Close v Immigration and Protection Tribunal
[2013] NZHC 2692
•16 October 2013
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2013-485-000853 [2013] NZHC 2692
UNDER the Judicature Amendment Act 1972 and Part 30 of the High Court Rules IN THE MATTER
of an Application for Judicial Review
BETWEEN
ANTHONY HUGH CLOSE
Applicant
AND
IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
MINISTER OF IMMIGRATION
Second Respondent
| Hearing: | 14 October 2013 |
Counsel: | N R Woods for Applicant First Respondent Abides C I J Fleming and M F Clark for Second Respondent |
Judgment: | 16 October 2013 |
JUDGMENT OF COLLINS J
Introduction
[1] The question I have to consider is whether the Immigration and Protection Tribunal (the Tribunal):
(1)failed to properly apply legislative criteria; or
(2)failed to take into account relevant considerations; or
(3)took into account irrelevant considerations; or
CLOSE v IMMIGRATION AND PROTECTION TRIBUNAL [2013] NZHC 2692 [16 October 2013]
(4)reached conclusions that were not supported by the evidence.
when it dismissed Mr Close’s appeal from a notice advising him that he was liable to be deported.
Context
[2] This question arises in the context of an application for judicial review brought by Mr Close in relation to the Tribunal’s decision delivered on 11 April 2013. Mr Close had appealed to the Tribunal after he was given notice that he was
liable to be deported following his convictions for importing the class B controlled drug GBL (also known as Fantasy).1
[3] On 8 October 2010 Mr Close was sentenced to five years seven months’ imprisonment for his offending.2 His sentence was upheld by the Court of Appeal.3
[4] The Tribunal decided:
(1)there were exceptional circumstances of a humanitarian nature, however it would not be unjust or unduly harsh for Mr Close to be deported from New Zealand; and
(2)it was “not satisfied that it would not in all the circumstances be contrary to the public interest to allow [Mr Close] to remain in New Zealand”.4
These conclusions reflect the statutory grounds that Mr Close needed to satisfy before the Tribunal could allow his appeal.5
1 Issued pursuant to s 161(1)(b) of the Immigration Act 2009.
2 R v Close DC Wellington CRI-2009-085-5899, 8 October 2010.
3 Close v R [2011] NZCA 454.
4 Close v Minister of Immigration [2013] NZIPT 600028 at [101].
5 Section 207(1) of the Immigration Act 2009 provides:
(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.
Background
[5] Mr Close is now 32 years old. He is a citizen of the United States of America (the United States). Mr Close’s parents, his two sisters and other members of his family still live in the United States.
[6] Mr Close graduated as a chiropractor from Palmer College in Iowa. In qualifying as a chiropractor in the United States Mr Close incurred a debt for his fees amounting to $250,000.
[7] Mr Close came to New Zealand in 2006. He was granted a work permit in December 2006 and a residence permit in March 2007. When he first arrived in New Zealand Mr Close worked as a manager in a gymnasium in the Wellington region. Mr Close became registered as a chiropractor in New Zealand in March 2007.
[8] After he became registered Mr Close practised as a chiropractor in a clinic for approximately one year. That venture was not particularly successful and came to an end in late 2007.
[9] In early 2008 Mr Close became involved in the importation of GBL with a person who he befriended when working at the gymnasium. Both the District Court, when sentencing Mr Close, and the Court of Appeal, when dismissing his appeal against sentence, concluded that Mr Close was the second in charge of the group involved in the importation of GBL.
[10] In the latter part of 2008 Mr Close bought into an existing chiropractic clinic. He maintained his interest in that practice until early 2010.
[11] In September 2009 Mr Close was arrested and charged with nine counts of importing GBL. He was granted bail. During this time he established a third chiropractic clinic which operated from the apartment to which he had been bailed.
[12] Mr Close pleaded guilty to the charges on 9 October 2009 and was sentenced to imprisonment.
[13] After his arrest Mr Close joined a non-denominational Christian church. The evidence before the Tribunal was that Mr Close had become a “born again Christian”.
[14] While in prison Mr Close completed a number of programmes including:
(1)The Medium Intensity Rehabilitation Programme (MIRP) which focuses upon cognitive and dialectic behavioural therapies; and
(2)The Alpha course which is a Christian theological programme.
[15] Mr Close appeared before the New Zealand Parole Board on 8 August 2012. The Parole Board was clearly impressed by the efforts Mr Close had made in prison and decided that Mr Close met the criteria for parole.
[16] Since his release from prison Mr Close has married Ms Milward, whom he first met in 2007. Ms Milward’s family is fully supportive of Mr Close and his marriage to Ms Milward, who in September 2012 had accepted employment as a personal trainer in Queensland.
[17] Mr Close explained to the Tribunal that he could practise as a chiropractor in the United States if he were deported to that country. However, Mr Close also explained that pursuing registration as a chiropractor in the United States would involve him in further studies and costs (estimated to be approximately $10,000) and that ultimately it would be far more difficult for him to practise in the United States than in Wellington.
[18] The New Zealand Chiropractic Board decided not to strike Mr Close’s name from the Register of Chiropractors. Instead, the New Zealand Chiropractic Board withheld Mr Close’s annual practising certificate until it was satisfied that his offending did not reflect adversely on his fitness to practise.6 The New Zealand Chiropractic Board subsequently concluded Mr Close was fit to practise as a chiropractor in New Zealand subject to two conditions:
6 Health Practitioners Competence Assurance Act 2003, s 16(c).
(2)that he continue to receive the counselling that he had started to receive when he was in prison.
Tribunal’s decision
[19] In its carefully reasoned decision the Tribunal decided “by a narrow margin” that the following factors, when considered in combination, constituted “exceptional circumstances of a humanitarian nature”:7
(1)that Mr Close was a New Zealand resident facing separation from Ms Milward and/or her family; and
(2)the decision of the New Zealand Chiropractic Board not to strike Mr Close’s name from the Register of Chiropractors.
[20] The Tribunal weighed Mr Close’s offending against all of his humanitarian circumstances and considered that it was “not unjust or unduly harsh”8 for Mr Close to be deported from New Zealand.
[21] In assessing the public interest element of s 207(1)(b) of the Immigration Act 2009 (the Act) the Tribunal:
(1)assessed Mr Close as still lacking insight into the causes of his offending and decided there was still a significant likelihood of him reoffending; and
(2)recognised the public interest in family unity and New Zealand’s commitment to upholding the importance of preserving family relationships.9
[22] The Tribunal reasoned however that:
7 Immigration Act 2009, s 207(1)(a).
8 Section 207(1)(a).
9 International Covenant on Civil and Political Rights, art 23.
(b)Ms Milward and Mr Close must have known of the risk of Mr Close being deported at the time they formed their relationship.
For these reasons the Tribunal decided it was contrary to the public interest to allow Mr Close to remain in New Zealand.10
Grounds of appeal
[23] In his helpful submissions Mr Woods, counsel for Mr Close, properly accepted that the requirements of s 207(1)(a) and (b) of the Act were to be considered separately and that if I am not satisfied the Tribunal made reviewable errors under s 207(1)(a) of the Act, it was not necessary for me to consider the Tribunal’s decision under s 207(1)(b) of the Act.
[24] Mr Woods submitted there were reviewable errors in the manner in which the Tribunal assessed the humanitarian factors under s 207(1)(a) of the Act. Mr Woods’ submissions can be conveniently analysed under three headings:
(1)Mr Close’s employment prospects in the United States;
(2)family unity; and
(3)risk of reoffending.
Threshold for judicial review
[25] In undertaking my task I shall carefully scrutinise the Tribunal’s decision because it involved weighing fundamental human rights and has serious implications for Mr Close and Ms Milward.11
10 Immigration Act 2009, s 207(1)(b).
11 This approach is consistent with that taken in Wolf v Minister of Immigration [2004] NZAR 414 (HC).
[26] However, although I will undertake a careful scrutiny of the Tribunal’s decision I appreciate the criteria set out in s 207(1) of the Act requires the Tribunal to undertake a highly evaluative judgement and to reconcile competing humanitarian and public interest factors. The weight given to the relevant factors in undertaking that balancing exercise will seldom amount to an error of law.12
Analysis
Mr Close’s employment prospects in the United States
[27] Mr Woods said that the Tribunal made three mistakes when it concluded that Mr Close would be able to continue his chiropractic profession in the United States. Those three mistakes were:
(1)There was no persuasive evidence to enable the Tribunal to conclude that Mr Close would be able to continue to work as a chiropractor in the United States.13
(2)There was no evidence to support the Tribunal’s finding that “it would not be so much harder for [Mr Close] to establish a practice in the USA, if deported, than to re-establish his practice [in Wellington].” Mr Woods challenged the Tribunal’s conclusion that “it would require nothing more than a reasonable amount of effort and application on his part” to establish himself as a chiropractor in the United States.14
(3)The Tribunal failed to take into account the possible impact of Mr Close’s drug convictions on his ability to travel independently.15
[28] It is clear to me the Tribunal carefully evaluated Mr Close’s concern that if he were to be deported to the United States he would face considerable difficulties in establishing himself as a chiropractor in that country.
12 De Borja v Removal Review Authority [1999] NZAR 471 (HC) at 476.
13 Applicant’s submissions at [59].
14 Applicant’s submissions at [60].
15 Applicant’s submissions at [61].
[29] The evidence before the Tribunal included the following responses from Mr Close to questions put to him by the Tribunal:16
Q.Have you explored what effect your convictions in New Zealand will have on your ability to practise in the United States?
A.Um, yes. I don’t think it will have a large impact per se as far as the conviction goes because my conviction lies in New Zealand and doesn’t lie in America ... The biggest problem for me going back to America is the schooling that I’ll have to undergo. I mean the thing that I think is important to remember is ... I graduated in 2006 so it’s been a while since I’ve been in school and taking those board or boards that you take while you’re finishing your final years, they’re accumulative tests and then not only the time spent to study and do that but then taking the test, paying for the test and then also the interstate requirement. Because every state’s different and there’s usually a test for the state as well.
Q.You mentioned in your letter that it would take about a year and would cost $10,000.
A.That’s an approximate quote. I guess it’d take me a good year to actually get re-established. And the other thing too is I’ve got no job prospects there. You know, I know one chiropractor there. The local chiropractor. I’d have to go live with my parents.
Q.What about those chiropractic bulletin boards or website or whatever that you used to come here. Could you use them in reverse to get in touch with chiropractors in the United States?
A. Absolutely. And I will do that. It’s just much more involved.
Q. In what way?
A.Than just getting my [annual practising certificate] reinstated in New Zealand ...
[30] Thus, contrary to Mr Woods’ submission, there was persuasive evidence from Mr Close that enabled the Tribunal to conclude Mr Close would be able to continue to work as a chiropractor in the United States, albeit after he had completed further studies and passed appropriate examinations.
[31] This same evidence also provided ample foundation for the Tribunal’s finding that it would not be too much more difficult for Mr Close to re-establish himself as a chiropractor in the United States, than to re-establish his practice in Wellington.
16 Close v Minister of Immigration Transcript of hearing at 91-92.
[32] It is true that there was no direct evidence before the Tribunal about the possible impact of Mr Close’s drug convictions on his ability to travel either within or outside of the United States. However, Mr Woods’ submission on that point ignores the effect of s 226(1) of the Act, which placed responsibility on Mr Close to ensure all information, evidence and submissions which he wished to have considered were provided to the Tribunal.
Family unity
[33] Mr Woods submitted that the Tribunal erred in three respects when considering the nature of Mr Close’s relationship with Ms Milward, namely:
(1)The Tribunal was wrong when it gave weight to the fact Ms Milward and Mr Close must have been aware of the possibility of Mr Close being deported when they began their relationship.17
(2)The Tribunal was wrong to give similar weight to Mr Close’s relationship with his family in the United States as to his relationship with Ms Milward.18
(3)The Tribunal was wrong when it suggested Ms Milward might be able to accompany Mr Close to the United States.19
[34] It is also clear to me that the Tribunal carefully considered the nature, duration and circumstances of Mr Close’s relationship with Ms Milward.20 The Tribunal’s examination of this topic was based on the evidence that preceded Mr Close and Ms Milward’s marriage. It is trite that the Tribunal cannot be criticised for not taking into account evidence that did not exist at the time it made its decision.
[35] The information before the Tribunal included statements from Mr Close that his relationship with Ms Milward had “blossomed” following his release from prison
17 Applicant’s submissions at [47].
18 Applicant’s submissions at [59].
19 Applicant’s submissions at [55].
20 The Tribunal refers to the relationship between Mr Close and Ms Milward in the following paragraphs, [53], [60]-[62], [66], [73], [77]-[78], [83] and [96].
and that they had “similar goals and aspirations”. Ms Milward’s evidence was that she and Mr Close wanted “to move forward in an exclusive manner”.21 The Tribunal therefore concluded that Mr Close had a “family-type tie to New Zealand of some significance”.22
[36] This evidence entitled the Tribunal to conclude:23
The appellant must have entered into [the relationship] in the knowledge of the risk of his deportation. The evidence of Ms Milward is silent on whether she knew of his deportation liability. If she knew, then she too entered into the relationship with knowledge of the risk of his deportation. If the appellant had not told her of his liability for deportation, a question mark may need to be placed on the openness of the relationship.
[37] The fact that Mr Close and Ms Milward have subsequently married does not alter any aspect of the Tribunal’s conclusion, particularly as the Tribunal had concluded Mr Close had a “family-type” tie to New Zealand.
[38] It is also clear there was sufficient evidence to enable the Tribunal to place reliance on the family support Mr Close would receive in the United States. Mr Close’s evidence before the Tribunal was that he had a “big family”24 in the United States which included his parents, two sisters and other relatives. Mr Close told the Tribunal that his family in the United States provided him with emotional, financial and spiritual support.
[39] It was therefore not wrong for the Tribunal to place the weight it did on the family support Mr Close would receive in the United States.
[40] Similarly, the Tribunal did not commit any error when it concluded Ms Milward would in all likelihood be able to accompany Mr Close to the United States. If there was a difficulty with Ms Milward being able to accompany Mr Close to the United States, then the onus was on Mr Close to explain this difficulty. Absent evidence to the contrary it was quite reasonable for the Tribunal to
21 Affidavit of H F Milward, 21 December 2012.
22 Close v Minister of Immigration [2010] NZIPT 600028 at [60].
23 At [78].
24 Transcript of hearing at 8.
assume that there would be no impediment to Ms Milward accompanying Mr Close to the United States.
Risk of reoffending
[41] Mr Woods’ submissions in relation to the risk of reoffending were presented on the basis that the risk of reoffending was a “humanitarian” consideration under s 207(1)(a) of the Act. The Tribunal properly assessed this risk under s 207(1)(b) of the Act as a factor going to whether it would be contrary to the public interest to allow Mr Close to remain in New Zealand. It was submitted on behalf of Mr Close that there were four errors in the way in which the Tribunal approached the issue of the risk of Mr Close reoffending:
(1)The Tribunal made an error when it relied on Mr Close’s MIRP report as expressing a concern that Mr Close’s likelihood of reoffending would increase if he returned to the same gymnasium and associated with the same people who were involved in his offending.25
(2)The Tribunal erred when it stated there was no pre-parole assessment report.26
(3)The Tribunal should have put more weight on the Parole Board’s conclusion that Mr Close did not pose an undue risk to the safety of the community and the New Zealand Chiropractic Board’s decision to reissue Mr Close’s annual practising certificate.27
(4)The Tribunal should have put more weight on the submission that Mr Close’s relationship with Ms Milward was likely to reduce the likelihood of him reoffending.28
[42] For present purposes I am willing to accept Mr Woods’ submission that Mr Close’s risk of reoffending is a “humanitarian” factor that can be properly
25 Applicant’s submissions at [64].
26 Applicant’s submissions at [65].
27 Applicant’s submissions at [67]-[70].
28 Applicant’s submissions at [71]-[74].
considered under s 207(1)(a) of the Act. Ms Fleming, senior counsel for the Minister of Immigration, did not take issue with this approach.
[43] In assessing Mr Close’s risk of reoffending the Tribunal took into account his pre-sentence report and the MIRP report, both of which indicated Mr Close has a low risk of reoffending although the MIRP report whilst encouraging, does not specifically assess Mr Close’s likelihood of reoffending.
[44] The Tribunal did not refer to the Parole Board’s assessment report. However, that report was generally consistent with the pre-sentence and MIRP reports.
[45] When concluding Mr Close provided more than a low risk of reoffending the Tribunal placed weight on Mr Close’s:
(1)lack of insight into the causes of his offending;
(2)intention to make contact in the future with his co-offenders; and
(3)intention to return to the gymnasium environment which was the venue from which his offending started.
[46] I do not think the Tribunal can be criticised for failing to place weight on the decision of the New Zealand Chiropractic Board when assessing the likelihood of Mr Close’s reoffending. The New Zealand Chiropractic Board did not purport to assess the risk of Mr Close reoffending and, given its specialist role, it would be surprising if it did attempt to assess Mr Close’s risk of reoffending.
[47] I accept there is a possibility the Tribunal may have overstated Mr Close’s risk of reoffending. However, it is impossible for me to conclude that the Tribunal erred either as a matter of law, or in the way it evaluated the factual evidence it was presented with. Any errors the Tribunal made by not specifically considering:
(1)the assessment of the New Zealand Parole Board; and
(2)the positive influence of Ms Milward on Mr Close
do not come close to meeting the threshold required for me to conclude the Tribunal’s omissions constituted legitimate grounds to justify judicially reviewing the Tribunal’s decision.
Conclusion
[48] I cannot fault the portion of the Tribunal’s decision that I have been required to consider.29 The Tribunal did not fail to properly apply s 207(1)(a) of the Act in relation to that part of its decision that I have been required to consider. Nor did the Tribunal fail to take account of relevant considerations or take into account irrelevant considerations, or reach conclusions that were not supported by the evidence. Accordingly, the application for judicial review must be dismissed.
Costs
[49] The Minister is entitled to costs on a scale 2B basis.
D B Collins J
Solicitors:
Rowland Woods Legal, Wellington for Applicant Crown Law, Wellington for Second Respondent
29 Had I been required to consider the Tribunal’s conclusion that Mr Close’s case presented “exceptional circumstances” I may have struggled to reach the same conclusion as the Tribunal because of my interpretation of the Supreme Court’s explanation of s 207(1)(a) of the Act in Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].
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