Court/Judicial body: New Zealand Court of Appeal
Date: December 17, 1993 CRC
Provisions: Article 9: Separation from parents
Other international provisions: International Covenant on Civil and Political Rights ( Article 23: Family rights, Article 24: Children’s rights; First Optional Protocol) European Convention on Human Rights (Article 8: Right to private/family life)
Domestic provisions: Immigration Act 1987
Case summary
Background: New Zealand brought proceedings to expel Tavita, a citizen of West Samoa who had overstayed his visitor’s permit. The government had previously ordered Tavita’s deportation and he had unsuccessfully appealed this decision. But before he left the country, he became a father to child born in New Zealand, thereby a New Zealand citizen, and married her mother. On these grounds, he sought a cancellation of the deportation order and a rehearing in light of the new circumstances and rights of the child.
Issue and resolution: Immigration. The decision to remove the appellant was made prior to the birth of his daughter and, therefore, without regard to the child’s rights or taking into account international treaties such as the Convention on the Rights of the Child or the International Covenant on Civil and Political Rights. The government argued that, in any event, it was end to ignore the international treaties because the relevant domestic statutes did not address them. The court held that the appellant should be given an opportunity to apply for reconsideration.
Court reasoning: The case involves “the basic rights of the family and the child” and “[u]niversal human rights” in addition to international obligations. New Zealand has a responsibility for the child’s future because she is a citizen of New Zealand, and an opportunity for reconsideration of the removal warrant should be granted to allow consideration of the rights of the child. The Court did not decide whether the government had to take the international treaties into account, but strongly suggested that they should be. The Court described the argument against doing so as “unattractive” and implying that “New Zealand’s adherence to the international instruments has been at least partly window-dressing.” (p. 266).
Excerpt citing CRC and other relevant human rights 265. It would appear therefore that under the European Convention a balancing exercise is called for at times. A broadly similar exercise may be required under the two international instruments relevant in the present case [ICCPR and CRC], but the basic rights of the family and the child are the starting point … Consideration from that point of view could produce a different result. 266. It is not now appropriate to discuss … whether, when an Act is silent as to relevant considerations, international obligations are required to be taken into account as such. If and when the matter does fall for decision, an aspect to be borne in mind may be one urged by counsel for the appellant: that since New Zealand’s accession to the Optional Protocol the United Nations Human Rights Committee is in a sense part of this country’s judicial structure, in that individuals subject to New Zealand jurisdiction have direct rights of recourse to it. A failure to give practical effect to international instruments to which New Zealand is a party may attract criticism. Legitimate criticism could extend to the New Zealand Courts if they were to accept the argument that, because a domestic statute giving discretionary powers in general terms does not mention international human rights norms or obligations, the executive is necessarily free to ignore them. This emerges as a case of possibly far-reaching implications. On the other hand it can be seen as dependent on its own facts. The Minister or Associate Minister has had no opportunity to consider it in the light of the rights of the child. Whatever the merits or demerits of either of her parents, she is not responsible for them, and her future as a New Zealand citizen is inevitably a responsibility of this country. Universal human rights and international obligations are involved.
CRIN comments: CRIN believes this decision is consistent with the CRC. Article 9 of the Convention calls on States Parties to ensure that children are not generally separated from their parents unless it would be in their best interests to do so, and there is no evidence in this case that deporting the father would in any way benefit his infant daughter. In line with the Court, CRIN would also encourage the government of New Zealand to incorporate children’s rights and the CRC into all decision-making processes, and to explicitly reference the Convention in domestic legislation that relates to these decisions.
Citation: [1994] 2 NZLR 257 (CA)
Link to full judgement: http://law.hku.hk/clsourcebook/other%20cases/tavita.htm