Broms v Immigration and Protection Tribunal
[2025] NZHC 2077
•28 July 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2024-409-053
[2025] NZHC 2077
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of a decision of the Immigration and Protection Tribunal
BETWEEN
ROBERT ANTHONY BROMS
Applicant
AND
IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
THE MINISTER OF IMMIGRATION
Second Respondent
CIV-2024-409-551 UNDER
sections 247 and 249 Immigration Act 2009
IN THE MATTER
of an appeal against a decision of the Immigration and Protection Tribunal
BETWEEN
ROBERT ANTHONY BROMS
Appellant
AND
THE MINISTER OF IMMIGRATION
Respondent
Hearing: 30 April 2025 Appearances:
J D Lucas for Applicant/Appellant
I M G Clarke for Minister of Immigration (Second Respondent –
-53/Respondent -551)No appearance for Immigration and Protection Tribunal (First Respondent -53)
Judgment:
28 July 2025
BROMS v IMMIGRATION AND PROTECTION TRIBUNAL [2025] NZHC 2077 [28 July 2025]
JUDGMENT OF OSBORNE J
Introduction
[1] Robert Broms, a 34 year old Australian national with a residence class visa to be in New Zealand first held on 5 October 2016, was in February 2022 served by the Minister of Immigration (Minister) with a deportation liability notice (Notice) pursuant to s 161 Immigration Act 2009 (the Act).
[2] Mr Broms appealed his liability for deportation to the Immigration and Protection Tribunal (Tribunal). The Tribunal had a teleconference with Mr Broms on 3 May 2022 to set a timetable for further evidence and submissions and to discuss arrangements for the hearing. The Tribunal’s directions were emailed that day. The appeal was the subject of a hearing on 1 June 2022. The hearing was conducted with Mr Broms participating remotely by audio visual link (AVL). The hearing commenced at 10.00 am and concluded at 11.25 am. The Tribunal issued a decision on 8 July 2022, declining the appeal because there were no exceptional circumstances of a humanitarian nature (Deportation Decision).1
[3] Mr Broms applied for leave to appeal and to seek judicial review of the Deportation Decision. Leave was granted (the Leave Judgment).2
[4] The two proceedings were directed to be heard together. This is the judgment in relation to both proceedings.
The pleadings
Review application
[5] In the judicial review proceeding (review proceeding) Mr Broms pleads one cause of action, namely, a breach of the principles of natural justice in the lead up to and the conduct of the hearing by the Tribunal.
1 Broms v Minister of Immigration [2022] NZIPT 600716 [Deportation Decision].
2 Broms v Minister of Immigration [2023] NZHC 3874 [Leave Judgment].
The appeal
[6] By his notice of appeal Mr Broms asserts a single ground of appeal, namely that five identified matters either leading to or associated with the Tribunal hearing amounted to a breach of Mr Broms’ right to natural justice pursuant to s 27 New Zealand Bill of Rights Act 1990 (NZBORA). The five matters which led this Court to give leave to Mr Broms to appeal were set out in the Leave Judgment.3 Leave was granted on the basis these five matters, although not on their own amounting to a seriously arguable error of law or ground of review, collectively justified the granting of leave to appeal.4 The narrative explanation of the identified issues (collectively the “Leave Judgment issues”), as recorded by Harland J was:5
(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
3 Leave Judgment, above n 2, at [76].
4 At [77].
5 At [76].
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.
The issue in the review proceeding
[7] In a Minute issued after the Leave Judgment, Harland J stated the issue to be determined in the review proceeding pursuant to s 249(7) of the Act as:6
Did the cumulative effect of the [Leave Judgment issues] amount to a breach of the applicant’s right to natural justice pursuant to s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA)?
Mr Broms’ participation in his appeal
[8] In seeking leave to pursue matters before this Court, Mr Broms referred to a variety of matters as summarised in the Leave Judgment issues (above at [6]). In seeking leave, Mr Broms was acting in person. For the purposes of this appeal, Mr Lucas understandably focused his submissions on a breach of natural justice more narrowly. He categorised the alleged breaches as being:
6 Broms v Minister of Immigration HC Christchurch CIV-2024-409-053, 9 August 2024 (Minute) at [5(a)].
(a)the lack of information given to Mr Broms about the hearing;
(b)the lack of a support person for Mr Broms;
(c)the fact the AVL hearing was “heard” at Mr Broms’ workplace; and
(d)the fact Mr Broms thought he could not call any witnesses, based on a telephone conference meeting and subsequent email.
The statutory framework
[9] The purpose of the Act, as identified in s 3(1), is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals.
[10] To achieve that purpose, the Act by s 3(2) establishes an immigration system that includes a specialist tribunal to consider appeals against decisions made under the Act and to consider humanitarian appeals. That tribunal is the Immigration and Protection Tribunal.7
[11] Pursuant to s 161(1)(a)(iii) of the Act, a person holding a residence class visa is liable for deportation if they are convicted of an offence that carries a term of imprisonment of three months or more and the offence was committed not later than two years after they first held a residence class visa. Pursuant to s 161(1)(b) of the Act, a person holding a residence class visa is liable for deportation if they are convicted of an offence that carries a term of imprisonment of two years or more and the offence was committed not later than five years after they first held a residence class visa. Mr Broms accepts he was liable under s 161(1)(a)(iii) and s 161(1)(b).
[12] A person liable for deportation under s 161 of the Act may, within 28 days of being served with a deportation liability notice, appeal to the Tribunal on humanitarian grounds against their liability for deportation.8
7 Immigration Act 2009, s 217(1).
8 Sections 161(2)(a).
[13] Section 207(1) of the Act identifies the qualifying (mandatory) grounds for allowing an appeal, by providing:
(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.
[14] The decision of the Supreme Court in Ye v Minister of Immigration (Ye) provides the leading authority on the “exceptional circumstances test”.9 While the case was determined with reference to s 47(3) Immigration Act 1987 (the 1987 Act) (the predecessor provision to s 207(1) of the 2009 Act), the two statutory provisions are materially similar, and the guidance in Ye continues to apply.10
[15]In Ye, the majority observed of the s 47(3) outcome:
[34] That brings us back to the first criterion in s 47(3) which has the following ingredients: (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand. The need for the circumstances of the case to be exceptional means that those circumstances must be well outside the normal run of circumstances found in overstayer cases generally. The circumstances do not have to be unique or very rare but they do have to be truly an exception rather than the rule. It is unnecessary and undesirable to attempt to define the compass of the word “humanitarian”. It is unlikely to be difficult to decide whether the circumstances of a particular case fulfil that description. If there are exceptional circumstances of a humanitarian nature, it is then necessary to determine whether they make it unjust or unduly harsh to remove the person from New Zealand.
[35] The qualification of the word “harsh”, by the word “unduly”, recognises that there may be some degree of harshness in removing an overstayer from New Zealand. In particular some degree of harshness may be involved where the removal affects New Zealand citizen children. But the statutory test is couched on the basis of undue harshness. Undue in this context means that the harshness goes beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand's
9 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.
10 Section 47(3) Immigration Act 1987 provided:
An appeal may be brought only on the grounds that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand.
immigration system. That is why a generic concern on that account is not enough to outweigh fulfilment of the first criterion in s 47(3).
…
[38] … Whether the particular exceptional circumstances give rise to the necessary injustice or undue harshness is a matter for the assessment of the decision-maker. It will depend on how compelling or persuasive the exceptional circumstances are. …
[16] In Ye, the majority also considered how the interests of children fall to be taken into account under s 47(3). The Court held, in cases involving children, the best interests of the children were to be a primary consideration, but the effect to be given to them was a matter of assessment to be made against all the other relevant circumstances.11 A primary consideration of children’s interests identified in art 3(1) of the United Nations Convention on the Rights of the Child (UNCROC)12 does not mean the primary consideration, much less the paramount consideration.13
[17] Section 226(1) of the Act places on the appellant the responsibility of providing to the Tribunal the material the appellant wishes to have considered:
226 Proceedings on appeal or matter
(1)It is the responsibility of an appellant or affected person to establish his or her case or claim, and the appellant or affected person must ensure that all information, evidence, and submissions that he or she wishes to have considered in support of the appeal or matter are provided to the Tribunal before it makes its decision on the appeal or matter.
…
[18] Pursuant to s 228 of the Act, the Tribunal when considering an appeal may, but is not obliged to, seek information, evidence or submissions further to those provided by the appellant. The Court of Appeal in the Minister of Immigration v Wu recognised the Tribunal, by reason of the provisions in s 228, is “fully entitled to restrict its enquiry to the material provided by the appellant [and other parties]”.14 There
11 Ye, above n 9, at [24].
12 United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990).
13 Ye, above n 9, at [24].
14 Minister of Immigration v Wu [2019] NZCA 237, [2019] NZAR 1217 at [42].
accordingly is no obligation on the Tribunal to notify appellants whenever the evidence they have filed is inadequate or wanting.15
The Tribunal’s procedural rules and protocols
[19] Schedule 2 to the Act contains, pursuant to s 237 of the Act, provisions as to the Tribunal’s procedure.
[20] As explained by Rodney Hansen J in Kumar v Minister of Immigration, the legislation (in that case the 1987 Act) emphasises the informality of an appeal proceeding.16
[21] Pursuant to cl 13 of sch 2, parties may either appear personally or be represented—it was observed in Kumar that legal representation may advantage an appellant but it is by no means essential to a fair hearing and there is no expectation under the procedural provisions that an appellant will be represented by legal counsel.17
[22] Pursuant to s 218 of the Act, the Tribunal, in carrying out its role, may conduct the proceedings as it sees fit, either inquisitorially or adversarially or both.
[23] Under s 222(4) of the Act, the Tribunal may regulate its procedures as it sees fit, subject to the Act and any regulations made under the Act.
[24] In relation to an appeal of the nature here, the Tribunal is required by s 233(1) to hold an oral hearing (as contrasted with a hearing on the papers). By cl 18A of sch 2 the (oral) hearing of a matter or any part of it may be conducted by telephone, audiovisual link (AVL), or other remote access facility if the Tribunal considers it appropriate and the necessary facilities are available. In AJ (Ghana) v Refugee Protection Officer, involving an application to judicially review a decision of the
15 C v Chief Executive of Ministry of Business, Innovation and Employment [2014] NZHC 2655 at [42].
16 Kumar v Minister of Immigration [2013] NZHC 546, [2013] NZAR 529 at [29].
17 At [28]–[29].
Tribunal, Fitzgerald J in 2019 recognised evidence was regularly being given by AVL in both the District and High Courts.18
[25] With the onset of COVID-19, the Tribunal published protocols to address needs that arose. An initial protocol in December 2021 (2021 Protocol),19 was followed by a protocol of 12 April 2022 (2022 Protocol).20 The Protocols provided the appropriateness of an in-person hearing depends on the current traffic light level as well as the circumstances of the particular case. Where an in-person or on-premises hearing cannot occur, the Protocols provided for remote hearings with those involved attending from different locations including, by way of example, a dedicated AVL room at a District Court; a room at the person’s home; or some other venue which provided suitable privacy. The Protocols record (among other requirements):
It is the responsibility of the appellant to ensure that he or she (and any witness) has available on the day of the hearing:
·a private room;
·a device which is able to be connect[ed] to the Ministry’s AVL facilities by VMR or MS Teams; and
·sufficient data.
[26] Under the Protocols, the appellant is required to confirm they have made such arrangements prior to the hearing. The Protocols also provide for a test of the remote participation arrangements to be conducted at least three days before the hearing.
[27] Mr Lucas, for Mr Broms, suggested this Court has in the past held that AVL connections for substantive hearings can be “fraught with risk”. He cited an observation by Stevens J in 2007 (in Deutshe Finance New Zealand Ltd v Commissioner of Inland Revenue) that:21
With the benefits of video link technology come challenges that the Court must actively consider and deal with, lest enhancement and efficiency in process come at the expense of the requirements of natural justice, more specifically fairness to all parties.
18 AJ (Ghana) v Refugee Protection Officer [2019] NZHC 2387, [2020] NZAR 494 at [45].
19 COVID-19 Protocol of the Immigration and Protection Tribunal, 9 December 2021.
20 COVID-19 Protocol of the Immigration and Protection Tribunal, 12 April 2022.
21 Deutshe Finance New Zealand Ltd v Commissioner of Inland Revenue (2007) 18 PRNZ 710 at [17].
[28]In the passage cited by Mr Lucas, the Judge continued:
An issue in the present application is whether it would be fair to the defendant for his counsel to have to cross-examine the plaintiff's witnesses by video link. It was argued on behalf of the defendant that there is the potential risk of compromising the extent to which he will be able fully and vigorously to pursue his case.
[29] In the event, Stevens J found in Deutshe Finance evidence by way of video link was appropriate notwithstanding the concerns of the defendant’s lawyer as to potential impediments to effective cross-examination. An appropriate protocol was to be put in place relating to the giving of video link evidence.22 I accordingly do not regard the observations of Stevens J in Deutshe Finance as characterising AVL hearings generally as “fraught” with risk. What the decision recognises is the responsibility of the Court to ensure that any AVL hearing is fairly conducted. As in Deutshe Finance, that need will be substantially addressed by the use of a protocol. From 2021 the Tribunal had such a protocol, including the 2022 Protocol which applied to Mr Broms’ case. Mr Lucas did not suggest the 2022 Protocol was deficient.
Background circumstances
[30] With the advantage of the narrowing of issues identified at [8] above, I will set out the events leading up to and at the hearing that are relevant to those identified issues.
[31] Mr Lucas submits Mr Broms was at a disadvantage in relation to the hearing due to “his past, his medical issues and the lack of legal training”. In the submissions Mr Broms made to Harland J on his leave application, Mr Broms submitted a head injury caused him difficulty in processing and understanding information, particularly information given during phone calls.23 Those submissions gave rise to the Judge’s identification of issue (d) among the Leave Judgment issue (above at [6]).24
[32] The evidence filed by Mr Broms as to a head injury issue is limited. In terms of evidence that might have been expected to touch on such an issue, I have read the
22 At [39]–[41] and [45].
23 Leave Judgment, above n 2, at [38](b).
24 At [76].
psychological assessment of Dr Karla Mattson dated 21 October 2022 which Mr Broms submitted in support of his leave application. Dr Mattson refers in detail to the impact of stress and heavy substance abuse upon his mental health functioning, following a clinical interview and other investigations. Dr Mattson makes no reference to a brain injury, let alone to a brain injury affecting Mr Broms’ functioning.
[33] What Mr Broms has subsequently deposed is this. He states (when explaining a lack of concentration during a teleconference on 3 May 2022) below at [54]–[55]) that:
The call was taken at work while I was in my induction phase (in the transcript) and I could not concentrate clearly on what was being said, as this was official and intimidating. Due to my head injury resulting from an accident where I was not at fault, and I was in a coma for over a month, I struggle to interpret long complicated verbal instructions.
This becomes considerably worse when I am in a stressful situation. This is embarrassing, exhausting and often very confusing. This means that I rely on written documentaton [sic] a lot more now to interpret and retain information.
[34] There is a troubling lack of detail in Mr Broms’ reference to a head injury and a long coma, particularly when he apparently did not mention such a significant issue to the psychologist who was to report on his functioning. I do not reject entirely the suggestion Mr Broms at some point suffered a head injury but, given the sparsity of evidence and having regard to Dr Mattson’s report, I cannot place significant weight on it.
[35] In the context of an appeal based on a breach of natural justice, there is nothing in the record before the Tribunal to indicate that Mr Broms provided any information relating to focus difficulties arising from a head injury. The Deportation Decision records Mr Broms’ health circumstances as identified to the Tribunal—long-standing problems with heavy alcohol consumption and recreational drug-use and (in 2014) a serious motorcycle accident, causing serious injuries to his lower body, and consequential problems associated with the accident and his lifestyle.25
25 Deportation Decision, above n 1, at [12]–[13].
[36] Relevant to the grounds Mr Broms now seeks to advance, is the explanation Mr Broms gave to Dr Mattson, as recorded in her report:
Rob stated that he had previously received the first Deportation Liability Notice. He completed the required questions and sent the information back. However, he did not receive any further information or a response until he received the second Deportation Liability Notice. Rob once again completed the required information and returned [t]he component of the notice. Rob acknowledged that he initially believed that the process would be straightforward and may not result in any significant consequences, as that was his experience after the initial Deportation Liability Notice. … Rob described his interactions with his case manager as negative, disrespectful and unhelpful. He was unclear about that person’s role and they failed to provide him with adequate information to assist in the preparation for the Deportation hearing. For Rob, this meant that he was unsure about what information would be helpful to present to the Tribunal. The uncertainty contributed to Rob experiencing a high level of anxiety, in addition to the pre-existing anxiety regarding the potential consequence of deportation. A facilitator contacted Rob to inform him about the process of the hearing, which was to be conducted via video conferencing. … The physical environment was not conducive to a private meeting, when he needed to focus and pay attention to the hearing. Specifically, he was in a common area at work, meaning that other individuals entered the room and/or were close engaging in their day-to-day behaviour within the workplace. Rob described that he felt pressured to get through the meeting as quickly as possible, did not feel safe to disclose private information and could not pay complete attention to the hearing. The combination of these factors (heightened anxiety and a distracting physical environment) likely meant that Rob’s cognitive, resources and ability to comprehensively present his case were compromised. Additionally, Rob he did not seek legal counsel for that hearing, on 1 June 2022 primarily due to the lack of information describing the content, purpose and seriousness of the hearing. Rob clearly stated during the current assessment that it was not made clear to him that having legal representation was advisable, and he subsequently regrets not engaging such representation. He firmly believes that if he had more professional support and advice during the hearing of 1 June 2022, he would have presented his case differently. Specifically, he would have known what information the Tribunal would find helpful to their decision making. He also did not have his primary support person (his partner) present due to their uncertainty about the protocol for such provisions.
Events leading up to the June 2022 hearing
[37] Upon the filing of Mr Broms’ appeal against his Deportation Liability Notice, the Tribunal assigned Mr Broms a case manager.
[38] The first discussion between the case manager and Mr Broms related to the payment of the filing fee on the appeal, which had to be paid no later than 28 February 2022. Mr Broms had in fact paid the filing fee. The case manager was seeking the
receipt of that payment. Mr Broms states the case manager became “unexpectedly accusatory and aggressive” in the course of the conversation and replied that Mr Broms was not taking the matter seriously. Mr Broms says that he became unnecessarily stressed through this conversation, which was overheard by his partner (who has by affidavit confirmed Mr Broms’ description of the conversation). The case manager has provided an affidavit in which he states he does not recall anything unusual about the call or raising his voice and never found dealing with Mr Broms any trouble.
[39] Mr Broms deposes to having “another phone call later on” with the case manager. He states that the case manager asked how he was going and told Mr Broms he could not help Mr Broms in any way. Mr Broms says the case manager told him that he “had nothing to worry about” and they tested the meeting link. Mr Broms deposes that at no point was he advised by the case manager that he could have a lawyer or support person with him during the hearing. He says that as a result he was left feeling uncertain about what his rights were, what he was allowed to do, and how to proceed. He says the case manager simply advised that he gather “a lot of documents” for the hearing but that the case manager said that he could not provide any further guidance or assistance in determining what documents were needed nor offer any support in the preparation process.
[40] In his affidavit, the case manager confirms he had further discussions with Mr Broms before the hearing. He describes the purpose as being to check Mr Broms was receiving the information sent about the hearing and how it would take place. He states he would never say there was nothing to worry about in terms of the outcome of the deportation appeal but deposes he often says to people who have no lawyer that the Tribunal is more informal than a Court and it is not necessary to have a lawyer. He says he provides “general reassurance” by explaining what a party can expect because it is often their first dealing with the judicial system. He deposes he does not remember whether he discussed with Mr Broms having a lawyer specifically and says he does not give recommendations either way about whether a person should have a lawyer or about other decisions about how they bring an appeal. He states he has no recollection of Mr Broms asking about bringing a support person and that, had Mr Broms so asked,
he would have advised him a support person could attend but could not at the same time be a witness.
[41] What is clear from the evidence of both Mr Broms and the case manager is that the case manager avoided giving Mr Broms any advice as to how best to present his case. In relation to Mr Broms’ recollection of being told he had “nothing to worry about” it is apparent he has taken from a discussion about the relative informality of the Tribunal’s process the unwarranted inference that a favourable outcome was more or less inevitable—it plainly was not.
[42] In relation to written information, Mr Broms deposed he had not received two important letters sent by the Tribunal on 28 February 2022 and 25 March 2022.
[43]I will first describe the content of those two letters.
[44] The Tribunal’s 28 February letter was addressed to the two addresses provided by Mr Broms when filing his appeal in 24 February 2022, namely a street address in Kaiapoi and an email address. The case manager acknowledged receipt of the notice of appeal. He then made reference to the need to promptly seek legal aid if that was being done. He recorded a copy of the departmental file would be provided to Mr Broms. He then recorded four matters that would need to be attended to:
(a)the completion by Mr Broms of a form regarding witnesses;
(b)the need for Mr Broms to start gathering documents he wanted to rely on in his appeal;
(c)the need for Mr Broms to immediately notify the Tribunal in writing of any change of address for contact and to notify the Tribunal of any wish to have a representative act on the appeal (using Form 8 available on the Ministry website);
(d)there would be contact from the case manager soon to arrange a telephone conference within the next four weeks to discuss pre-hearing matters.
[45] The case manager then set out details of the 2021 (COVID-19) protocol which applied at that time.
[46] The Tribunal’s 25 March letter to Mr Broms gave notice of the hearing date (1 June 2022) at 10.00 am, to be conducted under the 2021 Protocol. The case manager explained the hearing might need to be held remotely using AVL, depending on the Traffic Light setting and other factors. The letter recorded:
If the hearing needs to be held by AVL, you will need to be able to attend the hearing from a private room, on a device with a strong and stable internet connection with sufficient data for the hearing. If necessary, arrangements may be able to be made for you to participate in the hearing from a dedicated AVL room at a District Court or in a room at the Tribunal. Alternatively, the hearing may be able to be held by AVL at the Tribunal's premises, but with each person in a different room (an “on premises” hearing).
[47] The case manager then gave details of the pre-hearing phone call that would take place before the hearing, “to get everything ready for the hearing”. Mr Broms was invited to join a pre-hearing phone call on 3 May 2022 to talk about matters including the logistics and planning for the hearing; witnesses; evidence; written submissions; and any issues or concerns Mr Broms had about the hearing.
[48] Mr Broms, having deposed that he did not receive the 28 February and 25 March letters, explained the postal system in Kaiapoi was unreliable, he was staying with his partner at that point, and that he regularly checked for mail at his old address but did not receive the two letters. He deposes that when he received the telephone conference call on 3 May 2022 he assumed it was the Tribunal checking to see how things were going before the hearing.
[49] The case manager from his personal knowledge and from the Tribunal’s records has referred to the way in which the 28 February and the 25 March correspondence was sent to Mr Broms. The 28 February letter was sent to Mr Broms at his email address. The 25 March letter was sent to Mr Broms both to his email address and also by courier, with the track and trace ticket confirming it had been delivered to Mr Broms’ Kaiapoi address.
[50] The case manager identified that he had also emailed to Mr Broms, on 29 April 2022, a reminder as to the scheduled 3 May 2022 teleconference and referred Mr Broms to the 25 March notice of hearing which explained how to dial into the teleconference. When Mr Broms filed the affidavit to which I am referring, he explained he had on 3 May 2022 received the email by which the Tribunal recorded the directions arising from the 3 May teleconference. Mr Broms exhibited the email as received. It is addressed to precisely the same email address as that used by the case manager for the 28 February and 25 March correspondence.
[51] The case manager deposes he never received any “bounce-back” notifications as to any of the three emails not being delivered for any reason.
[52] Significantly, Mr Broms in his affidavit evidence, while deposing that he had not received written correspondence and giving an explanation for that, did not state that he had not received the 28 February and 25 March emails. Nor is there any plausible explanation as to why he would not have received the emails given he received the 29 April email addressed to the same email address.
[53] I am satisfied on the evidence that Mr Broms did receive, by email, the 28 February and 25 March correspondence.
[54] In terms of information, the next event Mr Broms discussed in his affidavit was the teleconference on 3 May 2022. He deposes he was at work during the teleconference and could not concentrate clearly on what was being said—he described the teleconference as “an official and intimidating conversation”. He says the case manager advised him he would send minutes out detailing the conversation in full which he should read. Mr Broms deposed he “never got any full minutes, besides an email”. He exhibited the email. As the matters recorded and the directions made in the email are of significance I set them out in full:
Following the telephone conference held on 3 May 2022 the Tribunal records that:
1.Mr Broms will be the only witness in person and the parties agree that the hearing will require one hearing day.
2.The hearing is expected to take place remotely. The Member will hear the appeal from the Tribunal’s hearing rooms in Auckland. The appellant will join from his private address in Christchurch and Ms Hill will join from Wellington.
The Tribunal therefore gives the following directions under section 222(4) of the Immigration Act 2009:
1.The hearing date of Wednesday 1 June 2022 is confirmed.
2.The hearing is to be held remotely.
3.The expected duration of the hearing is 1 day.
4.If Mr Broms is to file any of the following documents he must do so by Wednesday 18 May 2022:
a.a written statement from the appellant;
b.any witness statements from every person to be called as a witness;
c.any additional documentary evidence.
5.At the same time, Mr Broms must forward a copy of any material he files to counsel for the respondent.
6.Counsel for the respondent is to file with the Tribunal and serve on Mr Broms, opening submissions in respect of the appeal and copies of any additional documents, by Friday 27 May 2022.
7.Mr Broms will have an opportunity to respond to Counsel’s submissions at the hearing on 1 June, but may respond in writing before the hearing if he wishes.
Further the Tribunal would like to have a test run for the hearing connecting everyone remotely.
Please advise me what date and time suits you in the week starting 23 May 2022. I will then set down a time and date and I will send you instructions as to how to join the video conference.
[55] The case manager in his affidavit confirmed he had sent out the Tribunal Member’s directions by the 3 May email and deposed that case managers do not provide minutes of teleconferences.
Lack of a support person for Mr Broms
[56] Mr Broms in his affidavit deposed on the two topics of having legal representation and the support of a support person:
At no point did [the case manager] advise me that I could have a lawyer or a support person with me on the [3 May] call. As a result, I was left feeling uncertain about what my rights were, what I was allowed to do, and how to proceed.
[57]The case manager in his affidavit recorded:
I don’t remember whether we discussed Mr Broms having a lawyer specifically, but as a case manager I do not give recommendations either way about whether someone should get a lawyer, or other decisions about how they bring the appeal.
I also don’t remember Mr Broms specifically asking about bringing a support person. However, had he asked, I would have advised a support person could attend, although noting they could also not be a witness.
[58] Mr Broms’ evidence as to not being advised by the case manager he could have a lawyer has not been pursued as one of its grounds at this hearing. Given my finding that he received the Tribunal’s 28 February letter by email, Mr Broms was clearly on notice of his ability to have a representative act on the appeal.
[59] That leaves his complaint that he lacked a support person at the Tribunal hearing and his underlying evidence that he was unaware of his ability to have a support person. I find there is no evidence that the concept of a support person was identified or discussed with Mr Broms in the period before the hearing. But nor has Mr Broms suggested he made any enquiry of the case manager or the Tribunal in that regard. It is far from clear that Mr Broms would have had a suitable support person as, in his discussions with the Tribunal Member in the 3 May teleconference he indicated, when discussing potential witnesses, that he had kept information surrounding his immigration matters from both his mother and his partner.
[60] On the other hand, an aspect of the evidence given by Mr Broms indicates Mr Broms understood he could have a support person.
[61] In an earlier affidavit, Mr Broms had provided more detail as to the circumstances leading him to attend the hearing by AVL from his workplace. He there recorded:
[My partner] and I requested the day off work so we could do the call together at home where I would be relaxed, supported and not interrupted. I had a lot I
wanted to say, including everything that we are now presenting. We did the call test at home and that was all set up and ready to go.
The day before the hearing my boss said we were too flat out at work and I could not have the day off but could just use the display room in the factory for the call and take off the couple of hours for the call. This would mean that [my partner] could not be there with me. We were upset and very stressed about this and made plans for [my partner] to drop off her computer to me.
[62] While Mr Broms’ evidence in his successive affidavits appears internally inconsistent—he wanted to keep information from his partner but he wanted her present as a support person—on his sworn evidence he clearly understood he could have a support person present.
The fact a VMR hearing was “heard” at Mr Broms’ workplace
[63] The following summary of the teleconference discussions is derived from the transcript of the 3 May teleconference.
[64] During the teleconference, the Tribunal Member discussed the various options for how the hearing would proceed (having regard to the COVID-19 situation). He indicated it was likely to be a remote hearing and that Mr Broms could come up to [Tribunal] rooms in Auckland or the hearing could be conducted with AVL facilities. Mr Broms enquired whether he could do that “on his own” or whether he had to go to a courthouse to do that. The Tribunal member explained that Mr Broms did not necessarily need to go to a courtroom but that he would need sufficient data and probably a laptop—otherwise it would be best to go to the District Court to use facilities there.
[65]Mr Broms indicated he expected to be able to arrange a laptop.
[66] When the Tribunal Member asked him if he would have sufficient data and be able to do that from home, Mr Broms replied “yep”.
[67] In the directions emailed to Mr Broms promptly after the teleconference (above at [54]), the Tribunal confirmed the hearing would be held remotely with Mr Broms attending from his private address, and that there would be a test run for the hearing
connecting everyone remotely, with instructions to be given on how to join the video conference.
[68] In his affidavit, Mr Broms noted the understanding set out in the 3 May email that there would be a remote hearing and that he would join from his home address. Mr Broms then deposed:
However, I’m not sure where that information came from, because I was going to be at work that day. I had originally had a day of leave planned on the day of the hearing, but then was told by my boss that I had to work because he told me it can’t be that serious as it wasn’t a court hearing the matter.
[69] As noted, above at [63]–[66], the transcript of the 3 May teleconference confirms (contrary to Mr Broms’ evidence) the fact he would be joining the conference from his home was discussed.
[70] It is apparent when the evidence is fully considered that Mr Broms had a change of plan after the 3 May teleconference had taken place, which was arrived at following a discussion between Mr Broms and his employer. There is no suggestion the Tribunal was alerted to any difficulty Mr Broms would experience in participating from the different location.
[71] In fact, to the contrary, when the hearing commenced on 1 June 2022 it was evident to the Tribunal Member and counsel appearing for the Minister that Mr Broms was not at home. The transcript of the appeal hearing records that, Mr Broms confirmed he was at work. The Tribunal Member asked how private the room was, to which Mr Broms replied: "It's locked, it's our display room so it's locked and my boss knows that I've got this room for today".
[72] It is Mr Broms’ evidence that he was offered the display room at work as a location for his call and that he could take a “couple of hours off” to attend the hearing. (I note he in fact told the Tribunal (above at [71]) he had the room “for today”. Mr Broms exhibited a letter from his employer confirming that the business had been exceptionally busy finishing off projects. She stated she did not understand at the time the importance of the call and, in hindsight, ideally would have given Mr Broms the day off to focus on his hearing.
[73] What emerges from this evidence is that Mr Broms did not either insist that his employer give him the day off (for what was scheduled to be a full-day hearing) or alternatively contact the Tribunal to explain the situation and request an alternative date of hearing.
[74] Mr Broms’ evidence is that while he was participating in the hearing from the display room, there was a lot of workplace noise around and he was coming under pressure to hurry up by a manager outside the window, causing him to be stressed and to feel like he had to get the hearing over and done with. I note his affidavit evidence does not include the assertion made to Dr Mattson (above at [36]) that, while he was in the display room attending to the hearing “individuals entered the room”.
[75] I conclude there is insufficient evidence to support Mr Broms’ accounts as to difficulties he experienced with using the display room at work.
[76] Regardless of the extent of difficulties encountered by Mr Broms, what I do find clearly established is that any degree of distraction suffered by Mr Broms on the day was not evident to the Tribunal Member in the course of the hearing—Mr Broms had confirmed he was in a locked, private room and in a position to proceed with the hearing.
Inability to call witnesses
[77] In his affidavit, Mr Broms deposes that, had he known that witnesses would have been able to be called, he would have required 10 named witnesses to “come along”. He exhibited to his affidavit statements or letters from the named persons, who included his partner’s parents and sister. Mr Broms referred to the 3 May email and in particular the note that “Mr Broms will be the only witness in person and the parties agree that the hearing will require one hearing day”—he said he and his partner both took that to mean he was the only one who could give evidence. His partner in her affidavit deposed the couple believed Mr Broms was required to be alone during the call and that those who had submitted support letters would be contacted separately to provide further evidence.
[78] The 3 May email (above at [54]) commences with the words “Following the teleconference held on 3 May 2022 the Tribunal records that: …” followed first by the observation that Mr Broms would be the only witness in person.
[79] This aspect of the 3 May email was clearly a recording of points that had been reached during the course of the teleconference. The transcript indicates the matters set out in the 3 May email are accurate records. Contrary to Mr Broms’ partner’s evidence, the email provided no basis for a belief that those who had submitted support letters would be contacted separately to provide further evidence. The 3 May email must be read against the background of the immediately preceding teleconference. The Tribunal member had discussed with Mr Broms the potential to call witnesses to give evidence (beyond any written statements they had supplied). Mr Broms’ response was to observe not that he thought he could not call witnesses but to indicate why he would not call his mother and his partner in particular. He explained he desired to “keep to himself at the moment”.
Submissions
Mr Broms’ submissions
[80] Mr Lucas identified Mr Broms’ appeal and judicial review arguments are linked in that both argue the process and the outcome was unfair and wrong because Mr Broms was deprived of natural justice to have his case heard fairly by the Tribunal.
[81]Mr Lucas submitted, pursuant to s 27 New Zealand Bill of Rights Act 1990:
Everyone has the right to the observance of natural justice by any tribunal or public authority.
[82] Mr Lucas invoked observations of Harland J made in the leave judgment, observing:26
The right to natural justice exists in and of itself. In considering whether there has been a potential breach of this right, blame does not need to be appointed to another party.
26 Leave judgment, above n 2, at [78].
[83] Mr Lucas referred to the judgment of the Court of Appeal in a refugee status case under the 1987 Act, Singh v Attorney-General:27
The whole scheme of the legislation indicates the adoption of a process designed to ensure overall the fair consideration of applications in accordance with international obligations.
[84] Mr Lucas identified there is a required high standard of fairness, referring to the judgment of Elias J in Ali v Deportation Review Tribunal.28 Her Honour there observed:
The more significant the decision the higher the standards of disclosure and fair treatment. In cases involving immigration status, high standards of fairness are required by natural justice because of the profound implications for the lives of those affected.
[85] These observations were made in the context of the need for the affected party to have reasonable notice of the case they have to meet and a reasonable opportunity to present their case. Fisher J in Khalon v Attorney-General had observed that “the key elements are surprise and potential prejudice”, with which Elias J agreed.29
[86]Mr Lucas then focused on Mr Broms’ four areas of complaint (above from [8]).
[87] In relation to the information Mr Broms received about the hearing, Mr Lucas summarised Mr Broms’ evidence as indicating he had received “little to no assistance from his case manager”.
[88] In relation to the assistance of a support person, Mr Lucas observed there had been no discussion during the 3 May teleconference of whether Mr Broms should have a support person present.
[89] Mr Lucas then turned to the third and fourth areas of complaint, focusing on the use of video link technology for the appeal hearing on 1 June 2022.
27 Singh v Attorney-General [2000] NZAR 136 (CA) at [17].
28 Ali v Deportation Review Tribunal [1997] NZAR 208 (HC) at 220.
29 Khalon v Attorney-General [1996] 1 NZLR 458 (HC) at 466; see also Ali v Deportation Review Tribunal, above n 28, at 220.
[90] Mr Lucas acknowledged that VMR was allowed to be used by the Tribunal to conduct the hearing but identified the Tribunal itself by the Protocol had identified the appropriateness of a virtual hearing will depend on the circumstances of the case. He referred to the observations of Stevens J in the Deutshe Finance case ([29]) above).30
[91] Mr Lucas submitted the Tribunal Member should have been on notice that “something was not right” when Mr Broms dialled in alone from his workplace. The known intention was that Mr Broms would dial in from home, which would have offered a suitable location to have the hearing. Mr Lucas identified the workplace as a “less than salubrious location” and submitted it is obvious a deportation hearing should not take place in a person’s workplace. He pointed to the risks of distraction by external factors (such as co-workers) and internal factors (such as the party becoming distracted by work considerations). He submitted the use of a work location also militates against the party being able to call witnesses, who would have to come into the employer’s workspace premises.
[92] Mr Lucas referred to Mr Broms’ evidence as to his mental state and stress, and submitted that Mr Broms had been “hamstrung by the circumstances of what happened before the hearing”.
[93] Mr Lucas submitted the Tribunal Member, when it was apparent Mr Broms was at work, should have asked why there had been a change of location; whether Mr Broms had a support person present; and whether he had witnesses he wanted to call.
[94] Mr Lucas submitted Mr Broms was disadvantaged by an ambiguity in the 3 May email which led Mr Broms to believe he was to be the only person in the room and was only to provide written references from other people.
[95] Mr Lucas referred to the “wealth of witnesses” who were available to Mr Broms to establish that he had real and strong links with New Zealand and a close and strong connection with his partner and her children.
30 Deutshe Finance New Zealand Ltd, above n 21.
[96] Mr Lucas submitted the resulting hearing was therefore flawed and the Tribunal was deprived of the full information Mr Broms could have supplied to establish humanitarian grounds under s 207(1) of the Act.
Minister’s submissions
[97] Ms Clarke, for the Minister, presented comprehensive submissions addressing the grounds advanced by Mr Broms. She submitted that, when those grounds are analysed both individually and together, there was clearly no breach of natural justice either before or at Mr Broms’ hearing.
Analysis
Overall assessment of Mr Broms’ evidence
[98] I preface my analysis with the over-arching observation that when each of Mr Broms’ grounds is carefully analysed against the whole of the evidence, including the documentary evidence, the grounds do not withstand scrutiny. Mr Broms clearly received correspondence when his stated position is that he did not receive the correspondence by mail. That substantially undermines his criticism as to a lack of information provided to him. Mr Broms clearly understood he could have a support person present, and indeed asserts that is what he planned to do. There is no evidence his employer would have disallowed that. Mr Broms refers to unsatisfactory and short-term arrangements in the workplace, whereas the transcript of the appeal hearing identifies, in response to the Tribunal Member’s question as to whether the room was private, that the display room was locked and his employer knew he had it for “today”. Finally, the interpretation Mr Broms seeks to place on the reporting and directions email of 3 May 2022 as to not being allowed to call any witnesses is inconsistent with the immediately preceding discussion in which the Tribunal Member discussed Mr Broms’ ability to call witnesses such as his mother and his partner but Mr Broms explained he did not wish to do so and explained why. Mr Broms then advised on the fourth direction set out in the 3 May email that he had to file any witness statements from every person to be called as a witness by 18 May 2022.
Lack of information about the hearing
[99] Mr Broms’ first underlying assertion in relation to a lack of information was that he had not received the 28 February and 25 March letters, which contained important information. For the reasons I have identified, it is clear he did receive that correspondence as well as the subsequent 3 May 2022 correspondence by email. The evidence establishes Mr Broms also received at least the 25 March correspondence by courier post as well as email.
[100] There is then Mr Broms’ complaint he was not advised or could not understand he could be assisted by a lawyer or have a support person present. In fact, Mr Broms’ entitlement to be represented was plainly identified in the correspondence he received. While there was no suggestion in the evidence the case manager discussed with Mr Broms the possibility of having a support person present, I find it clear he knew he could have a support person present.
[101] In terms of Mr Broms’ participation from his workplace, there is no reason to doubt the accuracy of what he told the Tribunal Member at the start of the hearing as to the privacy of the room he was using (a discussion which Mr Broms had evidently forgotten when he came to swear his affidavit). It was clearly intended by the employer that Mr Broms would be able to get back to his work as soon as the hearing was finished, but the transcript of the hearing clearly indicates Mr Broms had obtained his employer’s agreement to be able to fully attend to the requirements of the Tribunal hearing. Mr Lucas’s proposition that it is obvious that a deportation hearing should not take place at a person’s workplace is not correct. Provided proper arrangements are made in advance, as the evidence indicates they were, a person’s workplace will often be an appropriate location from which that person may attend and fully participate in the hearing of a tribunal or court. The difficulty that might be associated with having witnesses come to a workplace were not relevant in Mr Broms’ case. Mr Broms had explained to the Tribunal at the 3 May 2022 teleconference why he was not calling particular witnesses.
[102] In standing back and considering the substantial volume of evidence received on this appeal. I conclude the Tribunal, through the case manager and the Tribunal
Member, adopted a scrupulously careful approach to each step leading to the appeal hearing. The case manager appropriately engaged with Mr Broms without entering the inappropriate domain of advising Mr Broms how best to advance his interests. All the necessary procedural information was given to Mr Broms to enable him to make his own decision on that. If there was any tension in the first telephone discussion in which the case manager was pursuing the receipt evidence which would establish Mr Broms had complied with the statutory time for paying his filing fee, it was not a tension that flowed over into the subsequent discussions and correspondence.
[103] What is equally clear is that Mr Broms’ subsequent characterisation of events and of his understandings departs at key material points from what is established by the contemporaneous record and other evidence. This is exemplified by the brain injury and month-long coma which Mr Broms reports having experienced in order to identify the extent of his cognitive disadvantage—information evidently omitted in his discussions with Dr Mattson in his September 2022 clinical interview.
[104] The basis of Mr Broms’ appeal and review application before this Court is that the Tribunal, through the procedure it followed pre-hearing and at the appeal hearing, failed to observe Mr Broms’ right to natural justice. Put another way, the Tribunal is said to have failed to adopt a process calculated to ensure overall a fair consideration of Mr Broms’ appeal.
[105] I find none of Mr Broms’ complaints either individually or collectively eroded Mr Broms’ appreciation of the rights he had in relation to the appeal process, his ability to present his appeal to his best advantage, or the Tribunal’s fair consideration of his appeal. Mr Broms made an informed decision as to the information he would rely on in support of his appeal and as to the evidence that he would not call (such as that of his mother and his partner). It was also he who ultimately made the decision (even if somewhat reluctantly) as to the location from which he would appear.
[106] No grounds have been established to justify the Court, on the grounds of a failure of natural justice, either allowing the appeal or granting relief in its supervisory jurisdiction.
Costs
[107] Counsel agreed at the conclusion of the hearing that costs would follow the event on a 2B basis.31
Result
[108]I order:
(a)the application in the -53 proceeding is dismissed;
(b)the appeal in the -551 proceeding is dismissed; and
(c)Mr Broms is to pay the second respondent’s costs of both proceeding on a 2B basis, together with the second respondent’s reasonable disbursements (including travel and accommodation) to be fixed by the Registrar.
Osborne J
Solicitors:
Tavendales Partners, Christchurch Crown Law Office, Wellington
Counsel:
J Lucas, Barrister, Christchurch
I M G Clarke, Barrister, Christchurch
31 High Court Rules 2016, Category 2 under r 14.3(1) and band B under r 14.5(2).
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