes, a balancing exercise is required and it is necessary for this Authority to consider all aspects of the appellants’ circumstances. If a single factor reaches the threshold for allowing an appeal, or if the cumulative weight of all the factors involved reaches the threshold, then the appeal would be allowed. It is important to have regard to the totality of the appellants’ circumstances and the fact that the appellants have been in New Zealand for over two years and have worked hard during this time and settled into their community is not overlooked.

[45] The fact is that the statutory test at section 47(3) is a high one and, taken cumulatively as well as individually, the particular circumstances of the appellants do not meet that test. It is acknowledged that the husband has skills that would be useful to New Zealand but this does not assist him to establish exceptional humanitarian circumstances. It is also acknowledged that the family now has a New Zealand-born child but the Authority is satisfied that the fears held by the family, however genuinely held, remain subjective and are not borne out by the facts.

[46] The appellants’ representative has noted that it would be possible for the husband to apply for a work visa on the basis of his job offer as a carpet layer and his work experience both in New Zealand and Chile but this would necessitate financial hardship to enable the family to return to Chile to enable him to lodge an application for a visa. Financial disadvantage does not constitute exceptional

humanitarian circumstances and should the husband wish to make an application to return to New Zealand or to apply for residence from off shore he is entitled to do so.

[47] With the exception of the youngest child, who was born in New Zealand in October 2005, the appellants and their other three children reside lawfully and permanently in Chile and the family have little nexus to New Zealand. The wife’s mother and her five siblings reside lawfully and permanently in Chile as do the husband’s parents and three siblings.

CONCLUSION

[48] 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.

[49] The appeals are dismissed.

[50] 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 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.

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

Member

Removal Review Authority