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Removal Appeal No: 46434 [2006] NZRRA 124 (31 July 2006)

Last Updated: 26 December 2012

REMOVAL REVIEW AUTHORITY NEW ZEALAND

AT WELLINGTON REMOVAL APPEAL NO: 46434

Before: V J Vervoort (Member)

Representative for the Appellant: Sharni Kelly

_{Date of Decision: 31 July 2006}

_DECISION

INTRODUCTION

[1] The appellant is a citizen of Colombia, aged 46. No other person is included in his appeal.

[2] The appellant arrived in New Zealand on 14 September 2003 and was granted the first in a series of work permits permitting the appellant to work as a performance artist for a named circus. His last temporary permit, a seven-month work permit, was granted on 29 July 2005. He was served with a Notice of Revocation dated 7 December 2005 by the New Zealand Immigration Service (NZIS). The Notice of Revocation advised him that unless he could show good cause as to why his permit should not be revoked, the revocation would become effective on 29 December 2005. The reason given for the revocation was that the appellant had ceased to work for the employer specified in his permit and therefore the basis on which his permit was granted no longer existed.

[3] On 8 February 2006, the Authority received this appeal against the requirement to leave New Zealand, pursuant to section 47 of the Immigration Act

1987 (“the Act”).

[4] The issue for the Authority in this appeal is whether the appellant has exceptional humanitarian circumstances that would make it unjust or unduly harsh for him to be removed from New Zealand by virtue of the fact that he has a New

Zealand-citizen partner AA, aged 26, who is expecting the couple’s first child in late August 2006.

BACKGROUND

[5] The appellant is a circus performer. He came to New Zealand in September 2003 and was granted a work permit in February 2004 for seven months until September 2004. The permit stipulated that the appellant was to work as a performance artist for a named circus. Thereafter the appellant obtained another work permit in September 2004 to expire in November 2004. Again the appellant was permitted to work for the same named circus as in his previous work permit.

[6] The appellant then had a visitor’s permit until February 2005 after which he was granted a further work permit. That work permit, granted in July 2005, specified that the appellant was to work as a performer with a different named circus. The permit was to expire on 6 February 2006.

[7] In July 2004, the appellant’s son now aged almost 18 and the son’s partner now aged 20, arrived in New Zealand. They were also circus performers and were granted work permits in July 2005 to work for the same circus as the appellant. That couple had a child in New Zealand in September 2004.

[8] The appellant, his son and his son’s partner all apparently left their circus employment at the same time in November 2005.

[9] The appellant made submissions in response to the Notice of Revocation. The NZIS determined that the Notice of Revocation was to stand. The appellant was advised of the NZIS decision on 4 January 2006.

[10] On 8 February 2006, the appellant made an application under section 35A of the Act for a work permit on the basis of his partnership with AA. That application was made contemporaneously with this appeal and was declined by the NZIS by letter dated 1 March 2006.

[11] In his appeal form the appellant describes himself as “never married”. He states the name and address of AA, his New Zealand-citizen partner. The appellant discloses that he has a son (the person referred to in paragraph [7] above) who is facing removal from New Zealand, and a daughter aged 21 who is

stated to be working in the United States of America. As to his other family, the appellant discloses his mother is resident in Colombia and that he has a sister also resident in Colombia.

[12] The appellant has no criminal history in New Zealand.

THE APPELLANT’S CASE

[13] On appeal the appellant is represented by Sharni Kelly of Govett Quilliam. [14] Counsel made submissions in a letter dated 8 February 2006.

[15] Counsel submits that the appellant and his family, who are a “troupe” of circus performers, worked in what they considered to be “inhumane working conditions”; for example, they were repeatedly denied access to “shower and toilet facilities” and were not paid in accordance with their contract on a regular basis.

[16] As a result of those working conditions the appellant and his family left the circus:

“... under the misapprehension that they could do so without it affecting their rights to stay in New Zealand”.

[17] Counsel submits the appellant has not worked since leaving the circus.

[18] The appellant is appealing on humanitarian grounds on the basis of his relationship with his New Zealand-citizen partner AA. The appellant and AA began their relationship in January 2005. On the basis of this relationship the appellant also made a concurrent application under section 35A of the Act for a work permit. Counsel submits if the appellant is successful in obtaining a work permit, then he intends to apply for residence under the Partnership category of Government residence policy once he and AA have been living together for one year. (That application was unsuccessful, see paragraph [10] above.)

[19] The appellant and AA travelled together with the circus, and when the appellant left the circus they moved in with AA’s mother due to financial difficulties.

[20] In December 2005, AA found she was pregnant and the child is due in late

August 2006.

[21] Counsel submits that the appellant has been an enormous emotional support to AA and wishes to remain in New Zealand to support her and his child and that he is a positive influence in her life. AA was the victim of:

“... a severe physical assault in 1998 and since that time has received counselling for depression and is on a sickness benefit.”

[22] Counsel submits the appellant and AA are in a genuine and stable relationship and AA’s recovery from psychological trauma will be set back if she is separated from the appellant. In addition, AA will suffer “extreme emotional and financial hardship if she is to raise the child as a solo parent”.

[23] The appellant and AA do not want to bring up their child in Colombia because of Colombia’s poor standard of living and they believe that their child will be better provided for within New Zealand. Moreover, the appellant will suffer financial pressure if he is required to return to Colombia to apply for a work permit under the Partnership policy.

[24] Further, the appellant submits that his granddaughter is a New Zealand citizen and that her father, the appellant’s son, faces removal from New Zealand but that the appellant would like to remain close to his granddaughter in New Zealand.

[25] Attached to counsel’s submissions were the following:

(a) A certified true copy of AA’s New Zealand Birth Certificate;

(b) A letter dated 7 February 2006 and signed by AA’s general practitioner stating she is pregnant and her due date is 25 August 2006;

(c) A photocopy of an unsigned letter dated 8 February 2006 on the letterhead of the general practitioner addressed to AA stating she has been treated on a regular basis for

“psychological effects for the last 8 yrs. That resulted from a traumatic event.”

(d) A letter of support dated 8 February 2006 from AA in which she states that she and the appellant have been partners for 14 months and have been living together for approximately six months and that they expect their first child in August 2006. She states she and the appellant love, trust and respect each other and are trying hard to begin a happy life together. She

states before she met the appellant she suffered a traumatic event which left her feeling lonely with nothing to look forward to in her future life, but now she has someone in her life, the appellant, and he cares for her. She submits they would both like to bring up their baby together as a family unit and that she feels that it is not fair that her baby:

“cannot have both mother and father to grow up with, I know that this separation will effect me and our baby personally.”

She submits the appellant is very concerned for her welfare, for the welfare of their unborn child and for himself and that they are all trying their “very hardest to keep our life with each other”. If the appellant is removed from New Zealand, the Authority will cause “unneccesary (sic) hardship and break our hearts”. AA asks that the appellant be given a Partnership work permit so he can support her and his child.

(e) A letter of support dated 3 February 2006 from AA’s mother. She states the appellant left the circus through unfortunate circumstances. She further states she does not know what happened in the circus but that she was very concerned about where the appellant and her daughter would live. Therefore, she took the appellant and her daughter into her home in November 2005. She submits that she knew the appellant before this time. She says the appellant and her daughter lack funds and they have “scraped together” a little money to help with food. She feels that if the appellant is returned to Colombia it will not be “very healthy leaving my daughter in her current situation”. She states this is an important issue to her as is the wellbeing of her daughter and her future grandchild.

(f) An undated letter of support from a person stating she has known AA and her family for the past eight years. She states that she can “attest” to the fact that the appellant and AA have been in a de facto relationship for the past year and that the couple plan to marry in the near future. The writer states she is distressed to learn that the appellant’s marriage plans are being “jeopardised” by NZIS and she hopes that the appellant is granted permanent residence. The writer states she will support the “whanau” and assist with whatever is required to “ensure the healthy happy development of their family”.

(g) Five photographs of the appellant and AA.

STATUTORY GROUND OF APPEAL

[26] This appeal has 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.”

[27] 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

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

Partnership

[29] The appellant’s appeal is grounded in his partnership with AA and the fact that they are expecting a child due in late August 2006. It is submitted that the couple are living together in the nature of a marriage and that they intend to marry later this year.

[30] Family relationships are considered and accorded a high value following the Court of Appeal decision in Tavita v Minister of Immigration [1994] 2 NZLR 257. This is consistent with the international conventions discussed below. Underlying these international conventions are the principles that individuals have rights to freely enter and to participate in partnerships, and to enjoy family relationships. The appellant’s relationship with AA and their unborn child form part of his circumstances. These principles are therefore clearly relevant considerations when applying the broadly expressed test in section 47(3) of the Act.

[31] However, the simple fact of an intention to marry or living together with a

New Zealand citizen rarely, without more, meets the test set out in section 47(3).

[32] As to the genuineness of the couple’s relationship the Authority is not specifically charged with finding out whether a relationship is genuine or stable. That may be part of the Authority’s enquiry but ultimately the Authority is charged with finding out whether that relationship – or any other circumstances of an appellant – can be described as exceptional humanitarian circumstances which would make it unjust or unduly harsh to remove the appellant from New Zealand.

[33] According to counsel’s submission the couple began their relationship in January 2005 when the appellant was in receipt of a visitor’s permit due to expire in February 2005. He can therefore have had no legitimate expectation that he would be able to remain in New Zealand then. He was served with the Notice of Revocation in respect of his last work permit in December 2005 at about the time the couple’s child was conceived.

Unborn Child

[34] AA is pregnant and her date of delivery has been confirmed by her general practitioner as late August 2006. Therefore, the Authority takes into account the fact that the appellant is about to become a father (for the third time) to a child, who, when born will be a New Zealand citizen by virtue of section 6 of the Citizenship Act 1977.

[35] When a child is affected by an appeal before this Authority, Article 3.1 of the Convention on the Rights of the Child (UNCROC) must be borne in mind. It states:

“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.”

[36] Accordingly, the Authority considers it appropriate to have regard to the child’s best interests (as if she or he had already been born) as described in Article

3.1 of UNCROC.

[37] The New Zealand Court of Appeal’s decision in Puli’uvea v Removal Review Authority (1996)14 FRNZ 322 clarifies that the best interests of a child are a primary, but not the paramount, consideration in appeals of this kind.

[38] Additionally, Article 9.1 of UNCROC states that children should not be separated from their parents except in limited circumstances. Such a provision is directed towards recognition that families are to be supported to remain intact, subject however, to decisions parents may make such as deciding to live apart, and to the effect of legitimate legal processes, such as Family Court orders, or removal orders under the Act.

[39] Article 27 of UNCROC provides:

“1. States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.

2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development.”

[40] Finally, the Authority has regard to Article 23 of the International Covenant on Civil and Political Rights which provides:

‘The States Parties to the present Covenant recognize that:

1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children ...

2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. ... ”

[41] Thus, the Authority acknowledges that in determining the appellant’s appeal against the requirement that he leave New Zealand, it should give substantial weight to the fact that he is about to be the parent of a New Zealand-born child and his partner is a New Zealand citizen.

[42] The appellant is unlawfully in New Zealand and requiring him to leave does not necessarily enforce a permanent state of separation between him and his New Zealand partner and their child. In this case, it is unlikely that AA, given the advanced stage of her pregnancy, would be able to leave New Zealand and travel immediately with the appellant to his home country Colombia. However, there is nothing to prevent that occurring some time after the child is born if that is what the couple decides. Article 27 of UNCROC recognises that the decision as to where a child will live rests largely with that child’s parents who have the primary responsibility for its upbringing and development.

[43] On the other hand, the Authority recognises if the appellant is required to leave New Zealand before the child is born he will be precluded from establishing in the immediate future at least a “hands on” parental bond with that child.

[44] Should the appellant be required to leave New Zealand, it is evident from the submissions and support letters on appeal that the child will be cared for by his or her mother with support from AA’s mother and whanau. The removal of the appellant from New Zealand will not prevent the child from exercising his or her “right to know” the appellant as a father/parent, as expressed by Article 7.1 of UNCROC; but the Authority recognises there will be the practical obstacles of distance and cost which will militate against the practical realisation of such a relationship in the immediate future. Given that the child will be cared for and will know its mother and her family and whanau, and will not be prevented from knowing the appellant as a father/parent, the Authority finds that the lack of an

immediate “hands on” bond with the appellant does not give rise to exceptional humanitarian circumstances for either the child, the appellant or AA.

[45] The Authority notes the submissions made that AA and the appellant do not want to bring up their child in Colombia because of its poor standard of living and their belief that the child will be better provided for within New Zealand.

[46] The Authority finds that the standard of living in Colombia does not of itself give rise to exceptional humanitarian circumstances arising for the child (or the appellant and AA). As stated in Ronberg v Chief Executive of Department of Labour [1995] NZAR 509 at pages 526-527:

“Mere economic betterment – the fact a person can live more comfortably in New Zealand than elsewhere – perhaps with employment instead of unemployment – ... would usually have difficulty qualifying in itself as an ‘exceptional circumstance’ rendering removal ‘unjust or unduly harsh’.”

The Circumstances of AA

[47] It is submitted that AA’s recovery from “psychological trauma” will be set back if the appellant is removed from New Zealand.

[48] AA submits she has been the victim of “a traumatic event” which left her lonely and with nothing to look forward to and that the appellant has given her something to look forward to and is someone who cares for her. AA also discloses that she has been in receipt of counselling for depression as a result of that event which apparently was some eight years ago, according to the statement filed with the appeal (see paragraph [25(c)] above). The Authority is not able to assess whether the AA’s recovery from a past trauma will be set back; equally, the implied suggestion of ongoing or future psychological trauma is purely speculative. The Authority notes from the submissions that, AA already has access to services and support to help mitigate and overcome the effects of that trauma.

[49] The Authority has considered the consequences for AA should she face the birth of the couple’s child without the practical and emotional support of the appellant. The Authority concedes this would be less than ideal for AA but finds in this case that it does not amount to exceptional humanitarian circumstances, especially as it is evident that the AA has the ongoing and apparently strong support of her mother.

[50] It is also submitted that AA will suffer extreme financial hardship if she is left to raise the couple’s child as a solo parent. In that regard the Authority notes that AA is, according to counsel’s submissions, in receipt of a sickness benefit. The Authority expects that if the appellant leaves New Zealand, AA, like any other New Zealand citizen, will be able to test her eligibility for further income support once the child is born. Therefore, the Authority does not accept that AA will suffer extreme financial hardship if she is a solo parent. Also, the absence of the appellant from New Zealand does not alleviate his responsibility to help financially maintain his child and AA. He can do so from a distance.

The Appellant

[51] The appellant is a 46-year-old man from Colombia who discloses he has never married and has two adult children.

[52] As noted above, the appellant’s partnership with AA in and of itself does not constitute an exceptional humanitarian circumstance. That relationship, according to counsel’s submissions, has been in existence for some 17 months. The Authority observes the significant age gap between the couple and the inherent language and cultural differences that they face. The submissions about the couple’s relationship and the appellant’s role in it have been expressed in general terms. The Authority finds that those circumstances do not constitute exceptional humanitarian circumstances. However, the Authority is prepared to accept at face value that the appellant is concerned as to the future of AA and their child in New Zealand.

[53] The Authority is invited to grant the appellant a work permit so he can support AA and his child. It is submitted that the failure to grant him such a permit will place financial pressure on the appellant as he would then be required to apply for such a permit from Colombia. The Authority understands the appellant has been a circus performer since he was a child and as a consequence has worked all over South America. Therefore, the opportunities for the appellant to work in his chosen field must inevitably be greater in Colombia and elsewhere in South America than they are here in New Zealand. There is no evidence before the Authority that the appellant otherwise has skills or experience which would lead to employment in New Zealand.

[54] The appellant has no nexus with New Zealand other than through his relationship with AA and their forthcoming child. On appeal, counsel submits that

apart from his relationship with AA the appellant wishes to remain here because he has a New Zealand-citizen grandchild. The Authority acknowledges that the parents of that grandchild, the appellant’s son and his partner, face removal from New Zealand. The future of the appellant’s grandchild clearly lies with her own parents. Accordingly, the appellant cannot rely on the presence of his New Zealand-citizen granddaughter in New Zealand as providing him with any additional nexus to this country.

CONCLUSION

[55] The Authority accepts that the appellant’s circumstances when taken as a whole, that is the fact of his partnership with a New Zealand citizen, the imminent birth of the couple’s child and the appellant’s current inability to financially support his partner and child, do give rise to humanitarian circumstances. However, on balance none of those humanitarian circumstances whether taken singularly or cumulatively amount to exceptional humanitarian circumstances such as to overcome the “stern test” set by the statutory threshold. In saying this, the Authority is mindful of the likely loss and separation which will ensue from its decision. The Authority reminds the appellant that he is able to make applications for temporary permits and residence under the Family (Partnership) category as soon as he leaves New Zealand (provided he is not served with a removal order in which case sections 57 and 58 of the Act become applicable).

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

[57] The appeal is dismissed.

[58] In dismissing this appeal, the Authority draws to the attention of the appellant and his counsel 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.

.................................................. V J Vervoort

Member

Removal Review Authority