Case Law Database

In re: AD (Tuvalu) [2014] NZIPT 501370-371

Date of Application:	Thu, 01 Nov 2012
Date of Decision:	Wed, 04 Jun 2014
Decision Making Body:	Immigration and Protection Tribunal of New Zealand
Law Applied:	Immigration Act 2009
Keywords:	Refugee rights; Residence visa; humanitarian appeal
	Full Case Details - Download Full Judgment (pdf)

In re: AD (Tuvalu)

[2014] NZIPT 501370-371

At Issue: Resident visa sought.

A family from Tuvalu appealed after they were denied New Zealand resident visas. The family argued, inter alia, that they would be at risk of suffering the adverse impacts of climate change if they were deported to Tuvalu. Pursuant to the Immigration Act 2009, the New Zealand Immigration and Protection Tribunal found that the family had established “exceptional circumstances of a humanitarian nature, which would make it unjust or unduly harsh for the appellants to be removed from New Zealand.” However, while the Tribunal acknowledged that climate change impacts may affect enjoyment of human rights, it explicitly declined to reach the question of whether climate change provided a basis for granting resident visas in this case. Instead, the Tribunal based its finding of “exceptional circumstances” on other factors, including the presence of the husband’s extended family in New Zealand, the family’s integration into the New Zealand community, and the best interests of the children.

In re: AD (Tuvalu) - Climate Change Litigation

Summary provided courtesy of the Sabin Centre https://climatecasechart.com/

Court filed documents:

Name of document and separate link – not hyperlink (found on Sabin)

Complaint

(Accessory documents like interim decisions, interesting amicus submissions etc – limit to 2)

Decision

Cited CRC articles

3. Right to have child’s/children’s best interests taken as primary consideration in all matters affecting them (CRC Article 3)

Decision:

“The Best Interest of the Children Appellants

[23] As already noted the two children are aged five and three years. As an action affecting them, the Tribunal is required under Article 3 of the 1989 United Nations Convention on the Rights of the Child to have regard to their best interests when considering the question of their removal from New Zealand and to make this a primary consideration in its assessment.”

“[25] Also, their young age makes them inherently more vulnerable to natural disasters and the adverse impact of climate change as noted above.

[26] In light of these matters, the best interests of the children clearly are to remain living with their parents in New Zealand as part of an extended family group.”

Involvement of children in hearings

Not sure

Outcome of decision for the applicants

Relief sought by applicants granted

The applicants (parents and children) were granted residence visas to remain in New Zealand.

Did outcome of decision develop the law

Subsequent cases may rely on this judgment when humanitarian grounds for residence are argued. Factors may include children’s right to family, a healthy environment, and health as exceptional circumstances which should influence the outcome of an immigration / refugee matter.

The judge relies specifically on the best interest of the child being considered primary in this application. Subsequent cases may well rely on this principle as applied specifically in this area of law.

An applicant would need to prove that it would be unduly harsh or unjust to deport them.

The previous claim (based on refugee status caused by climate change) failed, but the humanitarian visa for a similar residence is granted.

Involvement of NGO/law firm in application

Counsel for the Appellants: C Curtis

Available information on how children got involved in the litigation

The children are included in the application by their parents.

Age range of litigants

Number of children or youth involved

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