Blind 5-year-old faces boot from NZ after High Court dismisses deportation appeal

Charmaine and Jonathan Davies with their two children, Jonathan and Caitlyn, right.
SUPPLIED

Charmaine and Jonathan Davies with their two children, Jonathan and Caitlyn, right.

The family of a blind South African child living in South Canterbury are "absolutely devastated" by a court's refusal to allow her to stay in New Zealand on humanitarian grounds.

The Davies family are now weighing up their options after their failed High Court bid to stop her being deported.

They say the level of care Caitlyn, 5, needs is not available in South Africa, and it would be "extremely unsafe" for her to return.

Caitlyn is blind, suffers from global development delay, and has chronic medical conditions the Immigration Protection Tribunal considered would impose significant costs on New Zealand's health and education systems.

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Caitlyn Davies and her father, Jonathan, arrived in New Zealand on a work visa in 2015.

A few months later Caitlyn's mother Charmaine, and then 1-year-old brother, Jonathan, arrived in New Zealand on work and visitor visas. They were granted further visas in 2016.

Caitlyn's interim visa expired in July last year, meaning she was unlawfully in New Zealand.

Since then the family has fought for her to stay in the country.

Her father works on a farm near Geraldine.

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The tribunal's decision meant Caitlyn would have to be deported back to South Africa. The Davies' lawyer, Andrew Riches, appealed the decision to the High Court.

After a hearing May 19, Christchurch High Court Judge Gerald Nation found in favour of the tribunal's decision that it would not be "unjust or unduly harsh" to deport her.

Riches said the family was struggling to take the decision in.

"She's (Charmaine) absolutely devastated. She really doesn't know what the family is going to do from here, all she knows is returning to South Africa is simply not an option because she won't be safe there."

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, returning to South Africa.

Immigration New Zealand 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 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.

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

It considered the high level of support she received at kindergarten "would have to continue indefinitely" if she started primary school here in May.

Riches 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 appeal to "maintain the integrity of the New Zealand immigration system".

In appealing the case to the High Court Riches argued the tribunal made an "error".

"They should have have put the prime attention on her and what she is going to 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."

In the appeal Riches included an example of what happened at a South African school for blind children.

He said there was a fire at the school, which had "no safety protocols" in place and children died in the fire.

"It's the standard of care she needs that is simply not there. It would be extremely unsafe for her to go back there", Riches said.

Both he and the family were "assessing all the options, but its not an option for her to go back", he said.

 - Stuff

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