EG v Immigration and Protection Tribunal

[2018] NZHC 1653

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-404-002828

[2018] NZHC 1653

BETWEEN

EG

Applicant

AND

IMMIGRATION AND PROTECTION TRIBUNAL

First Respondent

AND

MINISTER OF IMMIGRATION

Second Respondent

Hearing:

29 May 2018

Appearances:

S Graham for the Applicant

R Polaschek and K Orpin-Dowell for the Respondent

Judgment:

5 July 2018

JUDGMENT OF DUNNINGHAM J

[1]                 Mr G1 is an Indian citizen who has been in New Zealand since June 2011 when he arrived in New Zealand to study computing. He remained in New Zealand under various categories of visa until Immigration New Zealand served him with a deportation liability notice on 7 July 2017. Mr G appealed his deportation liability to the Immigration and Protection Tribunal, claiming “exceptional circumstances of a humanitarian nature”.2

1      I have adopted the same depersonalised description of the applicant’s name as the Tribunal used.

2      Under s 207 Immigration Act 2009.

EG v IMMIGRATION AND PROTECTION TRIBUNAL [2018] NZHC 1653 [5 July 2018]

[2]                 In a decision dated 31 October 2017, the Tribunal considered and rejected  Mr G’s appeal. It found that his case did not give rise to exceptional circumstances of a humanitarian nature in terms of the statutory test.

[3]                 Mr G now seeks leave under s 249(6) of the Immigration Act 2009 (the Act) to commence judicial review proceedings. He wishes to argue procedural unfairness in that the Tribunal did not explain to him the possible prejudice arising from the police report of domestic violence call-outs to his family and, also, that the Tribunal was unfair in not making further enquiries into the effect of his deportation on the child he has had with a New Zealand citizen.

[4]                 The application for leave is opposed by the second respondent,3 saying that the grounds for judicial review are either factual challenges or questions of law which could adequately be dealt with in an appeal. More importantly, they do not raise seriously arguable issues of general or public importance, nor is the grant of leave justified for any other reason.

Background facts

[5]                 Mr G arrived in New Zealand as a 17 year old on a student visa. After successfully completing a Diploma in Computing he was granted a one year graduate work visa. He then obtained a further student visa and returned to study, commencing a National Diploma in Business, although not completing it. It was during this time that he began a relationship with a New Zealand citizen and the couple commenced living together in June 2013. They had a son who was born in May 2014. That child is a New Zealand citizen. He then applied for residence based on his partnership. However, that application was declined in May 2015 because his partner had previously supported another partner who gained residence in 2013. The couple separated at about this time but resumed living together at some stage in 2016 by which time Mr G had obtained a three year work visa to work as a road traffic controller.

[6]                 On 14 June 2017 the applicant was convicted and sentenced on an offence of refusing an officer’s request for a blood specimen. He was also convicted and

3      The first respondent abides the decision of the Court but reserving rights.

sentenced on the same occasion for a separate offence of operating a vehicle carelessly. He had already been convicted and sentenced in 2012 for driving with excess blood alcohol. As a result of the convictions, and following interviews with the applicant, Immigration New Zealand served him with a deportation liability notice. He and his partner separated again at around the time of the 2017 offending although they had resumed their relationship by the time of his appeal.

Application to the Tribunal

[7]                 Mr G appealed his deportation liability to the Tribunal primarily on the grounds of the effects it would have on his relationship with his partner and, more particularly, on his young son. In October 2017, after the hearing, but before making its decision, the Tribunal wrote to Mr G and provided him with a copy of his police vetting report. The report recorded three police attendances for family violence episodes within his family between 2014 and 2016 and that he had been served with a Police Safety Order in 2015. The Tribunal’s letter invited Mr G to provide a written reply and it advised that, in the absence of a response, it would decide the appeal on the basis of the information it had to hand.

[8]                 By email dated 11 October 2017, Mr G and his partner each provided a written response to the matters set out in the police vetting report. They both acknowledged that the relationship had been troubled, but sought to explain the context and background to the family violence episodes and why they happened. Both said that they had worked on improving their relationship and their communication skills since those events for the benefit of their relationship and their son.

[9]                 In its decision dated 31 October 2017, the Tribunal considered, but rejected, the submissions based on the applicant’s study, employment and immigration status. They said none of these created exceptional circumstances justifying allowing a humanitarian appeal. The Tribunal also considered the applicant’s relationship with his partner and the effect of deportation on his family life, along with the explanations offered by the applicant and his partner for the incidents referred to in the police report. While the Tribunal noted that the couple disputed whether actual violence was involved and whether the third time that the police were called was because of a

relationship dispute, it concluded that instances of family violence, whatever their exact nature, underscored the volatility of the applicant’s partnership.

[10]             The Tribunal concluded that the existence of the partnership was not in and of itself enough to give rise to exceptional humanitarian circumstances, and in this case, the unstable nature of the relationship strengthened that finding. It also noted that the applicant had no immediate pathway to residence based on his relationship with his partner, as she had previously supported a partner in his application for residence, so could not support the applicant for some time. In any event, the applicant would also have to meet all the other requirements for residence under this category, including obtaining a character waiver, which meant there were considerable obstacles to the applicant remaining in New Zealand in any event.

[11]             The Tribunal then turned to consider the son’s interests, which it acknowledged were a primary consideration in the appeal. However, it concluded that the child’s separation from his father did not give rise to an exceptional circumstance justifying the appeal. Although deportation would separate the applicant and his son, the son had spent most of his life in the care of his mother with support from her family. The child had already lived apart from his father for relatively long periods in his short life. While the applicant’s absence would have the potential to distress the son, that could be managed, particularly with the love and support of his mother and her family. While difficult, the applicant could continue to maintain contact with his son through Skype and the like, and in the future the partner and son could travel to India if they wished to continue the relationship.

[12]             In conclusion, the Tribunal did not consider that the stringent statutory test of “exceptional circumstances of a humanitarian nature” was established on a cumulative assessment of all the applicant’s circumstances. The appeal was therefore rejected.

Application for leave under s 249(6) of the Immigration Act

[13]             Mr G seeks leave under s 249 of the Act to bring judicial review proceedings challenging the Tribunal’s decision. The relevant portions of s 249 provide:

249 Restriction on judicial review of matters within Tribunal’s jurisdiction

(1)No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.

…

(3)Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.

…

(6)In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—

(a)whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and

(b)if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.

(7)A court that grants leave under subsection (3) to bring review proceedings must state the issue or issues to be determined in the proceedings.

[14]             Mr G has not appealed the Tribunal’s decision so the prohibition in s 249(1) does not apply. However, I must be satisfied it is appropriate to grant leave having regard to the matters specified at s 249(6).

[15]             Although the applicant has not stated the precise issues to be determined on judicial review, the grounds on which the application for leave is brought can be summarised as follows:

(a)there was procedural unfairness in that the Tribunal did not warn the applicant, who was not represented during his appeal, that the information in the police vetting report was or may be prejudicial to determining his appeal; and

(b)the first respondent had an obligation to make further enquiry to ensure the child’s interests were represented and taken into account, as it was

“obvious” the applicant could not adequately represent the child, and its failure to do so was unfair.

[16]I address each of these grounds in light of the matters set out at s 249(6).

Would the review proceedings involve issues that could not be adequately dealt with on appeal?

[17]             Section 249(6)(a) requires the Court to consider whether the issues raised in the proposed judicial review proceedings could be adequately dealt with in an appeal against the Tribunal’s decision. In this case, the applicant submits that the issues satisfy s 249(6)(a) of the Act (albeit without elaborating on why), but also notes that s 249 of the Act does not prohibit the High Court from granting leave in a proceeding which involves issues that could have been dealt with on appeal, or which are not of general or public importance.4

[18]             The second respondent however, says that both the grounds on which the applicant wishes to commence judicial review proceedings are simply factual disputes or, to the extent they are legal issues, they could have been more appropriately addressed in an appeal on a point of law.

[19]             The first ground relates to the extent of the Tribunal’s obligations under s 230 of the Act when it seeks comment from an appellant on information it has received from a third party which is or may be prejudicial to the applicant. At best, that is an alleged error of law which could be addressed on appeal. The second ground really challenges the Tribunal’s factual findings about his relationship with his partner and the effect of deportation on his son. To the extent it raises the question of whether there is a duty on the Tribunal to make further enquiries in certain circumstances that, too, could have been more appropriately addressed as a legal issue on appeal. Even if the issues are framed as breaches of natural justice, those also could have been raised on appeal as a point of law.5

4      Referring to Allada v Immigration and Protection Tribunal [2014] NZHC 953, [2014] NZAR 880 at [32].

5      Citing cases such as Ancare New Zealand Ltd v Wyeth (NZ) Ltd [2009] NZCA 211, [2009] 3 NZLR 501.

[20]             When viewed against the Act’s policy of limiting judicial review proceedings, the second respondent says the application for leave should be declined on this basis alone.

Discussion

[21]             The requirement to consider whether the proposed issue could be dealt with adequately on appeal is related to the introduction of the requirement for leave to bring judicial review proceedings. As was observed by Gilbert J in Songmia v Minister of Immigration:6

Prior to the enactment of the current s 249, … leave was required for an appeal but not for judicial review. Issues that could have been dealt with by way of appeal were sometimes addressed in applications for judicial review to avoid the need for leave. This anomaly has been corrected by requiring leave for any application for judicial review as well as for appeals.

[22]             It is clear that by introducing this section, Parliament not only intended to limit the scope of judicial review from immigration decisions, but also to ensure that judicial review was not used where the more appropriate avenue was to seek leave to appeal. Prior to this, it seemed that those dissatisfied with decisions of the Tribunal may have elected to issue review proceedings rather than appeal because there was no requirement to obtain leave. As was observed by Palmer J in RM v Immigration and Protection Tribunal, the introduction of s 249 appears to have been to remove the incentive to take review proceedings instead of using the normal appeal process.7

[23]             In my view, the first issue raised by the applicant, which is whether the Tribunal complied with its obligations under s 230, is a question of law. There is no dispute on the facts; the text of the letter sent from the Tribunal requesting a response to the police vetting report is in evidence, as are the replies of the applicant and his partner. The issue is whether this letter complied with the Tribunal’s obligations under s 230 of the Act. In respect of this question, I consider this could have been adequately dealt with on appeal and the test in s 249(6)(a) is not satisfied.

6      Songmia v Minister of Immigration [2013] NZHC 3233 at [12].

7      RM v Immigration and Protection Tribunal [2016] NZHC 735 at [40].

[24]             In respect of the second issue, Mr Graham is essentially arguing that the Tribunal was under a duty to enquire further into the effects on the applicant’s son if the applicant was deported. That, of course, could readily be expressed as a question of law which would be amenable to appeal. However, I cannot rule out that it could equally be raised on judicial review. In Wu v Minister of Immigration, where a question over the Tribunal’s duty to make further enquiry was being considered, Palmer J granted both leave to appeal on a question of law and leave to bring judicial review proceedings on the basis it was not clear that the legal issues arising in the appeal differed from those arising in judicial review.8 Because “the duty to self-inquire is firmly rooted in the law of judicial review” and “the public importance of the issues and the interests of justice, in this context of human rights, militate in favour of the judicial review being heard too”, he was prepared to grant leave under both ss 245 and 249 of the Act.9

[25]             In my view, while this is an issue that could be considered as a question of law, it is not so confined a question that I would rule out granting leave on the grounds it could have been dealt with adequately on appeal. However, for reasons I go on to explain, it must also meet the threshold in s 249(6)(b) and I do not consider it does.

Do the proposed grounds of review raise a matter of general or public importance?

[26]             The test in s 249(6)(b) for whether an issue is of general or public importance or which for any other reason should be submitted to the High Court, is similar to that which applies to second appeals to the Court of Appeal.10 Simply put, not every question of law is sufficiently important to warrant granting leave. The issue raised needs to be “capable of bona fide and serious argument involving an interest of sufficient importance to outweigh cost and delay”.11

[27]             The applicant submits that the issue of whether the first respondent adequately communicated that the police vetting report contained “prejudicial information” to the applicant (which he says was required), is an issue of importance beyond his own

8      Wu v Minister of Immigration [2016] NZHC 1309.

9 At [60].

10     Minister of Immigration v Jooste [2014] NZCA 23 at [5].

11     Wu v Minister of Immigration [2016] NZCA 511, [2016] NZAR 1667 at [12].

particular circumstances. Similarly, the question of whether the first respondent discharged its obligation to consider the “best interests of a New Zealand citizen child” and ensure that everything relevant to that child’s interest came to its attention, is also such a question.

[28]             The applicant relies, in particular, on the Supreme Court’s decision in Ye v Minister of Immigration, which emphasised the importance  of  the  interests  of  New Zealand citizen children in the decision-making process and held that “[t]here may be circumstances in which the parent(s) cannot adequately represent the child’s interests”.12 In such cases Ye suggests the decision maker should “ensure that … everything relevant to the interest of the child comes to the decision-maker’s attention”. More recently, in Wu v Minister of Immigration, the Court raised the possibility, that a Tribunal may have a duty to enquire into “foreign law and legislative facts … if that is necessary for it to consider adequately the rights and interests of a New Zealand citizen child”.13 The applicant also relied on Minister of Immigration v Wu, where an application for leave to appeal was granted, with the Court saying that the fate of the applicant’s child “should not turn on whether or not her parents make competent or timely submissions on her behalf”.14

[29]             The second respondent, however, points out that neither of the proposed grounds of review reached the threshold in s 249(6)(b) because they do not raise questions of importance beyond the facts of this case, nor do they have any prospect of success.

[30]             In relation to the first ground the second respondent says it is not seriously arguable that the Tribunal breached either s 230 or the rules of natural justice, when seeking comment on the applicant’s police vetting report.

[31]Section 230 of the Act provides:

(1)Except as provided in subsection (3), the Tribunal must disclose to the appellant or affected person, and give the appellant or affected person an opportunity to rebut or comment on, information or material that—

12     Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [48].

13     Wu v Minister of Immigration [2016] NZHC 3194 at [65].

14     Minister of Immigration v Wu [2017] NZHC 2514 at [34].

(a)is provided to the Tribunal by a source other than the appellant or affected person; and

(b)is or may be prejudicial to the appellant or affected person; and

(c)the Tribunal intends to take into account in determining the appeal or matter.

[32]             Here, the Tribunal sought comment from the applicant on the police report as required by this section. The letter from the Tribunal expressly referred to the relevant material in the report, being the family violence episodes that the police were called out to and the fact Mr G was served in 2015 with a Police Safety Order. It invited  Mr G to reply and it gave a date for doing so, failing which it was explained that the Tribunal would decide the appeal “on the basis of the information to hand”.

[33]             The second respondent says that this was consistent with s 230 and also met the requirements of natural justice which are that a party should be given a reasonable opportunity to present his or her claim with full knowledge of the case which he or she has to meet. Those requirements did not extend to explaining the particular inference that could be taken from the possibly prejudicial information. In any event, the implications of the police report were very clear. It reflected on the nature of the relationship between the applicant and his family which he had relied on as forming the basis for his humanitarian appeal.

[34]             Furthermore, the applicant’s response demonstrated that he understood the prejudicial implications of the police report. He responded by saying:

I do understand that having something like family violence episodes in your family is not a really great thing for anyone in the family, especially a young family. But I would like to explain to tribunal these episodes and why they happened.

It is clear, therefore, that there was no unfairness to the applicant, as he was given a full opportunity to respond to the police report, which he took up.

[35]             Similarly, the second respondent says it is not seriously arguable that the Tribunal acted unfairly by not enquiring further into the interests of the child. The second respondent says there is now no obligation on the Tribunal to enquire further

into the personal circumstances of the child. Specifically, s 228(2) of the Act provides that the Tribunal may make a decision solely on the basis of the information before it, without making further enquiries. It is the appellant’s responsibility to ensure that all information which he wishes to have considered is before the Tribunal including information about the effect of deportation on his or her children.15 As stated in Ye v Minister of Immigration, officers can “ordinarily expect parents to put forward all that can reasonably be said on behalf of their children”.16

[36]             The second respondent also notes that to the extent the decision in Ye suggested there were obligations on a decision maker to make its own enquiries into the interests of a child, that decision predates the current Act and the express provisions in s 228 which preclude any obligation to make further enquiry.

[37]             Even if the more recent decision in Wu v Minister of Immigration is relied on, that decision accepted that s 228 meant the Tribunal was not obliged to seek information personal to the parties beyond that supplied by them. It only went so far as to suggest that the Tribunal may be obligated to inquire into “foreign law and legislative facts”.17

[38]             In any event, even if a discretionary duty to enquire was imposed on the Tribunal in exceptional cases, nothing in this case suggested that it was such an exception. The Tribunal acknowledged that the child’s interests were “a primary consideration in the determination of this appeal” and took some care to consider his interests, but in the end, determined that the effects on the applicant’s son did not give rise to exceptional circumstances of a humanitarian nature. Given the instability of the relationship and the fact that the son had not consistently lived with both parents, it was entirely open to the Tribunal to reach that conclusion on those facts.

15     Immigration Act, s 226(1).

16     Ye v Minister of Immigration, above n 12, at [48].

17     Wu v Minister of Immigration, above n 13.

Discussion

[39]             While I have already held that the first ground of the proposed review proceedings does not meet the threshold in s 249(6)(a), I also consider that it does not meet the threshold of constituting a question of general or public importance.

[40]             First, it relates solely to whether, on the facts in this particular case, the requirements of s 230 were complied with. Second, I accept the second respondent’s submissions that it is not reasonably arguable that the Tribunal erred. Section 230 is simply a legislative provision which enshrines one facet of the well established principles of natural justice, which is to give an affected person “an outline of the case against him so he knows what is being said against him sufficiently to have a fair opportunity of correcting or contradicting it”.18

[41]             That is precisely what happened here. Mr G was given a full copy of the police report and given the opportunity to explain, correct, or contradict it. Mr G and his partner took up this opportunity, giving a full explanation of the circumstances in which the events of concern occurred and challenging whether one was a family violence call-out. The Tribunal took note of their response and recorded that it did not finally need to resolve the extent of the family violence given that some degree of it was acknowledged by the applicant and his partner.

[42]             Neither s 230, nor the principles of natural justice, require the decision maker to do more than disclose the information may be taken into account in its decision and provide a reasonable opportunity to respond to it. It cannot be seriously argued that that was not done in this case.

[43]             Given there is no seriously arguable issue raised by this ground, let alone one of general or public importance, I would not grant leave on this ground.

[44]             In respect of the second ground of appeal, the applicant’s case is primarily grounded on the statement in Ye that there may be cases where a decision maker would be obligated to make further enquiries regarding the interests of a child. However, I

18     Furnell v Whangarei High Schools Board [1973] 2 NZLR 705 (PC) at 723.

accept that the principles articulated in Ye have been superseded by s 228 of the Act which expressly permits the Tribunal to rely on the information which is provided by the parties before it. The decision in Wu does not alter that. Palmer J acknowledges that the effect of s 228 is that the Tribunal is not obliged to seek any information further to that provided to it by specified persons.19 Although he held it may have a duty to enquire into “legislative facts”, these have been explained by Elias CJ as “general facts, not concerning the immediate parties, which help the tribunal determine the content of law as a matter of policy”, and is not relevant to the applicant’s case.20

[45]             In any event, apart from a passing reference to the fact the mother disclosed in her letter to the Tribunal that she had suffered from depression and anxiety at the time of the family violence episodes, the applicant does not set out what additional information could have been provided about the child’s interests, or in what way the representation of his interests was insufficient. There were no facts placed before this Court which suggested there was any additional detriment to the child from his father’s deportation outside of the acknowledged effect on their relationship, which was carefully and properly evaluated by the Tribunal.

[46]             For these reasons, nothing raised by the applicant suggests that there is a seriously arguable issue, let alone one of general or public importance in relation to how the Tribunal addressed the interests of the child, and I would not grant leave on this ground either.

Should leave be granted for any other reason?

[47]             Section 249(6)(b) also opens the door to circumstances where “for any other reason” leave should be granted. However, as Kós J said in Taafi v Minister of Immigration:21

… it would only be in exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing, that this alternative requirement will be met.

19     Wu v Minister of Immigration, above n 13, at [61].

20     Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at fn 9.

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

[48]             In this case, the applicant says there are exceptional circumstances given the “issues in this case involve individual injustice [to] the applicant and his New Zealand child”. However, in my view, nothing has been raised which has not already been addressed under the previous two limbs of s 249(6). The issues sought to be pursued in judicial review proceedings were either capable of being raised on appeal or, in any event, did not meet the threshold of involving questions of general or public importance. There is no information before this Court which suggests that there is some exceptional circumstance beyond these issues which would warrant the grant of leave.

Result

[49]The application for leave to bring judicial review proceedings is dismissed.

Costs

[50]             Costs are reserved. If costs cannot be agreed, I reserve leave for the party applying for costs to file submissions within 20 working days of the date of this judgment, with any submissions in  opposition  and  reply  to  be  filed  within  a  five working day interval respectively.

Solicitors:

Young Hunter, Christchurch Crown Law, Wellington