Residence Appeal No: 15547 [2007] NZRRB 391 (27 November 2007)

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RESIDENCE REVIEW BOARD NEW ZEALAND
AT WELLINGTON	RESIDENCE APPEAL NO: 15547
Before:	G Melvin (Member)
Representative for the Appellant:	Russell Page
Date of Decision:	27 November 2007
Category:	Family (Dependent Child)
Decision Outcome:	Section 18D(1)(a)

[1] The appellant, aged eight, is a citizen of Kuwait who applied for residence under the Family (Dependent Child) category of the Government residence policy.

[2] Immigration New Zealand (INZ) declined the application because the appellant's sponsor, his mother, had not satisfied it that she was lawfully and permanently in New Zealand. The appellant appeals against that decision. The principal issue for the Board is whether the appellant has special circumstances such that an exception to the Government residence policy should be considered.

[3] According to information on the appellant's INZ residence application file, his mother obtained New Zealand residence in 1994 and has since travelled in and out of New Zealand on a regular basis.

[4] The appellant was born in late 1998. His residence application was submitted to INZ on 14 July 2006. The application included a translation of a custody order, issued in July 2005 by a Kuwaiti court, granting custody of the appellant to his mother. The application also included a translation of a declaration by the appellant's father in which he gave his approval for the appellant to travel abroad with his mother.

[5] By letter dated 25 September 2006, INZ required the appellant's mother to provide certified copies of the custody document and the declaration from the appellant's father. It noted that the father's declaration did not state that the appellant's mother had the sole right to decide where the appellant lived or that the father agreed that the appellant should live permanently in New Zealand. It also recorded that the appellant's mother had spent a substantial amount of time outside New Zealand and it required her to provide evidence that New Zealand was her established place of residence. The relevant policy provisions were set out in the letter.

[6] The appellant's mother replied by email on 1 April 2007. At that time, she was out of New Zealand. She stated that she had already sent INZ custody papers for her son through her lawyer. She advised that it was very hard to get an authorisation letter from her husband. She did not live with him as they were separated and he had beaten her. She stated that she was suffering where she was, that she wanted to get her children out of the situation they were in as soon as possible and that she was planning to come to New Zealand within the next month. She wanted to put her children in school and live safely.

[7] By letter dated 4 April 2007, INZ advised the appellant's mother that it was not satisfied that she had provided sufficient evidence to show that she had permission for the appellant to reside permanently in New Zealand or that she was residing permanently in New Zealand. It set out relevant policy provisions and asked the appellant's mother to comment.

[8] The appellant's mother replied by email on 26 April 2007. She stated that she and her children would travel to New Zealand if they knew that the appellant would be able to go to school here. She stated that she did not understand why INZ had not accepted the custody paper for her son that she had provided. She said that she was "really lost" and did not know what to do and asked for INZ's advice.

[9] By letter of 2 May 2007, INZ set out its decision to decline the application (verbatim):

"We are writing with regard to your sons application for residence which was accepted for consideration on 14 July, 2006.

We regret to advise that your sons application for residence in New Zealand under the Family (dependent child) category is not able to be approved.

Applicants may qualify for approval under this category if they are unmarried, dependent, under 17 years of age, and have no children of their own. Their parents must be New Zealand citizens or residence permit holders who live in New Zealand, with permits not subject to requirements under the Immigration Act and who declared the applicants as dependants on their own residence applications.

We wrote to you on 04 April, 2007 requesting comment in regards to potentially prejudicial information that may have affected the residence application. The information was that it appeared from your travel history that you did not reside permanently in New Zealand as required by policy.

I have written a query before regards my son['s ...] application number [...] client number [...] and his case manager replied back by sendin a letter to our new zealand address. My mother sent the letter to me here in kuwait and I just recieved it. Im tryin to contact the case manager by email but couldn't find it on the letter. As i would like to reply to the case manager and let her know that the main reason behind me and my kids not residing and livin in New Zealand is my son [...], as a kid he wants to be able to go to school and just live a normal life like other kids. If I atleast know that he would be able to take his residency visa in new zealand and will be able to go to school then I would stay and that was the only thin stopping me because school is important to my son as a kid. I optained a custodey paper for my son and that's what I have sent to you so I don't understand why it's not treated legally? atleast would u let me know if it is possible to look into his application when I come end of June? and not treated as a hopeless case? it is really important for us to garantee that we can live in new zealand with possibility of my son to go to school. please advise me on what to do beacuse im really lost and I don't know what to do.

We are unable to defer an application under Dependant Child Policy in order for the parent to return and live in New Zealand permanently.

Our records indicate that you have not spent a sufficient amount of time in New Zealand to demonstrate that New Zealand is your primary place of established residence. Your comments and reasons for not residing in New Zealand have been considered when deciding the residence application.

We are not satisfied that the following applicable policy requirements have been met:

‹› totally or substantially reliant on an adult (whether their parent or not) for financial support, whether they live with them or not, and

i have been born to, or adopted by (see R3), their parent(s) before their parent(s) made their own application for residence, and have been declared as dependent children on their parent(s)' application for residence; or

ii have been born to their parent(s) after their parents made their own application for residence; or

iii have been adopted by (see R3) their parent(s) after their parent(s) made their own application for residence, by a New Zealand adoption order made under the Adoption Act 1955, or an overseas adoption order which, under section 17 of the Adoption Act 1955, has the same effect as a New Zealand adoption order.

d. Principal applicants under dependent child policy must meet health and character requirements policy (see A4 and A5).

Evidence must be provided of actual residence in New Zealand. Evidence may include but is not limited to original or certified copies of:

As your son does not meet the minimum policy requirements under the Family category, we have been unable to approve his application.

"Where a visa officer or immigration officer has refused to grant any application for a residence visa or a residence permit, being an application lodged on or after the date of commencement of the Immigration Amendment Act 1991, the applicant may appeal against that refusal to the Residence Review Board on the grounds that -

(a) The refusal was not correct in terms of the Government residence policy applicable at the time the application for the visa or permit was made; or

(b) The special circumstances of the appellant are such that an exception to that Government residence policy should be considered."

[11] The appellant appeals solely on the ground that his special circumstances are such that an exception to the Government residence policy should be considered. He is represented on appeal by an agent who has provided brief submissions dated 18 June 2007 together with:

(a) A further translation of the custody order of 23 July 2005 relating to the appellant.

(b) A photocopy of the sponsor's Kuwaiti police certificate, together with an English translation.

(d) A photocopy of the appellant's parents' marriage certificate, together with an English translation.

(f) Photocopies of identity documents relating to uncles, aunts and grandparents of the appellant who are either New Zealand residents or New Zealand citizens.

[12] On 27 July 2007, counsel also provided the Board with a letter dated 18 July 2007 from INZ in which it advised that it had declined an application by the appellant for a student permit.

[13] INZ has provided the Board with the appellant's residence application file. The Board has reviewed the file, as well as the submissions and documents produced on appeal.

[14] Although the appellant appeals only on the ground that he has special circumstances, the Board must first assess whether INZ's decision to decline the application was correct in terms of the applicable Government residence policy.

[15] The appellant made his application on 14 July 2006 and the relevant policy criteria are those in the Government residence policy at that time. The main policy provision that is relevant to this appeal is F5.1.a.ii, effective 30 June 2003, which is correctly set out in INZ's decline letter of 2 May 2007.

[16] F5.1.a.ii provides that the applicant's sponsor must be "lawfully and permanently" in New Zealand. To be permanently in New Zealand, a sponsor must be "actually residing" in New Zealand (see F5.5.5, effective 4 July 2005, which defines "lawfully and permanently in New Zealand").

[17] While the appellant's mother has been a New Zealand resident since 1994, INZ records on the appellant's residence application file indicate that in that 13-year period she has never spent longer than seven months continuously in New Zealand. Taking, for example, the three-year period before the appellant applied for residence, his mother was out of New Zealand between October 2003 and June 2005, a period of about 20 months. She then returned for about three and a half months. She left again in September 2005 and returned in June 2006 for about six weeks, when the appellant's residence application was submitted. In August 2006, she left again and was out of New Zealand for about ten months. During that ten-month period, INZ assessed and declined the appellant's application.

[18] Against that background, and in the absence of any evidence to support a contrary conclusion, INZ was correct to determine that the appellant's sponsor was not actually residing in New Zealand at the time it assessed the application, and she was therefore not lawfully and permanently in New Zealand.

[19] As the appellant's mother failed to meet one of the mandatory elements of sponsorship, it follows that INZ's was correct to decline the application.

[20] For completeness' sake, the Board notes that INZ cited in its decline decision the definition of "lawfully and permanently in New Zealand" that was effective from 29 September 2003 instead of the version effective from 4 July 2005. However, the two definitions are identical and the error created no prejudice to the appellant.

[21] Pursuant to section 18F(4A)(b) of the Act, the Board finds that the new evidence submitted on appeal is admissible for the purpose of considering whether to make a determination that the appellant's circumstances are special.

[22] The Board has power pursuant to section 18D(1)(f) of the Act to find, where it agrees with the decision of INZ, that there are special circumstances of an appellant that warrant the Minister of Immigration's consideration of an exception to policy.

[23] Whether an appellant has special circumstances depends on the particular facts of each case. The Board balances the relevant positive and negative factors to determine whether the appellant's circumstances, when considered cumulatively, are special.

[24] The appellant applied under the Family (Dependent Child) category of the Government residence policy. INZ was correct to decline the application on the ground that the appellant's mother, who was his sponsor, was not actually residing in New Zealand and therefore, in terms of F5.1.a.ii, effective 30 June 2003, was not living lawfully and permanently in New Zealand.

[25] The appellant is eight years old. He was born in Kuwait and is a citizen of that country. His parents are also Kuwaiti citizens, although the appellant's mother has also provided INZ a copy of a Jordanian passport in her name. The appellant has one sibling, an 11-year old brother who was born in New Zealand and is a New Zealand citizen.

[26] In his submissions to the Board, counsel refers to a total of 11 relatives "who have Residence in New Zealand". However, he has produced copies of identity documents of only six: the appellant's maternal grandparents and an uncle and an aunt, all of whom are New Zealand citizens, and two uncles, who are New Zealand residents. Counsel has not produced any further information about these relatives, including information about their present circumstances and whether they are actually living permanently in New Zealand. Despite that, the Board is prepared to assume for the purpose of this decision that these relatives are living permanently in New Zealand.

[27] The Board has very little information about the appellant's father. He is 38 years old and when he married in 1993 he was an "Employee at the ABC Company" of Kuwait. In 2003, he made a declaration in which he gave his approval for the appellant to travel abroad with the appellant's mother. The Board understands that he is living in Kuwait.

[28] When she married in 1993, the appellant's mother was a student. The Board has not been informed about the circumstances that brought her to New Zealand in 1994. In the 13 years since she first obtained a residence permit, she has had numerous movements in and out of the country. By a considerable margin, she has spent the majority of those years outside of New Zealand. Her longest stay in New Zealand has been about seven months.

[29] There is very little information before the Board as to why the appellant's mother has travelled in and out of the country so often, why she has not chosen to live permanently in New Zealand, and where she has lived and what she has been doing when not in New Zealand. In July 2005, she obtained a court order in Kuwait for custody of the appellant. In an email on 1 April 2007 to INZ, she stated that she was separated from her husband, who had beaten her. She advised that she was planning to return to New Zealand within the next month and that she wanted the appellant to be able to go to school "just like every other kid there". In another email to INZ on 26 April 2007, she indicated that she was in Kuwait with both her children and that the main reason for not residing in New Zealand was to ensure that the appellant received an education at school.

[30] The appellant's mother returned to New Zealand most recently in June of this year. On appeal, the Board has been provided with a tenancy agreement dated 20 June 2007 in the name of the appellant's mother, but it does not state whether it is a fixed-term tenancy or a periodic tenancy with no specified termination date. INZ's electronic records show that she left New Zealand in September 2007 with the appellant, but not with her other son. The Board has received no information about their departure.

[31] The appellant has always accompanied his mother when she has entered and left New Zealand. He first travelled to New Zealand in 2000, when he was about one and a half months old, and stayed for about three weeks. Since then he has had five further trips to New Zealand, the longest lasting for nearly four months and the most recent in June of this year. He has always been granted a visitor's permit.

[32] Consistent with her wish that the appellant attend school in New Zealand, his mother submitted on his behalf a student permit application on 3 July 2007. By letter dated 18 July 2007, INZ declined the application on the ground that the appellant did not have an application for residence under consideration and he did not come within any of the other exemptions for paying foreign student fees set out in U3.35.5, effective 24 July 2006, of the Temporary Entry policy.

[34] The appellant has a nexus to New Zealand. He has relatives, including his maternal grandparents, who are New Zealand citizens or residents. The appellant no doubt has an emotional bond of some kind, and perhaps of varying degrees, with these family members. However, he has only ever been in New Zealand for comparatively short visits, and there is no evidence before the Board that his relationship with them is critical to his wellbeing.

[35] The appellant has lived most of his life outside of New Zealand, with his mother, and, as far as the Board can tell with his brother. His most familiar environment will not be New Zealand but, presumably, Kuwait.

[36] The Board is mindful of international human rights instruments, such as the Convention on the Rights of the Child, and the dicta of New Zealand courts in cases such as Tavita v Minister of Immigration [1994] 2 NZLR 257 and Puli'uvea v Removal Review Authority (1996) 14 FRNZ 322. However, while the interests of the appellant, as a child, are a primary consideration, they are not paramount and are to be considered against all relevant considerations.

[37] The Board notes INZ's concern that the appellant's mother had not provided evidence that satisfied it that she was able to take the appellant permanently out of Kuwait to New Zealand.

[38] There is no evidence in this case that the appellant's welfare is at risk. He lives with his mother, who is separated and lives apart from his father. She appears to be a loving and committed parent. Although she has stated that she has been beaten by her husband, there is no evidence in support of that assertion and the Board does not know if the claim is of recent or historical violence. In her email of 1 April 2007 to INZ, she also stated that she was suffering and wanted to get her children out of their situation as soon as possible, but, again, the Board has no other information that explains or supports that assertion. Nothing produced to the Board on appeal addresses it. There is no evidence before the Board that either the appellant or his mother is in any danger or faces particular hardship.

[39] The appellant's mother wants the appellant to attend school in New Zealand. However, there is no evidence before the Board that he is not receiving an adequate education where he currently is. While it might be the case that the appellant would have to pay expensive foreign student fees if he were to attend school in New Zealand, at least for a limited time, there is no evidence that that expense is beyond the collective means of the appellant's extended family.

[41] It remains open to the appellant to reapply for New Zealand residence, if it is believed he meets the applicable criteria. Based on the current criteria of the Family (Dependent Child) category of the Government residence policy, if his mother were to sponsor his application, she would have to satisfy INZ that she was living lawfully and permanently in New Zealand. Insofar as the Board is aware, there is no impediment to the appellant applying for re-entry to New Zealand on a temporary basis, although the outcome of any future application is entirely a matter for INZ to decide.

[42] The appellant is eight years old. His parents have separated and his mother has lawful custody of him. His mother obtained New Zealand residence in 1994 but, for reasons not fully presented to the Board, she has never chosen to live permanently in New Zealand. As far as the Board is aware, the appellant remains in the care and custody of his mother, who looks after him well. The appellant has a connection with New Zealand not just through his mother and brother, but also through other family members. On the other hand, he has spent most of his life outside of New Zealand, presumably in Kuwait. While he might well be better off if he lived permanently in New Zealand, there is insufficient evidence to satisfy the Board that he is at risk or will experience particular hardship if this appeal fails. The possibility of reapplying for residence remains open to the appellant, although he would have to meet whatever policies applied at the time he made his application.

[43] Taken cumulatively, the Board finds that the appellant's circumstances are not special.

[44] This appeal is determined pursuant to section 18D(1)(a) of the Immigration Act 1987. The Board confirms the decision of INZ to decline the appellant's application for residence as correct in terms of the applicable Government residence policy. The Board does not consider that special circumstances exist which warrant consideration by the Minister of Immigration as an exception to that policy under section 18D(1)(f) of the Act.

New Zealand Residence Review Board