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Removal Appeal No: 46092 [2006] NZRRA 60 (16 May 2006)

Last Updated: 16 January 2012

REMOVAL REVIEW AUTHORITY
NEW ZEALAND

AT WELLINGTON REMOVAL APPEAL NOS: 46092

46093

Before: A M Clayton (Member)

Representative for the Appellants: The appellants represented themselves

Date of Decision: 16 May 2006

DECISION

INTRODUCTION

[1] The appellants are a married couple, both Israeli citizens in their early thirties.
[1] The appellants arrived in New Zealand on 24 February 2004 and filed refugee status claims a fortnight later. They were granted temporary permits pending the outcome of their claims.
[1] Their claims for refugee status were declined on 22 June 2004, as was an appeal to the Refugee Status Appeals Authority (RSAA) on 20 December 2004.
[1] The last of their temporary permits were revoked by the New Zealand Immigration Service (NZIS), as from 26 January 2005, as a result of the appellants’ failure to gain refugee status.
[1] Having become unlawfully in the country, the appellants appealed to this Authority on 7 March 2005 against the requirement to leave New Zealand, pursuant to section 47 of the Immigration Act 1987 (“the Act”).

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THE APPELLANTS’ CASE

[6] The appellants were initially represented by a solicitor who, having set out the chronology of the appellants’ time in New Zealand, notes that both the Refugee Status Branch (RSB) and the RSAA declined their claims for refugee status. Counsel acknowledges that this was because the RSAA found that the risk of the appellants being the victims of terrorist attacks was a remote one rather than at the level of a real chance.
[6] It is submitted that, nonetheless, the appellants are “unable to return to Israel”, as they remain scared and worried that they would be part of the attacks there. Even though they would not be specifically targeted, the situation in Israel is submitted to be getting worse.
[6] The appellants have a New Zealand-born child and their fears extend to their son who might also become the victim of attacks in Israel.
[6] The appellants are self-employed, but have also had the opportunity to learn much needed skills in plant propagation that would benefit the horticultural industry.
[9] In their own statements the appellants explain that they have many friends and supporters in the community who want them to stay and who have become like family to them. They say it would be very hard to leave them and it would also be unjust for their child not to be allowed to grow up in the country of his birth.
[9] On behalf of their dependent child, the appellants state that their son would want to grow up in the country of his birth and have his parents with him. He would be eager to help his parents in their work and to be a good and valuable New Zealand citizen.
[9] On his appeal form, the appellant husband declares his parents and two siblings to be living in Israel. On her appeal form the appellant wife declares her parents and four siblings to be living in Israel also.
[9] Lodged in support of the appeals are:

1. Copies of Particulars of Marriage showing that the appellants married in

New Zealand in March 2004.

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2. A New Zealand birth certificate in respect of the appellants’ son showing that he had been born in September 2004.
2. Copies of the appellants’ Notices of Revocation.
2. Copies of the appellants’ RSB decisions dated 22 June 2004 and a copy of their joint RSAA decision dated 20 December 2004.
2. Seven letters of support for the appellants from employers, their landlord, and other supporters in the community.
2. Amnesty International articles detailing the continuing violence in the appellants’ homeland.

[14] In addition, this Authority notes that the appellant husband was convicted of offensive behaviour in July 2005 and fined $100 with costs. The appellant has explained how he became involved in an altercation, saying he was provoked and regretted the incident. The Authority records that it has not taken this matter into account in the determination of these appeals.
[14] On 22 February 2006 the appellants advised this Authority that their solicitors were no longer acting for them and they were representing themselves.

STATUTORY GROUND OF APPEAL

[14] These appeals have 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

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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.”

[17] 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

[17] The appellants have lodged on appeal copies of their RSB and RSAA decisions. The appellants’ evidence to the RSB and the RSAA was that two of the husband’s school friends had been killed in a bomb explosion in Israel in 2000; another of his friends was killed in a suicide bombing in 2001; the son of an acquaintance was killed also in a suicide bombing in 2001; a friend of the wife’s was killed and a neighbour’s son injured in a bus explosion in 2001; and that the appellants together witnessed the bombing of a bus in 2002, a memory which still haunts them.
[17] The RSB, which interviewed the appellants, accepted their evidence without reservation. The RSAA, which reached its decision without interviewing the appellants, also accepted the truthfulness of their accounts as to past events, for the purpose of determining their appeals.
[17] The RSAA recorded the appellants’ submissions to be that life was frightening and dangerous in Israel and that the Israeli government could not protect civilians against random terrorist attacks. They also submitted that terrorism was increasing and Israel was becoming more dangerous and intolerable. While the appellants accepted that they would not necessarily be

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specifically targeted, this was only because terrorists would kill anyone, without warning.

[21] In assessing the level of risk facing the appellants as Israeli civilians, the RSAA reviewed the number of deaths in four years of the “Intifada” compared with the total Israeli population. It noted that according to BBC statistics, 424 civilians had been killed in Israel by Palestinians as well as 208 civilians in the West Bank and Gaza Strip. In a population of 6.4 million the RSAA concluded, even taking into account the likely expansion of those figures for persons who had been wounded, the risk of harm faced by individual Israelis was remote. Thus, while there did exist a risk to the appellants that they might be victims of a terrorist attack, that risk did not rise to the level of a real chance.
[21] This Authority is independent of the RSAA and exercises a de novo jurisdiction over matters relevant to its statutory test. However, this does not mean that decisions of the RSB and RSAA are irrelevant, especially in circumstances where appellants before the Authority seek to repeat their refugee claims.
[21] In this case, the Authority readily adopts the positive findings of credibility of the RSB and RSAA. It must then determine, on the basis of that accepted evidence, whether the appellants have exceptional humanitarian circumstances which would make it unjust or unduly harsh for them to be required to leave New Zealand.
[21] In this case, the Authority has a good deal of sympathy for the appellants who have had to experience the deaths of close friends and other acquaintances and who have also had to witness the horrible aftermath of a bombing in which they described to the RSB seeing people trying to escape and also seeing parts of human bodies. It is accepted that such events would have deeply affected the appellants.
[21] But, as the appellants acknowledge themselves, by their very nature terrorist attacks are random. They deliberately do not target particular people, because they are designed to maximise fear in the general population. The appellants have not seriously endeavoured to undermine the conclusions of the RSAA on the essential point that they face no real chance of persecution or risk of attack if they return to their homeland. They cannot demonstrate that they would be in any more danger than any other person living in Israel.

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[26] If it was found that the appellants’ circumstances were exceptional humanitarian circumstances on the grounds of being at risk in Israel it would follow that every Israeli citizen, once they had obtained entry to New Zealand and their permit had expired, would be entitled to stay in New Zealand on humanitarian grounds. That extrapolation is obviously not the case, and clearly demonstrates that there would have to be an additional – exceptional, humanitarian – factor for these appeals to succeed.

The Appellants’ Child

[26] The appellants have a New Zealand-born child, a New Zealand citizen by virtue of his birth here in 2004, who is now some 20 months old. New Zealand has particular obligations under international law with respect to children. New Zealand’s Court of Appeal in Tavita v Minister of Immigration [1994] 2 NZLR 257 identified that these obligations are relevant considerations in immigration decision-making, and are consequently relevant to the determination of these appeals.
[26] The same Court’s decision in Puli’uvea v Removal Review Authority [1996] 14 FRNZ 322 noted with particular reference to children that Article 3 of the Convention on the Rights of the Child (“the Convention”) requires that the best interests of a child affected by an appeal of this kind is a primary, but not the paramount, consideration.
[26] A 20-month-old child’s basic need is to be with his parents. However, in Schier v Removal Review Authority [1998] NZAR 230 at 239, the High Court noted that there is nothing in the Convention which entitles children to have their parents remain in New Zealand when their parents can be lawfully removed.
[26] If the appellants leave New Zealand, their child will remain a citizen of New Zealand. He will retain all the rights given to him by relevant statutes. No action is being taken to remove him from this country or to separate him from his parents. The parents in the present case will make their own choice to retain their family unit and take their child with them if they must leave. That is their election and is not the state’s or this Authority’s decision. It is also a matter that the appellants must have, or should have, foreseen from the outset when they had a child in New Zealand.
[26] Having said that, the Authority must give serious consideration to the best interests of the appellants’ child. In this case it must, and does consider whether,

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by accompanying his parents out of New Zealand, his standard of living would be so inadequate in Israel as to jeopardise or severely compromise his physical, mental, spiritual, moral or social development (see Article 27.1 of the Convention).

[32] In this case there is no evidence at all that the appellants’ child’s standard of living, although it might be different from what he would experience in New Zealand, would be inadequate to any degree. There is no evidence, for example, to suggest that the appellants’ child would not receive an adequate standard of education and welfare in Israel. Further, all of the child’s (maternal and paternal) extended family lives in Israel, whereas here neither he nor his parents have any family at all. Most importantly, the risk to his life there from a terrorism attack is no greater than the remote prospect faced by his parents.

Well-Settled in New Zealand

[32] The fact the appellants are well-settled in this country has arisen because the appellants elected to file an application for refugee status which ultimately failed. It could not be said that they had any reasonable expectation of permanent residence when the temporary permits granted to them were to enable them to remain here only until that application was determined.
[32] It is acknowledged that the appellants are keen to make a contribution to New Zealand and to establish a family life here. It is acknowledged too that this decision will be of extreme disappointment to them. Nonetheless, the
circumstances of the appellants’ situation here in New Zealand, their past experiences in Israel and their future prospects there, do not singularly or cumulatively, reach the threshold of exceptional humanitarian circumstances which would make it unjust or unduly harsh, on themselves or their child, for the appellants to be required to leave New Zealand.

CONCLUSION

[32] The Authority has considered all aspects of the circumstances of the appellants 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 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.

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[36] The appeals are dismissed.
[36] In dismissing these appeals, the Authority draws to the attention of the appellants that pursuant to section 53(1)(b) of the Act, they 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.

A M Clayton

Member

Removal Review Authority