Chan v Minister of Immigration
[2015] NZHC 2036
•27 August 2015
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CIV-2015-442-5 [2015] NZHC 2036
UNDER the Immigration Act 2009 IN THE MATTER
of an application for leave to appeal a decision of the Immigration and Protection Tribunal pursuant to s 245 of the Immigration Act 2009
BETWEEN
SEYLA CHAN Applicant
AND
MINISTER OF IMMIGRATION Respondent
Hearing: 26 August 2015 Counsel:
S J Zindel for Applicant
I M G Clarke for RespondentJudgment:
27 August 2015
JUDGMENT OF BREWER J
This judgment was delivered by me on 27 August 2015 at 1:30 pm pursuant to Rule 11.5 High Rules.
Registrar/Deputy Registrar
Solicitors: Zindels (Nelson) for Applicant
Crown Law (Wellington) for Respondent
CHAN v MINISTER OF IMMIGRATION [2015] NZHC 2036 [27 August 2015]
Introduction
[1] Mr Chan is a citizen of Cambodia. He became liable for deportation because of criminal convictions. Mr Chan appealed against liability for deportation on humanitarian grounds under s 206(1)(c) of the Immigration Act 2009 (“the Act”). In a decision dated 23 January 2015, the Immigration and Protection Tribunal found that there are no exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for Mr Chan to be deported from New Zealand. Accordingly, it dismissed his appeal.
[2] Mr Chan now applies for leave to appeal the Tribunal’s decision. The application is brought under s 245 of the Act and is limited to points of law. The points of law must be capable of serious or bona fide argument and must also, by reason of their general or public importance, or any other reason, be points which ought to be submitted to the High Court for decision.
Background
[3] The factual background is set out succinctly in the respondent’s synopsis of
submissions:1
5.The applicant is a citizen of Cambodia in his mid-thirties. Before coming to New Zealand, the applicant lived in Cambodia, Thailand, and South Korea. After having undertaken a type of automotive apprenticeship, the applicant worked variously in those countries as an electrician, in a factory, and selling vehicle parts.
6.The applicant arrived in New Zealand in August 2009. He came to join his new wife who was at the time based in New Zealand. The applicant was granted residence in late 2010.
7.In March 2011 (less than two years after his arrival in New Zealand, and five months after being granted residency), the applicant committed the first of the offences for which his deportation arises. In September 2011, the applicant pleaded guilty to, and was convicted of, three offences (assault against his then wife and two breaches of a temporary protection order). He was sentenced to a term of three months’ imprisonment in respect of each offence.
8.The applicant and his wife separated in May 2011 (and the marriage has since been dissolved). The applicant has no family in
1 Respondent’s synopsis of submissions in opposition to application for leave to appeal, dated
21 August 2015.
New Zealand. He is not in a relationship, has no children or dependants here, and does not own property in New Zealand. The applicant lives in Nelson with a friend and, at the time of the IPT hearing, was employed in the seafood industry (supplemented by fruit picking).
9.At the time of the IPT decision, the applicant’s mother and half- brother lived in Cambodia. The applicant’s mother’s household included a niece and four children. The applicant sent money back to his mother.
Grounds for appeal
[4] The grounds of appeal are set out in Mr Chan’s interlocutory application:2
2. The grounds on which the order is sought are as follows:
a)A mistake of fact and/or an error of law has occurred that the children were not “directly related” to the applicant at [42] of the decision and so “the connection between Mr Chan and the children in question is remote”, at paragraph [41] of the decision; and
b)An error of law, made at paragraph [42] of the decision that it is “drawing too long a bow to submit that the [applicant] is responsible for the upkeep of the children in question simply because his mother has taken them into her home”; and
c)Taking into account an irrelevant consideration at [42] in relation to the applicant’s lack of “complicity” in taking in the children; and
d)Applying an incorrect test at [42] that even if the applicant were responsible for the children, if he were to go back to Cambodia, that neither he nor the children “would face severe hardship or deprivation”; and
e)Failing to take into account the relevant considerations of various ratified international conventions; and
f) The decision is plainly wrong.
[5] At the hearing before me, Mr Zindel for Mr Chan emphasised a further ground, to which he had alluded in his written submissions:
A further aspect not referred to in the notice of application is the Tribunal’s failure to have regard to a relevant consideration being one that was formerly mandated under section 105(2)(e) and (f) of the Immigration Act 1987 and which was relevant for this case: the nature of his criminal convictions.
2 Interlocutory application on notice for an intended appeal, dated 26 February 2015.
Discussion
[6] The grounds of appeal set out in the interlocutory application focus on alleged errors of fact by the Tribunal which can translate to errors of law. The added ground of appeal is in a different category and I will discuss it first.
[7] In this case, the Tribunal had to consider Mr Chan’s situation against the
statutory threshold raised by s 207 of the 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.
(2) In determining whether it would be unjust or unduly harsh to deport from New Zealand an appellant who became liable for deportation under section 161, and whether it would be contrary to the public interest to allow the appellant to remain in New Zealand, the Tribunal must have regard to any submissions of a victim made in accordance with section 208.
[8] Mr Zindel submits that the gravity of the offending which triggers liability to be deported must be taken into account by the Tribunal when considering s 207(1)(a). In this case, the gravity of the offending was low and there is no likelihood of further offending. The Tribunal, he submits, erred in law in not considering it. Section 207(1)(a) requires a composite approach, not a sequential one.
[9] Mr Zindel submits that, at least, there is room for argument as to whether, and at what stage, gravity of offending should be considered under s 207(1)(a). It is, therefore, a point of law capable of serious or bona fide argument and, by reason of its general or public importance, should be submitted to this Court for decision.
[10] In my view, the law is clear that s 207(1)(a) requires a sequential analysis. First, the Tribunal has to determine whether there are exceptional circumstances of a
humanitarian nature in the case before it. If there are not, then that is the end of the analysis. There is nothing to apply to the next step in the sequence, which is about unjustness or undue harshness for the appellant if deported.3
[11] The final step in the s 207 sequence is s 207(1)(b) – the determination of the public interest. Similarly, unless the s 207(1)(a) analysis is resolved in the appellant’s favour, the Tribunal does not get to consider s 207(1)(b).
[12] In my view, the gravity of the offending which triggered liability to deportation is not relevant to the first step in the s 207(1)(a) analysis. It cannot be, or contribute to, an exceptional circumstance of a humanitarian nature. It will be relevant to the second stage of the analysis, if it is reached. Obviously, when considering whether exceptional circumstances of a humanitarian nature would make it unjust or unduly harsh for an appellant to be deported, the gravity of the appellant’s offending must be taken into account. Similarly, although in a different context, gravity of offending – including likelihood of recidivism – would be one of the circumstances to be taken into account in determining the public interest in deporting the appellant.
[13] Mr Zindel relies on the recent decision of the Supreme Court in Helu v Immigration and Protection Tribunal.4 However, that decision deals with s 105 of the predecessor Act, the Immigration Act 1987. It differs from s 207 of the Act in that:
(a) It does not commence with a requirement to identify exceptional circumstances of a humanitarian nature; and
(b)It lists matters which the Tribunal must have regard to in deciding whether or not it would be unjust or unduly harsh to deport an
appellant from New Zealand. Among those matters is “the nature of
3 Justice Katz in Minister of Immigration v Jooste [2015] 2 NZLR 765 at 779 put it this way: “The correct approach is for the Tribunal to first consider whether exceptional circumstances of a humanitarian nature exist. Only if the exceptionality threshold is met can the Tribunal then proceed to consider whether those particular exceptional circumstances would make deportation unjust or unduly harsh.
4 Helu v Immigration and Protection Tribunal [2015] NZSC 28.
the offence or offences of which the appellant has been convicted and
from which the liability for deportation arose”.5
[14] The Supreme Court, in Helu, concentrated on whether s 105 required two separate assessments. The Judges agreed that factors personal to an appellant taken into account in deciding whether it was “unjust and unduly harsh” to deport Mr Helu could be relevant to the analysis of whether it was not contrary to the public interest to allow him to remain in New Zealand. Mr Zindel refers to the reasons given by Elias CJ when discussing an earlier Supreme Court decision of Ye v Minister of
Immigration:6
Ye endorsed a sequenced approach to the application of s 105(1). Although often convenient, strict sequencing may not in fact be required by the subsection. It scans perfectly well if the test it provides is seen as a composite one, with the conjunctive “and that” being understood in the sense in which it is often used, as expressing a consequence. On this approach, the otherwise awkward negative (“not contrary to the public interest”) is intelligible in its own terms without the inversion that had to be adopted in Ye to make sense in the sequenced approach. On this view, which I regard as entirely tenable in construction of the provision, “not contrary to the public interest” is effectively the measure of what is unjust and unduly harsh deportation for the purposes of the subsection. Such an approach also avoids the very narrow comparator of “the seriousness of the offence” which the Tribunal was driven to use (because “unjust and unduly harsh” require some such comparison).7
[15] Putting to one side, for the moment, that s 105 of the 1987 Act does not refer to exceptional circumstances of a humanitarian nature, I note that Elias CJ went on to say:8
The sequenced approach, as applied in Ye, is substantially the same as a composite inquiry and may be conceptually simpler. The two are substantially the same because, under a composite approach as under the sequenced approach applied in Ye (“despite the injustice or undue harshness, it would in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand”), the public interest is controlling. A sequenced test also allows for the possibility, to which I have already alluded, that there may perhaps be matters of public interest which are not readily identified with injustice or undue harshness. So I do not think a sequenced approach as adopted in Ye is wrong. But that is because Ye makes it clear that the second stage refers back to and is linked to the first stage: the public interest in deportation must be “despite” the injustice and undue
5 Immigration Act 1987, s 105(2)(e).
6 Ye v Minister of Immigration [2010] 1 NZLR 104.
7 Helu v Immigration and Protection Tribunal, above n 4, at [87].
harshness. The risk in adopting a two stage process while not adhering to the linkage recognised in Ye is demonstrated in the present case where a public interest in removal of an appellant at moderate risk of violent reoffending swamped all other considerations.
[16] Justice McGrath, in his reasons, also addressed the sequential approach endorsed by the judgment of the majority of the Court in Ye.9
[17] Ye dealt with a different section of the 1987 Act. Ye concerned an appeal against a removal order. The appeal provision was s 47(3) of the 1987 Act, which 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.
[18] This provision is almost identical to s 207. It was the provision which applied to overstayers and was the strictest of the various appeal provisions in the
1987 Act. The 2009 Act makes it the standard test.
[19] Justice McGrath noted:10
The judgment of the majority of the Court in Ye held:
[30] The subsection is drafted on the basis of two sequential considerations. The first step is to determine whether there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person concerned to be removed from New Zealand. If that is not shown, the inquiry ends there and removal takes place. If it is shown that it would, on the statutory basis, be unjust or unduly harsh to remove the person from New Zealand, the decision maker must move to the second inquiry. This concerns whether, despite the injustice or undue harshness, it would in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand. A person seeking to avoid removal must demonstrate not only qualifying injustice or undue harshness but also that it would not be contrary to the public interest for them to be allowed to remain in New Zealand.
9 Elias CJ disagreed with McGrath J’s expression of the effect of sequential interpretation.
[20] Justice McGrath considered that the first step under s 47(3) of the 1987 Act requiring “exceptional” circumstances making removal unjust or unduly harsh did not require a different interpretive approach to s 105 of the 1987 Act.11
[21] As to the other Judges, Glazebrook J agreed with the Ye formulation and considered it applies the statutory language in a way that is simple to apply. Her Honour referred to s 207 of the Act in emphasising the importance of a test that is simple to apply.12
[22] Justice William Young and Arnold J agreed with McGrath J’s approach to s 105 of the 1987 Act and, in particular, with his view that a sequential approach is required. They dissented, however, on the conclusion of the majority as to the disposition of the appeal.13
[23] It follows that the Supreme Court in both Ye and Helu have endorsed the sequential interpretation of statutory deportation provisions similar to s 207. Ye, which dealt directly with a section almost identical to s 207, makes it clear that the sequential approach applies to each ingredient of the test:14
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.
[24] The Court then made clear the link between the first two limbs of the test:
[37] One further point should be mentioned. The link between “exceptional circumstances of a humanitarian nature” and “unjust or unduly harsh” provided by the words “that would make it” can be read in two ways.
11 At [155].
12 At [206].
13 At [216].
14 Ye v Minister of Immigration, above n 6, at [34].
The first is to hold that the presence of the relevant exceptional circumstances necessarily demonstrates injustice or undue harshness with no further assessment being required. On this basis the words “that would make it” mean that the necessary injustice or undue harshness derives from the very fact of there being exceptional circumstances. The second reading involves an assessment of whether the exceptional circumstances found to exist make it unjust or unduly harsh to remove the person. On this view that consequence does not necessarily flow from the existence of exceptional circumstances of a humanitarian nature.
[38] We consider the second reading is to be preferred as more appropriately serving the statutory purpose. 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. Had the first meaning been intended there need only have been reference to exceptional circumstances of a humanitarian nature. The presence of such circumstances would have fulfilled the first criterion without reference to injustice or undue harshness. Those concepts must have been intended to contribute to the overall test and would effectively be written out if the first meaning were adopted.
[25] In my view, Mr Zindel’s reliance on Helu is misplaced. Not only does that case address an appeal provision which is dissimilar to s 207, the Judges, to a greater or lesser extent, all endorse the sequential approach taken in Ye. The appeal provision interpreted in Ye is substantially the same as s 207. So, the law is that before the Tribunal could consider whether it would be unjust or unduly harsh for Mr Chan to be deported from New Zealand it first had to identify any exceptional circumstances of a humanitarian nature. It concluded there were none. The next part of my inquiry is to determine whether that conclusion is correct.
[26] In Taafi v Minister of Immigration,15 Kós J set out what he called the “triple hurdle” facing applicants for leave under s 245:
(a) First the applicant must show a seriously arguable case that factual findings by the IPT are actually incorrect. An Appeal Court will not interfere where there is an available evidential basis for the Court's findings.
(b) Secondly, the applicant must show that the factual errors made by the IPT are so grave as to constitute an error of law, meaning making a finding based on no evidence, evidence inconsistent with or contradictory of another finding of fact, or contradictory of the only reasonable conclusion of fact available on the evidence.
15 Taafi v Minister of Immigration [2013] NZAR 1037 at [54], cited in Guo v Immigration and
Protection Tribunal [2014] NZHC 804.
(c) Thirdly, the applicant must establish that the question of law is one of general or public importance, which is a “hard ask” in the case of factual errors, no matter how profound
[27] In my view, the Tribunal was correct to find there are no exceptional circumstances of a humanitarian nature relating to Mr Chan’s presence in New Zealand. He is a mature man who arrived in New Zealand in 2009. He is single, has no dependants in New Zealand and no family members in New Zealand. He is a hard working man who has supported himself through a variety of jobs. All of this is completely unexceptional.
[28] The real issue underlying Mr Chan’s application for leave to appeal is how
Mr Chan’s remittances to his extended family in Cambodia should be regarded.
[29] Mr Chan has, to his credit, taken upon himself responsibility for providing financially for members of his family resident in Cambodia. The family consisted of his mother,16 his first cousin (who is disabled) and his cousin’s four children. There is nothing exceptional about that circumstance. Immigrants to New Zealand frequently support extended family members living in their country of origin.
[30] So, the focus has to be on the effects on the family members if Mr Chan, by reason of being deported, can no longer support them. Can these effects amount to exceptional circumstances?
[31] As the Tribunal identified, citing Ye v Minister of Immigration,17 for circumstances to be exceptional they must be well outside the normal run of circumstances and, while they do not need to be unique or rare, they do have to be truly an exception rather than the rule.
[32] It was submitted by Mr Zindel on behalf of Mr Chan that the humanitarian nature of Mr Chan’s position make his circumstances exceptional. First, his cousin and her children depend upon his charity. If he is forced to return to Cambodia he
might not be able to find a job and might not be able to continue to support these
16 Mr Zindel told me that Mr Chan’s mother died in May 2015, making the dependence of the disabled cousin and her children on Mr Chan all the greater. These are Mr Zindel’s instructions and I accept them at face value.
17 Ye v Minister of Immigration, above n 6.
family members. The Tribunal acknowledged that the employment market in Cambodia was likely to be less favourable to Mr Chan and that his standard of living would be lower in Cambodia than it is in New Zealand.
[33] Mr Zindel touches lightly on an apparent factual error by the Tribunal based on a misunderstanding that only one of the four children was the child of Mr Chan’s cousin. The Tribunal apparently thought that the other three children were more distant family. I do not think that is relevant. The Tribunal did not distinguish between the rights and needs of any of the children. In my view, the point is that Mr Chan’s decision to support these family members needs to be an exceptional circumstance of a humanitarian nature before the Tribunal can be said to be in error.
[34] Mr Zindel referred me to various articles in the Convention on the Rights of the Child and in the International Covenant on Economic, Social and Cultural Rights. As the Crown acknowledges, New Zealand legislation should be read in a manner consistent with New Zealand’s international obligations. However, the Tribunal considered the effect of deportation on Mr Chan (including the likely effect on his extended family). This included his ability to find employment in Cambodia and the likely diminution in his standard of living there. The Tribunal considered Mr Chan’s family and personal ties are primarily with Cambodia and was not convinced Mr Chan would be without employment prospects. The Tribunal explicitly directed itself to the Convention on the Rights of the Child and to the International Covenant on Economic, Social and Cultural Rights. It found that Mr Chan was not responsible for the children and that he had failed to establish that not having access to his New Zealand remittances would interrupt the education of the children or reduce any of his relatives to a standard of living that would not enable them to feed, clothe or shelter themselves.
[35] I am satisfied that there is nothing in the Tribunal’s decision which is wrong in the sense that the outcome for Mr Chan should be reconsidered. The application for leave to appeal does not meet the criteria of s 245 of the Act. I have already cited Kós J’s “three hurdles”. This application does not clear them. Even if the first two
were jumped, there is no question of law that by reason of general or public importance or any other reason ought to be heard.18
[36] An error of fact, such as the misunderstanding as to the relationship of the children with Mr Chan, will not raise an error of law unless the error of fact is so grave that by itself it constitutes an error of law. In other words, it must be seriously arguable that a conclusion has been reached in error and is so significant and extensive that a properly directed Tribunal may well have reached a different
decision overall.19 That is simply not the case here.
[37] The application for leave to appeal is dismissed.
[38] The respondent seeks costs. I am not prepared to grant them without considering submissions. If the respondent wishes to pursue its application for costs then it must file and serve a memorandum setting out its claim and the reasons why it should be granted by 9 September 2015. Any response is to be filed and served by
23 September 2015.
Brewer J
18 Guo v Immigration and Protection Tribunal [2014] NZHC 804.
19 Nabou v Minister of Immigration [2012] NZHC 3365.
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