Appeal to keep blind child in NZ rejected

A blind 5-year-old girl and her family have faced yet another setback as they try to keep her in New Zealand on humanitarian grounds.

Caitlyn Davies is blind, suffers from global development delay and has other chronic medical conditions. She and her family had lived in Geraldine in South Canterbury since arriving from South Africa in 2015.

Caitlyn’s interim visa expired in July last year and the family has been fighting to keep her in New Zealand since.

The Immigration Protection Tribunal (IPT) considered her medical conditions would impose significant costs on New Zealand’s health and education systems.

The Davies family launched a High Court bid in May this year to stop Caitlyn being deported, but it failed. Their lawyer, Andrew Riches, sought leave to appeal to the Court of Appeal.

In a decision released publicly on Monday, Justice Gerald Nation declined the request for leave to appeal his original decision that the IPT’s consideration properly took Caitlyn’s situation into account.

‘‘[Riches] argued that I and the tribunal had balanced public interest considerations against the personal circumstances faced by the applicant to determine whether it would be unduly harsh to deport,’’ Nation said in his judgment.

‘‘He submitted that a distinction should be made in situations where the person liable for deportation has not been guilty of criminal offending or some other wrong doing, and where inevitably the public interest will have some impact in deciding whether the consequences of deportation would be ‘unduly harsh’.’’

In the earlier appeal to the High Court, Riches argued the tribunal made an ‘‘error’’. He said the IPT should have put ‘‘prime attention’’ on Caitlyn and what she would suffer, ‘‘then weigh that up against public interest’’.

‘‘In assessing whether it’s unjust to deport her, the focus needs to be on her personal circumstances . . . they placed too much weight on the wider public.

‘‘It’s a fairly technical argument, but in the midst of it you have got this poor young girl and her whole future is hanging in the balance.’’

Nation said he accepted that a test of whether a decision was ‘‘unjust or unduly harsh’’ was relevant to all who sought humanitarian appeal with the IPT, but such assessments should be made by the IPT.

‘‘Because the Supreme Court has clarified how the test is to be applied, I have to conclude that there is no question of law here of such general or public importance that it should be submitted to the Court of Appeal for its decision. On that basis, the application for leave to appeal must be declined.’’

In October last year, the tribunal refused an appeal against Caitlyn’s deportation, but gave the family three months to better plan for, and finance, their return to South Africa.

Immigration NZ declined to issue Caitlyn the same visas granted to the rest of her family because she was ‘‘not considered to be of an acceptable standard of health’’, Nation’s earlier judgment said.

Riches said under the visitor visa process, Caitlyn could not get a medical waiver as she was too young and dependent on her parents, who had work visas.

The tribunal recognised Caitlyn had a better chance at life in New Zealand than in South Africa, where there were limited educational opportunities for disabled children and a high rate of violent crime in schools.

Riches earlier said the tribunal accepted there were ‘‘exceptional humanitarian circumstances’’ for her to remain, but simultaneously ruled it would not be ‘‘unduly harsh to remove her’’.

The tribunal did not accept the family’s argument that returning to South Africa would cause them financial hardship and dismissed their earlier appeal to ‘‘maintain the integrity of the New Zealand immigration system’’.