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Removal Appeal No: 45969 [2006] NZRRA 5 (11 January 2006)

Last Updated: 18 December 2011

REMOVAL REVIEW AUTHORITY
NEW ZEALAND

AT WELLINGTON REMOVAL APPEAL NO: 45969

Before: W Olphert (Member)

Representative for the Appellant: David Pinomi

Date of Decision: 11 January 2006

DECISION

INTRODUCTION

[1 ] The appellant is a citizen of Tonga and is presently aged 30. The appeal

includes his dependent child [BB] aged six.

[2] The appellant first arrived in New Zealand on 10 January 2003 departing

New Zealand on 7 February 2003. His last arrival was 15 February 2003. He was
granted a visitor’s permit to 15 March 2003. His last visitor’s permit granted by the
New Zealand Immigration Service (NZIS) on 9 October 2003 was valid to

9 October 2004. The appellant’s young son arrived in New Zealand on

10 December 2002 accompanied by his mother and both were granted visitor’s permits on arrival valid to 10 March 2003.

[3] On 22 November 2004 the Authority received this appeal against the

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

BACKGROUND

[4] Shortly after the appellant’s wife’s arrival in New Zealand she was

diagnosed with a severe illness and had major surgery in February 2003. She subsequently died in South Auckland [in] November 2003.

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[5] The appellant’s last visitor’s permit to be in New Zealand expired on 9 October 2004 and his son’s student permit that had been issued on 16 September 2004 expired on 30 October 2004.
[5] There is no known criminal record in respect of the appellant in New Zealand.

THE APPELLANT’S CASE

[5] The appellant’s representative provided typed submissions dated 16 November 2004 and notes the following:
(a) The appellant travelled to New Zealand because his wife was very ill in New Zealand at the time having medical treatment for an operation which could not be performed in Tonga. The appellant’s wife and son had come to New Zealand for a [camp] held in Auckland during December 2002.
(a) The appellant comes from a very poor family in Tonga who would like to enjoy the convenience that this country can offer. He is willing to work and contribute to the economy.
(a) In Tonga his wife was working for the Government as a schoolteacher and her income supported their family. Now that she has passed away New Zealand provides a better opportunity for the appellant and his son.

Documents Provided on Appeal

(a) A copy of the appellant’s son’s passport.
(a) Copy of his son’s birth certificate.
(a) Copy of the medical certificate as to the cause of death of the appellant’s late wife.

STATUTORY GROUND OF APPEAL
[8] This appeal has been lodged pursuant to section 47 of the Act, the relevant

provisions of which are:

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“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.”

[9] 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):

“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

[10] 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.
[10] The NZIS files in relation to this appellant and his late wife confirm that his late wife and son came to New Zealand for a church camp in December 2002.

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Unfortunately the appellant’s late wife developed a serious illness for which surgery was undertaken. However sadly the appellant’s wife passed away late in 2003.

[12] The submissions of the appellant’s representative to this Authority are essentially that the appellant would have a better way of life in New Zealand than in Tonga. His representative says that the appellant’s late wife was working as a schoolteacher. The appellant on the other hand was also working in Tonga as a driver for [ABC Company] and was granted annual leave in January 2003 to spend time with his wife in New Zealand.
[12] Not mentioned in his representative’s submissions to this Authority is the possibility that the appellant is in a relationship with a New Zealand citizen, a Ms AA, who wrote a letter to the NZIS in October 2004 supporting an application to extend the appellant’s temporary permit in New Zealand. I am prepared to accept that the appellant has been and may still be in a relationship with a New Zealand citizen who he met through his church. If that relationship has developed then it may be possible for this appellant to lodge an application for residence but that will need to be done from his home country. I recognise that the breaking up of a relationship can and may cause emotional and financial hardship both for those who must leave and for those who stay. These are matters that I give substantial weight to when considering whether or not there are exceptional circumstances of a humanitarian nature which would make it unjust or unduly harsh for the appellant to have to leave New Zealand. Equally I have to consider not just that the appellant may be in a relationship but all other factors surrounding the appellant and balance those as best I can.
[12] The appellant has a young son who no doubt misses his mother but has clearly the support and guardianship of his father. This is evident from his father acting as his son’s responsible adult noting in the appeal form that his son wants to stay in this country legally and go to school in New Zealand and visit his mother in the cemetery. I accept that the appellant’s late wife is buried in New Zealand and visiting her grave is important to both the appellant and his son. That however can be done by coming to New Zealand on short visits to visit members of his family in New Zealand.
[12] The interests of the appellant’s son are important and are taken into account by me in determining this appeal. That is clear from the Court of Appeal decision in Tavita v Minister of Immigration [1994] 2 NZLR 257. The interests of

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the child must be considered by this Authority. This Authority has carefully weighed up the best interests of not only the child but also where that child will continue to live. There is nothing before me to suggest that the young child will continue to remain in the guardianship and custody of his father.

[16] I note that the appellant has his parents, a sister and three brothers living in Tonga with whom no doubt he will receive comfort and support.
[16] I can accept that a return to Tonga by the appellant and his son will have some emotional impact because they will be leaving behind other relatives they have in New Zealand and the fact that they have been here for just over three years. I want them both to know that I have given this matter most anxious consideration and have come to the conclusion that their best interests are served by returning to their home country.

CONCLUSION

[16] The Authority has considered all aspects of the circumstances of the appellant and his son 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 and his son 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.
[16] The appeal is dismissed.
[16] In dismissing this appeal, the Authority draws to the attention of the appellant and his representative that pursuant to section 53(1)(b) of the Act, the appellant has a period of seven days after the date on which this decision is notified to him to leave New Zealand before he is at risk of having a removal order served on him. Should a removal order be served on the appellant after that seven-day period he would be prevented from returning to New Zealand for a period of five years. The removal order to be served on the appellant’s dependent child will only remain in force until the dependent child leaves New Zealand.

W Olphert

Member

Removal Review Authority
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