Hai aka Ali v Minister of Immigration

[2019] NZHC 2584

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-844

[2019] NZHC 2584

IN THE MATTER OF

Immigration Act 2009, section 245

BETWEEN

MOHAMMED NAUSHAD HAI also

known as NAUSHAD ALI and MOHAMMED ALI
Appellant

AND

MINISTER OF IMMIGRATION

Respondent

Hearing:	on the papers
Judgment:	11 October 2019

JUDGMENT OF POWELL J

This judgment was delivered by me on 11 October 2019 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:           E Telle for the Appellant

Nixon Fong, Crown Law, Wellington for Respondent

HAI v MINISTER OF IMMIGRATION [2019] NZHC 2584 [11 October 2019]

[1]    Following a successful application for leave to the Court of Appeal1 these proceedings have been referred back to this Court for the hearing of an appeal against a decision of the Immigration and Protection Tribunal.2 As a consequence of the decision of the Court of Appeal the parties now seek consent orders:

(a)allowing the appeal;

(b)setting aside the Tribunal’s decision; and

(c)remitting the appeal to the Tribunal for re-hearing and determination.

[2]    The background to the parties’ request was set out in a joint memorandum which provides:

By a judgment dated 23 August 2017, Hai v Minister of Immigration [2017] NZHC 2028, this Court dismissed the appellant's applications for leave to appeal and bring judicial review against a decision of the Immigration and Protection Tribunal in Hai v Minister of Immigration [2017] NZIPT 600343 ("Tribunal's decision"), pursuant to ss 245 and 249 of the Immigration Act 2009 ("Act"), respectively. The Tribunal had dismissed the appellant's appeal against his deportation liability on humanitarian grounds, under s 207 (1) of the Act.

Pursuant to s 245(1) of the Act, the appellant subsequently applied to the Court of Appeal for leave to appeal against the Tribunal's decision; and to adduce further evidence from Ms Linda Wikaira and Dr Caleb Armstrong (which was not before the Tribunal or this Court at the leave hearing). By a judgment 15 March 2019, Hai v Minister of Immigration [2019] NZCA 55, the Court of Appeal granted (i) the appellant's application to adduce further evidence and

(ii) leave to appeal in relation to the following questions of law for this Court's determination (at [53]):

(a)Was the Tribunal's finding, that because Mr Hai did not permanently reside with his children the negative impact on the children of deportation was outweighed by other factors, made without evidence reasonably capable of supporting that conclusion, especially in light of the new evidence of Ms Wikaira and Dr Armstrong?

(b)If the answer to question (a) is yes, did this cause the Tribunal to misapply arts 3 and 9 of the United Nations Convention on Rights of the Child?

(c)If the answer to question (b) is yes, should the proceeding be referred back to the Tribunal for rehearing?

1      Hai v Minister of Immigration [2019] NZCA 55.

2      Hai v Ministry of Immigration [2017] NZIPT 600343.

The Court also noted, at [54], that a full psychologist report by way of affidavit may now be required from Dr Armstrong (for this Court's consideration in determining the above questions of law).

As the Tribunal did not have the benefit of the evidence of Ms Wikaira and Dr Armstrong at the time, counsel respectfully consider that, rather than litigating the above questions in this Court, the preferable course is to facilitate a reconsideration by the Tribunal of the appellant's appeal against his deportation liability on humanitarian grounds (with the benefit of the new evidence). Formal orders are necessary as the Tribunal is functus officio once it has made a determination and has no power to embark on a reconsideration of its own initiative.

[3]    Having considered the position as has been set out, I am satisfied that the orders should be made as sought. I accordingly make the following orders by consent in the terms of the draft order provided by counsel:

(a)the appellant’s appeal against the decision of the Immigration and Protection Tribunal (“Tribunal”) in Hai v Minister of Immigration [2017] NZIPT 600343 (Tribunal’s decision”) is granted;

(b)the Tribunal’s decision is set aside;

(c)the appellant’s appeal against his deportation liability on humanitarian grounds, pursuant to s 2017(1) of the Immigration Act 2009, is remitted to the Tribunal, to be differently constituted, if reasonably practicable;

(d)the appellant’s appeal is to be determined on the basis of (among other things) evidence already given before the Tribunal, the evidence of Ms Wikairi and Dr Armstrong (as adduced before the Court of Appeal), the forthcoming full report of Dr Armstrong (as referred to at [54] of the Court of Appeal’s judgment in Hai v Minister of Immigration [2019] NZCA 55) and any other further evidence as may be produced by the parties and as accepted by the Tribunal.

[4]The parties are to bear their own costs on these proceedings.

Powell J