Amosa v Minister of Immigration

[2012] NZHC 2108

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-740 [2012] NZHC 2108

UNDER  the Immigration Act 2009

IN THE MATTER OF     an application for leave to appeal under section 245

BETWEEN  SOLOMONA AMOSA Applicant

ANDTHE MINISTER OF IMMIGRATION Respondent

Hearing:         5 July 2012

Counsel:         J Miller and S L Agnew for Applicant

R Hoare for Respondent

Judgment:      20 August 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 4pm on the 20th day of August 2012.

RESERVED JUDGMENT OF MACKENZIE J

[1]      This  is  an  application  for  leave  to  appeal  against  a  decision  of  the Immigration Protection Tribunal delivered on 20 March 2012, dismissing an appeal by Mr Amosa against a deportation order made by the Minister of Immigration on

14 November 2009.

[2]      Section 245 of the Immigration Act 2009 grants a right of appeal to this

Court, with leave, on a question of law.   In determining whether to grant leave to appeal, this Court must have regard to whether the question of law involved in the

AMOSA V THE MINISTER OF IMMIGRATION HC WN CIV-2012-485-740 [20 August 2012]

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.

[3]      The background is that Mr Amosa came to New Zealand with his parents and brothers in February 2008 when he was 18 years old.  The family settled in Porirua and Mr Amosa obtained work.   In August 2008 he assaulted and robbed a man. While on bail for that incident, he was a party to three further assaults.  He again obtained bail and went to live with an uncle and aunt in Milton.  He pleaded guilty and was sentenced, on 13 March 2009, to two years and six months imprisonment. On  14 November 2009  a  deportation  order  was  made  against  Mr Amosa  by the Minister of  Immigration.    He was  released  from  prison  in  February 2010.    His deportation was postponed pending the appeal to, initially, the Deportation Review Tribunal under the Immigration Act 1987, and subsequently the Immigration Protection  Tribunal  under  the  2009  Act.    In  that  period,  Mr Amosa  moved  to Auckland with his family and entered into a relationship with a New Zealand citizen. The couple have one child, and a second child is expected in September 2012.

[4]      In its decision, the Tribunal first determined whether it would be unjust or unduly harsh to deport Mr Amosa from New Zealand having regard to the matters set in s 105(2) of the 1987 Act. That provides:

In deciding whether or not it would be unjust or unduly harsh to deport the appellant from New Zealand, the Tribunal shall have regard to the following matters:

(a)       The appellant's age:

(b)       The length of the period during which the appellant has been in New

Zealand lawfully:

(c)       The appellant's personal and domestic circumstances: (d)   The appellant's work record:

(e)       The nature of the offence or offences of which the appellant has been convicted and from which the liability for deportation arose:

(f)       The nature of any other offences of which the appellant has been convicted:

(g)       The interests of the appellant's family:

(h)       Such other matters as the Tribunal considers relevant.

[5]      The Tribunal considered each of those matters.   It then noted that it was required to weigh the offending which led to the deportation order, together with any other offences, against humanitarian factors which favour the continued presence of the appellant in New Zealand.   It found that deportation would be harsh for his parents, his siblings, his partner, his son and for Mr Amosa himself.  The Tribunal noted that harshness is an almost inevitable consequence of deportation and is not the benchmark to avoid deportation.  An appellant must establish that it would be unjust or unduly harsh.   Weighing seriousness of the offending against the humanitarian circumstances, the Tribunal found that it would not be unjust or unduly harsh for the appellant to be deported.

[6]      That  finding was  determinative of the appeal,  but,  for completeness,  the Tribunal addressed the question of whether it was satisfied that it would not be contrary to the public interest to allow the appellant to remain in New Zealand.  In considering that, it found that the risk of Mr Amosa reoffending was too great a risk for the pubic to be expected to bear.  The Tribunal noted a public interest in family unity generally, and New Zealand’s adherence to such obligations under international

law.  It said:[1]

[1] Amosa v The Minister of Immigration [2012] NZIPT 500020, at [82]-[83].

We accept that there is public interest in the preservation of family unity and that a positive public interest consideration here is the benefit which would flow from the appellant, Ms Taniora and their child remaining as a family unit.   That benefit is qualified, however, by our lack of confidence in the enduring nature of the relationship between the appellant and Ms Taniora, as we have already discussed, and our concern at the appellant’s lack of insight into the responsibilities of parenthood evident in his willingness to conceive a child in circumstances in which he did not even know whether he would be able to remain present in the child’s life. Whether he will remain involved in his child’s life, even if he stays in New Zealand, is difficult to predict.  At best, it is speculative.

As to New Zealand’s observance of its international obligations, we find that deportation is a proportionate response in the present case and is necessary in the circumstances.  Deportation would not amount to either unlawful or arbitrary interference within the meaning of Article 17 of the ICCPR.   It follows that the public interest in New Zealand’s observation of its international obligations would not be engaged by deportation.

[7]      Ms Agnew,  who  presented  the  argument  for  the  appellant  most  ably, submitted that the questions of law which arise on the proposed appeal are:

(a)      Whether  the  Tribunal  made  errors  of  law  in  failing  to  properly consider  New  Zealand’s  international  obligations  under  various human rights instruments and conventions applicable to this case;  and

(b)Whether the Tribunal correctly considered the matters set in s 105(2) in determining whether or not it would be unjust or unduly harsh to deport the appellant.

[8]     Without  intending  any  disrespect  to  Ms Agnew’s  comprehensive submissions, I can deal quite shortly with whether those questions involve a question of law that by reason of its general or public importance or for any other reason, ought to be submitted to this Court for its decision.   As to the first question, the Tribunal expressly noted the public interest in New Zealand’s adherence to its obligations under international law.   It found that deportation was a proportionate response in the present  case and is necessary in the present  case.   That was a judgment which was for the Tribunal to make.  The essence of counsel’s submissions is that greater weight should have been given to the relevant provisions of various applicable  human  rights  instruments  and  conventions.     The  Tribunal  did  not expressly refer to all of the provisions in these instruments to which counsel drew attention.  That does not, of itself, give rise to a question of law.  The weighting of the international obligations was a matter for the Tribunal and does not give rise to a question of law of sufficient importance to justify an appeal.

[9]      It is relevant that the Tribunal’s discussion of the public interest in family unity and in New Zealand’s adherence to its obligations under international law were not determinative of its decision.  As the Tribunal noted, its finding that it would not be unjust or unduly harsh for Mr Amosa to be deported was determinative of the appeal, and it considered the further question of whether it would not be contrary to the public interest to allow the appellant to remain in New Zealand only for completeness.  Leave to appeal should not, except in special circumstances, be given in respect of a question of law which is not dispositive of the issue.

[10]     The second proposed question of law relates to the Tribunal’s consideration

of the s 105(2) matters.   That was quintessentially a matter for the Tribunal.   The

weight to be attributed to those matters was for the Tribunal.  The weighting of them does not give rise to a question of law, of general or public importance, or which for any other reason ought to be submitted to this Court for its decision.

[11]     For these reasons, the application for leave to appeal is dismissed. [12]         In case any question of costs arises, costs are reserved.

“A D MacKenzie J”

Solicitors:         Crown Law, Wellington for the Respondent

John Miller Law, Wellington, for Applicant