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Removal Appeal No: 46248 [2006] NZRRA 3 (10 January 2006)

Last Updated: 18 December 2011

REMOVAL REVIEW AUTHORITY
NEW ZEALAND

AT WELLINGTON REMOVAL APPEAL NO: 46248

Before: A M Clayton (Member)

Representative for the Appellant: Himself

Date of Decision: 10 January 2006

DECISION

BACKGROUND

[1] The appellant is a 25-year-old male citizen of Chile, who arrived in New Zealand in late 2002. He claimed refugee status approximately a year later. His claim was unsuccessful.
[1] The appellant’s subsequent appeal to the Refugee Status Appeals Authority (RSAA) was dismissed in March 2005.
[1] The appellant married a New Zealand citizen in May 2005. His wife, aged 37, is Chilean born and has been a citizen of this country since 1981. She has two children aged approximately 14 and 11, and she and the appellant claim he has adopted a father’s role in respect of them.
[1] The appellant’s last permit was revoked on 30 June 2005. Thereby becoming unlawfully in New Zealand, he appealed to this Authority on 9 August 2005 against the requirement to leave New Zealand.

THE APPELLANT’S CASE

[1] The appellant writes that he wishes to stay in New Zealand because he has made plans for his future with his wife and her children, his stepchildren, for whom he provides stability and love. The appellant explains that both he and his wife

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have had difficult lives in the past and now they do not wish to be separated. He needs to be with his new family and support them as much as possible. The family will be destroyed if he has to depart. He has a stable job and is looking forward to opening up his own plastering business. This will give the family more financial security as it has been very hard for his wife in the past to sustain the family on her own. If the appellant has to leave he says his wife will suffer emotionally and the stability they have achieved as a family will be reversed.

[6] The appellant’s wife also writes in support of the appeal. She says that meeting the appellant in mid-2004 dramatically changed her life and those of her children. He is now the pillar of her home and her life. The children’s biological father gave up his responsibilities and the appellant has taken the immense role of parenthood upon himself. She describes him as “a great role model, hard worker, caring, respectful and responsible, and provider ...”. The appellant’s wife explains that she is finishing her degree in teaching and pleads for her husband and the stepfather of her children to remain in New Zealand.
[6] There are seven further letters lodged in support of the appeal. These are from the appellant’s employer, from a client, from the appellant’s and his wife’s church and from a Trust with which they have had contact, and from close friends who attest to the couple’s relationship, the appellant’s care for his wife’s children, and other laudable aspects of the appellant’s character. Also lodged is a copy of the front page of the appellant’s passport and a copy of the appellant’s marriage certificate showing that at the time their marriage was solemnised, the appellant and his wife shared a common address, that the appellant had never been married, and that the wife’s previous marriage had been dissolved in September 2003.

The Appellant’s Refugee Status Claim

[6] It is useful to set out the appellant’s refugee status claim at this point. His contention was that he was at risk of serious harm if he was returned to Chile, on account of his past activities in a left-wing political group. The appellant told the RSAA that in his late teens he had been arrested twice for attending protests organised by the group. He described being assaulted by police but on both occasions he was eventually released without charges being laid. It was the appellant’s evidence also that when he attended a demonstration in early 2000 (protesting against the British Government’s refusal at that time to allow Pinochet to be extradited to Spain) he was warned by two men to stop his activities. His

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parents began receiving phone calls from people seeking his whereabouts. The appellant believes he was fired from his job because of his political stance.

[9] The RSAA did not find the appellant’s account as to his involvement with the political group and his consequent troubles to be credible. It recorded that his evidence was:

“... characterised by his vagueness and by a significant number of discrepancies and mobility as to key aspects of his account.”

[10] The RSAA did however accept that the appellant genuinely held left-wing views and had attended some demonstrations. Nevertheless it found, on the country information available to it, that he would be able to hold and express his political opinions without a real chance of suffering serious harm.

Appellant’s Comment on RSAA Findings

[11] Having received this appeal, the Authority directed its Secretariat to write to the appellant and to enclose a copy of the RSAA decision of 30 March 2005. The appellant was invited, if he wished to rely in this appeal on the possibility of being harmed in Chile, even if he had to return there only temporarily to apply to re-enter New Zealand, to make submissions on the RSAA’s findings.
[11] The Secretariat’s letter advised the appellant that at that juncture, the Authority saw no reason to depart from the RSAA finding that he would be able to hold and express his political opinions in Chile without a real chance of suffering serious harm. The appellant was assured that the Authority had not yet determined this issue, which was one of a number it needed to consider, and that it could take a different view on further information or submissions. However, it was important that the appellant was aware of this view, which was open to the Authority on the material then before it.
[12] The appellant responded in regard to selected paragraphs of the RSAA decision. He distinguished between informally and formally joining the left-wing group in answer to the RSAA’s finding that his evidence in this regard was contradictory. The RSAA had also noted that the appellant’s evidence as to whether members of his group had been electrocuted by the police was vague. In his response to the Authority’s Secretariat the appellant said it was hard to distinguish if people being tortured were from his group or not.

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[14] As to the finding by the RSAA that the appellant had changed his evidence as to how many times he went to group meetings, this was, he said, because he feared for his safety and this had made him distant from the group. He said he had told his group about the assaults on him by police. He also said that his parents received threatening telephone calls twice a month initially only (there being a discrepancy in his evidence to the RSAA as to the number of calls) and that his parents were now happy that he was away from danger. He said that the causes of his being dismissed from work were not clear but that he had told his employer some of the things that were happening in his life, and that it was a short time after this conversation that he was dismissed.

STATUTORY GROUND OF APPEAL

[15] This appeal has been lodged pursuant to section 47 of the Act, the 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
(a) 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.”

[16] As the Court of Appeal observed in Rajendra Patel v Removal Review Authority [2000] NZAR 200, 204, in respect of the former and substantially similar section 63B(2):

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“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

[17] 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.

Risk in Chile

[17] The first of two platforms of appeal is that the appellant would be in danger if he returned to Chile. Identical grounds resulted in an unsuccessful claim for refugee status and an unsuccessful appeal in respect of that claim.
[17] The Secretariat’s letter to the appellant expressed the Authority’s preliminary view that it saw no reason to depart from the RSAA’s factual findings. The Authority has carefully considered the appellant’s responses. Those
responses however are vague and inconclusive. Furthermore, the appellant has not provided any further evidence, in particular country information, which would convince the Authority that he is in any particular danger because of his left-wing views in Chile’s current political climate.
[17] The RSAA is a specialist tribunal which was able to assess not only the credibility of the appellant but also the country information that his representative had supplied and which it secured itself. None of the explanations the appellant has provided about his activities in Chile persuade this Authority that the RSAA was incorrect and that his essentially low-level political involvement, which occurred over six years ago, would make him the subject of negative police, political or other attention if he was to return to Chile now.

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New Zealand Wife and Stepchildren

[21] The Authority notes that the appellant has married a Chilean-born New Zealand citizen, some twelve years his senior, and that the marriage occurred two months after the dismissal of his RSAA appeal. He and his wife claim to have known each other for a year before this and this is corroborated to some extent by the letters presented to the Authority by friends and supporters. The appellant’s wife has two children and it is contended that he has assumed the role of their father.
[21] New Zealand has some obligations to protect the family unit which have been defined in terms of international law, notably in the International Covenant on Civil and Political Rights 1966 and the Convention on the Rights of the Child 1989. The Court of Appeal in Tavita v Minister of Immigration [1994] 2 NZLR 257 has identified these obligations as being relevant considerations in immigration decision-making. The same Court’s decision in Puli’uvea v Removal Review Authority and Another 14 FRNZ 322; [1996] BIR Digest A.4.2 prescribes the approach to be taken by bodies such as the Authority when considering the interests of children: that is, while those interests must be a primary consideration as per Article 3.1 of the Convention on the Rights of the Child, those interests are not the paramount consideration.
[21] In this case the Authority acknowledges that in determining the appellant’s appeal against the requirement that he leave New Zealand it should give weight to the facts that he is married to a New Zealand citizen and that there is some evidence that he is the step-parent to two children, also presumably New Zealand citizens.
[21] The evidence provided to the Authority indicates that the appellant’s marriage may well be genuine and stable. This raises the prospect of the appellant being eligible, if he were not presently unlawfully in New Zealand, to apply for residence on the basis of that relationship.
[21] Nevertheless section 47(4) of the Act (see paragraph 15 above) makes it clear that the mere fact an appellant’s circumstances are such that he would meet applicable Government residence policy requirements, does not in itself constitute exceptional circumstances of a humanitarian nature. Importantly, the appellant is able to make such an application from outside New Zealand in any case.

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[26] The appellant is unlawfully in New Zealand, and requiring him to leave does not enforce a state of separation between him and his immediate family in New Zealand. The Authority has found that the appellant would not be in danger in Chile. There have been no reasons specifically submitted as to why he could not be accompanied to that country by his wife and her children.
[26] The Authority does acknowledge however that the appellant’s wife is studying, and that she has two children who are attending school. In the more likely event then of the wife remaining in New Zealand with her children, the appellant’s sojourn in Chile would not necessarily be permanent. An application from offshore could be made to test the appellant’s eligibility for residence on the basis of his marriage. The reason he would not be physically living with his wife would be taken into account by the New Zealand Immigration Service when assessing the appellant’s application. Alternatively, the appellant could apply offshore for a temporary permit to re-enter New Zealand.
[26] The Authority has been asked to consider the emotional effects and psychological harm that a removal is likely to have on both the appellant and his wife. However, no medical or psychiatric evidence has been provided to suggest any particular area of concern. None of the evidence provided satisfies the Authority that any short-term hardships which might result from the couple’s separation while he makes applications for either temporary or permanent status in New Zealand from offshore, would be of a nature or duration as to seriously undermine the family unit’s stability and well-being.

CONCLUSION

[26] The Authority has considered all aspects of the circumstances of the appellant 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 appellant 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.
[26] The appeal is dismissed.

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[31] In dismissing this appeal, the Authority draws to the attention of the appellant that, pursuant to section 53(1)(b) of the Act, he 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.

A M Clayton

Member

Removal Review Authority