Khan v Immigration and Protection Tribunal
[2016] NZHC 2365
•14 October 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-00307 [2016] NZHC 2365
BETWEEN MOHAMMED FEROZ KHAN
Applicant
AND
IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
AND
MINISTER OF IMMIGRATION Second Respondent
Hearing: 13 July 2013 Appearances:
M L Clark for Applicant
S K Shaw for Second RespondentJudgment:
14 October 2016
JUDGMENT OF PAUL DAVISON J
This judgment was recalled and released by me on 14 October 2016 at 3.30pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Vallant Hooker & Partners, Auckland
Meredith Connell, Auckland
KHAN v IMMIGRATION AND PROTECTION TRIBUNAL [2016] NZHC 2365 [14 October 2016]
[1] Mohammed Feroz Khan applies for leave to appeal and judicially review a decision of the Immigration and Protection Tribunal (the Tribunal) which declined his appeal against liability for deportation on humanitarian grounds.1
[2] Mr Khan is a 50 year old citizen of Fiji who was granted a resident visa on
31 May 2006 under the Family (Partnership) category.
[3] Mr Khan first arrived in New Zealand in December 1995 with his wife and children, on a visitor’s permit for two months. In February 1996, he applied for a work permit but this was declined after INZ had discovered that he forged a letter from the Fijian Institute of Technology to support his application. He then changed his name and, between December 1996 and August 2008, Mr Khan made eight further applications to INZ using his new name. On all occasions, he failed to disclose his previous name.
[4] During this time, Mr Khan and his wife divorced then re-married. While they were divorced, Mr Khan’s wife married a New Zealand citizen and acquired New Zealand residence by virtue of that marriage. In March 2002, Mr Khan’s wife became a New Zealand citizen. In December 2002, she and Mr Khan remarried.
[5] In March 2008, INZ became aware of Mr Khan’s previous name. In November 2009, he was interviewed by the fraud branch of INZ, in the course of which, he admitted that he had failed to inform INZ on a number of previous occasions of his true and correct identity. He was subsequently charged and, on 24
June 2010, he was convicted of eight counts of using a document with intent to
defraud, and was sentenced to eight months’ home detention.
[6] On 3 July 2013, he was served with a deportation liability notice from which he appealed to the Tribunal on humanitarian grounds.
1 In a memorandum dated 8 March 2016, the first respondent asked to be removed as a named party in the leave to appeal proceedings, pursuant to r 4.56(1)(a) of the High Court Rules. By memorandum dated 8 March 2016, the first respondent asked to be excused from further attendance in relation to the application for review proceedings, stating that it would abide the decision of this Court.
[7] By its decision dated 2 February 2016, the Tribunal found that the grounds for determining the humanitarian appeal under s 207 of the Immigration Act 2009 (the Act) were not met, and that there are no exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for him to be deported from New Zealand.
[8] Mr Khan now seeks leave to appeal pursuant to s 245 of the Act and to bring judicial review proceedings pursuant to s 249 of the Act.
Out of time application for leave to bring review proceedings
[9] Section 245 of the Act provides for an appeal to the High Court on a point of law with leave. It relevantly provides:
245 Appeal to High Court on point of law by leave
(1) Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.
…
(2) An application to the High Court under this section for leave to appeal must be made—
(a) not later than 28 days after the date on which the decision of the Tribunal to which the appeal relates was notified to the party appealing; or
(b) within such further time as the High Court may allow on application made before the expiry of that 28-day period.
[10] Section 249 contains a parallel requirement for leave to be obtained before judicial review proceedings in respect of the Tribunal’s decision may be brought, and provides as follows:
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.
...
(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] Mr Khan’s solicitors, on his behalf, were notified of the Tribunal’s decision on 3 February 2016. Accordingly, the 28 day period allowed for making an application for leave to appeal, and to bring review proceedings expired on 2
March 2016. Prior to that expiry date, on 29 February 2016, Mr Khan’s solicitors filed proceedings in the High Court. They filed an application for leave to appeal, together with an affidavit of Mr Khan “in support of the application for leave to appeal”; as well as a notice of proceeding, statement of claim and affidavit of Mr Khan “in support of application for judicial review”.
[12] There is no dispute between the parties that Mr Khan, by filing his written application for leave to appeal within the requisite 28 day period, has complied with the requirements of s 245. But as I have noted, there was no separate
application for leave to bring review proceedings, filed before the 28 day period expired.
[13] On 7 March 2016, and after expiry of the 28 day period, Mr Khan’s solicitors filed an application for leave to bring review proceedings.2 It is clear from the mandatory terms of s 249(4), that I have no jurisdiction to consider this leave application because it was filed out of time.
[14] However, Ms Clark submitted that Mr Khan’s application for leave to appeal, which was filed within the required 28 day period, should be deemed to be, and treated as, including and being an application for leave to bring review proceedings.
[15] As regards the application for leave to bring review proceedings, the second respondent has filed an appearance under protest to jurisdiction.
The application for leave to appeal
[16] Mr Khan’s application for leave to appeal is intituled, “In the matter of s
245 of the Immigration Act”, and is labelled on its backing sheet as “Application for Leave to Appeal”. The body of the application sets out the orders sought as follows:
(a) Granting leave to the Applicant to appeal to the High Court pursuant to section 245 of the Immigration Act 2009 against the determination of the Immigration and Protection Tribunal (“IPT”) delivered on 02
February 2016 in Deportation Resident Appeal [2016] NZIPT
600091 on the grounds that the decision is erroneous in law.
(b) Allowing the appeal to the High Court against the decision of the IPT in Deportation Resident Appeal [2016] NZIPT 600091 on the grounds that the grounds that (sic) the decision is erroneous in law and remitting the matter back to the IPT and directing the IPT to reconsider the matter in accordance with the decision of the High Court.
2 This application is incorrectly dated 7 February 2016, as it was filed in Court on 7 March 2016 and date stamped that day. It is therefore clear that the correct date of this application is 7 March
2016.
[17] The grounds set out and relied upon in the application include not only grounds and particulars of alleged errors of law upon which an appeal would commonly be founded, but also contains allegations and particulars obviously relating to judicial review. For example, the first ground is expressed as follows:
Upon the grounds
(1) The determination that there are no exceptional circumstances of a humanitarian nature is unlawful and/or invalid and should be set aside because the first respondent failed to take account (of) relevant factors and/or took into account irrelevant factors and/or misdirected itself on the law and/or is open to review.
[18] Furthermore, the particulars relied upon under that ground include allegations that the Tribunal failed to give proper consideration to Mr Khan’s close association with New Zealand, to the circumstances of Mr Khan’s family, as well as other particulars detailing factual errors, which include:
(f) The applicant’s son suffers from epilepsy. As a consequence of his epilepsy he cannot drive or operate machinery without supervision. The applicant employs his son as a builder. Due to the familial relationship the applicant accepts his son’s limitations as an employee and continues to employ him and support him. The applicant’s son will not be able to find alternative work as a builder if the applicant is deported.
…
(j) The [Tribunal] made an error of fact in determining that it was not established that the applicant’s son will not be able to function and work without his parents’ support.
[19] The second ground is expressed as follows:
The decision that that [sic] it would not be unjust or unduly harsh for the Applicant to be deported is unlawful and/or invalid and should be set aside because the First Respondent failed to take account [of] relevant factors and/or took into account irrelevant factors and/or misdirected himself [sic] on the law and/or is open to review.
[20] The fourth ground is simply stated: “The decision is unreasonable”.
[21] Thus it appears that the document entitled “Application for Leave to
Appeal”, contains a combination of grounds being alleged errors of law and errors
of fact (presumably amounting to an error of law), as well as allegations relevant to judicial review and the manner in which the challenged decision was made.
The statement of claim
[22] The statement of claim filed on 29 February 2016 sets out four causes of action, each relevant to judicial review. The first cause of action being “the decision is unlawful and/or invalid and should be set aside because the first respondent failed to take account [of] relevant factors and/or took into account irrelevant factors and/or misdirected himself on the law and/is open to review”.
[23] The second cause of action similarly alleges that the first respondent failed to take into account relevant factors and/or took into account irrelevant factors and/or misdirected himself on the law in determining that it would not be unjust or unduly harsh for the applicant to be deported.
[24] The fourth cause of action alleges that the decision of the first respondent is unreasonable.
Should Mr Khan’s “application for leave to appeal”, be also treated as being an application for leave to bring review proceedings?
[25] Unless Mr Khan’s application for leave to appeal dated 29 February 2016, is also to be treated as an application for leave to bring review proceedings, s 249 will not have been complied with and the Court has no jurisdiction to grant leave.
[26] In support of the submission that the application for leave to appeal should also be deemed to be an application for leave to bring judicial review proceedings, Ms Clark relied upon Kartseva v Chief Executive of the Ministry of Business Innovation and Employment.3 There, the appellant had within the requisite time
limit filed documents with the Court which, while clearly intended to challenge the
3 Kartseva v Chief Executive of the Ministry of Business Innovation and Employment [2016] NZHC 1475.
Tribunal’s decision, were deficient as to form and were incorrectly intituled.
Brewer J observed:4
There are two documents which, taken together, seem to be analogous to a Notice of Proceeding, and there is a Statement of Claim. There is also a document titled:
NOTICE OF APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
The document commences:
TAKE NOTICE THAT the Applicant seeks leave of this Honourable Court pursuant to Rule 56CA5 of the High Court Rules to apply for a judicial review of the decision of the Second Respondent, dated 27 November 2015 (decision) and for a further order that the grant of leave shall operate as a stay of the said decision.
[27] The grounds set out thereafter in the body of the document included allegations that the Tribunal had made errors of law, as well as allegations that in arriving at its decision, the Tribunal had failed to sufficiently acquaint itself with “relevant information” and “failed to have regard to all, and to only, legally relevant considerations and took into account irrelevant considerations”. A further ground alleged that the Tribunal had acted unreasonably and/or irrationally.
[28] The respondent argued that these documents could not constitute an application under s 249, relevantly because:
(b) None of the documents, including the purported application for leave, refers to s 249 of the Act, which is the relevant provision.
(c) In particular, none of the documents refer to the statutory grounds
for leave in s 249(6) ….
[29] Brewer J found that despite the absence of a s 249 application for leave to bring the review proceeding, and a failure to include any reference to the leave requirements of s 249(6), nevertheless the form of the documents was not fatal.
Brewer J said:
4 At [7]–[8].
5 There is no Rule 56CA. There used to be a section 56CA of the Judicature Act 1908 which related to judicial review of decisions under the Immigration Act 1987, but it was repealed on
29 November 2010.
[28] I agree with Mr Deliu that in a case where a person is clearly attempting to exercise access to the Court to address their immigration status, and makes that attempt within the statutory time limit, it is the substance of the documents filed which must be looked at, not their form. This is not the sort of situation which Gilbert J had to address in D v Immigration and Protection Tribunal. I am not being asked to find error where there was none. Neither am I being asked to artificially create necessary documentation.
…
[31] My clear view is that Mr Chaudhry’s failure to address the leave requirements of s 249(6) is not fatal to the application. The application has identified a number of grounds of review. If it is clear to the Court that those grounds satisfy s 249(6), then the Court will be in a position to grant leave to apply for judicial review. Mr Chaudhry’s failings do not help the applicant’s case but they are not lethal to it.
[30] In Ms Shaw’s submission, Mr Khan’s application for leave to appeal cannot also be treated as including an application for leave to bring review proceedings. She relied upon D v Immigration and Protection Tribunal,6 being the decision referred to and distinguished by Brewer J. In that decision, Gilbert J considered whether an affidavit and statement of claim filed within the requisite 28 day period could be treated as an application for leave to bring review proceedings. Gilbert J
found that the affidavit did not address any of the requirements for leave set out in s
249(6) of the Act and “even on the most generous view, it cannot be regarded as an application for leave to commence judicial review proceedings.”7 So far as the statement of claim was concerned, it was submitted by the applicant in that case that it could be amended so as to address and include the requirements of a leave application and then be “severed in two and emerge from the one document as an application and a statement of claim”. Gilbert J rejected that proposition and concluded:8
Parliament’s clear intention is that, in circumstances such as the present, leave must be sought before judicial review proceedings are commenced. That did not happen because of oversight. The time limit is strict. The Court does not have power to extend it unless an application for an extension of time is applied for within the time limit. … Because leave was not applied for and no extension of the time limit was sought within the 28 day period, the Court has no jurisdiction to determine the present proceeding and it must be dismissed.
6 D v Immigration and Protection Tribunal [2015] NZHC 2458.
7 At [11].
8 At [18].
[31] On appeal, the Court of Appeal upheld Gilbert J’s decision, stating:9
It is common ground that the effect of ss 247(1)(b) and 249(3) and (4) was to require D to seek leave, or an extension of time, within the 28-day period.
The Act does not prescribe the form such an application must take. Given that, and the nature of the legislation, we consider it open to D to submit, as her counsel did, that documents filed within the 28-day period constitute the required application for leave under s 249(4)(a).
But whatever the form of the document or documents relied upon, at the very least they must provide a basis on which the Court may determine the matters in s 249(6) and (7). D’s documents do not do so. And nor, when we asked, was counsel for D able to identify an “issue that could not be adequately dealt with in an appeal” and, if there were such an issue, tell us why it would be important (in the stipulated sense) to submit it to the High Court for review. [emphasis added]
[32] Like Brewer J, I consider that the circumstances of the present case are clearly distinguishable from those of D. The grounds of review set out within Mr Khan’s application for leave to appeal, coupled with the content of the statement of claim, contain and provide a sufficient basis upon which the Court can address and consider whether the statutory requirements of s 249(6) have been met in determining whether to grant leave.
[33] Accordingly, and despite the want of form and the absence of a separate document and specific application for leave to commence judicial review proceedings, I consider it appropriate that the Court treat Mr Khan’s application for leave to appeal as including and constituting an application for leave to commence judicial review proceedings.
[34] This is a clear case of a person attempting to access the Court to challenge the Tribunal’s decision in relation to their immigration status. Although s 249 creates a specific regime requiring an application for leave to be made within the limited period of 28 days, and thereby restricts recourse to judicial review unless complied with, it does not prescribe any form in which the application for leave
must take.
9 D v Immigration Protection Tribunal New Zealand [2016] NZCA 320 at [10]–[12].
[35] In circumstances such as have occurred here, the Court will look to the substance of the documents filed within the statutory time limit to determine whether or not it has jurisdiction to grant leave. A party should not be prevented from accessing the Court for the purpose of seeking judicial review by reason of deficiency of form, when the substance of the documents filed can be reasonably and reliably ascertained.
[36] For the reasons I have given, I find that this Court has jurisdiction to consider and determine that application for leave to commence review proceedings.
Should I grant Mr Khan leave to appeal?
The test for granting leave to appeal
[37] Section 245(3) of the Act provides:
In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.
[38] In Machida v Chief Executive of Immigration New Zealand, the Court of
Appeal set out the test for an application for leave to appeal.10 With reference to s
245(1) and (3) of the Act, Kós J, delivering the judgment of the Court, said:
[8] In its practical application, s 245 requires an applicant to identify a seriously arguable question of law which either:
(a) has importance extending beyond the particular case (which is
what “general or public importance” entails); or
(b) for some other reason, warrants a decision from the High Court. Although category (b) is open ended, we agree with a series of decisions in
the High Court which have held that it would only be in an exceptional case
involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing, that this alternative requirement could be met.
The grounds of appeal
10 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162.
[39] Mr Khan has raised three questions of law in his application for leave to appeal. I address each of them in turn.
The first question of law
[40] The first question and alleged error of law made by the Tribunal and raised by Mr Khan, is:
Where the spouse of the Appellant is a New Zealand citizen and deportation means that the spouse must also leave New Zealand with the Appellant or be separated from the Appellant is the [Tribunal] bound to consider and determine whether the spouse has a right of permanent residency in the country to which the Appellant will be deported with accompanying rights of work, education, housing, welfare as they have in New Zealand in considering whether “serious emotional harm exists”?
[41] In the course of submissions, Ms Clark raised an altogether different question under this heading. Namely, whether the Tribunal was “bound to determine” whether Mr Khan had acquired New Zealand nationality by means of him having lived in New Zealand for over 20 years.
[42] Ms Clark supported this proposition by reference to the observations of Elias CJ in Helu v Immigration and Protection Tribunal,11 in which the Chief Justice said that Article 12(4) of the ICCPR, which provides that “no one shall be arbitrarily deprived of the right to enter his own country”, is not exhausted by the specific protection of entry for its nationals. The Chief Justice relied on the decision of Nystrom v Australia, wherein the United Nations Human Rights Committee said the reference in Article 12(4) to “own country” is more than a reference to nationality:12
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.
11 Helu v Immigration and Protection Tribunal [2015] NZSC 28,
12 At [70] (footnote omitted).
[43] Notwithstanding the view expressed by the learned Chief Justice, the majority in Heli took a different view. McGrath J, writing for the majority said:13
… the Tribunal was not required to consider the international instrument.14
It is accordingly not necessary to consider the meaning of the words of art 12(4) or to address the views expressed on that point in Nystrom v
Australia.
[44] Accordingly, the question of law raised by Ms Clark in the course of submissions (was the Tribunal bound to consider the issue of acquired nationality?) is already settled. The answer, is “no”.
[45] Turning to the question of law posed by Mr Khan at [40] above, Ms Clark submitted that the Tribunal failed to consider whether Mr Khan’s wife could live and work permanently in Fiji, in circumstances where she had given up her Fijian citizenship when she acquired New Zealand citizenship.15
[46] In this context, Ms Clark submitted that as a matter of principle, the Tribunal is required to “fully examine what rights may exist in the ‘go to country’ for persons other than the deportee who are affected by the deportation”. This is incorrect. There is no such requirement. While it may very well be true that a deportee and his or her family may not have the same rights and opportunities in other countries as they do in New Zealand, this does not necessarily make the deportee’s circumstances exceptional. There will always be some degree of harshness in a deportee being removed from New Zealand, and his or her family’s circumstances will inevitably change as a result. Sometimes for better, but usually for worse. It is up to the deportee (and not the Tribunal) to identify and establish the circumstances which are said to be exceptional, and which go beyond the
normal run of circumstances found in overstayer cases generally.
13 At [178].
14 See [145]–[150]: “s 18(2) of the New Zealand Bill of Rights Act 1990 incorporates the protection given by art 12(4), but is expressed in terms which cannot be given a meaning that extends the right to an appellant who is not a New Zealand citizen although he or she has lived the greater part of his or her life there.” See also [143]: “Resort may still be had to the
international instrument to clarify the meaning of the statute under the long-established
presumption of statutory interpretation that so far as its wording permits, legislation should be read in a manner consistent with New Zealand’s international obligations. But the international text may not be used to contradict or avoid applying the terms of the domestic legislation”.
15 Fiji did not allow dual citizenship prior to April 2009. But note, cl 14 of the Citizenship of Fiji
Decree 2009 permits ex-Fiji citizens to re-apply for Fiji citizenship.
[47] The Tribunal accepted that Mr Khan’s wife is likely to return to Fiji in the event he is to be deported. It also accepted that her prospects of obtaining permanent residency in Fiji and employment are uncertain.
[48] The Tribunal was nevertheless not satisfied that this made Mr Khan’s
circumstances exceptional.
[49] Balanced against these circumstances, the Tribunal observed:
[46] … for the first 30 years of his life, and then again for nearly two years in 2004-2006, the appellant lived in Fiji. He worked as a builder there and is well used to the local language, culture and way of life. He concedes that building work is available in Fiji… His wife indicated that she intends to return to Fiji with him, and she is assured entry as a visitor, as she was when she was last there in 2004-2006. She too is well-acquainted with the country where she has spent most of her life. If the appellant returns to Fiji, he intends to live in the Nadi area where work is most likely, and his four siblings and his wife’s parents and two brothers live in reasonably close proximity to that area.
[50] Although Mr Khan clearly takes issue with the Tribunal’s finding on this point, he has not shown that the Tribunal was wrong in point of law. I agree with Ms Shaw’s submission that the issue here goes to weight, and is not properly the subject of an appeal on a question of law.
[51] Accordingly, I decline to grant leave on this question of law.
The second question of law
[52] The second question and alleged error of law made by the Tribunal and raised by Mr Khan, is:
Did the [Tribunal] err in law in failing to interpret section 207 [of the Act] consistent with the [ICCPR] to which New Zealand is a signatory and in particular Articles 17 and 23?
[53] The question of law posed by Mr Khan does not correspond with the submissions made by Ms Clark under this heading. Since the second question of law is a replication of the third (which I consider below), I will deal with the point raised by Ms Clark in the body of her submissions.
[54] The essence of Ms Clark’s submissions was that the Tribunal erred by failing to interpret s 207 in a manner that is consistent with New Zealand’s international obligations. Ms Clark specifically relied upon articles 17 and 23 of the ICCPR, which provide:
Article 17
(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
(2) Everyone has the right to the protection of the law against such interference or attacks.
Article 23
(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
[55] Ms Clark submitted that had the Tribunal considered and given effect to New Zealand’s international obligations, then it would have considered some of the international authorities to which she referred. In those cases, it was decided (using Ms Clark’s words) that “significant and irreparable severing and loosening of family life… may constitute an arbitrary interference with the family life.”
[56] This submission is incorrect.
[57] First, the Tribunal was fully aware of the international obligations that are engaged by the circumstances of this case. At the outset, the Tribunal noted:
[43] Because there are family interests at issue in this appeal, regard must be had to the entitlement of the family to protection as the fundamental group unit of society, exemplified by the right not to be subjected to arbitrary or unlawful interference with one’s family – see Articles 17 and 23(1) of the
1966 International Covenant on Civil and Political Rights (the ICCPR). Whether such rights would be breached depends on whether deportation is
reasonable (proportionate and necessary in the circumstances) – see the
United Nations’ Human Rights Committee’s General Comment 16 (18 April
1988) and the discussion in Toonen v Australia (Communication No.
488/1992, UN Doc CCPR/C/50/D/488/1992, 4 April 1994) and Madefferi v
Australia (Communication No. 1011/2001, UN Doc
CCPR/C/81/D/1011/2001, 26 August 2004, para 9.8).
[58] Accordingly, there is no error in this respect.
[59] Secondly, the international cases to which Ms Clark referred16 are so dissimilar to the circumstances of Mr Khan’s offending that they are unhelpful. Ms Clark’s point when referring to these cases was to show that it has been recognised in the international context at least, that deportation can amount to an unwarranted interference with family life despite the deportee having been convicted of serious criminal offences. Mr Khan’s previous convictions, on the other hand, are said to be less serious, so it would be unjust or unduly harsh for Mr Khan to be deported from New Zealand.
[60] I disagree with Ms Clark’s submission that Mr Khan’s previous convictions, which involve dishonesty on his part, can be said to be less serious by comparing his offending with violent offending. Mr Khan’s offending was of a kind that was an affront to the integrity of New Zealand’s immigration system. It was persistent and extended over a number of years. As the Tribunal noted:
[54] … the appellant undertook a deliberate and concerted course of action over a number of years to circumvent the immigration processes that applied to him.
[61] Therefore I disagree with Ms Clark that simply because the nature of Mr Khan’s offending is different from violent or drug offending, and his sentence of home detention was “considerably lighter”, that his deportation would be unjust or unduly harsh in the circumstances. The Tribunal will not just look at the nature of the charge but will also have regard to the circumstances of the offending, which will be balanced against the consequences of deportation (if they are of an exceptional nature).
[62] In any event, the point of these cases is to show that deportation can amount to a grave interference with family life notwithstanding the serious nature of a
deportee’s criminal history. I agree with Ms Shaw that this would require a finding
16 See for example, Human Rights Committee Views: Communication No 1557/2007
CCPR/C/102/D/1557/2007 (2011) [Nystrom v Australia], where the appellant had lived in Australia from 25 days old and had never travelled to Sweden and could not speak Swedish; and Human Rights Committee Views: Communication No 1959/2010 CCPR/C/l02/D/1959/2010 (2011) [Warsame v Canada] where the appellant moved to Canada at the age of four; had a criminal record starting from the age of 15; had never lived in Somalia; and would only be able to have irregular contact with his family remaining in Canada (and who would be unable to visit him in Somalia).
that the circumstances of Mr Khan’s deportation are in fact exceptional. As it
stands however, he has not crossed that first hurdle.
[63] Accordingly, Mr Khan has not pointed to any error. I decline to grant leave on this ground.
The third question of law
[64] The third question and alleged error of law is the same as the second. It being:
Did the [Tribunal] err in law in determining the test in section 207 to be “whether the Appellant has shown that the deportation would involve a level of harshness beyond which must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system?”
[65] This ground has no substance. It is quite clear that this was not the test applied by the Tribunal. Earlier on, the Tribunal properly set out the test for s 207, making proper reference to Ye v Minister of Immigration and Guo v Minister of Immigration.17 The Tribunal’s comment that Mr Khan “has not shown that deportation would involve a level of harshness beyond that which must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration
system”, was simply a summation of the test, and not the test itself.
[66] Although the Tribunal’s comment was perhaps badly worded, what the
Tribunal was meaning to say was consistent with the test of s 207:
Mr Khan’s circumstances are not exceptional and it would not be unjust or unduly harsh for him to be deported from New Zealand; (his circumstances “do not involve a level of harshness beyond that which must be regarded as acceptable”); and
it would in all the circumstances be contrary to the public interest to allow him to remain in New Zealand (“to preserve the integrity of
New Zealand’s immigration system”).
17 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104; and Guo v Minister of
Immigration [2015] NZSC 132, [2016] 1 NZLR 248.
[67] There is no error. I accordingly decline to grant leave to appeal.
Additional question of law – error of fact
[68] Another question of law which is not expressly stated as such, but which is apparent from the substance of Mr Khan’s leave application and Ms Clark’s submission, is whether the Tribunal’s factual finding as to the effects of Mr Khan’s son’s epilepsy, is correct.
[69] Kós J set out what he termed a “triple hurdle” which an applicant faces when seeking to challenge the Tribunal’s factual findings:18
(a) First, the applicant will need to show a seriously arguable case that factual findings by the Tribunal are actually incorrect. An appeal Court will not interfere where there is an available evidential basis for the [Tribunal’s] finding.
(b) Secondly, the applicant will need to show that the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law. That is, it is seriously arguable that:
(i) the Tribunal has made a finding of fact which is based on no evidence, based on evidence inconsistent with or contradictory of another finding of fact, or contradictory of the only reasonable conclusion of fact available on the evidence; and
(ii) the errors of fact are so significant and extensive that a properly-directed Tribunal may well have reached a different decision overall on the application to quash the deportation order.
(c) Thirdly, the applicant must show that the question of law (here based on alleged fundamental errors of fact) is one of general or public importance, or for some other reason ought to be considered on appeal. The former is a hard ask in the case of factual errors, no matter how profound. (Here, the applicant does not seek to argue that the questions he presents meet the requirement of being of general or public importance. Thus he relies on the alternative limb that there is “other reason” why the question should be submitted to the High Court.) In my view 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.
18 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].
[70] For the reasons that will become shortly apparent, I am satisfied that the
Taafi test is met in the circumstances of this case.
[71] Mr Asif is employed by his father as a builder. He suffers from epilepsy. Mr Khan gave evidence at the Tribunal hearing that Mr Asif had suffered an epileptic seizure on 23 December 2015 with the result that:19
he has not been allowed to drive and requires supervision at work, and so it
will be hard for him to find employment outside his father’s business.
[72] On the evidence before it, the Tribunal made the following finding:20
While the son’s seizure has been of concern to the family, it has not been established that he will not be able to function and work without his parents’ support.
[73] In an affidavit dated 26 April 2016, Mr Khan deposed that since the
Tribunal’s decision, on 3 March 2016, Mr Asif has had three further seizures:21
… The third seizure was very serious and [Mr Asif] was required to stay
overnight in hospital and have further tests [sic] done.
[Mr Asif] was referred to a neurologist and was seen by a neurologist on 12
April 2016…. The neurologist in his letter dated 18 April 2016 has
confirmed that [Mr Asif’s] day to day ability to work as a Carpenter is significantly impacted by the safety considerations of having unpredictable seizures. The neurologist has confirmed that as [Mr Asif] has active epilepsy, he is unable to drive, to work at heights and to operate heavy machinery which significantly limits activities and is [sic] currently employment.
The neurologist has also confirmed that family support is required because
[Mr Asif’s] family will need to assist him with transport if he cannot drive.
… [Mr Asif’s] epileptic seizures and his inability to drive or operate machinery inhibit his ability to work. As [Mr Asif’s] father and employer, I am able to make allowances for him because he is my son and either drive him to jobs myself or make the arrangements for another family member to drive him. I am able to supervise him at work.
19 At [33]. Also at [45], the Tribunal noted under the heading “Whether there are exceptional circumstances of a humanitarian nature”, “His son’s epileptic seizure last December causes the family concern.”
20 At [47].
21 The second respondent was not opposed to the application to seek leave to adduce further evidence, citing Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZSC 107 at [3].
I do not believe that these are allowances that another employer would be prepared to make as it is a pre-requisite for the position of carpenter to be able to operate tools and machinery.
[74] While, as Ms Shaw correctly submitted, the seizures which post-dated the Tribunal’s decision were obviously not in evidence before the Tribunal and cannot be used to criticise the Tribunal’s finding, they are relevant to the extent that they show that Mr Asif’s seizure on 23 December was not a one-off incident. (I note here that there is nothing to suggest that the Tribunal treated his seizure as one-off. Rather, it seemed to accept (as it should) that his condition is ongoing).
[75] However, I consider it is seriously arguable that the Tribunal’s factual finding at [72] above is actually incorrect and contrary to the only reasonable conclusion of fact that could have been drawn from the evidence.
[76] By reason of his epilepsy, Mr Asif is unlikely to be able to secure employment as a builder with some other employer simply because of the inherent and obvious danger posed to himself and other workers on building sites, where the work often involves working at height and the use of power tools and machinery. Moreover as he is unable drive, it is likely that he may find difficulty in arranging travel to and from work and the various building sites that any employer is engaged on. Being employed by his father’s business, and living in the same household as his father has meant that his father has been able to assist with transport to and from work, as well as ensuring that the work he undertakes on the building sites is of a kind that mitigates any risk of injury to himself or others in the event that he were to suffer another epileptic seizure. If that combination of parental and employer oversight was removed as a consequence of Mr Khan being deported from New Zealand, Mr Asif would be confronted with a problematic employment situation that could have grave financial and personal consequences for him. He is of course wholly unconnected to his father’s offending.
[77] In my view, it is seriously arguable that the only reasonable conclusion of fact available on the evidence is that Mr Asif’s epilepsy has real and significant consequences for him as to his ability to gain employment as a builder with any employer other than his father, or in any other field where he is unable to use his
skills as a builder. To say that proof of those consequences should and could have been readily obtained by Mr Khan, would require Mr Khan to effectively prove a negative.
[78] I am also satisfied it is seriously arguable that a properly-directed Tribunal may well have reached a different decision on the application to quash the deportation order.
[79] I consider that the individual justice arising in the circumstances of this case bring it within the “any other reason” category of s 245(3), which ought to be submitted to the High Court for its decision.
[80] Accordingly, Mr Khan’s leave to appeal is granted on this point. Should leave to bring judicial review proceedings be granted? Statutory criteria for the granting of leave to bring review proceedings
[81] An application for judicial review under the Act requires the leave of court. Section 249 relevantly 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.
…
(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.
[82] The Court of Appeal has not yet considered whether the test involving “some other reason” in the leave to bring an appeal context, is to be interpreted in the same way when an application to bring a judicial review proceeding is made. A number of High Court authorities have expressed the view that a different approach
is warranted.22
Should leave to bring judicial review proceedings be granted?
[83] Ms Clark said the grounds for leave to bring review proceedings are the same as those already relied upon by Mr Khan in his grounds for leave to bring an appeal. As I have already said, there is no merit in all but one of those submissions, so to the extent those arguments are repeated, the application for leave to bring review proceedings fails. I do not propose to traverse them in any detail.
[84] Ms Clark also submitted that the Tribunal failed to take into account a number of relevant considerations. Nearly all of the points raised by Ms Clark are readily answered and dismissed by reference to the Tribunal’s decision.
[85] By way of example, Ms Clark submitted that the Tribunal failed to take into account that:
(a) Mr Khan has close ties to New Zealand, having lived in New Zealand for close to 20 years: the Tribunal did take this factor into account. It
22 See for example, Hu v Immigration and Protection Tribunal [2016] NZHC 1661 and R M v
Immigration and Protection Tribunal [2016] NZHC 735.
is the weight given to this point which Mr Khan is seeking to challenge and which is not an open ground for review.
(b)Mr Khan’s wife, their children, spouse and grandchild, are more interdependent than other families as they all live together in the family home and have a very close family relationship: Mr Khan’s living situation was properly considered by the Tribunal:
[45] The Tribunal acknowledges that the appellant has lived in New Zealand nearly 19 years, including the last 10 as a resident. He owns his family home and operates his own successful building business in New Zealand. He has strong family ties in New Zealand… if the appellant is deported, he will be separated from his adult children, their spouses and his only grandchild, and all will experience emotional and financial difficulties as a result.
After which it was observed:
deportation would cause him and his family difficulty, hardship and emotional upset. The source of greatest pain for the appellant and his wife will be absence from their two children and grandchild… [However] when viewed against the factors which ameliorate the appellant’s position, his circumstances do not reach the high threshold required.
Although not considered “exceptional”, it is clear the Tribunal found those circumstances to be persuasive, given that the Tribunal reduced the period of prohibition on entry to New Zealand to three years so that Mr Khan is “given the opportunity to apply for a visa to visit his children, grandchildren and other family in New Zealand.”23 Again, the issue taken with the Tribunal’s decision goes to weight, which falls outside the scope of judicial review.
(c) Mr Khan’s wife, while prepared to travel to Fiji, has no right to remain there permanently as she is no longer a citizen of Fiji: This submission is incorrect. It is not that Mr Khan’s wife has “no right” to
remain in Fiji but that, as the Tribunal noted, “it is not clear if she will
23 At [60].
be entitled to longer-term stay or be able to work there”.24 What is clear, however, is that she “is assured entry as a visitor”.25 These observations are taken from the Tribunal’s decision, and accordingly the submission that these factors were not taken into account, is
plainly wrong.
(d)Mr Khan’s children and their spouses live in the family home, and the family home will need to be sold if Mr Khan is deported: Again, this factor was properly considered. For instance, the Tribunal noted that if deported, Mr Khan’s son “and his wife would need to move out of
the family home”.26 The Tribunal in the end made an order that Mr
Khan’s deportation be delayed for a period of three months “for the purposes of getting his affairs in order” which, I consider, is taken to include the process of selling his home as well his business.
[86] The other ground of review, in Ms Clark’s submission, is founded on
Wednesbury unreasonableness. Ms Clark said:
[these cases] show that the decision of the [Tribunal] in this case was unreasonable. In each one of those cases the person to be deported had much more serious crimes and a series of crimes over an extended period of time which were injurious to individuals in the community (robbery, rape, assaults, kidnapping etcetera) when in comparison to [Mr Khan] he has offended against the immigration service but his offending is unlikely to be repeated and he is not a risk to the community.
[87] As I have already said, the inherent seriousness of Mr Khan’s offending is not reduced by comparing it to (unrelated) examples of more egregious offending. Moreover, the fact that he does not present a risk to the community at large, is beside the point. The Tribunal’s concern here was to do with the fact that Mr Khan was dishonest in his dealings with INZ, which it concluded should be treated as serious because it was offending against the integrity of New Zealand’s
immigration system.
24 At [29].
25 At [46].
26 At [32].
[88] Ms Clark further submitted that despite him having previously used a false document, Mr Khan this time obtained a visa through genuine means (i.e. through his relationship with his wife). This, again, is beside the point. The point is that Mr Khan had purposefully misled INZ by failing to disclose facts which INZ had deemed relevant to its assessment.
[89] I note that Ms Clark also submitted here that the Tribunal failed to take into account the effects of Mr Asif’s epilepsy. I agree that the Tribunal failed to take into account the necessary consequences of deportation upon Mr Asif, by simply dismissing the humanitarian appeal on the basis of there being no evidence to support Mr Khan’s contention that his son will find it difficult to find employment if Mr Khan were to be deported. As his father, Mr Khan has found a way to ensure Mr Asif remains employed within his chosen field of work, whilst also managing the risk factors his epilepsy presents and working around those limitations. Mr Khan’s dedication to making this arrangement work is due to his role as a father, and not as an employer. It is this factor which the Tribunal failed to take into account. However, I consider this point can and will be adequately dealt with by the leave to appeal being granted, so I decline to grant leave for review on this point.
Conclusion
[90] For the reasons given, I grant Mr Khan’s application for leave to appeal.
[91] If the parties are unable to reach agreement, memoranda as to costs are to be filed within 10 working days of the date of delivery of this judgment.
Paul Davison J
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