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Removal Appeal No: 46254 [2006] NZRRA 37 (31 March 2006)

Last Updated: 28 December 2011

REMOVAL REVIEW AUTHORITY
NEW ZEALAND

AT WELLINGTON REMOVAL APPEAL NO: 46254

REMOVAL APPEAL NO: 46255

Before: B H Slane (Member)

Representative for the Appellant: Patricia Thoman (Exodus New Zealand)

Date of Decision: 31 March 2006

DECISION

INTRODUCTION

[1] The first appellant is a citizen of Chile, in her 40s. The appeals include the daughter of both appellants, aged 12.
[1] The second appellant is also a citizen of Chile, in his 40s.
[1] The appellants are referred to as “the wife” (the appellant in Removal Appeal No AAS46254), “the husband” (the appellant in Removal Appeal No AAS46255), “the daughter”, and jointly as “the appellants”.
[1] The appellants arrived in New Zealand on 16 May 2004. The daughter’s final permit expired on 6 July 2005, the wife’s final permit expired on 7 July 2005, and the husband’s valid permit was revoked effective from 28 July 2005. On 15 August 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”).

BACKGROUND
[5] On 2 June 2004 and 30 June 2004 respectively the appellants applied for

refugee status with the Refugee Status Branch (RSB) which declined their

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applications on 25 February 2005. They appealed to the Refugee Status Appeals Authority (RSAA) which heard their appeals on 18 and 19 May 2005 and dismissed them on 9 June 2005.

[6] The appellants’ case for refugee status is set out in the RSAA decision. They claimed that they were at risk of serious harm at the hands of AA, a vengeful right-wing politician who has hounded and harassed the wife because of the wife’s support of the Socialist Party.
[6] The appellants say that the wife has been dismissed from employment four times, was arbitrarily detained overnight by the police and the family has been subjected to 20 years of weekly abusive telephone calls, all at the instigation of the politician AA. It is claimed that, after two attempts were made to kidnap the daughter, the appellants decided that the family needed to leave Chile for safety.
[6] The appellants are Evangelical Christians from working class backgrounds. They married in 1984. They also have a son who remained in Chile, studying at university but according to NZIS records arrived in New Zealand on 28 November 2005 and holds a visitor's permit.
[6] In 1982 the wife began working at ABC, a local government bureau, in a clerical role where she was one of a small number of workers who were supervised by BB, who herself reported to AA, a supporter of the right-wing Renovacion Nacional Party. Because of their political differences, the wife came to AA’s attention. She began to regularly harass and humiliate the wife at the office, unfairly criticising her and denigrating her in front of other staff-members. AA began making telephone calls to the wife at home, telling her that she was foolish to support the Socialist Party. In 1984 the wife was dismissed from her employment but found employment quickly at DEF, a government agency, where she worked until 1989 and did not experience any difficulties at work before her dismissal in 1989. She continued to receive weekly telephone calls from people she realised were associates of AA.
[7] In 1989 AA stood as a candidate for the Renovacion Nacional Party and was elected a Member of Parliament. The wife’s involvement in the Socialist Party reduced because the task of restoring democracy to Chile had been achieved. In 1989 the wife was again dismissed without reason. She was told unofficially that the head of her department was a friend of AA who had engineered her dismissal. She obtained further employment promptly at a local government agency, GHI.

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She did not experience any difficulties at work, though the intimidating telephone calls to her home continued to be made.

[11] In 1992 the wife lost her employment for the third time. She was told that she was being made redundant. Her supervisor informed her that AA had again asked that the wife be dismissed. The wife soon obtained further employment this time with JKL, another local corporation office where she worked without incident until 1996 when she was made redundant again. The family decided to leave Santiago and move back to the wife’s hometown of A, where the appellants opened a small retail business, which operated so successfully that they were soon able to open two further retail outlets. For a year, the family received no further malicious telephone calls but these resumed in 1998. This occurred despite the wife effectively stopping any activity for the Socialist Party when the family moved to A.
[11] In September 2001 the wife was arrested and taken to the police station where she was told to wait for the arrival of an officer. She was simply held overnight in an office before being released the following morning without explanation. Later the wife received a telephone call in which she was asked if she had “learned her lesson”.
[11] The wife and the husband consulted a lawyer and went back to the police station but they were told that there was no record of the wife having been detained and so, feeling that there was no prospect of pursuing the matter to a satisfactory result, they dropped their complaint. The telephone calls to the home and the shop which was attached to the house continued.
[11] In October 2002 two men attempted to pick up the daughter from school. They were questioned by suspicious school staff and they eventually left without giving their names. Shortly after, the wife received a telephone call alluding to the kidnapping attempt and making it clear that AA had been responsible.
[11] A second attempt by the same men to uplift the daughter from the school was made in April 2003. Again, it was foiled by alert staff and the wife received a telephone call which made it clear that AA had been the instigator of the incident.
[11] In mid-2003 the wife wrote a letter to the Appeals Court, asking that her plight be investigated but did not receive any reply. The family decided that the only safe course was to leave Chile. They applied for passports, which were

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issued in early 2004 and they sold their three shops, car and furniture. Before leaving they installed their son at university and then flew to London where they sought advice on applying for refugee status in England and were told they would not be successful. The wife was told that she has a distant relative in New Zealand and so the family spent all of their remaining funds on tickets to New Zealand. They arrived here on 16 May 2004. They had been informed by the son and by the purchaser of one of the shops that there had been enquiries made about their whereabouts.

[17] The RSAA found that there were independent news sources and commentaries on AA’s political life and her right-wing ideology. Apart from that, the RSAA found that the appellants’ account was not credible. It was disbelieved.
[17] The RSAA found that the wife had only a superficial knowledge of socialist principles and no real grasp of Chilean politics. She claimed that the political leaders of the Socialist Party were friends with right-wing politicians such as AA. She appeared to know little of trade unions and had not sought the protection of a trade union. The wife gave varying reasons for never having joined the union. Her vagueness on the point was unconvincing in the view of the RSAA.
[17] The wife told the RSB that she had written a speech for the head of her branch to read at a rally, encouraging others to join the party but on appeal made no mention of writing a speech. When asked for an explanation she said that she sometimes had taken part in group discussions to help the head of the branch when he was writing a speech. The RSAA found her explanations not convincing.
[17] The RSAA considered it implausible that AA would have engineered the wife’s dismissal from employment on no less than four occasions in near identical circumstances each time. She worked at her second, third and fourth jobs for periods of five years, three years and four years respectively. It was inexplicable that AA would do anything to cause her dismissal from work after such long periods. The wife’s explanation that she was such a good employee that each employer resisted AA’s efforts to have her dismissed was facile and had to be balanced against the wife’s simultaneous claim that AA is so powerful that even the police and politicians from other parties are subject to her will. The wife had been inconsistent as to the dates of her employment and her husband could not recall the wife informing him on any occasion of having been dismissed.

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[21] The RSAA considered it implausible that the wife would have suffered 20 years of weekly telephone calls from AA or her associates given the extremely minor role which the appellant claims to have played in the Socialist Party - not even being a member. The RSAA found it astonishing that the wife did not complain to high-ranking officials in the Socialist Party itself.
[21] The RSAA found that the claim that the wife was arrested one night in early 2001 did not bear scrutiny.
[21] The RSAA considered that the claim that AA twice tried to arrange the kidnapping of her daughter was simply fanciful. There may in fact have been attempts to kidnap the daughter who herself gave evidence of the school principal speaking to her about the first attempt. However, the wife conceded that Chile is a poor country where kidnapping for extortion is commonplace. The appellants were running a visibly successful business and the wife conceded that the probable motive was to seek a ransom.
[21] The RSAA noted that the wife claimed that her father had recently been assaulted by a person seeking their whereabouts but when her husband was asked by the RSAA whether he had received any relevant news from Chile since their arrival in New Zealand, he made no mention of the attack on his father-in-law. Asked to explain why he did not mention it, the husband claimed that he did not do so because he understood the incident to have nothing to do with them.
[21] The RSAA found there was an inherent implausibility to the whole of the evidence of the husband and the wife in terms of their failure to respond reasonably or sensibly to the claimed harassment over a 20-year period.
[21] The RSAA found that the Chilean authorities were capable of providing adequate state protection against attempts made by criminals to kidnap their daughter.

THE APPELLANTS’ CASE

[21] With their appeals the appellants provide personal statements as does their daughter.
[21] In her statement the wife says they had to sell their shop and all their belongings to cover the cost of the airline tickets and had to leave their son and an

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established family life because the problems faced in Chile had become unbearable. Their life was agonising, painful and miserable. She says they were hunted and traumatised because of political problems. They had experienced a near kidnapping of their daughter from her school. The wife was arrested by the police. The wife had constant malicious telephone calls for a very long time. The wife and her son had to turn to a psychologist to obtain help and were prescribed medication to keep them calm. All this had happened because she belonged to a different political party from her first boss.

[29] The husband and wife were self-employed having two florists shops in Chile and a grocery. They felt unprotected from the authorities because they were not as important as the person who was attacking them. The wife and her children never went anywhere by themselves. Her son living in Chile moves only from his apartment to University. It was not an easy decision leaving the son behind who wanted to complete his study at the university. After one year and three months they feel fully integrated into the New Zealand way of life. If the appellants were to return their opponents and enemies would be waiting for them with more drastic and punishing decisions which could “come to a death for one of my family members or possibly all...”.
[29] In his statement the husband says that in New Zealand the three of them have had the opportunity to live in tranquillity and freedom and live as a normal family and live in communion. The decision to leave their country had been difficult and distressing and had been done for their mental health. Their daughter is every day happily mixing in school life and has learned the English language. It would be too dramatic returning to Chile because:

“it’s a place where we suffered too much and don’t wish this for our daughter as she’s so happy here in New Zealand.”

[29] In her statement the daughter, then aged 11, says that to go back to Chile would be sad and they would be living afraid of the problems that her mother had with AA. Her mother and brother had been to the doctor to obtain medicine and some people had tried to get her out of the school. She says she does not want her parents to cry like they did in Chile. For her to go back would be to go back to the past which would be painful and her life would be short. She is so happy and calm in New Zealand and has friends and is learning English at school.
[29] With the appeals, the appellants provided 12 letters of support from people who had come to know them as a family, from people for whom the husband had

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provided house painting or gardening services, from their landlord, from their daughter’s school and from their daughter’s friends. Evidence is also provided of the appellants having attended classes for speakers of other languages, certificates of achievement for their daughter at school, as well as a school photograph. They supplied their own certificates of identity and police clearance certificates and a translation of their marriage certificate. The husband and wife provided telephone and electricity accounts to confirm their residence and 16 family photographs.

[33] On 18 January 2006 the Authority caused the Authority’s Secretariat to write to the appellants noting the Court of Appeal decision Talukder v Removal Review Authority [2000] NZAR 194 which stated at page 198 that, while the RSAA’s conclusions are in no way binding on the Removal Review Authority, it is clearly reasonable for it to have regard to those findings of the RSAA on substantially similar evidence affecting those humanitarian considerations within the province of this Authority.
[33] The letter stated that whilst the appellants did not specifically take issue with the findings made by the RSAA, they appeared to base their claim to remain in New Zealand on substantially the same matters which were dealt with by the RSAA. The Authority at that stage did not see any reason to depart from the credibility findings of the RSAA. It invited them to make comments and any further submissions and/or to provide any further evidence in respect of any of the matters raised or generally in support of their appeals.
[33] The appellants who had been representing themselves, responded through a representative, Patricia Thoman, who in a letter dated 1 March 2006 provides the Authority with formal submissions and a number of attachments. Another letter dated 1 March 2006 with some later material is filed and further submissions are made in that letter.
[33] With the first letter dated 1 March 2006 is a bundle of articles from the internet stated to be sourced from a leftist website sympathetic to the Socialist Party in Chile. Counsel draws attention to two articles, “Evolutionary study on the effects of torture and repression in the family” and “Violence and Contra-violence in Chile”. The following are also provided:

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(a) The Chilean National Police Force Accusation Report dated
December 2004 with English translation recording an event involving the appellants’ son;
(a) A further letter in support of the appeals from the husband;
(a) A further letter of support for the appeals by the daughter of the
appellants reporting that she is sick and stating that she does not wish to go to Chile where she was unhappy;
(a) A letter dated 27 February 2006 from a psychotherapist reports on
the husband, who had suffered a change in health in respect of anxiety and stress levels with poor sleep. Despite medication, the husband feels stressed with poor quality of sleep. A tentative formulation is that the husband had chronic anxiety which has not abated with the help of medication and is experiencing upheaval because of uncertainty over his family’s ability to reside in New Zealand. He is also distressed by the commencement of vitiligo on his hands and slightly on his face. His daughter and her mother are also becoming anxious. It is proposed to offer short-term
psychotherapy on a weekly basis aimed at teaching stress management/relaxation techniques and enhance his existing skills where his own resourcefulness and courage will be emphasised.

[37] The second letter dated 1 March 2006 enclosed the following:

(a) A copy of a certificate with an English translation dated October 10
2005 from a lawyer who was consulted at the request of the family when the wife was arrested and taken to the police station. The lawyer was then in the final year of studying law at university and was only able to give advice:

“The only problem that could be investigated was that, at this time, [the wife] was experiencing political harassment and persecution.”

(a) A copy of a certificate with English translation from the principal of
the school, certifying that in October 2002 and April 2003 two people who are unknown to the school community tried to take the daughter from the college:

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“We know that the purpose of this kidnapping the aforementioned pupil was to psychologically punish her mother because of political problems that she had experienced in the past.”

The police had been notified and no satisfactory response was received.

(c) A certificate and English translation from the husband’s employer for
the period 1997 until 2003 confirming his responsibility and efficiency. The work for the company was for temporary periods.
(c) A certificate and English translation from a general practitioner dated
7 June 2005, confirming that from records dated from August 2000 until November 2003 the son had been diagnosed and monitored because of his suffering from depression and anxiety disorder derived from problems suffered by his family since his mother had been publicly harassed because of her political position. He had been treated with anti-depressive medication.
(c) A certificate from a general practitioner dated 7 June 2005 stating
that medical records at the medical centre dating from May 1998 until November 2003 showed that the wife had been diagnosed and monitored because of her suffering from repressive depression and anxiety disorder resulting in problems caused by third persons due to her political position. Diagnosis and treatment had been based on therapy and anti-depressive medication.
(c) A letter from an Auckland general practitioner dated 13 February
2006 stating that she had seen the husband who is suffering from anxiety/depression relating to immigration issues:

“He is not able to sleep, appetite has decrease and is experiencing anxiety attacks frequently, thinking that the family may have to leave N.Z.”

The letter says that the daughter is suffering from similar symptoms. The doctor had also diagnosed that the husband has hypothyroidism and he had started treatment for that.
(g) A letter dated 9 February 2006 from the principal of the daughter’s

primary school in Auckland confirming that she was now:

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“one of our very responsible school leaders who speaks English fluently”.

Her parents had been involved in the school and the daughter was an excellent student. With the letter are a number of certificates from the school relating to the daughter’s skills and achievements and confirming her enrolment.

[38] In her formal submission the appellant's representative submits that parts of the reasoning in the RSB decision and the approach to the wife’s credibility and the conclusions reached have been flawed and unfair. With regard to the RSAA decision it is submitted that the RSAA followed much of the same reasoning of the RSB decision particularly that which focused on the wife not having much political knowledge. The RSAA’s finding that the wife was not convincing, and that she could not explain the difference in the events she had told the RSB and the RSAA, appeared to have a lasting effect on the remainder of the RSAA decision. The appellants advise that they were under extreme pressure mentally, financially and physically at the RSAA hearing. The wife was feeling very depressed and in despair that she would not be believed. By the time she was interviewed by the RSAA she felt that no matter what she said the conclusions reached by the RSB would hold. As she had no documentary evidence of powerful people in Chile harassing her and having a vendetta against her she felt powerless to convince the RSAA. This made her lack confidence before the RSAA.
[38] It is submitted that during the reign of Pinochet any supporter of the Socialist Party easily made enemies and was open to blatant harassment and persecution and it was not difficult to accept that AA could have been vengeful against the wife. The wife did not show respect or friendliness to AA. That infuriated her more, possibly making her determined to harass the wife to show her who was the most powerful. It is submitted that the credibility analysis of the RSAA was “somewhat biased” as it was more than eight years after she stopped her support of the Socialist Party that she was questioned about it and other events which occurred in the early 1980’s. Because an asylum seeker is unable to retell events “in accurate and concentrated details” more than once did not mean those events did not happen.
[38] The submission cites the United States Department of State’s Country Reports on Human Rights Practices – 2004 (28 February 2005) stating that the government generally respected the human rights of citizens, problems remained

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in some areas, and there were isolated reports of excessive use of force and mistreatment by police officers and physical abuse in jails and prisons. The representative says there is evidence that there are reports of abuse and mistreatment by the security forces making it more difficult for civilians to approach them. The report stated that “the Constitution prohibits such practices” but isolated reports of abuse and mistreatment by Carabineros, the Investigations Police, and prison guards were still received. It is submitted that it is easy for people such as the appellants to be persecuted and harassed by those who are in power. Once a powerful person has something against a defenceless and less powerful person in Chile they can do anything to ensure the lives of their victims become difficult. The representative points to the bundle of country information as support for the proposition that Chilean people live with extensive abuse and corruption by people in power leading to mental and psychiatric problems and difficult lives.

[41] The appellants had advised that their son was attacked in December 2004 by unknown men on his way to university. The man had a knife and attacked him with it causing a cut on his left forearm. A copy of the police report is submitted.
[41] To escape the anguish, fear and the anxiety which the persecution and harassment had created they left their country and flew to London without thinking clearly about they were doing and trying to achieve, just wanting to get away from what they clearly felt was danger to their children and their livelihood. The appellants consider that had they not left Chile when they did they may have become victims of further and other types of harassment from AA and her supporters. Sooner or later their shops would have been attacked in some way and they would have been forced to close down. They also feared that one or both of their children might have disappeared.
[41] Being declined refugee status on credibility has had a considerable effect on the husband’s mental psyche and left him open to profound depression. This is particularly pronounced as he dwells on the life he and his family had in Chile and the possibility that now they might be returned to it. It is submitted that there is a strong possibility he might deteriorate beyond help and be unable to recover. The physical and psychiatric condition is a direct indication of the fact that the family were harassed and persecuted indirectly by AA while they lived in Chile.
[41] The representative also refers to the daughter experiencing anxiety and depression. She would deteriorate on return to Chile.

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[45] In the second submission dated 1 March 2006 the representative argues that it was more than a coincidence that all members of a family could suffer to such a great extent if nothing were going on in their lives, or they were not being harassed or persecuted. The wife and her son were experiencing major mental health problems while in Chile and these have been alleviated somewhat since she has been in New Zealand and able to live peacefully and securely. The problems are now manifesting themselves in the husband and daughter. Proper emphasis must be placed on the events and harm which had befallen the daughter and the son in Chile.
[45] The decision of Tavita v Minister of Immigration [1994] 2 NZLR 257 is cited to show that the best interests of the child need to be taken into account. It is submitted that there is a high chance that further attempts will be made to abduct her from school should she return to Chile. It would not therefore be in her best interests if her parents were removed from New Zealand because obviously she would have to accompany them.

STATUTORY GROUND OF APPEAL

[45] These appeals 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
(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

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Government residence policy requirements for the grant of a residence permit does not in itself constitute exceptional circumstances of a humanitarian nature.”

[48] 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

[48] This Authority has set out in some detail the RSAA’s assessment of credibility because the appellants based their case on the circumstances as put forward in their claim for refugee status. The Authority drew their attention to the credibility findings and sought further comment on them.
[48] The Authority has been provided with the NZIS files in relation to the appellants and has also considered the submissions and documents provided on appeal.
[48] The Authority notes that much of the narrative that is told and the submissions made in these appeals speak of the actions directly or indirectly of AA, a right-wing politician, who has not been a member of a party in government for some years. The RSAA in its decision noted that in a 20-year period the wife did not complain either to the police or to the Socialist Party about the telephone calls she had received. The wife said she did not complain to the police because they would be subject to AA’s influence. However, at the 1989 election the Socialist Party entered into a coalition with the Christian Democrats and several other parties. The coalition has won all three of the elections since democracy was restored in Chile. The right-wing coalition which includes AA’s party has not since that time formed a government. The RSAA accepted that there would have been little to have been gained by complaining to the police prior to 1989 but found it inexplicable that the appellants did not do so at any time in the 15 years after the

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wife’s own party came to power. The RSAA considered it astonishing that after 1989 the wife did not complain to high ranking officials in the Socialist Party itself. She told the RSAA that she did not do that because those at the head of the party are in fact good friends with AA. The RSAA found such claim as fanciful as AA represents the extreme right-wing of Chilean politics and it was not credible that Socialist Party members of parliament would ally themselves with a pro-Pinochet right-wing politician.

[52] This Authority gave the appellants an opportunity to comment on the RSAA findings and they did in a number of respects. However, no rebuttal was made to this particular finding of the RSAA. Nor was any submission made on the RSAA comments on the length of time the wife maintained employment in each case before she was allegedly dismissed because of the influence of AA. It is unlikely that AA would allow time to pass in each employment before causing a dismissal.
[52] The RSAA is a specialist body with experience in dealing with appellants who are anxious and under stress. The experienced member of the RSAA who dealt with the appeals had ample opportunity to hear both appellants. The RSAA questioned her on her links with the Socialist Party which she said had caused her persecution by a right-wing politician, AA. This Authority is independent of the RSAA but it has come to the same conclusion as to the credibility of the wife’s evidence. The RSAA is experienced at assessing claimants and their story. The Authority does not detect any bias in the approach taken by the RSAA.
[52] The Authority accepts that there were two incidents at the school in which men endeavoured to take the daughter from the school. They were not successful because the school authorities would not allow her to go. The Authority does not accept that those incidents were not properly investigated. Nor does it accept that the appellants could not expect proper security and protection at the school or by the police authorities.
[52] Contrary to the submission that Chile is a country where events outlined by the wife as happening to her can easily occur and in which repression by the powerful is in force, the cited reports of the United States Department of State noted that civilian authorities maintains effective control of security forces and the police force has an extremely low incidence of corruption. This was fully set out in the RSAA’s decision and the quotations from the report in the appellants’ submissions to this Authority were selective and even then did not bear out the contention that they were put forward to support.

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[56] The appellants have provided information about their psychological conditions. This refers to depression and anxiety disorders between 1998 and 2003. The husband had received anti-depressive medication as had the wife who also received therapy. In New Zealand the husband had sought assistance from a general practitioner who said that he was experiencing anxiety attacks frequently, thinking that the family may have to leave New Zealand. There is the suggestion that the daughter is suffering from similar symptoms although it is not clear that the general practitioner had seen the daughter.
[56] The husband was referred to a psychologist who reported that he still felt stressed despite medication. There was tension in the home and his daughter is also becoming anxious as is the mother.
[56] It is apparent that both the parents have suffered some symptoms which have been treated over a period of about five years while they were in Chile but full details have not been supplied.
[56] It is understandable that they would have sense of anxiety because their refugee claims have been declined and their credibility has not been accepted by either the RSB or the RSAA. However, it was not suggested that they would not be able to function nor that appropriate treatment would not be available to them in Chile. The Board does not consider that the depression and anxiety that they have experienced are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for them to be removed from New Zealand.
[56] The husband and the wife have two children, one living in Chile (who has been visiting New Zealand) and another who came with them to New Zealand and who is now aged 12. She has been attending school in New Zealand very successfully.

[61 ] 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 interest of the child shall be of paramount consideration."

[62] It is clear from the Court of Appeal’s decision in Puli’uvea v Minister of Immigration, 14 FRNZ 322 that Article 3(1) is indeed to be taken into account. That decision makes it clear that although the interests of the child are not a (or the) paramount consideration they must be a (not the) primary consideration.

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Therefore, in determining an appeal by parents in respect of a child such as the daughter, and with knowledge of the other child resident in Chile, the best interests of the children are a primary consideration to be balanced against other relevant considerations, including the objectives and integrity of New Zealand’s immigration laws and policies.

[63] International conventions are a highly relevant consideration in the application of the section 47 test. For instance, Article 23(1) of the International Covenant on Civil and Political Rights 1966 provides:

"The family is the natural and fundamental group unit of society and is entitled to protection by society and the State."

[64] Other relevant articles from the Convention on the Rights of the Child include the following:

“Article 27

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. ..."

[65] It appears that the daughter has become anxious about the future and this is not surprising since both her parents have anxieties about the outcome of these appeals following the failure of their bid for refugee status. They have accepted that should the appeals fail, the daughter would return with them to Chile where her brother lives. He has suffered a minor assault. There is concern that there have been two attempts to kidnap the daughter from school in Chile. Although there is some concern that she may be subjected to similar attempts in the future, the wife conceded to the RSAA that these attempts were probably more related to the visibility of the husband and wife in three retail businesses at that time. The situations that did exist were investigated by the police but the men were not arrested. Country information is clear that the police forces have a low level of corruption. It is reasonable to expect that like any other child she may expect the protection of the security of the school which has worked for her on two occasions and of the police. No attempt has been made to kidnap the son.

[66] The Authority notes that the flight of the appellants and their daughter first
to London and then to New Zealand split the family. While the daughter might
suffer some reduction in her quality of life if the family leaves New Zealand, the
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important factor for her is that she remain with her parents and retain those strong relationships with the immediate family. Apart from one relative here there is no substantial nexus with New Zealand. The daughter has progressed in English and no doubt this would prove useful for her in any event. The Authority does not consider that the daughter’s return to Chile would severely compromise her physical, mental, spiritual, moral or social development.

[67] The Authority finds no exceptional circumstances of a humanitarian nature in relation to the daughter which would make it unjust or unduly harsh for her and her parents to be removed from New Zealand.
[67] The Authority appreciates that a return to Chile would however impact on each of the appellants. It may well cause emotional hardship. It is inevitable that when family members leave for another country on what can only be short-term permits and if their claim to refugee status fails, even if they would prefer to live in New Zealand where they perceive life would be better for them, there is ultimately an expectation underlying the immigration status that they would have to return to their homeland. The appellants have had the opportunity to test their refugee claims with the NZIS and on appeal. They have also had the benefit of consideration independently by this Authority which applies a different test. However, it is clear that this is a high threshold test.
[67] The Authority notes the favourable references that have been given in respect of the parents and their daughter. This is not exceptional as many people wanting to settle in New Zealand are hardworking and have good work skills and experience. Many children work hard and successfully at school and make friends.

CONCLUSION

[67] The Authority has considered all the evidence submitted and the submissions made but does not find that, even cumulatively, there are exceptional circumstances of a humanitarian nature which 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.
[67] The appeals are dismissed.

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[72] 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 a removal order served on them. Should a removal order 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.

B H Slane

Member

Removal Review Authority