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Removal Appeal No: 46442 [2006] NZRRA 58 (11 May 2006)

Last Updated: 13 January 2012

REMOVAL REVIEW AUTHORITY
NEW ZEALAND

AT WELLINGTON REMOVAL APPEAL NO: 46442

Before: A M Clayton (Member)

Representative for the Appellant: Roy Mottram

Date of Decision: 11 May 2006

DECISION

INTRODUCTION

[1] The appellant is a 23-year-old citizen of China, who came to study in New Zealand in May 2003.
[1] His final student permit was due to expire on 31 March 2006 but the New Zealand Immigration Service (NZIS) revoked his permit as from 13 January 2006 on the basis that the business college at which the appellant had enrolled had advised that he had withdrawn from his studies.
[1] On 22 February 2006 the appellant appealed to this Authority against the requirement to leave New Zealand, pursuant to section 47 of the Immigration Act 1987 (“the Act”).
[1] The issues for the Authority are whether the circumstances of the revocation of the appellant’s permit and the fact he has a partner and child temporarily resident in New Zealand constitute exceptional humanitarian circumstances which would make it unjust or unduly harsh to require him to leave New Zealand.

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THE APPELLANT’S CASE

[5] On his appeal form the appellant declares a de facto partner, a Chinese-born woman who holds a work permit.
[5] The appellant states that he had satisfactorily completed English language studies to the point where he could commence a Diploma in Business. Four months after he started the course he had a period of non-attendance because his partner, after becoming unexpectedly pregnant, became ill, and he sought to defer his course. At no stage did he cancel his course or seek a refund of his fees and it was his full intention to resume his studies. He deeply regretted the fact that he did not seek a period on a visitor’s visa while he cared for his partner but he was not informed that he could do this.
[5] The appellant lodged with his appeal:

• (a) An NZIS Notice of Revocation dated 19 December 2005 revoking the appellant’s temporary permit on the basis that he had withdrawn from studies at the ABC Business College.
• (b) A copy letter dated 3 January 2006 from the appellant to the NZIS in
  respect of the Notice of Revocation. In it he explains that he had initially enrolled in the ABC Business College in the summer school intake which ranged from October 2005 to February 2006. In July 2005 he and his partner found that his partner was pregnant:

“She was feeling sick a lot and even vomited sometimes. Due to low flows of iron, calcium, and some other minerals in her body, she often had ringing ears and leg cramps, felt too stuffed and dizzy, and even experienced faint during shower. She also had some emotional depression due to the physical problems.”

His partner’s mother could not visit until early 2006 so he decided to defer his course until January 2006. He was not aware at the time that he should have changed his visa or that it was not acceptable to defer his course. He seeks another chance to achieve his study goals in New Zealand.

(c) A letter dated 24 January 2006 from the NZIS advising that the information
the appellant had provided had been considered but it was not accepted that there was good cause to reverse the decision to revoke his permit because ABC Business College had advised the NZIS that he had withdrawn from studies at its college.

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(d) A letter dated 1 February 2006 from the academic manager of
ABC Business College noting that the appellant had been enrolled on a business course but was considered to have withdrawn from the course after a period of non-attendance. The manager states that before the college had informed the NZIS of this the appellant returned to school and explained his circumstances, requesting a deferral so that he could continue his studies in the new semester. In late December (2005), following a visit to the school by NZIS officers, the NZIS revoked the appellant’s visa:

“... as we had been incorrectly allowing students to defer from their summer courses (a policy which we now realise is not appropriate and has been abandoned).”

The manager then goes on to say that as the appellant and his girlfriend were expecting a baby within three weeks of the date of his letter it was unlikely the appellant would be able to perform all the requirements of a student at the present time. However, a temporary visitor’s visa was sought to allow him time to settle into his new role as a father and consider his future education.

(d) A copy of the appellant’s passport and a computer record of his permits.
(d) A radiologist’s confirmation of the appellant’s partner’s pregnancy,
concluding “Normal pregnancy at 18 weeks”, as at September 2005; and blood test results dated 20/23 January 2006 in respect of the partner, noting decreased haemoglobin and low B12 level.
(d) A receipt for $5,625 for a New Zealand Diploma in Business course and a
letter, both from ABC Business College and dated 2 February 2006, confirming the appellant’s enrolment in a course commencing 9 January 2006.
(d) An updated (2 February 2006) offer of a place from ABC Business College
in which the appellant’s enrolment is confirmed with a programme date from 11 July 2005 to 11 July 2007.
(d) A Ministry of Justice letter dated 20 December 2005 advising that it held no
criminal conviction information concerning the appellant.

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Further Information Requested

[8] Following receipt of this appeal the Authority directed its Secretariat to write to the appellant seeking further information pursuant to sections 50(4)(a) and 50(5) and (6) of the Act. This the Secretariat did on 5 April 2006. It sought a copy of the appellant’s child’s birth certificate and confirmation of the child’s immigration status; information as to whether the appellant was named as a secondary applicant in his partner’s application for residence or Expression of Interest; and advice as to whether his partner was still working and whether her mother had arrived from China. The appellant was also invited to provide any update which might impact on the Authority’s test of exceptional humanitarian circumstances which would make it unjust or unduly harsh for him to be required to leave New Zealand.
[8] The appellant’s representative responded on 27 April 2006. A birth certificate for the appellant’s child, born in February and eligible only for temporary immigration status in New Zealand, was supplied. It was also confirmed that the appellant’s partner had received an invitation to apply for residence and that the appellant was named as secondary applicant. The appellant’s partner was working and her mother had arrived from China. It was submitted that the appellant’s “only mistake” was to take time off his studies to take care of his partner during the late stages of her pregnancy. Both he and his partner had a good record in New Zealand and he wished to normalise his status and continue studying.

STATUTORY GROUND OF APPEAL

[9] 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.
(1) 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

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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.
(3) 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.”
[11] 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

[11] 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.

Revocation of the Appellant’s Permit

[11] The appellant’s last student permit was revoked on the basis that he failed to attend his classes. The appellant claims, backed up by his college, that he believed he could defer the start of his course until a later semester and that he did this because his partner was feeling ill while she was pregnant. While it is noted that even the appellant’s college has acknowledged that it was incorrectly allowing students to defer their summer courses, it is outside the Authority’s jurisdiction to revisit the basis of the NZIS decision to revoke the appellant’s student permit. See L v The Removal Review Authority and The Chief Executive,

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Department of Labour (High Court, Wellington CIV-2005-485-1601, 3 March 2006), in which Young J stated:

“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.”

[14] This does not mean that circumstances surrounding the revocation cannot form part of the appellant’s circumstances which this Authority can and must consider in order to determine whether he reaches the high threshold of the section 47(3) test.
[14] In this case, the appellant had failed to attend classes (for how long is not known), and his college was evidently poised to advise the NZIS of his non-attendance, when the appellant approached the college and advised it of the reason for his absences. While ABC College was prepared to allow him to defer his course, the NZIS advised the college soon after that such deferral was not acceptable.
[14] It is acknowledged that the appellant’s partner fell ill and her mother was not available to care for her. On the other hand, there is no medical evidence as to just how serious the partner’s condition was. On the evidence presented, the appellant could have been expected to attend college occasionally or at least to advise the college sooner than he did, as to why he was not attending.
[14] It remains that a student permit not only entitles a person temporarily in New Zealand to study, but also anticipates that they will do so. To allow otherwise would be to jeopardise the principles and enforcement of temporary permit policy, wherein different types of permits are granted for different activities in New Zealand.
[14] The reality of the appellant’s situation was that the purpose of his stay in New Zealand had changed significantly (from being a full-time student to a person not attending his course at all). That the permit he had been granted in order to accomplish his original purpose here was revoked did not create exceptional humanitarian circumstances nor did it make the resulting requirement for him to leave New Zealand unjust or unduly harsh.

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The Appellant’s Partner and Child

[19] Those then were the circumstances at the time of the revocation. The appellant has now been in New Zealand for almost three years. No evidence has been produced to support the claim that he and his partner have been living together but it is accepted that they had a baby together in February 2006.
[19] The appellant’s partner has apparently returned to work and presumably this employment will assist her in obtaining points for her residence application, in which the appellant is named as secondary applicant. The mother of the partner has come from China to help the couple care for their child and the appellant wishes to return to his studies.
[19] 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.
[19] Children born in New Zealand before 1 January 2006 automatically became New Zealand citizens. However, children such as the appellant’s, born after that date, are entitled only to temporary immigration status if both or one of their parents, as in this case, holds temporary status. (See the provisions of the Citizenship Act 1977, as amended by the Citizenship Amendment Act 2005).
[19] The Court of Appeal case of Puli’uvea v Removal Review Authority [1996] 14 FRNZ 322 made it plain that the best interests of children affected by an appeal of this kind shall be a primary, but not the paramount, consideration. While the appellant’s child is not a citizen of New Zealand, the Authority adopts the Court of Appeal’s clear direction, given that the appellant’s child is one affected by her father’s appeal.
[19] However, even where in the past a New Zealand-born child obtained New Zealand citizenship by stint of his or her birth, this Authority did not accept, without more, the submission that dismissing an appeal from a parent of a New Zealand-born child enforced a state of separation between that parent and child.
[19] While it is not expressly contended here that the appellant’s removal might separate him from his partner or his child, such a possibility must be considered in any event. If his partner (and child) elects not to accompany him if the appellant is

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required to leave New Zealand, that decision is one that the appellant and his partner will be making. Separation from family is not a necessary consequence of the appellant’s removal from New Zealand.

[26] Also relevant is Article 27 of the Convention on the Rights of the Child 1989 (CROC):

“1. States Parties recognise the right of every child to a standard of living adequate for the child’s physical, mental, spiritual and 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.”

[26] The Authority has considered the emotional effects that a removal is likely to have on both the appellant, his partner and their child. However, no medical or psychiatric evidence has been provided to suggest any particular area of concern. The partner has the company and support of her mother, albeit on a temporary basis, if she elects to stay in New Zealand. None of the evidence provided satisfies the Authority that the 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, or their child’s, wellbeing. Nor is there any evidence that if the appellant’s child does accompany him to China, the child’s development (in terms of Article 27.1 above) would be negatively affected to any serious degree.
[26] The revocation of the appellant’s permit means that he is not able to stay in New Zealand and apply for a further permit while he remains here unlawfully. Other than by way of a successful appeal to this Authority, or a successful request to the Minister to direct that a permit be granted as an exception to policy, the only alternative for the appellant is to go offshore to make a further application to remain in New Zealand.
[26] The appellant should know that his partner’s application for residence, in which he is named as the secondary applicant, can be processed whether he is in the country or not. In the meantime, section 47(4) of the Act (see paragraph 10 above) makes it clear that the fact the appellant might meet, or even would meet, the requirements of Government residence policy does not in itself constitute exceptional humanitarian circumstances.
[26] While there may well be financial, emotional, and other sacrifices for the appellant and his partner to make, it is neither contended nor accepted that the

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appellant would be without support upon his return to China. He has his only family members, namely his parents whom he has declared in applications to the NZIS, living in China.

[31] Having given serious consideration to the effects the appellant’s leaving
New Zealand would have on himself, his partner, their child and members of their extended families, the Authority does not find that it would be unfair or unduly harsh for the appellant (with or without his partner and child) to have to return to China and await the outcome of his partner’s application for residence from his homeland.

CONCLUSION

[32] 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(s) to be removed from New Zealand.
[32] 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.
[32] The appeal is dismissed.
[33] 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