Home | Databases | WorldLII | Search | Feedback New Zealand Removal Review Authority

Removal Appeal No: 46284 [2006] NZRRA 128 (14 August 2006)

Last Updated: 26 December 2012

REMOVAL REVIEW AUTHORITY NEW ZEALAND

AT WELLINGTON REMOVAL APPEAL NOS: 46284

46285

Before: S Pearson (Member)

Representative for the Appellants: P Thoman

_{Date of Decision: 14 August 2006}

_DECISION

INTRODUCTION

[1] The first appellant is a citizen of the Republic of Chile, in her late twenties. Her husband, the second appellant, is also a citizen of Chile in his forties. Included in his appeal are their dependent son and daughter aged 11 and 9 respectively.

[2] The appellants may be referred to as “the wife” and “the husband”

throughout the decision.

[3] The appellants arrived in New Zealand in June 2003 and were granted visitor’s and student permits on arrival valid to September 2003. Their temporary permits were revoked on 11 July 2005, effective 1 August 2005. On

12 September 2005 the Authority received these two appeals against the requirement to leave New Zealand, pursuant to section 47 of the Immigration Act

1987 (“the Act”).

[4] The principal issue in these appeals is whether the wife’s experiences in Chile and her medical and psychological health constitute exceptional humanitarian circumstances which would make it unjust or unduly harsh for her and her family to be required to leave New Zealand.

BACKGROUND

[5] The family lodged applications for refugee status in August 2003 and all family members were interviewed by the Refugee Status Branch (RSB) in January

2004. The applications were declined on 29 June 2004 and their appeals to the

Refugee Status Appeals Authority (RSAA) were dismissed in June 2005.

[6] The appellants’ case for refugee status is set out in the RSAA decision. This noted that a third child had been born to the family in March 2005. As she is a New Zealand citizen by birth, no question of refugee status arises with regard to that child. The wife agreed to be the “responsible adult” for the purposes of section 141B of the Immigration Act 1987 to represent the interests of her two dependent children.

Refugee Status Claim

[7] In the RSAA decision, the wife claimed that she had become the victim of AB, a former important military figure with the Chilean armed forces who had been appointed to a managerial position with the company where she was employed.

[8] The wife had worked as a shop manager in a perfumery and beauty salon since early 2000. The clientele included wealthy and influential right wing figures. She became aware that AB was using the company’s premises for secret meetings with another Chilean military man. When several mysterious boxes arrived on the premises, the wife discovered that they contained arms. After that the wife’s relationship with AB deteriorated and her left wing views were unwelcome. She believed AB was the cause of her being relieved of some of her more prestigious duties and she was blamed for an incident concerning the fraudulent purchase of goods from the company which she believed had been orchestrated by AB. Ultimately she was made redundant in December 2002 but she believed that her employment had been terminated because she knew too much about AB’s womanising and his involvement with the arms trade.

[9] In about April 2003 the wife was questioned in connection with the theft of a small number of items from the perfumery earlier that year. She was accused of being involved in the robbery with two local thugs DE and GH who alleged that her motive for involvement was revenge for losing her employment.

[10] The wife was required to appear in court later that month but consulted a lawyer who said she did not have to appear in person. However, he failed to

appear on her behalf and she was summonsed to attend court again a few days later. The wife and her husband sought assistance from one of the husband’s cousins who worked there. It was arranged for them to pay one million pesos in order to bribe the judge and the court clerk. When she appeared the following day she was reprimanded and released from custody.

[11] DE and GH were convicted and sentenced to lengthy prison terms. Their families blamed her and demanded money from her at knifepoint. Her family were threatened with dogs and received abusive telephone calls.

[12] The wife attempted to obtain a protection order from the court but this was refused because of lack of evidence.

[13] The husband told the RSAA that his present fear of returning to Chile was related to the difficulties experienced by his wife. He had not been present when his wife was being interrogated by the police but he agreed that their lawyer had failed to appear in court on her behalf. Following this, they had paid a million pesos for help as they realised that the families of GH and DE were extremely dangerous.

[14] Within a month or so of arriving in New Zealand, in June 2003, the wife was told by members of her family in Chile that DE and GH’s families were trying to find them. The wife believed that AB wished to harm her because she knew too much about his personal affairs and his arms smuggling.

[15] The RSAA found clear discrepancies and fabrications particularly in the wife’s evidence which was mobile and inconsistent. It gave no credence to any part of their accounts.

[16] The RSAA found the claimed fear about AB was convoluted and her account of his involvement in the plot to link her to the robbery implausible. The wife’s evidence about the payment of bribes to the court was found to be fabricated. It was completely different from that of her husband. She had also not appeared as a witness in the trial of DE and GH.

[17] The husband explained to the RSAA that inconsistencies between his story and that of his wife were due to her mental state. This explanation was not accepted. While the evidence provided to the RSAA by the children was not overlooked, this was of a generalised nature and did not compensate for the serious deficiencies in the evidence provided by their parents.

THE APPELLANTS’ CASE

[18] With their appeals, the appellants provide personal statements as does their daughter who was eight years old at the time. The daughter states that she does not want to leave her friends in New Zealand and go back to Chile.

The Wife’s Statement

[19] In her statement the wife says she had an uneventful childhood and was a good student. However, her mother left when she was about 15 years old and her father, who had been the chauffeur for the son of [a named public figure], lost his job because he was depressed. She left school in order to assist the family finances and began work as a perfume promoter.

[20] The wife met her future husband shortly afterwards and left home because she knew her father would not approve of her relationship with a man 16 years her senior. Shortly before the birth of their second child, they married and settled down to an uneventful life.

[21] The wife repeats the events of April 2003 when she was questioned by the police following a burglary in the perfumery where she used to work. She describes a five-hour interrogation by the police officers which amounted to psychological torture. This was followed by threats from the relatives of the burglars and she became so stressed that she required urgent psychiatric treatment and medication. She had panic attacks and was unable to eat for several days.

[22] The wife recalls being threatened by the burglars’ relatives with a knife on one occasion and then being threatened by dogs. The police advised her not to do anything because the families were well known for their “wickedness”.

[23] The husband decided it was necessary to leave the country and they arrived in New Zealand in June 2003. She found being interviewed by the Immigration Service difficult as it triggered her former trauma and she is still unable to control panic attacks when she recalls her experiences in Chile.

[24] Enclosed with the wife’s statement is a brief psychological report, with a translation into English dated in Santiago in July 2003, issued by a Mental Health Community Centre. This described the one occasion in May 2003 when the wife

presented at the local Community Health Centre in a distressed condition and was diagnosed as suffering an anxious adaptive trauma.

[25] The wife explains that her daughter, born in March 2005, was treated for hip problems for three months and will need annual checks until she is about 15 years of age. She believes the public health system in Chile will not provide her with the medical care she needs.

[26] A clinic letter dated in August 2005 from the Paediatric Orthopaedics Department of a relevant district health board concerned the appellant’s New Zealand-born daughter who had been born with bilateral dislocated hips. At the time of writing, she was five months of age and would require further appointments at the age of nine months, 12 months, 18 months and 24 months. If treatment was successful she would not require further surgical intervention but there was a possibility that something might be required in the future.

The Husband’s Statement

[27] The husband explains that he had an uneventful childhood and as a teenager went to work in Sao Paulo, Brazil. He worked in that country for four years and then returned to Chile.

[28] The husband’s relationship with his wife began when she was 15 years old. Two children were born in Chile and their life was uneventful. They had no problems with employers, friends or family.

[29] The husband states that his comfortable life came to an abrupt end because of his wife’s distress caused by the events of April 2003. He feels that his family has been terrorised by daily threats.

[30] The husband contacted his brother to ask for help to enter Australia but as this was impossible he decided to go to New Zealand. They sold everything they had within two months and arrived in Auckland expecting to stay in New Zealand for about a week before flying to Australia. They had paid two million pesos (believing this would provide them with a visa to enter New Zealand and Australia).

[31] At the Auckland Airport a Bolivian woman noticed their anguish and gave them the phone number of a Chilean pastor who provided them with accommodation for a few days.

[32] The husband explains that they were advised to apply for refugee status. He obtained a job cleaning cars and the children started to settle into school.

[33] The couple’s third child was born in March 2005 and was found to have a problem with her hips which may require medical treatment until she is 15 years of age. The husband does not believe the public health system in Chile will provide her with the necessary treatment and they would have to rely on paying for private treatment. However, they have sold all their possessions in Chile and have nothing to return to.

[34] He describes the anxiety he and his wife experience when they consider the prospect that they may have to return. He believes his wife is becoming depressed to the point of being suicidal and his children are showing signs of anxiety.

[35] Documentation relating to the family’s birth certificates and passports is submitted on appeal. School reports dated 2004 from the primary school attended by the appellant’s two oldest children are provided along with photographs showing the family members in a variety of social situations. Letters of support from members of the community are provided.

Further Submissions

[36] 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 RSB and RSAA decisions with respect to the appellants and their dependent children.

[37] The Secretariat’s letter, dated 11 April 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.

[38] The Secretariat’s letter noted that the appellants have a New Zealand-born child who needed treatment for a bilateral dislocatable hip condition. The

appellants were invited to provide the Authority with updated medical evidence about her present treatment and the facilities available to her in Chile.

[39] A reply by 9 May was required. However, because of a change of address, the deadline was extended to 23 June 2006.

[40] The appellant’s representative provided submissions with a letter dated

22 June 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 are grouped under the following headings:

(a) the fact that the appellants have a New Zealand-born child; (b) the medical and psychological health and safety of the wife;

(c) the credibility findings of the RSAA and the current situation in Chile;

(d) that it was not contrary to the public interest that the appellants remain in

New Zealand.

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

STATUTORY GROUND OF APPEAL

[42] 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.”

[43] 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).”

[44] New Zealand has obligations under international law, particularly the International Covenant on Civil and Political Rights 1966, the optional protocol to that Covenant, the Convention on the Rights of the Child 1989 and New Zealand’s reservations to that Convention. The New Zealand Court of Appeal in Tavita v Minister of Immigration [1994] 2 NZLR 257, has found that these obligations are relevant considerations in the balancing exercise required in immigration matters.

ASSESSMENT

[45] This 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 Authority has set out in some detail the RSAA’s assessment of credibility because the appellants base their case on their circumstances as put forward in their claim for refugee status.

RSAA Claim

[46] The Authority has summarised the RSAA findings relating to its assessment of the appellants’ credibility because the appellants have based their appeal to this Authority primarily on the circumstances already put forward in their claim for refugee status.

[47] The RSAA disbelieved the evidence, particularly that of the wife, finding it to be fabricated.

[48] In response to the Authority’s invitation to comment on the RSAA findings, the appellant’s representative submits that the wife has a genuine fear of returning to Chile and that she gave a truthful account of her experiences to both the RSB and the RSAA. It is submitted that because her husband’s account involved relaying his wife’s experiences second hand, it may have appeared inconsistent with hers as he was using his own words. It is also submitted that the wife was extremely stressed and had been unwell at the time of the RSAA hearing and that this would have impacted on her ability to recall events with clarity.

[49] The RSAA is a specialist and experienced body that deals with appellants who are often anxious and stressed. The RSAA considered all aspects of the appellants’ accounts and found them to be fundamentally lacking in credibility.

[50] The wife had been unable to provide to this Authority a satisfactory clarification as to why AB would engage the services of two criminals, DE and GH, to implicate her in a robbery in 2004. It was pointed out to her during the RSAA hearing that, if her conspiracy theory was correct, DE and GH would know that she did not have any evidence against them. Indeed, she had not appeared as a witness at any trial concerning the two criminals. Similarly, the claim of payment of bribes was rejected as being contradictory and fabricated.

[51] The RSAA considered the husband’s explanation that some of his wife’s discrepancies were due to her mental state. The RSAA rejected that explanation and it was noted that no medical of psychological evidence had been submitted.

[52] This Authority is independent of the RSAA. This Authority finds that the appellants have not rebutted the findings of the RSAA and this Authority has come to the same conclusions as to the credibility of the wife’s evidence.

The Appellants’ Children

[53] The appellants have two dependent children who are included in their appeals. In addition, another child has been born to them in New Zealand and is therefore a New Zealand citizen by birth because she was born before 1 January

2006, when this automatic entitlement ceased.

[54] The representative submits if, notwithstanding the RSAA findings, there is a “slight chance” that the child may face difficulties in Chile, she should not be exposed to this risk. The Authority has considered the circumstances that all three children may encounter in Chile.

[55] 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. These rights are not confined to children born in this country.

[56] 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 course, the Court held that where such children are involved, New Zealand’s obligations under the International Covenant of 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.

[57] Article 3.1 of the Convention on the Rights of the Child 1989 must be borne in mind. That Article 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.”

[58] The Court of Appeal decision in Puli’uvea v Removal Review Authority (1996)14 FRNZ 322 held that the interests of a child must be “a primary consideration” but not the “paramount consideration”. The interests of the appellants’ children must therefore be balanced against other relevant considerations. Such considerations include the objectives and integrity of New Zealand’s immigration laws and policies. It is a fundamental part of New Zealand immigration law that having a child born in New Zealand does not give rise to an entitlement of any kind for a person unlawfully in this country.

[59] The appellants’ New Zealand-born daughter has received orthopaedic treatment for the dysplastic hip condition that she was born with. A letter dated in August 2005 from the Paediatric Orthopaedics Department of a district health board recorded that the child would be seen at six-monthly intervals until she was

24 months of age. If all went according to plan she would not require surgical intervention. It has not been submitted that appropriate care will not be available to her in Chile. Indeed, the husband has stated in his submission to this Authority

that he was born with dislocated hips and received treatment over three years to enable him to walk properly.

[60] The Authority has considered the detailed submissions of the representative regarding the welfare of the appellants’ New Zealand-born child but cannot agree that it would be against the principles and objectives of the relevant international conventions if the New Zealand-born child was to accompany her parents to Chile. While international conventions are a highly relevant consideration in the application of the section 47 test, the Authority finds there is nothing in the appellants’ circumstances which would meet the high threshold of the statutory test that it would be unjust or unduly harsh for the child to leave New Zealand with her parents.

[61] The Authority has considered the statement provided by the appellants’ older daughter. While it is understandable that she does not wish to leave her school friends and return to Chile, there is nothing to indicate that any of the appellants or their children will be in danger in Chile.

The Medical and Psychological Health of the Wife

[62] The representative submits that the wife’s health has seriously deteriorated since the RSAA dismissed her appeal for refugee status. It is claimed that she is now under “medical supervision” and has visited the hospital as a result of abdominal pain. It is submitted that the wife and her church pastor think she may be suffering from “a rare type of liver and/or stomach cancer”. It is claimed that her doctor is currently awaiting a specialist diagnosis. However, no evidence has been produced from either the wife’s general practitioner or a hospital in support of this claim.

[63] The psychological report, dated in July 2003, which was submitted on appeal, has been considered. The Authority notes that there was no follow-up to the single consultation at which a diagnosis of an “Anxious Adaptive Trauma” caused by stress, was made.

[64] Notwithstanding this report, the representative submits that the wife was unaware that her health issues would be important considerations in the appeal. The submissions were dated 22 June 2006 and nothing further has been provided that might have assisted the wife to establish that she has exceptional circumstances relating to her health.

[65] The Authority finds no exceptional circumstances of a humanitarian nature in relation to the wife or the New Zealand-born child that would make it unjust or unduly harsh for the appellants and their dependent children who are included in their appeals to be removed from New Zealand.

[66] The Authority appreciates that a return to Chile will represent a disruption in the lives of the appellants who liquidated their assets in order to leave their home land. While they may feel they have nothing to return to, it is clear that the appellants have strong relationships with their immediate family in Chile and no family nexus with New Zealand.

[67] As the representative notes, the appellants have been in New Zealand for approximately three years. During this time they have worked hard and made friends in the community. A return to Chile may well cause the appellants some emotional hardship. The Authority has considered all aspects of the appellants’ circumstances and finds that they do not meet the high threshold of the statutory test at section 47(3).

CONCLUSION

[68] 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.

[69] The appeals are dismissed.

[70] 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