Ali v Minister of Immigration

[2015] NZHC 1794

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-557 [2015] NZHC 1794

BETWEEN

FEROZ ALI

Applicant

AND

THE MINISTER OF IMMIGRATION Respondent

Hearing:	23 July 2015
Counsel:	F J Peters for Applicant N Small for Respondent
Judgment:	31 July 2015

JUDGMENT OF HINTON J

This judgment was delivered by me on 31 July 2015at 5.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Corban Revell, Waitakere City

Meredith Connell, Auckland

ALI v THE MINISTER OF IMMIGRATION [2015] NZHC 1794 [31 July 2015]

Summary

[1]    The applicant, Mr Ali, applies for leave to appeal a decision of the Immigration and Protection Tribunal. The Tribunal dismissed his appeal, based on humanitarian grounds, against liability for deportation.

[2]    I have declined leave to appeal.  Tribunal decisions can only be appealed on a point of law (that by reason of its general or public importance or for any other reason ought to be submitted to this Court).   In this case, the applicant relies on factual errors, which can be relied on as a point of law, but only where the applicant establishes a seriously arguable case that the factual findings complained of are

incorrect and that the factual errors are so grave as to constitute an error of law.1   The

applicant has not established any incorrect factual findings and it follows that there is no factual error so grave as to constitute an error of law.

Background

[3]    The applicant was born in Fiji on 3 July 1979. He is now 36 years of age.

[4]    In January 1998 he was convicted in Fiji of being in possession of a dangerous drug.

[5]    In February 1998, at the age of 18, the applicant arrived in New Zealand on a student visa. He has lived in New Zealand since then, apart from brief return trips to Fiji in 2005 and 2006.

[6]    Between 1999 and 2002, the applicant was granted a series of work visas.

[7]    In April 1999, he applied for residence under the ‘de facto partner’ policy. This application was declined in October 2001 as the applicant’s wife advised that they had never lived together and that she had married him because his family had helped

her in the past.  (The applicant later divorced his wife in 2003.)

1      Taafi v Minister of Immigration [2013] NZAR 1037 at [19].

[8]    In  November  2001,  the  applicant’s  father  applied  for  residence  under  the

‘sibling and adult child’ policy. The application included the applicant and two of his siblings.  In  the  application,  the applicant  was  declared  as  “never married”.  His conviction in Fiji was also not declared. The application was granted on 4 June 2004.

[9]    In  September  2006,  the  applicant  was  issued  with  an  indefinite  returning

resident’s visa.

[10]  In 2007, the applicant was convicted of five driving-related offences and one charge of possessing cannabis.

[11]  In 2011, he was convicted of one charge of possessing cannabis.

[12]  In June 2011, he was found guilty of using a forged document. That offence related to events that took place back in January 2006. The applicant had entered into a contract to construct a dwelling and had received a number of progress payments. The applicant received final payments on the basis of a code compliance certificate issued for another property that the applicant forged to make it look like it was issued for the property on which he was working.

[13]  In November 2011, a replacement permanent resident visa was approved for the applicant.

[14]  In May 2012, the applicant was sentenced in respect of the forgery charge to one year and three months’ imprisonment. In May 2012, this sentence was reviewed and changed to six months’ community detention, 200 hours’ community work and reparation in the sum of $32,415.87 to reflect the costs of repairing the defects so that the property was finally code compliant. The applicant’s parents paid $10,000 towards the reparation order and he has been paying the balance at $70 per week.

[15]  In July 2012, the applicant became a licenced building practitioner.

[16]  On 16 October 2012, a deportation liability notice was served on the applicant on the ground inter alia that he had been convicted of an offence liable to imprisonment of three months or more.

[17]  In  August  2013,  a  complaint  was  lodged  against  the  applicant  with  the Building Practitioners’ Board. In November 2014, the Board decided that the applicant had failed without good reason to provide a record of work on completion as required by statute.

[18]  On 24 October 2014, the applicant was declared bankrupt and, between then and the date of the Tribunal hearing on 21 January 2015, had not been contributing to family expenses.

Appeal to Immigration and Protection Tribunal against deportation liability notice

[19]  The applicant  appealed  against  his  deportation  liability to  the Tribunal  on humanitarian grounds.

[20]  Section 207(1) of the Immigration Act sets out the test for determining such a humanitarian appeal, as follows:

207 Grounds for determining humanitarian appeal

(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.

[21]  Section 207(1)(a) of the 2009 Act is almost identically worded to s 47(3) of the Immigration Act 1987. It is common ground that previous case law on the correct interpretation of the humanitarian limb of s 47(3) of the 1987 Act still applies.2

Courts at all levels have accepted that the s 47(3) test was a “difficult one to meet”3

and was “deliberately set at a high level”.4

2      Minister of Immigration v Jooste [2014] NZHC 2882, [2015] 2 NZLR 765 at [23].

3      Zanzoul v Removal Review Authority HC Wellington CIV-2007-485-1333, 9 June 2009 at [150].

4      Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [32].

[22]  The majority of the Supreme Court in Ye v Minister of Immigration held that the appropriate threshold for a finding of “exceptional circumstances” under s 207 was as follows:5

That brings us back to the first criterion in s 47(3) which has the following ingredients: (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand.  The need for the circumstances of the case to be exceptional means that those circumstances must be well outside the normal run of circumstances found in overstayer cases generally.   The circumstances do not have to be unique or very rare but they do have to be truly an exception rather than the rule….If there are exceptional circumstances of a humanitarian nature, it is then necessary to determine whether they make it unjust or unduly harsh to remove the person from New Zealand.

(Emphasis added)

[23]  On 18 February 2015,  Judge Spiller, Chair of the Tribunal, dismissed the

applicant’s appeal against liability for deportation on humanitarian grounds.

[24]  The Tribunal set out the grounds for allowing an appeal under s 207. The Tribunal noted that the applicant’s circumstances must be well outside the normal run of circumstances in order to be “exceptional” and that where there are family interests at issue, regard must be had to the entitlement of the family to protection as the fundamental unit of society.

[25]  In assessing whether there were exceptional circumstances of a humanitarian nature, the Tribunal considered:

(a)      The  importance  of  the  applicant’s  permanent  resident  status.  The Tribunal noted that the applicant will lose a number of rights if he is deported, but that the applicant obtained his resident status in circumstances where he failed to disclose relevant information.

(b)The applicant’s personal circumstances. The applicant stated he had undergone   a   significant   transformation   and   is   dedicated   and

committed to the church and his family. The Tribunal acknowledged

5      At [34]; cited with approval in Jooste, above n 2 at [26].

the letters received in support of the applicant. The Tribunal noted that he was presently unemployed and had been declared bankrupt.

(c)      The length of time that the applicant has been in New Zealand (17 years). The Tribunal considered the applicant’s case that he does not have a place to live in Fiji and will find it difficult to obtain employment. The Tribunal noted that the applicant has some family in Fiji and that the family home where they stayed is now occupied by his aunt and her family. The Tribunal was not prepared to assume that the applicant could not live for a period with his aunt or that he would not be able to find employment in a building related field in Fiji.

(d)The interests of the applicant’s family. The applicant lives with his immediate family and provides care and support for his grandmother and emotional support to the family, including his father who has diabetes. The Tribunal observed that since October 2014, the applicant could no longer contribute to the financial expenses of the family but the household has remained financially viable. The family acknowledged that should the applicant be deported, they could visit him in Fiji.

[26]  Weighing these factors, the Tribunal was not satisfied that there are exceptional circumstances of a humanitarian nature.

[27]  The Tribunal then said that if there are no “exceptional circumstances”, there is no need to consider either the “unjust or unduly harsh” or “public interest” stages of the s 207 statutory test. However, for the sake of completeness, the Tribunal said that it would not be unjust or unduly harsh for the applicant to be deported, given the not insignificant fraud offending, his conviction history and the Building Practitioners disciplinary action against him.

[28]  On dismissing the appeal, the Tribunal did, in the applicant’s favour, remove the period of prohibition on re-entry following deportation.

Relevant law on leave to appeal

[29]  Under s 245 of the Act, a party that is dissatisfied with the determination of the Tribunal as being erroneous in point of law may, with the leave of the High Court, appeal against the Tribunal’s decision on that question of law. If the High Court refuses leave, leave can be sought from the Court of Appeal.

[30]  In determining whether to grant leave to appeal, the High Court must, under s 245(3), 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 Court for its decision.”

[31]  The “question of law” involved in this case, for which leave is sought, is based wholly on alleged factual errors.

[32]  In Taafi v Minister of Immigration, Kós J held, consistent with the approach taken in a number of previous cases,  that leave to appeal applications based wholly upon criticisms of factual findings, face a triple hurdle:6

(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 (here based on alleged fundamental errors of fact) 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.  (Here,  the

6      Taafi v Minister of Immigration [2013] NZAR 1037 at [19]. This test has also been upheld in numerous subsequent cases such as Nabou v Minister of Immigration, [2013] NZAR 115.

applicant does not seek to argue that the questions he presents meet the requirement of being of general or public importance. Thus he relies on the alternative limb that there is “other reason” why the question should be submitted to the High Court.) In my view it would only be in exceptional circumstances, involving individual injustice to such an extent that the Court [simply] could not countenance the first instance decision standing, that this alternative requirement will be met.

Applicant’s submissions

[33]  Mr Peters, for the applicant, submits that there is a seriously arguable case that the factual findings by the Tribunal are incorrect and that the factual errors are sufficiently grave as to constitute an error of law.

[34]  Mr Peters refers to three factual errors:

(a)      The Tribunal erred in not taking into account or allocating requisite weight  to  the  applicant’s  family  situation,  namely  the  family’s financial and emotional inter-dependence and their reliance on the applicant.  Mr Peters submits that the applicant holds an integral role in his family. He says that while the applicant was a beneficiary and not contributing significantly at the time of the Tribunal hearing, he is now employed by a building company and his earnings “contribute substantially to the mortgage”.  In the course of the hearing, Mr Peters said under this head that he was not placing much weight on error regarding financial inter-dependence but was focussing more on the Tribunal not taking account of the family’s emotional inter- dependence at all.

(b)      The Tribunal erred in its assessment of the applicant’s ties to Fiji.

Mr Peters submits that it is clear that the applicant has no ties to Fiji in terms of immediate family and property. He says that the land his extended family lives on was repossessed by the government and the applicant has not been in contact with family in Fiji for a sustained period of time.

(c)      The Tribunal  failed  to  consider the public interest  element  of the applicant’s staying in New Zealand. Mr Peters submits that the applicant is currently paying $70 a week in reparation and that these payments would cease if he were deported. The beneficiary of the payments would be severely affected. Further, he says the applicant is a vital member of a coaching team that assists a non-profit community organisation. The benefits of his volunteer work would cease upon deportation.

[35]  Mr Peters submits that the overall justice of the case favours leave being granted.

Respondent’s submissions

[36]  Ms Small, for the respondent, submits that there was no error in the Tribunal’s factual findings, nor was there an error in its approach to the s 207 test. She submits that the factual findings were available on the evidence before the Tribunal.

[37]  Turning to the first factual finding regarding the applicant’s family situation, there are two limbs to this, financial and emotional.   On the first limb, Ms Small submits that the applicant’s current employment status is not relevant to determining whether, at the time of the appeal hearing, the Tribunal made an incorrect factual finding. She submits that on the applicant’s own evidence, it was open for the Tribunal  to  conclude  that  the  applicant  no  longer  contributed  to  the  financial expenses of the family and that the household had remained financially viable.  On the second limb, Ms Small points out that the Tribunal clearly did take account of emotional inter-dependence factors at [37] and [38] of the decision.

[38]  As to the second factual error, Ms Small submits that the applicant accepted under cross-examination that he has family in Fiji and that his former family home is now occupied by his aunt. The applicant’s mother confirmed that she kept in contact with her Fiji-based sister.  Ms Small says it was open for the Tribunal to conclude that the applicant has family in Fiji and it was reasonable to infer that he could live with his aunt, at least initially.

[39]  As to the third alleged factual error, Ms Small submits that the Tribunal was not required to make a factual finding as to the public interest in the applicant’s staying in New Zealand and continuing to make reparation payments, as the first limb of the s 207 test was not satisfied.

[40]  In conclusion, Ms Small contends that, as the applicant cannot show that there is a seriously arguable case that the three factual findings were actually incorrect, the Court is  not  required  to  consider whether the  factual  errors  are so  grave as  to constitute an error of law and whether the error of law ought to be considered on appeal. Ms Small submits in the alternative that if the Tribunal did make factual errors, they were not so grave as to amount to an error of law.

Analysis

[41]  I propose to follow the test set out in Taafi. The first step is that the applicant needs to show a seriously arguable case that factual findings by the Tribunal are incorrect.

[42]  I consider that this hurdle is not met. There was a clear evidential basis for the

Tribunal’s factual findings.

[43]   Based on the evidence before the Tribunal, it was open to it to conclude that the household remained financially viable without the applicant’s financial contributions.7 Other children are contributing to household expenses and the mortgage.8 I have no doubt that the family is tight knit. The Tribunal did not make a finding to the contrary. However, the Tribunal recognised that the applicant’s family

did not depend on him alone.  Indeed, viewing the evidence over the period leading up  to  the  Tribunal  ruling,  it  would  seem  more  likely  that  the  applicant  was financially dependent on his family, than that they were financially inter-dependent, bearing in mind such matters as the payment his parents made on his behalf in May

2012  of $10,000  towards reparations  and  the  applicant’s  bankruptcy in  October

2014.

[44]  The applicant submits that he is now employed. This is new evidence as it was not  before  the  Tribunal.  I agree  with  the  respondent  that  this  new  evidence  is irrelevant to the question of whether an incorrect factual finding was made. In Guo v Immigration and Protection Tribunal, Gendall J doubted whether new factual evidence is material to a s 245 application that seeks leave to appeal on a question of law.  The  Judge  said  that  the  appeal  does  not  provide  an  opportunity  for  the

appellants to bolster their case with new evidence.9     Further, even if I were to

consider the letter from the building company, which Mr Peters tendered as evidence and which post-dates the Tribunal hearing, it would make no material difference. The letter does not record how much time the applicant was now working, what he was earning or how much he was contributing to the mortgage.

[45]  In my view, Mr Peters very sensibly volunteered that the case was not really based on error as to financial inter-dependence.

[46]  I wholly agree with Ms Small that the Tribunal did refer to and take into account the family’s emotional inter-dependence.  The Tribunal said that in addition to the applicant’s help, the father also receives care from other members of the family and his grandmother is supported by a visiting nurse. These findings were

supported by the evidence that was put before the Tribunal.10

[47]  The weight that the Tribunal placed on these considerations  involving the interests of the family cannot be challenged as a factual finding. It was relevant to its assessment  of  whether  there  were  exceptional  circumstances  of  a  humanitarian nature and the Tribunal quite clearly took these matters into account.

[48]  The second factual finding, that the applicant has family in Fiji, could live with his aunt (at least in the short term) and could find employment, has an evidential basis. The applicant admitted during cross-examination that his aunt lives in Fiji but that he has not asked her whether he could live at her house if he is deported.11   The aunt still lives in the applicant’s old family home, where he grew up.  The fact it is

not owned by the aunt or the family is irrelevant.  Just because the applicant has not

9      Guo v Immigration and Protection Tribunal [2014] NZHC 804 at [47].

10     NOE at 30.

11     NOE at 14-15.

been in contact with his extended family in Fiji for a sustained period of time does not mean he has no ties to Fiji. In fact, his mother still has some contact with her sister in Fiji.12    His brother had a child born in Fiji in 2013.   It seemed to me, in reviewing the notes of evidence in this regard, that the applicant obviously could have but had deliberately not contacted his aunt and/or her family, or at least considered it would be better for his case if he did not do so, despite the deportation notice served in October 2012.  It would not matter if the applicant could not live with his aunt.   He is 36 and licenced in building work and the Tribunal found he

could find employment in Fiji.

[49]  The third point raised by the applicant, that the Tribunal failed to consider the public interest element of his staying in New Zealand turns on the second limb of the s  207  test  as  opposed  to  the  first.  As  the  Tribunal  found  that  there  were  no exceptional circumstances of a humanitarian nature, there was no need for it to consider whether it would be contrary to the public interest to allow the applicant to remain in New Zealand.  This point is therefore not applicable.

[50]  In his reply submissions, Mr Peters raised the point that under s 207(2), the Tribunal must have regard to any submissions of a victim and that it had not done so. This again is covered by the fact that there was no need for the Tribunal to consider s 207(2). The applicant had not met the hurdle of the first part of s 207(1).

[51] The applicant relied generally on the case of Rameshi v Minister of Immigration.13 Contrary to the applicant’s submission, that case and the situation in this case are not analogous. In Rameshi, the Tribunal had found by a narrow margin that  there  were  “exceptional  circumstances” of  a humanitarian  nature.  Leave to appeal was granted on a question of law regarding the “unjust or unduly harsh” aspect of the s 207 test.   Here, the applicant has not even established exceptional circumstances.

[52]  I consider that the applicant has not shown a seriously arguable case that the factual findings made by the Tribunal are incorrect. The findings had an evidential

basis and were not “contradictory of the only reasonable conclusion of fact available on the evidence”.14 The consequences of the applicant’s deportation for him and his family are regrettable but are not “outside the normal run of circumstances”.15   The circumstances put forward by the applicant do not meet the high hurdle established by s 207. The Tribunal’s decision was clearly correct.

Conclusion

[53]  The application for leave to appeal is dismissed. There is no question of law that ought to be submitted to the High Court for consideration under s 245 of the Act.

Costs

[54]     Costs are reserved.

Hinton J