AH v Immigration and Protection Tribunal
[2017] NZHC 1880
•9 August 2017
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT AND OF HIS OR HER CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009.
NOTE: FILE NOT TO BE SEARCHED WITHOUT THE PERMISSION OF THE JUDGE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2017-404-273 [2017] NZHC 1880
UNDER the Immigration Act 2009 s 245 IN THE MATTER
of an application for leave to appeal a decision of the Immigration and Protection Tribunal
BETWEEN
AH Applicant
AND
THE IMMIGRATION AND PROTECTION TRIBUNAL First Respondent
IMMIGRATION NEW ZEALAND Second Respondent
continued over …/
Hearing: 7 July 2017 Appearances:
T Mukusha for the Applicant
First Respondent attendance excused (abiding decision of the
Court)
N Butler and R Garden for the Second RespondentJudgment:
9 August 2017
JUDGMENT OF MUIR J
This judgment was delivered by me on Wednesday 9 August 2017 at 11 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:………………………….
AH v THE IMMIGRATION AND PROTECTION TRIBUNAL [2017] NZHC 1880 [9 August 2017]
AND CIV-2017-404-274
UNDER the Judicature Amendment Act 1972, the Immigration Act 2009 ss 249, 245
IN THE MATTER of an application for leave to bring an application for Judicial review of a decision of the Immigration and Protection Tribunal
BETWEEN AH Applicant
ANDTHE IMMIGRATION AND PROTECTION TRIBUNAL First Respondent
IMMIGRATION NEW ZEALAND Second Respondent
Counsel/Solicitors:
T Mukusha, Avondale Law, Auckland
P Gunn, Crown Law, Wellington
N Butler, Crown Law, WellingtonR Garden, Crown Law, Wellington
Introduction
[1] The applicant seeks leave to appeal and judicially review a decision of the Immigration and Protection Tribunal (the Tribunal) rejecting an appeal against his liability for deportation under s 161(1)(c) of the Immigration Act 2009 (the Act).
[2] The Tribunal rejected that appeal on the basis that although the appellant established exceptional circumstances of a humanitarian nature they were not such as would make it unjust or unduly harsh for him to be deported from New Zealand.1 It further found that it was “not satisfied that it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand”.2
[3] In summary the applicant says that the Tribunal erred in its assessment of the unjust and unduly harsh ground by giving inadequate weight to psychological evidence concerning his mental health and to the consequences of his return to Ethiopia given his Oromo ethnicity. He says that as a result the Tribunal made errors of fact of sufficient gravity that they can be considered errors of law for appeal purposes. He further says that that the Tribunal’s decision was unreasonable in administrative law terms or might otherwise be challenged on the so-called innominate ground of judicial review.
[4] The second respondent says that none of the proposed grounds of challenge raise seriously arguable questions of law and that the Tribunal correctly applied established law in determining whether the applicant’s deportation would be unjust or unduly harsh. It further says that none of the grounds identified are of general or public importance or justify a grant of leave “for any other reason”. It says the Tribunal’s decision followed settled law and is uncontroversial, and in such
circumstances leave to appeal and/or review is not warranted.
1 Immigration Act 2009, s 207(1).
2 AH v Minister of Immigration [2017] NZIPT 600276 at [146(c)], citing the second and cumulative limb of the test in s 207(1) of the Immigration Act.
Background
[5] The applicant is a citizen of Ethiopia. He came to New Zealand and became a New Zealand resident in October 2001. At that time he is thought to have been approximately 18 years old.
[6] In April 2006 he was convicted of various offences, including threatening to kill or do grievous bodily harm, assault on a female and possession of an offensive weapon. He became liable for deportation as a result of such offending but successfully appealed to the Deportation Review Tribunal under the Immigration Act
1987.
[7] He offended again at a significantly more serious level in 2008 when he was convicted of the rape of a five year old girl of whom he was de facto caregiver at the time and whose mother had entrusted him to take her to a local park where the offending occurred.
[8] For that offence he was sentenced to 12 years imprisonment.3 In so doing Judge Taumaunu in the District Court identified a number of aggravating aspects to the applicant’s offending including that there had been vaginal penetration to the point of ejaculation and the gross breach of trust involved. He described the offending as “cruel” and against a “defenceless child”.
[9] Given that such further conviction was entered within 10 years after the appellant first held a residence class visa he again became liable for deportation, this time under s 161(1)(c) of the 2009 Act. It is against that liability for deportation that he appealed to the Tribunal and now seeks leave to further appeal or review.
The appeal to the Tribunal
[10] The appeal was made on humanitarian grounds under s 207(1) of the Act, which provides that:
3 R v AH DC Auckland CRI-2008-004-27737, 17 June 2010.
(1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—
(a) 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
(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
…
[11] The Tribunal applied the law as set out in the majority decision in Ye v Minister of Immigration.4 Accordingly the Tribunal said that in terms of the test in s 207(1)(a), three ingredients needed to be established: (1) the existence of exceptional circumstances (2) of a humanitarian nature and (3) such that it would be unjust or unduly harsh for the appellant to be removed from New Zealand. It assessed each of those elements in turn.
[12] It found that the applicant’s circumstances were indeed exceptional and that they were of a humanitarian nature. It accepted that the level of family and social welfare support available to him in this country would not be duplicated in Ethiopia, albeit that he would have access to shelter, food and the necessities of life in that country. It analysed his mental health at length by reference particularly to the evidence of the applicant’s expert Mr Woodcock, who concluded that the applicant had longstanding and serious mental health issues meeting a diagnosis of schizo- effective disorder. It accepted that mental health services and facilities were rudimentary in Ethiopia and that it was “not an unreasonable conclusion” that the applicant would “decompensate and become unwell if returned to Ethiopia” given his difficulties in New Zealand in the past and the strong possibility that he would not engage with mental services on return.
[13] The Tribunal further noted that the applicant had fathered three children in
New Zealand albeit that he had never met the third and that his first two had not seen him in the period that he had so far been imprisoned. It noted that the mother of his
4 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104. Ye was concerned with s 47(3) of the Immigration Act 1987 which is materially the same as the current s 207. Accordingly Ye continues to apply. See Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [9].
first two children was conflicted about the possibility of re-establishing any relationship with the applicant and that with his criminal history and history of violence towards family members when unwell, coupled with a lack of stable employment and lack of integration into New Zealand society, he would, if anything, have a strongly detrimental influence on his children.
[14] The Tribunal then discussed the position of the Oromo people in Ethiopia, referring to its earlier decision in Abdula v Minister of Immigration.5 It noted that repression of the Oromo people, making up approximately 30 to 40 per cent of the Ethiopian populace, was a feature of successive regimes in recent history. It discussed in detail the most recent country information.
[15] Taking all these factors into account the Tribunal held that although none would individually meet the high threshold of exceptionality required by the Act, cumulatively, the applicant’s circumstances were well outside the ordinary and in that sense exceptional. In reaching that conclusion the Tribunal appears to have been particularly influenced by its assessment that the applicant’s mental health would if returned to Ethiopia deteriorate to the point that he would become unwell, with this concern applying “against a backdrop of a volatile social and political environment in his home country where he is a member of an ethnic group that has for some years
been discriminated against”.6
[16] The Tribunal then proceeded to consider the third ingredient of the test in Ye, namely whether his exceptional circumstances of a humanitarian nature made it unjust or unduly harsh for him to be removed from New Zealand. It referred to and applied the Supreme Court’s decision in Guo v Minister of Immigration, in terms that
such assessment was to be made:7
… in light of the reasons why the appellant is liable for deportation and involves a balancing of those considerations against the consequences for the appellant of the deportation.
5 Abdula v Minister of Immigration [2015] NZIPT 600097.
6 At [99].
7 Guo v Minister of Immigration, above n 4, at [9].
[17] The Tribunal noted that the liability for deportation arose on account of sexual offending against a five year old. It examined the nature and gravity of that offending by reference to Judge Taumanu’s sentencing notes and proceeded to balance these considerations against the applicant’s exceptional humanitarian circumstances. It concluded that such exceptional circumstances did not, in light of the reasons why the appellant was liable for deportation, make it unjust or unduly harsh for such deportation to occur.
[18] It further held, in an aspect of the decision which is not challenged on the application for leave, that it was not satisfied that it would not be in all the circumstances contrary to the public interest to allow the applicant to remain in New Zealand. It did so after extensive reference to evidence of the risk of re-offending which it concluded remained high, albeit recognising, as the Supreme Court did in Helu v Immigration and Protection Tribunal,8 that the risk of re-offending must not be conflated with the public interest and was simply one factor relevant to an overall assessment of that interest.
The applications
[19] The applications proceed on the basis:
(a) That the Tribunal’s finding that it would not be unjust or unduly harsh
to deport the applicant was incorrect because:
(i) it involved incorrect factual findings; and/or
(ii) it failed to give proper weight to the applicant’s mental health
and Oromo ethnicity.
(b) The decision was otherwise unfair and/or a breach of natural justice. (c) The decision was unreasonable because it failed properly to assess the
information before it.
8 Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [192].
(d)The decision breached various international instruments including Article 7 of the International Covenant on Civil and Political Rights (ICCPR).9
[20] The application for leave to appeal does not identify the alleged factual errors which, in combination, are said to be so grave as to constitute an error of law, but the written submissions focus on the alleged failure of the Tribunal to place sufficient weight on what is referred to as the applicant’s “extreme mental illness” and on the “political instability affecting the Oromo people”. In that context emphasis is placed on the report by Mr Woodcock confirming that the appellant must have suffered from “early onset psychosis” which he says is notoriously difficult to treat. In declining to grant his appeal Mr Mukusha says the Tribunal was allowing someone with acute mental problems to return to an unstable country with no prospect of reasonable care. He argues that this represents a “gross” error in the balancing exercise.
[21] The application for leave to commence judicial review proceedings appears to rest on alternative arguments of unreasonableness or invalidity. Mr Mukusha submits that the Tribunal acted unreasonably in “failing to use all the information available before it” and that, as a result of the combination of unreasonableness and an alleged breach of the applicant’s “legitimate expectation as to fair process”,10 the decision should be quashed on the innominate ground.
[22] He further argues that the case is one of general or public importance in terms of ss 245(3) and 249(6)(b) given that it “addresses best practice methodology in determining how a deportation appeal is determined [and] … what material and weight should be given to Psychological reports when the findings of the reports
presented are inconsistent”.11
9 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 19
December 1966, entered into force 23 March 1976) [ICCPR].
10 Said to occur in “assessing the burden and standard of proof and assessing the evidence before the Tribunal”.
11 The alleged inconsistency was said to result from what Mr Mukusha submitted was identification by Mr Woodcock of more severe mental illness than identified in an earlier Corrections Department report.
The legal framework
[23] The applications are made under ss 245 and 249 of the Act, both of which feature leave requirements. This Court has emphasised on a number of occasions that this indicates a deliberate intention to limit appeals and reviews.12
[24] In summary, what an applicant is required to show at the leave stage is a seriously arguable error of law (appeal) or seriously arguable failing in terms of legality and process (review), in each case being one of general or public importance or for any other reason appropriate for consideration by the High Court.
Leave to appeal – section 245
[25] Relevantly s 245 of the Immigration Act provides as follows:
245 Appeal to High Court on point of law by leave
(1) Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.
…
(3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.
[26] Accordingly, an applicant must identify a seriously arguable question of law which either:13
12 SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [5] (judicial review); X v Chief Executive of the Ministry of Business Innovation and Employment [2013] NZHC 642, [2013] NZAR 513 at [3] (appeal).
13 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
(a) has importance extending beyond the particular case (which is what is meant by general or public importance); or
(b) for some other reason warrants a decision from the High Court.
[27] Moreover, although the “any other reason” category is open ended, the authorities establish that it will only apply in an exceptional case, involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision remaining in place.14
[28] Because leave is only available in respect of questions of law, factual findings will be immune from challenge unless of such magnitude that they constitute an error of law. In Taafi v Minister of Immigration, Kós J (as he then was) emphasised the triple hurdle faced by applicants in that context:15
(a) First, the applicant will need to show a seriously arguable case that factual findings by the Tribunal are actually incorrect. An appeal Court will not interfere where there is an available evidential basis for the Court's finding.
(b) Secondly, the applicant will need to show that the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law. That is, it is seriously arguable that:
(i) the Tribunal has made a finding of fact which is based on no evidence, based on evidence inconsistent with or contradictory of another finding of fact, or contradictory of the only reasonable conclusion of fact available on the evidence; and
(ii) the errors of fact are so significant and extensive that a properly-directed Tribunal may well have reached a different decision overall on the application to quash the deportation order.
(c) Thirdly, the applicant must show that the question of law … is one of general or public importance, or for some other reason ought to be considered on appeal. The former is a hard ask in the case of factual errors, no matter how profound. …
14 Machida v Chief Executive of Immigration New Zealand, above n 13, at [8].
15 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].
[29] Challenges to the weight which the Tribunal accords to aspects of the evidence before it will seldom amount to an error of law. As Katz J said in Nabou v Minister of Immigration:16
Judges have repeatedly warned against minute and detailed analysis of the facts or separate parts of the decision in an attempt to expose defects or to identify some error or imperfection which can be elevated into an error of law. The decision must be looked at as a whole. Findings of fact themselves cannot be impugned unless the factual errors were of such significance, extent and nature that they would render the decision legally flawed. Value judgments made by the Tribunal in balancing and weighing the competing factors arising in any given case will seldom amount to an error of law.
Leave to review – s 249
[30] Relevantly s 249 of the Act provides:
249 Restriction on judicial review of matters within Tribunal’s
jurisdiction
(1) No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.
…
(3) Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.
…
(6) In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—
(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and
16 Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [9], cited in AB v Refugee and Protection Officer [2017] NZHC 1424 at [33]. See also Guo v Immigration and Protection Tribunal [2014] NZHC 804 at [55], [79] and [105]; De Borja v Removal Review Authority [1999] NZAR 471 (HC) at 476; and Minister of Immigration v Zhang [2014] NZAR
88 at [34], where Harrison J noted that “the weight to be given to particular factors was solely within the Tribunal’s statutory function”.
(b) if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.
(7) A court that grants leave under subsection (3) to bring review proceedings must state the issue or issues to be determined in the proceedings.
[31] Section 249(6)(a) suggests that appeal and not review is the primary mechanism through which Tribunal decisions should be challenged. Moreover, as Wylie J said in AB v Refugee and Protection Officer:17
Although section 249 does not state that review proceedings that involve issues that could have been dealt with by appeal and which are not of general and public importance should not be granted leave, this is a clear implication from the requirement that the Court must have regard to the s 249(6) factors. It will be a rare circumstance for leave to be granted if either (or both) of those criteria is not made out. In practice, issues that can be raised on an appeal under s 245 will likely be much the same as can be raised in review proceedings, and it is hard to envisage a point of law that would not qualify as a ground of appeal under s 245, but still qualify as a ground for review under s 249.
[32] Because judicial review is concerned with matters of legality and process, challenging the weight placed on various factors by a decision maker is, as Palmer J said in AI (Somalia) v Immigration and Protection Tribunal, again “less than propitious of a successful [application]”.18
[33] As several cases have observed, there is currently some disagreement at High Court level in terms of whether the “any other reason criteria” in s 249(6)(b) is to be read consistently with that in s 245, or whether it should be given an expanded meaning in the context of judicial review sufficient possibly to tip the balance in a
marginal case.19 In BY (China) v Refugee and Protection Officer I respectfully
adopted the more liberal approach.20 The differences were noted but not resolved by
17 AB v Refugee and Protection Officer, above n 16, at [30] citing C v Immigration and Protection
Tribunal [2015] NZHC 510, [2015] NZAR 594 at [38].
18 AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at
[49].
19 Compare SK v Immigration and Protection Tribunal, above n 12, at [6]–[7]; RM v Immigration and Protection Tribunal [2016] NZHC 735 at [42]–[50]; and Hu v Immigration and Protection Tribunal [2016] NZHC 1661 at [17]–[19].
20 BY (China) v Immigration and Protection Tribunal [2016] NZHC 2244, [2016] NZAR 1595 at
[40].
the Court of Appeal in Kumar v Minister of Immigration.21 The present case is not one which in my view falls into the marginal category where the distinction may be relevant.
General or public importance
[34] This requirement is to be interpreted consistently across ss 245(3) and
249(6)(b).22 As the Court of Appeal observed in Minister of Immigration v Jooste,23 the test is similar to that which applied to second appeals to the Court of Appeal under s 67 of the Judicature Act 1908 (now repealed). That is, the Court is not engaged in the correction of error. Its primary function is to clarify the law and not every alleged error of law is of such importance as to justify further litigation.
Application for leave to appeal
[35] As indicated, the applicant’s principal contention appears to be that the Tribunal placed insufficient weight on his mental health and Oromo ethnicity under the unjust or unduly harsh limb of the test.
[36] There were two psychological reports before the Tribunal; one from the Department of Corrections Senior Registered Psychologist Ms Angela Nelmes and the other from the applicant’s own expert witness Mr Woodcock. It is clear that both were carefully considered in the context of whether the applicant made out exceptional circumstances of a humanitarian nature.24
[37] Ms Nelmes’ report identified that although previous diagnoses were of depression and anxiety and paranoid and narcissistic personality disorder, his diagnosis as at November 2015 was of schizo-effective disorder. Mr Woodcock confirmed that diagnosis. As the Tribunal noted, such diagnosis has:25
… an element of psychosis as well as a mood component, meaning that the appellant is prone to cycles of depression and mania. His capacity for harm
21 Kumar v Minister of Immigration [2016] NZCA 492, [2016] NZAR 1591 at [7].
22 Songmia v Minister of Immigration [2013] NZHC 3233 at [13].
23 Minister of Immigration v Jooste [2014] NZCA 23 at [5].
24 At [49]–[61] of the decision.
arises when he experiences a psychotic episode while in the manic phase of his mood disorder.
[38] It then proceeded to ask itself whether the exceptional humanitarian circumstances that it had identified were such as to make it unjust or unduly harsh for the applicant to be deported. It did so against the background of the psychological evidence that it had already summarised, noting in particular that:
(a) Although the level of care available in Ethiopia was likely to be lower than that available in New Zealand, the applicant had a history of non- compliance and there “had been significant periods when he was pretending to be compliant while under the care of services here, but was in fact deliberately choosing not to ingest medication”.26 The Tribunal therefore considered that his “reticence about engaging with mental health services is likely to continue to be a significant difficulty for him, wherever he is living”.27
(b)The allegation that antisocial behaviour in prison would place the applicant at risk of harm if he returned to Ethiopia was “purely speculative”, on the basis there were various homes in Ethiopia in which he could stay and his sister’s evidence that conflict aside, “he will have a place to go to”.28
(c) He was not considered a suicide risk on the basis of the evidence of both Ms Nelmes and Mr Woodcock.
[39] To the extent that there are shades of meaning between the respective psychological reports they were not germane to the decision. It is clear that the Tribunal regarded the applicant as having a serious mental illness. It was on that basis primarily that it reached its decision under the first two limbs of the s 207(1)(a) test. It specifically recognised that he could decompensate and become unwell if
returned to Ethiopia.
26 At [117].
27 At [117].
[40] In respect of his Oromo ethnicity, the Tribunal reached the following conclusions:
(a) It noted that there had been ongoing difficulties for the Oromo people in Ethiopia for many years, but that the applicant “has never previously been directly harmed [and] has no political profile or history”.29
(b)It considered the decision in Abdula v Minister of Immigration,30 but held that it was distinguishable because unlike the applicant Mr Abdula had family connections that had exposed him to harm in the past and meant he was at risk in the future. By contrast, the Tribunal recorded that “there is no evidence that the appellant has ever been the target of any adverse attention in the past and there is nothing in his profile to suggest that he will be of interest to the Ethiopian authorities if he were to return there now, or that he is otherwise at risk of serious harm”.31
(c) It noted that the applicant may yet be required to serve out much of the remaining six years of his New Zealand sentence, and given that circumstances might change in Ethiopia before his release it was “appropriate to undertake the assessment of his protection needs when
deportation is imminent”.32
[41] Accordingly the Tribunal recognised and considered both the appellant’s mental health and Oromo ethnicity in its consideration of the unjust and unduly harsh limb of the test. However, in terms of the test in Guo,33 it was then required to
weigh his offending against the consequences of deportation. It is clear that despite
29 At [114].
30 Abdula v Minister of Immigration, above n 5.
31 At [115].
32 At [116]. This recognises that the Minister of Immigration has a range of discretionary powers under the Act, including the power under s 172 to cancel or suspend a person’s liability for deportation at any time. There may be circumstances where the Minister considers it appropriate to cancel liability, for example if the person’s circumstances are relevant to New Zealand’s international obligations.
33 Guo v Minister of Immigration, above n 4.
its conclusions in respect of the applicant’s mental health and the position of the Oromo people it did not regard it as unjust or unduly harsh that he should be deported. As such the Tribunal was engaged in what the Supreme Court in Guo identified as a “balancing” exercise.34 It was involved in attributing weight to various considerations in the way recognised as seldom giving rise to an appealable issue of law or basis for judicial review.
[42] For my own part I agree with the way the Tribunal undertook this balancing exercise.35 Certainly I can identify no basis for suggesting that it did so in a way so unsupportable that the appeal (or review) jurisdictions potentially apply. The Tribunal was rightly entitled to consider that the appellant’s offending was within an “inherently serious class of sexual offending, involving breach of trust against a vulnerable five year old child”,36 and although recognising that the quality of the appellant’s mental health care in Ethiopia was likely to be rudimentary, that deportation nevertheless was not in all the circumstances unjust or unduly harsh. In that respect I would adopt a test analogous to that in Taafi whereby the Tribunal’s determination on the balancing exercise should be upheld unless the only true and reasonable conclusion contradicts the determination, or as Palmer J expressed the position in Hu v Immigration and Protection Tribunal, the exercise was conducted in
a way “so insupportable or untenable that proper application of the law requires a different answer”.37 The applicant is in my view a long way from meeting that threshold.
[43] Accordingly the applicant does not in my view make out a seriously arguable question of law on appeal.
Application for leave to review
[44] I am similarly unpersuaded that this application should be granted. Insofar as the applicant alleges a breach of natural justice or that he has been treated unfairly by
the Tribunal, he does not particularise the alleged injustice. In substance the
34 Guo v Minister of Immigration, above n 4, at [9]. See [101] of the Tribunal’s decision.
35 At [101]–[122] of the decision.
36 At [122].
37 Hu v Immigration and Protection Tribunal [2017] NZHC 41 at [2] (referring to a possible gloss on the Wednesbury test).
argument reduces to one that he disagrees with the Tribunal’s assessment that it would not be unjust or unduly harsh to deport him. Again, however, that goes to the weight attributable to the various factors which the Tribunal was required to balance. An argument based on weight is as unpropitious in this context as it is in that of s 245. I would apply like considerations to those referred to in [42] above. In any event such argument is properly dealt with in the appeal context.
[45] The allegation of unreasonableness is based on the Tribunal’s alleged failure to “use all the information available before it to properly assess the deportation appeal”. Again the allegation is directed towards the Tribunal’s assessment of the “unjust or unduly harsh” limb.
[46] There is a considerable body of case law confirming the application of the Wednesbury test in the immigration context.38 However, Palmer J suggested in Hu that:39
… the Supreme Court's reformulation … [in Bryson v Three Foot Six Ltd] offers a better account of unreasonableness constituting illegality in judicial review than the circular words used in Wednesbury.
[47] The Supreme Court’s reformulation is an inquiry as to whether the decision is so insupportable or untenable that proper application of the law requires a different answer.40 Palmer J also considered that Lord Radcliffe’s test in Edwards v Bairstow41 (itself incorporated in the Taafi test) may assist in identifying
unreasonableness.42 Lord Radcliffe proposed three scenarios in which a decision
would be unreasonable, namely a state of affairs “in which there is no evidence to
support the determination”; or “one in which the evidence is inconsistent with and contradictory of the determination”; or “one in which the true and only reasonable
38 Puli’uvea v Removal Review Authority [1996] 14 FRNZ 322 (CA) at 334; Huang v Minister of Immigration [2008] NZCA 377, [2009] 2 NZLR 700 at [39]; Singh v Minister of Immigration [2011] NZCA 532 at [33]–[34]; Minister of Immigration v Zhang [2013] NZCA 487, [2014] NZAR 88 at [29]–[32]; Husein v Deportation Review Tribunal [2011] NZAR 441 (HC) at [18].
39 Hu v Immigration and Protection Tribunal, above n 37, at [29].
40 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26]; see Hu v
Immigration and Protection Tribunal, above n 37, at [29].
41 Edwards v Bairstow [1956] AC 14 (HL).
42 Hu v Immigration and Protection Tribunal, above n 37, at [30].
construction contradicts the determination”.43 Lord Radcliffe preferred the last of these three phrases but said that each propounded the same test.
[48] These are matters of nuance. They do not affect the outcome in this case. I accept as a convenient shorthand the respondents’ submission that the essential inquiry is whether “there really could be only one answer” in this case, namely that it would be unjust or unduly harsh to deport the applicant.44 I do not consider that proposition reasonably arguable. The Tribunal correctly applied the law as set out by the Supreme Court in Guo and concluded that weighing the gravity of the applicant’s
serious offending against his exceptional humanitarian circumstances, deportation would not be unjust or unduly harsh. I consider that a result reasonably open to the Tribunal.
[49] Next, the applicant invokes the so-called innominate ground saying that the “accumulated defects of the decision mean that it should be quashed”. This ground was considered at length in the decision of Palmer J in AI (Somalia) v Immigration and Protection Tribunal.45 I respectfully adopt his conclusion that a generic “something has gone wrong” interpretation of the innominate ground of judicial review does not constitute part of the law of judicial review in New Zealand and that if the “something” which has gone wrong is sufficient to warrant a court interfering in the decision making of a public body, the court ought to be able to describe what that “something” is so as to justify with reasons why it is unlawful.46 I am unable in this case to identify reasonably arguable grounds for there being “something” in that sense.
[50] Finally the applicant argues that the Tribunal failed adequately to consider Article 7 of the ICCPR which he says is engaged because “he is, if returned, at risk of serious harm because of his Oromo ethnicity”. However, the Tribunal found that the applicant was not at risk of serious harm if returned. That is not a factual finding
challenged on the current applications nor could any challenge meet the threshold in
43 At 36.
44 Adopting the expression in Singh (Kulpir) v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA 592, [2016] NZAR 93 at [66].
45 AI (Somalia) v Immigration and Protection Tribunal, above n 18, at [38]–[46].
46 At [46].
Taafi.47 Accordingly I accept the respondent’s submission that Article 7 was not engaged on the facts and that the Tribunal otherwise considered its international obligations.48
[51] Moreover, as the Tribunal noted, the applicant may yet be required to serve out much or all of the remaining six years of his sentence and, if the circumstances for the Oromo people generally were to change49 then it would be appropriate to undertake the assessment of his protection needs when deportation is imminent.
[52] I conclude therefore that in relation to all of the proposed grounds of review the applicant does not make out a seriously arguable case sufficient that leave should be granted.
Importance of issues raised
[53] Even if any of the above issues were seriously arguable I do not consider any of them of sufficient general or public importance to warrant the grant of leave. Nor are there any “other reasons” which would in my view qualify. The proposition that the proposed appeal addresses “best practice methodology in determining how a deportation appeal is determined” cannot disguise the fact that, as the applicant’s submission itself acknowledges, the facts of the case are “extremely unique”. Nor do I accept as a ground of general or public importance that the “application addresses what material and weight should be given to Psychological reports when the findings of the reports presented are inconsistent”. Such differences as existed in the reports were irrelevant to the final outcome given the Tribunal’s acceptance of severe mental illness sufficient to recognise exceptional humanitarian grounds.
[54] In all respects I regard the Tribunal’s decision as having applied settled law.
Nor is there any basis to suggest that such principles need to be revisited.
47 Even taking into account the applicant’s criticism that the Tribunal gave insufficient weight to evidence that as someone who had lived overseas for an extended period, he may be regarded as a spy.
48 For example it recognised that Articles 17 and 23(1) of the ICCPR were engaged (due to the interests of the applicant’s family) as well as Article 3(1) of the Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September
1990), due to the interests of the applicant’s children: at [71]–[73].
49 As for example if there was evidence of genocide against the Oromo people at the time of deportation. See comments above n 32.
Public interest
[55] As an alternative ground for its decision the Tribunal held, in terms of s 207(1)(b) of the Act, that it was “not satisfied that it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand”.50 The double negatives are unfortunate but mandated by the statutory provision. It reached that conclusion applying the Supreme Court’s test in Helu v Immigration and Protection Tribunal which recognised that:51
… a sliding scale assessment of the gravity and probability of future offending may helpfully indicate the weight to be given to the risk of re- offending when assessing the public interest.
[56] Neither the application for leave to appeal nor to review challenged the Tribunal’s finding which proceeded on the basis of a detailed assessment of the risk of re-offending (considered high based on the psychological evidence), the public interest in the preservation of family unity (and associated Treaty and Convention obligations) and the public interest in compliance with other international obligations such as the Convention Relating to the Status of Refugees,52 the ICCPR and the
Convention Against Torture.53 It concluded that the strong public interest in the
community being protected from the unacceptably high risk of further serious violent and sexual offending outweighed the modest public interest in family unity. It based that conclusion on the negligible contact of the applicant with his children and the poor role model that he would be in any event. It further held that the public interest in protection outweighed New Zealand’s international obligations in connection with any protection needs the applicant may face.
[57] Since the requirements of s 207(1)(b) are cumulative with those under s 207(1)(a), the failure to challenge the Tribunal’s public interest assessment could
be regarded as itself fatal to the applications.
50 At [145].
51 Helu v Immigration and Protection Tribunal, above n 8, at [192].
52 Convention Relating to the Status of Refugees 189 UNTS 137 (opened for signature 28 July
1951, entered into force 22 April 1954).
53 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
1465 UNTS 85 (opened for signature 10 December 1984, entered into force 26 June 1987).
[58] However, to the extent relevant, the Tribunal’s balancing exercise in relation to the various public interests involved is not one which I would, in any event, have interfered with.
Costs
[59] Despite what would appear to be limited prospects of recovery, the second respondent seeks costs. I allow these on a 2B basis. The relevant calculation may be approved by the Registrar.
Court file
[60] Because the Court file contains details of the applicant’s victim and family, I
direct that it not be searched other than by direction of a Judge.
Muir J
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