BR (Bangladesh) v Chief Executive, Ministry of Business, Innovation and Employment
[2018] NZHC 234
•23 February 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2017-404-001998
[2018] NZHC 234
UNDER The Immigration Act 2009 IN THE MATTER
of an application for leave to appeal
BETWEEN
BR (BANGLADESH)
Applicants
AND
CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT
First Respondent
CIV 2017-404-002001 UNDER
The Judicial Review Procedure 2016
IN THE MATTER
of an application for leave to bring judicial review proceedings
BETWEEN
BR (BANGLADESH)
Applicants
AND
IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENTSecond Respondent
Hearing: 7 February 2018 Appearances:
Applicants in person, supported by McKenzie Friend S Earl for Respondent
Judgment:
23 February 2018
BR (BANGLADESH) v IPT & MBIE [2018] NZHC 234 [23 February 2018]
JUDGMENT OF DUFFY J
This judgment was delivered by me on 23 February 2018 at 3.30 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors/parties:
BR Applicants, supported by McKenzie friend, Mr Bryan Johnson Meredith Connell, Auckland
[1] The applicants seek leave to appeal against and to judicially review a decision of the Immigration Protection Tribunal, (the Tribunal), dismissing their appeals against their liability for deportation. The Chief Executive of the Ministry of Business Innovation and Employment (the Chief Executive) opposes the applications.
[2] The applicants appealed to the Tribunal on humanitarian grounds. They have an intellectually disabled child, who suffers from epilepsy and autism. Since the child has been in New Zealand his condition has improved from the healthcare he has received here. He accompanied his parents to New Zealand, where his father made what became an unsuccessful claim for refugee status. The family have remained in New Zealand and are presently on visitors’ visas. They sought to resist liability for deportation on humanitarian grounds: namely, the child’s health condition which they contend is likely to deteriorate once he returns to his home country of Bangladesh. They also argued that the child’s life circumstances in Bangladesh would be harsh due to his health conditions and the way those conditions are viewed in that country.
[3] Section 207 of the Immigration Act 2009 (the Act) sets out the grounds for determining an appeal based on humanitarian grounds:
(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.
[4] That s 207 has three requirements, all of which must be established in order for an appeal to be allowed, is well settled.1 Further, the humanitarian circumstances “must be well outside the normal run of circumstances” and therefore they must be “truly an exception rather than the rule”.2
1 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.
2 At [34].
[5] In the present case the Tribunal found there were exceptional circumstances of a humanitarian nature. There was a wealth of evidence before the Tribunal to satisfy it of the child’s condition. In this regard the Tribunal concluded:3
The son is a young child with multiple disabilities who faces significant challenges. Any loss in medical, rehabilitation and educational opportunities will impact on his development. It is therefore accepted that the reduced care and educational opportunities in the son’s home country gives rise to exceptional humanitarian circumstances.
[6] However, when it came to determining whether it would be unjust or unduly harsh for the family to be deported the Tribunal concluded that it would not. In this regard the Tribunal found:4
Any harshness involved in the son and his parents’ deportation through … stigma and the loss of optimum care for the son’s condition does not go beyond what is acceptable to maintain the integrity of New Zealand’s immigration system. It would not be unjust and unduly harsh for the appellants to be deported from New Zealand.
[7] Because the Tribunal found the applicants failed to satisfy the second requirement it did not proceed to consider the final public interest requirement in s 207.
[8] The ability to challenge a decision of the Tribunal by appeal or judicial review in this Court is circumscribed. Such proceedings can only be brought with leave of this Court and this is only granted in certain relatively narrow circumstances. Save for one aspect relevant to judicial review, the tests for leave to appeal and to judicially review decisions of the Tribunal are well settled. An applicant must satisfy the Court the appeal or judicial review raises legal questions of general or public importance or for some other reason the matter ought to be considered by an appeal or judicial review.5 Regarding the latter, an applicant must also satisfy the Court the matter being raised cannot be dealt with adequately in an appeal.6
3 Re BR (Bangladesh) [2017] NZIPT 502795-96 at [47].
4 At [54].
5 Immigration Act 2009, ss 245(3) and 249(6)(b).
6 Section 249(6)(a).
[9] In LMN v Immigration and Protection Tribunal I summarised the approach for the granting of leave to appeal under s 245 of the Act as follows:7
Section 245 of the Immigration Act 2009 provides a right of appeal with leave to this Court against a decision of the Tribunal. The grounds for granting leave are narrow. In short, the applicant must show that his application raises a question in law of general or public importance, or which for any other reason should be submitted to this Court for its decision. Thus, factual errors or legal errors that are no more than a misapplication of existing legal principle to the particular facts of the case will not qualify. The effect of s 245 is to grant the Tribunal authority to misapply settled law to the facts of a case before it. Only if the legal errors have a wider significance that extends beyond the applicant will the Court have jurisdiction to grant leave to appeal. The key issue for determination, therefore, is whether the applicant has identified legal errors on the part of the Tribunal that extend beyond the individual case. Consideration also needs to be given to whether the applicant falls into the remaining category of providing “any other reason” for his appeal to be submitted to this Court for determination.
[10] In SK v Immigration and Protection Tribunal this Court found the approach followed in LMN for leave to appeal was also applicable when leave to commence judicial review proceedings was being considered.8
[11] For an issue to be one of general or public importance it must be seriously arguable: see Allada v Immigration and Protection Tribunal where Asher J opined that if an application has little or no prospect of success it follows that the issues are of limited general or public importance which points towards leave being refused.9
[12] In Machida v Chief Executive of Immigration New Zealand the Court of Appeal said of the “any other reason” ground for the grant of leave:10
In its practical application, s 245 requires an applicant to identify a seriously arguable question of law which either:
(a)has importance extending beyond the particular case (which is what “general or public importance” entails); or
(b)but for some other reason, warrants a decision from the High Court.
7 LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [2].
8 SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [7].
9 Allada v Immigration and Protection Tribunal [2014] NZHC 953, [2014] NZAR 880 at [36].
10 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8]..
Although category (b) is open ended, we agree with a series of decisions in the High Court which have held that it would only be in an exceptional case involving individual injustice to such an extent that the court simply could not countenance the Tribunal’s decision standing, that this alternative requirement could be met.
[13] Since I delivered the decision in LMN a line of authority has developed on the “any other reason” ground which has opened the basis for granting leave under that ground in relation to judicial review proceedings. In RM v Immigration Protection Tribunal Palmer J disagreed the “any other reason” ground in s 249(6)(b) of the Act was limited to exceptional cases.11 This was because Palmer J considered judicial review proceedings engaged constitutional and New Zealand Bill of Rights Act 1990 (NZBORA) considerations in a manner that appeal under s 245 of the Act did not.
[14] I acknowledge there may be reasons for taking a more expansive approach to s 249(6)(b) of the Act when constitutional and NZBORA issues feature in a proceeding. For example in Li v Immigration and Protection Tribunal I found that a potential breach of natural justice by the Tribunal in a particular case warranted the grant of leave to judicially review for raising questions of general and public importance, because it was of general and public importance that the Tribunal discharged its functions in accordance with the requirements of natural justice and s 27 of the NZBORA.12
[15] The present case, however, does not qualify for the grant of leave on any recognised approach to either ss 245 or 249. The applicants were hampered by not having legal representation. Nonetheless, there is nothing a lawyer could have done to assist them to advance their case.
[16] First, they argue that because the Tribunal found their case met the exceptional circumstances of a humanitarian nature it necessarily followed it would be unduly harsh and unjust to deport them. This argument fails to recognise the separation between those two requirements, which is well settled.13
11 RM v Immigration and Protection Tribunal [2016] NZHC 735 at [37].
12 Li v Immigration and Protection Tribunal [2017] NZHC 2354.
13 Ye v Minister of Immigration [2009] NZSC 76; [2010] 1 NZLR 104.
[17] Secondly, their case argues against the Tribunal’s finding that it would not be unduly harsh or unjust for them to return to Bangladesh. In this regard their argument challenges a factual finding of the Tribunal and the evidential assessment on which the finding rests. Such arguments do not raise questions of law let alone qualify as being of general or public importance. That is also well settled.14 Nor do such arguments satisfy the “any other ground” basis for leave, even on the expanded view expressed in RM v Immigration Protection Tribunal.
[18] As the Supreme Court noted in Ye the question of what is unduly harsh and unjust:15
”… goes beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system.
[19] New Zealand does not permit permanent entry of persons with serious health conditions. The child’s condition in this case would always have been a disqualifying factor had the applicants otherwise qualified for the grant of residence. Accordingly, to allow them to remain in New Zealand would undermine the integrity of the health requirements for the grant of residence, and thus the integrity of the immigration system. There is nothing unreasonable about the Tribunal’s decision. The Tribunal gave proper regard to all relevant considerations. It did not take any irrelevant consideration into account. The decision was reached in accordance with proper process. In short, the decision cannot be faulted in terms of the relevant legal tests. Whilst the outcome will impact adversely on the applicants and their child that is not a proper basis for granting them leave. Accordingly, leave is declined and the applications for leave are dismissed.
Result
[20] Leave to appeal and to bring judicial review proceedings and the applications are dismissed.
[21]Leave is reserved to the parties for filing memoranda on costs.
14 See Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [9].
15 At [35].
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