BETWEEN ROBERT ANTHONY BROMS Applicant AND MINISTER OF IMMIGRATION Respondent
[2023] NZHC 3874
•21 December 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2022-409-318
CIV-2022-409-321 [2023] NZHC 3874
BETWEEN ROBERT ANTHONY BROMS
Applicant
AND
MINISTER OF IMMIGRATION
Respondent
Hearing: 26 July 2023
Further submissions: 11 August, 1 & 7 September 2023
Appearances:
Applicant in person McKenzie friend
S Perera and Z McCoy for the Respondent
Judgment:
21 December 2023
JUDGMENT OF HARLAND J
Introduction
[1] This proceeding concerns applications by Mr Broms for leave to appeal and judicially review a decision of the Immigration and Protection Tribunal (Tribunal). He also seeks leave to adduce further evidence in support of these applications. All applications are opposed by the respondent.
[2] I have decided to grant the applications. This judgment outlines my reasons for doing so.
BROMS v MINISTER OF IMMIGRATION [2023] NZHC 3874 [21 December 2023]
The reason for the applications for leave
[3] On 8 July 2022, the Tribunal decided that Mr Broms’ appeal against his liability for deportation should be declined on the basis that there were no exceptional circumstances of a humanitarian nature preventing it.
[4] Mr Broms became liable for deportation because he had committed several driving-related offences and a drug-related offence within six years of being granted New Zealand residency. The exceptional circumstances he advanced were focused, in broad terms, upon his rehabilitative efforts, his desire to be close to his mother who lives in New Zealand and has been unwell, and his desire to maintain his current pro- social relationship with his fiancé and her children who he now considers to be part of his family.
[5] The hearing before the Tribunal took place remotely. Mr Broms was situated in a room at his workplace and connected to the link provided by the Tribunal via his laptop. He now says that the manner in which the hearing took place was unfair to him and, as a result, he was unable to present his best case to the Tribunal. He also raises other matters about the procedure associated with his appeal.
[6] Mr Broms has provided two affidavits to this Court in support of his leave application outlining the matters in detail which he says are relevant to his case and justify leave being granted to appeal the Tribunal’s decision and/or judicially review it.
[7] The Minister (the Crown) opposes the applications for leave to appeal and judicially review the Tribunal’s decision on the basis that the criteria, outlined in ss 245 and 249 of the Immigration Act 2009 (Act) containing the statutory criteria necessary for leave to be granted, cannot be met by Mr Broms. The Crown also opposes the application for leave to adduce further evidence and, while stating that no leave is required, nonetheless submits that the evidence is not admissible or consistent with the scheme of the Act, as it was available to be produced at the Tribunal hearing but Mr Broms failed to do so.
Background
[8] Mr Broms is an Australian citizen. He arrived in New Zealand in October 2016 at which time he became a New Zealand resident.
[9] Mr Broms’ childhood and background was set out in the Tribunal’s decision. This was not in dispute and is largely reproduced, although summarised, in this judgment.
[10] Mr Broms was born and raised in Sydney, Australia however his parents separated when he was a young child. He had little to do with his father after his parents separated. Mr Broms’ mother remarried, was widowed, then formed a relationship with her current partner. She moved to New Zealand approximately eight years ago with her new partner and they now live in Nelson. Both are New Zealand residents.
[11] Mr Broms has four siblings. He has little to do with his three sisters as a result of a falling out between them and their mother about eight years ago. He has a younger brother who is now in his mid-20s. He lives and works in Sydney.
[12] Mr Broms left school aged 14 and subsequently completed a building apprenticeship. He has since worked in building and construction-related roles in Sydney, Christchurch and Nelson.
[13] When Mr Broms was about 17 years of age, he entered into a relationship which produced two daughters. This relationship came to an end after about four years. He and his former partner are not on good terms. Mr Broms’ teenage daughters live with their mother in Sydney. He has not had much contact with them although they try to contact him from time to time on social media. Mr Broms said he welcomes contact with them but, when their mother finds out about it, the contact stops.
[14] Mr Broms then formed a relationship with another partner with whom he has a seven year old son. He is on good terms with his son’s mother and has contact with his son.
[15] During Mr Broms’ youth and in his 20s, his social life included heavy alcohol consumption and recreational drug use. In Australia, he committed driving-related offences, lost his licence and got into a cycle of repeatedly driving while unlicenced and while under the influence of alcohol. Before the Tribunal, he accepted that the antisocial aspects of his lifestyle took a toll on his family life.
[16] In late 2014, Mr Broms was involved in a serious accident when a driver ran through a stop sign and knocked him off his motorcycle. He received serious injuries to his lower body as well as a head injury and could not work for 15 months. Over this time, his partner, the mother of his son, supported him and became pregnant. During this period, Mr Broms’ mother returned to Australia to visit and was concerned about him. Both she and his then partner encouraged him to travel to Christchurch to join his mother. Shortly after the birth of his son, he did this.
[17] Mr Broms returned frequently to Australia over the next two years for brief periods to see his son. In New Zealand, he fell in with a group of friends similar to those he had disassociated with in Australia due to the bad influence they had on him. His problems with addiction returned and in March 2018 he was convicted for driving with excess breath alcohol, in respect of which he was fined and disqualified from driving for six months. Mr Broms did not comply with the order of disqualification because he says he needed to drive for work.
[18] During this period, Mr Broms began supplying methamphetamine to fund his own addiction. In October 2019, during a police search, methamphetamine and several shotgun shells were located at his address, although no evidence of a firearm was found. Mr Broms says the ammunition did not belong to him. He pleaded guilty to charges of possessing methamphetamine for supply, unlawfully possessing ammunition, driving while disqualified, possessing utensils used for drug offending and failing to stop for the Police. He was sentenced to nine months’ intensive supervision and 250 hours’ community work, as well as disqualified from holding or obtaining a driver’s licence for 16 months. Mr Broms completed the short intensive rehabilitation programme (SIRP) while completing his intensive supervision sentence. I infer, from the sentence Mr Broms received, the possession of methamphetamine for
supply involved a very small amount of methamphetamine otherwise, in accordance with Zhang v R, a sentence of imprisonment would have been imposed.1
[19] Mr Broms joined his mother and her partner in Nelson but had difficulty finding any work that would accommodate his inability to drive, so he returned to Christchurch after about a year. He worked at a factory for approximately one year. The business owner and a colleague have each provided letters of support for Mr Broms, speaking positively about his ability, work ethic and geniality as an employee.
[20] Mr Broms began a new job more directly related to his building skills approximately four months before the Tribunal hearing. His employer is aware of his convictions and driving disqualification and is happy to accommodate them.
[21] Mr Broms is currently in a relationship with someone he worked with at a previous job. At the time of the Tribunal’s decision, they had been together for about six months. They did not live together, but Mr Broms has fitted into the routines of her family, spending weekends with her at her children’s sports events. They have now been together for close to two years and are engaged. Both positively influence each other, with Mr Broms helping her to cope with difficult matters arising from her past relationship, and she has helped him with his decision to stop drinking. Mr Broms regularly stays in touch with his mother in Nelson.
The Tribunal’s decision
[22] Mr Broms became liable for deportation because of his convictions.2 A delegated decisionmaker for the Minister signed a deportation liability notice in respect of Mr Broms on 18 January 2022 and arranged for it to be served on him in February 2022. Mr Broms appealed that decision to the Tribunal.
1 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
2 Immigration Act 2009, s 161(1)(a)(iii).
Issues before the Tribunal
[23] Mr Broms claimed that his rehabilitation, his desire to be close to his mother and his desire to maintain his current relationship gave rise to exceptional circumstances of a humanitarian nature.
[24]The issues on appeal were whether the Tribunal could be satisfied that:3
(a) there were exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for Mr Broms to be deported; and
(b) it would not in all the circumstances be contrary to the public interest to allow Mr Broms to remain in New Zealand.
Findings
[25] The Tribunal considered each part of s 207(1) of the Act as interpreted by the Supreme Court in Ye v Minister of Immigration,4 namely, the following must each be considered in the order identified:
(a) there must be exceptional circumstances;
(b) of a humanitarian nature;
(c) that would make it unjust or unduly harsh for a person to be removed from New Zealand.
[26] The Tribunal was also obliged to have regard to international conventions relating to the interests of Mr Broms’ family, in particular that the family is entitled to protection as “the fundamental group unit of society”, exemplified by the right not to be subjected to arbitrary or unlawful interference.5 The Tribunal said that whether those rights would be breached by deporting Mr Broms depended upon an assessment of whether the deportation was reasonable.
3 Section 207(1).
4 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34]. The Supreme Court considered the interpretation of s 47(3) of the Immigration Act 1987, the predecessor to s 207(1).
5 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976), arts 17 and 23(1).
[27]The Tribunal accepted that the threshold of exceptionality is high, citing
Minister of Immigration v Jooste where Katz J held:6
Any appeal must fail at the first hurdle if there are no “exceptional circumstances” of a humanitarian nature. The significance of the initial threshold inquiry should not be minimised, however. Given the stringent nature of the “exceptionality” test, as articulated in Ye, the initial threshold is a high one. One would expect that only a minority of cases would progress to the “unjust or unduly harsh” stage of the inquiry.
[28] The Tribunal referred to Ye, noting that the humanitarian circumstances must be “well outside the normal run of circumstances” to be exceptional and, while the circumstances do not need to be unique or rare, they “do have to be truly an exception rather than the rule”.7
[29]The Tribunal then applied the test to Mr Broms’ circumstances.
[30] With regards to Mr Broms’ argument that he wished to remain close to his mother, who became unwell in 2021 and who he wanted to support should her health deteriorate again, the Tribunal considered that the two had lived independent of each other for many years. Mr Broms lived in Australia and, during that time, his mother moved to different countries and then, once Mr Broms had moved to New Zealand, relocated cities. Further, the Tribunal considered that Mr Broms’ mother has a supportive partner and would be able to visit Mr Broms in Australia. As well, the Tribunal noted that Mr Broms’ three children live in Australia, where he lived for the first 28 years of his life. The Tribunal described Australia as where Mr Broms’ “primary nexus lies”. To allow for the possibility that his mother’s health would decline, at the end of its decision deciding to decline the appeal, the Tribunal made an order under s 215(1) of the Act to remove the period of prohibition on Mr Broms’ entry to New Zealand that would otherwise apply upon his deportation pursuant to s 179.
[31]The Tribunal went on to consider the following factors:
6 Minister of Immigration v Jooste [2014] NZHC 2882 at [53].
7 Ye, above n 4, at [34].
(a) Mr Broms’ job, the fact his employer is understanding of his past and inability to drive, and that his employment prospects would broaden once he recovers his driver’s licence;
(b) the uncertainty of work and accommodation if Mr Broms returns to Australia;
(c) Mr Broms’ relationship with his fiancé who has been a positive influence (and he towards her) and that he is part of her family with her young children; and
(d) Mr Broms’ rehabilitation, including avoiding any further offending, which the Tribunal attributed to the stability he now has due in part to his relationship with his fiancé.
[32] The Tribunal found, in respect of Mr Broms’ employment and accommodation, that he has faced similar uncertainty numerous times in the past and has managed, noting in particular that his 15 years of building experience means he has never had difficulty finding work. The Tribunal considered this would be the case again if Mr Broms was to return to Australia.
[33] In respect of Mr Broms’ relationship, the Tribunal considered that, as it was in its early stages, it would be premature to predict whether it would endure, noting that letters had been provided from Mr Broms’ two previous partners, one from July 2020 and another from November 2021. The Tribunal considered there was no evidence his fiancé would want or be prepared to relocate to Australia if Mr Broms was deported and found their separation would not have a significant impact on her or her children, having regard to the short duration of the relationship and that no evidence had been provided or suggestion made that indicated it would.
[34] The Tribunal acknowledged that his fiancé had played a significant part in Mr Broms’ rehabilitative efforts, however, it considered that his rehabilitation challenges would be the same whether he resides in New Zealand or Australia. The Tribunal referred to Mr Broms’ attitude of accountability, his understanding of the steps required to avoid further offending, his work ethic and his ability to make friends. The
Tribunal concluded these traits would enable Mr Broms to support himself and develop social networks wherever he resides.
[35] The Tribunal did not consider there were any circumstances present beyond those inherent in a deportation case. It considered that Mr Broms would be “more than able to cope” with the challenges he would face upon deportation and his return to Australia would introduce the opportunity to rekindle and strengthen his relationship with his three children.
[36] The Tribunal concluded there were no exceptional circumstances of a humanitarian nature and dismissed the appeal, leaving Mr Broms liable to be deported under the notice dated 18 January 2022.
The arguments
Mr Broms
[37] Mr Broms is self-represented. His fiancé appeared in support as his McKenzie friend. He referred to the effect his deportation would have on his family and what he considered to be the poor management of his appeal before the Tribunal, both before and during the hearing. He submitted both these matters are relevant to his applications for leave.
[38]I summarise Mr Broms’ submissions as follows:
(a) He received little “direction, advice or assistance” from his case manager at the Tribunal. Mr Broms described communications he had with the case manager as contradictory, discriminatory and at times confrontational.
(b) As a result, he did not understand the process and “completely shut down” at his hearing before the Tribunal. He was not permitted leave from work for the hearing and was without a support person, because he understood the latter was not permitted. On this point, Mr Broms submitted his head injury causes him difficulty in processing and understanding information, particularly information given during phone calls. He said he was not provided any assistance with this and did not receive a transcript of phone
calls he had with the case manager, which he considers are relevant, despite requesting them. Further, the COVID-19 restrictions at the time of the hearing meant it could not occur in person and this was to his detriment. Mr Broms submitted having his fiancé with him at an in-person hearing would have significantly altered how the hearing proceeded and he would have presented all relevant material to the Tribunal with her help before the hearing had he known this was possible.
(c) The significant delay between his sentencing and the deportation notice, and the fact that this delay has led to him turning his life around, means to deport him now would be unjust.
(d) Incorrect statements were made in the Tribunal’s finding which he challenges.
(e) Mr Broms’ family would not be able to cope with his deportation, raising humanitarian concerns. Mr Broms outlined the difficulties involved in moving his new family to Australia and leaving his unwell mother in Nelson.
(f) Mr Broms referred to his clean criminal record over the past three years, and “his consistent and constant employment with great references”, submitting his building skills are in demand in New Zealand.
(g) Mr Broms is concerned his mental health difficulties, specifically PTSD, will re-emerge if he returns to Australia.
[39] Mr Broms disputed the Tribunal’s conclusion that he will “have no real difficulty returning to Australia”, pointing to his lack of family connections there and the possible PTSD he may suffer if he is deported. In response to the statement that he would have the ability to rekindle and strengthen relationships with his three biological children as they grow older and more independent, Mr Broms refers to his current family situation and the rehabilitative features associated with it, which is the reason more recent contact with his biological children has been possible.
[40] Mr Broms cited s 207 of the New Zealand Immigration Act, s 64 of the Human Rights Act 1993 (indirect discrimination), art 3(1) of the Convention of the Rights of the Child 1989, arts 17, 23 and 24 of the International Convention on Civil and Political Rights (ICCPR) and the rule of law to support his applications.
[41]In summary, he contends:
(a) the immigration process, particularly the Tribunal hearing, was not just; and
(b) deportation will result in severe consequences for him and his current family, his biological children and his mother, and the effects on his mental health and overall life will be equally severe.
The Crown
[42] The Crown opposes the applications for leave to appeal and submits the grounds under ss 245 and 249 are not met because:
(a) There is no seriously arguable error of law or ground of review. It was Mr Broms’ responsibility to establish his case by ensuring all information and evidence was before the Tribunal. It is not seriously arguable that the Tribunal committed an error of process or breach of natural justice that prevented Mr Broms from presenting his case. The alleged errors are, in reality, impermissible challenges to the merits and the weight given to evidence.
(b) The alleged errors do not justify leave to appeal or bring judicial review proceedings. The alleged errors are case-specific and do not raise issues of general or public importance, nor does the case warrant leave for any other reason.
[43] In terms of the Crown’s submission that there was no seriously arguable error of law or ground of review, the Crown submits that there was no error in the processes adopted by the Tribunal which predetermined the outcome or prevented Mr Broms from presenting his case so as to breach natural justice. Further, it was submitted that
Mr Broms has not substantiated the claim that the Tribunal’s case manager discriminated against him beyond barely asserting that to be the case.
[44] Ms Hill, a solicitor employed by the Ministry of Business, Innovation and Employment (MBIE) who also represents the Minister of Immigration, provided an affidavit in support of the Crown’s position. Ms Hill’s affidavit canvasses that, during the telephone conference, the Tribunal raised with Mr Broms the question of who he would bring as a witness, advised him that he was entitled to bring people to the hearing, noted counsel may help him prepare a written statement, and observed it would be helpful for him to include a statement from his mother. Ms Hill deposes that Mr Broms was also advised that the Tribunal was operating under the COVID-19 protocol which might mean the hearing would be held via AVL. There was a teleconference held before the hearing where it was recorded that Mr Broms would be the only witness in person and the hearing was expected to take place remotely. The record of the teleconference outlines that Mr Broms would join from his private address in Christchurch. It then outlined that he was directed to file any written statement, witness statements from every person he wished to be called as a witness and any additional documentary evidence. Ms Hill annexed to her affidavit her written notes from the teleconference and the typed version of her notes, both of which confirm what she deposes.
[45] Counsel also points out that Mr Broms was sent a Practice Note that provides guidance to individuals appearing in person before the Tribunal, which, among other things, explains the grounds for allowing a humanitarian appeal. It also outlines that an appellant may represent themselves or obtain representation, that the Tribunal will endeavour to accommodate special needs, that it is an appellant’s responsibility to establish their case, and that any statement by an appellant should provide full details of all immediate family members and describe any relevant health issues both relating to an appellant or immediate family members.
[46] Counsel referred to the hearing itself, where the Tribunal member enquired if he had received all the documents Mr Broms wanted him to consider, asked him questions, explained the test under s 207 and prompted him to offer any information he considered relevant to the test. As well, counsel highlighted that at the end of the
hearing the Tribunal member informed Mr Broms that he could send any further information he considered relevant to the Tribunal at any point before the Tribunal made its decision.
[47] Counsel highlighted that it was Mr Broms’ responsibility to establish his case,8 and reminded the Court that, while the Tribunal may seek information from any source, it is not under any obligation to do so.9
[48] Counsel also submitted that it was open to the Tribunal to hold the hearing remotely as it has a wide discretion under the Act to regulate its own procedure,10 and there is nothing in the Act that prevents the Tribunal from doing so. The Tribunal’s COVID-19 protocol stated that an appellant was responsible for ensuring that they had a private room available for the hearing, as well as equipment and data to access the hearing.
[49] Counsel submitted the Tribunal took all reasonable steps to ensure Mr Broms could attend the online hearing with adequate facilities, including raising with him whether he could attend the hearing remotely from a private environment with the necessary technology. When the Tribunal member at the hearing learned that Mr Broms was at work, the member enquired whether Mr Broms was in a private location. Mr Broms replied that he was in a room that was locked and his boss knew he had the room for the day. Counsel therefore submitted that the Tribunal took all reasonable steps to ensure Mr Broms could attend the hearing remotely from a private location with adequate facilities even though the onus was on Mr Broms to ensure that was the case.
[50] The Crown does not accept that the Tribunal breached natural justice by failing to provide assistance for Mr Broms as someone who has sustained a significant head injury because Mr Broms did not and has not provided medical evidence of the claimed head injury or its effect on his ability to understand verbal instructions or to communicate. Counsel referred to Practice Note 1/2019 (Deportation Resident) and
8 Immigration Act, above n 2, s 226.
9 Immigration Act, above n 2, s 228.
10 Minister of Immigration v Wu [2019] NZCA 237, [2019] NZAR 1217 at [40].
the endeavours made by the Tribunal to accommodate special needs provided that an applicant gives advance notice of the need for this. Counsel submitted there is no evidence to suggest that the Tribunal should have recognised that Mr Broms was struggling because of a head injury.
[51] The remaining arguments put forward by the Crown address the legal tests that apply, which I consider in my subsequent analysis.
Should the applicant’s affidavits be admitted?
[52] Mr Broms seeks to adduce new evidence in the form of an affidavit sworn by Dr Karla Mattson, a clinical psychologist, and two affidavits sworn by himself.
[53] Because an application for leave is an interlocutory application, affidavits in support can be filed.11 However, Wylie J in NM (Fiji) v Minister of Immigration held that the affidavits must be confined to matters relevant to the grant of leave and cannot be produced on a substantive issue.12
[54] In CD v Immigration and Protection Tribunal it was held that new evidence can be rejected or accepted on applications under ss 245 and 249 where the Court considers the interests of justice are best served by it.13 In that case, the Court of Appeal held that, “the Court will consider whether the evidence would be admissible on judicial review, should the application be granted, and whether its admission is consistent with the scheme of the immigration legislation”.14 The question is whether the evidence is credible, fresh and cogent.15
Psychologist report
[55] Dr Mattson has sworn an affidavit with a psychological assessment and report for Mr Broms annexed. Dr Mattson first canvassed Mr Broms’ background in Australia, including his parenting, education, and engagement in antisocial activity
11 High Court Rules 2016, r 20.3.
12 NM (Fiji) v Minister of Immigration [2020] NZHC 2077 at [3].
13 CD v Immigration and Protection Tribunal [2015] NZCA 379, [2015] NZAR 1494 at [24].
14 At [24].
15 Li v Chief Executive of Ministry of Business, Innovation and Employment [2018] NZHC 1309 at [18]; and Hai v Minister of Immigration [2019] NZCA 55 at [24].
during his adolescence and early adulthood. His lifestyle at times comprised of working long hours, drinking to excess and taking a variety of drugs. This lifestyle continued following his move to New Zealand where he accrued several convictions before entering a pro-social relationship which helped him limit his alcohol consumption and comply with licensing restrictions. He also engaged with rehabilitation to develop insight into his problematic patterns of behaviour.
[56]In the report, Dr Mattson opined that:
(a) Mr Broms meets the criteria for alcohol use disorder (severe and in early remissions) and stimulant use disorder (amphetamine-type substance, severe and in sustained remission), in line with the Diagnostic and Statistical Manual of Mental Disorders — Fifth Edition (DSM-V);
(b) Mr Broms also endorsed symptoms consistent with Major Depressive Disorder, which she considered had been experienced historically during periods of stress and heavy substance abuse; and
(c) Mr Broms’ cognitive resources and ability to comprehensively present his case were likely compromised due to:
(i)negative interactions with his case manager, described by Mr Broms to Dr Mattson as negative, disrespectful and unhelpful, and which resulted in uncertainty regarding what information would be helpful to present to the Tribunal;
(ii)Mr Broms’ high level of anxiety, in addition to the pre-existing anxiety relating to his potential deportation;
(iii)the physical environment Mr Broms was in during the hearing (a common area at work with colleagues close by engaging in day-to- day workplace behaviour) not being conducive to a private meeting; and
(iv)that because of that physical environment, Mr Broms felt pressured to finish the meeting, did not feel safe to disclose private information and could not pay complete attention.
[57] Dr Mattson also noted that the lack of information provided to Mr Broms meant he was not aware that engaging legal representation was advisable, and he regrets not getting a lawyer. His fiancé, who is his primary support person, was also not present due to their uncertainty about the protocol for such.
[58] In relation to the matters in (c), although the report outlines the arguments Mr Broms has already made in his submissions, Dr Mattson provides an expert opinion about how these matters may have impacted upon Mr Broms’ ability to present his case due to his mental health and cognitive issues.
[59] The expert opinion provided by Dr Mattson is fresh evidence. Although the Crown submitted that Dr Mattson did not identify any causal connection between the disorders identified and the difficulties Mr Broms is said to have experienced leading up to or during the Tribunal hearing, there is, in my view, a sufficient evidential basis for this to be inferred. The causal connection and a further elaboration of Mr Broms’ cognitive difficulties would need to be elaborated upon in any appeal/judicial review proceedings but, for the purposes of the leave applications, in my view, what has been provided is sufficient.
[60]I take this evidence into account in my assessment.
Mr Broms’ affidavits
[61] Mr Broms has provided two affidavits. Attached to his affidavit dated 16 June 2023 are 27 grouped documents, categorised into issues relating to the Tribunal hearing, letters in support of Mr Broms and his family, character references, employment references and some miscellaneous documents. Attached to the affidavit dated 30 June 2023 are two documents, comprising details of his fiancé’s son’s medical issues and a letter from Ms Tumahai.
[62]I agree that the following documents identified by counsel for the Crown are:
(a) the passages in the document by Mr Broms outlining the errors of fact in the Tribunal’s decision (those passages concerning Mr Broms’ lack of
opportunity to speak in the hearing and the Tribunal’s claim that it was unclear whether his fiancé would move to Australia);
(b) the evidence from Mr Broms explaining why the Tribunal hearing did not go well, including a call with his case manager in the lead up to the hearing and his boss’ refusal to allow him to have the day of the hearing off work; and
(c) the portion of the memorandum to Judge Paulsen up to the heading “Fighting the Findings from the Hearing” which describes the case manager’s conduct and other issues with the lead up to the Tribunal hearing.
[63] Counsel for the respondent divided the remaining documents annexed to the affidavit dated 16 June 2023 into two categories. Category A consisted of the following documents dated shortly after the Tribunal’s decision:
(a) a reference letter from Mr Broms’ employer;
(b) letters from two of his fiancé’s children; and
(c) character references from family and friends of Mr Broms and his fiancé that Mr Broms states would have been provided at the hearing had he received better information and advice.
[64] The documents in category B consist of evidence of events that transpired after the Tribunal’s decision, including:
(a) a personal statement by Mr Broms;
(b) errors identified by Mr Broms in the Tribunal’s report;
(c) a character reference from his fiancé’s sister; and
(d) a summary of Mr Broms and his fiancé’s relationship.
[65] The late admission of this evidence would mean the Tribunal was not afforded the opportunity to consider it nor test its credibility.
[66] The two documents attached to Mr Broms’ affidavit dated 30 June 2023 concern a letter from Mr Broms about the health of one of his fiancé’s children, and a letter from Ms Tumahai. Mr Broms deposes that his fiance’s young son was diagnosed with a neck and vocal tic on 22 June 2023, a condition aggravated by stress and if not resolved could convert to permanent Tourette syndrome. Mr Broms expresses concern that, although the child is unaware of the deportation risk Mr Broms faces, if he is deported the child’s condition would worsen. If Mr Broms is deported, a possible outcome would be his fiancé and her children, or some of her children, would also move to Australia.
[67] The affidavit from Mr Broms with information concerning the health of his fiancé’s son was not available at the time of the hearing, because the child’s symptoms appeared and were diagnosed after the fact. The evidence is fresh and is directly relevant to the substance of the proceedings, as the impact on Mr Broms’ family is a factor that must be considered as part of the factual matrix in assessing whether there are exceptional circumstances of a humanitarian nature.
Legal tests for leave
[68]The relevant leave provisions are ss 245 and 249 of the Act.
[69]Section 245 governs leave to appeal. This section relevantly provides:
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.
[70] Applications for leave to bring judicial review proceedings are governed by s 249 of the Act. This section relevantly 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.
(2) No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.
(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
(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.
(8) Nothing in this section limits any other provision of this Act that affects or restricts the ability to bring review proceedings.
(emphasis added)
[71]The legal test for leave is well settled. The Court must consider:16
(a) whether there is a question of law to be determined;
(b) whether the question of law is seriously arguable; and
16 P v Minister of Immigration [2022] NZCA 188 at [16]; and Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162], [2016] 3 NZLR 721 at [8].
(c) whether the question of law is of sufficient importance to be submitted to the High Court either:
(i)by reason of its general or public importance; or
(ii)for any other reason.
[72] The requirement for leave indicates a deliberate intention by Parliament to limit appeals and reviews of the Tribunal’s decisions.17 The function of the leave requirement is to clarify the law and determine whether it has been properly construed and applied by the Court below, and “if there is little or no prospect of success then the issues are of limited general or public importance” and militate against leave.18
[73] Leave is available in respect of questions of law only. Therefore, factual findings may only be challenged where are they are of such magnitude that they constitute an error of law. The “triple hurdle” an applicant must overcome is:19
(a) the requirement to show a seriously arguable case that the factual findings of the Tribunal were incorrect;
(b) that the factual errors were so grave as to constitute errors of law; and
(c) that the question of law is one of genuine public importance.
Should the applicant be granted leave?
[74] The themes arising from Mr Broms’ submissions are that the Tribunal’s process was unfair and did not comply with the requirements of natural justice, the Tribunal made errors of fact that it relied upon in making its decision to decline his appeal, and the Tribunal was wrong to find his deportation would not raise concerns of a sufficiently humanitarian nature.
17 Singh (Shivdev) v Chief Executive of the Ministry of Business, Innovation and Employment [2018] NZHC 972, [2018] NZAR 1120 at [26]; Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [6]; SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [5]; and Guo v Immigration and Protection Tribunal [2014] NZHC 802 at [52].
18 Singh (Shivdev), above n 17, at [26]-[27],
19 Taafi v Minister of Immigration [2013] NZAR 1037 at [19].
Application for leave to appeal
Was Mr Broms’ right to natural justice breached?
[75] A transcript of the Tribunal hearing has been provided to the Court. It records the Tribunal ensuring that Mr Broms was attending the VMR hearing in a private place, and asking repeatedly that he had provided all relevant information to the Tribunal and whether he had any questions or needed something further explained. The concern is not so much with the hearing itself, but the period leading up to the hearing which resulted in Mr Broms being unprepared on the day and misunderstanding what was required and what materials to present.
[76]The issues prior to the hearing are as follows:
(a) Communications with his case manager: Mr Broms says he was provided “little direction, advice or assistance” from his case manager and the information provided was contradictory, discriminatory, and confrontational. In one phone call, Mr Broms says he was told the case manager had no advice to give regarding the hearing and that he “had nothing to worry about”. As a result, Mr Broms submits he entered the Tribunal hearing unprepared. Further, Mr Broms says he did not receive letters from the Tribunal dated the 28 February 2022 and 25 March 2022 at his postal address, nor was he told the letters were being sent. These letters may have addressed matters that could have helped him more effectively present his case.
(b) Online hearing: the Tribunal hearing was held via VMR. As acknowledged by the Crown, this option was open to the Tribunal at the time due to COVID-19 restrictions. However, there are some disadvantages associated with VMR hearings when compared to an in- person hearing. As such, I consider that extra care must be taken to ensure all information is communicated clearly to the interested party so that person has the opportunity to raise all points relevant to their situation. In this case, for example, despite the teleconference prior to the hearing recording that Mr Broms would join the hearing from his private address,
there were no concerns raised that, in fact, he joined on the day from his workplace.
(c) Not permitted leave from work: Mr Broms attended the hearing via VMR from his workplace. This factor is linked to the case manager’s communications with Mr Broms, where it is submitted the gravity of the situation was downplayed and as such, his employer believed the hearing to be simply a procedural matter that Mr Broms could attend to at the worksite before returning to work straightaway afterwards. As a result, Mr Broms did not attend the hearing at his private address with his fiancé present as a support person. Rather, he was in an office at work, with other staff going about their day-to-day business around him. Further, because of the pressure he felt from his employer, Mr Broms said he felt he had to finish the hearing quickly. In this case, I consider the fact the hearing took place while he was at his workplace via VMR was to his detriment.
(d) Effects of Mr Broms’ head injury: the concerns raised above were likely exacerbated in Mr Broms’ case due to his head injury. Although self- reported, I accept that his injury means Mr Broms has difficulty processing and understanding information, particularly in stressful situations. He requested transcripts of phone calls he had where information related to the hearing was communicated to him, but these were not provided. He did not receive a copy of the telephone conference transcript before the Tribunal hearing which he said would have been “extremely helpful”. Further, other documents, such as the Practice Note 1/2019 and Covid Protocol 2021 were not brought to Mr Broms’ attention before the hearing and he found they were not discoverable via his own internet searches.
(e) No support person: His fiancé played a key role in supporting Mr Broms’ case, appearing as a McKenzie friend on his behalf at the hearing before this Court. Mr Broms relied heavily on his fiancé for assistance during the hearing. I observed he had difficulty expressing himself without her quiet support, which I record was entirely appropriate and in accordance with what is expected of a McKenzie friend. Mr Broms said his fiancé became involved prior to the Tribunal hearing, in part because of the difficulties
Mr Broms was experiencing understanding the discussions he had over the phone with his case manager. His fiancé was not present at the Tribunal hearing because the information relayed to Mr Broms led him to believe he had to appear unaccompanied. The teleconference transcript stated that, “Mr Broms will be the only witness in person”. He took this as read and attended the hearing alone.
[77] These factors on their own would not amount to any seriously arguable error of law or ground for review. However, it is the accumulation of these factors which raises a substantial concern. I agree with Mr Broms’ assessment that he was at a disadvantage because of these matters. The conflicting information Mr Broms says he received and the lack of clarification is all self-reported. However, the Crown has not specifically challenged this. As well, there is no basis for a finding that Mr Broms is in any way being disingenuous.
[78] The right to natural justice exists in and of itself.20 In considering whether there has been a potential breach of this right, blame does not need to be appointed to another party. Here, it is not one act or omission that has resulted in a question of unfairness arising. It is the accumulation of miscommunications and Mr Broms’ particular circumstances that, in this case, may mean Mr Broms’ right to natural justice was not given effect to.
[79] Decisions of the Tribunal are life-changing. It follows that it is important that proper procedure is followed. In my view, this means that the interested party is fully informed and has full opportunity to present his or her case. The importance of this cannot be overstated. While the Tribunal did not err during the hearing itself, the process leading up to the hearing essentially put Mr Broms on the back foot and, as a result, his ability to present his case was compromised. In such circumstances and with the evidence before the Court, by a fine margin, I find there are procedural issues that are concerning enough to warrant further examination by this Court.
[80] However, that is not the end of the matter. The issues raised on appeal or review must either be of general or public importance, or “any other reason” to justify
20 New Zealand Bill of Rights Act 1990, s 27.
proceeding further.21 To be of general or public importance, the issues need to go beyond the applicant’s particular circumstances or raise an issue that suggests the existing law should be revisited.22 As to “any other reason”, this has been interpreted to mean that where individual injustice is to such an extent that the Court could not countenance a decision standing, or it is a marginal case where NZBORA considerations could tip the balance in the applicant’s favour, leave to appeal may be granted.23
[81] I find that there are matters of general importance present. Ensuring that a fair and informed process is followed leading up to a hearing is of considerable importance, bearing in mind what is at stake and the need for the public to have confidence in the system. For this reason, but again by a narrow margin, I conclude that the matters raised by Mr Broms have wider significance.
Was the Tribunal correct to find there were not exceptional circumstances of a
humanitarian nature?
[82] Mr Broms submits that the Tribunal was incorrect in its findings that he would not experience difficulty in finding work or establishing a social network in Australia, that he would be able to rekindle his relationship with his three children in Australia, and that the Tribunal failed to consider that deportation would result in PTSD.
[83] The factual errors the Tribunal made were not to the extent that they would materially affect the outcome. The key issues are Mr Broms’ mother’s health, his separation from his fiancé and her children, and his difficulties finding work and a social network in Australia. The mental health concerns that Mr Broms raises, namely, that he fears his PTSD will be exacerbated if he is deported back to Australia, is one aspect of the factual matrix. It may add to the factual material already before the Tribunal to the extent that it would reach the high threshold required to establish exceptional circumstances of a humanitarian nature.
21 Immigration Act, above n 2, s 245(3).
22 JW v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC 3489 at [13].
23 Machida v Chief Executive of Immigration New Zealand, above n 16, at [8].
Application for leave to bring judicial review
[84] In determining whether to grant leave for review proceedings, this Court must have regard to whether the claims could be advanced by way of appeal.24 Section 249(6) suggests that leave to bring judicial review should not be granted in situations where the issues can be dealt with on appeal, unless there are reasons of general or public importance or any other reason that requires otherwise.
[85] It has been observed that there will be few instances where a matter could be raised on a review proceeding but not on appeal.25 In CV v Immigration and Protection Tribunal, Duffy J stated:26
… the nature of the issues that can be raised in an appeal under s 245 are going to be much the same as those that can be raised in judicial review proceedings. It is hard to envisage an argument that would not qualify as a ground of appeal under s 245 but still qualify as a ground of review under s 249.
(footnotes omitted)
[86] Duffy J found this to be so particularly since the introduction of the leave requirement in s 249(6)(b) is the same as the restriction on leave being granted by s 245(3).
[87] Section 249(6) does not preclude leave being granted for review where the issues raised could also be dealt with on appeal. Although there is significant overlap in the grounds that can be raised on appeal and on review, where there are reasons of general or public importance or “any other reason” present, leave for review may be granted. I find Mr Broms’ case falls into the former category. It is not only that justice and fairness must be seen to be done by the public, but that it is actually done, such is the gravity of the consequences of Tribunal decisions. Access to review is restricted and the preference is to exhaust appeal rights before turning to review. However, Mr Broms’ case raises issues that are centred on procedure as well. In my view, the matters he raises justify granting leave to review.
24 Immigration Act, above n 2, s 249(6)(a).
25 CV v Immigration and Protection Tribunal [2015] NZHC 510, [2015] NZAR 594 at [38].
26 At [38].
Result
[88] I grant Mr Broms’ applications for leave to appeal and review the Tribunal’s decision.
Harland J
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