Devi v Chief Executive Officer of the Ministry of Business, Innovation and Employment

[2018] NZHC 362

BY ORDER OF THE COURT THE INTERIM ORDER FOR SUPPRESSION OF THE APPELLANT'S NAME IS QUASHED WITH EFFECT FROM 48 HOURS AFTER THE TIME OF DELIVERY OF THIS JUDGMENT TO THE PARTIES

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1974

[2018] NZHC 362

IN THE MATTER

of Section 245 of the Immigration Act 2009 in respect of leave to appeal against a decision to refuse a Resident's Visa

BETWEEN

RESHI DEVI

Applicant

AND

CHIEF EXECUTIVE OFFICER OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT

Respondent

Hearing:	8 February 2018
Appearances:	R Chaudhry for Applicant N Butler for Respondent
Judgment:	8 March 2018

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 8 March 2018 at 4.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

DEVI v CHIEF EXECUTIVE OFFICER OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT [2018] NZHC 362 [8 March 2018]

Introduction

[1]    In May 2016, the applicant, Ms Reshi Devi, applied for a residence visa under the Family (Partnership) category. Immigration New Zealand (“INZ”) declined her application. Ms Devi’s appeal to the Immigration and Protection Tribunal (the “Tribunal”) was dismissed by Judge PR Spiller, the Chair of the Tribunal. Ms Devi now seeks leave from this Court to appeal the Tribunal’s decision on a question of law under s 245(1) of the Immigration Act 2009.

Non-publication orders

[2]    Pursuant to clause 19 of Schedule 2 of the Immigration Act 2009, Judge Spiller ordered that the research copy of the Tribunal’s decision be depersonalised by removal of the appellant’s name and any particulars likely to lead to the identification of the appellant, her husband or her son.

[3]    An interim order suppressing publication of the applicant’s name was granted in the hearing at the High Court. Counsel were requested to file memoranda about the issue prior to judgment. No submissions, however, have been filed. There is no serious possibility that the safety of the applicant or any other person would be endangered by the disclosure of the information to warrant suppression.1 I direct that the interim order be quashed with effect from 48 hours after the time of the delivery of this judgment to the parties.

Background facts

[4]    Ms Devi is a 29-year-old Fijian citizen. She was put in contact with her now husband, a New Zealand resident, by her mother in law. In 2014, she married him in Australia after a series of phone conversations that extended over a couple of months. In May 2014, her husband returned to New Zealand. In August, Ms Devi arrived in New Zealand to join him. In May 2015, the couple had a son who is also a New Zealand citizen.

1      Immigration Act 2009, section 151(2)(e).

[5]    On 2 October 2015, there was a domestic violence incident where the husband struck and threatened Ms Devi. The following day a complaint was laid with the Police. Ms Devi and her son were relocated to a women’s refuge where they stayed until December 2015. On 5 October 2015, the husband appeared in court and was released on bail with specific conditions not to associate with Ms Devi. On 21 October 2015, a temporary protection order was issued against the husband in favour of     Ms Devi and her son. On 24 December 2015, the husband’s bail conditions were varied to allow him to return home. On 11 February 2016, the husband pleaded guilty to charges of, being a male, assaulting a female and behaving threateningly, and was convicted and sentenced to one year’s supervision. On 7 April 2017, the temporary protection order against Ms Devi’s husband was discharged.

[6]    On 2 May 2016, Ms Devi lodged an application for a resident visa under the Family (Partnership) category. On 1 February 2017, INZ interviewed Ms Devi and her husband. On 27 February 2017, INZ advised Ms Devi in writing that it had concerns about her application.

[7]    INZ noted that, in the interviews, both Ms Devi and her husband were asked about the domestic violence incident that occurred in October 2015. In her INZ interview, Ms Devi claimed that her husband “used his finger to push her face”. Her husband stated that he “touched her shoulder”. These accounts differed not only from each other, but also from the information INZ received from the Police which indicated that the incident involved more serious violent behaviour. The police summary of facts, which Ms Devi’s husband accepted by his guilty pleas, records that the husband punched Ms Devi in the back of her head following a verbal argument, pulled her to the ground from the couch and punched her on the sides of her head using both hands multiple times. The summary also records that the husband removed his waist-belt and threatened to hit her with it if she said anything or if she did not pack her bag.

[8]    Through her counsel, Mr Chaudhry, Ms Devi provided a response to INZ and gave an explanation for the differing accounts of the incident. She explained that there had been “no other domestic issues” apart from “the single incident”. By letter dated 30 March 2017, INZ declined Ms Devi’s application. INZ had concerns about the stability of Ms Devi’s relationship, both from information provided during the

interview and from the Police summary of facts; in particular, the domestic violence incident in October 2015. Overall, INZ was concerned about the credibility of the information that Ms Devi and her husband had provided. From the adverse information INZ had received, it was not satisfied that the appellant had demonstrated that her relationship was stable and likely to endure.

The appeal to the Tribunal

[9]    Ms Devi appealed INZ’s decision to the Tribunal under s 187 of the Immigration Act. Such appeals are confined to two available grounds.2 First, that the relevant decision was not correct in terms of the residence instructions applicable at the time. Second, that the appellant has “special circumstances” such that the Tribunal should recommend granting the application as an exception to the residence instructions.

[10]   The Tribunal dismissed Ms Devi’s appeal on both grounds. It found that INZ’s decision was correct because the couple had failed to discharge the onus of proving that they were living in a stable relationship that was likely to endure. In particular, the Tribunal determined that INZ had reasonable grounds not to be satisfied that the couple met the credibility and stable partnership elements. Their accounts of the domestic violence incident “differed sharply” from the Police summary of facts and, at the time of INZ’s decision, the temporary protection order against Ms Devi’s husband was still in force.

[11]   The Tribunal, having considered the child’s best interests, as well as Ms Devi’s personal circumstances, determined that there was nothing sufficiently special about Ms Devi’s circumstances which “distinguish her from any other individuals who come to New Zealand, form a relationship and establish a family here, and wish to stay and establish themselves more permanently.”3

2      Immigration Act 2009, s 187(4).

3      Re SZ (Partnership) [2017] NZIPT 204079 at [53].

Leave to appeal

[12]   Section 245(1) of the Act provides that an appellant who is “dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law” is entitled, with the leave of the High Court, to appeal on that question of law. In determining whether to grant leave, the Court is required by s 245(3) to “have regard” to whether that question “is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.” The “any other reasons” limb is engaged only “in an exceptional case involving individual injustice to such an extent that the Court could not countenance the Tribunal’s decision standing”.4

Relevant law

[13]   Under s 72 of the Act, residence applications must be decided “in terms of the residence instructions applicable at the time the application was made”. At the time, the applicable immigration instructions were F2.5 and F2.30. Under immigration instructions F.25, a partner of a New Zealand citizen or resident will qualify for a residence class visa under the Partnership Category only if the couple satisfies an immigration officer they have been living together for 12 months or more in a partnership that is “genuine and stable”. The onus of proving that the partnership is genuine and stable lies with the applicant and their partner.

[14]   F2.30 describes how an immigration officer is to determine whether a couple is living in a partnership that is genuine and stable. The immigration officer “must consider, and be satisfied, there is sufficient proof” of each of four elements: credibility; living together; genuine partnership; and stable partnership. This case concerns the credibility and stability elements.

Proposed grounds of appeal

[15]The applicant seeks leave to appeal on the following three grounds:

4      Machida v Chief Executive of Immigration New Zealand [2016] 3 NZL 721, [2016] NZCA 162 at [8].

(a)The Tribunal erred by incorrectly applying the relevant immigration instructions, in particular, F2.5 and F2.30.

(b)The Tribunal erred in its consideration of whether the application should be considered an exceptional circumstance of a humanitarian nature as to warrant consideration as an exception to applicable residence instructions.

(c)The Tribunal failed to properly consider all the circumstances of the applicant’s case.

Submissions

[16]   For the applicant, Mr Chaudhry submits that the matters outlined in the proposed grounds of appeal raise important questions of law and are of public importance so as to persuade the Court to grant leave. The oral argument focussed on two principal points:

(a)the Tribunal was incorrect to affirm the decision of INZ with respect to the immigration instructions F2.5 and F2.30 regarding the genuineness and stability of the applicant’s partnership and its likelihood to endure; and

(b)the failure of the Tribunal to consider the best interests of the child and failure to consider the application as an exception to the applicable residence instructions due to the special circumstances.

[17]   The respondent submits that leave to appeal should be refused on the basis that the application does not raise any question of law that is capable of serious argument or of general or public importance. It is submitted that this is not an exceptional case and the Tribunal correctly interpreted and applied the legal tests under the Act and the relevant residence instructions (F2.5 and F2.30).

Application to adduce further evidence

[18]   In an updating affidavit in support of the application for leave to appeal,     Ms Devi sought to adduce four additional documents for the Court’s consideration:

(a)the Police summary of facts;

(b)the temporary protection order;

(c)a Minute and Court Memorandum issued by a Family Court Judge; and

(d)a Memorandum and Discharge of Temporary Protection Order.

[19]   Ms Butler did not object to the Court receiving documents (a) and (b) for consideration, both of which were referred to by Judge Spiller in delivering the Tribunal’s decision. There is no evidence, however, that documents (c) and (d) were before the Tribunal. They do not assist this Court to determine the leave question and the application to adduce documents (c) and (d) is dismissed.

Discussion

[20]   In order to prove that the Tribunal’s factual findings are so incorrect as to constitute an error of law, the applicant must establish three requirements.5 First, a seriously arguable case that the Tribunal’s factual findings are actually wrong. Second, that the factual errors are so grave as to constitute an error of law. Third, that the question of law is one of “general or public importance” or is one which “for some other reason” ought to be considered on appeal. I address first the proposed grounds of appeal on which Mr Chaudhry focused his principal submissions.

5      Taafi v Minister of Immigration [2013] NZAR 1037 HC at [19].

Grounds one and three

Credibility

[21]   In support of the first and third submissions, Mr Chaudhry submits that the Tribunal made a finding of fact which is based on evidence inconsistent with or contradictory of the Police summary of facts. He submits that in finding that INZ had reasonable grounds not to be satisfied that the couple were credible under instructions F2.30, the Tribunal erred in failing to properly consider that her husband had admitted only to slapping the applicant once and had denied punching and threatening the applicant.

[22]   I do not accept Mr Chaudhry’s argument. What matters is not what the husband admitted to the Police when he was spoken to but what conduct he admitted when he pleaded guilty to behaving threateningly and assaulting Ms Devi. The summary of facts contained assertions of a serious and sustained assault; that is what was conceded by the pleas. It is inconsistent with the admission to the Police of a single slap and the later assertion to INZ that all he did was touch Ms Devi’s shoulder. The statements to the Police and INZ were inconsistent with each other. Ms Devi’s account of the incident to INZ that he “used his finger to push her face” differed from her husband’s account, and further departed from the Police summary of facts that described him punching her on the sides of her head using both hands multiple times.

[23]   It must inevitably be the case that Ms Devi lied about the circumstances of the incident; either to the Police (which seems improbable given her husband’s guilty pleas) or to INZ officials. Moreover, Ms Devi must be taken to have considered at the time of her complaint to the Police that her husband’s conduct was so serious as to justify her seeking refuge elsewhere with her son and obtaining a protection order. Her attempts more recently to minimise the seriousness of the assault to better her immigration prospects are patently disingenuous. It was open to the immigration officials to conclude that Ms Devi and her husband lied to them, and to the Tribunal to agree.

[24]   Credibility is one of the central tests under the immigration rule F2.30. By giving accounts that “differed sharply” from the information recorded by Police, both Ms Devi and her husband attempted to mislead INZ and, therefore, failed to satisfy the credibility element. The Tribunal was entitled to find that INZ had reasonable grounds not to be satisfied that Ms Devi and her husband met the credibility element under F2.30 and the proposed question does not raise any issues of general or public importance.

Stable and genuine

[25]   The applicant seeks to argue that the Tribunal erred in applying instructions F2.5 and F2.30 by “translating” a single incident of domestic violence into a conclusive finding that the marriage is not stable or genuine. Judge Spiller acknowledged, however, that the marriage had been “incident-free except for the one incident”.6 The reference to a single incident of domestic violence was not the sole matter considered by the Tribunal.

[26]   The nature of the relationship is one of the central factors to be considered under immigration rule F2.5. In this case, the lack of credibility has resonance in the question of stability because INZ had to rely to a considerable extent on what the parties said about the nature of their relationship. Having concluded that the later accounts of the domestic violence incident lacked credibility, INZ and the Tribunal were entitled to doubt the truth of the assertions by Ms Devi and her husband that their relationship was genuine and stable. They were findings of fact open to the decision makers with which this Court cannot interfere.

[27]   No question of law or fact capable of serious argument arises and there is nothing of general or public importance, or any other reason, to submit the matter to this Court.

6      Re SZ (Partnership) [2017] NZIPT 204079 at [46].

Evidentiary standard

[28]   The applicant submits that guidance is needed on the evidentiary standard the Tribunal should apply when deciding appeals concerning the elements under instruction F2.30. The proposed question does not, however, address an error of law of the Tribunal.7 In any event, the Tribunal referred to the immigration instructions under F2.5c and stated that the onus falls on the applicant and her partner.8 The Tribunal properly applied the onus of proof and the proposed submission does not raise a question of law capable of serious argument or any issue of general or public importance.

Ground two

[29]   The applicant submits that the Tribunal erred in “failing to consider significant factors or unduly limited what can be considered as exceptional circumstances of a humanitarian nature… as an exception to application residence instructions”. Humanitarian considerations, however, were not relevant to the decision of either INZ or the Tribunal. Such considerations would be relevant if, subsequent to the dismissal of the appeal, the department took deportation proceedings.9 Here, in the context of rights of appeal concerning residence class visas, the applicable test involves consideration of whether “special circumstances of the applicant are such that… an exception to those residence instructions should be recommended”.10 The Tribunal cannot be faulted for not applying a different test taken from an inapplicable part of the Act.

[30]   The Tribunal found that Ms Devi had no special circumstances, that is, no “circumstances that are uncommon, not commonplace, out of the ordinary, [or] abnormal”.11 The Tribunal applied this test to Ms Devi’s family circumstances, her health and her character, and found the applicant’s case to be all too common. It was entitled to reach that conclusion.

7      Immigration Act 2009, s 245(1).

8      Re SZ (Partnership) [2017] NZIPT 204079 at [30].

9      Immigration Act 2009, s 206.

10     Immigration Act 2009, s 187(4)(b).

11     Rajan v Minister of Immigration [2004] NZAR 615 9CA) at [24].

[31]   The Tribunal referred to art 3.1 of the United Nations Convention on the Rights of the Child which provides that the best interests of the child shall be “a primary consideration”.12 The child’s interests, therefore, are important but not paramount and “may be outweighed, in appropriate cases, by the need to protect the integrity of the New Zealand immigration policy framework”.13 The ultimate effect given to the child’s interests is a matter of assessment against all other factors and do not, therefore, compel a particular result or any particular weight.14

[32]   The Tribunal specifically addressed the child’s interests. The question as to whether or not, because of the inevitability of the applicant’s departure from New Zealand, the best interests of the child were served by being with both parents was considered. The Judge was not persuaded on the evidence before him that the child had special needs or that there were special circumstances by virtue of the child needing to be with both parents. The Judge said ordinarily that is so but in light of the violence in the background, he was not persuaded that he could make a definitive finding about that.15

[33]   The Tribunal made findings based on all the evidence before it. The weight given to the relevant factors in the Tribunal’s assessment is a matter for the Tribunal alone.16 The conclusion the Tribunal reached was one open to it and consistent with the policy and requirements of the Immigration Act. Accordingly, the Tribunal did not err and the question of law does not raise an issue of general or public importance.

Result and costs

[34]   Ms Devi has not identified a question of law which, by reason of its general or public importance or exceptional circumstances involving individual injustice, justify granting leave to appeal. I dismiss the application for leave to appeal.

12     Re SZ (Partnership) [2017] NZIPT 204079 at [49].

13     Tau’ili’ili v Chief Executive of the Department of Labour HC Wellington CIV 2009482000075 at [47].

14     Ye v Minister of Immigration [2010] 1 NZLR 104, [2009] NZSC 76 at [25].

15     Re SZ Partnership) [2017] NZIPT 204079 at [50].

16     Minister of Immigration v Zhang [2014] NZAR 88 at [34].

[35]   The respondent is entitled to an award of costs on a category 2B basis, and disbursements. If the parties cannot agree on the amount, they shall file and serve memoranda not later than 5pm on 30 March 2018. Costs shall then be determined on the papers.

…………………………………

Toogood J