Kartseva v Chief Executive of the Ministry of Business, Innovation and Employment
[2017] NZHC 97
•8 February 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2015-404-3158 [2017] NZHC 97
UNDER THE Judicature Amendment Act 1972 IN THE MATTER OF
Sections 207(1) and 249(6) of the
Immigration Act 2009BETWEEN
NADEZDA KARTSEVA Applicant
AND
THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT First Respondent
AND
THE IMMIGRATION PROTECTION TRIBUNAL
Second Respondent
Hearing: 18 October 2016 Counsel:
F Deliu for Applicant
B Charmley for First RespondentJudgment:
8 February 2017
JUDGMENT OF DUFFY J
This judgment was delivered by me on 8 February 2017 at 4.00 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors / Counsel: Crown Law, Wellington F C Deliu, Auckland
KARTSEVA v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT & IMMIGRATION PROTECTION TRIBUNAL [2017] NZHC 97 [8 February 2017]
[1] The applicant is a 56-year-old Russian woman who has been living in New Zealand on a succession of temporary visas since 2009. On 28 September 2015, Immigration New Zealand (“INZ”) declined her application for a further student visa. The applicant appealed to the Immigration and Protection Tribunal (“Tribunal”) under s 207 of the Immigration Act 2009 (“Act”). Her appeal was dismissed on the basis that there were no exceptional circumstances of a humanitarian nature which would make it unjust or unduly harsh for the applicant to be deported from New Zealand. The applicant now seeks leave to commence judicial review proceedings against the Tribunal’s decision pursuant to s 249 of the Act.
[2] The first respondent has filed a notice of protest to jurisdiction. However, at the commencement of the hearing I was informed the protest was no longer pursued. Accordingly, it is dismissed.
Factual background
[3] The decision of the Tribunal sets out the factual background as follows:1
[4] The appellant was born in Russia. She married and had a daughter.
In July 2005, she was divorced and she left Russia to join her daughter in Fiji. The appellant sold her property in Russia in 2010.
[5] The appellant came to New Zealand in January 2009, accompanied by her daughter and her daughter’s husband. The appellant held a visitor visa and this was renewed and valid to January 2010.
[6] In April 2010, the appellant was granted a student visa and this was renewed and valid to July 2011. She completed a National Certificate in Hospitality (Cookery), Level 4.
[7] In August 2011, the appellant was granted a one-year Graduate Job Search work visa and, in August 2012, she was granted a two-year Graduate Work Experience work visa. From October 2012 to July
2014, she worked as a cook for a firm in Auckland of which her daughter was director.
[8] In March 2014, the appellant applied for a resident visa under the Skilled Migrant category. In August 2014, she withdrew the application.
1 Re Kartseva [2015] NZIPT 502502.
[9] In August 2014, the appellant was granted an interim visa. In February 2015, she was granted a student visa valid to June 2015, to study English.
[10] In May 2015, the appellant applied for a further student visa. She was granted an interim visa. On 28 September 2015, Immigration New Zealand declined the application. This was because she did not meet the character requirements. It had been determined that she had provided false and misleading information with her residence application in that the business referred to in the employment agreement that she provided was not in operation when she lodged the application. A character waiver assessment was completed and a waiver was not granted.
[11] The appellant became unlawfully in New Zealand after 29
September 2015.
[12] The appellant’s daughter, aged 35 years, is a citizen of Russia and
has held a resident visa in New Zealand since August 2012.
[4] This account appears to be broadly accepted by the parties to the present application.
The decision of the Immigration and Protection Tribunal
[5] The applicant appealed her deportation liability to the Tribunal under s 207 of the Act, which states:
207 Grounds for determining humanitarian appeal
(1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—
(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
…
[6] The Tribunal found that there were no exceptional circumstances of a humanitarian nature and therefore it was not necessary for it to go on and consider the other elements of the s 207 test. Citing L v Removal Review Authority,2 the
Tribunal noted that it could not properly consider INZ’s decision to decline the
2 L v Removal Review Authority HC Wellington CIV-2005-485-1601, 3 March 2006.
applicant a further student visa. Rather, on a humanitarian appeal the Tribunal was required to consider whether the requirements of s 207 were met.
[7] In respect of the factors relevant to that assessment, the Tribunal noted that the applicant had lived in New Zealand with her daughter and her daughter’s husband for nearly seven years and that her return to Russia would be distressing for both her and her daughter. However, she had been in New Zealand on temporary visas with no right to remain and had lived the first 46 years of her life in Russia. The Tribunal found that the applicant would be able to maintain contact with her daughter by electronic means.
[8] Ultimately the Tribunal concluded that, although the applicant’s deportation would cause her and her daughter to suffer “difficulty, hardship and emotional upset”, these factors alone did not reach the high threshold for exceptional circumstances of a humanitarian nature under s 207. Accordingly, the Tribunal dismissed the applicant’s appeal.
Proposed grounds of judicial review
[9] The applicant seeks leave to judicially review the Tribunal’s decision on the following grounds:
(a) Failure to take into account relevant considerations: the applicant argues that the alleged negligence of the applicant’s former immigration advisor in preparing the application for residency was an exceptional circumstance of a humanitarian nature, but that the Tribunal failed to take this into account.
(b)Taking irrelevant considerations into account or otherwise making inferences based upon insufficient evidence: the applicant argues that the Tribunal made a number of factual findings, for example that “financial support [for the applicant] can be expected to continue”, which were not supported by any evidence.
(c) Error of law: the applicant argues that the Tribunal incorrectly interpreted and applied the High Court authorities Nikoo v Removal Review Authority and Minister of Immigration v Jooste.3
(d)Failure to give reasons: the applicant argues that the Tribunal failed to give reasons as to why there were no exceptional circumstances of a humanitarian nature, in breach of the applicant’s right to natural justice under s 27 of the New Zealand Bill of Rights Act 1990 (“BORA”).
Approach to leave applications under s 249
[10] Section 249 of the Act provides:
249 Restriction on judicial review of matters within Tribunal’s
jurisdiction
(1) No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.
(2) No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.
(3) Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.
(4) An application to the High Court for leave to bring review proceedings must be made—
(a) not later than 28 days after the date on which the Tribunal’s determination in respect of the decision or matter to which the review proceedings relate is notified to the person bringing the proceedings; or
(b) within such further time as the High Court may allow on application made before the expiry of that 28-day period.
(5) A decision by the Court of Appeal to refuse leave to bring review proceedings in the High Court is final.
3 Nikoo v Removal Review Authority [1994] NZAR 509 (HC); Minister of Immigration v Jooste
[2014] NZHC 2882, [2015] 2 NZLR 765.
(6) In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—
(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and
(b) if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.
(7) A court that grants leave under subsection (3) to bring review proceedings must state the issue or issues to be determined in the proceedings.
(8) Nothing in this section limits any other provision of this Act that affects or restricts the ability to bring review proceedings.
[11] There is some dispute between the parties regarding the proper interpretation of subs (6), in particular:
(a) whether the fact that the applicant is now unable to pursue appellate recourse justifies a more relaxed approach to the direction in subs (6)(a); and
(b)whether the reference in subs (6)(b) to “any other reason” can encompass consideration of the right to judicial review, as affirmed by s 27(2) of the BORA.
Subsection (6)(a) – whether matters could be dealt with on appeal
[12] Mr Deliu, on behalf of the applicant, submits that the applicant is unable to pursue appellate recourse, which he attributes to the alleged negligence of the applicant’s former solicitor. He submits however that the Court must ultimately do justice regardless.
[13] Mr Deliu cites a number of cases in support of his submission. In CV v
Immigration and Protection Tribunal, the applicant had similarly failed to lodge a
timely application for leave to appeal and was accordingly prevented from pursuing appellate recourse.4 The Court held:
[39] If s [249(6)(a)] were interpreted to preclude claims that in principle were capable of being run as appeals under s 245, it would exclude cases like the present where the only reason the applicants’ arguments are not being heard in the context of an appeal is because they brought their appeals out of time. In such circumstances, a procedural purist may well take the view that the fact an appeal is out of time does not necessarily mean the issues it may have raised could not be adequately dealt with on appeal. The problem lies with the time-bar and not the means of appeal. On this approach, there would be an argument for saying that review proceedings should not become a refuge for those who have been dilatory in exercising their appeal rights under s 245. Further, on this approach, the only way in which a review proceeding would qualify under s [249(6)(a)] would be if it raised an issue that in principle fell outside the bounds of a s 245 appeal.
[40] On the other hand, seeing judicial review as an available alternative procedure for circumstances where an applicant can no longer exercise s 245 appeal rights allows the Court some room for responding to meritorious arguments that would otherwise be excluded due to technical irregularities. Courts exercising supervisory jurisdiction over tribunals and courts of inferior jurisdiction have always been loath to see citizens’ rights of access to judicial review removed. I consider, therefore, that the interpretation of [s
249(6)(a)] that has the least restrictive outcome for citizens’ access to
judicial review is the interpretation to be preferred. Here, for example, irrespective of the strength of the applicants’ arguments, appeal is closed to them and, other than by judicial review, the Court is helpless to overcome that outcome.
[14] In reply, Ms Charmley for the respondent submits that s 249(6)(a) incorporates a clear direction from Parliament that appeal, not judicial review, is the appropriate mechanism by which to challenge a decision of the Tribunal. In her submission, the proposed grounds of judicial review are capable of being considered by the court as questions of law on appeal, and therefore leave ought to be declined.
[15] I consider that the wording of s 249(6)(a), that the court must “have regard to” the nature of the issues in question, is inconsistent with a bright-line test which would automatically exclude any judicial review application of matters that might otherwise have been amenable to appeal. This approach is consistent with existing authority and has recently been affirmed by the High Court in Hu v Minister of
Immigration.5
4 CV v Immigration and Protection Tribunal [2015] NZHC 510, [2015] NZAR 594.
5 Hu v Minister of Immigration [2016] NZHC 1661 at [18]–[20], citing Allada v Immigration and
Protection Tribunal [2014] NZHC 953, [2014] NZAR 880 at [32].
Subsection (6)(b) – the meaning of “any other reason”
[16] At the present time, there are two contrasting lines of authority regarding the
interpretation of the phrase, “any other reason”.
[17] The respondent relies on the traditional line of authority, exemplified by the High Court decisions in Allada v Immigration and Protection Tribunal and SK v Immigration and Protection Tribunal.6 This approach adopts a narrow interpretation of the phrase “any other reason”, in keeping with the apparent purpose of s 249(6) in restricting the availability of judicial review, particularly to litigants who might more appropriately challenge the decision in question by way of appeal. In Taafi v Minister of Immigration, Kós J emphasised that the “any other reason” exception would only apply “in exceptional circumstances, involving individual injustice to
such an extent that the Court simply could not countenance the first instance decision standing”.7 This interpretation has received some support in the High Court,8 but has not yet been addressed by the Court of Appeal.9
[18] The applicant, on the other hand, favours a new approach which has been adopted in two recent decisions of the High Court, RM v Immigration and Protection Tribunal and Hu v Minister of Immigration.10 In those cases, the High Court considered the relationship between s 249 of the Act and the right, affirmed by s
27(2) of the BORA, to seek judicial review of any determination which affects rights, obligations or interests that are protected or recognised by law. Palmer J in particular set out the reasons for this finding in some detail.11 Although lengthy, his Honour’s reasons bear repeating here:
[43] Interpretation of s 249(6) requires appreciation of the constitutional and Bill of Rights implications of restrictions on the right to judicial review.
[44] The right to judicial review is a core element by which the judiciary holds the executive branch of government accountable for acting according
6 Allada v Immigration and Protection Tribunal, above n 5; SK v Immigration and Protection
Tribunal [2014] NZHC 2693.
7 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19(c)].
8 See X v Immigration and Protection Tribunal [2014] NZHC 1647; CV v Immigration and
Protection Tribunal, above n 4; Ali v Minister of Immigration [2015] NZHC 1794.
9 See Kumar v Minister of Immigration [2016] NZCA 492 at [7].
10 RM v Immigration and Protection Tribunal [2016] NZHC 735 (this case has been appealed to the Court of Appeal but has not yet been determined); Hu v Minister of Immigration, above n 5.
11 RM v Immigration and Protection Tribunal, above n 10, at [38]–[51].
to law. As McGrath J and Elias CJ stated in Tannadyce Investments Ltd v
Commissioner of Inland Revenue:
Our constitutional arrangements recognise that the Parliament of New Zealand is the supreme law maker and has “full power to make laws”. The courts of higher jurisdiction, however, have constitutional responsibility for upholding the values which constitute the rule of law. A central aspect of that role is to ensure that when public officials exercise the powers conferred on them by Parliament, they act within them. Judicial review is the common law means by which the courts hold such officials to account. It provides the public with assurance that public officials are acting within the law in exercising their powers, and are accountable if they depart from doing so. Statutes limiting recourse to judicial review to challenge statutory decisions accordingly raise issues of constitutional concern. This concern is reflected in the presumption of the courts, when interpreting such legislation, that it was not Parliament’s purpose to allow decision- makers power conclusively to determine any question of law. Furthermore, in the present context, tax legislation will not readily be read as enabling imposition of a liability for tax without also allowing the opportunity of access to a judicial process to show that, in law, the tax should not have been imposed or imposed in the amount assessed.
[45] That passage indicates the presumption courts will apply to interpreting provisions restricting judicial review: the presumption that Parliament did not intend to allow decision-makers power conclusively to determine any question of law. And, indeed, while it diminishes the dimensions of the window of availability for judicial review, s 249 still leaves the window open and, constitutionally appropriately, provides the judiciary with the discretion to open and close it.
[46] Furthermore, the importance of the window of judicial review remaining in working order is conveyed directly to the judiciary by Parliament’s protection of the right to judicial review in s 27(2) of the Bill of Rights:
Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
[47] Section 27(2) is, of course, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”, according to s 5 of the Bill of Rights. Importantly, s 6 provides that “[w]herever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning”.
[48] The Bill of Rights represents a statutory and constitutional requirement on the judiciary in deciding how to interpret and apply s 249. References to ss 6 and 27(2) have not featured significantly in cases examining s 249 issues to date. But they could be important where s 249 falls to be interpreted and more and less rights consistent meanings are available. The Bill of Rights’ interpretative imperative also directly affects application of the s 249 leave test by the judiciary. The judiciary is bound by the Bill of Rights under s 3(a) and must make its decisions consistently with the Bill of Rights.
[49] The plain words of s 249(1) and (2) are effective to require, ordinarily, judicial review to await final determination of an appeal to, or other matter before, the Tribunal. And, ordinarily, s 249(4) (as amended in
2015) imposes time limits on applications for leave to bring judicial review proceedings, though I leave open whether there might be exceptions to those
requirements in some circumstances, consistent with the remedial
constitutional function of judicial review.
[50] But where, those hurdles having been passed, a court considers a ground of review is potentially arguable, ss 6 and 27(2) of the Bill of Rights militate in favour of leave to bring proceedings being granted. Otherwise the leave requirement could have the effect of restricting the availability of judicial review without justification.
[51] In most circumstances, these constitutional considerations may not make a difference to the result of considering applications for leave to bring judicial review. The judiciary will not give leave to hopeless cases and the Bill of Rights does not require them to do so, given the demonstrable justification in conserving public resources and in not delaying execution of immigration law in the public interest. A case where a ground of judicial review is clearly available will get leave and the Bill of Rights endorses that. And, where the issues can be dealt with adequately in an appeal, s 249(6) suggests “that is the appropriate route”, and the Bill of Rights does not suggest otherwise. But in marginal cases, it is important to bear in mind that the leave decision is one which impacts the fundamental right to judicial review, that is protected by the Bill of Rights and the constitutional function of judicial review.
(footnotes omitted)
[19] This reasoning is consistent with the direction in s 6 of the BORA:
6 Interpretation consistent with Bill of Rights to be preferred
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
[20] For that reason, and for the reasons set out above by Palmer J, I prefer a more
expansive approach to the interpretation of “any other reason”.
Discussion
[21] Despite my conclusions above regarding the scope of s 249(6), I do not consider that leave to pursue judicial review proceedings should be granted in this case. That is because I do not consider that the proposed grounds of review establish any issue which is capable of serious argument or which should be heard in the
interests of justice. I set out my reasoning in relation to each proposed ground of review below.
Failure to take into account a relevant consideration
[22] The applicant submits that the alleged negligence of her former immigration advisor was the direct cause of INZ’s decision to refuse her application for a student visa, and that this alleged negligence was an exceptional circumstance which ought to have been taken into account by the Tribunal when determining her appeal under s
207 of the Act.
[23] The relevant provisions of s 207 state:
207 Grounds for determining humanitarian appeal
(1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—
(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
…
(emphasis added)
[24] The respondent drew my attention to two relevant cases. In Ye v Minister of
Immigration Tipping J for the majority of the Supreme Court held:12
[34] That brings us back to the first criterion in s [207(1)] which has the following ingredients: (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand. The need for the circumstances of the case to be exceptional means that those circumstances must be well outside the normal run of circumstances found in overstayer cases generally. The circumstances do not have to be unique or very rare but they do have to be truly an exception rather than the rule. It is unnecessary and undesirable to define the compass of the word “humanitarian”. It is unlikely to be difficult to decide whether the circumstances of a particular case fulfil that description. If there are exceptional circumstances of a humanitarian nature,
it is then necessary to determine whether they make it unjust or unduly harsh to remove the person from New Zealand.
(footnotes omitted)
[25] It is possible that negligence on the part of an immigration advisor might constitute “exceptional circumstances”. Negligence on the part of an immigration advisor that has a material impact on whether someone can legally remain in New Zealand or not is likely to be “well outside the normal run of circumstances found in overstayer cases generally.”
[26] In Sale v Removal Review Authority Hammond J was asked to consider the meaning of the term “humanitarian”, albeit under s 63B of the 1987 Act.13 His Honour noted a humanitarian concern may be “actual or prospective” and “might include physical, emotional or economic harm”.14 Similarly, The New Zealand Oxford Dictionary defines “humanitarian” to mean “of or relating to human welfare”.15
[27] Negligence on the part of an immigration advisor has the potential, if not the ability, to cause emotional or economic harm to a client if the negligence causes the loss of the chance to be permitted to remain in New Zealand legally. If it can be shown that Ms Kartseva was denied a permit as a result of the immigration advisor’s negligence, there would be an available inference that she is likely to suffer emotional and economic harm. Whether something can and so should be done to rectify this outcome seems to me to raise humanitarian concerns.
[28] Ms Kartseva contends the Tribunal misunderstood this aspect of her appeal as it wrongly thought her complaint was that INZ had reached a wrong decision. She acknowledges that INZ’s decision was a logical response to the negligent work of the immigration adviser. However, she maintains that INZ would not have refused her a permit had the immigration adviser acted competently. She contends that rectifying the damaging consequences of her immigration adviser’s negligence is something
the Tribunal could do on humanitarian grounds.
13 Sale v Removal Review Authority HC Auckland M1471/93, 26 October 1993.
14 At 9.
15 Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (Oxford
University Press, Melbourne, 2005) at 530.
[29] In its decision, the Tribunal stated:
[19] In relation to the first ground of appeal, the Tribunal recognises the disappointment that the appellant has experienced following the decline of her application for a student visa. However, the Tribunal may not properly consider the merits of Immigration New Zealand’s decision, which, in this case, was its decision to decline the appellant a further student visa – see L v Removal Review Authority (HC Wellington, CIV-2005-485-1601, 3 March
2006) at [13] and [15]. What the Tribunal must consider is whether the appellant has exceptional circumstances of a humanitarian nature.
[30] The Tribunal was clearly operating under the impression that the applicant sought to challenge the merits of INZ’s decision, which is something the Tribunal cannot determine.16 However, this is understandable in light of the applicant’s appeal form, which stated:
I would like to appeal against my pending deportation on the following grounds:
1.Immigration New Zealand (INZ) erred in determining that I had provided false and misleading information in its communication dated 2 July 2015 (attached and marked 1) and that I acted contrary to requirements of A5.45(b) & (e) of the INZ Operational Manual.
…
[31] The appeal form does not refer to the immigration adviser’s negligence and its alleged consequences being an exceptional circumstance of a humanitarian nature, which warrants the Tribunal’s intervention. Nor is there anything else to suggest the matter was put before the Tribunal in this way. Thus, it is not surprising the Tribunal’s decision does not deal with this consideration. There is no arguable failure to take account of a relevant consideration. The applicant failed to put this aspect of her case before the Tribunal.
Taking irrelevant considerations into account
[32] The applicant submits that the Tribunal made a number of factual findings that were based upon mere conjecture or speculation. She argues that the Tribunal lacked a proper evidential basis for its findings, or alternatively that it took into account various irrelevant considerations.
[33] The impugned paragraphs of the Tribunal decision are set out below. The specific passages to which the applicant objects are emphasised:
[21] However, the Tribunal notes that the appellant entered and has remained in New Zealand while she has held temporary visas, without entitlement to remain on a permanent basis here. She chose to withdraw her application for residence in 2014. She lived in Russia for the first 46 years of her life and is familiar with the language and culture there. Her daughter has stated that she and her husband are both in employment and financially secure, and have provided financial support for the appellant in the past. This financial support can be expected to continue. The cookery qualification and work experience that the appellant has obtained in New Zealand may assist her to obtain employment there. If her daughter chooses to remain in New Zealand, she and the appellant should be able to maintain contact by telephone and electronic means of communication.
[22] The appellant’s absence from New Zealand need not necessarily be permanent. If she leaves New Zealand before she is served with a deportation order (and a deportation order may be served on her any time after the elapse of 28 days from the date of this decision), she will not be prohibited from applying for a further visa offshore. It will then be up to Immigration New Zealand to decide on any such application.
[34] Mr Deliu refers to an English case, Caswell v Powell Duffryn Associated
Collieries Ltd, regarding the permissible use of inference:17
Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.
[35] However, here there seem to be a number of positive proved facts which support the inferences drawn by the Tribunal:
(a) The applicant’s daughter gave affidavit evidence that since the applicant’s arrival in New Zealand, her daughter and her daughter’s husband had “cared for and provided all that was and remains necessary for my mother.” Her daughter further testified that she and her husband “have well rewarding jobs and are financially secure and would be able to meet any cost of having [her] mother remain in New
Zealand.” It was open to the Tribunal to infer that this financial
support would continue even if the applicant were deported.
(b)There is no dispute that the applicant has obtained a cookery qualification during her time in New Zealand. It was open to the Tribunal to infer that the applicant’s additional qualification might improve her chances of finding employment in Russia.
(c) There are telephone and internet communication systems in New Zealand and Russia. It was open to the Tribunal to infer that the applicant and her daughter would be able to keep in touch using these methods of communication.
[36] The final ‘factual’ finding to which the applicant objects is the statement that “[the] appellant’s absence from New Zealand need not necessarily be permanent.” However, as noted by the respondent, this is not a statement of fact but rather a summary of the applicable law. Section 179(2) of the Act provides that:
A person who is liable for deportation is not subject to any period of prohibition on entry if the person—
(a) is liable for deportation only on the grounds that the person is unlawfully in New Zealand; and
(b) leaves New Zealand voluntarily before he or she is served with a deportation order.
[37] At the time of the Tribunal’s decision, no deportation order had been served on the applicant.18 It was open to her to leave the country voluntarily. Provided that she complied with those requirements, the applicant would be entitled to apply for another visa from offshore.
[38] The Tribunal did not state that the applicant would be permitted to re-enter the country in the future. Instead, it stated that her absence from New Zealand would not necessarily be permanent. This was consistent with the law.
[39] It follows from my reasons set out above that there is no seriously arguable question to be determined on judicial review.
Error of law
[40] The applicant submits that the Tribunal erred in law when it applied the decisions in Nikoo v Removal Review Authority and Minister of Immigration v Jooste to the applicant’s case.19
[41] The relevant passage of the Tribunal’s decision reads as follows:
[23] Looked at cumulatively, the appellant’s circumstances are such that deportation could cause her (and her daughter) difficulty, hardship and emotional upset. However, the High Court has held that these circumstances do not suffice unless the circumstances themselves or their consequences can legitimately be characterised as exceptional – see Nikoo v Removal Review Authority [1994] NZAR 509 (HC) at 514. The High Court has held that the stringent statutory test of “exceptional circumstances of a humanitarian nature” cannot be equated with “compassionate factors”, circumstances that are more than simply “routine”, or “genuinely concerning circumstances”. The High Court has noted “the high threshold for a finding of exceptional circumstances of a humanitarian nature” – see Minister of Immigration v Jooste [2014] NZHC 2882 at [45].
[42] Nikoo v Removal Review Authority is a High Court decision which concerns, amongst other issues, the meaning of the term “exceptional circumstances” in s 47 of the Immigration Act 1987. The pinpoint reference used by the Tribunal in the excerpt above does not appear to be relevant to the present proceeding. However, notwithstanding this error, the decision in Nikoo is clearly relevant to the issues at
stake before the Tribunal. In that case, McGechan J held:20
Is the prospective separation of [the applicant] and his daughter an “exceptional circumstance of a humanitarian nature” such that it would be “unjust or unduly harsh” for him to be removed from New Zealand? I note the experienced observation of the RRA that “… being separated from family is not an uncommon consequence for people who are required to leave the country pursuant to removal orders…”. One’s own experience in immigration tends to support that rather sad observation. If it is “not an uncommon” consequence that tends to exclude such separation from the “exceptional” category, even on the broad “uncommon” synonym submitted for the Appellant.
19 Nikoo v Removal Review Authority, above n 3; Minister of Immigration v Jooste, above n 3.
20 At 519.
[43] In my view, this excerpt does provide support for the Tribunal’s finding that while the applicant’s separation would cause “difficulty, hardship and emotional upset”, these circumstances alone would not amount to “exceptional circumstances” for the purpose of s 207(1)(a).
[44] In Minister of Immigration v Jooste, Katz J held:
[44] Turning now to the specific passages in the Tribunal’s Jooste decision that are said to reflect an erroneous approach, Ms Griffin first relied on the two passages in which the Tribunal made observations to the effect that it saw its role as being to weigh the “gravity of the offending” against “compassionate factors” favouring Mr Jooste remaining in New Zealand. Indeed, the Tribunal stated at the outset of its decision that it saw this as the “crux” of the appeal. In a similar vein, the Tribunal stated that the “exceptional circumstances test” was simply “a threshold intended to prevent those with routine circumstances from arguing injustice or undue harshness” and that those with “genuinely concerning circumstances” were entitled to have “them held up against the backdrop of their offending”.
[45] In my view such comments reflect an erroneous view of the exceptional circumstances test. They effectively equate the stringent statutory test of “exceptional circumstances of a humanitarian nature” with “compassionate factors”, circumstances that are more than simply “routine”, or “genuinely concerning circumstances”. The latter phrases fail, by a significant margin, to adequately capture the high threshold for a finding of exceptional circumstances of a humanitarian nature, as articulated in Ye and the other cases I have referred to.
[45] The Tribunal in its decision effectively quoted [45] of Jooste as set out above. That paragraph sets out a number of general principles that are applicable to the interpretation of “exceptional circumstances” in s 207(1)(a). I cannot see how this can amount to a misapplication of the case.
[46] I do not consider that there is a seriously arguable question that the Tribunal erred in its application of these cases.
Failure to give reasons
[47] Finally, the applicant submits that the Tribunal failed to give reasons for its decision to decline her appeal. Specifically, the applicant contends that the Tribunal failed to set out an actual analysis of the evidence and its application to the law, and that there is nothing to indicate that a genuine consideration was given to the points put forward by the applicant.
[48] I am unable to agree with the applicant on this point. In my view, the Tribunal sets out its reasons very clearly at [19]–[24]. It follows that I do not consider that there is a seriously arguable question to be tried in relation to this issue.
Conclusion
[49] The proposed grounds of judicial review do not disclose any questions which are capable of bona fide and serious argument or which must be heard in the interest of justice.
Result
[50] The application for leave to commence judicial review proceedings is dismissed.
[51] Leave is reserved to the parties to file memoranda on costs.
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