Residence Appeal No: 15411 [2007] NZRRB 411 (10 December 2007)

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RESIDENCE REVIEW BOARD NEW ZEALAND
AT WELLINGTON	RESIDENCE APPEAL NO: 15411
Before:	S Pearson (Member)
Representative for the Appellant:	The appellant represented herself
Date of Decision:	10 December 2007
Category:	Family (Sibling and Adult Child)
Decision Outcome:	Section 18D(1)(a)

[1] The appellant is a citizen of Tonga, aged in her mid-thirties. Included in her application is her spouse, also aged in his mid-thirties.

[2] This is an appeal against the decision of Immigration New Zealand (INZ) declining the application because it could not be said that the appellant had no other immediate family members living lawfully and permanently in her home country. The principal issue for the Board is whether the special circumstances of the appellant are such that an exception to the Government residence policy should be considered.

[3] The appellant's application was made on 14 February 2006. The appellant disclosed on her application form that her parents and one of her four siblings resided in Tonga. Three of her siblings had permanent residence in New Zealand and the couple had three children who had been born in New Zealand. Another child was born to the couple in November 2006 and a copy of this birth certificate was subsequently provided.

[4] The appellant's application was sponsored by her eldest brother and evidence of his residence permit dated 16 January 2002 was produced.

[5] On 26 October 2006 INZ wrote to the appellant through her then representative advising her that because she had her parents and a brother residing in Tonga, it did not appear that she met the policy requirement at F6.1.a that she be "home alone" in Tonga.

[6] In another letter, dated 27 October 2006, INZ invited her comment on the potentially prejudicial information that she had not declared two of her siblings on her residence application form.

[7] The appellant responded in a handwritten letter dated 31 October 2006. In this she stated that her mother had died in Tonga in April 2006 and her brother, who was still living in Tonga, had applied for residence under the Pacific Access Category and a decision was pending. The appellant explained that there appeared to be a misunderstanding about the number of her siblings as the result of her sponsor providing names they were known by rather than their legal names which she had cited on the application form. In this letter she also stated that she would like her application to be considered under the Pacific Access Category that was currently available.

[8] The appellant's letter was annotated by the INZ case officer on 2 November 2006 to the effect that the appellant had been telephoned and advised to register separately for the Pacific Access Category and that her brother's ballot had been unsuccessful.

[9] On 3 November 2006 INZ confirmed that her brother's application for residence had been unsuccessful and therefore he and their father continued to reside in Tonga. On this basis, INZ was not currently satisfied that she met the policy requirements at F6.1.a.

[10] The appellant conceded, in a handwritten letter dated 9 November 2006, that she did not meet the "home alone" policy but requested that her application be considered under the Pacific Access Category.

[11] INZ replied to the appellant on 17 November 2006 pointing out that immigration officers did not have the authority to treat her application as an exception to policy and requests of this nature could only be considered by the Minister of Immigration. The letter also advised that the Residual Pacific Access Category Places Policy closed on 31 March 2005 and an application would be needed for the annual Pacific Access Category ballot. The letter invited the appellant to submit any further evidence in support of her residence application by 24 November 2006.

[12] The representative responded in a letter dated 23 November 2006 providing the immigration history of the appellant and her spouse.

[13] The appellant's application was assessed on 29 November 2006 and it was recommended that it be declined on the basis that the appellant's brother and her father resided in her home country of Tonga.

[14] In its letter of 30 November 2006, INZ set out the decision to decline the application (verbatim):

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

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

Under the Family category, adult children or brothers or sisters of New Zealand citizens or permanent residents can join their family here if the applicant is single, without children and alone in their home country.

· Your brother [...] has applied for residence under the Pacific Access Category and the decision is pending.

Your brother [...] residence application was unsuccessful. Therefore [...] is seen to reside in your home country (Tonga).

You have stated that your father lives in the home country. Your father is seen to reside in the home country (Tonga).

For the reasons stated above we are not satisfied that you meet policy requirements.

We refer you to the following applicable policy at the time your residence application was accepted for consideration:

Siblings and adult children of New Zealand citizens or residents meet Sibling and adult child policy if:

a. they have no other immediate family who are lawfully and permanently in the same country in which the principal applicant is lawfully and permanently, and

We have received your correspondence of 23 November, 2006 and this has been considered when deciding the residence application.

The correspondence dated 23 November, 2006 makes reference to treat this case as favourable because there are merits that would warrant further consideration.

In reply to the above, we understand your situation; however an Immigration Officer does not have the delegation to consider an exception to policy for residence. It is evident that your brother and your father that are seen to reside in your home country. For this reason we are unable to approve the residence application under the policy in which you have applied.

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

Your application has also been carefully considered under all of the other residence categories. On the basis of the information given in your application, however, you do not meet the requirements for any of them. Your application for residence in New Zealand is therefore regretfully declined."

"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."

[16] The appellant appeals on the ground that her special circumstances are such that an exception to the applicable Government residence policy should be considered.

[17] The appellant has provided submissions, dated 18 January 2007, on the appeal form. The following documents are produced:

1. Additional copies of documents already provided to INZ are produced to the Board. These include certified copies of the appellant and her spouse's Tongan passports, originals of birth certificates of the four children born to them in 2000, 2003, 2005 and 2006, and the appellant's marriage certificate;

2. Letter of support dated 13 December 2006 from the minister of the Methodist church attended by the appellants;

3. A statement dated 11 December 2006 from a real estate rental company confirming that the appellant and her spouse were excellent tenants between 2001 and 2006;

5. Originals of the spouse's course reports completed at the Tonga Maritime Polytechnical Institute in refrigeration and air conditioning in the early 1990s;

6. An individual employment agreement for the appellant's spouse stating his employment as a full-time employee as a fish processor and maintenance assistance from October 2006, together with a letter dated 10 January 2007 confirming his ongoing employment;

7. Testimonials relating to the appellant and her spouse's previous employment dated in 1996, 2005 and 2006;

8. The appellant's certificates completed in Tonga in the mid-1990s in computer courses.

[18] The Board has been provided with the INZ files in relation to the appellant and has also considered the submissions and documents provided on appeal. An assessment as to whether the INZ decision to decline the appellant's application was correct in terms of the applicable Government residence policy is set out below. This is followed by consideration as to whether the appellant's special circumstances warrant consideration of an exception to policy.

[19] Although the appellant has appealed solely on the ground that she has special circumstances, the Board's jurisdiction to consider these is only triggered by a prior finding that the INZ decision to decline was correct.

[20] The application was made on 14 February 2006 and the relevant policy criteria are those in Government residence policy as at that time.

[21] The policy applicable to the appellant's application under this category can be found at F6.1 (effective 29 September 2003). The relevant parts of this policy are set out as follows:

Siblings and adult children of New Zealand citizens or residents* meet Sibling and adult child policy if:

a. they have no other immediate family* who are lawfully and permanently* in the same country in which the principal applicant* is lawfully and permanently*, and

[22] The appellant disclosed on her application form that she had parents and a brother whose country of residence was Tonga. When this potentially prejudicial information was put to the appellant she advised that her mother had since passed away in Tonga but her father remained living there. In addition, one of her brothers who had applied for residence under the Pacific Access Category had been unsuccessful. It was conceded that the appellant had a father and a brother still living in their home country of Tonga and therefore it was not in dispute that the appellant was not able to meet the provisions of policy at F6.1.a.

[23] The Board finds that the INZ decision to decline the application was correct.

[24] 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 consideration by the Minister of Immigration of an exception to policy.

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

[26] The appellant and her spouse are citizens of Tonga, in their thirties. The application for residence under the Family (Sibling and Adult Child) category failed because the appellant was not alone in her home country.

[27] The appellant's application was sponsored by her brother and evidence has been submitted to show that three of her four siblings have permanent residence in New Zealand.

[28] The appellant and her spouse have four children, three of whom are New Zealand citizens by birth. However, under section 6 of the Citizenship Act 1977 as amended, a child born in New Zealand on or after 1 January 2006 is a citizen if at the time of its birth either of its parents was entitled to be in New Zealand indefinitely in terms of the Immigration Act 1987. As neither the appellant nor her spouse are permanent residents, the youngest child has the same immigration status as her parents.

[29] The Board notes that the appellant has not included the youngest child in her appeal, apparently on the basis that she was born in New Zealand.

[30] The appellant has supplied a statement on appeal pointing out that the children were too young to express their views but would support the appeal had they been old enough to understand.

[31] The interests of the appellant's New Zealand-born children are a primary consideration for the Board. This is consistent with New Zealand's obligations under Article 3(1) of the Convention on the Rights of the Child 1989.

[32] The Board also considers the case law developed by the Court of Appeal since Tavita v Minister of Immigration [1994] 2 NZLR 257, including the most recent decisions: Chief Executive of the Department of Labour v Taito [2006] NZAR 420, and Huang v Minister of Immigration [2006] NZHC 1149; [2007] NZAR 163. These decisions have consistently held that a child's best interests are a primary, though not paramount, consideration in the assessment of whether or not to remove a parent unlawfully in New Zealand. The same principles apply in the present case of parents who do not have permanent residence in New Zealand.

[33] As the appellant points out on appeal, her children are very young. Inevitably, the future of the children is closely tied to their parents' circumstances.

[34] The Board has considered the appellant's circumstances and is satisfied that the standard of living the children might expect in Tonga is not such as to jeopardise their physical, spiritual, moral and social development. While it is accepted that education and health services in Tonga are not the same as they are in New Zealand, there is nothing to indicate that these children will not be well cared for and they will have the support of extended family members.

[35] By going to Tonga with their parents, the three eldest children retain all the rights that they have as New Zealand citizens and those rights can be activated by them at some time in the future.

[36] The appellant and her spouse have been in New Zealand for several years. The INZ computer records that have been made available to the Board indicate that the appellant and her spouse visited New Zealand from 1984 and from 1997 to 2004 they appear to have been here unlawfully.

[37] The appellant had made a request for a work permit pursuant to section 35A of the Immigration Act 1987. However, the representative mistakenly failed to provide the requested documentation and the request for a work permit was refused. Following considerable correspondence between the representative and INZ between June and August 2005 disputing this decision, the appellant and her spouse had been granted work permits valid until August 2006.

[38] It was contended in the representative's letter dated in November 2006 that INZ had provided confusing information regarding the cut-off date for an application under the Residual Pacific Access Category Places Policy which had closed on 31 March 2005. The appellant's application for residence under this category had been submitted on 2 February 2006 but was returned unactioned as being outside the closure date of 31 March 2005. It was claimed that when they made their application for residence under the Family (Sibling and Adult Child) category they had been incorrectly informed of the "home alone" requirement. The letter had requested favourable consideration and pointed out that the appellant and her spouse were well-settled and had New Zealand-born children.

[39] On appeal the appellant repeats her concern that they were confused about the correct process to be followed in their bid to obtain initially a work permit and then residence status. The Board notes that the appellant was represented at that point and might have expected her representative to clarify the situation. Eventually the appellant and her spouse were granted section 35A work permits in August 2005 valid for 12 months. Their most recent work permit expired in October 2007.

[40] The appellant has claimed that they were provided with incorrect advice as to their eligibility under the Residual Pacific Access Category Places Policy. The Board notes that the appellant was advised that she needed to register to be selected from the annual Pacific Access Category ballot. The appellant appears not to have understood this and repeats on appeal that they were confused about the necessary process. However, it is clear to the Board that the appellant was let down by her representative rather than INZ particularly with regard to the section 35A work permit request.

[41] To give weight to the fact that the couple is young and hardworking and have been contributing to New Zealand by paying tax, the Board must balance the fact that for much of the time they have been in New Zealand, they have been here unlawfully.

[42] The appellant has produced evidence that she has completed computer courses in Tonga and has a history of employment there. There is nothing in the evidence to suggest that she is unable to return to her homeland and re-establish her life there. Her spouse, who is also a Tongan citizen, also has parents and siblings in that country.

[43] The appellant has produced evidence of an offer of employment dated 23 January 2006 as an office manager on a salary of $30,000 per annum and her spouse is employed full-time in a fish processing factory with an annual salary of approximately $37,500. The further skills gained through their employment in New Zealand would appear to assist them to obtain employment in Tonga.

[44] The appellant and her spouse have submitted clear medical reports and clear Tongan police certificates. No New Zealand police certificates have been provided.

[45] While the appellant and her spouse have a nexus to New Zealand as the appellant has three of her four siblings in this country, they also have a significant nexus in their homeland.

[46] The appellant's father and a brother continue to reside in Tonga and there appears to be nothing to prevent the family from returning home and registering in the ballot.

[47] While the appellant and her spouse have undoubtedly developed a social nexus to New Zealand as they have been here more or less continuously over a ten-year period, there is still a significant family nexus in Tonga. While the Board notes that the appellant has aspirations to train as an accountant, she does not appear at this stage to have qualifications or skills that are in short supply in this country. It is accepted that both the appellant and her spouse are hardworking, and there appear to be no reasons why they could not continue to provide for their children in Tonga.

[48] The Board finds that when the appellant's circumstances are considered cumulatively, she does not have special circumstances such as to warrant a recommendation for consideration by the Minister of Immigration. While the appellant and her spouse have been in New Zealand for a considerable period of time, much of this has been unlawfully and there can have been no expectation that the temporary permits that they were eventually granted would provide them with other than an opportunity to stay in New Zealand whilst they made their application for residence. There appears to be no impediment to the couple returning to their homeland and registering in the Pacific Access Category ballot at some point in the future.

[49] 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

Residence Appeal No: 15411 [2007] NZRRB 411 (10 December 2007)