Residence Appeal No: 15629 [2008] NZRRB 135 (29 May 2008)

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RESIDENCE REVIEW BOARD NEW ZEALAND
AT WELLINGTON	RESIDENCE APPEAL NO: 15629
Before:	A M Clayton (Member)
Representative for the Appellant:	The appellant represented himself
Date of Decision:	29 May 2008
Category:	Family (Partnership)
Decision Outcome:	No Jurisdiction

[1] The appellant is a 37-year-old male citizen of South Africa whose application for residence under the Family (Partnership) category was declined by Immigration New Zealand (INZ) on 8 August 2007.

[2] The principal issue for the Board is whether it has jurisdiction to hear the appeal, in light of the appellant's previous application for refugee status in New Zealand and the fact INZ has previously served him with a removal order.

[3] The appellant arrived in New Zealand in November 2000, joining his then wife and two children. The family had fled their farm in Zimbabwe.

[5] On arrival the appellant had been granted a visitor's permit and thereafter a series of work permits as the spouse of a New Zealand resident. His work permit was revoked in July 2002, effective 14 August 2002 as his wife had withdrawn her support. The application the appellant had made for a further work permit on 14 August 2002 was declined on 7 March 2003.

[6] On 10 February 2003 the appellant was convicted on five charges of contravening a protection order and one charge of assaulting a female and sentenced to five months' imprisonment without leave to apply for home detention.

[7] On 19 March 2003 the appellant was served with a removal order on the basis of his unlawful status since 14 August 2002.

[8] The appellant claimed refugee status on 11 April 2003. His application was declined on 20 October 2003.

[9] The appellant initially appealed that decision to the Refugee Status Appeals Authority (RSAA) but withdrew that appeal on 20 January 2004.

[10] On 30 July 2004 the appellant was convicted on another two charges of contravening a protection order and sentenced to one year's supervision.

[11] On 16 September 2004 the then Associate Minister of Immigration granted the appellant a work permit to 16 September 2005. On 8 June 2006 the appellant appealed once again to the Associate Minister who declined to intervene on 10 August 2006.

[12] The appellant left New Zealand voluntarily on 6 December 2006 with his new partner, a New Zealand citizen, and his youngest child.

[13] On 17 April 2007 he applied from offshore for a residence visa under the Partnership category. The application was declined on character grounds on 8 August 2007.

[14] The appellant lodged an appeal against that decision with this Authority on 12 September 2007 and the question is whether the Board has the jurisdiction to hear his appeal.

[15] In its letter dated 8 August 2007 INZ set out its decision to decline the appellant's application for a residence visa under the Partnership category as follows (verbatim):

"We are writing with regard to your application for residence which was accepted for consideration on 17 April, 2007.

We regret to advise that your application for residence in New Zealand under the Visa, Residence, Partnership category is not able to be approved.

As per the policy requirements under policy F2.5.d (v), in order to qualify for New Zealand residence, applicants must be of good character:

F2.5 How do partners of New Zealand citizens and residents qualify for residence?

Because of your conviction history detailed in the letter dated 15 June 2007, you fall under section A5.25 of policy and you are ineligible for the grant of residence unless granted a character waiver as set out in policy A5.25.1.

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

There is a requirement for you to be approved for a character waiver in order to be granted New Zealand residence. You were advised of this in our letter dated 15 June 2007, which outlined information that may be prejudicial to the approval of your application. In this letter you were offered the opportunity to submit information or provide comment that you would like to be considered as part of the character waiver consideration. A copy of this letter is enclosed for your reference.

In response to the letter dated 15 June 2007, you emailed a letter dated 12 July 2007. A copy of this letter is enclosed for your reference.

A character waiver was conducted taking into account the explanation and comments that you had provided. Taking your explanation and comments into consideration, the decision was made on 1/8/2007 to not grant you a character waiver. A copy of the character waiver has been enclosed. This outlines the information you have provided and the decision that was made. The decision was made based on your surrounding circumstances and all the other factors that have been taken into account.

As you have not been granted a character waiver you therefore do not meet the character requirements under section A5.25. As you do not meet the minimum policy requirements under the Visa, Residence, Partnership 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."

[16] INZ sent with its decline letter a six-page character waiver assessment which, given the outcome of this appeal, is not set out in full.

"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."

[18] The appellant appeals on the ground that the decision of INZ was not correct in terms of the applicable Government residence policy or, if it was, that his special circumstances are such that an exception to that policy should be considered.

[19] The appellant provides on appeal a 16-page submission with copies of the INZ character waiver decision and a Family Court access order dated 30 June 2005 in respect of his two children (now aged 12 and 10) with his former wife. He summarises the grounds of his appeal as follows:

"(A) The decisions breach New Zealand's obligations under the terms of the United Nations Convention on the Rights of the Child to which New Zealand is signatory.

(B) The decisions breach New Zealand's obligations under the terms of the International Covenant on Civil and Political Rights to which New Zealand is signatory.

(D) The decision is based on conclusions, findings and observations that are speculative, emotive and devoid of fact.

(E) Reaches conclusions that the decider of fact was not competent to decide as she had neither expertise, mandate, necessary qualifications nor insight into and for the paramount matter at hand namely child care and or placement decisions following marital separation.

(H) The decision making process did not comply with the requirements of fairness and natural justice in flagrant breach of Immigration policy."

[20] Prior to the determination of this appeal, the Board sought from both the Department of Labour on behalf of INZ ("the Department") and from the appellant himself submissions with respect to sections 129U and 7(1)(c) of the Immigration Act.

[21] Section 129U specifically provides that a present or former refugee status claimant, to whom a temporary permit has been granted on or after 1 October 1999, may not bring any appeal under the Immigration Act to the Residence Review Board.

[22] In a letter to the appellant dated 15 January 2008 (copied to the Department) the Board's Secretariat set out section 129U and reminded the appellant that he had claimed refugee status on 11 April 2003 and held temporary permits from 16 September 2004 to 16 September 2005. Those facts indicated that he had been a refugee status claimant to whom a temporary permit had been granted after 1 October 1999 and as such, a person to whom section 129U applied. It would appear he was therefore barred from bringing an appeal to the Board. A copy of the Board's decision in Residence Appeal No 15396 (15 November 2007), which decision denied jurisdiction in a case where the appellant had not departed New Zealand, was enclosed.

[23] The appellant replied on 23 January 2008. He submits the Board does have jurisdiction because:

(a) He, the appellant, had departed New Zealand voluntarily whereas the appellant in Residence Appeal No 15396 had remained in New Zealand.

(b) A letter dated 3 September 2004 from the then Associate Minister of Immigration stated that, although the Associate Minister would not normally intervene, the appellant's case was extremely complex and he was consequently granted a work permit for one year under section 35A of the Immigration Act. The appellant submits that this:

"can only be interpreted as concise and clear acknowledgement that 129U should now (sic) longer be applicable to me".

(c) If the appellant's right of appeal was restricted pursuant to section 129U, such restriction would be "an affront to any democratic society" and in violation of the International Covenant on Civil and Political Rights, Articles 2, 3, 14 and 26. The appellant claimed he could not be discriminated against on the basis of "other status" and pointed out that Sir Robin Cooke in Tavita v Minister of Immigration [1994] 2 NZLR 257, at page 266, had said:

"a failure to give practical effect to international instruments to which New Zealand is a signatory may attract criticism".

(d) The Board had accepted the appellant's fee and application for appeal, thereby creating a fiduciary relationship whereby at the very least the merits of his appeal should be considered, especially as they raise significant human rights considerations in respect of his three New Zealand-citizen children and in view of the required application of equitable principles in situations where people are vulnerable.

[24] The Department responded on 31 January 2008 maintaining its position, as it had outlined in earlier cases, that the correct interpretation of section 129U implies limitations to its continued application. It submits that the Board's jurisdiction to hear an appeal is not usurped because section 129U does not apply, even on its face, to visa applications. While the section itself has no express temporal limitation, such limitation must be implied; otherwise, a strict interpretation means the consequences of the section would continue indefinitely.

[25] The Department's view is that section 129U is susceptible to certain "intervening events", for example where a subsequent permit is granted pursuant to section 35A or where a person departs New Zealand. Unless such a departure was an intervening event, the effect would be that the individual would be able to apply for a residence visa following their departure, possibly years later, but could never appeal to the Board. This, submits the Department, is "a patently absurd result and one that cannot have been intended by Parliament ...".

[26] In this case, the appellant's departure from New Zealand constituted an intervening event which afforded him a new status from that contemplated by the wording of section 129U(2). There can be no suggestion even on a very literal reading of the section, says the Department, that the appellant is unable to apply for a residence visa. The contention that he is unable to appeal the decision to decline such a residence visa "seems clearly at odds with the desired consequence intended by Parliament". The Department retains the view that the hold of section 129U is broken by the appellant's departure and his appeal should proceed in the normal manner.

[27] The INZ files provided to the Board for the purpose of determining his appeal revealed also that the appellant had been served with a removal order on 19 March 2003. The appellant had voluntarily left New Zealand on 6 December 2006 but there was no cancellation of the removal order pursuant to section 58(4) of the Immigration Act, and therefore it remained in force.

[28] On 19 March 2008 the Board's Secretariat set out this information to the appellant and advised him that section 7(1)(c) of the Immigration Act specifically provides that no permit shall be granted to any person against whom a removal order is in force. A copy of Residence Appeal No 15008 (17 May 2006), in which the Board found it had no jurisdiction in similar circumstances, was enclosed for the appellant's information. Both he and the Department were invited to make submissions on the effect of section 7(1)(c) on the Board's jurisdiction.

[29] The appellant responded on 19 March 2008 submitting that the non-cancellation of the removal order was clearly an oversight on the part of INZ as he had been granted a work permit by the Associate Minister in September 2004, well after 19 March 2003 when he had been served with the removal order. He submitted that the removal order had to automatically be cancelled because otherwise he could not have been issued a visa:

"Logic dictates that a person can never be the holder of a current visa and the subject of a removal order at the same time - as the one scenario negates the other."

[30] The appellant submitted that the later event, that is the issuing of the visa, automatically cancelled the earlier situation, in which the removal order existed.

[31] The Department responded on 3 April 2008 conceding that the Board did not have jurisdiction to entertain the appeal because of the reasons set out in the Secretariat's letter and in the decision Residence Appeal No 15008.

[32] The Board has been provided with the INZ file in relation to the appellant's residence application and has considered the submissions from both parties on the two issues affecting jurisdiction.

[33] The appellant and the Department both submit the Board has jurisdiction to hear the appeal notwithstanding section 129U. The Board disagrees.

"129U Special provision relating to refugee status claimants granted temporary permits

(a) Is a refugee status claimant to whom a temporary permit has been granted on or after 1 October 1999 (whether before or after the person became a claimant); or

(b) Having been a person to whom paragraph (a) applies, ceases to be a refugee status claimant by virtue of having his or her claim under this Part to be recognised as a refugee declined.

(2) A person to whom this section applies may not, whether before or after the expiry of the temporary permit, -

(a) Apply for a further temporary permit or for a permit of a different type while in New Zealand; or

(b) While in New Zealand, request a special direction, or a permit under section 35A; or

(3) Despite subsection (2)(a), a claimant may apply for a further temporary permit for such period as may be required to maintain the claimant's lawful status in New Zealand while the claim is determined.

(4) Nothing in this section prevents a person from bringing an appeal to the Removal Review Authority under Part 2.

(5) This section ceases to apply to a person if and when his or her claim under this Part to be recognised as a refugee is successful."

[35] The appellant made an application for refugee status on 11 April 2003. His refugee claim was declined on 20 October 2003 and he abandoned his appeal to the RSAA on 20 January 2004. He has been granted temporary permits since his arrival in November 2000, both before and after he lodged his refugee status claim. Section 129U(1)(b) therefore applies to him as he was a refugee status claimant (after 11 April 2003) to whom a temporary permit has been granted on or after 1 October 1999.

[36] Therefore, being a person who squarely fits section 129U(1)(b), section 129U(2) sets out what he may not do, whether before or after the expiry of his temporary permit. He may not do three things: apply for a further temporary permit or a permit of a different kind while in New Zealand; request a special direction or a permit under section 35A while in New Zealand; or, pursuant to section 129U(2)(c), bring any appeal to the Board. The prohibition against appeal to the Board is not prefaced or followed by the words "while in New Zealand". It is a blanket prohibition triggered by being an individual who meets the section 129U(1) criteria.

[37] Section 129U(3) sets out one thing a refugee claimant may do. He may apply for a further temporary permit to maintain his lawful status in New Zealand while his refugee status claim is being determined. While the appellant availed himself of this provision during the processing of his refugee claim, it does not assist his ability to appeal to the Board.

[38] Section 129U(4) also expressly allows such a person to bring an appeal to the Removal Review Authority. The appellant would have been entitled to appeal to the Authority within 42 days of the expiry of his permit in August 2002, but he did not. He was served with a removal order on 19 March 2003 which meant that when he left New Zealand on 6 December 2006, a five-year prohibition on his return commenced.

[39] The correct interpretation of section 129U(2) was addressed in detail by the Board in Residence Appeal No 15396 (15 November 2007), particularly paragraphs 38 to 48. This was the decision made available to the appellant and the Department by the Board's Secretariat.

[40] The Board (differently constituted) has released a further decision, Residence Appeal No 15605 (12 February 2008), in which jurisdiction was also declined. That appellant had, like this one, voluntarily departed New Zealand, and the Board reached the same conclusion, that the correct interpretation of section 129U means that once caught by that section, an individual may never bring an appeal to this Board. A distinct finding was made that there is nothing in the legislation which even implies that leaving the country "breaks the hold" of section 129U(2)(c).

[41] Thus due to the operation of that provision, section 129U(2)(c), the Board has no jurisdiction to decide the present appeal.

[42] While the Department concedes that the Board has no jurisdiction in this case because of the operation of section 7, the appellant does not accept that to be the case. The Board determines it does not have jurisdiction for the following reasons.

(1) Subject to subsection (3) of this section, no exemption shall apply, and no permit shall be granted, to any person—

[44] The appellant did not lodge an appeal against removal, was served with a removal order on 19 March 2003, and left New Zealand on 6 December 2006.

(1) A removal order is in force from the time at which it is served, and remains in force until the expiry of 5 years after the date the person named in it is removed from New Zealand, unless it is cancelled before then under section 58."

[46] The appellant's removal order was not cancelled in terms of section 58. The removal order was therefore effective from the date it was served, 19 March 2003, to the date the appellant left New Zealand, 6 December 2006, and remains effective for another five years from the latter date, that is until 6 December 2011.

[47] Until that date in 2011, section 7(1)(c) provides that the appellant cannot be granted any permit by INZ, subject to three express exemptions in section 7(3) (which are addressed in paragraphs [52] et seq of this decision).

[48] The function of the Board is to hear appeals brought under section 18C of the Act against the refusal of INZ to issue a residence visa or grant a residence permit. In the appellant's case, because of the appellant's removal order and the consequent operation of section 7(1)(c), the Board could not direct the grant of a residence permit to the appellant. Nor could it direct INZ to re-assess whether a permit should be granted, since INZ could not grant a permit even if it decided the appellant met policy. The section 7(1)(c) prohibition applies as much to INZ as it does to the Board.

[49] If there were any doubt that this prohibition extends to the issue of residence visas as well as the grant of residence permits, the appellant's ineligibility to be granted either is confirmed in section 13B(5) of the Act:

(5) For the purposes of this Act, no person who is a person to whom section 7(1) of this Act applies shall be treated as entitled to or eligible for the issue or grant of a residence visa or residence permit in terms of Government residence policy."

[50] This provision operates as a statutory bar to either INZ or the Board granting residence or directing the grant of residence to the appellant in terms of Government residence policy.

[51] The Board turns to the appellant's submission that because the Associate Minister granted him a temporary work permit some 18 months after he had been served with a removal order, the removal order must have been automatically cancelled. This is not correct.

[52] Certainly section 7 allows for the possibility of a person to whom section 7(1) applies, to be granted a permit. Three exemptions are outlined in section 7(3):

(A) To be in New Zealand for the purposes of giving or providing evidence or assistance pursuant to a request made pursuant to section 12 of the Mutual Assistance in Criminal Matters Act 1992; or

(B) To be transported through New Zealand pursuant to section 42 of that Act; or]

(iii) If it is granted for the sole purpose of enabling that person to return to New Zealand to face any charge in New Zealand or to serve any sentence imposed on that person in New Zealand; and

(b) Any exemption under section 11(1)(a) of this Act and any exemption granted in accordance with a special direction shall apply notwithstanding that the person is a person to whom subsection (1) of this section applies."

[53] While none of the other exemptions apply to this appellant, subsection 7(3)(ii) anticipates that a permit may be granted in accordance with a special direction, that is pursuant to section 35A of the Immigration Act, notwithstanding that the grantee is a person to whom section 7(1) applies.

[54] Section 35A(1)(d) states that the Minister may at any time of his or her own volition grant a permit of any type to a person so long as they are not a person in respect of whom a removal order is in force. The fact that the Associate Minister did so, which the appellant himself submits is clearly an oversight, does not act to cancel the removal order which may only be cancelled in the express terms of section 58.

[55] The work permit granted by the Associate Minister in September 2004, being outside the parameters of section 35A(1)(d), did not and does not have any legal effect on the continued validity of the removal order.

[56] As such, its grant has no effect on the section 7(1) prohibition cast over the granting of permits to the appellant by INZ or by this Board prior to 6 December 2011.

[57] Because neither INZ nor the Board has power to direct the grant of residence, sections 7 and 13B act as an insurmountable barrier to the Board having jurisdiction to hear this appeal.

[58] The appellant comes within the ambit of section 129U(1)(b) and so, under section 129U(2)(c), he may not bring any appeal to the Board either before or after the expiry of the temporary permit he held.

[59] Because he was served with a removal order which remains in effect until 6 December 2011, the appellant is also caught by section 7(1)(c) which bars INZ or the Board granting him residence.

[60] For these two reasons, the Board has no jurisdiction to consider the appellant's appeal. The appeal is dismissed on this basis.

New Zealand Residence Review Board

Residence Appeal No: 15629 [2008] NZRRB 135 (29 May 2008)