Fisiipeau v Minister of Immigration HC Wellington CIV 2010-485-179

Case

[2010] NZHC 712

14 May 2010

No judgment structure available for this case.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2010-485-179

IN THE MATTER OF     a decision of the Deportation Review Tribunal under section 105 of the Immigration Act 1987, on appeal to the High Court under section 117 of the Immigration Act 1987

BETWEEN  SIONE FISIIPEAU Appellant

ANDTHE MINISTER OF IMMIGRATION Respondent

Hearing:         13 May 2010

Counsel:         S Laurent for Appellant

R A Kirkness and I C Carter for Respondent

Judgment:      14 May 2010

JUDGMENT OF RONALD YOUNG J

Introduction and Background

[1]      The   Minister   of   Immigration   ordered   Mr Fisiipeau’s   deportation   in February 2008 after he was convicted and sentenced on six charges of forgery, nine of supplying false information and eight of altering a document with attempt to defraud.    The  appellant  challenged  that  order  before  the  Deportation  Review Tribunal (“the Tribunal”).  Mr Fisiipeau said it would be unjust or unduly harsh to deport him and it would not be contrary to the public interest to allow him to remain

in New Zealand (Immigration Act 1987, s 105).  The Tribunal disagreed.

SIONE FISIIPEAU V THE MINISTER OF IMMIGRATION HC WN CIV 2010-485-179  14 May 2010

[2]      The  Tribunal  considered  the  offending  was  serious  and,  balancing  the interests of the appellant and his family and its ability to live together in Tonga and enjoy a reasonable standard of living, concluded the deportation could not be said to be unjust or unduly harsh.

[3]      In considering the public interest the Tribunal concluded that because the risk of offending was low and there were no other adverse public interest issues it would not  be  contrary  to  the  public  interest  to  allow  the  appellant  to  remain  in New Zealand.  It therefore confirmed the order for deportation.

[4]      The appellant’s grounds of appeal are:

a)       the  Tribunal  substituted  its  view  as  to  the  seriousness  of  the conviction  to  which  the  appellant  was  sentenced,  for  that  of  the District  Court  which  tried,  convicted  and  sentenced  the  appellant, such that it allotted a significantly greater level of seriousness in the offences than allotted by the District Court.   The Tribunal’s finding was beyond the scope of the powers accorded to it by the Immigration Act 1987;

b)as a result of the Tribunal’s error in ground one the rights of the appellant’s New Zealand born children being a primary consideration in a matter of this type were not given their due weight in the Tribunal’s determination; and

c)       as a result of the Tribunal’s error in ground one the circumstances of the appellant’s family and extended family were not given their due weight in the Tribunal’s determination.

[5]      Mr Fisiipeau was sentenced to 16 months’ imprisonment for his offending. The commencement of the sentence was deferred to allow him to apply for Home Detention, which he did so successfully.   This offending triggered the Minister of Immigration’s entitlement to deport the appellant pursuant to Part 4 of the Act.  He did so on 13 February 2008.

[6]      Mr Fisiipeau appealed to the Tribunal.   Section 105 sets out the test to be applied by the Tribunal, and in assessing injustices and undue hardship what factors the Tribunal must take into account.

[7]      Section 105 provides:

105     Tribunal may quash deportation order

(1)On an appeal under section 104 of this Act, the Tribunal may, by order, quash the deportation order if it is satisfied that it would be unjust or unduly harsh to deport the appellant from New Zealand, and that it would not be contrary to the public interest to allow the appellant to remain in New Zealand.

[(1A)Without limiting subsection (2), in deciding whether it would be unjust or unduly harsh to deport the appellant from New Zealand, and whether it would not be contrary to the public interest to allow the appellant to remain in New Zealand, the Tribunal must have regard to any submissions of a victim, in accordance with section

105A.]

(2)In deciding whether or not it would be unjust or unduly harsh to deport  the  appellant  from New  Zealand,  the Tribunal  shall  have regard to the following matters:

(a)      The appellant's age:

(b)The length of the period during which the appellant has been in New Zealand lawfully:

(c)      The appellant's personal and domestic circumstances: (d)   The appellant's work record:

(e)The nature of the offence or offences of which the appellant has been convicted and from which the liability for deportation arose:

(f)The nature of any other offences of which the appellant has been convicted:

(g)      The interests of the appellant's family:

(h)      Such other matters as the Tribunal considers relevant.

[8]      Appeals to this Court are restricted to questions of law only (s 117).

[9]      I agree with the observation of Wild J in Mohamud v Minister of Immigration

HC Wellington AP 21/98, 5 October 1998 when he said:

Error of law

Quintessentially, error of law involves the application of an incorrect legal test or a wrong answer to a legal question upon unchallenged facts.  Here, an obvious example would be Tribunal misinterpreting or mis-applying relevant provisions of the Immigration Act.   Under the label “question of law” a limited incursion is now permitted into the factual area where either the Tribunal has:

1.Come to a conclusion without any evidence or upon evidence which could not reasonably support its conclusion, or

2.Failed  to  draw  from  unchallenged  primary  facts  an  inference favourable to the appellant, when such inference is the only one reasonably open.

What the Court may not do under guise of a question of law is concern itself with whether the Tribunal was right or wrong in its conclusion i.e. with the merits of the case.   Further, the weight to be given to the assessment of relevant considerations is for the Tribunal alone and not for consideration by the Court as a point of law.  Recent authorities include Nicholls v District Council of Papakura [1998] NZRMA 233 at 235 and Auckland City Council v Wotherspoon [1991] NZLR 76 at 85–86. Specifically in the immigration area, there is the judgment of Giles J in Butler v Removal Review Authority [1998] NZAR 409.

[10]     I note that  ordinarily complaints  regarding sufficiency of  weight  are  not generally appeals on an error of law ([4](b), (c)).  (See Minister of Immigration v Al Hosan [2008] NZCA 462 at [66].)

[11]     I turn firstly, therefore, to the factual background, the Tribunal said:

[8]       The appellant is 35 years of age.   He was born in Tonga.   He has been married for two years to a Tongan citizen who is in New Zealand on a work permit.   There are two children of the marriage, aged 3 years and

1 year 10 months, both of whom were born in New Zealand.  In addition his wife has one other daughter who lives in New Zealand with her adoptive

parents.

[9]       The  appellant  has  two  brothers  in  New Zealand,  one  who  has permanent residence and one who is here unlawfully.  He work permit has expired.  The appellant’s father is deceased and his mother lives in Tonga where she works for the Tongan parliament.  She is to retire at the end of this year.

[10]      The  appellant  worked  as  an  accounts  clerk  in  Tonga.    He  was employed by Tongan Telecom for five years and then by Royal Tongan Airlines.

[11]      The appellant first came to New Zealand in 1998 and remained here on student permits until he was granted residence on 1 August 2002.  Since being granted his initial residence permit, the appellant has left New Zealand

approximately six times.  He frequently travelled to Tonga on business trips. The appellant has completed a bachelor’s degree in business management at Northland Polytechnic and also holds a certificate in management studies and a diploma in business management.

[12]      Since  coming  to  New Zealand  he  has  worked  in  a  recruitment company, Pasifika Consulting and for Tapa Services which contracted with WINZ to find jobs for unemployed people.  He also worked for Kosikasiaa Services Limited (“Kosikasiaa”) from 2003 to 2005 as an immigration consultant.  He was a director of this company.  The convictions which gave rise to the deportation order result from his work for Kosikasiaa.  These will be discussed in detail below.   In brief, the appellant submitted false job offers and employment contracts to Immigration New Zealand on behalf of clients to support their applications for residence.

[13]      After his sentencing on 1 August 2007 (he served 16 months’ home detention), the appellant continued to run a labour hire business which was put into liquidation on 19 January 2009.  The family are currently supported by his wife who runs FSP Limited, a labour hire business, arranging labour for jobs such as fencing, concreting and construction.    There are approximately  12 employees  in  this  business  and  the  family  receive  an income of $500–$600 per week from it.  The appellant is not involved in this business except to drive the workers to the various contracting jobs. Otherwise he looks after the children.

[14]      The appellant has recently established a business in New Zealand, exporting second-hand goods to Tonga.  He has completed extensive market research  and is confident that  the  business  will be successful.    He  will market  it  himself  in  Tonga  and  via  Tongan  newspapers  published  in New Zealand.  He does not believe that he could operate this business from Tonga.

[12]     As to his conviction the Tribunal said:

[50]      The  appellant  was  convicted  of  23 offences  comprising  nine  of supplying false or misleading information contrary to section 142(1)(c) of the Immigration Act 1987, six offences of forgery and eight of altering a document, contrary to section 256 of the Crimes Act 1961.   The offences against the Immigration Act carry a maximum penalty of seven years’ imprisonment and those against the Crimes Act carry a maximum penalty of

10 years’ imprisonment.

[51]      The offending arose in the course of the appellant’s employment as an immigration consultant and director of Kosikasiaa, which provided immigration advice and services for a fee.  The appellant submitted false job offers and employment contracts to Immigration New Zealand on behalf of clients in order to support their applications for residence.   The 14 false documents in relation to the offences against the Crimes Act involved using false company letterhead, adding false details of an employment offer and forging signatures of the owners of the businesses.  Eight businesses were involved.  Some of the proprietors had no knowledge that these documents and their signatures were forged.  In other cases, the proprietors consented to the appellant producing documents and signed them themselves, although they either did not know how the appellant intended to use the documents or

did not check the accuracy of the information (financial statements) they contained.  Clients paid the appellant for his services.

[52]     In  respect  of  the  nine  Immigration  Act  charges,  the  appellant supplied false or misleading information to immigration officers.   This consisted of either non-existent employment offers or false financial statements relating to an employer’s business.  These nine charges related to seven individuals who applied for permanent residence in New Zealand.

[53]     The sentencing judge accepted that the appellant’s primary motive was  to  help  his  client  obtain  permanent  residence  rather  than  his  own financial gain.   All the clients have been reimbursed for the fees charged. The appellant was not the sole offender.   None of the applications for residence involved falsifying applications to assist people who would be disqualified on medical grounds or otherwise be a burden to New Zealand. The appellant was supported by references as to his positive contribution to the Tongan community.  The judge also took into account the fact that the appellant  co-operated  with  Immigration  New Zealand  and  entered  early guilty pleas.  He was assessed as having a low risk of reoffending.

[54]      An aggravating feature was the fact that the clients on whose behalf he had submitted fraudulent residence applications might now run a substantial risk of having their residence revoked.   The sentencing judge took cognisance of the observations of Keane J in Department of Labour v Chaoying Liao (HC Auckland CRI-2004-404-00499, 14 April 2005):

“Immigration   status   in   New Zealand   has   become   a   precious commodity.   The terms on which persons may enter New Zealand are carefully prescribed and the law requires any persons entering New Zealand to be truthful, as must those who assist them.  For the law to work immigration consultants must be honest and be in a position of trust.  Since the penalties were substantially increased in

2002, it is plain that offences of any seriousness call for deterrent sentences and even first offenders may be sentenced to significant

terms of imprisonment if the offending is sufficiently serious.”

[55]     Because of the nature and seriousness of the offending the judge concluded that it was not possible to impose a non-custodial sentence.  The appellant  was  sentenced  to  16 months’  imprisonment  on  each  count concurrently.  However, given that the appellant presented no threat to the safety  of  the  community  and  was  assessed  as  having  a  low  risk  of reoffending, he was granted leave to apply for home detention.   The commencement of his home detention was deferred for two months to allow the appellant to reorganise his labour hire business and on account of the imminent birth of his second child.   According to the pre-termination assessment   the   appellant   successfully   completed   his   home   detention sentence.

[13]     The appellant told the Tribunal that he did not want to return to Tonga because he was concerned his children’s education would suffer and because he was concerned  about  their  health.    These  concerns  arose  because  he  considered  the

standard of education in Tonga would be inferior to New Zealand as would the medical care and the climate and food for his children.

[14]     Mr Fisiipeau considered it would be difficult for him to find any employment in  Tonga  and  therefore  difficult  for  him  to  support  his  family.    His  wife  has permanent residency in New Zealand because of her marriage to the appellant.  She has a work permit in New Zealand which expires in July this year.   Their eldest daughter  suffers  from  asthma  and  uses  Ventolin  inhalers.     Mr Fisiipeau  has previously taken the two children to Tonga.  They did not like it there.  The weather was too hot and they did not like the food.  The appellant’s wife accepts that if she cannot renew her work permit then she would return with the children to Tonga.

[15]     The  other  aspect  relevant  to  the  appellant’s  circumstances  relates  to  his mother-in-law, Mrs Lotu.  She has been in New Zealand since January 2009 and is receiving medical treatment.   The cost is $5,000 per month paid for by the wider family including the appellant and his wife.  It is clear that Mrs Latu would likely die within a short period should her treatment end.  The appellant and his wife could not contribute to Mrs Latu’s upkeep should they return to Tonga.

Appeal grounds

Seriousness of offending and District Court’s view

[16]     To  turn  therefore  to  the  grounds  of  appeal  relating  to  the  appellant’s conviction.  The appellant says that the first error made by the Tribunal relating to the offending was that the Tribunal treated this offence as a serious offence solely because it related to immigration matters.   And it says the Tribunal reached that conclusion as to seriousness in conflict with the sentencing notes in the District Court.  It established this assertion could be an error of law, as s 105(2)(e) requires consideration of the actual offence the appellant was convicted of.

[17]     The Tribunal’s assessment of the offending is contained in [53] to [55] of its decision, set out above.   Those remarks do not support either of the appellant’s

claims that the Tribunal considered the offending was serious purely by the nature of the charges alone and secondly that the Tribunal reached a conclusion as to seriousness which was contrary to the sentencing notes of the District Court.

[18]     In the District Court the Judge did say when sentencing the appellant, when he came to assess the appropriate penalty:

For all those reasons I regret it is not possible for me to deal with you by way either of a community work sentence or by way of a financial penalty, and the sentence I impose must be one of imprisonment.

[19]     This is not to say that the Judge considered, nor was it in the circumstances open for him to conclude, that this was somehow a low level offence.  The Judge’s remarks indicated that he understood that appellate authority required him to impose a sentence of imprisonment because that authority considered such offending to be serious.

[20]     The  quote  from  the  decision  of  Keane J  in  the  Department  of  Labour  v Chaoying  Liao  HC  Auckland  CRI  2004-404-499,  14 April 2005  ([54]  of  the decision) illustrates the point.   The Tribunal quite correctly adopted the words of Keane J in Liao.

[21]     The next criticism of the Tribunal’s decision is when it identified its view of the seriousness of the offending.  It said:

[75]      The offending is serious.   It comprises 23 offences involving false documents, forged signatures and related to multiple applications for residence  and  employers.    It  took  place  over  a  sustained  period  from June 2003  to  February 2005.    The  Tribunal  accepts,  as  counsel  for  the respondent contends in opening submissions at [67] and [71], that the offending was a calculated attempt to subvert the integrity of New Zealand’s immigration  system  which  is  reliant  upon  truthful  information  being provided to its officials.  Detection of such offending is difficult and costly and it is in the public interest to deter such offending..

[22]     No criticism can possibly be made of these observations.   They accurately recount  that  the  23  offences  involved  false  documents,  forged  signatures  and multiple applications for residence over a period of 20 months.   This was as the Tribunal said a calculated attempt to subvert the integrity of the New Zealand’s immigration system.  This system, as the Tribunal observed, is reliant upon truthful

information being provided to its officials.  Detection is therefore difficult and public deterrence must always be to the fore when such offending is revealed.  There must be a clear message for those involved in such offending that if they failed to live up to the standard of truthfulness then they can expect deterrent sentences.

[23]     At [78] the Tribunal made general observations about such offending.  This is criticised by the appellant as equating the seriousness of the appellant’s offending with the seriousness of the “type” of offence.   In fact the Tribunal took quite the opposite approach.  It was appropriate for the Tribunal to make a general observation about the offending.  This did no more than match the observations of Keane J.  It then described at [78] those factors which it said were particularly relevant in the appellant’s offending.  It said:

[78]     Clearly, the courts, reflecting the increased public opprobrium for fraudulent manipulation of the immigration system, have acknowledged the statutory increase in the penalties for this kind of offending.  It is irrelevant (as the appellant contests) that it was inadequacies in the administration of this system which enabled him to perpetuate the fraud.   His was not an isolated  offence  to  enable  himself  or  his  family  to  obtain  New Zealand residence.  He initiated and executed a scheme (involving multiple offending over a sustained period) which enabled individuals who did not fulfil the requirements of having approved employment to gain residence permits, thereby  defeating  the  intention  of  the  policy,  namely  to  assist  Pacific Islanders with existing employment opportunities and provide appropriately equipped immigrants for the New Zealand workforce.

[24]     The  appellant  complains  that  the  Tribunal  failed  to  acknowledge  the mitigating factors relating to the facts of the case which the District Court Judge identified.    Again  a  failure  to  take  into  account  at  all  a  factor  relevant  to  the s 105(2)(e) analysis could be an error of law.  The only mitigating factor was that the appellant was not motivated by financial gain.  On one analysis that is not in fact a mitigating factor but the absence of an aggravating factor.   There were no other mitigating factors.  The appellant mentions that a 33 percent discount was given by the District Court Judge, but that discount was given because of Court of Appeal authority (R v Hessell) which obliged the Judge to give such a discount.  The Judge considered that an appropriate starting point for the offending was two years’ imprisonment.   With the deduction of 33 percent for the early guilty pleas a final sentence of 16 months’ imprisonment was imposed.

[25]     Factors which led the Judge to make an order for home detention related primarily  to  the  appellant’s  personal  circumstances.    The  Judge  accepted  the appellant now posed no threat to the safety of the community that he was self employed  and  operated  a  labour  hire  company.    These  factors  were  taken  into account by the Tribunal in concluding that it would not be contrary to the public interest to allow the appellant to remain in New Zealand (s 105(1)).  The Judge noted that the appellant’s wife was expecting a second child and was financially dependent upon him.  His wife’s pregnancy together with the prospect that the good will of the business would be wiped out and there would be a significant financial sacrifice with a number of casual employees being disadvantaged were reasons to delay the start of imprisonment.   This illustrates the District Court’s analysis was not that the facts were lacking in seriousness but that there were compelling personal circumstances which could allow a sentence of home detention rather than imprisonment.

[26]     The function of the Tribunal was to assess the seriousness of the offending itself.  Humanitarian issues were then properly identified after that assessment and balanced against the seriousness of the offending.  There is nothing to support the conclusion  urged  on  me by the  appellant  that  the  Tribunal  “closed  its  mind  to anything except the “immigration” label” attached to the offending.   It properly determined the true nature and seriousness of this offending.

[27]     In  any event  contrary to  the  appellant’s  submissions  the  Tribunal  is  not obliged to follow the District Court Judge’s view of the seriousness of the offending. Clearly  the  Judge’s  view  will  carry  significant  force.    However  the  Tribunal’s context relates to a proposed deportation not a sentencing.  No error of law is shown.

Rights of New Zealand born children

[28]     The  second  ground  of  appeal  was  that  the  rights  of  the  appellant’s New Zealand children were not given due weight in the Tribunal’s determination. As I have observed weight is a question for the Tribunal and not a question of law. Here, in any event the Tribunal properly took into account the circumstances of the children.  As to this the Tribunal said:

[62]      The appellant’s two children are New Zealand citizens.  Article 3.1 of the CRC requires the Tribunal to have regard to the best interests of any child as a primary consideration.  This is not the paramount factor nor is it determinative  but  they  are  a  very  important  factor  in  our  assessment: Minister of Immigration v Al Hosan [2008] NZCA 462, [73](b).

[63]      Both children attend a private, fee paying preschool.  It is obvious that the children’s education is of great importance to the appellant and his wife.  They believe that, in Tonga, their children’s education would suffer. The children have not begun primary school in New Zealand.  They do not have any experience of the formal education system here so adaptation to schooling in Tonga will not be difficult for them.  They are both bilingual. The appellant has expressed doubts about the quality of education available in Tonga because of the lack of funding and the government’s inability to pay teachers.  However, he himself is a successful product of that system, having several tertiary qualifications.   Although the education they would receive in Tonga would not be of the same standard as in New Zealand, his children would receive an adequate education (as did the appellant).

[64]      The other objection to taking the children to Tonga is concern about their health.  They have twice visited Tonga and the food and hot weather did not agree with them.  The son had asthma and the daughter diarrhoea; the heat exacerbated her eczema.  Their son will receive adequate treatment for asthma in Tonga as did the appellant’s wife, her sister and eldest daughter. She was treated with inhalers and taken to hospital.  Subsequent to the first hearing, the appellant was asked to provide evidence as to the severity and prognosis for the children’s medical condition.  A letter from their general practitioner confirmed that the son used his Ventolin inhaler frequently and the daughter visits the doctor several times a year for viral and ear infections. There was no evidence to suggest that these were serious conditions for which treatment would not be available in Tonga.

[65]     The daughter’s eczema is treated with ointment and this could be continued in Tonga.  The traditional Tongan diet is unfamiliar to the children but after a period of adjustment this difficulty will likewise be overcome.  A wide range of food is available in Tonga and if they lack some of the foods they are used to in New Zealand, this would not endanger their health.

[66]     The children’s interests are best served if they live with both their parents.  This will occur, at the latest, when the appellant’s wife returns to Tonga.  It will make no material difference to the children if they are with their parents in Tonga or New Zealand.

[29]     And further in considering the interests of the appellant and his family he said:

[76]      Against this, the Tribunal must balance the interests of the appellant and his family.  These have been considered in more detail above.  While the appellant has spent approximately 10 years in New Zealand, the majority of his life has been in Tonga.  He has accommodation available in Tonga and continues to have contact with friends and family there.   His mother is at present in Tonga.   Given his qualifications, skills and contacts he will be able to find employment or establish a business in Tonga.   Similarly, his

wife has lived most of her life in Tonga.  Although her three brothers and her mother are in New Zealand, she has two sisters in Tonga with whom she is in contact.  The appellant’s children will not be separated from their parents (beyond a possible short initial separation from their father).  They will not have the same educational advantages which would be available to them when they begin primary school.  However, they are still pre-schoolers and will not find adaptation to the Tongan education system unduly difficult. Their social, educational and medical needs will be adequately met in Tonga.

...

[79]     The Tribunal concludes that, given the totality of his offending as against the family’s ability to live together in Tonga (an environment very familiar to the appellant and his wife) and enjoy a reasonable standard of living there, his deportation would not be unjust or unduly harsh.

[30]     This  illustrates  that  the  Tribunal  did  give  weight  to  the  rights  of  the appellant’s  New Zealand  born  children.     No  criticism  can  be  made  of  the identification of the legal and factual issues.  The only criticism of the appellant is what weight should have been given to the rights of the appellant’s New Zealand born children as against the seriousness of his conduct.  That weighing was for the Tribunal and not this Court.   Certainly no error of law is identified in the way in which the Tribunal undertook this task.

Appellant and his family’s personal circumstances

[31]     The same position arises with respect to the third ground of appeal.  There, the appellant says the Tribunal erred in failing to give due weight to the appellant’s family and extended family.  This is not a question of law.  In any event the Tribunal went to considerable effort to try and identify these issues during the course of its decision.  It relevantly identified all of the issues arising from the appellant’s family. It said:

[59]    The circumstances of the appellant’s family are an important consideration for the Tribunal.  The appellant, his wife and children are the primary family unit to be considered here.  The appellant and his wife stated that, were he deported, his wife would remain here with the children until (at least) her work permit expired.  She would then go to Tonga.  The appellant initially stated that, even without their mother, his children would remain in New Zealand and possibly be looked after by his brother but later admitted that he and his wife had not yet discussed this option.  His wife’s evidence was that the children would accompany her to Tonga when she eventually returned  there.    The  children  are  still  young  (aged  3  years  and  1  year

10 months).  In the Tribunal’s view, making a finding as best it can on the

available evidence, it is more likely than not that his wife and children will eventually join the appellant in Tonga if he were deported.

[60]     The Tribunal must consider the entitlement of the family unit to protection  as  the  natural  and  fundamental  group  unit  of  society  (see Article 17 and 23 ICCPR).  If the appellant’s wife decides to remain here for the next nine months or until the expiry of her work permit their separation would be relatively brief and not fundamentally undermine the unity of the family.  During that period they could communicate by telephone, internet and correspondence.  Given our finding that eventually the appellant’s wife and children would join him in Tonga, if he were deported, no issue of permanent separation of the family unit or arbitrary or unlawful interference with it arises.   However, if the children were to remain in New Zealand without either parent, that will be a matter of choice.  Such separation of the children from their parents would result from the decision of the appellant and his wife to leave them here, not from his deportation.  There have been no persuasive reasons advanced which would prevent their return to Tonga.

[61]      The appellant’s wife’s belief that dual nationality is now available to their children is confirmed by the relevant Tongan legislation.   The Nationality Amendment Act (14 August 2007) repealed the former provision in  the  Nationality  Act 1915  whereby  Tongan  nationality  was  lost  upon obtaining a certificate of nationalisation from a foreign state.  Section 4 of the Nationality Amendment Act 2007 provides that any person born abroad of a Tongan mother or father is deemed to be a Tongan subject.  Accordingly the children are entitled to recognition of their citizenship in Tonga, even if only to avoid paying for medical costs as a foreigner.   Alternatively, they will have to renew their residence permits there as occurred for the wife’s eldest daughter.

[32]     As is illustrated above the Tribunal took these family interests into account when assessing the s 105(1) and (2) factors.  No error of law has been shown.

Conclusions

[33]     An error of law can be a failure by a decision maker to consider a relevant fact at all.  However the appellant does not claim that to be the case here.  He claims not enough emphasis was placed on some helpful facts (his children and family circumstances) and too much emphasis on other facts (his offending).   These are essentially weight arguments.   The appellant  wishes the Tribunal  had put more weight on the humanitarian factors and less weight on the seriousness of his criminal conduct.  This is understandable but not an error of law.  It could have been an error of law to have reached a view of the seriousness of the offending (s 105(2)(e)) solely on the basis of the charges being immigration fraud.  However, for reasons I have given the Tribunal did not do this.

[34]     The Tribunal considered all the relevant statutory criteria in s 105(1) and (2) against the facts of this case in considering whether it would be unduly harsh or unjust to deport Mr Fisiipeau.  No error of law has been shown in its assessment.

[35]     The appeal is dismissed.

[36]     The respondent is entitled to costs on a 2B basis.

Ronald Young J

Solicitors:

S Laurent, Laurent Law, 1st  Floor, Target Building, 93 Dominion Road, Mt Eden, Auckland 1024, email:  [email protected]

I Carter, Crown Law Office, PO Box 2858, Wellington, email: ian[email protected]

R Kirkness, Crown Law Office, PO Box 2858, Wellington, email:  robert[email protected]

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