Residence Appeal No: 15335 [2007] NZRRB 60 (22 February 2007)

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RESIDENCE REVIEW BOARD NEW ZEALAND
AT WELLINGTON	RESIDENCE APPEAL NO: 15335
Before:	C M Treadwell (Member)
Representative for the Appellant:	A Ibram
Date of Decision:	22 February 2007
Category:	Refugee Status
Decision Outcome:	Section 18D(1)(a)

[1] This is an appeal against a decision of Immigration New Zealand, declining the appellant's residence application because his refugee status, upon which the application was founded, has been cancelled.

[2] The appellant claims to be a national of Afghanistan, aged in his late forties. His wife and their four children are all in New Zealand. Neither his wife nor any of their four children were included in the appellant's residence application because they currently hold New Zealand citizenship (the youngest two children were born here and the other family members acquired citizenship following the grant of permanent residence).

[3] A fifth child of the appellant, by another woman, apparently remains in Pakistan. He, too, was not included in the application.

[4] The appellant claims that the decision of Immigration New Zealand was incorrect because, contrary to policy, it failed to have regard to a second category of residence policy under which he was eligible, namely the Family (Partnership) category. In the alternative, he appeals on the grounds that he has special circumstances, such as to warrant a recommendation being made to the Minister of Immigration that an exception to ordinary residence policy be considered.

[5] It may be helpful to summarise, at the outset, the 12½ years of the family's immigration history in New Zealand, in order to put the present appeal in context.

17 April 1994	Wife, two eldest children, mother-in-law and brother-in-law arrive in New Zealand.
20 December 1994	Wife, mother-in-law and brother-in-law granted refugee status.
22 February 1995	Wife and two eldest children granted permanent residence.
20 July 1996	Appellant arrives in New Zealand.
8 July 1997	Third child born in New Zealand.
22 March 1999	Wife and two eldest children granted citizenship.
21 October 1999	Appellant granted refugee status.
16 February 2000	Appellant applies for permanent residence.
Early 2000	New Zealand Police undertake Operation Amid, investigating people-smuggling and various immigration offences.
April 2000	Appellant and wife charged.
14 December 2001	Appellant pleads guilty to charge under section 229A(B) of the Crimes Act 1961 (taking or dealing with certain documents with intent to defraud) and sentenced to nine months imprisonment. Appellant's wife also pleads guilty to the same charge and is also convicted.
30 April 2002	Appellant released from jail.
4 March 2004	Fourth child born in New Zealand.
May 2004	Application by refugee status officer to cancel the appellant's refugee status.
8 June 2006	Appellant's refugee status cancelled. The refugee status of his wife, mother-in-law and brother-in-law also cancelled.
2 October 2006	Appellant's residence application declined.

[7] It is necessary to record briefly the story told by the appellant to the Refugee Status Appeals Authority to gain refugee status. This account, which he has since admitted was false, underpinned the finding that he was in need of protection from being persecuted. See Refugee Appeal No 71255 (21 October 1999).

[8] In summary, the appellant told the Authority that he was a 42-year-old Tajik Afghani who, at 22 years old, was called up for military service. After eight months' training, he was selected as a junior officer, eventually attaining the rank of 'Turan' (the equivalent of lieutenant).

[9] In 1981, he claimed, he had joined the People's Democratic Party ("the Khalq"). Because of his military service and membership of the Khalq, he was selected in 1982 to work for the secret police ("the Khad"), in its military division, charged with stopping soldiers from defecting to the Mojahedin. He was unhappy at this, because the Khad was known to arrest and torture civilians, but he had no option. The appellant worked for the Khad for 10 years.

[10] In 1992, the Najibullah regime collapsed and the Mojahedin took power. After four and a half months, the appellant noticed that a number of colleagues had disappeared and so he went to Kabul. His wife remained behind with the children. The appellant eventually returned to his family but remained at home, in hiding. After seven months, he was arrested, his presence having been reported to the Mojahedin by neighbours.

[11] In detention, he was punched and beaten with a cable, causing pain in his right lower leg. His captors also punched him in the mouth, loosening two teeth, which he later removed. They also tied his legs together and hung him upside down. While being beaten, he was interrogated.

[12] After seven months, the appellant was visited by his brother who advised him that he might be released if he provided at least some names.

[13] After this visit, the appellant told the officers that if he was allowed to go home and see his family, he would return and "show" them the people they wanted. On this basis, in March 1994, he was released. He and his family then escaped to Pakistan, where they paid US$5000 for the appellant's wife, two of their children and her brother to come to New Zealand. The appellant remained behind in Pakistan as he did not have sufficient funds.

[14] In February 1996, the appellant obtained the services of another agent, to whom he paid US$2500, enabling him to come to New Zealand on 20 July 1996.

[15] The appellant claimed to the Authority that he was afraid that if he returned to Afghanistan he would be arrested by the Taleban because of his past membership of the Khalq, his services for the Khad and because of his Tajik ethnicity, the Taleban viewing Tajiks as aliens.

[16] The Authority accepted the appellant's account as truthful and, on 21 October 1999, granted him refugee status.

[17] Chapter S3 of the Immigration New Zealand Operational Manual provides that persons who have been recognised as refugees under the United Nations' 1951 Convention Relating to the Status of Refugees, are able to apply for permanent residence in New Zealand, subject to various conditions. It was under this category of policy that the appellant applied on 16 February 2000. His wife and two of his children had already been granted permanent residence under the same category.

[18] The appellant's plans, however, began to unravel at this point. Although he had applied for residence as early as February 2000, the application was to be held in abeyance for over six years, pending resolution of the criminal proceedings and, following his release from prison, the application to cancel his refugee status.

[19] Operation Amid, in early 2000, was an investigation by the police into a suspected 'people-smuggling' organisation which they believed had smuggled literally thousands of people into Australia and hundreds into New Zealand. The appellant and his wife were suspected of being two of the three ringleaders.

[20] The appellant was interviewed by the police at length and admitted being a people-smuggler. Hopeful of securing money and new identities for himself and his family, the appellant admitted his refugee claim had been false and gave the police information relating to the illegal activities of others in New Zealand and overseas. In particular, the appellant told the police in a six-hour, videotaped interview:

a) He started working as a people-smuggler in 1985 in Iran and continued until 1990, assisting up to 2,000 people, mostly Iranians fleeing the Iran/Iraq war, to cross the Iran/Pakistan border. He charged a fee, from which he paid himself and his helpers.

b) In Pakistan, the travellers were directed to travel agents that the appellant knew could assist them with their onward passage and to obtain false travel documents. Business cards found at his home by the police were admitted to be from some of those agents.

c) In 1990, he moved to Malaysia where he worked as a people-smuggler with other named individuals. His role was to collect people from the airport, deliver them to accommodation in Kuala Lumpur, and take them back to the airport once false documentation had been arranged. Others in the organisation had different responsibilities. The group moved some 200 people to New Zealand during this time and over 1,000 people to Europe.

d) In 1992, he returned to Afghanistan to marry his current wife. This was his first marriage.

e) The appellant returned to Malaysia with his wife and her brother, and resumed working as a people-smuggler. The work included taking people from Malaysia into Indonesia unlawfully, from where they would depart. The appellant travelled with them and purchased their tickets for onward travel, usually by air. He would instruct them on how to act with immigration and border officials and what to expect on arrival in different countries.

f) He moved about 400 people from 1992 to mid-1995, including his wife, twin daughters and brother-in-law.

g) After three months in a Thai jail in 1994, he moved to Indonesia and continued the people-smuggling business from there. By then, he had five people in Iran working for him, forwarding people to him in Indonesia for onward travel. He identified one of his Iranian agents in a group photograph found by the police at his house.

h) For the 12 months immediately prior to coming to New Zealand, he did not work as a people-smuggler but lived instead on the money provided by his wife and brother-in-law in New Zealand. He tried twice to come to New Zealand unsuccessfully before his wife came with his brother-in-law's travel document which was altered to allow the appellant to use it to enter New Zealand.

i) Since his arrival in New Zealand, he has continued his work as a people-smuggler, making all arrangements by telephone.

j) He made one journey to Asia in part to secure the release of his cousin from an Indonesian prison and also to continue his people-smuggling operations.

k) He has worked with other people-smugglers inside and outside New Zealand. One such operation was underway at the time his house was searched. As a consequence, he was unable to deliver his part of the agreement and owed money to another people-smuggler which he was unable to pay. In punishment, he was abducted from the street and severely assaulted.

l) One individual who approached him after the police interview had committed a serious criminal offence in New Zealand and was trying to flee. The appellant provided his identity documents to the police as part of his efforts to provide ongoing information.

[21] By the time the matter came to Court, the only offence of which the appellant was charged was using a document, namely his refugee application, with intent to defraud. Admitting that his refugee claim had been false, the appellant pleaded guilty and was sentenced to nine months' imprisonment.

[22] Following the chronology, it is appropriate to also summarise the new claim which the appellant advanced at the hearing of the application for a determination ceasing to recognise his refugee status. The formal jurisdiction of the Refugee Status Appeals Authority is to determine whether to "cease to recognise" a person as a refugee (see section 129R(b) of the Act). Frequently, the expressions "to cancel" and "cancellation" are used in the context of such applications, for convenience, but the proper statutory language is not overlooked, given that it reflects the declaratory, not constitutive, nature of the recognition of refugee status.

[23] For the full account of the appellant's new claim, see Refugee Application No 75143 (8 June 2006). For the record, the decisions of the Authority cancelling the grants of refugee status to the appellant's wife, his mother-in-law and his brother-in-law are, respectively Refugee Application No 75015 (8 June 2006), Refugee Application No 75016 (8 June 2006) and Refugee Application No 75017 (8 June 2006).

[24] The appellant admitted that the account upon which his refugee status had been gained was false. He is not an ex-army officer or member of the Khad. He has never been imprisoned and persecuted by the Mujahedin. He did not even spend the relevant years in Afghanistan. Nor, as his evidence unfolded, did he claim that his second account (that of being a people-smuggler) was true. Indeed, he also claimed that his second account had been false.

[25] To the panel considering the application for cancellation of his refugee status, the appellant gave yet a third account. This time, he claimed to have been born to an Uzbek father and a Tajik mother. Leaving school at the age of about 15, he left Afghanistan in the early 1970s to study in Germany. He did not like it there and travelled to Turkey for about six months. From Turkey, he went to Iran for a brief period before going to India.

[26] About one to two years after first leaving Afghanistan, the appellant returned but remained only for about a month before leaving within weeks of the Soviet invasion of Afghanistan in 1979. During his short stay, his Afghani passport was stolen. He subsequently obtained a new one in Iran, where he then spent several years, selling clothes and working in tea shops and restaurants.

[27] While in Iran, the appellant married the daughter of his employer in about 1987. They had a son but his wife died in 1990. About two to three months after her death, the appellant moved to Pakistan, leaving his son in the care of his wife's family. He has not seen his son since.

[28] After two to three months in Pakistan, the appellant went to Malaysia, on a false Pakistani passport, his Afghani passport having, again, been stolen. In Malaysia, he got work with a carpet dealer for six to seven months before taking up his brother's suggestion that he return to Afghanistan to find a wife. At the time of this return visit in 1992, he had saved US$10,000 - US$11,000.

[29] The appellant spent three to four months in Afghanistan, staying with an aunt. He limited his activities, in fear of conscription into the Afghani army. He saw his brother regularly and, through him, was introduced to his wife for the purpose of an arranged marriage.

[30] Shortly after the marriage, the appellant left Afghanistan and has not returned since. He travelled with his brother, his wife and her brother, CC, her sister and her sister-in-law and her two children. His wife's mother and other brother stayed behind. The appellant's brother met all the costs, including bribes to get into Pakistan.

[31] The family group spent one to two months in Pakistan. The appellant's brother secured false Pakistani passports for the appellant, his wife and her brother, CC, paid for equally by the appellant and his brother. On these passports, the appellant, his wife and CC travelled to Malaysia towards the end of 1992.

[32] In all, they stayed eight to nine months in Malaysia before crossing into Thailand without passports, where they met an agent who gave them false passports for onward travel to New Zealand. They did not travel, however, as the appellant's wife was pregnant and went into labour.

[33] The appellant took his wife to a hospital, where he claimed to be Iranian, stating that his wife's documents were all with the Embassy in Bangkok. While she was admitted, he sought false documents from an agent who was able to produce a false Iranian passport bearing her photograph and the name the appellant's wife had given on admission to hospital.

[34] The couple's twin girls were born in the hospital in Thailand in December 1993.

[35] Shortly after discharge from hospital, the appellant's wife and daughters, together with CC, left Thailand for New Zealand on false documents, the appellant remaining behind as there was insufficient money for all of them to travel.

[36] The appellant's source of funds since leaving Pakistan was primarily the savings he brought with him, supplemented by a small amount of income he received from three months' employment in Kuala Lumpur. For most of the family's time in Malaysia and Thailand, no-one earned any income. They lived simply, staying in cheap guesthouses and buying only the basic necessities. They rarely ventured far as they were wary of being stopped by officials. Instead, they spent time on the beaches in Penang and Thailand, from time to time mingling with tourists. They did not, however, stay in large tourist hotels, go on extensive shopping expeditions, own expensive items or live a life that could be described as well-resourced or extravagant.

[37] Other photographs located by the police are ones of him, his wife and CC while they were living in Malaysia and Thailand. He disputed the Authority's suggestion that they reflect a wealthy lifestyle - claiming they were snapshots of innocent events. Other persons in the photographs were people that they met during their stay in Asia whose names (bar one) the appellant had forgotten - simply fellow travellers with whom the family had had a passing acquaintance.

[38] In all, the appellant spent one and a half years in Asia with his wife and CC. He arranged for their travel to New Zealand and discussed briefly what story his wife would tell immigration officials when claiming refugee status in New Zealand. Their plan was that the appellant would join his family in New Zealand as soon as he could raise the money to follow.

[39] Approximately two to three months after the appellant's wife and children had left Thailand, he was detained for three months in an immigration detention facility for failing to produce identity papers. His agent eventually provided him with a Pakistani passport which appears to have met Thai immigration requirements and secured his release. In late 2004, he travelled to Indonesia, where he remained for two years.

[40] In the two years in Indonesia, the appellant did not work as he could not speak the language. He survived on money sent to him by his brother in Pakistan, and by his wife and CC in New Zealand. On two occasions, he tried to travel here, failing both times because 'agents' stole his money. Eventually, the appellant's wife travelled to Indonesia, taking with her CC's travel documents. The appellant's photograph was substituted and the couple travelled to New Zealand together, the appellant claiming refugee status on his arrival in New Zealand on 20 July 1996.

[41] As to Operation Amid, the appellant resiled from his statements to the New Zealand Police that he has been involved in people-smuggling for 20 years, both outside and in New Zealand. While acknowledging that a small number of people have approached him in New Zealand to help them in this context, he claimed that this was because he had been wrongly portrayed as a people-smuggler by the media.

[42] The appellant confirmed that, on one occasion, he was the victim of a serious assault but denied this was because a people-smuggling operation had gone wrong. Instead, he claimed, he had been kidnapped and assaulted for ransom, although conceding that no ransom was sought or paid.

[43] The appellant acknowledged that he provided information to the police, informally and in the videotaped interview, which included admissions that he had been involved in people-smuggling operations for many years. However, to the Authority, he claimed that the information did not come from being a people-smuggler. Instead, he said, he had simply passed on what he had overheard in conversations among the Afghani, Pakistani and Iranian communities, or he made up evidence, or simply agreed with the police interviewer's questions. Much of his evidence, he says, was either untrue or he did not know whether or not it was true.

[44] He claimed to the Authority that he was offered an inducement by the police to provide this evidence - money and relocation with new identities. It was these promises which persuaded him to pass himself off as a people-smuggler.

[45] In fact, the appellant told the panel, he was now at risk of serious harm, even death, because he had provided information to the police.

[46] He claimed that the person he most feared in Afghanistan was Commander XX, formerly a Mujahedin commander and now in an influential position in Jalalabad. He had met XX when he was approached by him in Auckland, seeking his assistance to leave New Zealand. He provided the appellant with his personal details and photograph and asked the appellant to obtain a false passport. The appellant took this information, including the photographs, to the police.

[47] While the appellant was serving his prison sentence, XX left New Zealand - the appellant believing he was forced to flee. The appellant fears that XX holds him responsible and will exact a severe punishment if he is returned to Afghanistan. His fears were reinforced, he claimed, when he was approached by someone in the Afghan community, conveying a threat from XX in Afghanistan.

[48] Apart from Commander XX, the appellant expressed concern at possible retaliation from members of the Afghani community in New Zealand who had been affected by Operation Amid.

[49] As to who would cause him harm, the appellant named three people but could not (or would not) name others. One of the three, Commander YY, has since been convicted in New Zealand of making a false refugee claim and the appellant expressed concern that YY will harm him and his family if they return to Afghanistan.

[50] The panel hearing the application to cancel the appellant's refugee status found the evidence of the appellant to be unreliable in every respect.

[51] After noting that this was now the third story advanced by the appellant, and recording its conclusion that he was, in fact, a people-smuggler (rejecting his attempt to recant that admission), the Authority recorded its trenchant criticism of his evidence, finding that:

"Against this background, we unhesitatingly reject the account before us. We do not believe any part of the evidence given by the respondent in support of this claim to refugee status. Instead we are satisfied that, like his wife, he is a total stranger to the truth and has told us anything he thinks will best advantage himself and his family. Such is our lack of confidence in the respondent, and his wife, that we are not prepared to find that he is an Afghani national. He has not established this. Nor are we required to determine where he is from. Every aspect of his evidence upon which he rests his current claim to refugee status is rejected."

[52] Unsurprisingly, the Authority found that it should cease to recognise the appellant as a refugee. As noted above, the same conclusion was reached in respect of his wife, mother-in-law and brother-in-law whose claims had been, in effect, inextricably linked to the original claim of the appellant.

[53] On 4 September 2006, Immigration New Zealand wrote to the appellant, pointing out that his refugee status - the grounds of his application for permanent residence - had been cancelled. It also observed that it appeared that he was in breach of the 'good character' provisions of policy, in that he had provided false or misleading information to Immigration New Zealand. If so, he was advised, he would not be eligible to be granted residence unless issued a character waiver. The appellant was invited to comment on these potentially prejudicial circumstances.

[54] No response was received, in spite of Immigration New Zealand granting
an extension of time to the appellant's then-representative, Amina Daud. On 2 October 2006, the processing officer recorded a file-note of her assessment, in

which she determined that his application should be declined. The kernel of the assessment was:

"As [the appellant] is no longer recognised [as having] refugee status any more, he doesn't meet the threshold of the refugee's policy. His application [will] therefore have to be declined.

With all the information available, it is unlikely that applicant will meet any other residence policy."

[55] Immigration New Zealand wrote to the appellant to that effect, the same day.

[56] In its letter of 2 October 2006, Immigration New Zealand advised the appellant of the decision to decline his application in the following terms (verbatim):

"We are writing with regard to your application for residence which was accepted for consideration on 16 February, 2000.

Under the Immigration Policy S3.20a., to be granted residence, principal applicants must satisfy immigration officers that:

ii. they have established their identity and that of any partner and/or dependant child(ren), and

iii. the relationship between the principal applicant and any partner and/or dependant child(ren) included meets residence criteria , and

iv. they meet the health and character requirements in A4 and A5, or an appropriately delegated officer, who has applied the policy in A4.55 and A5.25.1, has waived them , and

v. they are not able to be removed or deported from New Zealand in accordance with Article 32 or 33(2) of the Refugee Convention .

We regret to advise that your application for residence in New Zealand under the Permit, Residence, 1995 Refugee status category is not able to be approved for the following reason.

In June 2006, the Refugee Status Appeals Authority decided to cease to recognise you as a refugee. You have been provided opportunity to make comments on this, however, we did not receive any reply from you within the required time.

As you do not meet the minimum policy requirements under the Permit, Residence, 1995 Refugee status 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."

[58] The appellant appeals on the ground that the decision of Immigration New Zealand was not correct in terms of the applicable Government residence policy and on the alternative ground that, if it was correct, nevertheless his special circumstances are such that an exception to that policy should be considered.

[59] Mr Ibram now acts for the appellant in respect of his appeal. He provides submissions dated 16 November 2006. He also submits a substantial quantity of documents. It is not intended to enumerate them in full here. They are adequately described as documents 1 to 25 in Mr Ibram's "Index of Supporting Documentation". As relevant, they are referred to in detail hereafter.

[60] The Board has been provided with the Immigration New Zealand files in relation to the appellant. Those files include copies of the decisions of the Refugee Status Appeals Authority, both granting refugee status and cancelling it, together with a number of documents relating to the police investigation in 2000.

[61] It is necessary first to consider whether the decision by Immigration New Zealand to decline the appellant's application was correct in terms of the applicable Government residence policy. The appellant's residence application was made on 16 February 2000 and the applicable policy is that in force at that time.

[62] The relevant policy is to be found at clauses S3.10 and S3.15.a (both effective from 26 July 1999) of the Operational Manual, which state:

b. Immigration officers may, at their discretion, grant residence permits to "Convention" refugees (see C4.30.1).

c. All refugee claimants who are recognised as having refugee status may apply for residence on the basis of that recognition.

d. Such applicants may include dependants in the application in accordance with residence policy (see R2).

a. Applications for residence that are based on the recognition of New Zealand refugee status must be made in the prescribed manner (see R2.40) and must include a copy of the letter confirming the grant of refugee status."

[63] Subject to express provision in policy to the contrary, residence applications are to be assessed on the information at hand at the date of determination. Clearly, on the date of determination, the appellant was not a refugee, his refugee status having ceased to be recognised nearly four months earlier. No subsequent decision of any competent body had recognised him as a refugee since the Refugee Status Appeals Authority determined to cease to recognise him as having that status on 8 June 2006 and on 2 October 2006, the date of determination, he failed to meet the fundamental policy requirement that he be a refugee. The conclusion of Immigration New Zealand that the appellant did not meet the terms of that policy was correct.

[64] Mr Ibram does not dispute this. Instead, he raises an alternative argument. He submits that Immigration New Zealand was also required to consider whether the appellant met the terms of any other category of residence policy and, if it appeared that he may do so, it was under an obligation to seek further information from the appellant, in order to properly assess his eligibility under that other category.

[65] In support of this submission, Mr Ibram relies upon clause R5.20.c of policy (effective from 26 July 1999), which states:

a. Visa and immigration officers need only assess applications under the category the principal applicant nominates.

b. Officers are not obliged to seek further information to determine whether the principal applicant may be eligible under another category.

c. However, officers should request further information to enable the application to be assessed under another category if:

i an application does not meet the criteria for approval under the policy category in which it was made, and

ii information contained in the application form or accompanying documents clearly indicates that the principal applicant may be eligible under that other category."

[66] Mr Ibram submits that the information before the processing officer indicated that the appellant may have met the requirements of the Family (Partnership) category of residence policy because:

"... [f]rom the information in the application form, it was abundantly obvious that he had a partner who was a New Zealand permanent resident. Moreover, the application form clearly confirmed that the appellant had twin daughters born to his wife and that they were all living with him in New Zealand. This should have been sufficient information to indicate that the appellant was eligible for residence under the Partnership Category."

[67] Mr Ibram argues that Immigration New Zealand were obliged, in the circumstances, to seek further information from the appellant, to establish whether or not he met that other category of policy. Because it did not do so, he says, the decision to decline the application was incorrect.

[68] With respect to Mr Ibram, his submissions fail to address a fundamental point - namely, that the appellant's wife's citizenship was predicated upon equally fraudulent circumstances.

[69] Before turning to the relevant policy requirements, it is necessary to record that Mr Ibram's submissions overlook the fact that the Family (Partnership) category of residence policy did not come into force until 1 October 2001. The relevant policy is that which was in force on 16 February 2000, the date the application was made, namely the Family (Spouse) category (effective from 26 July 1999).

[70] Returning to the substance of Mr Ibram's submission, it will be recalled that the threshold beyond which Immigration New Zealand acquires an obligation to consider eligibility under other categories of residence policy is where:

"... information contained in the application form or accompanying documents clearly indicates that the principal applicant may be eligible".

[72] A fundamental requirement of the Family (Spouse) policy is the requirement that the applicant's spouse be a New Zealand citizen or permanent resident. See clause F2.1, which states:

a. A spouse of a New Zealand citizen or resident meets spouse policy if he or she is married to a New Zealand spouse and the couple is living together in a genuine and stable marriage."

[73] While the appellant's wife was a New Zealand citizen at the time that the appellant's residence application was declined, the reality is that her citizenship had been obtained on the grounds that she was a permanent resident in New Zealand. That permanent residence had, in turn, been granted to her on the grounds that she had been recognised as a refugee. That refugee status, as the appellant well knew, had been obtained by fraud.

[74] As with the appellant, the Refugee Status Appeals Authority has ceased to recognise the appellant's wife as a refugee, following her admission that it was obtained by fraud. See in this regard Refugee Appeal No 75015 (8 June 2006), at [30], where the Authority observed (reference to "the appellant" meaning, of course, the wife of the appellant in the present appeal):

"As noted, the appellant concedes that the grant of refugee status may have been obtained by fraud, forgery, false or misleading representation, or concealment of relevant information. For its part, the Authority is satisfied that this threshold is more than met: that the grant of refugee status was obtained by fraud. Not only did the appellant plead guilty to the charge, but she has confirmed before us that no part of the earlier account relating to her husband's claimed political activities was true. This is a very clear case of refugee status being procured by false and misleading representations, and concealment of relevant information."

[75] Concluding that it should cease to recognise her as a refugee, the Authority commented on the evidence given by the appellant's wife, and her character generally, in the following terms:

"[105] We do not believe any part of the appellant's evidence, either as it relates to her experiences before she allegedly left Afghanistan or after. She is a consummate and sophisticated liar who will do anything she can to advance her circumstances to remain in New Zealand. Her entire account is rejected. We are not even prepared to find that she is an Afghani national. She has not established this on the evidence, nor are we required to determine where she is from.

[106] As a consequence, there is no evidence before us from which we can conclude that the appellant meets the definition of a refugee as articulated in Article 1A(2) of the Convention."

[76] With the Authority ceasing to recognise the appellant's wife's refugee status and her admission that it had been obtained by fraud, it follows inexorably that both her grant of permanent residence and her citizenship were also obtained by fraud. Barring circumstances not yet advanced by either the appellant or his wife, it is inevitable that she now faces having her permanent residence revoked and her citizenship rescinded.

[77] Even if, in strictly literal terms, the appellant's wife was a New Zealand citizen on the date the appellant's residence application was declined, the Board
is satisfied that clause F2.1 presumes the spouse's permanent residence or citizenship to have been lawfully obtained. Indeed, it would be an absurdity if it were to be read otherwise. One need only consider posing the question in the alternative - "would the Executive have intended clause F2.1 to include a spouse whose permanent residence and/or citizenship had been obtained by fraud?" to appreciate that the answer can only be "no, of course not".

[78] Support for such a pragmatic approach to residence policy is to be found in the decision of the Court of Appeal in Patel v Chief Executive of the Department of Labour [1997] NZAR 264, at 271, where Thomas J noted (referring to the then-extant Humanitarian category of residence policy):

"A policy document, such as the one in issue, is not to be construed with the strictness which might be regarded as appropriate to the interpretation of a statute or statutory instrument. It is a working document providing guidance to Immigration officials and to persons interested in Immigrating to New Zealand or sponsoring the Immigration of a person to this country. It must be construed sensibly according to the purpose of the policy and the natural meaning of the language in the context in which it is employed, that is, as part of a comprehensive and coherent scheme governing Immigration into this country ..."

[79] The Board is satisfied that the requirements of clause F2.1 of the Family (Spouse) category are not met in the case of a person whose spouse obtained his or her own permanent residence or citizenship by fraud. The submission that such a person should be eligible for a grant of permanent residence lacks any trace of merit.

[80] It follows that, when the processing officer determined the appellant's residence application, she was entitled to conclude, as she did, that information contained in the application form or accompanying documents did not clearly indicate that the appellant may be eligible under the Family (Spouse) category. The submission that the evidence before the officer should have led her to conclude otherwise, is rejected.

[82] It is appropriate to refer briefly to the 'good character' provisions of policy.

[83] All categories of residence policy, including the Family (Spouse) category, require applicants to be of good character. Clauses A5.1, A5.15 and A5.25 of policy (effective from 26 July 1999) relevantly provide:

Applicants not considered to be of good character for residence are classified as follows:

b. applicants who will not normally be issued with a residence visa or granted a residence permit (see A5.25) unless a character waiver is granted; or

A5.25 Applicants normally ineligible for a residence visa or permit unless granted a character waiver

Applicants who will not normally be issued with a residence visa or granted a residence permit, unless granted a character waiver (see A5.25.1(b) below), include any person who has been:

a. convicted at any time of any offence against the immigration, citizenship or passport laws of any country; or

e. convicted at any time of any offence for which they were sentenced to a term of imprisonment (whether the sentence was of immediate effect or was deferred or was suspended in whole or in part); or

g. in the course of applying for a New Zealand visa or permit, made any statement or provided any information, evidence or submission that was false, misleading or forged, or withheld material information; or

[84] While Immigration New Zealand found that it did not need to determine whether or not the appellant met the 'good character' provisions, the fact remains that his potential failure to meet those provisions was drawn to his attention, in Immigration New Zealand's letter of 4 September 2006. He was invited to comment. He did not do so.

[85] The Board is satisfied that the appellant is not of good character. He clearly runs foul of any one of the four categories in clause A5.25.a, .c, .e and .g of policy and is properly classified as a person to whom residence should not normally be granted.

[86] It is not necessary for the Board to decide whether the appellant might have been entitled to a character waiver. He does not meet the terms of any category of residence policy and the question of a waiver is entirely moot. It is appropriate to record, however, that the likelihood of a waiver being granted, particularly in light of the appellant's failure to respond to the letter of 4 September 2006, was remote - sufficiently so that, for this reason as well, there was no clear indication that he may be eligible under any category of policy.

[87] Where the Board finds that the decision to decline an appellant's application was correctly made, it has power pursuant to section 18D(1)(f) of the Act to find that there are nevertheless special circumstances which warrant consideration by the Minister of Immigration of an exception to policy.

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

[89] In his submissions, Mr Ibram points to the following as circumstances in the appellant's favour:

a) As an Afghani national, the appellant will be required to return to Afghanistan, a country riven by insurgency, violence, repression and poverty.

d) There is a risk of serious emotional harm to the appellant's wife if he is forced to leave New Zealand.

e) There is a risk of serious emotional harm to the appellant's children if he is forced to leave New Zealand.

[90] These are, prima facie, important considerations. It is intended to address each of these in turn.

[91] Mr Ibram provides a number of items of country information on Afghanistan, including the 2006 Amnesty International Report, the 2006 Human Rights Watch World Report: Afghanistan and a BBC report dated 13 November 2006, Afghan Conflict Deaths Quadruple. To these can usefully be added the United States Department of State Country Reports on Human Rights Practices: Afghanistan (February 2006) and the United Kingdom Home Office Country of Origin Information Report: Afghanistan (October 2006). Together, these documents paint a bleak picture of the resurgence of the Taleban in the south and east of the country and high levels of insecurity, crime and violence continuing in most areas.

[92] The unwillingness of the Refugee Status Appeals Authority to accept the word of either the appellant or his wife that they are, in fact, Afghani is not overlooked. Such caution is well-justified in the light of the repeated lies told by the couple. Their evidence could not be relied upon in any respect, including their claims to be Afghani nationals. The Board shares the concern of the Authority that their real nationality cannot be assumed.

[93] Nevertheless, they currently claim to be Afghani and, in the absence of evidence to the contrary, Afghanistan is the country to which the New Zealand authorities would presumably return the appellant. No other option currently presents itself. For that reason it is proper to weigh this issue in the balance.

[94] As to the country information, while Afghanistan is undoubtedly unstable, with large tracts subject to ongoing insurgency, there are nevertheless millions of ordinary Afghanis - a population in excess of 30 million (over 3 million of whom live in Kabul) - who live their lives there every day with no greater risk of harm than the remote chance of being in the wrong place at the wrong time. To extrapolate from generalised country information that all persons are at risk of harm in Afghanistan simply fails to address reality. It is noted, of course, that the appellant presents no credible claim that he or any member of his family is at any differential risk of harm in Afghanistan.

[95] The appellant's two New Zealand-born children, and their consequent citizenship, will be referred to hereafter. As to his wife and the other two children, Mr Ibram's submits that the fact that they are citizens provides the appellant with "a strong family connection with New Zealand".

[96] That submission fails to address the reality that their citizenship was procured by fraud. Further, while the Board is not privy to the actions of either Immigration New Zealand or the Department of Internal Affairs, the reality must be that, if steps are not already in train for the rescinding of the grants of citizenship and the revocation of the grants of permanent residence, they are imminent. It is beyond belief that either Department will allow its jurisdiction to be abused by fraud - a view reinforced by the prosecution of the appellant and his wife and the steps already taken to cease to recognise both of them, and the appellant's mother-in-law and brother-in-law, as refugees.

[97] Given the limited future of the citizenship and permanent residence of the appellant's wife, the two eldest children and the appellant's mother-in-law and brother-in-law, the claim that the appellant has "a strong family connection" to New Zealand is of little weight.

[98] As to the two children born here, who hold New Zealand citizenship as a result, the interests of child citizens are accepted as being a primary consideration, in accordance with New Zealand's obligations under the United Nations' 1989 Convention on the Rights of the Child.

[99] There is no need here to traverse in detail the case law which has developed since Tavita v Minister of Immigration [1994] 2 NZLR 257. It has included Puli'uvea v Removal Review Authority (1996) 14 FRNZ 322 and Chief Executive of the Department of Labour v Taito [2006] NZAR 420. The line of authority has culminated in the recent High Court decisions of Ding v Minister of Immigration (2006) 25 FRNZ 568, per Baragwanath J and, since then, Huang & Ors v Minister of Immigration (unreported, High Court Auckland, CIV-2005-404-5202, 29 September 2006) per Asher J.

[100] Prior to Ding, the line of authority had uniformly held that the best interests of a citizen child are a primary, though not the paramount, consideration in the assessment of whether or not to remove a parent unlawfully in New Zealand. In Ding, Baragwanath J postulated that there has been a shift in public policy, evidenced by section 4 of the Care of Children Act 2004, towards the best interests of the child being the first and paramount consideration. Such an approach, in His Honour's view, would dictate that a dependent child citizen should not be compelled to either accompany his or her parents to unsafe conditions or to suffer the loss of their care by their forced removal, if to do so would be unjust or unduly harsh. Inevitably, such a finding would be likely to lead to the parents being permitted to remain in New Zealand, whatever their own merits or lack thereof.

[101] As noted, such a finding would represent a considerable departure from the existing appellate rulings, notably Puli'uvea, which had consistently found the best interests of the child to be a primary, but not the paramount, consideration. Mindful of this, Baragwanath J ultimately declined to so rule, simply noting his preference for such an expanded approach and that it would be for an appellate Court to determine in due course.

[102] Ding arose for consideration in Huang almost immediately. Asher J rejected the approach suggested by Baragwanath J. Noting that the Children, Young Persons and their Families Act 1989, and also the Guardianship Act 1968, had also described the best interests of the child as the first and paramount consideration and that those Acts had provided the legislative context against which Tavita and all subsequent cases had been decided, Asher J could not detect a change in public policy. Nor, he found, is the Care of Children Act 2004 a code in the sense of prevailing over all other legislation which might affect the rights of children. In any event, section 4 of the Care of Children Act 2004 is primarily directed towards issues of guardianship and day-to-day care which, in the case of young children who would be most likely to remain with their parents wherever they might live, is not an issue directly affected by the decision to remove the parents from New Zealand. Any consequence to the child would be indirect only.

[103] Noting with concern the effect of such a change of approach as propounded in Ding, Asher J concluded:

"[81] The ... development proposed, whereby the child's rights if a New Zealand citizen, assume complete primacy, would seriously disturb the existing checks and balances between the rights of a citizen, and the right of the legislature to decide which persons can live in New Zealand. The legislature's intention in setting up various procedures under the Immigration Act, and indeed in ... signing Conventions which record that the welfare of the child is 'a principle' rather than 'the paramount' consideration, would be disturbed. Such a development would be contrary to Puli'uvea v Removal Review Authority, which specifically rejected an argument that the child's interests were the paramount factor, and would also be inconsistent with later cases that followed it. That case is not an aberration, and has set the approach. The best interests of the child are a primary, not a paramount consideration."

[104] Even if the Board were not bound by it, it would agree with the reasoning in Huang and the conclusion that the best interests of the child are a primary, not the paramount, consideration. They will be weighed, in that context, hereafter.

[105] Mr Ibram submits that the appellant's wife has suffered Post Traumatic Stress Disorder in the past and is currently clinically depressed. He cites the report of Corinna Friebel, psychotherapist, which records her depressive symptoms as dating back to 2000 and including low mood, decreased concentration, lethargy, loss of enjoyment, decreased appetite, losing 7kg over one and a half years, insomnia, nightmares, chronic numbness in her left arm and hand, fleeting auditory hallucinations and persistent suicidal ideation. Medication in the form of the anti-depressant Paroxetine had, apparently, little effect.

[106] Contrary to counsel's submission that the appellant's wife has suffered Post Traumatic Stress Disorder in the past, Ms Friebel records her as currently suffering from it.

[107] Ms Friebel attributes these psychiatric disorders to her fear of her husband being deported and the thought that she and the children might be separated from him, which the appellant's wife finds unbearable. This is exacerbated by her "constant and ongoing struggle as a caregiver to her children and also to her mother, who now suffers from dementia".

[108] The view of Ms Friebel is endorsed by the appellant's wife's general practitioner, Dr Veronica Hagar.

[109] The appellant's two eldest children are the twins born in Thailand in December 1993. They are now aged thirteen years. In a report dated 25 March 2002, at which time the girls would have been aged nine years, Ms Kerfoot and Ms Jepsen, trauma counsellors at the Children's Trauma Programme of the Auckland City Mission, described the girls in the context of their reaction to their father's imprisonment. Both girls were recorded as being sad and downcast, weepy and highly anxious. Each sought solace in the other's company. Intrusive thoughts, particularly the fear of their father being sent back to Afghanistan, caused low concentration at school, poor appetite, insomnia and nightmares.

[110] Ms Kerfoot and Ms Jepson also recorded the reaction of the third child, the appellant's son, to his father's imprisonment. At the time of the report, he was aged four and a half years. His response to his father's imprisonment was to regress to bed-wetting and clinging to his mother. He took to banging his head against the wall and hitting and kicking his sisters. As with his sisters, he became sad and tearful and had difficulty in sleeping and eating.

[111] The authors of the report conclude that, if the children are again separated from their father, as would occur if he is removed from New Zealand while they and their mother remain behind, their mental state would be similarly affected. Their brains would "develop as if the entire world is chaotic, unpredictable, violent, frightening, and devoid of nurturance (sic)."

[112] Statements by both the appellant and his wife have been received, together with a petition signed by 29 members of the Afghani community in Auckland and letters from:

[113] The persons at c) to f) above are friends or acquaintances of the appellant and his wife and write in support of their desire to remain in New Zealand. A repeated concern is the inability of the appellant's wife and children to cope if the appellant is forced to return to Afghanistan, leaving them in New Zealand. Some writers are able to corroborate the symptoms of trauma in the children at the time of the appellant's imprisonment.

[114] Drs Hagar and Botica write to express their knowledge of the family. Dr Hagar, writing on 8 November 2006 states:

"[The appellant's wife] suffers from extreme emotional stress and depression because of the immigration problems faced by the family. She also, understandably, has a very high level of concern about her husband's uncertain situation... She is currently receiving counselling assistance."

[115] Dr Hagar describes the three older children as "very anxious" and points out that the appellant's mother-in-law, who lives with the family, suffers from dementia, depression and post-traumatic stress disorder. It is unclear whether Dr Hagar has personally interviewed the appellant's mother-in-law or whether this information is based on reports given to her by the appellant and/or his wife.

[116] Finally, the appellant submits a number of letters relating to Tower insurance polices held by him and other members of the family and a letter from the Auckland District Health Board "Kari Centre", notifying of an appointment for the appellant's son on 2 November 2006. He also submits a bundle of photographs of the various family members socialising and at play.

[117] Despite his late protestations that the information he gave to the police was bogus, the Board prefers the conclusion of the Refugee Status Appeals Authority that the appellant has been involved to a substantial degree in 'people smuggling', both in New Zealand and in other countries. Such a conclusion is well-supported by the evidence. The damage he has caused to this country alone must be considerable.

[118] The appellant is an accomplished liar and a fraud. He, his wife, her brother and her mother conspired to deceive the New Zealand government into granting them refugee status. The extent of the deception was significant. They then sustained those lies for a number of years, through numerous interviews and hearings, until they were eventually caught. Even then, the appellant has continued to heap lie upon lie, in the hope that one of them will stick. His dishonesty has been so egregious that even his claimed nationality could not be relied upon.

[119] Significantly, the authors of the various 'community' letters of support do not refer to the reason for the appellant's imprisonment in New Zealand, citing at most "immigration matters". It appears that the authors are unaware of the real reason for the appellant's imprisonment, namely fraud, or of his activities as a 'people smuggler'.

[120] This is not the only appeal currently mounted by the appellant in an effort to remain in New Zealand. He has also appealed to the Removal Review Authority, pursuant to section 47 of the Act, which has yet to deliver a decision. By section 47(3), that tribunal is charged with determining whether the appellant has:

"... exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for [him] to be removed from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow [him] to remain."

[121] Mr Ibram correctly reminds the Board that it must not abrogate its responsibility to determine whether or not the appellant has 'special circumstances' within the meaning of section 18D(1)(f), merely because the appellant exercises his right to appeal to another tribunal. But, where the same broad circumstances are at issue before both bodies and the law expressly recognises the duty of that other tribunal to consider any "exceptional circumstances of a humanitarian nature", the existence of such an appeal is a factor which can fairly be weighed in the balance in determining whether or not a recommendation is warranted to the Minister that an exception to the ordinary terms of policy be considered.

[122] The emotional well-being of the mother and the children is noted, but the reality is that their past symptoms were clearly brought on by a combination of the family's uncertain immigration status and the imprisonment of the appellant, with the family's consequent separation from him for those months. The difficulties they faced at that time are not underestimated. But that is not the prospect with which they are now presented. Notwithstanding Mr Ibram's assertions that the rest of the family will remain in New Zealand if the appellant is removed, a modicum of reality needs to be allowed to intrude. The rest of the family are unlikely to remain in New Zealand because the appellant's wife and the two eldest children (and the mother-in-law and brother-in-law, of course) are all at risk of the rescinding of their citizenship and revocation of their permanent residence. They, too, will then be required to leave New Zealand. It may be that they will oppose such steps and may succeed in prolonging matters for a while but, on the evidence, that outcome is likely. If, for unknown reasons, the appellant's wife and children are permitted to stay, the decision to separate is one for the family, particularly the appellant's wife, to make. It would be her voluntary decision, given that there is no compelling reason for them not to return to their claimed country of origin. See, for example, the decision of the High Court in Schier v Removal Review Authority [1998] NZAR 230, upheld by the Court of Appeal in Schier v Removal Review Authority [1999] 1 NZLR 703.

[123] As to the children, there is no doubt that New Zealand owes duties to them, particularly the younger two, whose citizenship is not tainted by the fraud of their parents. The extent of those duties, however, requires consideration. In rejecting the more expansive view taken by Baragwanath J in Ding, Asher J noted, in Huang:

[78] Mr Orlov referred to the New Zealand Bill of Rights Act and s 9 of that Act in support of a submission that the right of a child should not be affected by an order that resulted in a change of residence for that child. I do not consider that s 9 arises. The high threshold of "disproportionately severe treatment" is not shown on the evidence. Such an argument has not succeeded in other immigration cases: Puli'uvea v Removal Review Authority, p 425, Wolf v Minister of Immigration p 426.

[79] A person who is a New Zealand citizen does, of course, have a right to maintain that citizenship, and various consequences such as electoral rights (s 12 New Zealand Bill of Rights Act 1990) and freedom of movement (s 18) arise. Section 27 specifically gives all persons a right to justice. However, the New Zealand Bill of Rights Act 1990 contains nothing to indicate that New Zealand citizenship can give rise to particular rights to children, that may be invoked in proceedings concerning their parents.

[80] I refer to Baragwanath J's learned and careful consideration of this issue in Ding v Minister of Immigration (paras [227] - [247]). I agree that citizenship is a 'two-way street'. New Zealand owes duties to its citizens, as well as its citizens owing duties to it. However, this does not extend to [the child in this case] having the right to insist that his parents remain in New Zealand, and his parents' residence status determined on the imperative that his ability to stay is the absolute priority. There is nothing in the New Zealand Bill of Rights Act 1990 or the Immigration Act to indicate that such an approach is required. Given the implications of such an approach, a clear legislative direction would be necessary."

[124] Accepting, as the Board does, that the interests of the children, particularly the two New Zealand-born children, are a primary (but not the paramount) consideration, the Board must weigh their welfare in the balance, cognisant of the fact that their rights do not, automatically, extend to having their father remain in New Zealand.

c) the New Zealand-born children alone will remain in New Zealand, in the care of a third party.

[126] The appellant does not, at this point, commit himself to any one outcome and it is, perhaps, unreasonable to expect him to do so.

[127] Nevertheless, it is accepted that none of these scenarios provides a satisfactory outcome for the children. But the reality is that the choice will be one for the parents to make. By dint of serious breaches of New Zealand's immigration laws, the parents (and it is they alone who are responsible) have created a situation which, however resolved, is unsatisfactory.

[128] The appellant asks, in effect, that the Board recommend to the Minister that he put aside the appellant's failure to meet policy, his lack of good character, his fraudulent refugee claim, the further lies he told at the cancellation hearing and his activities as a 'people smuggler'. He says that the right of his children, particularly the two New Zealand-born children, to remain here and the negative emotional impact that separation from him would have upon them outweigh the catalogue of serious offending he has undertaken at this country's expense and make his circumstances 'special'.

[129] The appellant's offending cannot be trivialised. It has been towards the most serious end of the scale, in the immigration context. It has involved fraud resulting in convictions and professional people-smuggling on a large scale. Put bluntly, the appellant ranks as one of the least meritorious seekers of permanent residence to have come before the Board. The disadvantages inherent in each of the choices he and his wife now face in respect of the children must be balanced against these serious negative factors.

[130] The possibility of some emotional harm to the children if their father is removed from New Zealand is acknowledged, but the picture emerging from the various counsellors' and doctors' reports is inadequate. They give little insight into the role of the parents in minimising the harm the children are said to have suffered at the time the appellant was imprisoned, or in shielding them from any adverse emotional impact in the future. The reports are emotive and fail to provide a justifiable basis for the speculative conclusion that the children will suffer serious emotional harm if the appellant leaves the country.

[131] The reality is that children are often separated from one or both parents, for many reasons, including absence for work, hospitalisation, the children being sent to boarding school, parental separation and even the death of one or both parents. The vast majority of such children develop into healthy, normal adults, without undue trauma. That is because, as is reasonable to expect, those caring for the children will provide emotional support and nurturing that shields, protects and supports them to the fullest extent possible. Yet, the medical reports presented in this instance fail to discuss the role of the appellant's wife, or the appellant himself, in minimising any stress to the children. They do not provide an accurate picture of the likely effect on the children of the appellant being removed from New Zealand. Indeed, the reports do not even address the possible scenario that the whole family will remain together or whether there is, in fact, any risk of personal harm to any family member.

a) whether or not the New Zealand-born children would remain here, given the precarious status of their mother in New Zealand;

b) whether or not they would take the children to Afghanistan or seek a third country;

c) whether or not the children would be at risk in Afghanistan, or the extent of any risk. As noted at [94] above, in spite of the ongoing insurgency between resurgent Taleban forces and the Allied forces, there are nevertheless millions of ordinary Afghanis - a population in excess of 30 million (over 3 million of whom live in Kabul) - who have no greater risk of harm than the remote chance of being in the wrong place at the wrong time. One cannot extrapolate from generalised country information that all persons are at risk of harm in Afghanistan. Any risk is appropriately described as remote.

[133] It is accepted that the children have now spent some years in a 'westernised' environment and that, if the appellant and his wife elect to take them to Afghanistan, they will be required to adjust to the local culture and practices. The extent to which that impacts upon them, in the sense of their emotional well-being, depends substantially on how well their parents support and guide them.

[134] Ultimately, the situation facing the appellant and his family now is quite different to that which seems to have caused emotional harm to the children during the months the appellant was in prison. The parents are now able to decide whether or not the children will be separated from one, or both, parents. If they choose to keep the family together, the Board is satisfied on the evidence that they are adequately equipped and motivated to assist the children to adjust to life in Afghanistan. If they decide that any of the children should remain here, the responsibility rests with them to ensure that such arrangements are made as will ensure the children's physical and emotional well-being.

[135] Taken cumulatively, the foregoing factors lead the Board to conclude that the appellant does not have special circumstances within the meaning of section 18D(1)(f) of the Act. Even as a primary consideration, the welfare of the children (even accepting that their best interests would have them remain in New Zealand) is not established as being so at risk that it would outweigh the grave negative characteristics of the appellant. The fact that his wife and the two older children hold New Zealand citizenship adds little support, given the fraudulent manner in which it was obtained.

[136] A recommendation to the Minister that he consider an exception to policy is not warranted.

[137] This appeal is determined pursuant to section 18D(1)(a) of the Immigration Act 1987. The Board confirms that the decision of Immigration New Zealand to decline the appellant's application for residence was 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 of an exception to that policy under section 18D(1)(f) of the Act.

New Zealand Residence Review Board

Residence Appeal No: 15335 [2007] NZRRB 60 (22 February 2007)