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1. The authors of the
communication, initially dated 5 February 2004, are Moleni and Faatupu
Fa'aaliga, Samoan nationals born 17 October 1969 and 4 February 1972. They
bring the communication on their own behalves and on behalf of their
children, Salom, Blessing and Christos, all New Zealand nationals born on 4
May 1996, 12 July 1999 and 29 September 2003, respectively. They claim to be
victims of violations by New Zealand of their rights under articles 23,
paragraph 1, and 24, paragraph 1, of the Covenant. They are represented by
counsel.
FACTUAL BACKGROUND
2.1 Mr Fa'aaliga arrived in New Zealand on 5 April 1996 and was granted a
three week temporary permit, at the end of which he departed the country.
Mrs Fa'aaliga first came to New Zealand in late 1996 and gave birth to her
oldest child Salom shortly thereafter, who thereby became a New Zealand
citizen. In July 1996 upon expiry of her temporary permits she returned to
Samoa, where her circumstances are said to be such that she was unable to
support her child. In late 1997, Salom was brought to Samoa. In May 1999,
Mrs Fa'aaliga returned to New Zealand and was granted a one month temporary
permit. On 12 July 1999, her second child, Blessing, was born. In October
1999, she returned to Samoa with Blessing. From July until November 2000,
Blessing was brought back to New Zealand.
2.2 On 6 January 2002, the parents and Blessing returned to New Zealand and
were granted visitor permits for a month, on the basis of a letter from Mr
Fa'aaliga's employer, a Samoan bank, that he had been granted three weeks
recreational leave. On 24 January 2002, the parents sought to prolong their
visitor's permits, which was rejected on the basis that the original permits
had been granted for the duration Mr Fa'aaliga's employer had granted him
leave. The parents then stated that they wished to apply for residence, and
were informed that they had until the expiry of their permits on 6 February
2002 to do so. On 6 February 2002, the permits expired, rendering the
parents unlawfully present in New Zealand and requiring them by law to leave
the country.
2.3 On 18 February 2002, the parents lodged an appeal under section 47 of
the Immigration Act against the requirement to leave the country with the
Removal Review Authority, arguing that the presence of New Zealand-born
children raised sufficient humanitarian circumstances to justify the parents
living in New Zealand. In that appeal, the Committee's decision in Winata v
Australia [FN1] was cited and relied upon by the parents.
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[FN1] Case No 930/2000, Views adopted on 26 July 2001.
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2.4 On 31 March 2003, the Authority rejected the appeal. It set out the
Committee's reasoning in Winata and accepted that the case "raise[s]
important and relevant general principles, which have application in the
present appeals", but considered that the facts in that case were
"significantly different". The Authority considered that the existence of
New Zealand born children did not, of itself, constitute a humanitarian
circumstance allowing the parents to remain. It noted that the parents had
spent the majority of their lives in Samoa and that the children were
relatively young at ages 3 and 6 respectively and their lives would not be
substantially disrupted. Rather, it was important for the children to remain
with their parents and retain strong relationships in the immediate family.
There was no evidence that the children's standard of living in Samoa, while
different than in New Zealand, would be so inadequate as to jeopardise or
compromise their development, contrary to article 27 of the Convention on
the Rights of the Child. The older child, Salom, had been left with the
mother's brother and his family previously, and it was unclear whether the
child remained with that family. Nor, given that the parents had most
recently settled in New Zealand for only 14 months, could it be said that
they were very well settled in the country. The Authority indicated that the
parents had seven days to leave the country voluntarily, before being
exposed to the service of removal orders (which would exclude them for 5
years from returning to the country).
2.5 On 12 May 2003, counsel for the parents sought advice from the Associate
Minister of Immigration as to whether their situation could be considered
exceptional and that temporary permits could be granted. On 2 September
2003, the Associate Minister responded that no specific information had been
provided and that there was insufficient information for an informed
decision to be made. Full and proper representations needed to be made. On
23 September 2003, counsel for the parents made a fuller application for a
special direction permitting the parents to remain. On 29 September 2003, a
third child, Christos, was born, who departed New Zealand on 16 January
2004. [FN2] On 11 December 2003, having considered the applicable
international instruments, the Associate Minister dismissed the application,
and observed that as they were unlawfully present they were subject to
service of removal orders.
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[FN2] No information is provided as to whom accompanied the child.
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2.6 On 20 January 2004, counsel for the parents again applied for a special
direction, enclosing draft submissions of the communication to the
Committee. By letters of 24 February and 14 June 2004, the Associate
Minister confirmed the earlier decision, noting inter alia that submission
of a communication alone to the Committee did not amount to a stay on
removal. On 21 September 2004, Christos returned to New Zealand.
2.7 As to the exhaustion of domestic remedies, the authors argue that an
appeal from the Authority to the High Court and Court of Appeal is only
available on a point of law rather than a general review of the merits of
the case. In the authors' view, there was no error of law by the Authority
and thus no appeal was available. As to the Minister's decision, the
decision is discretionary and there is no appeal to the courts.
THE COMPLAINT
3. The authors argue that the rights of all members of the family under
articles 23, paragraph 1, and 24, paragraph 1, of the Covenant have been
violated. They refer to the Committee's decision in Sahid v New Zealand
[FN3] for the proposition that these articles have been properly invoked. As
to article 23, the authors refer to a decision of admissibility of the
European Commission on Human Rights in Uppal v United Kingdom, where the
Commission, holding the case admissible, considered that issues arising
under article 8 of the European Convention were complex and that their
determination should depend on the merits. The authors also argue that the
exceptional circumstances identified by the Committee in Winata v Australia
[FN4] are satisfied here, as there are a greater number of children affected
and the circumstances of the parents are poor. As to article 24, the authors
argue that the children are New Zealand nationals and are entitled to the
same measures of protection as other New Zealand children. As a result, they
are being discriminated against by virtue of their parents not being New
Zealand nationals.
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[FN3] Case No 893/1999, Decision adopted on 28 March 2003, at paragraph 7.4.
[FN4] Op. cit.
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SUBMISSIONS BY THE STATE PARTY ON THE ADMISSIBILITY AND MERITS OF THE
COMMUNICATION
4.1 By submission of 26 October 2004, the State party contested the
admissibility and merits of the communication. Concerning admissibility, the
State party contends that the communication is inadmissible for failure to
exhaust domestic remedies and for want of sufficient substantiation. The
State party argues, with reference to domestic jurisprudence, that statutory
powers such as those exercised by the Removal Review Authority must be
exercised in accordance with national and international human rights
standards. The meaning of, approach to and weighing of those obligations are
matters of law open to judicial scrutiny. The Committee's case law was cited
to the Removal Review Authority and applied. Had that consideration been
inadequate or flawed, it was open to correction on appeal to the High Court
and Court of Appeal but the authors did not pursue such a course.
4.2 The State party also argues that the communication is insufficiently
substantiated providing only broad and undetailed assertions with respect to
article 23 and very little concerning article 24. It notes that the
Committee rejected comparable arguments on this basis in Rajan v New
Zealand. [FN5] The very general assertions, beyond a bare reference to
Winata, do not attempt to address the requirements of the Covenant at all,
despite representation by counsel. No evidence is produced detailing the
actual consequences to the family if returned to Samoa, or of any
discrimination faced by the children. Finally, the assertion that the
current situation falls within the "exceptional circumstances" described in
Winata is not supportable.
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[FN5] Case No 820/1998, Decision adopted on 7 August 2003, at paragraph 7.3.
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4.3 The State party further made detailed on the merits of the communication
as to why no violation of the Covenant was disclosed.
COMMENTS ON THE STATE PARTY'S SUBMISSIONS
5. By letter of 14 December 2004, the authors responded to the State party's
submissions. As to exhaustion of domestic remedies, the earlier submissions
are reiterated. As to substantiation, for purposes of admissibility, the
authors add that if the parents are required to return to Samoa they would
have to make a decision as to whether to leave some or all of the children
in New Zealand or take them to Samoa. If they return to Samoa with their
children, they would be unable to provide the opportunities that the
children are entitled to as New Zealand citizens. If on the other hand the
children were left in New Zealand to avail themselves of the educational or
other benefits of New Zealand citizenship, then the parents would be
separated from their children. The authors also responded on the State
party's submissions on the merits of the communication.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its Rules of Procedure,
decide whether or not the complaint is admissible under the Optional
Protocol to the Covenant.
6.2 As to the exhaustion of domestic remedies, the Committee observes that
the authors did not appeal the decision of the Removal Review Authority to
the High Court on a point of law, which the authors contend was not raised
in the present case. The Committee notes, however, that the Authority
considered its case law, setting out its reasoning in Winata and concluding
that that the scope of the decision in that case did not extend to the facts
of the present case. The Committee observes however that issues of the
interpretation of a particular Covenant provision or the application of a
certain interpretation to particular facts raise issues of law; indeed, the
authors invite the Committee to determine that the Authority's analysis was
in breach of the Covenant. The Committee observes that these matters of law
were not placed before the High Court, with the result that it is
inappropriate to seek the same result from the Committee that could have
been achieved before the domestic courts. [FN6] The Committee notes,
moreover, that with respect to the effectiveness of this remedy in two
previous communications against the State party concerning issues under the
same articles of the Covenant the authors involved appealed from decisions
of the administrative tribunal in question to the appellate courts. [FN7] It
follows that the communication is inadmissible under article 5, paragraph
2(b), of the Optional Protocol for failure to exhaust domestic remedies.
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[FN6] See Karawa v Australia Case No 1127/2002, Decision adopted on 21 July
2005.
[FN7] See Sahid and Rajan, op.cit.
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6.3 In light of this conclusion, the Committee need not address the
remaining arguments of the State party.
7. The Human Rights Committee therefore decides that:
(a) The communication is inadmissible under article 5, paragraph 2(b), of
the Optional Protocol;
(b) This decision be communicated to the authors and to the State party.
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Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly. |
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