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Removal Appeal No:46278 [2006] NZRRA 132 (30 August 2006)

Last Updated: 26 December 2012

REMOVAL REVIEW AUTHORITY NEW ZEALAND

AT WELLINGTON REMOVAL APPEAL NO: 46278

Before: E M Riddiford (Member)

Representative for the Appellant: Antees Joseph

_{Date of Decision: 30 August 2006}

_DECISION

INTRODUCTION

[1] The appellant is a citizen of Slovakia, aged 35 years.

[2] The appellant’s visitor’s permit expired on 31 July 2005. On 7 September

2005, the Authority received this appeal against the requirement to leave New

Zealand, pursuant to section 47 of the Immigration Act 1987 (“the Act”).

[3] The issues on appeal are first, whether the appellant has exceptional circumstances. His appeal is based on family circumstances in New Zealand, including his spouse’s residence permit obtained in May 2006 and the couple’s baby due in October 2006, and the appellant’s fear of returning to Slovakia because of threats on his life from organised crime.

[4] Second, should the Authority find there are exceptional humanitarian circumstances, there are adverse public interest matters to address. These relate to the appellant’s two criminal convictions in Slovakia, and an outstanding warrant for his arrest in Slovakia. This concerns continuing police investigations into unpaid tax and insurance matters involving the appellant.

BACKGROUND

[5] The appellant and his spouse, also a citizen of Slovakia, arrived together in New Zealand on 27 October 2003, a month after they married in Slovakia. The appellant’s spouse was granted a two-year work permit on 25 July 2005.

[6] On 27 July 2005, the appellant lodged an application for a work permit, as his spouse’s partner, and provided a Slovakia criminal record that showed two convictions entered while the appellant was in New Zealand, in January and May

2005.

[7] The first conviction was for a “crime committed as a joint act of two or more persons”, the facts of which involved the appellant driving while his licence was suspended. The appellant received a six-month suspended prison sentence which was said to have been "cancelled". (The appellant’s licence had previously been suspended after the appellant caused a car accident as a result of driving carelessly, but for which no conviction is recorded.)

[8] The second conviction was for “obstruction of justice” the facts of which involved the appellant acting as guarantor for third-party AA’s hire purchase agreement, on which AA subsequently defaulted with payments.

[9] As indicated above, after conviction on the second charge, the court cancelled the first sentence. It then imposed a “merged” sentence for both convictions of a suspended one-year term of imprisonment, and a three-year prohibition from driving motor vehicles.

[10] There was ensuing correspondence between the appellant’s agent (also his representative on appeal) and the New Zealand Immigration Service (NZIS) concerning the convictions and the effect of section 7 on whether the appellant could obtain a work permit, except by special direction. The NZIS was not prepared to consider a special direction, and declined the work permit on 1

November 2005.

[11] The appellant has declared the two convictions in his appeal to this Authority. He has no convictions in New Zealand. The Authority also received information that in December 2005 a Slovak court issued a warrant for the appellant’s arrest and that he had been accused of failing to pay tax and insurance “in the form of participation”.

[12] In May 2006 the appellant’s spouse was granted a residence permit under the Skilled Migrant category of Government residence policy. Her application was made in December 2005, by which time the appellant was unlawfully in New Zealand, although she declared him as her partner.

[13] The remainder of the appellant’s and his spouse’s immediate family resides in Slovakia.

THE APPELLANT’S CASE Initial Submissions

[14] The representative’s submissions on appeal, dated 6 September 2005, were directed towards the appellant’s role in emotionally supporting his spouse after her father’s untimely death in August 2005. The appellant and his spouse were a couple who loved each other and could not think about living separately in two countries.

[15] The representative also pointed out that the spouse’s occupation as an early childhood educator was listed on the Long-Term Skill Shortage list. Without the appellant’s support it would be very hard for her to continue to work in New Zealand.

[16] Finally, the representative submitted that if the appellant, a qualified mechanic, was granted a work permit he would be able to contribute to New Zealand society.

[17] The following documents were submitted with the appeal:

1. Declarations by the appellant and his spouse, both dated 25 July 2005, and letter from the spouse, dated 2 September 2005.
   
2. The appellant’s and his spouse’s birth certificates and passport particulars, together with their marriage certificate.
   

3. The appellant’s Slovak police clearance certificates, dated in September

2003 (clear) and in June 2005; extracts from the Criminal Code of Slovakia;

declarations by two people concerning the offences, dated 6 and 8 July

2005; and two legal interpretations as to the significance of the sentences imposed, dated 12 July and 11 October 2005.

4. Support letters from two New Zealand friends of the couple.

5. The appellant’s secondary school final examination report and General

Certificate of Education.

6. Evidence of the appellant’s and his spouse’s ongoing marriage partnership, including a joint tenancy agreement, joint account bank statements and photographs of the couple together.

Additional Submissions

[18] On 30 May 2006 the Authority directed its Secretariat to write to the appellant’s representative for updated information about the appellant’s circumstances, and to seek his comment on the information it had received about an arrest warrant issued against him in Slovakia in December 2005, and an accusation that he had failed to pay tax and insurance “in the form of participation”, and on matters related to the residence permit now held by his spouse.

[19] On 12 June 2006, the Secretariat received the representative’s response, dated 9 June 2006. It confirms the couple’s partnership is ongoing and advises they are now expecting a child in October 2006. He also confirms that the spouse has been granted a residence permit, and advises that the appellant was unaware of the arrest warrant until the Authority’s letter of 30 May 2006.

[20] The representative now submits that the appellant should be granted a residence permit. The case for exceptional humanitarian circumstances now rests on his partnership with a residence-permit holder who is employed in an area of skills shortage, the interests of their unborn child who will be a New Zealand citizen, and the advice received from Slovakia police that there are threats to the appellant’s life should he return to Slovakia. These appear to be for reasons relating to the use of his personal details in a fraud against the Government perpetrated by organised criminal elements in Slovakia.

[21] The following documents are provided:

1. Further declarations by the appellant and his spouse, both dated 9 June

2006.

2. Letter from the spouse’s obstetrician, dated 29 May 2006. He confirms her pregnancy and estimated due date, and states it is necessary for the appellant to remain in New Zealand to support the spouse throughout her pregnancy and birth.

3. Letter of support from the ABC Childcare Centre, undated, which confirms the spouse’s employment there for over a year.

4. An extract from the appellant’s residence application which shows that she declared the appellant as her partner.

Later Evidence

[22] The representative’s letter of 9 June 2006 requested leave to provide a statement expected from the appellant’s lawyer in Slovakia by the end of that month. On 28 June 2006 the Authority received a facsimile copy of a statement from the appellant’s lawyer in Slovakia. The original followed on 7 July 2006, together with a further support letter (undated) from the spouse.

STATUTORY GROUND OF APPEAL

[23] 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.”

[24] 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

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

Effect of Sections 7 and 52 of the Act

[26] First of all, the Authority confirms that because the appellant has two criminal convictions for which he has received a combined 12-month suspended imprisonment term, he comes within the provisions of section 7 of the Act. He is therefore prevented from being granted a permit of any kind except by special direction under section 130 of the Act, or by this Authority if it allows this appeal.

[27] The Authority notes at this point the clarification which section 52(3) of the Act provides in respect of the Authority’s jurisdiction to direct Immigration New Zealand, INZ, (which has replaced the NZIS), to grant successful appellants permits of any kind, even when the person “would normally be prohibited from being granted a permit under section 7(1)”.

[28] The relevant statutory provisions state:

“7. Certain persons not eligible for exemption or permit—

(1) Subject to subsection (3) of this section, no exemption shall apply, and no permit shall be granted, to any person—

...

(b) Who, at any time within the preceding 10 years (whether before or after the commencement of this Act), has been convicted of any offence for which that person has been sentenced to imprisonment for a term of 12 months or more, or for an indeterminate period capable of running for 12 months or more; or

...

(2) Paragraphs (a) and (b) of subsection (1) of this section apply—

(a) Whether the sentence is of immediate effect or is deferred or is suspended in whole or in part:

(b) Where a person has been convicted of 2 or more offences on the same occasion or in the same proceedings, and any sentences of imprisonment imposed in respect of those offences are cumulative, as if the offender had been convicted of a single offence and sentenced for that offence to the total of the cumulative sentences:

(c) Where a person has been convicted of 2 or more offences, and a single sentence has been imposed in respect of those offences, as if that sentence had been imposed in respect of a conviction for a single offence.

(3) Notwithstanding subsection (1) of this section, — (a) A permit may be granted to any person—

...

(ii) In accordance with a special direction; or

...”

“52. Where appeal allowed—

(1) Where the Authority decides that an appeal should be allowed, it may direct an immigration officer to take such steps as it considers necessary to give effect to its decision.

(2) Without limiting subsection (1), the Authority may direct an immigration officer to grant the successful appellant—

(a) A residence permit subject to such requirements (if any) as the

Authority may determine; or

(b) A temporary permit for such period and subject to such conditions

(if any) as the Authority may determine.

(3) For the avoidance of doubt, the Authority may direct an immigration officer to grant the successful applicant a permit, and an immigration officer must accordingly grant the permit, even though the applicant is a person who would normally be prohibited from being granted a permit under section

7(1).

...”

[29] The appellant is a married 35-year-old citizen of Slovakia who has been living in New Zealand for over two years.

[30] On appeal, the appellant initially sought to remain in New Zealand on a work permit so he could use his qualification as a mechanic in order to work and continue to emotionally support his spouse following her father’s sudden death in August 2005. It was also submitted (notwithstanding the appellant’s two convictions, about which there were detailed submissions) that it would not be contrary to the public interest for the appeal to be allowed on this basis.

[31] At that stage the spouse had a work permit expiring in July 2007, and was working as an early childhood educator, an area of skills shortage. It was submitted that she would find it very hard to continue to work in New Zealand if the appellant had to leave.

[32] Following the Authority’s most recent communication with the appellant’s representative, there are now additional grounds of appeal. These relate to fears for the appellant’s life should he return to Slovakia at this point, the spouse’s recently granted residence permit, and the couple’s unborn child.

Fears on Return to Slovakia

[33] The representative claims on the appellant’s behalf that he was unaware of the arrest warrant until the Authority’s letter of 30 May 2006. The appellant’s latest declaration of 9 June 2006 states that in the course of trying to find out about the reasons for the outstanding warrant for his arrest, he has also spoken to an officer from the Federal Police in Slovakia, who telephoned him from his spouse’s mother’s house.

[34] The police officer apparently told the appellant that his name and identity have been used by “someone (mafia)” in a large-scale fraud. The Federal Police want him to be a witness, and would withdraw the arrest warrant but do not want him to return to Slovakia, as his life is in danger. Nor do they want the appellant to disclose to the Authority the police officer’s contact details. The police want to

take a statement from the appellant either by coming to New Zealand, or by obtaining Interpol assistance.

[35] The representative submits that Slovakia is “riddled with Mafia controls and protection rackets”, and emphasises that it is a Slovakia law enforcement agency that has stated the appellant’s life is in danger if he returns to Slovakia. However, there is nothing provided from the Slovak police to support this claim.

[36] The Authority has great difficulty in assessing the credibility of the claim that the appellant’s life is in danger in Slovakia, as it relies only on his own evidence and that of his Slovakia lawyer who in turn is relying on information from the appellant. He states:

“According to information given to me from [the appellant] his and his family’s lives are under threat.”

[37] If such threats exist and if there is a strong likelihood that they could be carried out, then they could give rise to exceptional humanitarian circumstances. However, in this case caution dictates that the Authority can give little weight to them because of the lack of credible supporting evidence from independent sources.

Family Circumstances in New Zealand

[38] The appellant and his spouse have been married for nearly three years and state their relationship has existed for longer than that. They arrived in New Zealand together. For the purposes of this appeal the Authority accepts that the appellant has an ongoing partnership with his spouse.

Spouse’s Residence Permit

[39] The representative explains that the spouse could not apply for residence until December 2005, by which time the appellant was unlawfully in New Zealand and could not therefore be included in her application. She had however declared the appellant as her partner. The delay in applying was caused by the wait for the spouse to receive her Certificate in Early Childhood Education and New Zealand Qualifications Authority assessment.

[40] The Authority accepts there were legitimate reasons for the spouse’s delay in applying for residence, and that the appellant was not included in her recent

residence application because of his unlawful status at the time she applied, and not because the marriage partnership itself was in difficulty or had ended.

Spouse’s Qualification and Employment

[41] The representative submits that as a loving and deeply committed couple the appellant’s spouse will accompany the appellant if he is forced to return to Slovakia, which will be a loss to New Zealand of a qualified, early childhood teacher.

[42] When the appellant’s spouse applied for her work permit in July 2005, she had recently completed a New Zealand qualification, a Certificate in Early Childhood Education, but had not yet graduated. By that time she had already spent three months on study release with her current employer, ABC Childcare Centre. A supporting letter from this employer, provided for the spouse’s work permit application, described her as a “fantastic teacher” who had both “the passion and the disposition to make a wonderful teacher”. The Centre struggled to find people with such a passion for quality early childhood education. The spouse’s most recent reference from her employer confirms that the spouse continues to be a much valued and loved member of the Centre’s teaching team. They would be devastated to lose her and she would be very hard to replace.

[43] It is to the spouse’s credit that she was initially granted a two-year work permit on the strength of her employment offer at an early childhood centre. The Authority also confirms that early childhood teachers are on the 28 November

2005 Long Term Skill Shortages List. However, such considerations do not generally entail humanitarian circumstances, and such is the Authority’s position in this case. The Authority notes in any case, the spouse’s intention to return to Slovakia with the appellant in the event he must leave New Zealand.

[44] The representative’s remaining submissions based on the appellant’s family circumstances in New Zealand relate to the appellant’s marriage partnership, the interests of the couple’s unborn child, who will be a New Zealand citizen, the rights of the appellant’s spouse before and after childbirth, and the effect of removal on the whole family.

Marriage Partnership

[45] The Authority has already accepted there is an ongoing marriage partnership between the appellant and his spouse. She is also a citizen of Slovakia but has recently been granted a residence permit.

[46] 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 Covenants relied on by the representative, including Article 23 of the International Covenant on Civil and Political Rights, which provides that the family is the natural and fundamental group unit of society. As such, it is entitled to protection by society and the state. The Authority also notes that part of Article 10.1 of the International Covenant on Economic, Social and Cultural Rights (cited below) states the family is entitled to the “widest possible protection and assistance”.

[47] Underlying these Articles are the principles that individuals have rights to freely enter and to participate in a marriage, and to enjoy family relationships. The appellant’s relationship with his spouse 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.

[48] However, it would be simplistic and wrong to conclude that the fact the appellant is married to a spouse who is now lawfully entitled to remain in New Zealand gives the appellant the right to a similar status, particularly given that she applied for residence when the appellant was unlawfully in New Zealand, and he therefore could not be included with her application. The appellant’s marriage partnership on its own is not an exceptional humanitarian circumstance.

Unborn Child

[49] The couple are now expecting a child, due in October 2006. Article 27 of the Convention on the Rights of the Child 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.”

[50] When a child is affected by an appeal before this Authority, Article 3.1 of the

Convention on the Rights of the Child must also 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.”

[51] 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.

[52] Additionally, Article 9.1 of the Convention on the Rights of the Child states that children should not be separated from their parents except in limited circumstances. Such a provision is generally subject 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. It is however directed towards recognition that families are to be supported to remain intact.

[53] Finally, the Authority has regard to Article 10 of the International Covenant on Economic, Social and Cultural Rights which relevantly 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. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.”

[54] In this appeal, the Authority reminds itself of its obligation to have regard to the principles set out in international conventions such as those cited above, and to balance all the appellant’s circumstances having regard for, and attributing a high value to, his family relationships.

[55] The Authority confirms that if the baby is born in New Zealand it will be a New Zealand citizen by birth. This follows a recent amendment to section 6 of the Citizenship Act 1977 effective from 1 January 2006. That right will flow from the fact that at the time the baby is born its mother’s residence permit entitles her “to be in New Zealand indefinitely” in terms of the Immigration Act 1987.

[56] In the event the appeal is unsuccessful, it is hardly necessary to state that the appellant’s unborn child has no option but to remain with its mother, be it Slovakia or elsewhere. Whether the spouse (and unborn child) remains in New Zealand or leaves with the appellant is a decision for the couple to reach together. Separation of the appellant from his spouse and their child is not an inevitable consequence of the Authority’s decision.

[57] The Authority has been advised that the spouse will accompany the appellant if he must leave New Zealand, in which case the unborn child would obviously go as well. All of the appellant’s unborn child’s extended family live in Slovakia. While many aspects of life may be different in Slovakia, none of the evidence establishes that in the long term the differences for the appellant’s child in Slovakia would not be adequate for the child’s physical, mental, spiritual, moral or social development.

[58] Short-term however, the Authority gives weight to the inherent risks to the unborn child’s well being should the appellant’s spouse undertake distance travel to Slovakia while pregnant.

[59] If on the other hand, the appellant must leave New Zealand, but his spouse chooses to remain in New Zealand without the support of the appellant or of other family, the Authority gives weight to the physical and emotional risks to both mother and child, as well as to impacts on the marriage and family relationships that will be adverse.

[60] The Authority has carefully weighed all of the appellant’s circumstances, particularly those that relate to the spouse’s pregnancy and their unborn child, as well as the spouse’s recent successful residence application. On balance, the Authority finds all the factors that make up the appellant’s circumstances have combined in a cumulative sense to become exceptional humanitarian circumstances which would make it unduly harsh to require the appellant to leave New Zealand at this time.

[61] The first part of the section 47(3) test is therefore met.

Public Interest

[62] The Authority must now consider whether it would be contrary to the public interest to allow the appellant to remain in New Zealand. The appellant has no convictions in New Zealand, but he has two criminal convictions in Slovakia.

There are also police investigations in Slovakia which concern unpaid tax and insurance, in relation to which a warrant has been issued in Slovakia for the appellant’s arrest.

The Two Criminal Convictions in Slovakia

[63] The appellant does not deny either offence, for which sentences were imposed in his absence. Supporting evidence which the Authority has studied consists of: the translated extract from the Criminal Records Register Code (“the Crimes Register”), which records the applicable provision of the Slovak Criminal Code (“the Code”); extracts from the Code; a ‘legal interpretation’ from two different lawyers of the sentences imposed; a declaration by the appellant; and two brief declarations by third-party ‘interested parties’.

[64] In respect of the first conviction in January 2005 the extract from the Crimes Register cites provision 9/2 of the Code. It goes on to state that the A District Court (in Slovakia) imposed: “imprisonment with suspension for 6 months and trial period until [X] January 2006; [followed by] cancelled.”

[65] Provision 9/2 of the Code is headed “Offender, Co-offender and

Accomplice“ under which it states:

“If a crime was committed as a joint act of two or more persons, then each of them is liable as if he/she committed the crime on his/her own (co-offenders).”

[66] The appellant’s declaration gives his account of the facts, and there is a declaration from his friend, but no official court record of facts. According to the appellant and his friend the offence occurred when the appellant, then suspended from driving, was apprehended by the police while driving his friend’s car. Severe stomach ulcer pain had prevented his friend from continuing to drive and the appellant took over; his first thought being to get his friend home for his medication.

[67] The appellant’s declaration also gives an account of why his driving licence had been suspended (on an unknown date for an unknown period of time), apparently after he had a car accident caused by him driving carelessly in bad weather conditions. There is no record of any conviction for careless driving on the Crime Register provided.

[68] The second conviction in May 2005 was for “Obstruction of Justice” under provision 171/c of the Code which states:

“Person, who obstructs or significantly hampers administration of the court’s or other public authority’s verdict by the way that he/she undertakes an activity that he has been prohibited to do, will be sentenced to prison for a maximum of six months or charged with a fine.”

[69] For this, the Crimes Register states that the B District Court (in Slovakia)

imposed on the appellant:

“imprisonment with suspension for 1 year and trial period until [X] May 2007; 3-year prohibition to drive motor vehicles; the assessed sentence is aggregate – the sentence assessed by the [A] District Court on [X] December 2004, File No. [X], has been cancelled.”

[70] Again, there is no official court account of the facts relating to the second conviction. The appellant’s account is that he had to agree to act as guarantor for the purchase of a stereo system because “I did not want to have problems with this person and other people”, but the purchaser failed to keep up the payments. The appellant claims that before he left Slovakia he had been to the police, and was also trying to sort it out with the company.

[71] According to the declaration from the person claiming to be the purchaser, he would not have been able to get consent to buy the stereo on hire purchase without a guarantor. When he defaulted on payments the company “took the matter to court who (sic) started criminal proceedings” for “breach of an agreement” against him and the appellant. This person declares he was responsible and would personally pay the company for the outstanding money. It is not clear from any of the documentation how these facts relate to a criminal charge of obstructing justice.

[72] The Authority is at some disadvantage when considering the two convictions. It has not been provided with an official court record outlining the facts of the offences; it has only the appellant’s description of the facts and legal interpretations of the significance of the sentences imposed, and these documents have been poorly translated.

[73] Nonetheless, the representative’s submission that the facts involved were outside the appellant’s control appears to be at odds with the appellant’s account of the facts.

[74] The representative also submits the appellant was convicted and sentenced on both occasions without either himself or his family receiving notice of either charge, that the appellant is a law-abiding person, and that the sentences would

not have been imposed had he known of the charges and been able to get legal representation.

[75] Certainly, the Authority finds it difficult to understand how the appellant could be convicted and sentenced to a term of imprisonment, albeit suspended, without his knowledge and in his absence. The Authority accepts however that its understanding of the Slovak criminal justice system is limited.

[76] The Authority is satisfied for the purposes of this appeal only, that with the first conviction, while it involved the breach of some kind of order suspending the appellant from driving, the appellant did not have a prior criminal record and the Authority places weight on the fact a suspended prison sentence was imposed.

[77] If the appellant’s second conviction for “Obstruction of Justice” is considered in the context of the New Zealand criminal justice system, it could be more serious. However, it is clear to the Authority from the Code, which states the maximum sentence is six months imprisonment or a fine, that this is not a serious offence. Again, the Authority places weight on the fact that a suspended prison sentence only was imposed.

[78] Further, there has been no attempt by the appellant to deceive the NZIS or the Authority about his convictions. The police certificate he provided when he applied for a visa to come to New Zealand was clear. Since the appellant became aware of the two convictions in the course of applying for a work permit as his spouse’s partner, his representative has made commendable efforts in the circumstances, to place as much information as possible before the NZIS and later the Authority.

[79] Finally, the appellant has a clean police record in New Zealand.

Warrant for Arrest

[80] The Authority received information that in December 2005 a Slovak court issued a warrant for the appellant’s arrest for criminal proceedings relating to unpaid tax and insurance.

[81] When the Authority’s Secretariat sought the appellant’s comment on the warrant, his response was that he had no prior knowledge of it. The appellant’s explanation indicates to the Authority that prior to the couple’s departure from Slovakia he was aware that the police had already started investigations on

matters that involved unpaid taxes imposed at either a state or local level. The investigations possibly also relate to some form of protection money the appellant refused to pay so-called mafia elements, again prior to the couple’s departure from Slovakia. The appellant claims innocence.

[82] The recently-received statement from the appellant’s lawyer in Slovakia (dated 20 June 2006) states he was engaged by the appellant in June 2006 to represent his interests during the period of “preliminary criminal proceeding” and to defend him if required. The lawyer states the appellant is willing to cooperate with the police and doesn’t want to avoid criminal proceedings, but that at the same time it was 2002 when the police first started its investigation and it was unreasonable for the appellant not to work abroad in the meantime. The lawyer states:

“I will do my best on the grounds of the above mentioned facts so that the precept of attachement (sic) could be abolished by the law court as unreasonable.”

[83] According to the statement, the “precept of attachment” (presumably what the Authority’s information source called the warrant for arrest) was issued because the appellant was not at his address in Slovakia and did not receive the “criminal processes” sent by the police.

[84] The appellant’s representative has sought a residence permit for the appellant in the event the appeal is successful, something the Authority is not prepared to do in this case. This is due to the evident gaps in the information before the Authority about the facts relating to the two criminal convictions, and the continuing police investigations in Slovakia in relation to which the warrant for arrest was apparently issued, and which may yet result in criminal proceedings against the appellant.

[85] The Authority has carefully weighed the negative public interest factors in this case. On balance, the Authority finds that it would not be contrary to the public interest to permit the appellant to remain in New Zealand for a strictly limited period. Directing INZ to grant the appellant a short-term work permit will enable the couple to remain temporarily as a family unit in New Zealand, so the appellant can provide emotional and practical support to his New Zealand-resident spouse during her pregnancy, the childbirth and their baby’s early months, in a country where neither has any family apart from each other.

[86] The Authority emphasises that the appeal is allowed only on these limited terms. While conceivably eligible for residence as the partner of a New Zealand residence, the appellant’s immediate and long-term prospects in New Zealand continue to be uncertain due to the appellant’s convictions and the effect of section

7 of the Act. Although not apparently caught by section 7, the as-yet unresolved police investigations in Slovakia and the outstanding warrant for arrest are clearly also adverse character matters.

[87] The onus is on the appellant to provide credible independent evidence that addresses the gaps and uncertainties identified in this decision. Because of the impact of section 7 the options open to the appellant to revisit these character issues are restricted to an approach to the Minister for a special direction, or a further appeal to the Authority in the event a special direction request is declined.

[88] As to the likelihood of success of any future efforts to remain in New Zealand, the Authority emphasises that just because the appeal has been allowed on this occasion, it does not mean the appellant can have any expectation of a favourable outcome for any future application for a special direction or any further appeal to the Authority.

CONCLUSION

[89] Taking into account all the circumstances in this appeal, the Authority has found that there are exceptional humanitarian circumstances which would make it unduly harsh to require the appellant to leave New Zealand at this time. It has also found that the appellant’s presence in New Zealand for a limited period is not contrary to the public interest. Pursuant to section 52(2) of the Act, the Authority directs that INZ grant the appellant a nine-month work permit. The appellant should now approach the nearest branch of INZ for the necessary arrangements to be made with regard to that permit.

.................................................. E M Riddiford

Member

Removal Review Authority