Abused girl to be sent home

A Sri Lankan girl is to be deported to her homeland, where she suffered years of rape and sexual abuse by her uncles - if she can be declared medically fit to fly.

In the High Court at Auckland yesterday, the 16-year-old and her grandmother lost their appeal against the refusal by Associate Immigration Minister Damien O'Connor to allow them to stay in New Zealand.

But the Crown assured the court that the girl would not be deported until fit to fly, a condition which her lawyers say would need a reversal of reports nine months ago from two Auckland psychiatrists.

The Sri Lankans, who have name suppression, initially sought refugee status by giving the authorities a fictional account of persecution in the civil war in the country.

It later emerged that their real reason for coming to New Zealand in March 2002 was to provide the girl a refuge from sexual abuse which began when she was seven.

Philippa Cunningham, representing the girl and her grandmother, told Justice Rod Hansen the girl faced a truly appalling plight if returned to Sri Lanka.

She could expect a life of fear, shame, betrayal, stigmatisation and harm from those who abused her.

Whether the Sri Lankan social services could provide the care and protection she needed was unknown.

Mrs Cunningham said the minister had received a report on the girl's plight giving him everything he needed to justify permitting her to stay on humanitarian grounds.

Not to do so was entirely unreasonable.

Marc Corlett, appearing for the minister with Simon Mount, told the court that no one doubted the girl had had a traumatic time in Sri Lanka.

She had been sexually abused and raped, suffered psychologically as a result and deserved sympathy.

No one disputed services available in Sri Lanka were likely to be inferior to those in this country.

However, this was a young woman who had come here illegally.

She was not a refugee but was seeking the indulgence of the minister to stay in this country, motivated no doubt by a desire to take advantage of the better educational, medical and psychological services available here.

Mr Corlett said the minister had considered a Child, Youth and Family report.

He had all the information he needed, but chose not to intervene to allow the girl to stay.

That could not be considered an unreasonable decision.

If it were, anyone from the Third World needing medical treatment, for example, could arrive, unsuccessfully ask the minister to allow them to stay to enjoy better services, and then successfully challenge the minister's decision in the High Court.

"Stripped away from its legal niceties, this is precisely what is occurring in this case," Mr Corlett said.

Rejecting the plaintiffs' application for relief, Justice Hansen said that the power to review the minister's decision was strictly circumscribed.

While the facts in the report could undoubtedly have justified allowing the girl to stay, the judge said, equally they were not so compelling as to make a contrary decision unreasonable.

The minister had broad and unfettered discretion under the legislation.

Any challenge would have to show that his decision was irrational, and the judge said the plaintiffs had no prospect of making such an argument.

The National Party's family issues spokeswoman, Judith Collins, who has been following the case, said Auckland Hospital consultant psychiatrist Karl Jansen was left in no doubt the girl was a victim of sexual abuse who was in no fit state to fly.

She acknowledged the minister was faced with a tough decision, but said allowing the girl to stay would not set a precedent as he would retain discretion over all other humanitarian applications.

"I'm not a bleeding heart liberal - not at all - and realise we can't help everybody, but does that mean we can't help anybody?"