ABDUL HASHIM ZAHIR ALI V CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC WN CIV 2009-485-1596

ABDUL HASHIM ZAHIR ALI V CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC WN CIV 2009-485-1596 1 February 2010IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2009-485-1596UNDER the Immigration Act 1987 s 115A IN THE MATTER OF an appeal against a decision of the Removal Review Authority BETWEEN ABDUL HASHIM ZAHIR ALI TAHIMINA AKTAR TAREK AHMED SHUIAB AHMED Appellants AND CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR Respondent Hearing: 28 January 2010 Counsel: S L Litt for the Appellant M Silverwood for the Respondent Judgment: 1 February 2010JUDGMENT OF MILLER J[1] This is an appeal against a decision of the Removal Review Authority finding that there are no exceptional circumstances of a humanitarian nature that would make the appellants' removal from New Zealand unjust or unduly harsh. [2] The appellants are a couple and their eldest son, who was aged 17 at the time of the Authority's decision. Included in the parental appeals is a dependant son aged 14 years. There is a third child, a daughter born in May 2005 in New Zealand. She is a New Zealand citizen.The narrative[3] The background is presently not in dispute, and is accurately summarised in the Authority's decision. The husband arrived in New Zealand on 13 December 2003, and the wife and two sons on 19 April 2004. I adopt the Authority's description of subsequent events:[5] On arrival in this country the husband was granted a work permit authorising him to work as a chef in an Indian restaurant. In his application for a work visa submitted in August 2003 he claimed to have been working as a chef in Saudi Arabia for the ten years up to January 1996, then for the next twelve and a half years as a chef in a Sylhet restaurant. [6] There is an issue as to the husband's correct name and date of birth. When he arrived in this country in December 2003 he used the name Abdul Hashim Zahir Ali (Zahir Ali is his father's name and he is commonly referred to, as Abdul Hashim). He gave his date of birth as 10 February 1966 and he was in possession of a Bangladeshi passport containing those details, issued in August 2003 (although on the passport his name is actually misspelt as Abdul Hasim). The husband has continued to use the name Abdul Hashim throughout his stay in this country. [7] In February 2005 the husband submitted a residence application under the Skilled Migrant category. In the course of processing that application it came to the attention of Immigration New Zealand (INZ) that the husband had entered Australia in 1994 under the name Abdul Sattar Zahir Ali, born on 2 March 1961. There he submitted a refugee claim which was declined in February 1998, and his appeal to the Refugee Review Tribunal was dismissed in May 2000. He departed Australia in July 2003. Just prior to his departure he had unsuccessfully applied for a New Zealand work visa in the name of Abdul Sattar, the name he only ever used in Australia. INZ declined to grant a work visa as, given the husband's unsuccessful refugee claim in Australia, it was considered that he would likely overstay in this country. For reasons to be discussed in the public interest section below, the Authority finds that the husband's correct identity is Abdul Sattar, born on 2 March 1961. [8] On 17 March 2006 INZ advised that the residence application was declined on character grounds as the husband had provided false work references and failed to declare that he had been refused an Australian protection visa. A further application for a work permit submitted in June 2006 was similarly declined in October 2006 and the husband and his family were requested to leave New Zealand . [9] An appeal lodged with the Residence Review Board on 8 May 2006 was returned as the RRB held that it had no jurisdiction pursuant to section 18C(2A)(b)(i) of the Act as the husband, in his expression of interest, had submitted false and misleading information and withheld relevant information.[10] An approach was then made to local Member of Parliament, the Hon Jim Anderton, who, in July 2006, requested the Associate Minister of Immigration to review the decision to decline residence on character grounds. It was submitted on the husband's behalf that the decision to decline was out of proportion to the husband's indiscretion and the application should have been allowed to proceed on the merits. The Associate Minister responded by letter, dated 26 September 2006, that the false information supplied by the husband to INZ was significant and ongoing and beyond what could be considered a mere indiscretion and that he was not therefore inclined to intervene. [sic] [11] On 5 December 2006 the family submitted refugee claims. The basis of their claims was that the husband had worked as the office clerk for the Awami League in Sylhet and that he had been encouraged to go to Saudi Arabia in 1985 to promote the Awami League amongst ex-patriot Bangladeshis. He had obtained a passport in the false name Abdul Sattar and with a false date of birth because General Ershad was in power and he had clashed with his supporters. On his periodic visits home he would resume his position of office clerk until mid-1992 when a dispute within the Awami League leadership led to a faction establishing a new political party known as the Gano Forum which the husband joined. This made him a target for reprisals by Awami League members and he was hospitalised after an attack on him during 1992. He claimed to have been attacked again in mid-1994 prompting his decision to travel to Australia. After his return to Bangladesh in September 2003, he attended a meeting of the Gano Forum which was attacked by Bangladeshi National Party (BNP) supporters and he again claimed to have sustained injuries requiring him to be hospitalised. Fearful of further attacks from BNP supporters he made arrangements to come to New Zealand. He said he feared for his and his family's lives at the hands of BNP and Awami League supporters should he return to Bangladesh. [12] The Refugee Status Branch (RSB) declined the family's refugee claims in decisions dated 13 September 2007. In particular the husband's claim to have been seriously assaulted by BNP supporters on his return to Bangladesh in 2003 was rejected as not credible along with claims that BNP supporters were searching for him in Bangladesh. The RSB also concluded that the husband's correct identity and date of birth was as stated in his previous passports and used throughout his years in Saudi Arabia and Australia, namely Abdul Sattar Zahir Ali, born on 2 March 1961. [13] No appeals to the Refugee Status Appeals Authority were filed. [14] On 26 October 2007 INZ revoked the family's temporary permits, effective from 17 November 2007. No appeals were filed against removal within the 42-day appeal period. The appellants failed to leave New Zealand . In September 2008 the Hon Jim Anderton again sought Ministerial intervention on the family's behalf. On 22 October 2008 the Associate Minister authorised the grant of one-day visitors' permits to the family to enable them to appeal against removal to this Authority.[4] The appeals to the Authority were filed in February 2009, and its decision was delivered on 23 July of that year. It held that the appellants had shown neitherthat there were exceptional humanitarian circumstances nor that it would not be contrary to the public interest for them to remain in New Zealand. It reached that conclusion after examining the circumstances of each of the appellants and the daughter, including health considerations for the older son and educational opportunities for all three children. It recorded that it had sought further evidence about such matters and considered such evidence as the appellants provided. They did not identify particular educational disadvantages in Bangladesh for any of the children or loss of sporting opportunities for the second son, or show that the older son would not obtain medical treatment in Bangladesh should he require it. It accepted that the childrens' best interests might lie in remaining in a developed country, but more than that was necessary. Mr Ali's dishonesty had been persistent and ingenious. He had no compunction in lying, producing fraudulent documents, and arranging for others to lie on his behalf. He had apparently been law-abiding in New Zealand otherwise, and had run a restaurant business with his wife, but these factors provided little by way of mitigation. The others were not responsible for the fraud, but benefited from it. [5] The appeal to this Court was filed in August 2009. The ground of appeal is that the Authority's decision was wrong in law in that the family's general circumstances, including those of the children following removal, establish that any likely lower standard of living will involve exceptional hardship for the children or a significant breach of their socioeconomic rights, so as to amount to exceptional humanitarian circumstances. [6] An application for leave to file further evidence was made, but was abandoned before me. [7] The appeal incorrectly named the Minister of Immigration as respondent. By consent, I substituted the Chief Executive of the Department of Labour.The law[8] The appeal to the Authority was brought under s 47 of the Immigration Act 1987, subsection (3) of which provides:47 Appeal against requirement to leave New Zealand(3) An appeal may be brought only on the grounds that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand.[9] The leading judgment, Ye v Minister of Immigration [2010] 1 NZLR 104 (SC), was delivered after the Authority's decision in this case. Tipping J, for the majority, analysed s 47(3) as follows:[30] The subsection is drafted on the basis of two sequential considerations. The first step is to determine whether there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person concerned to be removed from New Zealand. If that is not shown, the inquiry ends there and removal takes place. If it is shown that it would, on the statutory basis, be unjust or unduly harsh to remove the person from New Zealand, the decision maker must move to the second inquiry. This concerns whether, despite the injustice or undue harshness, it would in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand. A person seeking to avoid removal must demonstrate not only qualifying injustice or undue harshness but also that it would not be contrary to the public interest for them to be allowed to remain in New Zealand[10] Tipping J went on to emphasise that exceptional circumstances must be outside the general run of immigration cases, and that the harshness must be undue, meaning that it must go beyond that degree of harshness necessary to preserve the integrity of the immigration system:[34] That brings us back to the first criterion in s 47(3) which has the following ingredients: (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand. The need for the circumstances of the case to be exceptional means that those circumstances must be well outside the normal run of circumstances found in overstayer cases generally. The circumstances do not have to be unique or very rare but they do have to be truly an exception rather than the rule. It is unnecessary and undesirable to attempt to define the compass of the word "humanitarian". It is unlikely to be difficult to decide whether the circumstances of a particular case fulfil that description. If there are exceptional circumstances of a humanitarian nature, it is then necessary to determine whether they make it unjust or unduly harsh to remove the person from New Zealand. [35] The qualification of the word "harsh", by the word "unduly", recognises that there may be some degree of harshness in removing an overstayer from New Zealand. In particular some degree of harshness may be involved where the removal affects New Zealand citizen children. But the statutory test is couched on the basis of undue harshness. Undue in thiscontext means that the harshness goes beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand's immigration system. That is why a generic concern on that account is not enough to outweigh fulfilment of the first criterion in s 47(3). [36] The flavour of the subsection as a whole, with its interweaving of the concepts of exceptional circumstances, injustice or undue harshness and the public interest suggests that Parliament, being mindful of humanitarian considerations, contemplated overstayers being allowed to remain in New Zealand if there were humanitarian circumstances of a sufficiently unusual kind that their remaining would not undermine the general importance of maintaining the integrity of the immigration system. The test was designed to be strict but was seen as representing an appropriate reconciliation of personal humanitarian concerns with relevant aspects of the public interest.[11] The majority held at [25] that the interests of New Zealand citizen children are an important consideration in the decision-making process, but what effect should ultimately be given to them is a matter of assessment against all the other relevant circumstances of the case.This case[12] Ye was concerned with cancellation of a removal order under s 58 of the Act. The question was whether the interests of children who were New Zealand citizens had been appropriately taken into account when considering their parents' removal. The officers conducting the interview followed a questionnaire which caused them to ask whether there were children but did not invite the officers to inquire more closely into their circumstances. [13] This is a different case. No removal order has been made. Rather, the appeal marks the end of the family's attempts to secure residency. The appellants are now unlawfully in New Zealand and are susceptible to a removal order. As part of the removal process, there will be a "humanitarian interview", meaning an interview directed to any humanitarian circumstances. Ms Silverwood assured me that it will take into account anything that has occurred since the hearing before the Authority, and any further evidence that the appellants wish to tender about matters that the Authority did consider. The interview doubtless will address the deficiencies that the Supreme Court identified in the questionnaire used in Ye. I was given to understand that it will take place under provisions of the Immigration Act 2009.[14] In particular, the removal process will allow the appellants to advance, if they wish, a proposal that Mrs Ali be permitted to remain in New Zealand with the children, a possibility which was not expressly raised before the Authority but which Ms Litt identified in her submissions before me.No error of law[15] An appeal to this Court against a decision of the Removal Review Authority is confined to a point of law. [16] Ms Litt accepted that the Authority approached s 47(3) correctly. Specifically, she did not suggest that the Supreme Court decision in Ye required a different approach. Nor did she suggest that the Authority failed to give distinct consideration to the circumstances of each member of the family. The nub of the appeal, in her submission, is that the cumulative effect of the humanitarian circumstances is such that the Authority's decision was wrong in law. [17] I am unable to accept this submission. I observe that in Ye Tipping J held at [38]:...Whether the particular exceptional circumstances give rise to the necessary injustice or undue harshness is a matter for the assessment of the decision maker. It will depend on how compelling or persuasive the exceptional circumstances are.In short, the assessment is one of fact. It undoubtedly raises questions of law at the margin, when the decision maker has gone beyond the reasonable scope for judgement permitted by the legislation, but this is not such a case. [18] Specifically, the Authority elaborated upon a series of dishonest acts by Mr Ali in his attempts to secure New Zealand residency, concluding:[45] The husband's misconduct is serious and has been ongoing. He has no compunction in lying, even about his identity, producing fraudulent documentation and arranging for others to lie on his behalf if he considers it in his interest to do so. INZ declined to grant him a character waiver. The use of false identities undermines the integrity of New Zealand 's borders while the objectives and fairness of immigration policy is reliant on applicants for residence and temporary permits acting honestly and in goodfaith. There is a very real public interest in not rewarding serious dishonesty.[19] The Authority weighed that consideration against his law-abiding conduct in New Zealand, his support for his family and his success in running a restaurant business, and it examined the circumstances of each of the children, focusing on the health of the eldest son and the educational opportunities for each of the children. Nothing in their circumstances suggested exceptional hardship were they to be required to live in Bangladesh. [20] Accordingly, the Authority did not err in law by finding that the interests of the three children of the family, even when considered cumulatively, did not amount to exceptional humanitarian circumstances that would make it unjust or unduly harsh for the appellants to be removed from New Zealand. [21] Nor did the Authority err in law in finding itself unsatisfied that it would not in all the circumstances be contrary to the public interest to allow the appellants to remain in New Zealand. In reaching that conclusion, it correctly took into account all the circumstances of the wife and children together with those of the husband. Ms Litt did not dispute that it could take his fraud into account. The Authority found that the fraud, which was serious and persistent, and the integrity of the immigration system together outweighed the limited humanitarian considerations in the circumstances. I observe that the majority in Ye held that the public interest limb of the subsection does add a further requirement to exceptional circumstances of a humanitarian nature; that is, it is not satisfied merely by the existence of such circumstances. [22] Finally, the Authority did not fail to consider the possibility that Mr Ali alone might be deported. It considered the position of each of the appellants separately, concluding that although Mr Ali committed the fraud they had benefited from it and that there was no undue hardship in requiring that they leave New Zealand. The appellants did not ask the Authority to approach the case on the basis that the remainder of the family might wish to remain, were Mr Ali deported.Decision[23] The appellants have failed to point to an error of law, or indeed to show any error in the Authority's decision. The appeal is dismissed.Costs[24] At Ms Silverwood's request, I will allow counsel to be heard by memoranda on the question of costs. The appellants are not legally aided, and the respondent wishes to argue that there should be an increase on scale costs. Memoranda should be filed by respondent and appellants within 14 days and 21 days of this judgment respectively.Miller JSolicitors:Crown Law, Wellington for the Respondent