AO v Immigration and Protection Tribunal

[2024] NZHC 628

NOTE: CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT AND HIS CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009.

SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1254 CIV-2023-404-1255

[2024] NZHC 628

UNDER

ss 245 and 249 of the Immigration Act 2009

IN THE MATTER

of applications for leave to appeal and review a decision of the Immigration and Protection Tribunal

BETWEEN

AO

Applicant

AND

THE IMMIGRATION AND PROTECTION TRIBUNAL

First respondent

THE MINISTER OF IMMIGRATION

Second respondent

Hearing:

5 March 2024

Appearances:

R E Harrison KC and LIE Tothill for applicant

B M McKenna and NNA El Sanjak for second respondent

Date of judgment:

21 March 2024

JUDGMENT OF JAGOSE J

Counsel/Solicitors:

This judgment was delivered by me on 21 March 2024 at 11.30am.

Pursuant to Rule 11.5 of the High Court Rules.

…………………………

Registrar/Deputy Registrar

R E Harrison KC, Auckland

B M McKenna, Barrister, Auckland Dixon & Co Lawyers, Auckland

Crown Law, Wellington

AO v THE IMMIGRATION AND PROTECTION TRIBUNAL [2024] NZHC 628 [21 March 2024]

Introduction

[1]                 AO seeks leave to both appeal against and bring review proceedings in respect of the Immigration and Protection Tribunal’s (the Tribunal) 26 April 2023 decision upholding on appeal his liability for deportation (the decision).1

Background

[2]                 AO is recognised as a refugee in New Zealand.2 Presumptively he therefore may not be deported under the Immigration Act 2009,3 unless such deportation is allowed under the Refugee Convention,4 as determined by a refugee and protection officer.5

[3]                 On 6 April 2017, AO was sentenced to five years’ imprisonment to be served concurrently on convictions for assault with intent to commit sexual violation and indecent assault. On 19 March 2020, a refugee and protection officer determined such convictions meant AO’s deportation was allowed under the Refugee Convention — necessarily on the ground, as “having been convicted by a final judgment of a particularly serious crime, [he] constitutes a danger to the community of [New Zealand]”.6

[4]                 Section 206(1)(c) entitled AO to appeal, as he did, to the Tribunal on humanitarian grounds against his liability for deportation. Section 207(1) provides:

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.

1      AO [Redacted] [2023] NZIPT 600697A.

2      Refugee Appeal No 76596 RSAA Auckland, 29 November 2010.

3      Immigration Act 2009, s 164(1).

4      Section 164(3).

5      Section 164(5).

6      Immigration Act, sch 1, art 33.

[5]                 Section 207(1)(a) requires singular consideration of the deportee’s exceptional humanitarian circumstances making deportation either unjust or unduly harsh.7 Even so, appellants remain liable for deportation unless in all the circumstances their remaining in New Zealand is not contrary to the public interest.8 The reasons for deportation are relevant only once the requisite circumstances are established.9

The decision(s)

[6]                 Having decided AO’s deportation was allowed under the Refugee Convention,10 the Tribunal concluded:11

and:12

[T]aking into account on a cumulative basis the length of time that the appellant has been in New Zealand, his fragile mental health, the burden he will be to his family in [Redacted] and the distress the appellant will suffer at being deported (viewed in the context of his mental health) the Tribunal is satisfied that there are exceptional circumstances of a humanitarian nature in the appellant’s case.

Weighing the offending (serious, involving assault with intent to commit sexual violation and indecent assault, attracting a sentence of five years’ imprisonment), a moderate–low risk of reoffending in like manner and the need to protect the integrity of the immigration system, against the exceptional humanitarian circumstances … , the Tribunal is satisfied that, while it will be harsh for him, it is not unjust or unduly harsh for the appellant to be deported from New Zealand.

As such, the Tribunal considered it was “unnecessary to consider the ‘public interest’ limb of the test”.13 The Tribunal declined AO’s appeal.14

7      Minister of Immigration v Q [2020] NZCA 288 at [29], citing Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [30]. The Tribunal’s apparent template paragraph — here replicated at its [205], but evident in any number of its recent decisions: see, for example, Re NR (India) [2023] NZIPT 600718 at [82], Re CM (Samoa) [2023] NZIPT 505887-888 at [29], Re IA (Sri Lanka) [2023] NZIPT 505943-944 at [14] and Re Sio [2023] NZIPT 505892-893 at [8]

— has yet to pick up on Q’s explanation.

8      Immigration Act, s 207(1)(b).

9      Patel v Immigration and Protection Tribunal [2019] NZCA 607 at [14].

10     AN [Redacted] v Minister of Immigration [2022] NZIPT 600697.

11     AO [Redacted], above n 1, at [260].

12 At [281].

13 At [282].

14 At [284].

Approach to leave

[7]                 Under the Immigration Act, leave is required to either appeal against or bring review proceedings in respect of Tribunal decisions, and may be granted after having regard respectively if the question:15

or:16

… 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

… would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and … 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.

Appeal thus is the primary means for challenging Tribunal decisions, and presents a determinedly high threshold.17

[8]                 Review nonetheless remains available.18 The subject of judicial review is “the exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power”.19 ‘Statutory power’ is defined.20 On judicial review, this Court assesses if the power is exercised “in accordance with law, fairly and reasonably”.21 The latter words are terms of art in judicial review, respectively broadly meaning procedurally regular and substantively rational. If not, there only is limited relief the Court may grant, and it generally is discretionary.22

[9]                 But in either case, leave only is obtainable on “stringent” criteria: (a) seriously arguable qualifying subject matter; (b) of importance beyond the particular case; or

(c) otherwise warranting  this Court’s decision on  exceptional  grounds of individual

15     Immigration Act, s 245(3).

16     Section 249(6).

17     See, for example, Smith v Minister of Immigration [2020] NZHC 1510 at [34]–[41] and the cases cited there.

18     H v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433 at [78].

19     Judicial Review Procedure Act 2016, s 4.

20     Section 5.

21     New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552.

22     Judicial Review Procedure Act, ss 16–19.

injustice.23 If granting leave to bring review proceedings, I “must state the issue or issues to be determined in the proceedings”.24

[10]             As such, leave may be thought at least to have a similar objective as elsewhere:25

… to limit the cases which may go on appeal in the interests of finality of litigation and the work load of the [appellate] Court while preserving the integrity of the law and the interests of justice.

It is “well settled” that approach to leave is as a “filtering mechanism” for which “[t]he threshold is high”.26 If anything, given the particular statutory ‘reasons’ criteria,27 the threshold for leave here is higher still, for clarification of the law rather than general correction of error.28

Discussion

[11]             For AO, Rodney Harrison KC and Lucy Tothill submit the decision is irrational in failing to give due weight under s 207 to AO’s refugee status and circumstances. They additionally would argue the Tribunal erred in law in having regard for either and both ‘the need to protect the integrity of the immigration system’ or AO’s ‘risk of reoffending’ in determining the injustice or undue harshness of his deportation, being considerations argued only applicable to the ‘public interest’ limb. Mr Harrison points to appellate emphasis on “the personal circumstances of the person in respect of whom deportation is proposed”,29 leaving unsettled “[t]he extent (if any) to which such … quintessentially ‘public interest’ matter[s]” may be taken into account under the ‘unjust or unduly harsh’ limb.

23     P v Minister of Immigration [2022] NZCA 188 at [16]–[18], citing Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].

24     Immigration Act, s 249(7).

25     Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715.

26 Stockman v Health and Disability Commissioner [2022] NZCA 511 at [13], citing Greendrake v District Court of New Zealand [2020] NZCA 122 at [6] (citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13]); Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].

27 Immigration Act, ss 245(3) and 249(6)(b).

28  Minister of Immigration v Jooste [2014] NZCA 23 at [5], citing Waller v Hider [1998] 1 NZLR 412 (CA) at 412.

29 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [9].

[12]             The Minister would assert the Tribunal correctly assessed AO’s refugee status in its prior determination he was liable for deportation, which is not disputed. Thereafter, the Tribunal’s assessment under s 207 was orthodox as for any prospective deportee, affording no qualifying ‘reason’ for this Court’s decision or review.

[13]             I cannot identify any issue raised by AO that could not adequately be dealt with on appeal. Mr Harrison was forthright review was sought to guard against the prospect the Minister may seek substantively to argue some aspect of AO’s contentions was not susceptible to appeal. But, for the Minister, Bronagh McKenna accepted — subject to the Minister’s view leave for appeal should not be granted — AO’s intended contentions otherwise were arguable on appeal. I agree. I will not grant AO leave to bring review proceedings in respect of the Tribunal’s decision.

[14]             So far as leave to appeal is concerned, I do not consider the proposition only (or to ‘the extent’ other than) AO’s personal circumstances fall for consideration under s 207(1)(a) to afford any seriously arguable question of law. The ‘appellate emphasis’ on which Mr Harrison relies explains more fully:30

… Whether deportation would be “unjust or unduly harsh” is to be assessed 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 deportation. The public interest is not immaterial to the application of s 207(1)(a) but is primarily relevant to the application of s 207(1)(b). In determining whether deportation would be unjust or unduly harsh, the primary focus is on the personal circumstances of the person in respect of whom deportation is proposed and those of immediate family members who will be affected by that person’s deportation.

Thus the balance in any particular case is a matter of weight for the Tribunal’s assessment, here lacking necessary general or public importance or exceptional individual injustice.

[15]             However, I consider it seriously arguable in law AO’s continuing refugee status is a material consideration for assessment under s 207(1). That AO qualifies for deportation in terms of art 33 of the Refugee Convention may not be to render him otherwise indistinct from other potential deportees in terms of s 207(1).

30 At [9].

[16]The Tribunal identified:31

[T]he preliminary decision in this appeal, which found that the appellant is subject to the exception in Article 33(2) (given effect here by section 164(3) of the Act), meant that the appellant, as a refugee, could be deported without breaching New Zealand’s international obligations under the Convention (or being in violation of section 164(1)). The question whether the appellant, as a refugee, should be deported is a different issue and one that is required to be addressed here.

Observing “refugee status is expected to be recognised for as long as it is necessary to provide surrogate protection to a person in need of it”,32 the Tribunal explained “the reasons for recognition, if still existing, may well be relevant to the issue of injustice or undue harshness if deportation occurs”.33 But the Tribunal effectively concluded those reasons — being AO’s prospective evangelism in [Redacted]34 — had ceased to exist.35

[17]             As such, the Tribunal arguably bypassed the Refugee Convention’s cessation provisions,36 and thereby failed to have regard for AO’s continuing refugee status in New Zealand. As Ms Tothill submits, the question of refugee status’ materiality under s 207 has not previously arisen for this Court’s determination. Plainly the question has more general importance than for AO alone, and  public  importance  also  given New Zealand’s international commitments in terms of at least the Convention Relating to the Status of Refugees.37 And it meets the requirement for clarification of the law.

[18]             Given the question deserves substantive consideration, I hesitate to be any more expansive in explanation of my intended grant of leave to appeal. Although s 245 lacks a comparator to s 249(7)’s requirement to “state the issue or issues to be determined in the proceedings”, s 245(1)’s emphasis on “that question of law” (and  s 245(3)’s on “the question of law involved in the appeal”), the question clearly requires specific articulation.

31     AO [Redacted], above n 1, at [273].

32 At [274].

33 At [275].

34 At [276].

35 At [277].

36     Immigration Act, sch 1, art 1C.

37     Convention Relating to the Status of Refugees 189 UNTS 137 (opened for signature 28 July 1951, entered into force 22 April 1954), replicated at Immigration Act, sch 1.

Result

[19]             AO is granted leave to appeal on the question if the Tribunal erred in law by failing to have regard for AO’s continuing refugee status in New Zealand in determining his humanitarian appeal under s 207(1)(a).

[20]             AO’s applications for leave to appeal and bring review proceedings otherwise are dismissed.

—Jagose J