Tavita v Minister of Immigration

• Jurisdiction: New Zealand
• Judgment Date: 17 December 1993
• Date: 17 December 1993
• Court: Court of Appeal

New Zealand, Court of Appeal.

(Cooke P, Richardson and Hardie Boys JJ)

Tavita

and

Minister of Immigration

Relationship of international law and municipal law Treaties Treaties protecting rights of family and child Effect in municipal law Powers under Immigration Act 1987 Whether Minister of Immigration entitled to ignore international instruments

Human rights Family rights Articles 23(1) and 24(1) of International Covenant on Civil and Political Rights, 1966 and First Optional Protocol Article 9(1) and (4) of Convention on the Rights of the Child, 1989 Change of circumstances Whether basic rights of family and child need to be taken into account Child New Zealand citizen Opportunity to reconsider case in light of rights of child The law of New Zealand

Summary: The facts:The appellant, a citizen of West Samoa, arrived in New Zealand in 1987. He was granted a visitor's permit which expired in March 1989. In March 1990 the District Court issued a warrant for his removal from New Zealand. An appeal to the Minister of Immigration seeking the cancellation of the warrant on humanitarian grounds was unsuccessful. A daughter was subsequently born to the appellant in New Zealand in June 1991. The appellant married the child's mother shortly after the birth. Judicial review proceedings were initiated on behalf of the appellant to cancel the order and direct the rehearing of the appeal, relying upon the International Covenant on Civil and Political Rights, 1966, and its First Optional Protocol and the Convention on the Rights of the Child, 1989. The application for an order for interim relief was dismissed but an interim order for a stay of removal was made pending appeal. The applicant invoked Articles 23(1) and 24(1) of the Convenant1 and Articles 9(1) and (4) of the Convention.2 The respondents claimed that they were not obliged to have regard to such international instruments.

Held:The appeal was adjourned in order to enable the appellant to make an application in the light of present circumstances and the respondents to reconsider it having regard to the rights of the child. The stay of removal was to remain in force meanwhile.

(1) As yet no real regard had been given by the respondents to the question of whether or not international obligations should now be taken into account given the birth of the child and her parents' subsequent marriage (p. 460).

(2) The balancing exercise between the rights of the person and the interests of the country required under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 19503 might be relevant in this case. Consideration from the point of view of the rights of the child and family could lead to a different conclusion (pp. 4603).

(3) Although no final decision on the submission of the respondents that the international instruments could be ignored in any event was necessary or desirable, this argument was unattractive and implied that New Zealand's support of international agreements was merely cosmetic (p. 464).

(4) The law as to the effect of international human rights and declaratory instruments on municipal law was evolving. The reference in the 1992 Balliol Statement to the duty of the judiciary to interpret and apply national constitutions in the light of the universality of human rights was reaffirmed in the 1993 Bloemfontein Statement (p. 464).

(5) It would be necessary in any future consideration of the case to remember that the United Nations Human Rights Committee was part of New Zealand's judicial structure to which individuals could have recourse as a result of the accession to the Optional Protocol. Failing to give practical effect to international instruments and failing to acknowledge the impact of international human rights norms or regulations not expressly incorporated into a domestic statute would deserve criticsm. The child was an innocent party and, as a citizen by birth, her future was the responsibility of New Zealand (pp. 4645).

The text of the interim judgment of the Court delivered by Cooke P commences on the opposite page.

COOKE P. This is an appeal from an order refusing interim relief in a judicial review proceeding. The facts of the case have some familiar features as to overstaying, but they also have some particular features which make the case difficult.

Viliamu Tavita arrived in New Zealand from Western Samoa on 22 December 1987. He was granted a visitor's permit, which is a type of temporary permit under the Immigration Act 1987, s 24, and there were subsequent extensions to 22 March 1989. In the meantime his application for a residence permit was declined, as was his application for reconsideration of that decision. On 12 March 1990 the Lower Hutt District Court, on the application of an immigration officer, granted a removal warrant under s 54, subject to residence and reporting conditions pending removal. Mr Tavita appealed to the Minister under s 63B to cancel the warrant on humanitarian grounds or for a reduction of the five-year period following removal for which such a warrant remains in force. By letter dated 4 April 1991 the Associate Minister declined the appeal. That is the last occasion of any ministerial involvement in Mr Tavita's case, apart from an affidavit hereinafter quoted.

On 29 June 1991 the child Natia Tavita was born in New Zealand. She is a New Zealand citizen by birth (Citizenship Act 1977, s 6), and is the daughter of Mr Tavita and his wife Keiana, whom he married on 7 July 1991. The evidence is that Mrs Tavita is employed and that Mr Tavita looks after the child during the day. He does some panelbeating work at home. Neither parent receives a Social Welfare benefit.

An affidavit sworn on 5 October 1993 by Mr Tavita includes the following:

6. My father is dead. My mother who is in her sixties, lives with one of my sisters in Apia. My mother has no house of her own, and owns no land, she is being supported by me and other family who send money over from New Zealand.

7. She is the only close relative I could turn to for support in Samoa. But she cannot support me. I have no property, land, or job to go to in Samoa.

12. If I were forced to leave New Zealand, I would lose contact with my daughter, and with my wife. I on my own would have no support in Samoa, it would be impossible for me to support my wife and child as well. If we all went to Samoa, we would have no support. My wife and child have to stay in New Zealand where we are settled.

13. If I were allowed to stay in New Zealand, I would not be receiving a social welfare benefit. My wife has applied for Permanent Residence, and I believe her application is being processed. It is very important for me, for my wife and for our child that I am allowed to stay here.

An affidavit sworn on 5 October 1993 by the appellant's brother, Frank Farani Tavita Pouniu, includes the following:

5. Our mother is in her sixties, and is not able to provide any support for Viliamu should he be deported. She is not able to support herself, and relies on charity from family in New Zealand.

8. I understand that Viliamu has been told he must leave, and not come back to New Zealand for five years. His family cannot and will not go with him. By the time he returns, he would be a stranger to his daughter. We have relatives here, but none that can take on the care of another child.

An affidavit sworn on 28 October 1993 by Dr A A Kerr of Lower Hutt, consultant paediatrician, includes the following:

2. On 19 October 1993 at Lower Hutt hospital I interviewed Viliamu Tavita and his daughter Natia Ricka Tavita, born on 29 June 1991. Mr Tavita is married, and while his wife works during the day, he is the Chief Caretaker for their three year old daughter. The family situation appears to be a stable one, with Mr Tavita providing good and appropriate...