Helu v Immigration and Protection Tribunal
[2015] NZSC 28
•26 March 2015
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| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 72/2013 [2015] NZSC 28 |
| BETWEEN | SAMUELA FALETALAVAI HELU |
| AND | IMMIGRATION AND PROTECTION TRIBUNAL MINISTER OF IMMIGRATION |
| Hearing: | 4 March 2014 |
Court: | Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ |
Counsel: | A Schaaf and H N Ratcliffe for Appellant |
Judgment: | 26 March 2015 |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe Tribunal’s confirmation of the deportation order is quashed.
CThe appeal to the Tribunal is remitted to it for reconsideration in the course of which the Tribunal is to apply the test under s 105 of the Immigration Act 1987 that is set out in paras [167] to [176] of the reasons.
DCosts are reserved. Application may be made in writing if necessary.
____________________________________________________________________
REASONS
| Elias CJ | [1] |
| McGrath J | [106] |
| Glazebrook J | [202] |
| William Young and Arnold JJ | [216] |
ELIAS CJ
Conscientious decision-makers commonly seek to organise their exercise of statutory powers of decision according to sequences, tests, and balances which they take from close analysis of the statutory text and scheme. Such methodology allows them to demonstrate fidelity to the legislative purpose and promotes consistency and better justification of conclusions. Care is needed however, to ensure both that the methodology is consistent with the terms of the statute and that it avoids over-refinement through such elaboration, especially when contextual value-judgment is inescapable. The risk then is not only that the methodology may mask the ultimate value-judgment required with a show of objective rationality, but that it may itself compel outcomes which would not be accepted if the choice for the decision-maker was recognised to be constrained only by the need to reach the decision he or she believes to be right after taking into account all considerations contextually relevant. I think the present appeal illustrates the trap.
The appellant, Samuela Faletalavai Helu, was eligible for deportation under the Immigration Act 1987 because he had committed an offence for which he was sentenced to more than 12 months imprisonment within five years of obtaining a residency permit. The offending and further subsequent offending entailed violence or aggression, although not at the higher end of the scale. After the Minister of Immigration ordered Mr Helu’s deportation to Tonga, the country of his birth, he appealed under s 104 of the Act to the Immigration and Protection Tribunal.[1]
[1]Helu v Minister of Immigration [2011] NZIPT 500056.
The Tribunal is empowered by s 105 to quash an order for deportation “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”. In Mr Helu’s case, the Tribunal considered that it was obliged by s 105 to undertake two sequential and distinct inquiries.
The Tribunal first addressed whether it would be “unjust or unduly harsh” to deport Mr Helu by “weighing the seriousness of the offending giving rise to the deportation order and any other offending, with the compassionate factors favouring the appellant remaining in New Zealand, having particular regard to the matters set out in section 105(2)”.[2] It concluded that it would be “unjust or unduly harsh” for him to be deported.[3]
[2]At [7]. The factors in s 105(2) are set out at [23].
[3]At [50]–[60].
The Tribunal came to that conclusion, notwithstanding the violent offending against which the comparative standards of “unjust” and “unduly harsh” were to be assessed. The circumstances that weighed with it were:
·Mr Helu, 17 years old at the time of the qualifying offending and 20 years at the time of the Tribunal’s decision, had lived in New Zealand since the age of six and Tonga was “culturally different and comparatively unfamiliar to him”;[4]
·if deported to Tonga, Mr Helu would be permanently separated, with little prospect of even occasional visits, from his immediate family, to whom he is close and which is a “strong supportive” family;
·loss of direct contact with his family would be a significant loss to Mr Helu and damaging to his rehabilitation;
·the separation would be distressing for Mr Helu’s family, especially his mother;
·Mr Helu would have no clear means of financial support in Tonga and had no relatives there apart from an aunt and her husband whom he did not know;
·Mr Helu would find it difficult to adapt to a life in Tonga isolated and without the support of his immediate family and dependent on extended family whom he does not know, particularly given his own lack of confidence and difficulty in coping with the stress that would be involved in living in an unfamiliar environment.
[4]At [56].
As a second and distinct step in the s 105 determination, the Tribunal next turned to the question whether it was satisfied that it “would not be contrary to the public interest” for the appellant to remain in New Zealand”. In this “public interest” inquiry it did not weigh the “compassionate factors” personal to Mr Helu and his family that had led it to find that deportation would be “unjust or unduly harsh”. The considerations which had led to its conclusion that removal would be unjust and unduly harsh were treated as spent unless they were also of “public” interest and only to that extent. Only one such overlapping matter was identified by the Tribunal: a public interest (confirmed by international covenants to which New Zealand is a party) in protection of the family.
The Tribunal identified as relevant to the public interest both the removal of someone who posed a risk to public safety (because of the danger of further offending) and the public interest in protecting family unity. It indicated its approach was that “[g]iven the nature of the appellant’s violent offending, the Tribunal finds that only a degree of risk [of recidivism] at the low end of the scale would suffice to preclude the public interest being engaged”.[5] Since the assessment of a psychologist was that Mr Helu’s risk of reoffending in similar manner was “moderate”, the Tribunal concluded that “the positive public interest considerations relating to the appellant’s separation from his family” did not outweigh “the public interest in removing from New Zealand a person who, because of his violent offending, poses an unacceptable risk to public safety”.[6]
[5]At [65].
[6]At [75].
For the reasons given in what follows, I have concluded that the Tribunal erred in its approach in two principal respects.
First, s 105 does not require two separate and distinct inquiries in which a conclusion that it would be unjust and unduly harsh to deport is simply a threshold qualification for a public interest determination taken without reference to all the factors that make deportation unjust and unduly harsh. The purpose of the control is that, despite the injustice or undue harshness, it may nevertheless be contrary to the public interest to allow the person to remain in New Zealand (so that the Tribunal cannot be satisfied of the condition imposed by s 105). That was the approach taken in relation to an identically structured condition in s 47(3) of the Immigration Act by this Court in Ye v Minister of Immigration.[7] It is an assessment that, in the context of human rights, imports proportionality analysis which cannot ignore the considerations which led to the conclusion that deportation would be unjust and unduly harsh. In concluding that Ye should be adhered to (so that the Tribunal must consider whether deportation is required in the public interest against the datum that it is unjust and unduly harsh), I differ from the approach taken by McGrath, Young and Arnold JJ in this Court.
[7]Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [30] per Blanchard, Tipping, McGrath and Anderson JJ.
Secondly, the test adopted by the Tribunal wrongly constrained its inquiry into the public interest by a formula which compelled the outcome when, on the basis of a “sliding scale” of seriousness applied to prediction of re-offending, it took the view that only a low risk of recidivism would “preclude the public interest being engaged”.[8] By “being engaged”, it is clear that the Tribunal did not mean that recidivism above a low level was merely relevant when assessing whether it was not contrary to the public interest to allow Mr Helu to remain. Rather, risk above a low level was treated by the Tribunal as determinative because, as it said explicitly, it considered such risk “unacceptable”. I do not think the approach accords with the statute. I consider the statute and the public interests in fair and humane treatment of immigrant communities and those lawfully in New Zealand require an approach less formulaic, more tailored to the facts of the individual case. In this, I come to the same conclusion as McGrath and Glazebrook JJ, with the result that the appeal is allowed on this point.
[8]Helu v Minister of Immigration [2011] NZIPT 500056 at [65].
In addition, I am of the view that the Tribunal’s conclusion failed to take into account a number of matters that ought to have been considered either because the law requires them to be taken into account or because, in the context of the case, they necessarily bore on assessment of the public interest. In particular, the disruption to the family unit, Mr Helu’s youth, and his identity and connection with New Zealand should all have been taken into account as highly relevant to assessment of whether it was contrary to the public interest to permit him to remain in New Zealand.
Finally, I consider that the decision was substantively unreasonable in permitting the deportation of this young man when New Zealand was his only home and he had no real connection with the country of his birth. If Mr Helu’s immigration status had been regularised while he was a child (a matter beyond his control) he would not have been eligible for deportation. And, even so, he was only just within the time frame for deportation provided for in the Act, a circumstance that is not acknowledged at all in the Tribunal’s decision. The strict time limits for deportation even following criminal offending are legislative recognition that deportation of those who are settled in New Zealand impacts on human identity and human dignity. In the case of the appellant, who has no other home but New Zealand and whose offending is “home-grown”,[9] deportation was in my view a disproportionate response. In this conclusion I differ from all other members of the Court, and would quash the deportation order without remitting the matter for further consideration by the Tribunal. I am of the view that, acting reasonably, it could not but conclude that Mr Helu’s deportation was unjust and unduly harsh and that it was not contrary to the public interest to permit him to remain in New Zealand.
[9]See Secretary of State for the Home Department v BK [2010] UKUT 328 (IAC).
Since however I agree with McGrath and Glazebrook JJ that the Tribunal erred in its approach to the decision (for reasons which differ on the correct application of s 105(1) but are in substantial agreement in respect of the “sliding scale” approach taken by the Tribunal), I join with them in the judgment to quash the Tribunal’s decision and remit the matter for its further consideration.
Background
Mr Helu was born in December 1990 in Tonga. He came to New Zealand with his parents and sister in 1996 when six years old, and has lived in New Zealand ever since. Two more siblings have been born in New Zealand and are New Zealand citizens. Apart from six months spent at a boarding school in Tonga at the age of 13 (an experience that was not successful and which he found alienating because of his unfamiliarity with the culture and his homesickness), Mr Helu has little familiarity with Tonga. Other than a maternal aunt he does not know, he has no relatives still in Tonga. His surviving grandparents and other uncles and aunts live in New Zealand.
The family entered New Zealand on temporary visas. The parents did not regularise their immigration status or that of their elder children until 23 April 2003 when the non-New Zealand nationals in the immediate family were granted New Zealand residency. Mr Helu was then 12 years old.
On 11 January 2008, a month after his 17th birthday, Mr Helu participated with others in the aggravated robbery of a shop in which there was an attempt to snatch three packets of cigarettes from the hands of a shopkeeper and some chips and sunflower seeds were taken from the shelves. Mr Helu had waved a realistic-looking toy pistol and “fired” it.
In May 2009, Mr Helu was sentenced for the offending committed in January 2008 to two years’ imprisonment. A pre-sentence report prepared on 22 January 2009 had indicated that he was assessed at low risk of reoffending but, following its preparation, Mr Helu had committed further offences.
In February 2009, while on bail awaiting sentencing for the January 2008 offending, Mr Helu committed further offences of disorderly behaviour, being unlawfully on an enclosed yard and behaving threateningly (all arising out of the same incident when the appellant, who was intoxicated, urinated in a private backyard and was confronted by the householder). In April 2009, also while on bail, the appellant committed further offences of assault with intent to rob and common assault when he punched a youth in the street (causing a black eye but no further injury) and tried to hit another. An updated sentencing report obtained before sentencing on the additional charges in May 2010 reassessed his risk of reoffending as high. For the additional offending in 2009, and after pleading guilty, the appellant was sentenced to further terms of imprisonment totalling 12 months and one week, all of which were ordered to be served cumulatively with the sentence imposed in May 2009 for the aggravated robbery and theft charges. The further offending in 2009 was not qualifying offending for deportation, because it was committed more than five years from Mr Helu’s obtaining a residency permit.
Deportation
Because Mr Helu was sentenced to more than 12 months imprisonment for the offending in January 2008 and because it occurred two months short of the fifth anniversary of his obtaining a resident’s permit, he became eligible for deportation on the order of the Minister of Immigration under s 91(1)(c) of the Immigration Act.
Section 91 is contained in Part 4 of the Act which is headed “Deportation of criminal offenders”. Section 91(1) provides:
91 Deportation of holders of residence permits following conviction
(1) Subject to sections 93 , 93A and 112 of this Act, the Minister may, by order signed by the Minister, order the deportation from New Zealand of any holder of a residence permit who––
(a)is convicted (whether in New Zealand or not) of an offence committed at any time when that person was in New Zealand unlawfully or was the holder of a temporary permit or was exempt under this Act from the requirement to hold a permit, or within 2 years after that person is first granted a residence permit, being an offence for which the Court has power to impose imprisonment for a term of 3 months or more; or
(b) is convicted (whether in New Zealand or not) of 2 offences committed within 5 years after that person is first granted a residence permit, each of those offences being an offence for which the Court has power to impose imprisonment for a term of 12 months or more; or
(c) is convicted (whether in New Zealand or not) of an offence committed within 5 years after that person is first granted a residence permit and is sentenced to imprisonment for a term of 12 months or more, or for an indeterminate period capable of running for 12 months or more; or
(ca)is convicted of an offence against section 39(1) or section 39A(1) of this Act committed within 10 years after the person is first granted a residence permit.
(d) is convicted (whether in New Zealand or not) of an offence committed within 10 years after that person is first granted a residence permit and is sentenced to imprisonment for a term of 5 years or more, or for an indeterminate period capable of running for 5 years or more.
The scheme of the Immigration Act makes it clear that deportation of New Zealand residents for criminal offending is strictly time-limited. Depending on the length of the prison sentence imposed, the qualifying offending under s 91 must have occurred within two years, five years, or 10 years of obtaining a residency permit. Further emphasis on time is found in s 93, to which s 91 is expressly subject. No deportation order can be made after six months from release from prison for the sentence imposed on a single qualifying offence or upon conviction (if no prison sentence is imposed). (In cases where eligibility depends on the commission of two offences the six months is calculated under s 91 from the date of the later release or conviction, as relevant). No power is conferred upon the Minister to order deportation of someone sentenced to an otherwise qualifying term of imprisonment for an offence after the expiry of 10 years from the date on which he or she obtained a residence permit. Had the appellant’s residency status been regularised in September 1997, when his visa expired, he could not therefore have been deported under the provisions of the Immigration Act for any offence, no matter how serious, committed after September 2007.
On 17 March 2010, Mr Helu, then aged 20 years, was served with an order for his deportation signed by the Minister. He appealed to the Immigration and Protection Tribunal under s 104 of the Act, which permits any person in respect of whom a deportation order is made under s 91 to “appeal to the Tribunal for an order quashing the deportation order”.
Under s 105, the Tribunal has power to set aside the deportation order:
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 s 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.
The circumstances the Tribunal must consider under s 105(2) also emphasise matters of time. It identifies as mandatory considerations “the appellant’s age” and “the length of the period during which the appellant has been in New Zealand lawfully”. These constitute legislative recognition that lapse of time of itself may cause or contribute to deportation being unjust or unduly harsh.
The hearing in the Tribunal
The Tribunal heard evidence from Mr Helu and members of his family and received letters on his behalf from his church and from an employer. It also obtained a psychological assessment from Mr Woodcock, an experienced clinical psychologist, who took the view that the appellant was at “moderate” risk of reoffending. I summarise the evidence set out in detail in the Tribunal’s decision.
In his evidence, the appellant described his early years, his offending, his drinking (to which he attributes his offending), and the influence of his friends. He obtained little in the way of qualifications from his schooling. Although he had been in trouble before, he said he had never expected to end up in prison and had hated the experience. He described how he had grown closer to his family during his imprisonment.
In prison, Mr Helu had completed a foundation course to improve his literacy and had undertaken some occupational training that he hoped might lead to his obtaining training and employment as a carpenter on his release.
The Tribunal recorded Mr Helu’s reaction to his deportation to Tonga:
[16] As for the prospect of having to return to Tonga, the appellant does not think he could cope. He has lived in New Zealand most of his life and all of his family are here. The only extended family he knows who still live in Tonga are a maternal aunt and her husband and their children. He assumes they would have to take him in. He does not know what he would do for employment.
Mr Helu’s mother confirmed that the only member of her immediate family still living in Tonga is a sister. Her mother, the appellant’s grandmother, and a brother live in New Zealand. The family purchased their own home in 2001. It has struggled financially, but paid for the appellant to attend boarding schools in Tonga and New Zealand in an attempt to get him away from his friends and improve his behaviour. The mother, who had worked as a primary school teacher in Tonga, worked in New Zealand as a nurse-aid up to 80 hours a week before having a stroke in 2005. At the time of the Tribunal hearing she was studying for a Diploma in Business Administration, in an attempt to improve her employment options. She attributes the appellant’s behavioural problems to his immaturity and choice of friends. She spoke of how he had matured while in prison and had become closer to his family. The family wanted to support the appellant and had taken steps to try to find employment for him in anticipation of his release from prison. She hoped to encourage her son to undertake further study. Mrs Helu expressed deep distress at the prospect of the appellant’s deportation to Tonga. As the Tribunal recorded:[10]
His imprisonment has been hard enough for her to bear, but she has at least been able to see him regularly. It would not be possible for the family to financially assist the appellant in Tonga, nor could they afford for her and other family members to visit him there. Mrs Helu has been affected emotionally, physically and spiritually by her son’s imprisonment and the stress of how he will survive in Tonga is something she cannot face.
[10]Helu v Minister of Immigration [2011] NZIPT 500056 at [22].
The appellant’s father confirmed that all his immediate family have permanently left Tonga. His mother and two sisters live in New Zealand (further siblings are in Australia and the United States). A sister who was adopted out when a baby still lives on an island in the Ha’apai group, where the family originated and where it still has land but no habitations or plantations. The father acknowledged his relationship with the appellant, his oldest son, had been difficult because of his behaviour. He had however visited him regularly in prison and considered that his son had changed. They are now much closer.
Mr Helu’s 21 year old sister also expressed the view that Mr Helu’s attitude has changed as a result of his imprisonment. She described him as having struggled with low self-esteem in the past but thought he had become more confident and confirmed he was now closer to his father. The sister described the appellant’s imprisonment as having been hard for the family. Her perception is that he would not be able to survive by himself if deported to Tonga. The sister expressed concern for her mother if the appellant is deported. She thinks her mother blames herself for what has happened:
[27] … At first she just sat in her room crying, she would not talk or go to church and appeared detached from what was happening around her. After about a month, when she was able to visit the appellant in prison, she began to improve. Her mother has already had a stroke and the stress of the appellant’s deportation will adversely affect her physical and mental health.
The psychologist, Mr Woodcock, prepared a report for the Tribunal on the instructions of Mr Helu’s counsel. It addressed “Mr Helu’s risk to the community … in regards to his propensity to violent behaviour”. In preparing the report, Mr Woodcock drew on a probation report prepared in about May 2010 for the purposes of parole, for which Mr Helu was eligible from 19 May 2010. He also reviewed the sentencing notes of 20 May 2009 and 27 November 2009 and the summary of criminal history provided by the Police. In addition, Mr Woodcock undertook a clinical interview with Mr Helu and administered psychometric testing to him. He made assessment of the likelihood of his reoffending based on the Historical Clinical Risk Management-20 test (HCR-20). Mr Helu was at the time of the interview and tests still in prison.
The May 2010 Probation report advised that Mr Helu had scored 0.70031 on the Roc/RoI assessment for risk of reoffending which, on a scale of 0 to 1 put Mr Helu at a 70 per cent risk of reoffending. The Roc/RoI assessment is a statistically-based measure of likely recidivism. Risk factors include youth and number and type of offences. The report-writer noted that Mr Helu had not completed any programmes to address his offending needs of “violence, alcohol and drugs, and offending supportive associates” although he was “waitlisted” to attend the Special Treatment Unit programme. The Probation Services supported programmes before his release and noted that there was little suitable post release support of this sort available.
Mr Helu’s parents, with whom he would live on release, had been interviewed by the Probation Service and were described as “a very warm and accommodating couple who are still clearly distressed by their son’s situation” and who were committed to supporting him on release. The Probation Service had no concerns with the proposal that he live with his parents: “It is felt that on his release, Mr Helu will be residing in a supportive environment that will enhance his ability to comply with any conditions set by the New Zealand Parole Board.” Under the heading “relationships” the report-writer noted that “Mr Helu will be well supported by his parents. Mrs Helu also advised that his grandparents live close-by, as well as other family members who are prepared to extend their support to him on his release.”
Mr Woodcock found no indications at interview of disordered thinking and Mr Helu’s attitude was described as “open and productive”. The appellant’s family and personal history were described in the report. His behaviour was described as having deteriorated from intermediate school years when he was involved in fighting. His parents in 2003, in what Mr Woodcock described as an apparently “desperate act” to modify his behaviour, had sent him to a boarding school in Tonga and on his return to New Zealand after his suspension from Northcote College, enrolled him at a church boarding school in Auckland.
Although Mr Helu had left school without qualifications, he had found employment with a construction company. His offending brought the employment to an end after four months (although there were indications in some of the material before the Tribunal that the company was prepared to have him back).
The report records the appellant’s description of alcohol abuse and drug taking and his description of personality traits which were impulsive and volatile. He was described as having fluctuating self-esteem and to be lacking in confidence. Peer influence had played a part in his offending. More positively, Mr Woodcock identified that Mr Helu’s environment was relatively low-stress, and that his level of social support was relatively good. He commented that “the reasonably low stress environment and the intact social support system are both favourable prognostic signs for future adjustment”.
On the Interpersonal Reactivity Index to measure empathy, described as “a critical variable in the assessment of offenders, the analysis of that offending and, in particular, the analysis of violent offending”, Mr Helu scored well against the control group. This test is said to be “a prediction of a positive outcome to therapeutic intervention” and, in Mr Woodcock’s view was a positive indication of the appellant’s “ability to make a successful adjustment”. The appellant also scored well by comparison with the control group on tests for hostility. Again, this was “a positive prognostic sign”. There was no indication of psychopathy.
Risk assessment was undertaken by Mr Woodcock using the HCR-20 tool, used to make treatment decisions. Mr Woodcock explains in the report that it is less subjective and better focussed than earlier testing methods. The historical area of assessment is explained as anchoring the instrument. It contains 10 “domains”: previous violence, young age at first violent incident, relationship instability employment problems, substance use problems, major mental illness, psychopathy, early maladjustment or exposure to family and social disruptions during childhood, personality disorder, failure to respond to clinical supervision or treatment in past.
The clinical interview looked at lack of insight, negative attitudes, active symptoms of major mental illness, impulsivity, and unresponsiveness to treatment. Risk management measures used included the feasibility of the subject’s plans, exposure to destabilising conditions (such as lack of family support or availability of alcohol and drugs), lack of personal support, refusal to attend counselling and stress.
Mr Woodcock explained the use to be made of the HCR-20:
The HCR-20 does not allow for a definite prediction of violence. Predictions based on the HCR-20 are estimates of the likelihood of violence, and should be presented in terms of low, moderate, or high probability of violence. Probability levels should be considered conditional, given short- and long-term time-frames, and should be considered in relation to relevant factors the individual may encounter. These factors include situations and states of being that may dispose a person to violence or help insulate them against it. Consideration of such factors can aid in reporting the type and extent of risk presented by a person and in selecting intervention strategies intended to reduce the probability that an individual will demonstrate violence. These strategies when taken as a whole are called a risk management plan.
Ultimately, HCR-20 results are intended to provide information for decision-makers, so that criminal and mental health-related decisions can be based on the best available estimates of risk of violence.
On the basis of Mr Helu’s results on the HCR-20, I would conclude that he poses a moderate risk of offending in a like manner. This risk assessment takes into consideration both the positive and negative aspects that have been identified in the body of this report (see above). They have all been factored into my HCR-20 analysis. Because one of those domain measures “substance abuse problems” the writer cannot say that his risk profile is exacerbated significantly by his abuse of substances.
CONCLUSION
Motivation for Treatment
Mr Helu’s interest in and motivation for treatment is typical of individuals being seen in treatment settings, and he appears more motivated for treatment than adults who are not being seen in a therapeutic setting. His responses suggest an acknowledgement of important problems and the perception of a need for help in dealing with these problems. He reports a positive attitude towards the possibility of personal change, the value of therapy, and the importance of personal responsibility. However, the nature of some of these problems suggest that treatment would be fairly challenging, with a difficult treatment process and the probability of reversals.
If treatment were to be considered for this individual, particular areas of attention or concern in the early stages of treatment could include:
He may have initial difficulty in placing trust in a treating professional as part of his more general problems in close relationships.
I am of the opinion that Mr Helu possesses a moderate risk of further violent behaviour/offending.
The Tribunal decision
The Tribunal held that it was necessary for it to undertake sequential and distinct inquiries in applying s 105. In this, it seems to have followed High Court authority.[11]
[11]See Prasad v Chief Executive of the Department of Labour [2000] NZAR 10 (HC); Zanzoul v Removal Review Authority HC Wellington CIV-2007-485-1333, 9 June 2009; and O’Brien v Immigration and Protection Tribunal [2012] NZHC 2599, [2012] NZAR 1033.
First, it considered that it was necessary for it to decide whether it was “unjust or unduly harsh” by “weighing the seriousness of the offending giving rise to the deportation order and any further offending, with the compassionate factors favouring the appellant remaining in New Zealand, having particular regard to the matters set out in section 105(2)”.[12] The offending included the aggravated robbery and the additional offending committed by Mr Helu while he was on bail which entailed threatening behaviour and gratuitous aggression.
[12]Helu v Minister of Immigration [2011] NZIPT 500056 at [7].
The Tribunal concluded that it would be unjust and unduly harsh to deport the appellant notwithstanding the serious nature of the offending which was offending of violence (although it was accepted not to be at the higher end of the scale). It reached that view because of a number of circumstances:
[56] The appellant came to this country when only six years old, so he has spent almost all of his formative years in this country. He will have some familiarity with Tongan culture from growing up in a Tongan immigrant family and contacts with the local Tongan community. He is also familiar with the Tongan language. However, his socialisation, education and work experience has occurred in the context of contemporary urban New Zealand culture. He spent six months at school in Tonga when aged 13-14 years and said that even at that age he found the experience alienating. If deported he will have to return to a country where he has spent comparatively little of his life, is culturally different and comparatively unfamiliar to him.
[57] The appellant will also be permanently separated from his immediate family with little prospect of even occasional visits from them. He is the oldest son of his parents and they look to him to play a key role in the family. His is a strong supportive family and the appellant identifies his parents as the most important people in his life. His parents believe he has matured during his incarceration and this is reflected in his expressing a motivation to address his addiction and behaviour problems. The support and encouragement of his parents and siblings will be important to his rehabilitation. To be deprived of direct contact with his family will be a significant loss for the appellant. It will also be distressing for his family, especially his mother.
[58] In Tonga the appellant would have no clear means of financial support. He expects that he will have to be taken in by his aunt’s family who are strangers to him. His uncle is a builder and may be able to provide some assistance to the appellant in finding employment, but he has eight children of his own in Tonga, some now adults, and he and his wife are relatively poor. The appellant’s family in this country would find it difficult to provide him with financial support given their own limited means. The appellant though, is a young healthy man, capable of working hard, so in time he could be expected to find some form of employment.
[59] Adapting to a life in Tonga, isolated from and without the support of his immediate family and dependent on extended family whom he does not know, will be challenging for the appellant. This is particularly so given that his history of addiction and associated self-destructive behaviours and his lack of confidence in social interactions do not equip him to cope with the stresses that will be involved in establishing a life in an unfamiliar environment.
[60] Weighing all of the above, the Tribunal finds that it would be unjust or unduly harsh for the appellant to be deported.
As a second and separate step, the Tribunal next considered whether it could be satisfied that it “would not be contrary to the public interest” for the appellant to remain in New Zealand. This second step the Tribunal treated as turning on matters of “public” interest which were to be contrasted with the matters of personal interest relevant to its first inquiry into whether deportation would be unjust and unduly harsh. It identified “the degree of risk posed by the appellant in terms of his reoffending in like manner” as “an important factor in the assessment of public interest”:
[63] The degree of risk of future offending which the public can be expected to tolerate varies according to the severity of the offending. There is a sliding scale, in that the more serious the crime, the lower the chance of reoffending that triggers an adverse public interest finding.
Although it accepted that the offending in issue was serious, the Tribunal acknowledged that it was “not at the higher end of the scale” and “not in the most serious category”. Nevertheless, its approach to the public interest assessment was:
[65] Given the nature of the appellant’s violent offending, the Tribunal finds that only a degree of risk at the low end of the scale would suffice to preclude the public interest being engaged.
Two matters only were identified by the Tribunal as going to the public interest and which required “weighing” in the “public interest” inquiry, because they pulled in opposite directions. They were:
·“the degree of risk of future offending which the public can be expected to tolerate” (and which the Tribunal considered varied “according to the severity of the offending”, so that there was “a sliding scale, in that the more serious the crime, the lower the chance of reoffending that triggers an adverse public interest finding”);[13] and
·“the public interest in family unity and treaty obligations” (which depended on whether the deportation was proportionate and necessary in the circumstances).[14]
[13]At [63].
[14]At [72].
The seriousness of the offending and the impact on Mr Helu and his family of the separation his deportation would entail were therefore considered by the Tribunal at both stages of the inquiry it undertook, although only to the extent that they engaged the public interest at the second stage of the inquiry. But other considerations which had been taken into account by the Tribunal in considering whether deportation would be unjust or unduly harsh were not taken into account by the Tribunal at all in determining whether it “was not contrary to the public interest for the appellant to remain in New Zealand”.
Counsel for Mr Helu submitted to the Tribunal that “even a moderate rate of re-offending does not make it contrary to the public interest for the appellant to remain in New Zealand, when balanced against the compassionate features relating to his family situation”.[15] The Tribunal rejected this submission. It pointed out that it had already accepted that the separation of the appellant from his family would be unjust or unduly harsh.
[15]At [72].
Although the Tribunal acknowledged that the protection of family unity was itself a public interest, affirmed by arts 17 and 23(1) of the International Covenant on Civil and Political Rights,[16] it pointed out that whether the rights of the appellant and his family were breached depended “on whether the appellant’s deportation is reasonable, that is proportionate and necessary in the circumstances”.[17] It concluded that it was “not satisfied that it would not be contrary to the public interest for the appellant to remain in New Zealand”[18]:
[75] We must weigh the positive public interest considerations relating to the appellant’s separation from his family against the public interest in removing from New Zealand a person who, because of his violent offending, poses an unacceptable risk to public safety. We find that the public interest is in favour of deportation. It follows that deportation is reasonable in this case, so no breach of New Zealand’s obligations with respect to family life arises.
[16]International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).
[17]Helu v Minister of Immigration [2011] NZIPT 500056 at [74].
[18]At [76].
The conclusion was inevitable. The Tribunal had indicated at the outset of the second stage of its inquiry that “[g]iven the nature of the appellant’s violent offending, the Tribunal finds that only a degree of risk at the low end of the scale would suffice to preclude the public interest being engaged”.[19] And the updated assessment of the likely recidivism of the appellant by Mr Woodcock (based on the HCR-20 assessment tool) was that Mr Helu posed a “moderate risk of offending in a like manner”.[20]
[19]At [65].
[20]At [66].
The Tribunal pointed out that Mr Helu had yet “to adequately address a key driver of his offending, namely his alcohol addiction”.[21] The positive factors mentioned by the psychologist, Mr Woodcock, in his report and emphasised in submissions by his counsel (his capacity for empathy, lack of hostility and the intact social support available to him) did not displace the assessment that he remained a “moderate risk”. The Tribunal considered that it had “no basis … to depart from Mr Woodcock’s assessment of a moderate risk of re-offending”.[22] Beyond referring to the conclusion expressed by the experienced psychologist that he assessed the appellant at “moderate” risk of reoffending, the Tribunal did not engage further with the report. Since it had indicated at the outset that only a low risk would satisfy it that it was not contrary to the public interest for Mr Helu to remain in New Zealand, that opinion was decisive.
Judicial review in the High Court and Court of Appeal
[21]At [71].
[22]At [71].
Mr Helu applied for judicial review of the decision of the Tribunal. He claimed that the Tribunal erred in law in not properly taking into account arts 17 and 23(1) of the International Covenant on Civil and Political Rights, concerning the protection of the family unit from arbitrary interference. It was also said to be in error in its conclusion that the deportation complied with New Zealand’s international law obligations in protecting the family unit because deportation was reasonable, being proportionate and necessary in the circumstances. In addition, Mr Helu claimed that the decision was erroneous in law because the Tribunal did not consider whether there was a breach of art 12(4) of the International Covenant on Civil and Political Rights, relating to the right of a person to enter “his own country” (and, by necessary inference, not to be removed from it). New Zealand was claimed by the plaintiff to be his own country because of his connection with it and his lack of similar connection with any other country. Mr Helu claimed that the Tribunal had misapplied s 105 in applying a “sliding scale” in which the risk of offending in like manner had dominated its assessment of the public interest.
In the High Court, Toogood J took the view that the criticism of the Tribunal’s approach to arts 17 and 23(1) of the International Covenant on Civil and Political Rights was not material because the Tribunal had applied the principles of protection of the family unit in reaching its decisions under both limbs of s 105.[23] The Judge was satisfied that the Tribunal had properly weighed the relevant public interest factors and that the “sliding scale” analysis was appropriate. The Tribunal had appropriately taken into account Mr Helu’s youth when assessing the question whether deportation was “unjust or unduly harsh” and was well aware of that circumstance. It was not in error in not weighing it again in the public interest assessment. The application for judicial review was accordingly declined.
[23]Helu v Immigration and Protection Tribunal [2012] NZHC 1270 (Toogood J).
Mr Helu appealed to the Court of Appeal. Again he argued that the Tribunal had failed to properly take into account New Zealand’s obligations under the International Covenant on Civil and Political Rights in relation to protection of family and the right not to be excluded from one’s “own country”. He argued that the Tribunal had failed properly to take into account his youth when considering the seriousness of the offending. He also maintained that it had adopted the wrong approach in assessing the public interest on the basis of assessment of risk of reoffending.
The Court of Appeal approved the division of concerns between what it saw as the two limbs of s 105.[24] In assessing the “control or qualifying consideration” provided by the public interest limb, “humanitarian factors” were “not irrelevant” because they may have “public” features, so there can be overlap. But the “focus” was not the same because at that stage the Tribunal was “looking ‘more sharply’ at the community’s interests”, including such factors as the risk of reoffending.[25] With that focus, the Court of Appeal considered that the Tribunal had properly identified and weighed the public interest factors for and against deportation.
[24]Helu v Immigration and Protection Tribunal [2013] NZCA 276 (Ellen France, Wild and Ronald Young JJ).
[25]At [43].
The Court rejected Mr Helu’s argument that art 12(4) of the International Covenant on Civil and Political Rights was engaged and that therefore it was necessary to consider the public interest in the right to maintain connection with a country properly to be regarded as Mr Helu’s own. It pointed out that s 18(2) of the New Zealand Bill of Rights Act 1990, which is enacted in fulfilment of art 12(4), confines the right of entry into New Zealand to those who are New Zealand citizens. Although it acknowledged that there might be exceptional cases where it would be right to take into account the connections of non-citizens, the Court of Appeal did not think Mr Helu’s case was exceptional and contrasted it with the decision of the United Nations Human Rights Committee in Nystrom v Australia.[26]Although there the offence of aggravated rape had been much more serious violent offending than in the present case, the offender, who had been born in Sweden (to which his mother and sister had returned), had been in Australia since he was 25 days old. He had never visited Sweden and spoke no Swedish. He identified as Australian and while in State care from the age of 13 no steps had been taken to obtain him citizenship.
[26]Human Rights Committee Views: Communication No 1557/2007 CCPR/C/102/D/1557/2007 (2011).
The Court of Appeal also considered that the Tribunal had properly taken into account the appellant’s age at the time of offending. It considered the interference with family was not disproportionate to the legitimate purposes served by removal. And it considered youth could only have been relevant when considering the public interest in his removal if it was a factor which lowered his risk of reoffending (and there was no such evidence). It held that the Tribunal had not erred in its approach to s 105 or in adoption of the “sliding scale” analysis. It therefore dismissed the appeal.
The appeal to the Supreme Court
Mr Helu appeals with leave to this Court. The questions approved for the appeal are whether the Tribunal, in concluding that it was not satisfied that it would not be contrary to the public interest to allow Mr Helu to remain in New Zealand, failed to take into account all relevant considerations and applied the wrong test.[27]
[27]Helu v Immigration and Protection Tribunal [2013] NZSC 91.
It is argued for Mr Helu that the Tribunal incorrectly approached the assessment required under s 105 by adopting a test that did not accord with the statute and was too rigid, particularly in artificially constraining consideration of the factors that had led it to conclude that deportation would be unjust and unduly harsh. It was contended, too, that the Tribunal failed properly to consider art 12(4) of the International Covenant on Civil and Political Rights by recognising that New Zealand is Mr Helu’s “own country” and that it failed properly to take into account his age and its relevance to the protection of family contained in arts 17 and 23(1) of the Covenant.
Counsel for the Minister supported the approach taken by the Tribunal. They maintained that the two limbs of the s 105 test “each … has its own threshold”. The first limb is said to be “an exception to the general policy of deporting holders of residents’ permits who commit certain crimes within 10 years of residence” and the threshold there is said to be a high one. The second limb is said to have “an intentionally lower threshold”:
The appellant does not have to show that his remaining is in the public interest, nor does the Crown respondent have to show that his departure is in the public interest. Neutrality is sufficient.
Since however the focus in the second limb is “on the public, not the appellant”, counsel for the Minister argued that “a greater than negligible risk of violent offending will weigh heavily in the balance against the appellant remaining”. Counsel submitted that it was correct for the Tribunal to take as its starting point the likelihood of the appellant’s reoffending and it was right for it to consider any overlapping factors between the two limbs (properly confined to those with “a public interest element”) “with a different lens”.
Counsel for the Minister argued that this approach meant that the Tribunal was right not to take the appellant’s youth into account in weighing the public interest limb because it had already been taken into account in the first limb of the test and was already factored into the risk assessment. The only way in which age would be relevant to the second limb was suggested to be if there was evidence it would reduce the appellant’s risk of reoffending (and there was no such evidence). In any event, they submitted that although youth might be relevant to the public interest, it was not necessary for the Tribunal to mention youth separately. The submissions for the Minister suggested that deportation is “a sanction under the Act for some criminal convictions”. The second limb of the test is said to be a deliberate control on the humanitarian exception “intended to prevent unacceptable levels of public harm”. The risk of reoffending is argued to be “as a matter of logic” usually the most important factor in assessing public interest under s 105. The “sliding scale” approach has been approved by the High Court[28] and is supported by the second respondent.
Decision
[28]Pulu v Minister of Immigration [2008] NZAR 429 (DRT) at [103]–[114] and by the High Court at [12].
As indicated at the outset, I am of the view that the Tribunal failed properly to apply the statute in context when it excluded, as irrelevant to the public interest control in s 105(1), consideration of Mr Helu’s youth, the disruption to this family, and the fact that New Zealand was Mr Helu’s “own country”. Further circumstances which bore upon assessment of the public interest in context were also not taken into account, because of the narrow view taken of the inquiry into the public interest. These failures to take into account relevant considerations were in my view, a consequence of errors in approach to the Tribunal’s functions under s 105(1) which wrongly constrained the scope of the inquiry. These errors all contributed to a result I am unable to accept to be reasonable.
(i) The relevance of “own country”
Under s 18 of the New Zealand Bill of Rights Act “everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand”. While only New Zealand citizens have the right to enter New Zealand under s 18(2), s 18(4) provides:
(4)No one who is not a New Zealand citizen and who is lawfully in New Zealand shall be required to leave New Zealand except under a decision taken on grounds prescribed by law.
At issue in the present appeal is whether the Tribunal’s approval of the deportation order made by the Minister was lawfully made (and is therefore “a decision taken on grounds prescribed by law”). Section 18(4) of the New Zealand Bill of Rights Act is however of more general significance. It affirms that human rights are engaged in removing someone who is lawfully in New Zealand. Their observance requires removal to be justified as a proportionate response to a legitimate end which is a reasonable restriction on human rights in a free and democratic society. Removal decisions therefore take place against the background of heightened concern that is appropriate for human rights. Under s 3 of the New Zealand Bill of Rights Act the Immigration and Protection Tribunal must also observe the rights and freedoms contained in the New Zealand Bill of Rights Act in the performance of its functions under the Immigration Act.
The Bill of Rights Act was enacted to “affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights”, as the long title of the Act makes clear, the preamble to the Covenant recites the recognition in the Charter of the United Nations of “the inherent dignity of the human person”. By art 2 the States party to the Covenant undertake to ensure to “all individuals within its territory and subject to its jurisdiction” the rights recognised “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.
Articles 12 and 13 of the Covenant deal with rights to be present in a country:
(1)Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
(2) Everyone shall be free to leave any country, including his own.
(3)The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public) public health or morals or the rights and freedoms of others, and are consistent with the other rights recognised in the present covenant.
(4)No one shall be arbitrarily deprived of the right to enter his own country.
Article 13 provides that an alien who is lawfully in the territory of a State party may be expelled “only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority”.
In Nystrom v Australia the United Nations Human Rights Committee explained that the reference in Article 12(4) to “own country” is more than a reference to nationality:[29]
It embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien … there are factors other than nationality which may establish close and enduring connections between a person and a country, connections which may be stronger than those of nationality. The words “his own country” invite consideration of such matters as long standing residence, close personal and family ties and intentions to remain, as well as to the absence of such ties elsewhere.
[29]Human Rights Committee Views: Communication No 1557/2007 CCPR/C/102/D/1557/2007 (2011) at [7.4].
In giving effect to art 12(4) of the Covenant, Parliament has conferred a right to enter New Zealand only upon those who are New Zealand nationals. I do not consider however that New Zealand’s obligation to recognise that a connection which makes New Zealand the “own country” of someone whose immigration status is in issue is exhausted by the specific protection of entry for its nationals. Indeed, it is clear from the scheme of the Immigration Act itself that it respects the connections between individuals and countries which are affirmed in art 12(4). The time limits to deportation even of those who have offended seriously against New Zealand’s criminal laws and the mandatory considerations identified in s 105(2) of age and length of time in New Zealand are consistent with the international obligation and are statutory recognition of the importance of connection in matters to do with deportation or exclusion.
Once deportation is effected, Mr Helu’s residency permit is cancelled by operation of law[30] and he will be prevented from re-entering New Zealand without special authority of the Minister.[31] His right of connection with New Zealand will therefore be effectively severed.
[30]Immigration Act 1987, s 111.
[31]Immigration Act 1987, s 7(1)(d) and 7(3)(a)(ii) and Immigration Act 2009, ss 15 and 17.
Connection with country is an aspect of human identity and dignity. And where deportation entails severing ties with an individual’s “own country”, in the substantive sense the United Nations Human Rights Committee confirms to be covered by art 12, it is directly relevant to the dignity of the individual and his sense of identity. The inclusion in the New Zealand Bill of Rights Act of s 18(4) and the obligation undertaken in art 12 makes considerations such as these intensely relevant to whether deportation in a particular case is a reasonable response to a legitimate social end.
Observance of human rights and international obligations are both important aspects of the public interest. I consider that the Tribunal was in error in not taking into account the facts that Mr Helu has no country of his own other than New Zealand when assessing whether it was not contrary to the public interest for him to remain in New Zealand. It is to my mind a troubling feature of the case that the Tribunal did not engage with this consideration at all in its discussion of the public interest. In part that is a result of, and indicates the artificiality of, its strictly bifurcated approach to matters relevant to the individual and matters relevant to the public interest (with which I express disagreement from paragraph [81]–[90]). But even if the focus of the inquiry at the second stage is exclusively on matters relevant to the public interest and individual circumstances are properly treated as irrelevant, it is difficult to see that an order amounting to one of banishment was not seen to engage the public interest in the observance of human rights and the public interest in humane treatment of individuals and immigrant communities.
This is not to suggest that the risk of recidivism is not relevant. Nor is it to suggest that the nature of the likely reoffending is irrelevant to the assessment. What is the problem is the rule of thumb used by the Tribunal in this case that, because of the violent nature of the offending, only a low risk of reoffending would suffice. This meant that deportation was inevitable, despite the strength of the humanitarian factors in this case and in particular the fact that Mr Helu has been in New Zealand since early childhood and also despite the fact that, as recognised by the Tribunal, the index offence and the other offending taken into account by the Tribunal were not at the higher end of the scale.
I would therefore allow the appeal. I would remit the matter to the Tribunal for reconsideration in light of the factors outlined in this judgment.
WILLIAM YOUNG AND ARNOLD JJ
We agree with the approach proposed by McGrath J in relation to s 105 of the Immigration Act 1987, in particular, his view that a sequential approach is required and as to the factors which are material in relation to the two questions which the Tribunal must address.[162] We do, however, disagree with the conclusion he reaches as to the disposition of the appeal.
[162]See above at [160]–[176].
On this aspect of the case, the critical passages from the decision of the Tribunal[163] are as follows:
[65] Given the nature of the appellant’s violent offending, the Tribunal finds that only a degree of risk at the low end of the scale would suffice to preclude the public interest being engaged.
…
[71] … There is no basis for the Tribunal to depart from Mr Woodcock’s assessment of a moderate risk of re-offending.
Public interest in family unity and treaty obligations
[72] [Counsel for the appellant] submits that even a moderate [risk] of re-offending does not make it contrary to the public interest for the appellant to remain in New Zealand, when balanced against the compassionate features relating to his family situation.
[73] The Tribunal has already found that the separation of the appellant from his family would be unjust or unduly harsh. The appellant has been living in New Zealand with his parents and siblings since he was six years old, he is closely bonded to them and the only source of family support available to him in Tonga is a maternal aunt and her family. For this appellant, with his history of self-destructive behaviour, coping with the stressors involved in living in an unfamiliar society without the support of his immediate family will be difficult.
[74] The social benefit of protecting family unity is a public interest. New Zealand has also undertaken to respect the right to be free of unlawful or arbitrary interference in one’s family life and to recognise and support the family as the fundamental group unit of society … The right to family life though, is not absolute. Whether the rights of the appellant and his family would be breached depends on whether the appellant’s deportation is reasonable, that is proportionate and necessary in the circumstances … .
[75] We must weigh the positive public interest considerations relating to the appellant’s separation from his family against the public interest in removing from New Zealand a person who, because of his violent offending, poses an unacceptable risk to public safety. We find that the public interest is in favour of deportation. It follows that deportation is reasonable in this case, so no breach of New Zealand’s obligations with respect to family life arises.
[163]Helu v Minister of Immigration [2011] NZIPT 500056 (Helu (IPT)).
There is an issue as to whether the Tribunal’s assessment of the public interest brought into consideration the conclusion that deportation would be unjust or unduly harsh and the factors upon which that conclusion was based. We agree with McGrath J that for the reasons he gives such consideration was required.[164]
[164]See above at [169].
The heading before [72] of the Tribunal’s decision, the first two sentences of [74] and the first sentence of [75] can be read as suggesting that the Tribunal’s focus was on the interests of protecting family unity. On the other hand, [73] refers to both the conclusion that deportation would be unjust or unduly harsh and the primary reasons why this is so. This was said in the context of the Tribunal’s assessment of the public interest. If these factors were seen as irrelevant, there was no occasion to mention them. As well, [74] refers to a proportionality assessment. Some looseness of expression is understandable given that the appellant’s arguments as to the factors which were personal to him were largely associated, directly or indirectly, with the separation from his immediate family which deportation would bring about. Given all of this, we are not persuaded that the Tribunal failed to take into account its conclusion that the appellant’s deportation would be unjust or unduly harsh and the reasons for that conclusion. This was a very simple case in that the public interest considerations against deportation were, as just explained, primarily associated with preservation of the family unit (viewed from the perspectives of both the appellant and other family members) and the only public interest consideration in favour of deportation was the risk of re-offending. There is no reason to think that the Tribunal lost track of what the case was about. Observations made by the Tribunal in relation to one set of considerations were plainly made with an awareness of the competing considerations. It follows that when the Tribunal said in [65] that “only a degree of risk at the low end of the scale would suffice to preclude the public interest being engaged”, it must have been conscious of the countervailing argument. As well, it is worthy of note that the Tribunal used the word “engaged”, which simply means “raised”: it does not indicate that that the Tribunal considered that the public interest evaluation was necessarily determined by a degree of risk above the low end of the scale.
There is no reason to suppose that what was said in [65] was not properly personalised to the appellant and his family circumstances. The Tribunal’s conclusion as to the risk of re-offending at [71] was not the end of its analysis. Rather, the Tribunal went on to address the appellant’s argument that a moderate risk of re-offending did not make it contrary to the public interest for the appellant to remain in NZ, when balanced against the compassionate features relating to his family situation which it then reviewed. It recognised that the social benefit of protecting family unity was a public interest. It also proceeded on the basis that the appeal would have to be allowed unless deportation was “reasonable, that is proportionate and necessary in the circumstances” (at [74]).
We accept that the conclusory description in [75] of the balancing exercise was not happily expressed. A risk to public safety which is “unacceptable” might be thought necessarily to outweigh competing public interest factors. That said, the only fault of the Tribunal in this regard was that its use of the expression “unacceptable risk” anticipated the conclusion which is expressed in the next sentence. We see this as no more than an infelicity of expression. Given that the competing considerations were incommensurable, the ultimate decision of the Tribunal (which had to decide between them) was not susceptible of much, if any, explanation.
It follows from what we have said that we do not consider it fair to characterise the Tribunal’s finding as to deportation as “inevitable” given its acceptance that the appellant presented a modest risk of reoffending, as the Chief Justice[165] and Glazebrook J[166] have done. Rather, we consider that the Tribunal did turn its mind conscientiously to the relevant factors, and reached its assessment of the public interest having taken them into account.
[165]At [51].
[166]At [214].
We would dismiss the appeal.
Solicitors:
Ferguson Tuilotolava, Auckland for Appellant
Crown Law, Wellington for the Respondents
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