BEL AND KAO V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC WN CIV 2006 485 865

BEL AND KAO V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC WN CIV 2006 485 865 29 May 2007IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2006 485 865UNDER the Immigration Act 1987 IN THE MATTER OF an appeal from a decision of the Removal Review Authority pursuant to s 115A of the Immigration Act 1987 BETWEEN VANDA BEL AND PICH TEVY KAO Appellants AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR Respondent Hearing: 24 May 2007 Counsel: J Petris for Appellants W L Aldred and M L Campbell for Respondent Judgment: 29 May 2007 at 12.15 p.m.RESERVED JUDGMENT OF RONALD YOUNG J[1] The appellants are citizens of Cambodia who have a New Zealand born daughter. The last of their temporary permits entitling them to remain in New Zealand expired on 6 May 2005. They were then required to leave New Zealand. The matter came before the Removal Review Authority who, on 22 December 2005, dismissed their appeals. [2] This appeal is to be on a question of law pursuant to s 115A of the Immigration Act. [3] The questions of law identified by the appellants are:(1) The Authority's decision is in violation of the relevant Articles of the International Covenant on Civil and Political Rights and theAuthority did not interpret and apply s 47in a manner consistent with the relevant Articles. In particular the questions of law for determination by the Court are: (a) Whether the decision of the Authority amounts to an arbitrary interference with the appellants' family, contrary to Articles 17(1) and 23(1) of the International Covenant of Civil and Political Rights and, in addition, a violation of Article 24(1) in relation to the appellants' child due to a failure to provide her with the necessary measures of protection as a minor. (b) Whether the Authority interpreted and applied s 47 in a manner consistent with the Articles referred to in paragraph (a). (2) Whether the Authority took an unreasonable view of the facts, namely in its view that it was safe for the appellants to return to Cambodia.[4] The latter ground of appeal (2) was abandoned at hearing.Factual background[5] Mr Bel is a Cambodian citizen who was born in 1980. He is married to Ms Kao also a Cambodian citizen born in 1981. They met while studying in New Zealand and married in September 2001. On 23 September 2001 Ms Kao gave birth to their daughter Dalyza Pichana Bel. Given she was born in New Zealand Dalyza Pichana Bel acquired New Zealand citizenship by birth (Citizenship Act 1977 s 6(1)(a)). Neither of the appellants, however, have citizenship or permanent residence of New Zealand. [6] In 1999 Mr Bel was working in his uncle's green grocer's shop in Phnom Penh. Four unemployed soldiers came to the shop and demanded money. Mr Bel refused saying he was only an employee. The soldiers left. However, at the end of the day when Mr Bel locked up the shop and took the daily takings to his uncle he was confronted by the soldiers who beat him and robbed him of the money. Physical threats were made if he informed the police. Mr Bel's parents became concerned and decided that they should arrange for him to study in New Zealand and so in 2000 he came to New Zealand. He went initially to Naenae College.[7] After the birth of their child the appellants had difficulty coping financially. Because of that financial pressure the appellants considered returning to Cambodia but decided not to do so because they believed they could be in danger on return. They were influenced also by the fact that Mr Bel's brother in law, who was a police officer, had been killed in Cambodia in 2002. Mr Bel says there is endemic violence and widespread extortion and threats in Cambodia. [8] In 2003 Ms Kao went to Cambodia to assess the situation. She thought the country had deteriorated since her last visit and the prospects of violence in Cambodia remained high.The Authority's decision[9] The Authority noted that these appeals were lodged pursuant to s 47 of the Immigration Act. It said the pivotal question was whether the appellants' situation established "exceptional circumstances of a humanitarian nature" such that it would be unjust or unduly harsh to require their return. The Authority considered the meaning of such phrases (see Patel v Removal Review Authority & Anor [2000] NZAR 200, 204). It considered New Zealand's obligations under International Covenant on Civil and Political Rights and the Rights of the Child and the way in which those obligations might be considered relevant in immigration decision- making (see Tavita v Minister of Immigration [1994] 2 NZLR 257). In addition, the Authority mentioned the importance of ensuring the integrity of New Zealand's immigration law, the need to consider the interests of the child, the importance of the family being allowed to remain in New Zealand and especially Article 3 of the Covenant on the Rights of the Child. [10] As to the evidence regarding the robbery of Mr Bel, the Authority concluded that this did not establish that the military were so corrupt that it "had descended into wholesale stand-over tactics" nor was it suggested that the police would take no action and that State protection was unavailable. As to the killing of Mr Bel's brother in law, the Authority said there was no evidence that that was politically motivated or that it had any direct relationship to Mr Bel's family beyond the fact hewas his brother in law. The Authority considered that the suggestion that violence being directed towards the family still remained a real possibility was "so vague and speculative as to be distinctly unhelpful." The Authority therefore concluded that there was no evidence to justify a finding that the appellants would be subject to violence if they return to Cambodia. The Authority also noted that Mr Bel's parents were reasonably well off and that the difficulties that often arose for persons re-establishing themselves in their home land would not be severe for the appellants. [11] The Authority then turned to consider the position of the appellants' child. It acknowledged the child's right to live in New Zealand. It observed that if the family, however, all decided to return to Cambodia there was no evidence that child would not be able to enjoy a normal family life consistent with the conditions experienced by other families in Cambodia. Nor was there any suggestion, if the child returned, she would suffer exceptional deprivation "such as to jeopardise her right to an adequate standard of living". The Authority accepted that the appellants were well settled in New Zealand but said they must have understood throughout, given they had no residence permit or long-term business visa, that their stay would always be temporary. The Authority therefore concluded that exceptional circumstances did not exist such that it would be unjust or unduly harsh for the appellants to be removed from New Zealand.Discussion and submissions[12] To return, therefore, to the grounds of appeal. It is important to keep in mind the limited grounds available to the appellants. Section 115A(1) provides as follows:115A Appeal against decision of Removal Review Authority on question of law(1) Where any party to any appeal to the Removal Review Authority under this Act (being the person who appealed to the Authority or the Secretary of Labour) is dissatisfied with any determination of the Authority in the appeal proceedings as being erroneous in point of law, that party may appeal to the High Court on that question of law.[13] It is for the appellants to satisfy me that there is a question of law identified. There is a limited discretion available to the Removal Review Authority. Section 47(3) imposes a stern test, exceptional circumstances, and sets a high threshold which invariably involves questions of fact and degree. The second element that such a removal be unjust or unduly harsh requires the whole of the circumstances to be considered. See Patel v Removal Review Authority & Anor [2000] NZAR 200,Yusuf v Chief Executive Department of Labour [2003] NZAR 693, and Tupou v Removal Review Authority [2001] NZAR 696Counsel's submissions[14] The appellants' submissions focused on three Articles in the International Covenant on Civil and Political Rights. (1) Article 17(1): No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence. (2) Article 23(1): The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. (3) Article 24(1): Every child shall have, without any discrimination as to race, colour . . . national or social origin . . . the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. [15] In addition, the appellants referred to the Convention on the Rights of the Child and in particular Article 3(1) which provides:In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.[16] The appellants say that the Authority inappropriately attached no great weight to the appellants being well settled in New Zealand. They submit that it would be an arbitrary interference in the family contrary to Article 17 and Article23 to remove them from New Zealand . In addition, the appellants say in terms of Article 24 that it would constitute a failure to provide the child with the necessary measures of protection if removal of her parents were ordered. They say, therefore, that the removal of the parents and by this the child from New Zealand would be arbitrary and inconsistent with the Articles mentioned above. They say that given the time the parents have been in New Zealand returning to Cambodia would be dangerous for the father and not in the best interests of the child.Discussion[17] The overwhelming New Zealand authority supports the general proposition that removal of a family member does not breach international obligations as such: See Patel v Minister of Immigration [1997] 1 NZLR 252; Schier v Removal Review Authority [1998] NZAR 230; Puli'ueva v Removal Review Authority [1996] 14 FRNZ 322; Qiong & Ors v Minister of Immigration & Anor [2007] NZAR 163;Al-Hosan v Deportation Review Tribunal (HC AK CIV 2006-404-292 3 May 2007). I accept, where the appellants have a child born in New Zealand, that particular care must be taken to carefully consider the position of the child if a removal decision is contemplated: See Ding & Ors v Minister of Immigration (2006) 25 FRNZ 568. Here, however, unless the appellants choose otherwise, a removal order would involve the child and her parents leaving New Zealand and no interference therefore in the child's family life. She would continue to enjoy the advantage of living with her parents. The appellants are Cambodia citizens who are entitled to return to Cambodia and can do so with their child. [18] There is no evidence to support the proposition that by doing so somehow this country would be failing to protect the appellants' family group. The appellants have family in Cambodia but no other family in New Zealand. There is evidence that at least the husband's family are well off. The appellants' child is still young and there is nothing to suggest she would not be well able to adapt to circumstances in Cambodia given she will have her mother and father. The Authority has already concluded that there is no reason to suppose any particular physical danger to theappellants upon return to Cambodia, nor that the police force is incapable of protecting them should that be necessary. [19] As the Authority observed, there is nothing to suggest that if the child was to accompany both parents back to Cambodia that she could not enjoy a normal family life in the context of Cambodia. There is no evidence that she would suffer any deprivation such as to jeopardise her right to an adequate standard of living. It may well be that conditions in New Zealand for a child growing up are favourable when compared with Cambodia. However, this is well short of establishing exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh to that child for her parents, who are unlawfully in New Zealand, to be removed from New Zealand. Here, as I have observed, there are reasons relating to wider family contact and include cultural imperatives that could favour a return to Cambodia. This, of course, is well short of the exceptional circumstances making it unjust or unduly harsh for either parents or child or both to be required to leave New Zealand. For the reasons given, therefore, this ground of appeal will be dismissed. [20] The second ground of appeal alleges that the Authority failed to interpret the Immigration Act in a way which was consistent with New Zealand's international obligations. See, for example, Schier v Removal Review Authority [1999] NZLR 703. In particular, the appellants say that the decision to remove the parents is a violation of the relevant Articles under the International Covenant on Civil and Political Rights and in addition the Convention on the Rights of the Child require a focus on the best interests of the child in terms of Article 3. The appellants submit that these two propositions should inform a consideration of whether or not exceptional circumstances have been established pursuant to s 47. [21] It is now well established that insofar as the wording of legislation allows such legislation should be read in a way consistent with New Zealand's international obligations. Here, however, what the appellants urge me to do is reach a conclusion that because in its submission the best interests of the child would be served by living in New Zealand rather than Cambodia and that removing the appellants would mean a breach of Articles 17 and 23 of the International Covenant on Civil and Political Rights, then exceptional circumstances would be established.[22] I reject that approach. I have already concluded there was no breach of Article 17 or 23. This family, as far as the parents are concerned, have lived in New Zealand for six years and the child for some five years. It could not be said that to remove the parents from New Zealand was an arbitrary interference in this family. [23] There has been no comprehensive evidence from the appellants about the best interests of the child in terms of Article 3(1) (see Ding [14]). While the parents may prefer to stay in New Zealand and keep their child in New Zealand there was, as I have said, little or no attempt made to highlight the relative advantages and disadvantages of New Zealand and Cambodia residence. Nor, in any event, does Article 3(1) say the interests of the child must be paramount. It is a factor to take into account and of course by its nature a serious factor. But even if established that the best interests of the child was to remain in New Zealand, this would not, by itself, necessarily be determinative. By itself it would not necessarily establish the s 47(3) test. These factors were all considered by the Authority. [24] The appellants have therefore not established that the Authority was in error. The Authority's decision properly considered the place of International Conventions, to which New Zealand is a signatory, in interpretation of New Zealand law. It reached a decision properly open on the facts. No error of law has been identified. [25] The second substantive ground of appeal, relating to an allegation that the Authority took an "unreasonable" view of the facts, was abandoned. [26] The appeal will therefore be dismissed. The Respondent is entitled to costs on a 2B basis. Ronald Young J