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New Zealand Immigration and Protection Tribunal |
Last Updated: 15 August 2018
IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND
AT AUCKLAND
Appellant: FI (India)
Before: S Pearson (Member)
Counsel for the Appellant: K Ah Kuoi
Date of Decision: 28 June 2018
DEPORTATION (NON-RESIDENT) DECISION
[1] This is a humanitarian appeal by the appellant, a citizen of India, against her liability for deportation which arose when she was served with a Deportation Liability Notice (DLN) on 22 February 2018.
THE ISSUE
[2] The appeal is made on the basis that the appellant is in a genuine and stable relationship with her husband who is a New Zealand citizen. The primary issue is whether this relationship gives rise to exceptional humanitarian circumstances which would make it unjust or unduly harsh for the appellant to be required to leave New Zealand before she has an opportunity to lodge an application for residence under the Partnership category.
[3] For the reasons that follow, the Tribunal allows the appeal and cancels the DLN
BACKGROUND
[4] The appellant’s sister is a New Zealand resident who is married to a New Zealand citizen and the couple has a son. The appellant’s parents were recently granted residence in New Zealand under the Family (Parent) category, on 7 April 2018.
[5] The appellant arrived in New Zealand as the holder of a student visa in February 2010. She had completed a Master of Philosophy at a university in Delhi in 2008 and was awarded a PhD at a New Zealand university in 2016. Since the completion of her studies here, the appellant has held work visas, the most recent of which was valid until December 2018.
[6] On 21 September 2016, the appellant made a complaint to the New Zealand police that her ex-partner, with whom she had been in a relationship for approximately 18 months and had recently moved out, had been abusive and had raped her. She was interviewed on 28 September 2016. On 2 October, she advised the police that she wished to withdraw her complaint. Police enquiries had already indicated a number of inconsistencies with her allegation. She claimed that she believed that she was mentally unwell at the time she made the complaint.
[7] In July 2017, the appellant married a member of her local Indian community. He had been born here and was a New Zealand citizen.
[8] The appellant was charged with attempting to pervert the course of justice, on 30 January 2018. She was summonsed to appear in the District Court on 16 February 2018. At that stage, no plea was entered. The matter is still before the court, with the next hearing scheduled in August.
[9] On 22 February 2018, a DLN was served on the appellant on the basis that she had made a false allegation of rape against her ex-partner.
[10] The Immigration New Zealand file contained a copy of the New Zealand Police Summary of Facts. It records that on 2 October 2017, the appellant went back to the central police station with a written statement admitting that she had made a false complaint of rape against her ex-partner because he had ended the relationship abruptly and she believed that he had stolen some of her personal items.
Submissions Regarding Good Reasons not to Deport Appellant
[11] Following the service on the appellant of the DLN, she instructed counsel who submitted on her behalf good reasons as to why she should not be deported.
[12] Counsel submitted that the appellant was working full-time with a “food assembly” company. She had married a New Zealand citizen on 8 June 2017 and they were currently living together in a stable relationship. There had been a lot of stress and instability in the appellant’s relationship with her ex-partner because of his alleged involvement in unsafe sexual practices with other women.
[13] It was also submitted that the appellant’s new husband suffered from a serious recurrent brain inflammatory illness and relied on the appellant for support. If she was deported to India, this would be to the detriment of her husband, who would not be well enough to reside in that country.
[14] Counsel requested that the appellant be given a second chance. She was remorseful and was seeking help from a counsellor to address her issues.
[15] Enclosed with counsel’s letter were statements from: the appellant; her husband; her sister; a doctor from the health centre attended by the appellant (2 March 2018); and from a neurologist (27 June 2017) concerning the appellant’s husband’s health. A copy of the appellant’s and her husband’s New Zealand marriage certificate (8 June 2017), the biographical details of the appellant’s husband’s New Zealand passport, and photographs of family and friends were included.
Good Reasons Not Accepted
[16] Immigration New Zealand responded to counsel’s submissions on 11 April 2018. The appellant’s explanation as to why she made a false complaint of rape against her ex-partner was rejected. Her claims that she had been under severe psychological stress caused by her emotionally abusive ex-partner when she complained to the police were not considered credible. Her claim that she had done so because she feared that she had been exposed to sexually transmitted diseases as a result of his unsafe sexual practices, were also not accepted. Neither was her claim that she had sought to obtain moral and emotional support from the New Zealand police. Immigration New Zealand observed that the information from the health clinic, where she had been registered as a patient since June 2016, had no record that she had approached her medical practitioner for assistance. She had access to medical support and services without involving the New Zealand Police. Accordingly, the appellant’s deportation liability remained.
STATUTORY GROUNDS
[17] The grounds for determining a humanitarian appeal are set out in section 207 of the Immigration Act 2009 (the Act):
(1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that ‐
(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
[18] The Supreme Court stated that three ingredients had to be established in the first limb of section 47(3) of the former Immigration Act 1987, the almost identical predecessor to section 207(1): (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 circumstances “must be well outside the normal run of circumstances” and while they do not need to be unique or very rare, they do have to be “truly an exception rather than the rule”, Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].
[19] To determine whether it would be unjust or unduly harsh for an appellant to be deported from New Zealand, the Supreme Court in Ye stated that an appellant must show a level of harshness more than a “generic concern” and “beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system” (at [35]).
THE APPELLANT’S CASE
[20] The appellant’s case is set out in counsel’s letter of 18 April 2018 which accompanied the appellant’s appeal form. The appeal was lodged with the Tribunal on 23 March 2018. Counsel’s submissions can be summarised as follows:
(a) The appellant suffered during her relationship with her ex-partner as he forced her to take hormonal pills on top of contraceptive pills at times. This could lead to blood clotting and even death.
(b) The appellant is employed full-time with a food preparation company and maintains good working relationships with the staff.
(c) The appellant is currently living with her new husband in a house owned by her parents, who are now living in New Zealand. She is happily married and has a stable relationship with her husband. They provide each other with much needed mutual support.
[21] The appeal was supported by the following information:
(a) A statement (29 March 2018) from a Family Planning Clinic which attaches a copy of the appellant’s medical records between October 2015 and September 2016. The medical records relating to an appointment in May 2016 noted that the appellant and her partner were anxious about contraception risk. The appellant complained that she had been encouraged by her partner to take two “hormone pills” following the breakage of condoms. The appellant was reassured that was safe. The staff member recorded that “the partner is really anxious and I feel stressing her out”.
(b) Certified copies of the appellant’s academic qualifications along with a copy of her CV and copies of payslips as evidence of her employment in New Zealand.
(c) The appellant’s statement (11 April 2018) in which she
explains that she made a mistake when she made a 
false rape 
allegation against
her ex-partner to the police. She details the anxieties she had about her
relationship with her ex-partner which
had contributed to her state of mind.
Her ex-partner suffered from Asperger’s Syndrome and had been diagnosed
with Obsessive
Compulsive Disorder and the relationship drove her to become
emotionally disturbed.
(d) Medical information about her new husband’s health issues.
(e) Counsel’s submissions, with attachments made in support of the appellant’s “good reasons” submissions to withdraw the DLN, provide additional details relating to the appellant’s marriage and include letters of support from her husband, sister and parents.
ASSESSMENT
[22] The Tribunal has considered all the submissions and documents provided by the appellant. It has also considered the appellant’s Immigration New Zealand file in relation to her temporary visa applications.
Whether there are Exceptional Circumstances of a Humanitarian Nature
[23] The appellant, aged 36 years, has been living in New Zealand since her arrival here on a student visa eight years ago. In July 2017, the appellant married a long-term acquaintance who she met through the Indian community. He was born here and is a New Zealand citizen. Medical information produced regarding the husband’s health included a report from a neurologist (27 June 2017) which stated that he has a serious recurrent brain inflammatory illness similar to, but not the same as, multiple sclerosis. The first episode occurred when he was 11 and he had further attacks in 2009, 2012 and 2015. His most severe attack was in
2012, when he lost speech and had weakness of the right arm. The husband has epilepsy and other difficulties as a result of the brain inflammation. The husband’s attacks have had a cumulative effect on him in terms of his short-term memory and cognitive function. These episodes affected his achievement at school: he remained prone to fatigue and was only capable of carrying out odd-jobs for his father for about four hours a day, before becoming too tired.
[24] A neuropsychological assessment for the husband (5 February 2013) provided more detailed information. This was written by a consultant clinical psychologist/neuropsychologist and noted the extent of the husband’s cognitive impairment, which was likely to be permanent. As a result, he required assistance to process information in order to develop “effective compensation techniques”. The husband also required rehabilitation to focus on developing practical day-to- day skills and to develop social participation as a useful long-term strategy. The husband had developed encephalitis as a child and has been investigated over a number of years. He lived with his parents. His family maintained strong ties to India and the husband had travelled there in the past and was bilingual. He had been married and divorced twice before, with his first marriage ending in 2008 and his second in 2012. Both marriages were arranged by the family.
[25] In his letter of support on appeal, the husband says that he is emotionally dependent on the appellant, and could not bear the shock of her deportation as he could not live without her. Because of his medical condition he could not live in India long-term. In addition to his epilepsy, he also has asthma. Deporting the appellant would be “a death sentence” for him.
[26] In her statement on appeal, the appellant explains that she was under extreme psychological stress at the time she made the false police complaint against her ex-partner. She had an unhappy relationship with her ex-partner and claimed that she lodged the false complaint with the police in order to get herself medically examined, because of her anxiety about exposure to sexually transmitted diseases. The appellant had since married her “lifelong friend” who is a New Zealand citizen and her deportation to India would jeopardise her married life. She detailed her husband’s medical condition, and stated that he could not stay with her in India for health reasons. The appellant intended to apply for diversion on the police charge and hoped to remain in New Zealand in order to live happily with her husband. She also has the support of her New Zealand-resident sister and parents.
[27] The appellant’s sister wrote in support of the appellant (3 March 2018). The sister lives in a different New Zealand city, with her husband and their young child. The sister believed the appellant was happily married and she and her husband have become “well-settled” together. The sister observed that the appellant had been emotionally invested in the long-term relationship with her ex-partner, and the shock of separation may have contributed to her making the poor decision to make a false complaint to the police.
[28] The appellant’s parents wrote to Immigration New Zealand on 22 March 2018, explaining that they have been in New Zealand since 13 March 2018 on multiple entry visitor visas. They stayed with their youngest daughter and her husband in the South Island and had come north to visit their elder daughter, the appellant. They were saddened to learn about the criminal charge against their daughter. The appellant had not intended to tell her parents about the criminal charge she was facing and it was possible they were unaware of that until they visited her in March 2018. The parents explained that they had only two children and came to New Zealand to stay with them in the hope that they would be able to live here as a family. They lodged an Expression of Interest under the Family (Parent) category Tier 1 in September 2015 and were invited to apply for residence, sponsored by their younger daughter and her husband, on 6 November 2016.
[29] The information made available to the Tribunal is that the appellant’s parents were granted residence on 7 April 2018.
[30] The appellant’s parents accept that the appellant made a mistake when she lodged a false complaint against her ex-partner to the police. They ask that she be given a chance to prove herself and remain in New Zealand with the rest of the family.
[31] The Tribunal is satisfied that if the appellant is deported, the likely outcome is that her husband will be unable to live with her for any length of time in India because of his health problems. The appellant’s parents, who visited New Zealand in March 2018, have now been granted New Zealand residence. This creates a situation where the appellant’s only sibling and her parents are entitled to remain in New Zealand, but she is facing deportation on the basis of a false allegation of rape against her ex-partner after he separated from her in 2016.
Conclusion on exceptional humanitarian circumstances
[32] At this stage, the criminal charge against the appellant of attempting to pervert the course of justice has yet to be determined by the District Court. It is a serious charge and the outcome is important for the appellant’s future and will also impact on her husband and family members. She is required to stay in New Zealand until the matter is resolved. The question of her credibility, and if there are any mitigating features, is for the District Court to consider. Deportation will also separate the appellant from her husband before she has had the opportunity to test her eligibility for a partnership-based visa. In these circumstances, the Tribunal finds that the appellant has established exceptional humanitarian circumstances.
Whether it would be Unjust or Unduly Harsh for the Appellant to be Deported
[33] Where, as in this case, exceptional humanitarian circumstances are found to exist, the Tribunal must go on to assess whether those circumstances would make it unjust or unduly harsh for the appellant to be deported. According to the Supreme Court in Guo v Minister of Immigration [2015] NZSC 132 at [9], this assessment is to be made “in light of the reasons why the appellant is liable for deportation and involves a balancing of those considerations against the consequences for the appellant of deportation”.
[34] The appellant is liable for deportation because she has been served with a DLN as a result of making a false allegation to the New Zealand police that she was raped by her ex-partner. This allegation was made shortly after the ex-partner left the relationship and appears to have been motivated by stress and a desire to punish her partner for leaving the relationship.
[35] When the appellant reflected on what she had done, she became remorseful and approached the police on 2 October 2016 with a written statement admitting that she had made a false allegation. She was subsequently charged over the false claim.
[36] The appellant has appeared in court charged with attempting to pervert the course of justice but the matter has been adjourned until August of this year. This is a serious offence and the outcome is important to the appellant’s future.
[37] Significantly, the appellant has now married an acquaintance, who is part of the same local Indian community. Her new husband, whom she has known for several years, can be described as vulnerable and trusting. The medical information produced indicates that he would struggle to live in India with the appellant if she is deported. He is a fragile and unwell person who may be emotionally hurt should the appellant be deported.
[38] The Tribunal must weigh the appellant’s current charge against her exceptional humanitarian circumstances. The Tribunal finds it would be unjust and unduly harsh for the appellant to be deported from New Zealand before the court determines her case, which has unusual features. The court is best placed to consider any mitigating factors relating to her psychological state, when determining an appropriate penalty.
Public Interest
[39] The fact that the appellant is facing a serious charge of attempting to pervert the course of justice as a result of lodging a false allegation of rape against her ex-partner has already been noted. However, at this stage the charge has yet to be dealt with by the District Court.
[40] The Tribunal finds it would not be contrary to the public interest to allow the appellant to remain in New Zealand to resolve the outstanding criminal matter and to test her eligibility for a partnership-based visa should she choose to do so. Her character would be assessed as part of any such application, as would the genuineness and stability of her marriage.
DETERMINATION
[41] For the reasons given, the Tribunal finds that the appellant has exceptional circumstances of a humanitarian nature which would make it unjust or unduly harsh for her to be deported from New Zealand.
[42] The Tribunal also finds that it would not in all the circumstances be contrary to the public interest for her to remain in New Zealand on a temporary basis.
[43] The Tribunal orders that the DLN be cancelled. The appellant’s work visa therefore remains valid until 13 December 2018.
[44] The appeal is allowed on those terms.
Order as to Depersonalised Research Copy
[45] Pursuant to clause 19 of Schedule 2 of the Immigration Act 2009, the Tribunal orders that, until further order, the research copy of this decision is to be depersonalised by removal of the appellant’s name and any particulars likely to lead to the identification of the appellant.
“S Pearson” S Pearson Member
Certified to be the Research
Copy released for publication.
S Pearson
Member