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Removal Appeal No: 46327 [2006] NZRRA 53 (8 May 2006)

Last Updated: 13 January 2012

REMOVAL REVIEW AUTHORITY
NEW ZEALAND

AT WELLINGTON REMOVAL APPEAL NO: 46327

Before: A M Clayton (Member)

Representative for the Appellant: L C Brown

Date of Decision: 8 May 2006

DECISION

INTRODUCTION

[1] The appellant is a 58-year-old United States citizen.
[1] The appellant visited New Zealand briefly in 2002. He married a New Zealand citizen in the United States in March 2003. The couple returned to New Zealand in August 2003 and set up home here.
[1] The New Zealand Immigration Service (NZIS) granted the appellant work permits until it revoked his last permit as from 7 September 2005. The reason given was that the appellant had procured his last permit by concealing relevant information, that is, that he had not declared he had been separated from his wife for three months.
[1] The appellant’s solicitors wrote to the NZIS claiming that the appellant and his wife were not separated when the appellant had made his last application for a work permit, but had had difficulties since, on account of the wife having an affair.
[1] The NZIS responded that the wife had informed the NZIS that she had withdrawn her support for the appellant and that they were no longer in a relationship. Without his wife’s full support the appellant was not entitled to a permit based on relationship grounds. The NZIS was no longer satisfied that the appellant’s relationship was genuine, stable and of an enduring nature. The revocation was to remain effective.

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[6] Having become unlawfully in New Zealand on 8 September 2005, the appellant appealed to this Authority on 17 October against the requirement to leave New Zealand, pursuant to section 47 of the Immigration Act 1987 (“the Act”).
[6] The principal issue for the Authority is whether the circumstances surrounding the revocation of his permit, and his continued reconciliation with his wife, are circumstances which meet the section 47(3) test.

THE APPELLANT’S CASE

[6] The appellant is represented on appeal by his solicitors who reiterate that at the time the appellant lodged his extension for a work permit in early August 2005 he had not separated from his wife. Further, by the time of appeal, the appellant and his wife had settled their differences. A letter dated 10 October 2005 is lodged in which the wife (writing from an address other than the home the couple had purchased together), advises that she totally supports the appellant’s application for residence and continuation of his work permit, confirms they wish to reconcile, and apologises to the NZIS “for the added workload incurred from our situation”.
[6] The appellant and his wife claim they would be devastated if they were to be separated. It is also submitted that the appellant is in good health and is of good character and would be able to qualify for residence under the Family category of Government residence policy.
[9] Further, the appellant has been working successfully in New Zealand and is regarded by his (former) employer and colleagues as a hard-working, conscientious and honest man. Four letters from the appellant’s work colleagues and from his employer are lodged in support of the appeal. The employer states that replacing the appellant would be virtually impossible as he is a senior member of the management team and his tireless efforts have enabled the New Zealand-based car sale company to grow “ten fold”.
[10] Also lodged are two documents from the appellant’s parents-in-law who fully support his appeal and attest to the fact that the appellant was not separated at the time he made his application for a further permit.

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[12] There is also an affidavit from the appellant dated 6 September 2005 in which he states that it is “my intention to continue to work towards reconciling our marriage”. A Certificate of Title is lodged as evidence of the couple owning a home together.
[12] It is submitted on the appellant’s behalf that international obligations require the family unit to be protected. The appellant also has strong emotional bonds with his wife’s extended family including her parents and children.
[12] It is also submitted that it would not be against the public interest to allow the appellant to remain in New Zealand given his excellent employment record and his employer’s keenness to have the appellant return to work for him, because his wife and her family would suffer if he was removed, and because he would not impose any burden on the health system.

STATUTORY GROUND OF APPEAL

[12] 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
(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.”

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[16] As the Court of Appeal observed in Rajendra Patel v Removal Review Authority & Anor [2000] NZAR 200, 204, in respect of the former section 63B(2) which is substantially similar to the current section 47(3):

“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

[16] The Authority has been provided with the NZIS file(s) in relation to the appellant and has also considered the submissions and documents provided on appeal.
[16] The appellant married a New Zealand citizen in the United States in March 2003. The couple has been living in New Zealand since August 2003 and the appellant has evidently assimilated very well into the New Zealand way of life, has worked conscientiously and successfully, and wishes to remain here. The appellant’s wife has an undisclosed number of children and it is submitted that the appellant has an excellent relationship with them, as he does with her parents. Revocation of the Appellant’s Permit
[16] The first ground of the appellant’s appeal is that his last permit should not have been revoked by the NZIS as he was not living in a state of separation when he made his application for that permit. This is essentially a challenge to the justification for, even to the legitimacy of, the Notice of Revocation issued by the NZIS. However, this is not the appropriate forum for such a challenge.
[16] In a recent (unreported) case, L v The Removal Review Authority and The Chief Executive, Department of Labour (High Court, Wellington CIV-2005-485- 1601, 3 March 2006), Young J stated:

“[11] Ground one relates to the allegation the Notice of Revocation given by the

Immigration Service of the appellant’s original permit was defective. I agree with
the respondent’s submissions that this ground cannot be an appeal point in this
Court nor could it legitimately have been the ground for appeal before the RRA. It
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may be a legitimate ground for mounting a judicial review of the Immigration Service’s decision to cancel the appellant’s visa. Review proceedings are now out of time. The RRA is, as I have detailed, limited to considering humanitarian grounds in deciding whether to allow an appeal from the Minister’s decision (s 47(3)). The Act expressly provides that there is only one ground of appeal from a decision to revoke a permit, and thus leaving the appellant unlawfully in New Zealand. This is the statutory requirement set out in s 47(1). No challenge beyond a judicial review in the High Court is therefore permitted to the circumstances which create the unlawful presence of the appellant in New Zealand. Thus the Immigration Service decision to revoke a permit cannot be challenged directly before the RRA. To repeat, the RRA is limited to considering humanitarian matters pursuant to the s 47(3) criteria.”

[21] The Authority accepts Young J’s warning that this Authority’s jurisdiction cannot be extended to sitting on review of NZIS decisions to revoke permits. Its jurisdiction does not extend to providing a “second chance” to an appellant or correcting an oversight or perceived unfairness that has led to an appellant’s predicament. The appropriate challenge to such decisions is to seek a judicial review in the High Court.
[21] But the Authority draws a distinction between not being able to directly challenge the legitimacy of a Notice of Revocation, and taking into account the facts (or allegations, as the case may be) upon which the NZIS has relied in order to revoke a permit. Where unfair procedure results in, or contributes to, a situation for an appellant that warrants being described as exceptional humanitarian circumstances, that appellant may well be able to succeed before this Authority.
[21] In this case the revocation of his permit has caused the appellant the loss of his job, not to mention a large amount of unwelcome stress. Significantly however, there is no record on appeal of any express denial by the wife that she gave the type of information to the NZIS which it used to justify the revocation of the appellant’s permit. There is no evidence that the NZIS acted unfairly, let alone to the extent that exceptional humanitarian circumstances could be said to have been created.
[21] Not only did the NZIS revoke the appellant’s permit but it also refused to grant a further temporary permit to the appellant. The grant of temporary permits remains always at the discretion of the NZIS (sections 9 and 35A of the Act) and the Authority can attribute no obligation, express or implied, to the NZIS to have granted the appellant a further permit in this case.

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The Appellant’s Marriage

[25] The appellant and his wife have had difficulties in their relationship which evidently prompted the appellant’s wife to advise the NZIS that she had withdrawn her support and that their relationship was no longer extant. However, by the time of the appeal these matters had apparently been addressed and the appellant and his wife wish to continue with their reconciliation, something they could not do if the appellant was forced to leave New Zealand.
[25] New Zealand has 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 (ICCPR). The Court of Appeal in Tavita v Minister of Immigration [1994] 2 NZLR 257 has identified those obligations as being relevant to considerations in immigration decision-making.
[25] Of particular relevance to this case are Articles 23.1 and 23.2 of the ICCPR: "1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognised.”

[25] The weight given to the appellant’s marriage to a New Zealand citizen must be balanced between international convention (not to mention basic human understanding) and section 47(4) (see paragraph 15 above), which states plainly that meeting Government residence policy does not in itself constitute exceptional humanitarian circumstances.
[25] This Authority has, in numerous decisions, stressed that marriage to a New Zealand citizen or resident will not in itself necessarily meet the high test this Authority has to apply in determining appeals under section 47(3) of the Act. In other words, marriage itself will not necessarily result in an appellant meeting the relevant criteria.
[25] At present the appellant is unlawfully in New Zealand. If he were not so, or if he were outside New Zealand, he could apply for residence on the basis of his married relationship. But the only way that the Authority can allow the appellant to remain in New Zealand – in order to make a residence application from onshore – is to find exceptional humanitarian circumstances. In this case it does not, for the following reasons.

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[31 ] The Authority has been asked to consider the emotional effects 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 hardship or difficult choices, which the couple may well face if the appellant goes offshore to make applications for either temporary or permanent status, would be of such a nature or duration as to seriously jeopardise their wellbeing.

[32] In any event, requiring the appellant to leave New Zealand does not enforce a state of separation between him and his wife. The Authority observes that the couple actually married in the United States, not New Zealand. There have been no reasons specifically submitted as to why the appellant’s wife could not accompany him to his home country.
[32] At the same time it is acknowledged that the appellant and his wife own a property in New Zealand and that the wife has children, although there are no submissions made as to where these children live, their ages, the extent of their dependency on their parents/natural father, or indeed the strength of their relationship with the appellant. The appellant’s parents-in-law attest to a very close relationship with him. Nevertheless, these are circumstances which cannot be genuinely described as exceptional humanitarian circumstances. Nor can the fact that the appellant has worked successfully and is an asset to his employer’s company.
[32] While there may well be financial, emotional, and other sacrifices to make, the appellant has family in the United States (he declares his mother and two siblings there). Having given serious consideration to the effects the appellant’s leaving New Zealand would have on himself, his wife, members of her extended family, and the appellant’s employer, and to all the other factors put before this Authority, it does not find that it would be unfair or unduly harsh for the appellant (on his own, or with his wife) to have to return to the United States and to make, if he wishes, an application for residence from his homeland.

CONCLUSION

[35] The Authority has considered all aspects of the circumstances of the
appellant as disclosed to it. Taken collectively, the Authority finds that there are
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no exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant(s) to be removed from New Zealand.

[36] 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.
[36] The appeal is dismissed.
[36] 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.

A M Clayton

Member

Removal Review Authority