JW v Chief Executive of the Ministry of Business, Innovation and Employment
[2021] NZHC 3489
•16 December 2021
THE SUPPRESSION OF THE NAMES OF THE APPLICANT AND OTHERS ORDERED BY THE TRIBUNAL IS TO CONTINUE
IN ACCORDANCE WITH [67] OF THIS JUDGMENT
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2020-485-741 CIV-2020-485-745
[2021] NZHC 3489
UNDER the Immigration Act 2009, ss 245 and 249 IN THE MATTER
of an application for leave to appeal and an application for leave to commence judicial review proceedings
BETWEEN
JW
Applicant
AND
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT
First RespondentIMMIGRATION AND PROTECTION TRIBUNAL
Second Respondent
Hearing: 6 September 2021 (by VMR) Counsel:
J H Cottrell and D L Calvert for Applicant
K I S Naik-Leong and A M Piaggi for Respondents
Judgment:
16 December 2021
JUDGMENT OF ELLIS J
JW v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2021] NZHC 3489 [16 December 2021]
[1] JW was born in India. He arrived in New Zealand in February 2013; in February 2016, he was granted residence here on the basis of his relationship with his (then) wife.1
[2] In 2018, JW was convicted on seven counts of male assaults female and one count of assault with a blunt instrument.2 He was sentenced to 10 months’ home detention and 140 hours’ community work, and he was ordered to complete an anger management and/or violence intervention programme.
[3] Because the offences were committed within two years of the grant of the residence class visa, JW became liable for deportation under s 161(1)(a)(iii) of the Immigration Act 2009 (the Act). He was served with a deportation liability notice on 23 September 2019.
[4] JW appealed his deportation liability to the Immigration and Protection Tribunal (the Tribunal). The Tribunal found there to be no exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for him to be deported. JW now seeks from this Court leave to appeal under s 245 of the Act and leave to bring judicial review proceedings under s 249.
Legislative framework
[5] As just noted, s 161(1)(a)(iii) of the Act makes a residence class visa holder liable for deportation when he or she is convicted of a criminal offence. There is no dispute that this threshold was met; I do not need to consider it further.
Appeals to the Tribunal
[6] Once issued with a notice under s 161, there is a right of appeal to the Tribunal on humanitarian grounds against liability for deportation. Under s 207 of the Act, the Tribunal may allow such an appeal only where it is satisfied that:
1 Under the Family (Partnership) visa category.
2 The complainant was his former wife.
(a)there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b)it would not, in all the circumstances, be contrary to the public interest to allow the appellant to remain in New Zealand.
[7] The majority in Ye v Minister of Immigration broke s 207(1)(a) into three analytical elements:3
(a)exceptional circumstances;
(b)of a humanitarian nature;
(c)that would make it unjust or unduly harsh for the person to be removed from New Zealand.
[8] The Supreme Court observed that in order to meet the “exceptionality” threshold, the circumstances must be well outside the normal run of those found in deportation cases generally. While they do not have to be unique or very rare, they must truly be an exception, not the rule. Although the Court found it unnecessary to define the ambit of the adjective “humanitarian”, other cases indicate that, in general terms, it includes a variety of adverse effects on well-being and the physical, emotional or economic harms that are likely to flow from expulsion.4
[9] The reason a person is liable for deportation will be relevant to an assessment of whether any established exceptional circumstances of a humanitarian nature would make it unjust or unduly harsh for an appellant to be deported. Thus in Guo v Minister of Immigration, the Supreme Court said that this assessment is to be made “in light of the reasons why the appellant is liable for deportation and involves a balancing of those considerations against the consequences for the appellant of deportation”.5
3 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34]. This point concerned s 47(3) of the Immigration Act 1987; s 207(1)(a) is its equivalent.
4 See for example Zanzoul v Removal Review Authority HC Wellington CIV-2007-485-1333 and
O’Brien v Immigration and Protection Tribunal [2012] NZHC 2599.
5 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [9].
[10] Lastly, if the s 207(1)(a) threshold is passed, deportation will be permitted only if there is something in the circumstances of the particular case that would make it contrary to the public interest to allow the person to remain in New Zealand. In Ye, the Supreme Court stated that “something more than a general concern for the integrity of the immigration system is necessary to outweigh the fulfilment of the first criterion, which is deliberately set at a high threshold”.6
The leave requirements
Leave to appeal
[11] Under s 245 of the Act, leave to appeal on a question of law may be granted only if it is:
(a)capable of bona fide and serious argument; and
(b)by reason of its general or public importance or for any other reason, a question of law that ought to be submitted to the High Court.
[12] In Minister of Immigration v Jooste, the Court of Appeal held that determining whether the relevant question of law meets these criteria involves an inquiry that is similar to that required in cases of leave to bring a second appeal.7 The Court then referred to the dicta in Waller v Hider:8
Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.
[13] More particularly, an identifiable error of law will not be of general or public importance where the issues did not “go beyond the particular circumstances of the applicant” or “raise an issue that suggests the existing law should be revisited by the Court”:9
6 Ye, above n 3, at [32].
7 Minister of Immigration v Jooste [2014] NZCA 23.
8 Waller v Hider [1998] 1 NZLR 412 (CA) at 412.
9 LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [2] and [32], cited with approval in Guo v Immigration & Protection Tribunal [2014] NZHC 804 at [58]; JS v Immigration
… factual errors or legal errors that are no more than a misapplication of existing legal principle to the particular facts of the case will not qualify. … Only if the legal errors have a wider significance that extends beyond the applicant will the Court have jurisdiction to grant leave to appeal. …
[14] And in terms of whether there is “any other reason” that the appeal should be heard, the Court of Appeal has said: “it would only be in exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing, that this alternative requirement will be met”.10
Leave to bring judicial review proceedings
[15] The grant of leave to bring an application for judicial review is governed by s 249, which requires the Court to consider whether the proposed proceeding:
(a)would involve issues that could be adequately dealt with in an appeal;
(b)raises a question capable of bona fide and serious argument; and
(c)raises issues that are, by reason of their general or public importance, or for any other reason, ones that ought to be submitted to the High Court for review.
The hearing in the Tribunal and the impugned decision
[16] At the hearing of JW’s appeal, the Tribunal heard evidence from a number of witnesses, including JW himself, his current partner (K), his father (S) and a registered psychotherapist, Ms Ferguson. Before the hearing, written briefs of evidence were filed. An interpreter—engaged by the Ministry of Justice—was used to translate the oral evidence of JW, K, and his father (S).11
& Protection Tribunal [2015] NZHC 2832, [2016] NZAR 111 (HC) at [51]; and SK v Immigration & Protection Tribunal [2014] NZHC 2693 at [6] (upheld in SK v Immigration & Protection Tribunal [2015] NZCA 26, [2015] NZAR 335).
10 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] NZAR 662 at [8].
11 After difficulties with the first interpreter provided, another was appointed.
[17] The Tribunal set out JW’s evidence about his circumstances at some length, under the following headings:
(a)relationships with parents;
(b)settlement in New Zealand;
(c)relationships in New Zealand;
(d)relationship with current partner;
(e)education and work experience;
(f)situation in India.
The Tribunal then set out the evidence of:
(a)JW’s current partner (about her family and relationships and her relationship with JW);
(b)the psychotherapist, Ms Ferguson;
(c)JW’s father; and
(d)a friend of both JW and his current partner.
[19] The Tribunal then summarised the submissions made on JW’s behalf as follows:
(a)The appellant has untreated childhood PTSD, which has created chronic mental health issues for him for many years. Returning to India would serve as a reminder of his childhood trauma and trigger a recurrence of his mental health issues. He would be unlikely to receive proper mental health care there. These circumstances are exceptional.
(b)The appellant is in a genuine and stable relationship with his partner in New Zealand. Separation from the appellant would be very difficult for her because of the trauma she experienced from domestic violence with her former husband. She cannot return to India because she is fearful of coming to harm. She is also the appellant’s main support and separation would undermine his ability to maintain his mental health, putting his life at risk. This separation gives rise to exceptional circumstances of a humanitarian nature.
(c)The appellant and his parents will struggle if he returns to India because of the shame involved. His father’s mental health is
precarious because of his own past trauma, and the appellant’s return may trigger his depression, which is currently controlled by medication. Deportation would therefore be unjust and unduly harsh for the appellant, as well as for his partner and parents.
(d)Although the appellant’s offending was serious, his risk of reoffending is low because he has made significant changes to address his offending and to change his life in the past 12 to 18 months. There is a public interest in the appellant being able to achieve the highest attainable standard of mental health. The appellant considers his partner to be his family, and there is also strong public interest in family life. The public interest test is in favour of the appellant being allowed to remain in New Zealand.
[20] The Tribunal expressly noted the tripartite s 207 inquiry from Ye,12 and that the threshold “exceptionality” required by the first limb of that inquiry was a high one. It then addressed that threshold under five headings.
[21] First, under the heading “Settlement in New Zealand”, the Tribunal assessed the relevant evidence and concluded:
[70] It is accepted that the appellant has achieved a limited level of settlement in New Zealand in the time he has lived here. While he has developed friendships through his study and employment, he indicates that he has become more discerning about entering into friendships and now socialises only with a few friends that he sees regularly. He appears to have some connections with the local Indian and Sikh communities and periodically attends the Gurudwara. However, he indicated that he does not regularly do so, does not have close connections to any organisation, and has not sought friendship or support from within the local community. His support networks here are largely limited to his current partner.
[22] Secondly, the Tribunal acknowledged that JW’s relationship with his current partner appeared to be strong, loving and mutually supportive, and was supported by his family. But the Tribunal concluded:
[74] … the fact that the appellant and his current partner have established a loving relationship is not, in itself, exceptional. This is a circumstance enjoyed by many other people. Their relationship is not of long duration and they have no dependents arising from their relationship. Their relationship commenced when the partner had only temporary immigration status, and has developed against the background of the appellant’s recent charges, conviction, sentence and resultant deportation liability. The appellant and his partner must reasonably have been aware that, in pursuing their relationship, there was no guarantee that they would be able to continue the relationship together in New Zealand.
12 Set out at [7] above.
[23] Thirdly, the Tribunal noted that JW’s current partner herself had achieved a level of settlement in New Zealand since her arrival five years previously. It accepted that she had a “very real” fear of violence at the hands of her ex-husband in the event of any return to India.13 On this point, the Tribunal said:
[78] While [K] is presented with a difficult choice, whether or not she accompanies the appellant to India would ultimately be her decision to make. Given that she is a citizen of India, she is able to return to India, with skills, New Zealand work experience and postgraduate study as a basis from which to re-establish herself, as well as support from her mother and the appellant’s parents, with whom she has a good relationship. That she may have to sacrifice things that she has worked hard to attain should she choose to return, and may not, for example, have the same career opportunities in India as in New Zealand, are not exceptional. Nor is the fact that she might choose not to return and that her relationship to the appellant may end if she does not return. Her bravery at proceeding with a prosecution against her former husband for domestic violence, in the face of what she perceived the possible consequences from her community might be, demonstrates that she is a person with considerable strength and resilience herself. She has family in New Zealand and established employment to support her if she remains. The fact that deportation might effectively bring an end to a relationship, which is by no means certain in this case, is not in itself exceptional.
[24] Fourthly, in terms of JW’s mental health, the Tribunal canvassed Ms Ferguson’s evidence again (in some detail) and acknowledged her diagnosis of PTSD as a result of childhood trauma. The Tribunal noted her assessment that JW seemed to have made real progress in recent times, had become more resilient, and was no linger the “vulnerable young man” he had been on his arrival in New Zealand. The member concluded:
[84] The Tribunal does not underestimate the long-term effects possible with PTSD, and that the appellant may remain vulnerable to his mental health presenting him with further challenges throughout his life. He worries he may find life too challenging in India and that it would not be worth living. However, he has demonstrated that he has an increasing recognition of his needs, awareness of his mental state and the support strategies that assist him, and has demonstrated that he has the resilience to cope and a determination to work towards life goals he sets himself. He exhibited a determinedly positive attitude during the hearing, drawing upon skills he had learnt to remain in a positive frame of mind and stay focused on what he could control, rather than becoming overwhelmed with worry about what might happen. Such skills appear to guide his behaviour and thinking at present, even in periods of significant stress such as that leading up to the hearing.
[85] The appellant reflected that the recent counselling he had had in New Zealand was helpful and that he may continue with it once his free sessions had been completed. It is accepted that the appellant may have
13 Her husband was deported from New Zealand following convictions for offending against her.
difficulty accessing counselling in India, both from a financial perspective and because there may be fewer treatment options available there. However, even within his own family, there is some understanding and experience of the debilitating effect of depression and anxiety, and his father has been able to access some form of treatment that is appropriate to his condition. It is therefore not accepted that the appellant has demonstrated that he would not be able to access mental health support in India should this be required. Further, even currently, when the appellant’s stress reaction to his uncertain future is perhaps at its most pronounced, there has been nothing in the evidence to suggest that his condition requires specialist treatment, or even medication.
[25] Under the last heading (“prospects in India and relationship with parents”), the Tribunal specifically discussed the likely effect on JW of a forced return, including both its practical and emotional challenges. It considered his employment and earning prospects, his poor relationship with his parents (particularly his father), and the possible impact of the family environment on his mental health. But the Tribunal noted that JW’s father appeared, during his evidence, to show insight into, and to take some responsibility for, the family’s past dysfunction. The Tribunal took some heart from the fact that JW’s father had been willing to give evidence in support of his son, and that it had required him to travel some distance to do so. The Tribunal acknowledged the difficult choice that JW and K would have to make about their future together and whether K should stay in New Zealand, noting:
… the separation from her is likely to be one of the most significant impacts of his deportation on the appellant and it will cause them both much grief and distress.
[26] The Tribunal then returned to the view it had previously expressed about JW’s new-found resilience, opining that while staying for a while with his parents on his return to India might not be either JW’s or his parents’ preferred option, “after a readjustment period, [he] could reasonably be expected to cope in his home community”.
[27] Overall, the Tribunal concluded that there were no exceptional circumstances of a humanitarian nature in JW’s case, saying:
[96] The Tribunal acknowledges that deportation will cause the appellant, his partner and their broader families distress, disappointment and emotional upset. The appellant’s fears about returning to India and to a relationship with his parents, and what this will mean for his mental health, constitute a difficult issue for him. However, it is not accepted that his present mental health difficulties will mean he is unable to adapt to life in India. He will have some
support from his family to assist him to resettle, and work experience in New Zealand to draw upon, together with the reserves of resilience and other coping strategies identified by Ms Ferguson. His partner, too, has demonstrated qualities of strength and resilience in coping with the challenges presented to her, and can draw upon New Zealand work experience and the support of her own family whether she remains in New Zealand or returns to India. It remains an issue for the appellant and his partner as to whether their relationship survives the appellant’s deportation.
[28] It went on to record that had it been required to move to the next step—and weigh JW’s circumstances against the reasons why he was liable for deportation—it would not have concluded that it would be unjust or unduly harsh for him to be deported. The Tribunal held that, in light of his offending, JW could not have shown that deportation would entail a level of harshness beyond what is regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system.
JW’s applications for leave
[29] JW contends that the relevant questions of law raised by the Tribunal’s decision are:14
(a)whether the Tribunal incorrectly interpreted the s 207(1) test by focusing unduly on whether deporting JW would be unjust or unduly harsh and by focusing too little on the relevant exceptional circumstances;
(b)whether the Tribunal correctly applied the test for exceptional circumstances of a humanitarian nature in light of:
(i)the impact of returning to India on his mental health issues; and
(ii)the impact of his deportation on his father’s mental health issues; and
(iii)the risk posed by the ex-husband of his new partner;
14 I have summarised and (somewhat) reformulated the issues raised by JW.
(c)whether the Tribunal incorrectly failed to apply the “cumulative rule” and only looked at the relevant circumstances individually rather than cumulatively; and
(d)whether the Tribunal made significant and material mistakes of fact as a result of alleged misinterpretations by the Tribunal’s Sikh interpreter.
[30] His application for leave to bring judicial review proceedings is brought on the (both pleaded and unpleaded) bases that:
(a)the Tribunal took into account irrelevant considerations when applying the leave test;
(b)the Tribunal’s reliance on its Sikh interpreter meant it had failed to take into account of relevant considerations;
(c)the Tribunal’s reliance on the interpreter caused errors affecting procedural fairness and legitimate expectation;
(d)the Tribunal’s decision was predetermined or the result of bias; and
(e)the Tribunal’s decision was unreasonable.
Preliminary comment
[31] It is trite that the inclusion of leave requirements in the Act indicates a clear legislative intention to limit appeals from, or review of, immigration decisions.15 The statutory time limits around appeals and applications for leave emphasise the importance of expedition. And it is—or should also be—trite that an application for leave should not involve an effective rehearsal of the substantive appeal (or the substantive application for review).
[32] And yet, in this case—which is by no means an exception—the Court is faced with written submissions, numbering over 50 pages, that appear to invite and require a detailed interrogation of all aspects of the Tribunal’s decision, including the facts
15 See for example Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] NZAR 662 at [8].
and the evidence. That seems to me to be quite at odds with the process intended by Parliament. Indeed, it is tempting to suggest at the outset that if applicants for leave are unable to articulate succinctly where and how the Tribunal has fallen into legal or procedural error, then they are unlikely to succeed. While requiring the Court to consider a pepper pot of alleged wrongs at the leave stage may have the effect of buying applicants more time, it may not, in the end, prove to be the most effective form of advocacy.
[33] Nonetheless, I attempt to address all the grounds on which leave is sought, in turn.
Application for leave to appeal
Interpretation of s 207(1)
[34] In essence, counsel for JW submitted that the Tribunal wrongly interpreted s 207(1) by applying the analysis preferred by Elias CJ in her minority judgment in Ye. The Chief Justice’s view was that s 207(1) did not involve the tripartite inquiry set out by the majority, but rather required a “composite standard”. She considered that humanitarian circumstances that make deportation unjust or unduly harsh are, by definition, exceptional.16
[35] It is, I think, worth observing that the different analytical approaches to s 207 taken by the Chief Justice and the majority in Ye in fact made no difference to the result in that case.17 By and of itself that suggests that any legal question relating to the conflation of or overlap between the two approaches is unlikely to be a matter of general or public importance.
[36] But in any event, I do not consider that the legal error alleged here is capable of bona fide and serious argument. As noted earlier, the Tribunal expressly:
(a)referred to the Ye tripartite approach;
16 Ye, above n 3, at [7].
17 All Judges were agreed as to the outcome.
(b)carefully and in some detail addressed the particular circumstances said by JW to be exceptional, including those of JW himself and those of his partner and father;
(c)acknowledged that, because of those circumstances, deportation would cause him, K and their broader families distress, disappointment and emotional upset;
(d)determined that those consequences did not justify a finding that JW had exceptional circumstances of a humanitarian nature;
(e)separately (but, in light of its prior finding, briefly) considered the issue of injustice and undue harshness.
[37] While I accept that parts of the Tribunal’s analysis do combine steps one and two of Ye, in my view nothing can properly be taken from that. Notwithstanding the Ye majority’s attempt to separate out this aspect of the test, the reality is that it is not analytically possible to do so. Considering whether any given set of circumstances is “exceptional” cannot take place in a vacuum—to do so begs the critical question: exceptional by reference to what? I simply do not accept that such a sterile and rigidly bifurcated approach is what the Court in Ye had in mind.
Misapplication of the exceptional circumstances test
[38] In support of this proposed ground of appeal, counsel for JW essentially submitted that the Tribunal misapplied the statutory test because it failed to consider (or to give proper weight to) certain aspects of the evidence, including the impact of returning to India on JW’s mental health issues, the impact of his deportation on his father’s mental health issues, and the risk posed by the ex-husband of his new partner. It was also submitted under this proposed ground of appeal that the Tribunal was unaware of other relevant circumstances due to mistranslations of the oral evidence.
[39] I will address the question of K’s husband and the mistranslations separately later, although my more general comments in the next paragraph apply equally to those issues too.
[40] On my reading of the decision, there can be no question that the Tribunal considered, and took into account, both JW’s and his father’s mental health issues. It also considered countervailing and mitigating factors. The allegation that, in doing so, the Tribunal “misapplied” the test is no more than an allegation that the Tribunal was wrong to conclude that these matters did not—separately or together—constitute exceptional circumstances of a humanitarian nature.
[41] As noted earlier, the authorities are clear that alleged errors amounting to no more than a misapplication of existing legal principle to the particular facts of the case will not qualify as a question of law warranting the grant of leave. So even were I to accept that the Tribunal made material errors of the kind alleged here (which I do not), there is nothing in the nature of the alleged errors that suggests any wider significance beyond the interests of JW. The individual or collective weight given to matters of this kind by the Tribunal when applying the statutory test cannot be elevated to the level of an identifiable error of law, let alone one that is of general or public importance.
Failure to consider or apply the “cumulative rule”
[42] This “rule”, said to be derived from the High Court’s comment in Wilfred v Minister of Immigration, is that there may be a combination of circumstances that, cumulatively, amount to exceptional circumstances of a humanitarian nature.18 That appears to me to be unexceptional. I would not, however, elevate that common-sense proposition to a legal “rule”, and it is hardly surprising that the Tribunal did not expressly refer to it.
[43] As will be apparent from my earlier summary of the Tribunal’s decision, it carefully and separately considered each of the circumstances relied on by JW in support of his appeal. It is, nonetheless, quite apparent that the Tribunal did not reject his appeal on the basis that none of those matters taken individually was an exceptional circumstance of a humanitarian nature. On the contrary, at [96] and [97] of the decision the Tribunal quite plainly considered that, collectively, they did not qualify. There is nothing in this point.
18 Wilfred v Minister of Immigration [2007] NZAR 237 (HC) at [70].
Mistakes of fact (misinterpretation)
[44] This aspect of the proposed appeal focuses more specifically on alleged mistranslations of the evidence by the translator used by the Tribunal. In advance of the hearing of the applications for leave, counsel for JW engaged an independent translator to retranslate that evidence (from the recording of it) and, after comparing the two translations, identified a number of differences between them.19 Counsel’s submission was that these inconsistencies and errors led the Tribunal to material mistakes of fact, at [77], [85], [88], [93] and [95] of its decision.20 A comparative table in which key aspects of the two translations are set out side by side, together with counsel’s comment as to their significance formed part of the applicant’s submissions.
[45] But as Crown counsel submitted, to persuade the Court that the Tribunal made mistakes of fact that are capable of constituting a relevant error of law, JW must overcome the “triple hurdle” articulated by Kós J in Taafi v Minister of Immigration.21 Thus, he must establish:22
(a)a seriously arguable case that the Tribunal’s factual findings are actually wrong, because an appeal Court will not interfere where there is an available evidential basis for the Court’s finding;
(b)that the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law;23 and
(c)that the question of law is one of “general public importance” or is one that for “some other reason” ought to be considered on appeal.
19 The Crown reserved its position on the admissibility of the new translations obtained but agreed to their inclusion in the common bundle for the purposes of the leave application only.
20 It may be observed in passing that in my own summary of the Tribunal’s decision (set out earlier in this judgment) I have found it necessary only to refer specifically to one of these paragraphs.
21 Taafi v Minister of Immigration [2013] NZAR 1037 (HC).
22 At [19].
23 In Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 (at [8]) this Court held that it must be seriously arguable that a conclusion has been reached in error and is “so significant and extensive that a properly directed Tribunal may well have reached a different decision overall…”.
[46] And as Crown counsel also said, the act of translating is an art, not a science. In many cases there is unlikely to be a single, objectively correct way to translate what a person is saying in one language into another. As noted by the Supreme Court in Abdula v R (which was concerned with interpreting during a criminal trial):24
[40] … Interpretation is concerned with conveying the sense of spoken language and the information and ideas it incorporates into another language. At times this involves explaining the meaning of words used. A literal word for word rendering in the target language will be inappropriate where exact lexical correspondence is inapt to convey the meaning that was intended in the source language. Interpretation during a trial is a spontaneous process which allows the interpreter minimal opportunity for reflection. It can be contrasted in this respect with translation from one written text into another. Interpretation, in brief, is not a mechanical exercise. An interpreter at a court or tribunal hearing should, however, always convey, as accurately as the target language permits, the idea or concepts expressed in the words that are being interpreted.
[41] It follows from the nature of the task that even the highest quality of trial interpretation cannot achieve perfection in conveying the information and ideas into the language of the court and vice versa.
[47] I acknowledge that it appears there are some differences in the phrasing and, at times, the language, chosen by the two interpreters. But I do not consider that any of the “mistranslations” identified are so material or egregious that they might give rise to a qualifying error of law. The Tribunal had written briefs (in English) in addition to the oral evidence provided during the hearing. I agree with Crown counsel that it could reasonably be expected that these briefs would refer to any and all “exceptional circumstances of a humanitarian nature” that JW wished to rely on.
[48] To further and more particularly demonstrate this point, I propose to refer to one random example from the comparative table, which relates to evidence given in Punjabi by K in answer to a question about whether there was anything else that led her to say the things she had about fearing for her safety (if she were to return to India, where her ex-husband now lives).
[49] The translation of her answer given by the translator before the Tribunal was as follows:
24 Abdula v R [2011] NZSC 130, [2012] 1 NZLR 534.
Because he was my husband he used to live with me, we were together, so whatever he has done to me, so whenever we used to have a fight, so whenever we had the fight recently, yes he used to threaten me that you do not know how much … I have got and to what an extent they go. I can ruin your life, your mother and sister’s life. So he sent me a lot of audios in which he said that if you come to India once or if you come in front of me once then I will kill you. So I am giving the recording in which he has spoken against my mother and sister.
[50]The translation later given by the independent translator is:
Because he was my husband and we both have spend time together he used to live with me, and we used live together whatever he had done to me, during that time when we fight and we recently fight and he always threat me, that you don’t know links to what extend. I can ruin your life, and your mother and sisters also and after he had sent me a lot of audios in which he had clearly told that you come to India once or you come in front of me once then I will kill you. And I have given all the recordings that we had spoken very badly about my mother and sister.
[51] Counsel’s written analysis of the material differences between the two was as follows:
-Interpreter giving evidence
-Omitted “spend” – changes context
-Error – says “has” instead of “had” – changes context and intent “had” infers higher risk of threat when read together “whatever he had done to me”
-Error – says “used” to threaten me – [K] says “always” – changes context and intent error diminishes threat “always” infers a systemic ongoing threat as opposed to “used to” which infers it has stopped.
-Answer para/rephrased
-Omitted “clearly” – changes context and intent attempt to emphasise the seriousness of his threat
-Error – says “against” instead of “very badly” – changes context and intent error infers partner was against them however “very badly” infers the way he actually treated her mother and sister
-Outcome: Tribunal misunderstood what she was saying and thought she was only referring to the fact she had provided audio
[52] I simply do not accept that matters of this kind—involving a close reading of small parts of the evidence—could properly found an appeal on a question of law. I do not accept that the “mistranslations” identified would have made one iota of
difference to the Tribunal’s assessment. Having heard all of K’s evidence, the Tribunal accepted that K’s “fear of her former husband is very real to her” but found that she had not established “an objectively credible basis for her fear of harm that would prevent her return to India”. Whether reference is made to her evidence as translated during the hearing or now, as translated on appeal, this conclusion was reasonably open. And even putting that point to one side, K was not herself being deported. As the Tribunal said:
… whether or not she accompanies the appellant to India would ultimately be her decision to make … the fact that deportation might effectively bring an end to a relationship, which is by no means certain in this case, is not in itself exceptional.
[53] Nor are the alleged mistranslations of the evidence of JW’s father of a different quality from those just discussed. As with K, the Tribunal also had before it his written brief of evidence (in English). The Tribunal clearly understood JW’s fraught past relationship with his father, the mental health issues experienced by both men, and the difficulties JW’s return might pose for each of them. The conclusions reached by the Tribunal were open to it.
Discussion: leave to bring review proceedings
[54] As is often the case, there is considerable overlap between the grounds on which the application for leave to appeal and the grounds on which the application bring review proceedings were advanced. Indeed, the first two grounds advanced add nothing to the matters already discussed; I do not consider them further.25 And as indicated in my earlier discussion of the translation issues, I do not accept that any “errors” made here were material. It follows that I also do not accept that there has been a breach of procedural fairness, or of legitimate expectation, in that regard.
[55]That leaves the allegations of predetermination/bias and of unreasonableness.
25 These were that the Tribunal took into account irrelevant considerations when applying the leave test and that the translation errors meant that it had failed to take into account of relevant considerations.
Predetermination/bias
[56] As I understand it, JW alleges that the Tribunal’s misinterpretation of the statutory test led to a predetermination of the outcome or at the very least a perception of bias.
[57] I agree with the Crown that there is not even a remote possibility of judicial partiality by the Tribunal here. There is nothing to suggest that the Tribunal was anything but impartial.26 The Tribunal observed the principles of natural justice. And even if the Tribunal did misapply the statutory test (a point that I have already rejected above), that could not possibly suffice. On that analysis, every Judge who ever made a mistake would be open to a claim of bias. No other basis was advanced in support of the contention of judicial partiality. Accordingly, this proposed ground of review is not capable of serious argument.
Irrationality/unreasonableness
[58] In Hu v Immigration and Protection Tribunal this Court undertook a comprehensive review of Wednesbury unreasonableness, in an immigration context.27 After quoting from the Wednesbury decision itself, and Lord Greene’s proposition that intervention on review may be warranted where a public decision-maker statement has “come to a conclusion so unreasonable that no reasonable authority could ever have come to it”, Palmer J observed that the concept of Wednesbury unreasonableness has often been criticised by academic commentators and by courts because of its potential use to overturn a decision with which a Court simply disagrees, which “is not often seen as a legitimate judicial function on judicial review in New Zealand”.
[59] After then noting that, in the time since Wednesbury was decided, “little progress has been made in unpacking what unreasonableness means”, Palmer J said:28
[28] The nature, rarity and high threshold for the success of unreasonableness as a ground of judicial review is reminiscent of, and conceptually related to, the nature, rarity and high threshold for the success of
26 It is clear, for example, that the Tribunal did not have regard to JW’s criminal offending when assessing whether exceptional circumstances of a humanitarian nature existed.
27 Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508, discussing
Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223.
28 Footnotes omitted.
a factual determination constituting an error of law. In Edwards v Bairstow, a few years after Wednesbury, Lord Radcliffe identified three rare states of affairs which would constitute errors of law: where “there is no evidence to support the determination” or “the evidence is inconsistent with and contradictory of the determination” or “the true and only reasonable conclusion contradicts the determination”. In Bryson v Three Foot Six Ltd, the New Zealand Supreme Court explained that these were circumstances where:
… an ultimate conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law, because proper application of the law requires a different answer.
[29] The Court made it clear this is a “very high hurdle”. But it is well established and conceptually coherent. I consider the Supreme Court’s reformulation of Edwards v Bairstow offers a better account of unreasonableness constituting illegality in judicial review than the circular words used in Wednesbury. Where a decision is so insupportable or untenable that proper application of the law requires a different answer, it is unlawful because it is unreasonable.
[30] Lord Radcliffe’s three scenarios, encapsulated by the Supreme Court as an insupportable or untenable ultimate conclusion, also assist in identifying what constitutes a relatively narrow but usable concept of unreasonableness. A decision may be unreasonable if it is not supported by any evidence, or if the evidence is inconsistent with or contradictory of it, or if the only reasonable conclusion contradicts the determination. The first two of these involve the adequacy of the evidential foundation of the decision. The last involves the chain of logical reasoning in the application of the law to the facts: if there is a material disconnect in the chain of logic from a fact or a legal proposition to a conclusion, a decision may be unreasonable and therefore unlawful.
[31] In these rare scenarios, unsurprisingly, unreasonableness can be found in the reasoning. That is consistent with the alternative term sometimes used, “irrationality”, following Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service. The New Zealand Court of Appeal has followed Lord Diplock’s definition of that in so far as it extends to “a decision which is so outrageous in its defiance of logic”. This sense of unreasonableness is relatively unremarkable. De Smith’s text treats “irrational decisions, for instance those that are based upon the lack of ostensible logic or inadequate evidence” in the general category of “unreasonable process” rather than the more controversial categories of “violations of common law rights or constitutional principles” or “oppressive decisions”. I do not claim this is an all-encompassing conception of the meaning unreasonableness. There may also be others, wider than this relatively narrow
[60] In the present case, I have already rejected JW’s contention that the Tribunal made factual determinations that were so demonstrably wrong as to constitute an error of law. To borrow the phraseology used in Edwards v Bairstow, none of the Tribunal’s key findings could be said to be without evidence to support it, contradicted by the
evidence or somehow contrary to “the true and only reasonable conclusion”.29 The matters relied on by JW do not come close to establishing that the proposed unreasonableness challenge raises a question capable of bona fide and serious argument. Nor are they, by reason of their general or public importance, or for any other reason, matters that ought to be submitted to the High Court for review.
Conclusion
Leave to appeal
[61] To the extent JW has founded his proposed appeal on legal error by the Tribunal, I find that:
(a)the Tribunal’s decision does not arguably disclose such error; and
(b)in any event, the alleged errors:
(i)do not raise matters of public or general importance; and
(ii)do not constitute some other reason that would warrant the granting leave.
[62] To the extent JW has founded his proposed appeal on factual error (in which I include the mistranslation issues):
(a)there is a clear evidential basis for the impugned findings, and it is not seriously arguable that they are actually wrong;
(b)in any event, the alleged errors (viewed both in combination and in context) are not grave enough to constitute an error of law; and
(c)nor are they capable of raising a matter of public or general importance or constituting some other reason for granting leave.
29 Edwards v Bairstow [1956] AC 14 (HL) at 36.
[63]The application for leave to appeal is declined, accordingly.
Leave to bring judicial review proceedings
[64] The matters advanced in support of the application for leave to bring review proceedings add little, if anything, to the application for leave to appeal. None of the proposed grounds of review is tenable. None raises an issue of general or public importance.
Result
[65]Both applications for leave are dismissed.
[66] I trust that costs can be agreed. If they cannot, then memoranda are to be filed within 15 working days of this decision.
Suppression
[67] The Tribunal suppressed the names of the applicant and of K, for reasons it set out.30 This was not contested by the Crown on appeal and no reason has been advanced for not continuing the order. Accordingly, publication of the names or identifying particulars of the applicant, his former or current partner, or his family members is prohibited.
Rebecca Ellis J
Solicitors:
Cottrell Law, Wellington for Applicant Crown Law, Wellington for Respondents
30 The applicant is referred to as JW in the publicly available version of the Tribunal’s decision.
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