Kumar v Immigration and Protection Tribunal
[2018] NZHC 2928
•12 November 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2018-404-000337
CIV 2018-404-000340
[2018] NZHC 2928
UNDER The Judicial Review Procedure Act 2016 and ss 245 and 249 of the Immigration Act 2009 IN THE MATTER OF
An application for leave to appeal and to bring an application for Judicial review of a decision of the Immigration and Protection Tribunal
BETWEEN
SANDEEP KUMAR
Applicant
AND
THE IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
AND
MINISTER OF IMMIGRATION
Second Respondent
Hearing: 30 August 2018 Appearances:
R Singh, A M A M Ayoub & N Perera for Applicant I Auld for Respondents
Judgment:
12 November 2018
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 12 November 2018 at 3pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors:
Crown Law, Wellington
Legal Associates, Auckland
KUMAR v THE IMMIGRATION AND PROTECTION TRIBUNAL [2018] NZHC 2928 [12 November 2018]
[1] Sandeep Kumar seeks leave, pursuant to ss 245 and 249 of the Immigration Act 2009 (Act), to appeal and to review a decision of the Immigration and Protection Tribunal declining Mr Kumar’s appeal against liability for deportation by the Minister of Immigration.1
[2] While the applications are advanced on various grounds, the essence of Mr Kumar’s argument is that the Tribunal’s decision was inconsistent with an earlier decision of the Tribunal in Singh v Minister of Immigration.2 This ground is raised in both applications.
[3] The Tribunal took no part in the hearing and undertook to abide by the Court’s decision. The Minister opposed Mr Kumar’s applications.
Relevant background facts
[4] Mr Kumar arrived in New Zealand in December 2009 and was initially granted a student visa. He was subsequently granted work visas under the Graduate Job Search and Graduate Work Experience categories.
[5] On 6 December 2013, Mr Kumar and his wife, Garima Chaudhary, whom Mr Kumar had married in India in 2011, were granted residence status following Mr Kumar’s application under the Skilled Migrant category. Their first child was born in August 2014 and is a New Zealand citizen. In 2014, Mr Kumar took up work as a taxi driver.
[6] On 5 May 2016, Mr Kumar was convicted on two counts of indecent assault. These related to two separate incidents in which Mr Kumar made unwanted sexual advances on intoxicated female passengers in his taxi. Mr Kumar pleaded guilty to the two charges and was sentenced to three months’ home detention and required to pay $500 in reparation for emotional harm.
1 Kumar v Minister of Immigration [2018] NZIPT 600436.
2 Singh v Minister of Immigration [2016] NZIPT 600228.
[7] On 1 August 2017, the Minister issued a Deportation Liability Notice to Mr Kumar. Mr Kumar appealed the Notice to the Tribunal on humanitarian grounds in accordance with s 206(1)(c) of the Act.
[8] On 2 February 2018, the Tribunal declined Mr Kumar’s appeal because it was not satisfied there were circumstances of a humanitarian nature that would make it unjust or unduly harsh for Mr Kumar to be deported from New Zealand.
[9] On 2 March 2018, Mr Kumar filed his applications for leave to appeal the Tribunal’s decision and to review the Tribunal’s decision. Both applications were made within the 28 day periods specified in ss 245(2) and 249(4)(a) of the Act.
The Tribunal’s decision
[10] Under s 207 of the Act, the Tribunal must allow an appeal against liability for deportation 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.
[11] The Tribunal considered the evidence of Mr Kumar and Ms Chaudhary about Mr Kumar’s remorse for the two incidents, the changes Mr Kumar had made in his life, and the impact that deportation would have on Mr Kumar, Ms Chaudhary and their child. This evidence included the negative consequences for the family if required to return to India, including the social stigma that may attach to Mr Kumar and his family once the reason for his deportation became known; the intention that Ms Chaudhary and daughter should remain in New Zealand if Mr Kumar was deported and the economic and social difficulties they would face; and the impact of Mr Kumar’s deportation on Ms Chaudhary and their daughter who was emotionally dependent on her parents and very attached to Mr Kumar. In that regard, Mr Kumar submitted that his deportation was not in the best interests of the child.
[12] Mr Kumar’s evidence included a report from a psychologist who assessed Mr Kumar and Ms Chaudhary, the impact on the family if Mr Kumar was deported and Ms Chaudhary and the daughter stayed on in New Zealand, and their daughter’s psychological circumstances. In a sentence quoted by the Tribunal in its decision, the psychologist’s report concluded:3
It is difficult to imagine a positive outcome for this family should [Mr Kumar] be deported or the family move to India.
[13] The Tribunal held that because family interests were at issue in the 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 and unlawful interference in accordance with Articles 17 and 23(1) of the International Covenant on Civil and Political Rights.4
[14] The Tribunal considered whether there were exceptional circumstances of a humanitarian nature, having regard to the Supreme Court’s decision in Ye v Minister of Immigration where the majority held that for circumstances to be exceptional they “must be well outside the normal run of circumstances” and, while they do not need to be unique or rare, they do have to be truly an exception rather than the rule.”5
[15] The Tribunal assessed the circumstances of Mr Kumar, Ms Chaudhary and their daughter. In doing so, the Tribunal:6
(a)Acknowledged the deep disappointment Mr Kumar would feel and the disruption that would be caused if he had to leave New Zealand and the additional pain and suffering he would endure if he had to leave his wife and daughter behind;
(b)Noted that Mr Kumar had not lived in New Zealand for an exceptional length of time, had retained strong links with India and could re- establish his life there;
3 Kumar v Minister of Immigration [2018] NZIPT 600436 at [39].
4 Kumar v Minister of Immigration [2018] NZIPT 600436 at [47].
5 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34]; Kumar v Minister of Immigration [2018] NZIPT 600436 at [48].
6 Kumar v Minister of Immigration [2018] NZIPT 600436 at [49] - [59].
(c)Recognised Ms Chaudhary’s concern at the effect Mr Kumar’s departure would have on their daughter’s wellbeing and the struggle Ms Chaudhary would face as a single parent if she remained in New Zealand;
(d)Noted that Ms Chaudhary had no family nexus in New Zealand apart from Mr Kumar and their daughter but retained a strong connection in India and could re-establish her life there with Mr Kumar and their daughter;
(e)Accepted that the best interests of the daughter lay in her remaining in New Zealand with both her parents, that there would be significant loss and distress for the daughter if she and her mother did not accompany Mr Kumar to India, and that there would be cultural shock and a period of adjustment for her if she moved to India;
(f)Held that the daughter was an age where she could be expected to cope with a move to India with the support of her parents and grandparents.
[16] The Tribunal referred to Minister of Immigration v Jooste in which Katz J had noted that cases involving the separation of parent and child are not unusual in the deportation context and will often cause difficulty, hardship and upset but held that, in itself, was not sufficient to constitute exceptional circumstances.7 The Tribunal then found, assessing the circumstances of Mr Kumar, Ms Chaudhary and their daughter on a cumulative basis, that it was not satisfied Mr Kumar had met the high threshold required for exceptional circumstances of a humanitarian nature.8
[17] Although it was not required to, the Tribunal went on to assess whether, even if there were exceptional circumstances of a humanitarian nature, it would have been unjust or unduly harsh for Mr Kumar to be deported. It weighed the seriousness of Mr Kumar’s offending against his humanitarian circumstances, including those of
7 Minister of Immigration v Jooste [2014] NZHC 2882, [2015] 2 NZLR 765 at [47].
8 Kumar v Minister of Immigration [2018] NZIPT 600436 at [61].
Ms Chaudhary and the best interests of their daughter, and held that it was not satisfied that it would be unjust or unduly harsh for Mr Kumar to be deported.9
[18] The Tribunal recorded that its findings that Mr Kumar did not have exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for Mr Kumar to be deported meant it was unnecessary to consider the “public interest” limb in s 207(b) of the Act.10
Requirements for review and appeal
[19] Under s 249(6) of the Act, in determining whether to grant leave to bring review proceedings, the Court must have regard to:
(a)Whether the review proceedings would involve issues that could not be dealt with adequately in an appeal against the Tribunal’s decision; and
(b)If the review proceedings would involve issues that could not be dealt with adequately in an appeal, 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 its decision.
[20] Under s 245(3) of the Act, in determining whether to grant leave to appeal, the Court 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 review.
[21] As Mr Auld for the Minister submits, the Court of Appeal has held that the high threshold for a second appeal under the Act must also be guided by the general test for a second appeal, which requires a question capable of bona fide and serious argument involving an interest of sufficient importance to outweigh cost and delay.11 This test
9 Kumar v Minister of Immigration [2018] NZIPT 600436 at [69].
10 Kumar v Minister of Immigration [2018] NZIPT 600436 at [70].
11 Wu v Minister of Immigration [2016] NZCA 511, [2016] NZAR 1667 at [12]; Minister of Immigration v Jooste [2014] NZCA 23 at [5].
has also been applied to questions that are proposed for judicial review.12 I do not consider, however, that these decisions impose a requirement additional to the requirements of ss 245(3) and 249(6). It is axiomatic that for a question of law on appeal or an issue on review to be of sufficient importance to be submitted to the High Court for determination it must be capable of bona fide and serious argument.
[22]It follows that the Court must decide:
(a)Whether the issues on which Mr Kumar seeks to review the Tribunal’s decision can be dealt with adequately on appeal; and
(b)Whatever the answer to the first question, whether those issues and the questions of law which Mr Kumar seeks to appeal are capable of bona fide and serious argument and are by reason of their general or public importance or for any other reason, matters that ought to be submitted to the High Court for determination.
Can the issues proposed for review be dealt with adequately on appeal?
[23]In summary, the grounds of Mr Kumar’s application for leave to review are:
(a)The Tribunal did not consider the totality of the evidence;
(b)The Tribunal’s decision was inconsistent with an earlier decision;
(c)The Tribunal relied on matters that should not weigh heavily in its decision.
[24] If the issues raised by these grounds amount to errors of law, it follows that they can be dealt with adequately on appeal.
[25] Failure to consider an earlier relevant decision is clearly a question of law and can be dealt with adequately on appeal.
12 Allada v Immigration and Protection Tribunal [2014] NZHC 953, [2016] NZAR 880 at [36];
Kumar v Minister of Immigration [2016] NZHC 1593 at [36].
[26] The other two grounds are essentially questions of fact. As noted by Palmer J in AI (Somalia) v Immigration and Protection Tribunal,13 questions of fact are not questions of law, although the boundary can sometimes be blurred. As Palmer J went on to discuss, following the definition of that boundary by the Supreme Court in Bryson v Three Foot Six Ltd and Vodafone New Zealand Ltd v Telecom New Zealand Ltd,14 and adopting Lord Radcliffe’s famous phrase from Edwards v Bairstow, it has been accepted that a decision will suffer from an error of law if, on the facts, “the true and only reasonable conclusion contradicts the determination”.15
[27] Although Mr Kumar’s application and the submissions of his counsel do not state the proposition in these terms, the complaints that the Tribunal failed to consider the totality of the evidence and relied on matters that should not weigh heavily in its decision amount to assertions that the Tribunal’s decision was not supported by the evidence. To that extent, these grounds also amount to errors of law and can be dealt with adequately on appeal.
[28] However, as I discuss below, whether the grounds are considered as grounds for review or grounds for appeal, I am satisfied that they do not raise issues that for reasons of general or public importance or for any other reason ought to be submitted to the High Court for determination.
Do the grounds of appeal and the grounds review, raise issues of general or public importance?
[29]The grounds of Mr Kumar’s application for leave to appeal are:
(a)The Tribunal made an error of law in failing to consider one of its own decisions;
(b)The Tribunal failed to take into account all relevant considerations;
13 AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at [28].
14 Bryson v Three Foot Six Ltd [2005] NZSC 34, [205] 3 NZLR 721 at [24] – [28]; and Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [54] – [58].
15 New Zealand Transport Agency v Agricultural Centre Inc [2015] NZHC 1991 at [12] – [26]; AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at [29]; Edwards v Bairstow [1956] AC 14 (HL) at 36.
(c)The Tribunal failed to have regard to legal principles relevant to its decision under s 207 of the Act.
[30] It is apparent there is considerable overlap between these grounds and the grounds of review. The first two grounds effectively cover the same territory as the first two grounds of Mr Kumar’s application for leave to review and were also the principal grounds pursued in the submissions of Mr Kumar’s counsel. The third ground of appeal was not pursued in submissions.
Alleged failure to consider relevant Tribunal decision
[31] Mr Kumar’s principal submission is that the Tribunal failed to consider and to follow an earlier Tribunal decision in Singh v Minister of Immigration,16 which, Mr Kumar’s counsel submit, had material similarities with Mr Kumar’s situation. In that case, the Tribunal accepted that there had been exceptional circumstances of a humanitarian nature and that it would have been unjust or unduly harsh for the appellant in that case to be deported.
[32] The submissions of Mr Kumar’s counsel to the Tribunal (copies of which were provided to this Court) addressed the decision in Singh and, like the submissions made to this Court, focused on the Tribunal’s conclusions in Singh concerning the unjust and unduly harsh elements of the test in s 207 and the Tribunal’s findings concerning the public interest in maintaining the unity of the family. In this Court, Mr Singh and Mr Ayoub for Mr Kumar submit that it was unreasonable for the Tribunal in this case not to follow the decision in Singh.
[33] Mr Ayoub draws the Court’s attention to the finding in Singh that the exceptional circumstances of a humanitarian nature that made it unjust or unduly harsh to deport Mr Singh was the separation of Mr Singh from his wife and young child who were vulnerable and in need of Mr Singh’s support.17 He submits that Mr Kumar’s situation is similar. In that regard, Mr Ayoub points to the observations of the Supreme Court in Guo v Minister of Immigration that the question of whether or not deportation
16 Singh v Minister of Immigration [2016] NZIPT 600228.
17 Singh v Minister of Immigration [2016] NZIPT 600228 at [119].
would be unjust or unduly harsh involves a balancing of the reasons for the deportation against the consequences of deportation for the appellant and the immediate family members affected by the deportation.18
[34] Mr Auld for the Minister accepts that failure to have regard to a relevant decision of the Tribunal could be an issue of general and public importance if the decision was sufficiently on point and demonstrated inconsistency in decision-making. However, he points to significant differences between the factual circumstances in Singh and those in Mr Kumar’s case and says it was not an error or unreasonable for the Tribunal to decide a different case with different facts differently, and that there is no bona fide and serious argument that the Tribunal acted inconsistently.
[35] Singh also concerned sexual offending by an Indian migrant who had a wife and a young child. Mr Singh was charged with rape and various other offences. He was sentenced to six years and one month’s imprisonment on conviction of rape and a further eight months’ imprisonment for the use of a false passport. Mr Singh also had four convictions for offences relating to a vehicle collision. In these respects, Mr Singh’s offending was significantly more serious that Mr Kumar’s offending.
[36] The circumstances of Mr Singh’s wife and young child were the principal distinguishing factor in Singh. Mr Singh’s wife was a New Zealander who had never visited, let alone lived in, India and who had chronic health conditions, including a compromised immune system, and who suffered from depression and anxiety. These conditions compromised her ability to care adequately for the child.
[37] As in Mr Kumar’s case, the Tribunal was informed that if Mr Singh were deported, the wife and child would remain in New Zealand. The Tribunal found that the decision not to accompany Mr Singh to India if he were deported was not merely an expression of preference or a decision based on convenience. Apart from her husband’s family, the wife had no family links in India and did not speak her husband’s native language. In addition, she was unlikely to have access to funded medical care
18 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [9].
in India for her multiple health complaints and for which her doctor said she required a high level of support.19
[38] The Tribunal found that if Mr Singh were deported it would effectively bring an end to a marriage of eight years’ duration to which Mr Singh and his wife were committed, despite their various difficulties. It would also mean the permanent separation of Mr Singh and his son and which would not be in the best interests of the child. Referring to Ye, the Tribunal found those circumstances were well outside “the normal run of circumstances” and that Mr Singh met the high threshold of exceptional humanitarian circumstances. It also held that to deport Mr Singh would be unjust or unduly harsh given the needs of his wife and their young son who could not reasonably be expected to relocate to India and who were vulnerable and in need of Mr Singh’s support. The Tribunal also held that there was a public interest in maintaining the unity of Mr Singh’s family.20
[39] I agree with Mr Auld that the circumstances in Singh were very different from those in Mr Kumar’s case. While Mr Kumar asserts that his deportation would mean his separation from his vulnerable wife and child who need his support, that separation would be the consequence of a choice he and his wife made that she should remain in New Zealand. Unlike Singh, where the Tribunal found that Mr Singh’s wife and child could not reasonably be expected to relocate to India,21 the Tribunal found in the present case that Ms Chaudhary does have the option of accompanying Mr Kumar and that their daughter could also cope with the move, despite the adjustments that would entail.22 Accordingly, deportation of Mr Kumar would not inevitably mean the end of the marriage or the permanent separation of Mr Kumar and his daughter.
[40] Despite the submissions of Mr Kumar’s counsel that the Tribunal’s findings in Singh regarding unjustness and undue harshness are apposite to Mr Kumar’s circumstances, the two situations were quite different – particularly with regard to Ms Chaudhary’s health and her familiarity with and ability to live in India and the
19 Singh v Minister of Immigration [2016] NZIPT 600228 at [90] – [102].
20 Singh v Minister of Immigration [2016] NZIPT 600228 at [103], [114] and [119] – [120].
21 Singh v Minister of Immigration [2016] NZIPT 600228 at [114].
22 Kumar v Minister of Immigration [2018] NZIPT 600436 at [54] and [58].
consequences of deportation for the marriage of Mr Kumar and Ms Chaudhary. The Tribunal specifically went through a balancing of the reasons for Mr Kumar’s deportation (i.e. his offending) and his humanitarian circumstances, including the interests of his wife and child in accordance with the approach mandated by the Supreme Court in Guo.23 The fact the Tribunal reached a different conclusion from that reached in Singh was because of the facts of the case and not because of any failure to consider or follow Singh. The Tribunal did not consider the public interest aspect because it did not arise once the Tribunal had found that there were not exceptional circumstances of a humanitarian nature and that it would not be unjust or unduly harsh to deport Mr Kumar.
[41] For these reasons, and while it would have been in order for the Tribunal to refer to Singh in its decision, I do not consider it is seriously arguable that the Tribunal’s decision in this case was inconsistent with Singh and that the Tribunal should have followed Singh.
[42] Accordingly, I do not consider that this ground raises an issue capable of bona fide and serious argument. It follows that it is not an issue which, by reason of its general or public importance or for any other reason, ought to be submitted to the High Court for determination.
Failure to consider relevant evidence
[43] Mr Kumar’s counsel say that the Tribunal failed to consider the impact the New Zealand citizenship of Ms Kumar’s daughter would have on her ability to live in India if she moved there.
[44]In brief, their argument is:
(a)The daughter is a New Zealand citizen;
(b)The Citizenship Act 1977 does not provide for a New Zealand citizen under the aged of 18 to renounce his or her citizenship;
23 Kumar v Minister of Immigration [2018] NZIPT 600436 at [63] - [69] ]; Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248.
(c)India does not recognise dual citizenship;
(d)Accordingly, as a non-Indian citizen, until she is 18 the daughter will not be able to access health and education services available in India.
[45] The Tribunal did not directly address these matters in its decision although it did record Mr Kumar’s submission that if his family were to accompany him to India, his wife and New Zealand citizen daughter would have an inferior standard of living compared with New Zealand.24 I accept, however, that the specific question of the impact of the daughter’s New Zealand citizenship was put to the Tribunal. It appears, however, that no documentary or other evidence was adduced to substantiate the assertions of the negative consequences of the daughter’s New Zealand citizenship, despite the responsibility on Mr Kumar under s 226 of the Act to establish his claim and to ensure that all relevant information and evidence was before the Tribunal.
[46] Applying the decision of Kos J in Taafi v Minister of Immigration to the circumstances of this case, in order for Mr Kumar to succeed on this ground, he must show:25
(a)A seriously arguable case that the Tribunal should have considered the consequences in India of Mr Kumar’s daughter’s New Zealand citizenship in reaching its decision;
(b)That a failure to consider such consequences was, in combination with and in the context of the whole of the decision, so grave as to constitute an error of law; and
(c)That question of law, based on the alleged failure to consider such consequences, is one of general or public importance or, for some other reason ought to be considered on appeal.
24 Kumar v Minister of Immigration [2018] NZIPT 600436 at [40].
25 Taafi v Minister of Immigration [2013] NZAR 1037 at [19].
[47] In the absence of substantiating information as to the consequences of the daughter’s New Zealand citizenship in India, I do not consider it seriously arguable that the Tribunal should have considered these consequences in reaching its decision. To do so would have been to speculate about the scope and impact of the law of India. Moreover, as I said to Mr Kumar’s counsel at the hearing, there is room to doubt whether the propositions advanced with respect to the daughter’s right to Indian citizenship are accurate. While it is not for this Court to make findings about the law of India, under s 4 of India’s Citizenship Act 1955, there may be scope for Mr Kumar’s daughter, as a person born outside India to a citizen of India and who acquired New Zealand citizenship involuntarily, to be registered as an Indian citizen by descent provided she does not have a New Zealand passport.
[48] However, for present purposes it is sufficient to note that the Tribunal cannot base its decision on unproven assertions about the application of Indian law to a daughter of two Indian citizens who return to India, even if she is a New Zealand citizen. I am not persuaded, therefore, that the Tribunal’s failure to consider the consequences of the daughter’s New Zealand citizenship in India was, in combination with and in the context of the whole of the decision, so grave as to constitute an error of law. For these reasons, I do not accept that the alleged failure of the Tribunal to consider the impact of Mr Kumar’s daughter’s New Zealand citizenship on her living in India raises an issue that is capable of bona fide and serious argument or is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the High Court for determination.
[49] Mr Kumar also submits that the Tribunal erred in failing to consider the difference between the healthcare and education services that are available to Ms Kumar’s daughter in New Zealand and those that would be available to her in India, assuming she is able to access such services. In that regard, Mr Kumar’s counsel note that the Tribunal’s decision makes no reference to the comparative analysis of New Zealand and Indian statistics on health and wellbeing that Mr Kumar put before the Tribunal.
[50] The Tribunal did not refer in its decision to that analysis or to the general question of the difference in services available in New Zealand and India, other than
in the general terms noted at [45] above. However, while the Tribunal is required to give reasons for its decisions,26 and the strength and validity of those reasons will be reflected in its assessment of the evidence and submissions before it, the Tribunal is not obliged to record every piece of evidence and every submission that may be put before it.
[51] The fact there may be a disparity between the health and education services available in New Zealand and those available in India is neither surprising nor persuasive. Such disparities are inherent in the different circumstances that apply in New Zealand and in any other country. For such a disparity to be relevant to the decision of the Tribunal on an appeal under s 207 of the Act, it would have to reach the point where the disparity constituted an exceptional circumstance of a humanitarian nature that was, in the words of the Supreme Court in Ye, “well outside the normal run of circumstances”.27
[52] It would seem unlikely that a difference between the health and education services available in New Zealand and those available in another country would of itself amount to such an exceptional circumstance, particularly having regard to the important distinction between compassionate factors and the high threshold of exceptional circumstances of a humanitarian nature noted by Katz J in Jooste.28 There would be something additional and particular to the circumstances of an appellant to meet the high threshold in s 207, as was found to be the case in Singh where Mr Singh’s wife had multiple health conditions for which she required a high level of support. Even then, those conditions were only one of a number of factors to which the Tribunal had regard when deciding that the threshold was reached in Singh.
[53] There are no such particular circumstances in the present case. The psychologist’s report assessed the impact on Ms Chaudhary of Mr Kumar being deported and her remaining in New Zealand. It made no assessment of the impact on Ms Chaudhary of the family going to India. Accordingly, I do not accept that the Tribunal’s alleged failure to refer to Mr Kumar’s evidence and submissions regarding
26 Immigration Act 2009, Schedule 2, cl 17(3).
27 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].
28 Minister of Immigration v Jooste [2014] NZHC 2882, [2015] 2 NZLR 765 at [45].
the difference between the health and education services available in India and those available in New Zealand raises an issue capable of bona fide and serious argument or is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the High Court for determination.
Other challenges to Tribunal decision
[54] Mr Kumar submits that the Tribunal relied on conjecture and assumption when assessing whether there were exceptional circumstances of a humanitarian nature by assuming that Mr Kumar would be able to re-establish his life in India without too much difficulty and that the child’s maternal and fraternal grandparents would provide support and that the Tribunal failed to give adequate weight to the psychologist’s report. In his submissions in reply, Mr Ayuob also raises Article 3 of the United Nations Convention on the Rights of the Child and says the Tribunal should have given primacy to the interests of the child and found that Mr Kumar should not be deported because of the impacts on the child.
[55] The answer to the first of these complaints is inherent in the submission. Whether or not the Tribunal was correct in its assumptions about Mr Kumar’s ability to re-establish a life in India and about the support available from the grandparents, these are not matters that can be said to go to the high threshold of exceptional circumstances of a humanitarian nature. There would have to be a great deal more evidence about the particular difficulties that Mr Kumar might face in trying to re- establish a life in India and about what a lack of support from grandparents might mean before the Tribunal’s allegedly wrongful assumptions on those matters could be relevant to an appeal against a decision made under s 207 of the Act. Moreover, in the absence such information, it was not unreasonable for the Tribunal to assume that a man who has lived most of his life in India would be able to re-establish a life there without too much difficulty, or that both sets of grandparents would be willing to provide support to their granddaughter.
[56] As for the allegation regarding the psychologist’s report, the Tribunal’s decision cites extensively from the psychologist’s report and, as noted at [12] above, quotes the final sentence of the report. The fact that the Tribunal reached a decision
different from that advocated for by the psychologist in part reflects the different roles of the psychologist and the Tribunal.
[57] The psychologist’s report assessed the likely impact on Mr Kumar and the family if Mr Kumar were to be deported in a general sense and without reference to the test in s 207 of the Act. The Tribunal’s task is set by s 207 and was to decide whether there were exceptional circumstances of a humanitarian nature that would make it unjust unduly harsh if Mr Kumar were to be deported. Furthermore, while the Tribunal must evaluate and reach a determination on the evidence, including the psychologist’s report, it does not have to accept or to follow that report. As Giles J said in Butler v Removal Authority, expert evidence is an important part of the evidence, but it is only part of the evidence. The Tribunal is entitled to evaluate and assess that evidence in the context of the totality of the evidence and to reach its own objective and reasoned assessment of it.29
[58]As for the UN Convention on the Rights of the Child, Article 3(1) provides:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
[59] In its decision, the Tribunal specifically referred to Article 3 and to the decision in O’Brien v Minister of Immigration in which Simon France J observed that the case law makes it plain that the best interests of the child are a primary consideration but are neither a paramount nor the primary consideration but are to be given important and genuine assessment.30
[60] In O’Brien, Simon France J said that the first step in assessing the interests of the child is to carefully analyse what those interests are and what if any might be the consequences of their disappointment.31 That is precisely what the Tribunal did in paragraphs [56] – [58] of its decision. It then concluded, assessing the circumstances of the family on a cumulative basis, that Mr Kumar had not met the high threshold
29 Butler v Removal Review Authority [1998] NZAR 409 at 424 – 425.
30 O’Brien v Minister of Immigration [2012] NZHC 2599; [2012] NZAR 1033 at [32].
31 O’Brien v Minister of Immigration [2012] NZHC 2599; [2012] NZAR 1033 at [32].
required for exceptional circumstances of a humanitarian nature. There was no error in that process and no breach or inconsistency with Article 3 of the UN Convention on the Rights of the Child.
[61] For these reasons, I am satisfied that these other challenges to the Tribunal’s decision do not raise issues that are capable of bona fide and serious argument or which, by reason of their general or public importance or for any other reason, ought to be submitted to the High Court for determination.
Result
[62] Mr Kumar’s applications for leave to appeal and to review the Tribunal’s decision declining his appeal against liability for deportation by the Minister of Immigration are dismissed.
Costs
[63] The Minister is entitled to costs on a 2B basis. If costs cannot be agreed, the parties may file memoranda of no more than four pages, with the Minister to file his memorandum by 3 December 2018 and Mr Kumar to file his memorandum by 17 December 2018.
G J van Bohemen J
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