BP (Samoa) v Minister of Immigration
[2021] NZHC 376
•4 March 2021
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES) OR IDENTIFYING PARTICULARS OF APPLICANT. IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2020-409-000114
[2021] NZHC 376
BETWEEN BP (SAMOA)
Applicant
AND
MINISTER OF IMMIGRATION
Respondent
CIV-2020-409-000115 BETWEEN
BP (SAMOA)
ApplicantAND
IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
AND
MINISTER OF IMMIGRATION
Second Respondent
Hearing: 2 February 2021 Appearances:
R R Ward for the Applicant
A B Goosen and E G R Dowse for the Respondent and Second Respondent
Judgment:
4 March 2021
JUDGMENT OF NATION J
[1] The applicant seeks leave to appeal a decision made by the Immigration and Protection Tribunal (the Tribunal) to dismiss his appeal against deportation on
BP (SAMOA) v MINISTER OF IMMIGRATION [2021] NZHC 376 [4 March 2021]
humanitarian grounds. The application is made under s 245 of the Immigration Act 2009.
[2] Additionally and alternatively, he seeks leave to bring judicial review proceedings of the Tribunal’s decision under s 249 of the Immigration Act.
Background
[3] The applicant was born in Samoa. His parents separated when he was around 10 years old. His father moved to live in New Zealand. The applicant first travelled to New Zealand to visit his father in November 2015. He was granted a resident visa under the Family (Dependent Child) category on 29 April 2016. He was then aged 20.
[4] On 17 December 2017, the applicant was involved in an argument with his then partner. He threatened her with a hiding. When the partner tried to stop him closing the door and locking her out of the house, he used one hand to grab her around her throat. After the partner’s friends intervened and encouraged him to leave, he punched the wall of a nearby garage, causing severe damage to it. The partner and her friends left the address because the applicant remained there.
[5] The applicant subsequently enticed the partner to return to the house. She and her friends returned, attempting to persuade the applicant to leave. The applicant turned on one of the friends who was accompanying the partner. He punched him in the mouth and again in the face as this victim stumbled. The victim fell to the ground, striking his head on concrete and becoming unconscious. The applicant then punched him in the face using both hands alternatively, repeatedly striking him while he lay unconscious and unresponsive. After resisting people who tried to intervene, he began kicking the victim on the top of the head while wearing shoes. The victim was injured and hospitalised for several days suffering a broken jaw and a gash to his head.
[6] The applicant pleaded guilty and was convicted of wounding with intent to cause grievous bodily harm, assault of a female, speaking threateningly and wilful damage. On […], the applicant was sentenced to four years and two months’ imprisonment.
[7] On 26 September 2019, the applicant was served with a deportation liability notice as a result of offences committed within two years of being granted his resident visa, in terms of s 161 of the Immigration Act.
[8] On 29 October 2019, the applicant appealed against the deportation notice. There was a hearing before the Tribunal on 16 January 2020. The applicant was represented in the proceedings by his father. On 23 January 2020, the Tribunal released its decision dismissing his appeal.1
The Tribunal decision
Grounds for their determination
[9] The Tribunal noted the grounds for determining humanitarian appeals against deportation are set out in s 207 of the Immigration Act:
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.
[10] With reference to the Judgment of the majority of the Supreme Court in Ye v Minister of Immigration, three ingredients had to be established:2
(a) exceptional circumstances;
(b) of a humanitarian nature; and
(c) that would make it unjust or unduly harsh for the person to be removed from New Zealand.
1 [BP (Samoa)] v Minister of Immigration […].
2 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].
[11] The Tribunal said, because family interests were at issue on the appeal, regard had to be had to the entitlement of the family to protection as the fundamental group unit of society, as acknowledged by the right not to be subject to arbitrary or unlawful interference with one’s family.3 Accordingly, the Tribunal’s consideration of whether such rights would be breached depended on whether deportation was reasonable (proportionate and necessary in the circumstances).4
[12] As to whether the circumstances were exceptional, the Tribunal referred to the Supreme Court’s statement in Ye that the circumstances “must be well outside the normal run of circumstances” and, while they do not need to be unique or rare, they must be “truly an exception rather than the rule”.5
[13] The Tribunal acknowledged the applicant left Samoa to financially assist his family, in particular his mother. The Tribunal acknowledged the applicant wished to remain in New Zealand to recommence full-time employment and, if employed in New Zealand, would earn a level of income greater than he would be able to obtain in Samoa. The Tribunal noted that economic betterment is very rarely, by itself, a compelling humanitarian circumstance.6 The Tribunal noted, in addition to any wages he might earn in Samoa, the applicant would be able to live at his mother’s home in Samoa. He had not demonstrated he would be unable to obtain an adequate standard of living.
[14] As to the potential impact on the family, the Tribunal noted the applicant has family currently living in New Zealand, one family member living in Australia and other family members significant to him in Samoa. He has a home to live in and people to live with in Samoa, as he did before coming to New Zealand some four years previous. He would be returning to a country in which he spent the first 20 of his 24 years and where he would be familiar with Samoan culture and language. Aside from
3 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).
4 With reference to Toonen v Australia (Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992, 4 April 1994); and Madafferi v Australia (Communication No 1011/2001, UN Doc CCPR/C/81/D/1011/2001, 26 August 2004) at [9.8].
5 Ye v Minister of Immigration, above n 2, at [34].
6 With reference to Ronberg v Chief Executive of Department of Labour [1995] NZAR 509 (HC) at 529-530.
the disappointment and shame, he would not have difficulty readjusting to the way of life there.
[15] The Tribunal nevertheless accepted the applicant feels extreme shame and embarrassment because of his offending and, if returned to Samoa, would be unable to fulfil obligations which he, his parents, his extended family and his community expect of him. The Tribunal noted however that the applicant already feels a deep sense of shame but said, despite his extreme discomfort about returning to Samoa, he would have the opportunity to show he is a good person notwithstanding his offending. The Tribunal said that, despite Samoan social and religious mores and prejudices, the inherent ability of humans to recognise a person trying to better themselves means Samoan society is capable of recognising his genuine efforts to improve.
[16] The Tribunal accepted the applicant’s deportation would cause his father, stepmother and their children, who are New Zealand citizens living in New Zealand, sadness and potential shame. The Tribunal noted that, while the father would prefer the applicant to live in New Zealand and make contributions to the father’s household, the father and stepmother had been managing to sustain themselves and their children. It was not unreasonable for the father to continue with part-time work as he had been doing. The Tribunal noted the shame the applicant would feel for failing to provide for his parents, particularly his mother, but said she had been able to manage with the assistance of her other children while he had been in prison and there was no evidence that her other children would let her suffer. The Tribunal also said the applicant would be able to help his mother in physical and practical ways if living in Samoa, even if unemployed.
[17] The Tribunal accepted the applicant’s mother might well be stigmatised for his status as a deportee but envisaged that she would be prepared to make the best of the situation if her son had to return to Samoa.
[18] The Tribunal accepted there would be issues of financial deprivation associated with the prospect of the applicant’s unemployment or lowly paid employment and a real prospect of long-term shame attaching to him and his family. The Tribunal recognised these were very real adverse consequences for him and his family in Samoa
but was not satisfied that these circumstances were exceptional circumstances of a humanitarian nature.
Tribunal’s consideration of whether deportation would be unjust or unduly harsh
[19] Although noting the applicant had not satisfied the initial threshold for an appeal (exceptional circumstances of a humanitarian nature), the Tribunal went on to assess whether the circumstances the applicant would face would make it unjust or unduly harsh for him to be deported. This consideration was made “in light of the reasons why the [applicant] is liable for deportation and involves a balancing of those considerations against the consequences for the [applicant] of deportation”.7
[20] The Tribunal agreed the applicant’s offending involved “extreme and disproportionate violence”.8 They referred to the humanitarian circumstances they had found would result from his deportation. However, weighing the “one off” but dangerously violent offending against the humanitarian circumstances the applicant would have to endure, the Tribunal was satisfied it would not be unjust or unduly harsh for the applicant to be deported from New Zealand.9
Tribunal’s consideration of the public interest limb
[21] The Tribunal then discussed the third public interest limb of the test. In that regard, they noted the offending appeared to have been “one off” in nature involving the applicant’s girlfriend and his abuse of alcohol.10 He had no other convictions in Samoa or New Zealand.
[22] They also said, had he been able to establish the initial thresholds, credit would have to be given to him in the assessment of public interest for the various efforts he had made to improve his life, the insight he gained in relation to his abuse of alcohol and the use of violence, and his participation in various programmes while in prison.
7 Referring to the Supreme Court’s statement as to the assessment to be made in Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [9].
8 [BP (Samoa)] v Minister of Immigration, above n 1, at [69].
9 At [71].
10 At [73].
[23] The Tribunal noted that, had his potential recidivism been at issue, the protective factors of his motivation to never reoffend, the absence of various factors that drive reoffending in New Zealand and his steps towards rehabilitate would have been positive factors in that assessment.
Tribunal’s conclusion
[24] The Tribunal thus determined the applicant had not established exceptional circumstances of a humanitarian nature which would make it unjust or unduly harsh for him to be deported from New Zealand. They declined his appeal.
The case for the applicant
[25] The application for leave to appeal was on the grounds that the Tribunal had breached s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA) by breaching the applicant’s rights to natural justice and that the Tribunal made errors of fact so grave as to constitute errors of law.
[26] On 13 January 2020, the Tribunal refused the applicant’s request for an adjournment of the hearing scheduled for 16 January 2020, thus denying the applicant and his father the benefit of legal assistance regarding the appeal. Evidence was also provided, via the transcript of the Tribunal hearing, that the applicant’s father was asked about a statement made in a document that counsel for the Minister of Immigration had not given him copies of prior to the hearing. It was submitted that these matters breached the applicant’s right to natural justice.
[27] Mr Ward, for the applicant, submitted the Tribunal made errors of fact that were so significant as to constitute an error of law. Namely, it was submitted the Tribunal significantly minimised the evidence concerning the stigma and shame the applicant and his mother would suffer in Samoa, incorrectly assumed Samoan society is capable of recognising the applicant’s effort to rehabilitate and show he is a good person, and incorrectly assumed the applicant would feel shame wherever he resides.
[28] The application for leave to bring judicial review proceedings was made on grounds that:
(a) in reaching its decision, the Tribunal was in breach of natural justice;
(b) the Tribunal failed to take into account relevant factors; and
(c) the Tribunal based its decision on mistaken facts.
[29] The applicant referred to the judgment of Hansen J in Kumar v Minister of Immigration and his Honour’s statement “… if the refusal of an adjournment has led to the applicant’s fair trial rights being irretrievably compromised, a decision to refuse an adjournment may be set aside on appeal”.11
[30] The applicant submitted, because the hearing before the Tribunal involved immigration status and the applicant’s deportation from New Zealand, high standards of fairness were required by natural justice and these had not been met.12 The applicant submitted it is a matter of general and public importance that the Tribunal acts in a manner that complies with the rules of natural justice and rights guaranteed under the NZBORA. Consequently, the allegations as to their failures to do so involve errors in law of general or public importance so as to justify leave to appeal and/or leave to bring judicial review proceedings.
[31]The applicant submitted:
(a) in contrast to the circumstances in Kumar,13 the applicant had limited time to arrange legal representation after commencing his appeal, had relied on his father to represent him in the process and it was only after the father had seen the submissions filed on behalf of the Minister of Immigration (the Minister) for the scheduled hearing that the father appreciated the legalities and complexity of this case;
(b) it was not in the interests of natural justice for the Tribunal to refuse an adjournment on the grounds travel and witness arrangements had already been made in anticipation of the hearing scheduled for 16 January 2020.
11 Kumar v Minister of Immigration [2013] NZHC 546, [2013] NZAR 529 at [21].
12 With reference to a statement from Elias J in Ali v Deportation Review Tribunal [1997] NZAR 208 (HC).
13 Kumar v Minister of Immigration, above n 11.
The applicant’s father had advised the Tribunal he did not feel able to properly represent his son;
(c) although the grounds for determining a humanitarian appeal are set out in s 207 of the Immigration Act and the applicant and his father were advised of those grounds in an email from the Tribunal to the father dated 20 December 2019, just what is required to advance an appeal has also been the subject of previous case law so that legal representation was required for the applicant to appreciate what was required to successfully advance his appeal;
(d) as a result, the material provided in support of the appeal did not suitably address the requirements for appeal and to some extent the father’s letters were “potentially detrimental to the applicant’s case by seeking to minimise the seriousness of the applicant’s offending”;
(e) the submissions made for the applicant at the hearing very much reflected the feelings of the family and their concerns over the stigma that would be caused by his deportation. Had the applicant had the benefit of his own legal representation, this might have resulted in further information in regard to the impact for the applicant or other factors not solely relating to his family which may have been relevant to the appeal and enabled stronger evidence to be presented as to some of the factors raised at his appeal;
(f) it was apparent from the transcript of the hearing that the applicant’s father, representing the applicant at the hearing before the Tribunal, was overwhelmed by the situation he was in;
(g) had there been legal representation, the case would have been presented differently, the outcome could have been different, and this was an exceptional situation. Particularly so when, as it emerged during the hearing, the Tribunal and the applicant’s father, to their mutual surprise, realised that, before the hearing, the applicant and his father did not have documents the Minister had made available to the Tribunal;
(h) the applicant is a young man with only a basic education and limited English skills and felt unable to represent himself;
(i) the Tribunal made an error of fact in minimising the shame and stigma that would attach to the applicant and his mother if he was to be deported to Samoa and in saying that the Tribunal expected that Samoan society would be capable of recognising his efforts to rehabilitate and show he is a good person. There was no evidence or factual basis for that assumption and it was contrary to the evidence before the Tribunal. The Tribunal also erred in saying the applicant’s feelings of shame for himself and his family would be the same in whichever country he now lives;
(j) the Tribunal significantly minimised the applicant’s feeling of shame and did not give proper consideration to the particular attitudes within Samoan culture in properly assessing the impact on the applicant and his mother, despite the evidence of his uncle and father;
(k) the Tribunal gave inadequate consideration to the stigma the applicant’s mother would suffer as a result of the applicant’s deportation and, in particular, the extent to which she would no longer be able to be part of her church or part of her community; and
(l) as to the application for leave to appeal, these errors of fact were so significant that they constituted errors of law. As to the application for leave to bring judicial review proceedings, the Tribunal made mistakes of fact and had regard to irrelevant considerations, those being grounds for judicial review.
The case for the Minister
[32]This is reflected in the following analysis.
Analysis
Legal principles
[33]Relevantly, s 245 of the Immigration Act states:
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.
[34]Section 247 of the Immigration Act states:
247 Special provisions relating to judicial review
(1) Any review proceedings in respect of a statutory power of decision arising out of or under this Act must be commenced not later than 28 days after the date on which the person concerned is notified of the decision, unless—
(a)the High Court decides that, by reason of special circumstances, further time should be allowed; or
(b)leave is required, under section 249(3), before proceedings may be commenced (in which case section 249(4) applies).
(2) [Repealed]
(3) In this section, statutory power of decision has the same meaning as in section 4 of the Judicial Review Procedure Act 2016.
(4) Nothing in this section limits the time for bringing review proceedings challenging the vires of any regulations made under this Act.
[35]Section 249 of the Immigration Act states:
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.
(4) An application to the High Court for leave to bring review proceedings must be made—
(a)not later than 28 days after the date on which the Tribunal’s determination in respect of the decision or matter to which the review proceedings relate is notified to the person bringing the proceedings; or
(b)within such further time as the High Court may allow on application made before the expiry of that 28-day period.
(5) A decision by the Court of Appeal to refuse leave to bring review proceedings in the High Court is final.
(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.
[36] In summary, what an applicant is required to show is a seriously arguable error of law (appeal) or seriously arguable failing in terms of legality and process (review).14 In each case, an applicant has to show that the issue, as to the error or failing, has to be one of general or public importance or one that, for any reason, should be
14 Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2018] NZHC 972, [2018] NZAR 1120 at [24].
considered by the High Court.15 In addition, for leave to bring judicial review, the issue must be one that could not have been raised on appeal.16
[37] Section 27(1) of the NZBORA requires the Tribunal to observe the principles of natural justice. However, there is no automatic right to representation and, although advantageous, it is not essential to a fair hearing.17
[38] The refusal to grant an adjournment so a person can seek representation is a discretionary decision for the Tribunal.18 Appellate courts will be slow to interfere with a discretionary decision to refuse an adjournment.19 However, if refusal has led to an applicant’s fair trial rights being irretrievably compromised, the decision can be set aside.20
[39] In determining whether an applicant’s fair trial rights have been irretrievably compromised, mere conjecture as to prejudice will not suffice. The applicant must show that their case would have been advanced differently and to their benefit if represented.21
[40] As to alleged errors of fact, in Taafi v Minister of Immigration, Kós J in the High Court identified that, with the introduction of s 245 of the Immigration Act, an applicant seeking leave to appeal factual findings faces a triple hurdle.22 They have to demonstrate a seriously arguable case that the Tribunal’s factual findings were actually wrong. Second, the applicant will have to additionally show the factual errors are, in combination and in context of the whole decision, so grave as to constitute an error of law. Third, the applicant has to show that the question of law, based on alleged
15 Immigration Act 2009, ss 245(3) and 249(6)(b).
16 Panchal v Immigration and Protection Tribunal [2018] NZCA 83 at [2]; Immigration Act 2009, s 249(6)(a).
17 Kumar v Minister of Immigration, above n 11, at [27]-[28]; and Singh v Immigration and Protection Tribunal [2018] NZHC 2409 at [38]-[39], citing Drew v Attorney-General [2002] 1 NZLR 58 (CA).
18 IPT Practice Note 2019/4 Deportation Resident at [16.1].
19 Kumar v Minister of Immigration, above n 11, at [21].
20 At [21].
21 Kumar v Minister of Immigration, above n 11, at [36]-[40]; and Singh v Immigration and Protection Tribunal, above n 17, at [42].
22 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].
fundamental errors of fact, is one of general or public importance or one which, for some other reason, ought to be considered on appeal.
[41] The criteria of s 245(3) of “for any other reason” would only be engaged in exceptional circumstances involving individual injustice to such an extent that the court simply could not countenance the Tribunal’s decision.23
[42] As the High Court has previously noted, this Court is required to consider the Tribunal’s factual decision as a whole without concerning itself with particular or separate parts of the decision.24 Findings of fact themselves cannot be impugned unless the factual findings were of such significance or extent in nature that they would render the decision legally flawed.25 Value judgments made by the Tribunal in balancing and weighing the competing factors arising in any given case will seldom amount to an error of law.26
[43] In Minister of Immigration v Zhang, for the Court of Appeal, Harrison J noted that “the weight to be given to particular factors was solely within the Tribunal’s statutory function”.27
[44] In R M v Immigration and Protection Tribunal, Palmer J suggested s 245(3) should not be interpreted as narrowly as Kós J had done in Taafi.28 Palmer J referred to s 249(6) as an equivalent clause to s 245(3) but said there were Bill of Rights considerations relevant to applications for leave for judicial review under s 249 that do not impact on applications under s 245 for leave to appeal in the same way. He said:29
… in marginal cases, it is important to bear in mind that the leave decision is one which impacts the fundamental right to judicial review, that is protected by the Bill of Rights and the constitutional function of judicial review.
23 At [19].
24 See Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [9].
25 At [9].
26 Nabou v Minister of Immigration, at [9], cited by Muir J in Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 14, at [28].
27 Minister of Immigration v Zhang [2013] NZHC 487, [2014] NZAR 88 at [34].
28 R M v Immigration and Protection Tribunal [2016] NZHC 735 at [37]; and Taafi v Minister of Immigration, above n 22.
29 R M v Immigration and Protection Tribunal, above n 28, at [51].
[45] Kós J’s interpretation has been applied in subsequent judgments of the High Court.30 It was endorsed by the Court of Appeal in Machida v Chief Executive of Immigration.31
[46] In AI (Somalia) v The Immigration and Protection Tribunal, Palmer J said both his approach and that of Kós J were two sides of the same coin.32 Under both approaches, leave to appeal could be granted where there was a flagrant and material breach of natural justice.33 It was in that context Palmer J said a court could simply not countenance a tribunal decision contrary to the interests of justice and s 245(3) provided a judicial discretion to give leave to appeal in that circumstance.34
[47] In AI (Somalia), Palmer J said “ss 6 and 27(2) of the Bill of Rights militate in favour of granting leave to bring judicial review proceedings. This can make a difference in marginal cases.”35 However, as he made clear, that could only happen where the applicant had established the issues ought to be submitted to the High Court for review by reason of their general or public importance.36
[48] Muir J noted, in HA v Refugee and Protection Officer, the Court of Appeal has found that this test was similar to that applying to second appeals under s 67 of the Judicature Act 1908.37 An issue will not be of sufficient importance to justify further litigation where it is fact-specific, is of concern to the parties only, where the law is well settled or there is little prospect of success.38
[49] If, in real terms, there is any difference in the approaches taken by Kós J and Palmer J, I am satisfied the outcome in this case would be the same under both approaches.
30 Singh v The Immigration and Protection Tribunal, above n 17, at [15]; Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 14, at [27]; Nabou v Minister of Immigration, above n 24, at [8].
31 Machida v Chief Executive of Immigration [2016] NZCA 162, [2016] NZLR 721 at [8].
32 AI (Somalia) v The Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471.
33 At [32].
34 At [32].
35 At [35].
36 At [33] with reference to s 249(6)(b) Immigration Act.
37 HA v Refugee and Protection Officer [2017] NZHC 1787 at [40]-[41], with reference to Minister of Immigration v Jooste [2014] NZCA 23.
38 HA v Refugee and Protection Officer, above n 37, at [40]-[41].
Breach of natural justice – the refusal to adjourn for applicant to obtain legal representation
[50] The record of the hearing before the Tribunal and of communications between the Tribunal and the applicant’s father indicates, although not a lawyer, the applicant’s father was well equipped to deal with the factual issues the applicant wished to address before the Tribunal. As well as making submissions for the applicant, his father gave sworn evidence. The transcript of the hearing indicates the applicant’s father understood what was happening during the hearing, was able to understand what was asked of him by the Tribunal and was able to respond in the manner he chose. An example of this was apparent from an exchange about who the father wanted to give evidence before the Tribunal. The Tribunal confirmed with the father what documents it had received in support of the applicant’s case. The Tribunal asked if there was anything else it should have. The father confirmed there was nothing further.
[51] The father was able to raise with the Minister’s counsel a query as to a document which the Tribunal had referred to which he had not received a copy of. He was able to clarify with the Tribunal that he had not received that document.
[52] The hearing before the Tribunal was completed on 16 January 2020. The Tribunal gave the father the opportunity to make a further submission in writing. The father made that submission in an email of 20 January 2020. In that email he dealt with an issue which had emerged from the documents he had not received earlier and also the issue of potential suppression of the applicant’s name. He began that email with the statement:
Please let this be my last and final submission in regards to [the applicant’s] deportation appeal case. I believe me and my brother on behalf of our family have said and pleaded our case infront [sic] of madam member of the tribunal as well as [counsel for the Minister].
[53] The applicant’s father was able to coordinate and present to the Tribunal appropriate witness statements as well as submissions in support of the appeal. In opening legal submissions to the Tribunal, counsel for the Minister referred to the applicant’s father having provided a 20 page bundle of documents to the Tribunal by email on 8 January 2020.
[54] These included a statement from the applicant’s mother who was resident in Samoa, as well as from relatives in New Zealand who were also able to put before the Tribunal specific information as to aspects of Samoan culture and society which were of significance to the appeal. Also presented were certificates the applicant had received after completing various rehabilitation programmes while in prison, a statement from the applicant’s prison case officer, a statement from a member of the applicant’s church and Samoan community in […], and a statement from the applicant himself. All this material addressed issues as to the applicant’s remorse for what he had done, the particular shame he had experienced in New Zealand and would experience in Samoa if he had to return there, the various ways in which he and members of his family would suffer if he had to return to Samoa and could not obtain the benefits he had hoped to when coming to New Zealand.
[55]The appeal to the Tribunal was lodged on 29 October 2019.
[56] The notice of the hearing scheduled for 16 January 2020 was sent to the applicant’s father, as the applicant’s representative, on 28 November 2019. With that notice, he was advised of a pre-hearing telephone conference that would take place on 19 December 2019. In response to a query from the applicant’s father, on 3 December 2019 the Tribunal provided the father with the Tribunal Practice Note 1/2019. This provided further information as to how the hearing would proceed and what documents the applicant would have to provide in support of his appeal. It included advice that any party to proceedings before the Tribunal could be represented by a lawyer or licenced immigration adviser but said a hearing would not be delayed solely because an application for legal aid has not been determined.
[57] The applicant’s father participated in the pre-hearing conference on 19 December 2019. Following the conference, the Tribunal confirmed by email of 20 December 2019 that counsel for both parties were ready to proceed on 16 January 2020. There was obviously an error there in that the reference should have been to counsel for the Minister and the applicant’s representative, his father. Both parties had however told the Tribunal, through those representatives, that they were ready to proceed with the hearing. The Tribunal stated the father would be lodging evidence in support of the appeal by 5 pm on 7 January 2020. It referred to the scope of that
evidence and the witnesses from whom statements would likely be obtained. The applicant’s father had obviously been able to discuss such matters at the pre-hearing conference. Counsel for the Minister was to file submissions by 10 January 2020. The applicant’s father was to file opening submissions by 14 January 2020.
[58]The email dated 20 December 2019 advised:
For the information of [the applicant] and [his father], the legal test which must be applied to [the applicant’s] circumstances is 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.
If you have any further queries, please contact […] in the first instance. Please also include your responses to email address: […]
[59] With that reference to s 207, the Tribunal did not advise the applicant of case law which would be relevant to the Tribunal in considering the appeal but the applicant and his father were advised in general terms of the factual issues the Tribunal would have to consider. The material the applicant subsequently provided was relevant to those grounds and relevant in terms of the case law which has developed as to the application of s 207.
[60] It was not suggested for the applicant in the hearing before this Court that, in referring to s 207, the Tribunal in any way misled the applicant as to what was required. The applicant and his counsel did not identify any particular matter or issue which, in terms of the case law, should have been addressed before the Tribunal but which was not because the applicant had not obtained legal representation.
[61] The applicant’s father also had the benefit of the submissions presented to the Tribunal for the Minister dated 10 January 2020. Those submissions referred in detail to relevant case law as to how s 207 was to be applied. There is no suggestion that, in
that respect, the submissions were in any way misleading or confusing. The submissions highlighted the stringent thresholds which had to be met for the grounds of appeal to be made out. It was not submitted for the applicant that the applicant’s father did not in any way appreciate this. Clearly he did, because it was after he received those submissions that, on 13 January 2020, he emailed the Tribunal seeking an adjournment of six weeks to enable him to engage a lawyer to help with the case. In doing so, he said “I have completely overlooked the severity of the case until I received the submission by the Immigration lawyer”. I do not accept the submission for the applicant that statement was a reference to the father not appreciating the legalities and complexity of the proceedings.
[62] On 13 January 2020, the Tribunal responded to that request with advice the hearing would proceed as scheduled. Consistent with the Tribunal’s response to the father, in its decision declining the appeal the Tribunal said:39
Application for an Adjournment
[40] Three days before the hearing, the appellant’s father sought an adjournment for six weeks in order to engage a lawyer. He said that he had not appreciated the seriousness of the case until he received the respondent’s opening submissions. The respondent opposed the request for an adjournment, especially as travel and other arrangements, including arrangements for the attendance of the appellant and his witnesses, had already been made.
[41] The Tribunal refused the application and directed that the hearing would proceed as scheduled. It noted the appellant’s father’s misgivings but also noted that he had conducted his son’s case with care and intelligence to date. The Tribunal did not consider that any injustice would arise if the matter was to proceed, not[i]ng that it would take extra care to ensure that the hearing was conducted in a manner that was understandable to the appellant and his father.
[42] The appellant’s father did not renew his application for an adjournment at the hearing. Given that the appellant was not legally represented, the Tribunal was careful to accord him opportunities to support his case, including giving his father time after the hearing to consider the evidence and to make any further submissions to the Tribunal.
[63] Having read the transcript of the hearing, I find the Tribunal conducted the hearing in a manner that ensured the applicant would not be disadvantaged through not being legally represented.
39 BP (Samoa) v The Minister of Immigration […].
[64] I do not accept the submission that, with legal representation, the evidence for the applicant would have been presented in a more persuasive manner. The evidence addressed the issues which counsel submitted had to be addressed. Not only were statements put before the Tribunal in the way all relevant witnesses wanted, but key witnesses were questioned by the Tribunal in an open way where it was apparent the Tribunal was endeavouring to obtain from those witnesses the best information they could provide as to the issues they were giving evidence about. This was true of the way the applicant, his father and his family’s neighbour and minister of his church were questioned. It was not suggested the evidence obtained from these witnesses was in any way misleading.
[65] It was argued the applicant may have been disadvantaged through the way, in the presentation of his case, the seriousness of his offending was minimised. I accept criticism could be made of certain comments in written statements made by the applicant’s father and his uncle. For instance, it was suggested the applicant’s offending was because of the particular circumstances he found himself in and involved an error of judgement. There was however nothing in the Tribunal’s decision to indicate this prejudiced the applicant in the Tribunal’s consideration of the case. The Tribunal gave the applicant credit for the remorse he had expressed, noted his shame for what he had done and the significant efforts he had made while in prison to address the causes of his offending.
[66] The applicant did not identify the particular ways in which the applicant’s case would have been presented or would have proceeded differently if he had been legally represented or if he had copies of all documents provided by the Minister to the Tribunal before the hearing. He did not identify how or why the outcome of his appeal could have been different if matters had proceeded differently in either way. The possibility of a difference in presentation or outcome was referred to in speculative terms as a matter of conjecture rather than real possibility.
[67] Counsel was critical of the Tribunal’s reasons for declining an adjournment as referred to in its decision, given the only witnesses whose attendance was required at the hearing were witnesses for the applicant. The Tribunal however refused an adjournment because all arrangements had been made for the hearing to proceed on
16 January 2020. That included all the arrangements required for a hearing of the Tribunal in a Court in Christchurch, the applicant being able to leave prison for the hearing before the Tribunal, the attendance of counsel for the Minister at that time and for the applicant’s witnesses to be available at that time. With arrangements in place, there was certainty that the hearing on 16 January 2020 could proceed. Had there been an adjournment, it would have been necessary to change all the arrangements already in place, with consequent uncertainty as to just what delay might result from this.
[68] The Tribunal also had to be mindful of the need for promptness in its processes. Section 236(1) of the Immigration Act says:
236 Appeals against deportation liability where person serving prison sentence
(1) Where a person appealing against his or her liability for deportation is serving a sentence of imprisonment in a prison, the Tribunal must, with a view to determining the appeal before the person’s release, consider and determine any appeal on humanitarian grounds as soon as practicable after the appeal is lodged but before the person’s parole eligibility date or (in the case of a person serving a short-term sentence) before the person’s statutory release date
[69] Sections 222 and 223 of the Immigration Act require appeals to the Tribunal to be heard expeditiously.
[70] The Tribunal was conscious of the particular need for a hearing and decision without delay because the applicant was to appear before the Parole Board and seek release from prison on parole. The hearing before the Parole Board was scheduled for 24 January 2020.
[71] I also accept the submission that this was not a case where the applicant was denied the opportunity to seek legal representation. He and his family had seen how he could be assisted through legal representation when the applicant was charged with the admitted offending. He had been sentenced for that offending in March 2018. He was served with a deportation liability notice on 26 September 2019. That notice advised him of his right to appeal to the Tribunal and the timing for that. He lodged his appeal on 29 October 2019. On 28 November 2019, the Tribunal notified him there would be a hearing of the appeal on 16 and 17 January 2020. He and his representative participated in the pre-trial hearing on 19 December 2019. Over that
period, the applicant, assisted by his father and representative, chose to proceed with the appeal without legal representation.
[72] The applicant was declined an adjournment to enable him to obtain legal representation on 13 January 2020 which was only three days before the scheduled hearing. It would have been difficult for him to arrange legal representation in the intervening period but, by then, with the help of his father, the applicant had filed the witness statements he wished to present for the hearing.
[73] For the reasons canvassed fully in this judgment, the applicant’s inability to obtain legal representation between 13 and 16 January 2020 did not breach his right to natural justice.
[74] Accordingly, I have not been satisfied that, by reason of the refusal of an adjournment and his not having legal representation, the Tribunal proceeded in a manner that was in breach of natural justice and the applicant’s rights in terms of the NZBORA.
Breach of natural justice – the applicant and his representative did not have copies of all documents the Minister had provided to the Tribunal before the hearing began
[75] During the hearing, the applicant gave extensive evidence in response to questions by way of genuine enquiry to obtain information about his life in Samoa before coming to New Zealand, people in his family and where they were now living, the financial support he had provided to members of his family, his mother’s circumstances, the support that was available to her, and how he would be treated by his church and community if deported to Samoa. In the course of that questioning, the Tribunal referred him to a statement in a document from the Department of Corrections, at “page 20” of the bundle of documents the Tribunal had. Within this bundle was reference to the possibility of the applicant being physically punished by his family in New Zealand because of what he had done. At the time the Tribunal asked the applicant this question, the applicant’s father was being given the opportunity to find the relevant document.
[76] At 11.11 am, very soon after the Tribunal raised the issue, the hearing was adjourned. The hearing resumed at 11.25 am. The transcript records that the Tribunal was advised the applicant had not received a copy of the Minister’s file.
[77] Counsel for the Minister provided to this Court a bundle of the documents which it said were the documents on the Minister’s file which had been provided to the Tribunal. They comprised:
(a) the deportation liability notice which include the applicant’s acknowledgement of receipt dated 26 September 2019;
(b) the Minister’s deportation liability assessment dated 26 August 2019;
(c) Police summary of facts for the admitted offences;
(d) certified copy of the court record as to conviction and sentences;
(e) provision of advice to courts (pre-sentence report) from the Department of Corrections;
(f) sentencing notes of District Court Judge;
(g) criminal and traffic history from the Ministry of Justice;
(h) correspondence between Corrections and Victim Support indicating no information had been obtained from victims as to any victims’ views about potential deportation; and
(i) letters of support for the applicant from:
i.his father, dated 21 January 2019 and 24 January 2019;
ii.his mother, dated 29 January 2019;
iii.his local Member of Parliament, dated 25 January 2019;
iv.his uncle and witness, dated 29 January 2019, written in his capacity as […];
v.a church youth group of which the applicant was an active member; and
vi.a member of the applicant’s rugby club.
[78] When the hearing resumed, the Tribunal confirmed with the applicant’s father that he had not received a copy of the Minister’s file but also that counsel for the Minister had given him a copy during the 11.11 am break. There was an exchange then with the applicant’s father. The Tribunal acknowledged how he would have been disconcerted by the questioning that had occurred just before the break. The applicant was then referred to the Judge’s sentencing notes and the probation officer’s report. The applicant’s father said he had not seen these before. The Tribunal said they would adjourn the hearing after the applicant had completed giving evidence so the father could have time to read the material.
[79] The Tribunal asked the applicant what he had to say about the statement in the Department of Corrections’ report. The applicant responded there would be no physical punishment for him from his family. He was adamant no one in his family in New Zealand or Samoa would want to physically hurt him.
[80] The Tribunal then questioned the applicant further about the people who were in his father’s home in New Zealand, aspects of the relationship he had with the female victim of his offending, the circumstances of his offending, the programmes he had completed while in prison and what he had achieved from those programmes. Counsel for the Minister briefly cross-examined the applicant (less than one page of the transcript). The Tribunal carefully confirmed with the applicant’s father that he had no questions of the applicant.
[81] The Tribunal then had the applicant’s father sworn to give his evidence. The Tribunal questioned the applicant’s father, again in an empathetic but inquisitorial manner, to obtain information relevant to the applicant’s case. The applicant’s father spoke extensively of how things would be for the applicant if he was deported to Samoa. He emphasised to the Tribunal he knew how it would be because he had lived his whole life in Samoa before coming to New Zealand and knew “the ins and outs” of how people would act towards the applicant if he was returned there. The father was briefly cross-examined by counsel for the Minister. The Tribunal stopped the hearing soon after 12.35 pm and said there would be a break until 1.40 pm. The Tribunal suggested the applicant’s father would be able to talk to the applicant over the break to see if there was anything the applicant wanted him to cover as well.
[82] The hearing resumed at 1.43 pm. The Tribunal asked if the father had anything more he would like to say. The father said most of what he had to tell was in written form and in the discussion he had with the Tribunal through questioning, but clarified with the Tribunal that he and the applicant would have the opportunity to speak at the end of the hearing and there would be an opportunity for them to add anything further a few days after the hearing.
[83] The Tribunal then confirmed with the applicant and his father the date of the pending parole hearing. The hearing then proceeded with the Tribunal questioning the applicant’s witness, his uncle, as to the submission and evidence he had presented for the applicant, beginning with questions to assist the Tribunal with its understanding of the concept of whakamā and the way that can result in ridicule and shame for a family in Samoa where someone has offended in the way the applicant had. After the uncle had given evidence, the Tribunal discussed with counsel and the applicant’s father the need for it to try to issue a decision before the parole hearing scheduled for the next Friday, and the need for it to have any further submissions within the coming days. The Tribunal asked for submissions from both counsel and the applicant’s father by 5 pm on Monday 20 January 2020. The Tribunal noted the father would be talking to the applicant on the Sunday and said he could add anything else that he wished following that discussion.
[84] The Tribunal then raised the issue of potential suppression of names and gave counsel the opportunity to make a submission about that so the applicant’s father would know what the Minister’s position was and would be able to respond.
[85] Following that discussion, the father indicated there was something further he wished to say. He said the applicant had just mentioned that, if given the chance, he would try and remedy all that was wrong and move forward. He said, in particular, the applicant wanted to study health science and be a much better person.
[86] Counsel for the Minister provided a four and a half page closing submission on Monday 20 January 2020. The father also provided a brief email.
[87] In that brief email, the father said “I believe me and my brother on behalf of our family have said and pleaded our case in front of madam member of the [T]ribunal as well as [counsel for the Minister]”. He said he was again requesting the Tribunal to favourably consider the appeal and give the applicant “a second chance to prove that what had happened was totally an error of judgement and will never happen again”. He confirmed he had met with the applicant on the Sunday and asked him if there was anything else he wanted his father to bring to the Tribunal’s attention, and the applicant had also asked that he be given a second chance. The father referred to the applicant’s parole report and referred to the very positive comments it made as to the applicant’s conduct while in prison. The father said his only disappointment was the statement in the Department of Corrections’ report, which the Tribunal had asked him about during the hearing, that suggested the family would be willing to inflict physical punishment on the applicant. He asked that it be taken off the record because it was “definitely not true”. He requested suppression of names “whatever the outcome of this case”.
[88] The applicant and his representative should have known before the hearing what documents the Minister had provided to the Tribunal. They should, themselves, have had copies of all such documents so they could refer to them to the extent this would have been helpful to the applicant’s case. The applicant has not however established that, in the particular circumstances of this case, he was prejudiced or that there was any breach of his right to natural justice through the omission that occurred.
[89] The applicant’s father was provided with copies of the documents during the hearing and was given time to consider the material both during the break in the hearing and afterwards. There was only one matter which the father wished to comment on, the potential for the applicant to be physically punished by his family because of what he had done. The father was adamant the information as to that was wrong. There was no reference to it in the Tribunal’s decision. In its decision, the Tribunal referred positively to the support available to the applicant from his family both in New Zealand and Samoa.40
40 [BP (Samoa)] v Minister of Immigration, above n 1, at [35] and [62]-[65].
[90] In its decision, the Tribunal confirmed that the applicant had no convictions in either New Zealand or Samoa except for the offending for which he had been imprisoned and was thus liable for deportation.41
[91] The applicant had admitted the details of the offending as set out in the summary of facts with his guilty pleas to the various charges. The applicant must have heard the summary of facts when it was read out in Court after he had pleaded guilty. His father has steadfastly supported the applicant since his offending. It is likely he also heard the summary of facts and the Judge’s sentencing.
[92] It seems likely the applicant’s father had seen a copy of the Police summary of facts before the Tribunal hearing.
[93] On 14 January 2020, after receiving closing submissions for the Minister, the applicant’s father provided a letter to the Tribunal. In it, he said, “in the Court hearing the lawyer for [the applicant], asked if there was a second medical assessment done on the victim in regards to the brain injuries sustained during the assault”. The response was “no” as the victim discharged himself from hospital care. The father then made the relatively sophisticated submission that, in his view, “the initial extent of his injury as presented in the original summary of facts does not stand”.
[94] The material before the Tribunal from the Minister included the deportation liability assessment which summarised the information prepared for the delegated decisionmaker for the Minister of Immigration who had to make the deportation decision.
[95] The assessment referred to the sentencing Judge’s statements as to the injuries suffered by the victim as including a traumatic brain injury with the possible need for brain surgery. As just referred to, the applicant’s father had made a submission as to that in his letter of 14 January 2020 to the Tribunal.
[96] The Tribunal had before it the Judge’s sentencing remarks. The sentencing Judge noted that it was unknown exactly what happened after the victim was injured
41 At [73].
but the Judge was prepared to accept, based on the summary of facts, that the victim was very badly beaten and had sustained some injuries.
[97] It appears from the material the Minister provided to the Tribunal, the hearing transcript and the submissions made for the applicant that the only information which took the applicant and his representative by surprise was the reference in the Department of Corrections’ report to the potential for the applicant to be subjected to physical harm from his family because of his actions. The applicant was given adequate opportunity to respond to the Tribunal’s query about that information and to firmly reject its accuracy, which he did.
[98] The Tribunal’s decision had to be made based on all the information put before it, including detailed submissions from counsel for the Minister which subsumed matters raised in the initial deportation liability assessment.
[99] The applicant did not, through counsel, identify any statement or information in the material relied upon by the Tribunal in dismissing the appeal which the applicant had not been able to address through not having those documents when the hearing began.
[100] The record of these proceedings and the transcript of the hearing does not demonstrate that the applicant’s father was overwhelmed by the situation he was in with the hearing. The record indicates that, with regard to what was at issue in the proceedings, he was able to present the applicant’s case fully and with dignity.
[101] I do not accept the submission that, by reason of his basic education and limited English skills, the applicant was unable to make any significant submission on his own behalf in support of the case.
[102] The material before the Judge included a personal letter to the Tribunal in English dated 19 December 2019 setting out why he asked the Tribunal to give him a second chance in New Zealand, and a detailed statement dated 10 January 2020 summarising what he said would be the consequences for him and his family if deported to Samoa.
[103] The transcript of the hearing shows the applicant was questioned carefully and sensitively in an inquisitorial manner by the Tribunal. He understood the questions asked of him and was given every opportunity to provide information and explain to the Tribunal what he considered the consequences of deportation would be for him and his family. He was able to further advance his case through the letters of support and evidence presented for him at the hearing. There was an interpreter present who assisted the Tribunal on the few occasions the Tribunal considered this necessary.
[104] I accept the submission that the case before the Tribunal was essentially factual, inquisitorial in nature and did not raise difficult or complex procedural or legal issues.
[105] The applicant has accordingly not established that he was denied his right to natural justice in the proceedings before the Tribunal.
Alleged errors in the Tribunal’s factual determinations
[106] The applicant submits, in various specific ways, the Tribunal made errors of fact which he should be able to address through an appeal or judicial review.
[107] There was evidence which reasonably supported the factual determinations the applicant criticises. In his letter to the Tribunal, the applicant referred to the shame he had brought upon himself, his family and culture with his offending. This implies he felt that shame and acknowledged those consequences for his family and culture while in New Zealand. There was thus evidence on which the Tribunal could properly consider he would suffer shame in countries other than Samoa.
[108] The Tribunal accepted the applicant and his family would suffer from shame and stigma because of his offending. That acceptance was inherent in their statement that the Tribunal’s expectation that Samoan society would nevertheless be capable of recognising his efforts to rehabilitate and show he is a good person. It was also reflected in the Tribunal’s decision to suppress the applicant’s name in any report of its decision. The Tribunal did not minimise the shame and stigma the applicant and his family would suffer because of his offending.
[109] The Tribunal’s expectation that Samoan society would be capable of recognising good in the applicant, as would any other society, was not an observation that needed specific evidence. It was an observation based on the Tribunal’s knowledge of how the human race behaves generally. There was also evidence consistent with the Tribunal’s observation in that amongst the material provided to the Tribunal were letters from [his] Church and his family, speaking of their love and support for the applicant and his future, and pride in the efforts and steps he had taken while in prison to assist in his rehabilitation and reduce the risks of further offending.
[110] There was also evidence from the applicant’s mother from which the Tribunal could reasonably conclude that, despite the difficulties she and the applicant would face with his deportation to Samoa, the mother would still make the best of it. She had coped for many years despite her estrangement from her husband, the father of their children. She had coped while the applicant had been in prison and not providing the financial assistance from which she had benefited when he had been employed in New Zealand. There was no evidence that the mother had become isolated from her community or church through the applicant’s offending and her inability to continue making financial contributions to her church in the way she had been able to when receiving financial assistance from him.
[111] The applicant told the Tribunal he thought, if he had to return to Samoa, his church there would be forgiving and he would still be able to go to church. The applicant told the Tribunal of the family support available to his mother in Samoa.
[112] In the mother’s letter of support of 31 December 2019, provided in support of his appeal, she spoke of the way the family in both Samoa and New Zealand would benefit from his financial support if he could be employed in New Zealand, and how the family would be affected detrimentally if he were to be deported to Samoa. However, she wrote of a concern that “he may not be able to enjoy a happy life” rather than how she would suffer socially or in terms of her church involvement if he were to be deported.
[113] The applicant’s uncle said he expected the family in Samoa would be standing by him through “thick and thin”. He also said he expected the clergy within the church
would be more empathetic, sympathetic and generally forgiving, and overall the church would be supportive. If that were true of the church’s attitude towards the applicant, it is hard to see why the church would not be supportive of his mother in her continuing situation.
[114] The applicant has not demonstrated a seriously arguable case that the Tribunal’s factual findings which he complains of were actually wrong, nor that such errors, if they could be established, would be so grave as to constitute an error of law. The applicant has also not demonstrated that the issues of fact referred to would be of such great or public importance as to require consideration on appeal or that the circumstances of the applicant’s case involve individual injustice to such an extent that the High Court simply could not countenance the Tribunal’s decision.
[115] The humanitarian circumstances the applicant relied upon for his appeal did boil down to his inability to provide financially for his mother and family if deported, the shame, stigma and ostracism he and his family would face back in Samoa, separation from family living in New Zealand, and his remorse, rehabilitation and desire for a second chance to stay in New Zealand due to better opportunities generally.
[116] On a careful consideration of the evidence before it, the Tribunal was not satisfied on these grounds that the exceptional circumstances the Tribunal relied on were truly an exception or would make it unjust or unduly harsh for the applicant to be deported from New Zealand.
[117] This Court agrees with the Tribunal that the circumstances relied upon were not of an exceptional nature, although they arose out of the Samoan culture. The circumstances the applicant relied upon, the separation within families and the economic consequences of deportation would commonly arise with deportation cases. The High Court has previously noted that the potential for economic benefit through a deportee being able to stay in New Zealand is rarely, by itself, a compelling humanitarian circumstance.42
42 Ronberg v Chief Executive of Department of Labour, above n 6, at 529-530.
[118] The applicant has not established he has an arguable case that the Tribunal made errors of fact in its decision which required the issues as to those alleged errors to be before this Court by way of appeal or judicial review. Nor has he established he has an arguable case the Tribunal failed to have regard to relevant factors or considered irrelevant factors.
[119] The applicant’s counsel submitted, for the reasons I have discussed and rejected, there was a breach of the applicant’s rights to natural justice. He suggested, consistent with Palmer J’s observation in R M v Immigration and Protection Tribunal, that the claimed failure to recognise NZBORA rights tipped the balance and justified leave to bring judicial review.43 This was not however a marginal case. For the reasons given by the Tribunal, the applicant had clearly not met the high threshold in s 207 for his appeal to succeed.
Conclusion
[120] For all the above reasons, the applications by the applicant for leave to appeal and/or bring judicial review proceedings are declined.
[121] The applicant is legally aided. The Minister does not seek costs and no order is made.
[122] The Tribunal considered suppression would assist the applicant’s efforts to establish as normal a life as possible and employment. The Tribunal directed the decision was to be depersonalised by removal of the names of the applicant and his family, such depersonalisation to continue for a limited period of two years. The Tribunal ordered, pursuant to cl 19 of sch 2 of the Immigration Act, the research copy of their decision was to be depersonalised by removal of the applicant’s name and any particulars likely to lead to the identification of him or his family in Samoa and New Zealand.
[123]There is no appeal against those decisions.
43 R M v Immigration Protection Tribunal, above n 28.
[124] Consistent with those decisions, I make a similar order as to publication of the applicant’s name. In the publicly available version of this judgment, the applicant will be referred to as BP (Samoa).
Solicitors:
R R Ward, Barrister, Christchurch Crown Law, Wellington.
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