F v Immigration and Protection Tribunal
[2013] NZHC 2583
•4 October 2013
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT AND OF HIS CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE
IMMIGRATION ACT 2009.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2013-485-516 [2013] NZHC 2583
BETWEEN R D F Applicant AND
IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
AND
MINISTER OF IMMIGRATION Second Respondent
Hearing: 30 September 2013 Counsel:
N R Woods for Applicant
No Appearance for First Respondent
J Foster and S Cohen-Ronen for Second RespondentJudgment:
4 October 2013
JUDGMENT OF RONALD YOUNG J
Introduction
[1] Mr F and his wife Ms V had a child D, born in Auckland in 2009. Mr F had come to New Zealand as a student in 2007 and in 2008 was granted a residence permit. After that he married Ms V in India and they both returned to New Zealand. Mr F then seriously assaulted Ms V. He was imprisoned for two years and two
months. Before his release he was given a deportation liability notice.
R D F v TRIBUNAL [2013] NZHC 2583 [4 October 2013]
[2] After his release on parole in August 2012 Mr F appealed to the first respondent against his deportation. In February 2013 the Immigration and Protection Tribunal (IPT) issued its decision dismissing Mr F’s appeal. In these proceedings Mr F applies to judicially review the IPT’s decision.
[3] Mr F says the IPT made mistakes of fact; was biased and inconsistent in its decision making; failed to take into account relevant considerations; drew unfair and unjustified factual inferences; and that these errors in combination meant the decision making process has misfired sufficiently to require the intervention of this Court (an innominate ground).
Facts
[4] Mr F is an Indian citizen who was born in 1978. He left India for New Zealand at the beginning of 2007 on a student visa. He studied at the Western Institute of Technology in New Plymouth and by the end of that year had obtained a diploma of professional cooking. In May 2008 he was granted a residence permit to live in New Zealand. In the meantime he had been in contact with his future wife, Ms V. In August 2008 Mr F travelled to India and married Ms V who was also an Indian citizen.
[5] A few months later Mr F returned to New Zealand and in early 2009 Ms V arrived in New Zealand. She was pregnant at the time and their child D was born in June of that year.
[6] As it turned out, during the course of 2009 there were 19 incidents of domestic violence committed by Mr F against his wife. They involved hitting and slapping her, including when she was up to eight months pregnant, assaulting her when she was holding their son D, and assaulting her with a belt.
[7] In October 2009 Mr F and Ms V separated. Ms V applied for and obtained an interim protection order relating to both herself and her son D with respect to Mr F.
[8] A month or so later Mr F and Ms V reconciled. Ms V wanted the protection order withdrawn but counsel for the child who had been appointed in the interim opposed the discharge and in early 2010 an interim protection order with respect to the child D was made final.
[9] Later that year Mr F’s brother arrived from India. Shortly afterward Mr F and his brother seriously assaulted Ms V. She was repeatedly slapped, punched and kicked when on the ground. While it was clear that she needed medical attention that was delayed for a day. When medical attention was sought she was hospitalised for multiple injuries including a collapsed lung.
[10] Mr F was arrested and appears to have pleaded not guilty. He was eventually convicted in May 2011 and sentenced to two years two months’ imprisonment on charges of injuring with intent to injure, breach of a protection order, speaking threateningly, assault with a weapon and common assault. The latter was a representative charge covering the 2009 violence. Mr F was served with his deportation notice on 8 June 2012. He was released from prison on parole on
20 August 2012.
[11] Mr F’s appeal from the deportation notice was heard on 29 and
30 October 2012 by the IPT. Mr F gave evidence and was subject to significant cross-examination and questioning by the Tribunal. In addition, Ms V gave evidence.
[12] Mr F produced a letter from Father Alan Roberts who was described as the “spiritual director at the National Clinic Catholic Seminary” who had 40 years of experience as a parish priest around the Wellington area. Father Roberts had known Mr F since 2007. He was supportive of Mr F’s desire to remain in New Zealand.
Admissibility of affidavit
[13] In these judicial review proceedings Mr F filed an affidavit in support of his application together with a number of documents. The affidavit was primarily Mr F’s response to a number of the points made by the Tribunal in its decision. Counsel for Mr F accepted that he could not, in these judicial review proceedings,
bring before the Court additional factual material not before the Tribunal. This was,
as he acknowledged, after all, a review of the Tribunal’s decision making process.
[14] Counsel therefore accepted that the factual material which I must take into account in assessing the applicant’s grounds of review are the facts that were before the Tribunal. Those facts were contained in the evidence before the Tribunal and in the documents placed before the IPT.
[15] Attached to the applicant’s affidavit was the Tribunal’s decision and approximately 50 pages of documents. The applicant accepted that I could only properly take into account the documents produced before the Tribunal. These were the final protection order; the final parenting order of D in Ms V’s favour; and the letter from Father Alan Roberts to the Tribunal. I do not propose to take into account what could be described as further evidence provided by Mr F in his affidavit filed in these proceedings or other documents attached to his affidavit that were not before the IPT.
A hard look assessment?
[16] The applicant submitted that judicial review in this area required a “hard look review”. This, the applicant said, required the Court to closely scrutinise the logical and factual reasoning of the IPT, in assessing the deportation decision.
[17] In my view there is no principle of law that requires anything other than a traditional approach to judicial review in this area. In saying that I am conscious of the importance of these proceedings to Mr F and his son. Mr F has New Zealand residency and whenever children are involved the Courts are especially anxious to ensure that all relevant matters are canvassed so that the best possible decision for all involved is made.
The relevant law
[18] Section 207 of the Immigration Act 2009 sets out the grounds which the IPT
must consider in appeals against deportation. The section states:
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.
[19] The Supreme Court in Ye v Minister of Immigration identified a four stage test based on this section.1 The considerations are interwoven. The IPT must be satisfied there are exceptional circumstances and those circumstances must be of a humanitarian nature. The humanitarian exceptional circumstances must make it unjust or unduly harsh for Mr F to be deported from New Zealand.
[20] Finally, having reached that stage it must also not, in the circumstances, be contrary to the public interest to allow Mr F to stay in New Zealand. Where children are involved their best interests are a primary consideration but not the paramount consideration.
This appeal
[21] The first ground of appeal seems to be that in its approach to decision making the IPT did not consider the best interests of the child D first in time. Its decision was not a child first approach. It, therefore, did not adequately ensure that D’s interest was a primary consideration.
[22] I am satisfied that the Tribunal did approach the matter from D’s perspective and did consider his welfare as a primary matter. I reject the claim that unless the Tribunal begins its findings with a consideration of the interests of the child, the IPT must inevitably have failed to consider the welfare of the child as a primary
consideration. An assessment of the IPT’s decision need not begin with an analysis
1 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.
of where in their decision they considered the child’s interest but whether they did so and whether they treated the child’s interest as a primary consideration.2
[23] Under the heading “Analysis” the Tribunal said:
[75] Normally, we would place considerable weight on the importance to a child of growing up knowing his father (and on the importance to the father of contact with his son). We do not need to labour the point about the best interests of children. Such consideration, however, presumes a relationship of quality – one that is nurturing and beneficial to the child’s development and which has context and depth. That is not the case here. The failure of the appellant to attempt any communication with his son or provide for him, even very modestly once he has been released from prison does not point to his relationship with D being a substantial factor in finding exceptional circumstances of a humanitarian nature: see Singh v Minister of Immigration [2009] NZCA 50, at [20(e)]. We have no confidence that the appellant will have any meaningful relationship with D in the future, even if he stays in New Zealand.
Conclusion on Exceptional Circumstances
[76] Weighing all the above matters cumulatively, the appellant’s relevant circumstances are that he is reasonably well-settled here and has a son in New Zealand. The significance of the relationship with the son, however, is qualified by the fact that the appellant has had no contact with him for more than two years and the evidence does not satisfy us that this will change meaningfully, even if the appellant remains in New Zealand. At most, the son may seek him out when he is a teenager but that is remote in time and is no more than speculative.
[24] As the Tribunal said:3
Liu v Chief Executive of the Department of Labour does not disturb the proposition that the interests of the child are a primary consideration in deportation decisions.
[25] The question to be asked is whether it is in the best interests of the child that his or her parent is deported. But, even if it is not in the child’s best interests, this does not prevent a decision to deport if other considerations outweigh that primary
consideration.
2 However, as the IPT noted their attention focussed primarily on the Mr F’s relationship with D –
RDF v Minister of Immigration [2013] NZIPT 600013 at [74].
3 Liu v Chief Executive of the Department of Labour [2012] NZHC 2753, [2012] NZAR 1012 at
[52].
[26] The approach of the Tribunal was clearly child-centric in assessing what would be in the best interests of D. The Tribunal concluded that Mr F had shown little interest in his child until his threatened deportation. The child did not know Mr F as his father and Mr F’s attitude to D’s mother was one of aggression and violence over an extended period. The Tribunal doubted Mr F’s commitment to having access to his child in the long term. It concluded that it could not be said that the best interests of the child required an ongoing relationship with his father, Mr F, in the particular circumstances. The Tribunal’s approach illustrated that it did consider D’s welfare as a primary consideration.
[27] For the reasons given, therefore, I am satisfied that the Tribunal did correctly consider D’s best interests as a primary consideration when it assessed Mr F’s appeal. I reject this ground of challenge.
Factual errors, unjustified inferences
[28] The applicant complained that the Tribunal had made factual errors about his commitment to his child including whether he had made attempts to communicate or provide for his child; and about whether he had attended the anti-violence courses recommended by Corrections. He submits these factual errors together with the absence of any proper evaluation of D’s best interests meant D’s interests were not adequately considered.
[29] The IPT said:
[96] The appellant failed to fulfil the requirements of both the interim and the final protection orders that he attend an anti-violence course. Since his release on parole he had started one such course, but gave it up and then started another. Accordingly, we have an appellant before us who is untreated. We do not find that he has accepted that he has the violence problem that has been identified by the courts and by Father Roberts. We do not have confidence that any future relationship partner he might have would be safe if she differed from his wishes.
[30] The applicant says that this was a selective and distorted summary of the relevant facts. That led, he says, to the unjustified conclusion that he was not committed to an anti-violence course and not committed to treating his propensity for violence.
[31] In particular he says that he did not know he was obliged to undertake an anti-violence course after the protection order was made final. This was because he did not know the order had been made final. Further, after his release from prison he began attending one course but had been told by Corrections he had to complete another course.
[32] I am satisfied the inferences drawn by the Tribunal at [96] were open to it on the facts. The fact is that the applicant, although subject to a protection order (which required the completion of an anti-violence course) and then a significant sentence of imprisonment for violence, had not completed an anti-violence course. Whatever Mr F’s intention he could not reassure the IPT that he had completed such a course and thereby reduced his likelihood of reoffending. The Tribunal heard evidence from Mr F which in part blamed the complainant for his violence. The Tribunal, therefore, had before it a man who had seriously violently offended against his wife, who had not completed any rehabilitation course and who in part blamed his violence on his victim. The IPT were, therefore, entitled to infer likelihood of future violent conduct toward other potential partners.
[33] At [75] the Tribunal referred to the fact that Mr F had failed to attempt any communication with his son and had failed to provide for him at all even since leaving prison.4 Mr F says this comment is unfair and inaccurate.
[34] Before the Tribunal Mr F said that he had been told by Father Roberts and his family lawyer that he should wait until his deportation proceedings were determined before he tried to make contact. The IPT found it difficult to accept he had been given this advice. They remarked that such advice seemed to be contrary to Mr F’s best interests in his immigration appeal and contrary to developing a relationship between Mr F and D. They noted Mr F had claimed to have asked Work and Income about D but nothing came of it. The result was that since the assault in 2010, when D was about 10 months old, Mr F has not seen D and has not made any application to the courts to have contact with D. By the time of the October 2012 hearing D was
almost three and a half years old.
4 See summary above at [26].
[35] The IPT were entitled to take the view from the facts that Mr F had made little or no effort to see his son since the assault in 2010 even acknowledging Mr F had spent some of this period in prison.
[36] If Mr F had been determined to develop a relationship with his son then evidence of a determined attempt to do so would have been provided. The IPT were entitled to note that this lack of effort by Mr F did not, therefore, provide much support for his claim that his separation from D if deported was an exceptional circumstance of humanitarian nature. This was not a situation of “punishing” Mr F for his lack of interest in his son. But his interest in his son was relevant to D’s welfare, a primary consideration in the appeal.
[37] The applicant says the IPT had an inconsistent approach to assessments of his risk of reoffending and wrongly assessed him as likely to reoffend.
[38] At trial the District Court Judge accepted Ms V’s assessment of what had led to the violence by Mr F. The IPT said that the appropriate approach was for it to accept what the Judge had said about these facts. Another Judge sentenced Mr F on the basis that he was at low risk of reoffending. The Tribunal undertook its own assessment of risk. It concluded Mr F was at significant risk of reoffending. This, the applicant said, was an inconsistent approach by the IPT to the District Court’s assessment of Mr F. On the one hand it accepted without question the trial judge assessment; on the other hand it differed from the sentencing judge.
[39] I reject that submission. The IPT has to undertake an assessment of future risk. In assessing the s 207 factors, future risk of offending was relevant. For example, a risk assessment is of particular relevance to whether it would be unduly harsh or unjust to deport Mr F. The public interest in allowing Mr F to stay in New Zealand will, in part, be informed by his risk of further criminal offending.
[40] The IPT were not obliged to accept either Judges views of risk of future offending. The IPT in the performance of their statutory function were entitled, indeed in this case obliged, to make an assessment of future risk. There was no inconsistency in their approach. No error has been shown.
[41] The sentencing judge’s assessment of future offending risk was based on the probation officer’s report and their assessment of risk. The IPT, however, identified a number of reasons which supported the view that there was a significant risk of reoffending by the applicant.5 This was based on his past conduct of lengthy domestic violence; failure to attend anti-violence courses; and attempt to shift some of the blame for the offending onto his wife, thus failing to acknowledge full
responsibility for what he had done.
[42] While I appreciate the genuineness of Father Roberts’ evidence it does not seem to me that he is at all qualified to express an opinion about the likelihood of Mr F’s offending. Father Roberts has no qualifications other than his experience of life to do so. It was somewhat surprising that Father Roberts was allowed to express those views at the hearing. His was a lay opinion, one of course that he was entitled to but one which could be given little, if any, weight.
Wait for a Family Court assessment?
[43] The applicant submitted that the IPT was not in a position to adequately assess the best interests of D and should, as Mr F requested, have adjourned the appeal to allow the Family Court to assess D’s best interests. Its failure to take this approach meant the IPT did not have all relevant information before it when it made its decision. Counsel for Mr F identified this as a pivotal ground of challenge. The alternative to an adjournment was a suspension, for a period of up to five years, of
the deportation order.6
[44] In the circumstances of this case there was no reason for the IPT to delay making a decision for any Family Court decision. The IPT has its own responsibility to assess the relevant statutory grounds regarding deportation. The best interests of children are often the basis on which s 207 appeals are mounted. No doubt there will be cases where the Family Court’s assessment of a child’s best interests will be valuable to the IPT. But it would be wrong to require the IPT to invariably refer
child interest questions to the Family Court.
5 RDF v Minister of Immigration, above n4, at [92]–[97].
6 Available under s 172(2) of the Immigration Act 2009.
[45] Here, although the parties separated after the assault in 2010, by the time the IPT heard the appeal in October 2012, no application had been made to the Family Court by Mr F seeking access. There were orders giving Ms V custody of D and a final protection order in D’s favour from the Family Court some years before.
[46] It is proper to acknowledge that during part of the time from 2010 (when the parties separated) until 2012 (when the hearing before the IPT was held), Mr F was in prison. However, there has been ample opportunity for Mr F to have filed proceedings in the Family Court seeking contact with his son as I have noted. If the applicant’s submission was correct, the IPT would have had to delay its deliberations in the hope that Mr F would at some stage file Family Court proceedings. Such an approach would not be appropriate.
[47] Further, the IPT has considerable information on Mr F and Ms V’s circumstances. Both gave evidence before the Tribunal. It was well able to assess D’s best interests.
[48] There could be a case for delaying the resolution of an IPT appeal where, for example, there was an imminent hearing before the Family Court and difficult child welfare issues arose. But those were not the facts in this case.
[49] There were a number of facts which the IPT used to assess the best interests of the child D. It had facts upon which it was entitled to infer that Mr F was unlikely to develop a close supportive relationship with his son. Mr F had effectively no relationship with his son who was, by the time of the IPT hearing, aged over three years. The Family Court had made a final protection order in D’s favour against Mr F. This illustrated the Court’s concern for the welfare of D as far as Mr F was concerned.
[50] These factors all supported the conclusion that it was unlikely that Mr F
would pursue a long term relationship with his son.
[51] The approach of the Tribunal made the child’s welfare a paramount consideration and was based on an analysis of the facts. It was neither necessary nor practical to adjourn the appeal for a possible Family Court hearing as to the best interests of D. No error has been shown.
Innominate ground
[52] Finally, given I have not found any errors in the approach and assessment by the Tribunal, the innominate ground must also fail.
Costs
[53] I award costs to the second respondent against the applicant on a 2B basis plus disbursements as approved.
Solicitors:
Rowland Woods Legal, Wellington
Crown Law, Wellington
Ronald Young J
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