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Accident Compensation Cases

Re Pienaar (NZIPT, 30/08/17)

Judgment Text

V J Shaw Member
This is a humanitarian appeal by the appellant, a 30-year-old citizen of South Africa, against his liability for deportation which arose when he became unlawfully in New Zealand. 
The Issue 
The appellant has suffered an injury while legally working in New Zealand. The primary issue on appeal is whether his need to undertake further rehabilitation which is being provided by the Accident Compensation Corporation (ACC) gives rise to exceptional humanitarian circumstances. 
For the reasons that follow, the Tribunal grants the appeal and directs that the appellant be granted a one-year work visa. 
The appellant and his partner, a 27-year-old South African citizen, have two children aged six years and 18 months. The partner and older child currently hold work and visitor visas valid until March 2018. The younger child is unlawfully here, as no visa was applied for following his birth. 
The appellant's other immediate family members are his mother and sister living in South Africa. The appellant says that he is uncertain in which country his father currently resides, though it may be Thailand. 
The appellant, accompanied by his partner and older child, arrived in New Zealand as a visitor in July 2011. 
From November 2011 until May 2017, the appellant held a series of work visas under the Essential Skills work category. He has worked as a press operator, as a warehouse supervisor/manager and, most recently, as a leading hand for a meat processor. 
In December 2016, while lifting a pig carcass, the appellant sustained a back injury which left him with persistent severe pain which still limits the hours he can work. ACC accepted coverage and the appellant has received income compensation. He has been attending physiotherapy and personal training sessions two to three times per week as part of a Return to Work programme. 
The appellants last work visa expired on 10 May 2017. His employer was not willing to support an application for a further work visa. 
When the partner and older child were last granted work and visitor visas on the basis that they were the partner and dependent child of a worker, their visas were mistakenly granted until 17 March 2018, rather than 10 May 2017 in line with the appellant's work visa. However, Immigration New Zealand has not taken steps to issue Deportation Liability Notices pending the finalising of the appellant's humanitarian appeal. 
Statutory Grounds 
The grounds for determining a humanitarian appeal are set out in section 207 of the Immigration Act 2009 (the Act): 
The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that — 
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 
it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand. ”
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 104Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  at [34]. 
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 
The grounds of appeal as set out in counsel's submissions can be summarised as follows: 
In December 2016, the appellant sustained a back injury while legally working. His injury has left him with persistent pain that is affecting his ability to work full-time and to perform various day-to-day activities. He is still undergoing rehabilitation. 
The appellant's partner's mother, stepfather and three siblings are living in New Zealand and are now New Zealand citizens. 
If the partner must return to South Africa with the appellant, in the absence of her family she will be at risk of harm from her father, who sexually abused her during her childhood. The father left South Africa after the abuse was disclosed but he returned to South Africa after the partner's mother and stepfather came to live in New Zealand. He has threatened the appellant and has been trying to contact the partner who now fears for her safety. 
The partner's mother was a state prosecution witness to a serious crime and, the appellant and his partner fear that, on return to South Africa, they will be targeted by the criminals in retaliation. 
The appellant and his partner would face significant hurdles in obtaining employment because they are white and the government's black economic empowerment policy aims to enhance employment opportunities for non-whites. 
The appeal was supported by the following information: 
A statement from the appellant (August 2017) in which he notes that he and his family came to New Zealand to create a future that is not possible in South Africa because of the general life conditions, the impact of black economic empowerment policies on his ability to get work, and the “ongoing reverse apartheid war going on behind the scenes”. He and his partner formed a relationship in 2006. Within the first two years of the relationship, his partner's father contacted her and was “stirring up emotions”. When the appellant told the father to stop calling, the father swore and threatened to kill him. Prior to these events, the partner's mother had been a witness to a serious crime at her workplace and, as a result, the family was threatened by the criminals who watched the family home. As the appellant visited his partner daily, the criminals became aware of his family connection. In a small town people talk so he was keen to move. The partner's family came to New Zealand in 2008 and he and his wife moved to another area, but any sense of safety was short-lived, as in 2011 the partner's father tried to make contact again. 
A statement from the partner (August 2017) who addresses her father's sexual abuse between the ages of five and 12 years, the development of her partnership with the appellant, her father's attempt to re-establish contact in 2011, her feelings of insecurity without her family, the attempts she and the appellant have made to establish themselves in New Zealand and the sense of security she feels living here. 
A statement from the partner's mother (July 2017) who states that she and her current husband and their three children arrived in New Zealand in 2008. She refers to her earlier violent marriage which ended when her daughter (the appellant's partner) was four years old, the sexual abuse of her daughter when over the following years she had contact with her father and the father's departure for the United Kingdom once his abuse became known. The father attempted to contact the daughter after 2008. In her experience he is unpredictable and dangerous. She also refers to the government policies in South Africa which she says have created an environment of fear and uncertainty for whites, and her experiences after being a witness in a serious criminal case which resulted in two break-ins to her home to intimidate her. She is concerned that, if the appellant and her daughter return to South Africa, they would lack a support network and face a bleak future. 
An ACC Pain Management plan (28 March 2017) and an Individual Rehabilitation Plan (10 August 2017). 
ACC advice of weekly compensation (21 April 2017) for the period 19 April to 25 May 2017. 
The appellant's individual employment agreement for the position of a leading hand with a meat processor (15 April 2016). 
The appellant's employer's notification of circumstances of accident (7 December 2016). 
The birth certificates of the appellant, his wife and their children and the bio-data pages from their South African passports. 
Letters (29 May 2017) from three family friends in South Africa who describe their experiences of crime and corruption in South Africa, deteriorating state institutions, the poor economy and high unemployment. They believe that it would be difficult for the appellant and his family to have to give up what they have worked hard to achieve in this country and re-integrate into South African society. 
Letters of support from seven people who have got to know the appellant and his partner well in this country through the appellant's work or through their children. They are described as being honest, conscientious and hard working and have integrated well into New Zealand society. 
Confirmation from the older daughter's school that she is enrolled as a Year 2 student and working at or above level in all subjects, plus the daughter's 2016 school report. 
Copies of six South African Acts and Codes in relation to the introduction and implementation of the government's black economic empowerment programme. 
A webpage from (undated) related to a proposed petition to the Council of Europe that all white South Africans have the right to return to Europe, and four media articles on the subject of whites in South Africa facing discrimination in jobs because of affirmative action and experiencing increasing fears for their safety. 
The Tribunal has considered all the submissions and documents provided by the appellant. It has also considered his Immigration New Zealand file in relation to his temporary visa applications. 
Whether there are Exceptional Circumstances of a Humanitarian Nature 
The appellant and his partner have been in New Zealand for the last six years. The appellant has held successive work visas, but his physical ability to work was curtailed after he sustained a back injury in December 2016 while working in a meat processing plant. He requests that he be able to remain in New Zealand as he is still undergoing rehabilitation for his injury and he and his partner fear for their safety in South Africa and anticipate difficulty obtaining employment. 
Appellant's work injury 
ACC accepted cover for the appellant's lower back injury sustained in December 2016 while lifting an 80 kilogram pig carcass. He has been receiving income-related compensation and has been undergoing rehabilitation therapy as part of his Return to Work programme. He remains restricted in the hours he is capable of working because of excessive pain and in performing many day-to-day activities, including playing with his children. 
The appellant's rehabilitation plan over the next four months will focus on pain management with input from a physiotherapist, psychologist and musculoskeletal pain specialist, as well as occupational assessment to identify suitable work types. The aim is to achieve fitness to return to work by the end of the year. 
If the appellant is required to leave New Zealand, he can continue to receive income-related compensation but ACC will cease all support and funding for rehabilitation. His receipt of compensation would also be dependent on him providing regular medical certificates and on periodically returning to New Zealand for review. 
The appellant is a young man who has primarily worked in occupations involving high levels of physical fitness. He has sustained a serious lower back injury while working which has left him with limited functionality both in terms of the work and daily activities. It is critical for the appellant's physical and mental well-being that he makes as complete a recovery as possible. It is also critical to his and his family's future that he is able to regain his capacity for work and earning a living. 
If the appellant is able to remain in New Zealand, ACC will provide the rehabilitative support he needs to return to work. The same level of input currently being provided by a physiotherapist, occupational therapist, psychologist and medical specialist as part of an integrated programme of the type offered by ACC, will not be available to the appellant in South Africa through that country's public health system. 
Fears for safety in South Africa 
In addition to the appellant's work injury, other grounds have been advanced in support of the appeal that relate to the appellant and his partner's fears for their safety in South Africa. 
The first source of harm is said to be the partner's father who sexually abused her during her childhood. He apparently left South Africa to avoid police involvement after the partner disclosed the abuse when she was around 12 years old. In 2008, after the partner's mother and her new partner left South Africa, the father telephoned the appellant's mother to request the partner's telephone number and he then spoke to the partner causing her to become distressed. When the appellant took the telephone and told him not to make further contact, the appellant says the father threatened to kill him. 
No further contact ensued until 2011 when the appellant says his mother informed him that she had received a call from the father wanting the partner's contact details so he could tell her he was coming back to South Africa. There is no evidence of any further calls to the partner, or the appellant's mother seeking new contact details. 
It is understandable that the partner may not wish to have contact with her father. However, she is an adult and has a partner for support. Her father is said to have left South Africa when he thought there was the possibility of a complaint about him being made to the police. Should her father make any attempt to contact her and/or persist in unwanted contact, the partner has the option of laying a complaint with the police and/or seeking a protection order. 
Threats to kill can be readily made in anger. The fact that the father threatened to kill the appellant some eight or nine years ago when he told him on the telephone not to make further contact, does not indicate that the husband faces a real risk of being killed by the father should he now return to South Africa. 
The other source of harm identified is from criminals involved in a crime in respect of which the partner's mother was a prosecution witness. It is said the criminals might seek to harm the appellant and his partner in retaliation. This incident happened at least nine years ago and the couple's connection to the matter is somewhat removed. There is no evidence of anyone attempting to harm either the appellant or his partner in the three or so years after the partner's mother left South Africa and their own departure, yet this is the time when acts of retaliation would be most likely to occur should they have been a realistic possibility. There is therefore no real risk of harm to the couple in the future. 
Mention has also been made of fears held by the white community generally about the future of South Africa, including the possibility of the introduction of the compulsory taking of land owned by whites and President Zuma chanting a song “Shoot the Boer” at an ANC event. The appellant describes the situation as a “reverse apartheid war”. It is acknowledged that many whites in South Africa have concerns about the future. However, such generalised speculation about future possibilities do not translate into a current and real risk of harm to the appellant and his family should they have to return to South Africa. 
Difficult conditions in South Africa 
It is further submitted that the appellant and his partner do not wish to return to South Africa because they believe that they would face significant hurdles in finding employment. This is because of the government's black economic empowerment programme introduced in 2004 which provides enhanced employment opportunities for blacks. 
The appellant has been employed in various positions in South Africa from 2004 until 2011. His last two positions were as a junior landscaper and as a boat builder and he had excellent references. He has a good employment record in this country and his work history may help him to find a position on return home. Even if he and/or his partner face difficulty in finding employment in South Africa because of poor economic conditions generally and/or because of affirmative action programmes, their situation would not set them apart from many other South Africans, of whatever race. 
Further, the desire to the live in New Zealand so as to take advantage of better economic conditions is common to those seeking to migrate to New Zealand. Of itself, this is not an exceptional humanitarian circumstance: Ronberg v Chief Executive of the Department of Labour [1995] NZAR 509 (HC)Has Cases Citing which are not known to be negative[Green]  at 529-530. The appellant's back injury has severely affected his ability to work and will be a major disadvantage for him in seeking work in South Africa. For this reason, the Tribunal has already found that the appellant needs to stay in New Zealand to receive further rehabilitation to ensure his recovery is as complete as possible 
Conclusion on exceptional humanitarian circumstances 
The Tribunal finds that the appellant's work-related injury and his need for further rehabilitation as part of the Back to Work programme being provided by ACC is an exceptional humanitarian circumstance. 
Whether it would be Unjust or Unduly Harsh for the Appellant to be Deported 
The appellant is liable for deportation because he is unlawfully in New Zealand. He became unlawfully here because, following his injury at work, his employer was not willing to sponsor a further work application. 
The Tribunal must weigh the consequences of deportation for the appellant against the reasons why he is liable for deportation. 
Deportation will deprive the appellant of the rehabilitative therapy that he needs and to which he is entitled through the accident compensation scheme, as he suffered an injury while legally working, and, as a worker, he has contributed to the scheme. His inability to maintain his work visa, which resulted in his becoming unlawfully here, is the direct result of his injury. 
Weighing these matters the Tribunal finds that it would be unjust and unduly harsh for the appellant to be deported from New Zealand. 
Public Interest 
The appellant has no criminal convictions in South Africa or this country. 
He will continue in his rehabilitation programme over the coming months in accordance with his ACC rehabilitation plan and the costs will be covered by ACC. The aim is for the appellant to regain his ability to work. 
The appellant's current rehabilitation plan aims to achieve the appellant being work ready by the end of the year. However, there is no guarantee that this objective will be achieved within this time frame or that, even if able to undertake some types of work, the appellant will have regained his ability to perform the type of work he previously held. The Tribunal therefore proposes to grant the appellant a work visa valid for one year which will provide him with the assurance that he will be able to receive the benefits of whatever rehabilitation he requires and to undertake work as part of that rehabilitation. 
The Tribunal finds that it would not in all the circumstances be contrary to the public interest for the appellant to remain here on a temporary basis. 
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 him to be deported from New Zealand. 
The Tribunal also finds that it would not in all the circumstances be contrary to the public interest for him to remain in New Zealand on a temporary basis. 
Pursuant to section 210(1)(b) of the Act, the Tribunal orders that the appellant be granted a work visa valid for 12 months. 
The appeal is allowed on those terms. 

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