Kumar v Immigration and Protection Tribunal
[2015] NZHC 2500
•12 October 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-00211 [2015] NZHC 2500
UNDER Judicature Amendment Act 1972 and the
Immigration Act 2009
IN THE MATTER OF
an application for judicial review of a decision of the Immigration and Protection Tribunal
BETWEEN
VINAL KUMAR
Applicant
AND
IMMIGRATION AND PROTECTION TRIBUNAL
First Defendant
MINISTER OF IMMIGRATION Second Defendant
Hearing: 22 July 2015 Counsel:
M Clark for applicant
N Whittington and O Klaassen for second defendantJudgment:
12 October 2015
JUDGMENT OF KATZ J
This judgment was delivered by me on 12 October 2015 at 5:00pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Vallant Hooker and Partners, Auckland
Meredith Connell, Crown Solicitor, Auckland
KUMAR v IMMIGRATION AND PROTECTION TRIBUNAL [2015] NZHC 2500 [12 October 2015]
Introduction
[1] The applicant, Vinal Kumar, was deported to Fiji in January 2014, following a decision by the Immigration and Protection Tribunal (“Tribunal”) confirming his liability for deportation. He now applies to judicially review the Tribunal’s decision.
[2] When declining Mr Kumar’s appeal, the Tribunal made an order reducing the period of prohibition on his re-entry to New Zealand to three years.1 In the absence of such an order, Mr Kumar would have been permanently prohibited from re-entering New Zealand.2
[3] Mr Kumar says that the Tribunal made an error of law in that it wrongly assumed that he would be able to apply to Immigration New Zealand to return after three years, with any application able being processed in the “normal” way under the Act (including the necessity of obtaining a good character waiver). It was common ground before me, however, that any return by Mr Kumar prior to 2023 would require the exercise of the Minister’s discretion under the Act, by the granting of a
special direction under s 378.3 As a result, Mr Kumar submitted, the Tribunal
underestimated the difficulty he would face in returning to New Zealand. This, in turn, is said to have potentially led the Tribunal to err in its assessment of whether it would be unjust or unduly harsh to deport him.
[4] Mr Kumar required leave to bring these judicial review proceedings. Fogarty J granted leave on the following issue (only):4
[50] … [W]hether paragraph [85] of the [Tribunal’s] decision contains an
error of law, being the assumption that future [visa] applications can be
1 Pursuant to s 215(1) of the Immigration Act 2009 (“Act”).
2 Pursuant to s 179 of the Act.
3 Section 15(1)(b) provides that no visa or entry permission may be granted, and no visa waiver
may apply, to any person who, at any time in the preceding 10 years has been convicted of an offence for which the person has been sentenced to imprisonment for a term of 12 months or more. Section 15 is subject to s 17 of the Act which relevantly provides that a visa and entry permission may be granted to any person in accordance with a special direction.
4 Kumar v Immigration and Protection Tribunal [2014] NZHC 2670 at [50]. The relevant passage of Fogarty J’s decision also included the following words “and then on appeal by the Tribunal” after the reference to Immigration New Zealand. It was common ground before me that those words were neither express nor implied in the Tribunal’s decision and I accordingly disregard them.
considered and decided by Immigration New Zealand… against the counter- proposition that they can only be decided by the Minister.
[5] I will consider this issue below, after first outlining the relevant factual background and summarising the Tribunal’s decision. I note that some other matters were raised in written submissions, albeit not pursued with any vigour at the hearing. To the extent that such matters fall outside the scope of the leave that was granted to Mr Kumar I do not propose to address them.
Factual Background
[6] Mr Kumar is a Fijian citizen. He was born on 23 October 1987 and is currently aged 27. He arrived in New Zealand in 1996 with his parents and brother. The family held various temporary permits between 1996 and 2007. They were granted residence permits in May 2007.
[7] In June 2008 Mr Kumar was convicted of driving with excess breath alcohol (a reading of 586 mcgs per litre of breath). He was fined $500 and disqualified from driving for six months. Six months later, in November 2008, Mr Kumar was again charged with driving with excess breath alcohol (914 mcgs per litre of breath) and also with driving while disqualified. He failed to answer District Court bail on
25 June 2009 and was charged accordingly. Mr Kumar was convicted on all three charges on 14 July 2009, fined a total of $1000, and disqualified from driving for a further six months.
[8] Eleven months later, in August 2010, Mr Kumar was, for the third time, charged with driving with excess breath alcohol (778 mcgs per litre of breath). On
10 November 2010, he was convicted and sentenced to one year of supervision with conditions and was disqualified from driving indefinitely. Four days later Mr Kumar was charged with driving dangerously, driving while disqualified, and failing to stop. On 15 December 2010 he was convicted on those charges and sentenced to three and a half months’ imprisonment. He was disqualified from driving for a further eight months.
[9] On 22 April 2011, after he had been released from prison for the earlier offending, Mr Kumar was charged with his fourth excess breath alcohol offence (447 mcgs per litre of breath) and, again, driving while disqualified. He then failed to answer District Court bail three times in 2011 and 2012.
[10] On 6 September 2012, when finally apprehended and brought before the Court for sentencing, Mr Kumar was sentenced on the April 2011 driving charges, a second breach of community work charge, and the breaches of bail charges to a total of nine months’ imprisonment, with special release conditions. He was also disqualified from driving for a year and a day.
[11] Mr Kumar became liable for deportation at this stage, pursuant to s 161(1)b of the Immigration Act 2009 (“Act”), as he had been convicted of offences for which the court had the power to impose imprisonment for a term of two years or more, those offences being committed within five years of him first holding a residence
class visa.5
[12] Mr Kumar’s offending continued, with him twice breaching his prison release conditions, on 31 October 2012 and 7 November 2012 respectively. On
21 December 2012, Mr Kumar was interviewed about possibly being deported. Unfortunately, even with the prospect of deportation hanging over his head, Mr Kumar did not change his behaviour. On 24 March 2013, with the breach of prison release conditions charges still pending, Mr Kumar was charged for a fifth time with driving with excess breath alcohol (865mcgs per litre of breath). He was also charged with driving while disqualified and with giving a false identity to police. He was convicted on all five charges on 23 May 2013 and was sentenced to
13 months’ imprisonment, with indefinite disqualification from driving.
[13] On 23 August 2013 the Minister of Immigration signed a deportation liability notice for Mr Kumar. Mr Kumar filed an appeal with the Tribunal on humanitarian
grounds, under s 207(1) of the Act. The Tribunal dismissed that appeal on
5 The maximum penalty for a third or subsequent drink driving conviction is two years imprisonment or a fine of up to $6,000 under s 56(4) of the Land Transport Act 1998.
3 December 2013, upholding Mr Kumar’s deportation liability (“Decision”).
Mr Kumar was deported to Fiji on 16 January 2014.
The Tribunal’s decision
[14] Section 207(1) of the Act provides:
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.
[15] In assessing the s 207(1)(a) limb of the test, the Tribunal found that Mr Kumar met the requirement that there be exceptional circumstances of a humanitarian nature. The exceptional humanitarian circumstances were essentially that Mr Kumar (who was then aged 26) would be separated from his parents, who he was still dependent on for practical and financial support (although the Tribunal noted that he was in receipt of an unemployment benefit). Further, Mr Kumar had lived in New Zealand since the age of nine.
[16] The Tribunal next considered whether it would be unjust or unduly harsh to deport Mr Kumar. The Tribunal’s view was that Mr Kumar’s persistent offending endangered other road users and displayed entrenched contempt for the law. It also considered that it was not in Mr Kumar’s interests to continue his indolent lifestyle (given that he had only worked very briefly since leaving school a decade or so earlier). A return to Fiji would provide an opportunity for Mr Kumar to mature and become independent. Finally, the Tribunal took into account that the separation from his family need not necessarily be permanent. Taking all of these matters into account the Tribunal was not satisfied that deportation would be unjust or unduly harsh. As noted above, the Tribunal reduced the period of prohibition on entry to New Zealand to three years.
[17] Mr Kumar accordingly did not meet the first limb of the s 207(1) test (because his exceptional circumstances would not make it unjust or unduly harsh to deport him). For completeness, however, the Tribunal went on to also consider the second limb of the s 207(1) test. It weighed the need to protect the public against a recidivist drink-driver, against the need to preserve family unity, and found that it would be contrary to the public interest to allow Mr Kumar to remain in New Zealand. In other words, even if the Tribunal had concluded that Mr Kumar’s exceptional circumstances made it unjust or unduly harsh to deport him, he would have been deported in any event, because it was contrary to the public interest to allow him to remain.
Did the Tribunal make an error of law?
[18] The Tribunal, in its assessment of whether it was unjust or unduly harsh to deport Mr Kumar, said that:6
[85] The Tribunal also takes into account that separation from his family need not necessarily be permanent. A reduction of the period of the ban, as the Tribunal intends to order, will give the appellant the chance to apply again to return to this country. As well as meeting any other requirements, he would need, of course, to satisfy Immigration New Zealand that he is deserving of a waiver of the ‘good character’ requirement, which would no doubt include providing convincing evidence of his freedom from alcohol abuse. Any such application would be a matter for Immigration New Zealand and the Tribunal holds out no promises of success. Nevertheless, there would be compassionate reasons for permitting an alcohol-free, non-offending and mature appellant to re-unite with his only immediate family and he will at least have that goal to work towards.
[86] Weighing the offending (long-term and persistent, with significant risk of harm to others and repeated disregard for the law and the Court process) against the compassionate circumstances (notably, the separation of a young man who has been here for two thirds of his life from his immediate family), tempered by the prospect that if he addresses his alcohol abuse and offending he may be able to return here in due course (with no guarantee), the Tribunal finds that it is not unjust or unduly harsh for the appellant to be deported.
(Emphasis added)
[19] As noted above, the sole issue on which Fogarty J granted leave to bring these judicial review proceedings is whether the Tribunal erred in law in assuming
that future applications could be considered and decided by Immigration
6 Kumar v Minister of Immigration [2013] NZIPT 600098 at [85].
New Zealand, against the counter-proposition that they could only be decided by the Minister. At the risk of over-simplification, the alleged error of law is that the two highlighted references in the above passage to “Immigration New Zealand” were incorrect, and should have been references to the Minister.
[20] Viewed in the broader context of the decision as a whole, the key point being made by the Tribunal was that if it imposed a finite prohibition period (rather than the default permanent prohibition period under the Act) then Mr Kumar’s separation from his family need not be permanent, and Mr Kumar would have at least a chance to return to New Zealand. The Tribunal was clearly cognisant, however, of the fact that the pathway to return would be far from straightforward. The following factors were identified by the Tribunal as some of the key considerations that would likely be taken into account if and when Mr Kumar sought to return:
(a) Good character (or lack thereof):
(i)Mr Kumar would “no doubt” need to provide “convincing evidence of his freedom from alcohol abuse”.
(ii) Mr Kumar would need to not offend further during his time in
Fiji.
(b)Maturity: the Tribunal considered that it was not in Mr Kumar’s interests to continue his indolent lifestyle and dependence on his parents, noting that a return to Fiji would provide an opportunity for Mr Kumar to mature and become independent.
(c) The nature of the offending: long-term and persistent, with significant risk of harm to others and repeated disregard for the law and the Court process.
(d)Compassionate circumstances: notably, the separation of a young man who has lived in New Zealand for two thirds of his life from his immediate family.
[21] The Tribunal also observed that Mr Kumar would also need to meet “any other requirements” for a visa. (I note that the current prospects of Mr Kumar meeting general residency visa requirements for obtaining family, business, skilled migrant, or residence from work categories appear to be very limited). Although the Tribunal was clearly of the view that there was at least some possibility of a future return to New Zealand if Mr Kumar could address his alcohol issues and stop offending, it also stated that it “holds out no promises of success” and that there was “no guarantee” that Mr Kumar would be able to return in due course.
[22] Counsel for Mr Kumar submitted that because the Tribunal wrongly believed that the relevant decision would be made by Immigration New Zealand rather than the Minister, it had underestimated the difficulties Mr Kumar will face in any future visa application. In turn, this may have impacted on the Tribunal’s assessment of whether it was unjust or unduly harsh to deport Mr Kumar.
[23] The Minister submitted that, in the overall context of the Tribunal’s decision, it was not reasonable to interpret the Tribunal’s point as being that the pathway to return was one that would be determined by Immigration New Zealand as opposed to the Minister. Nowhere in the decision does the Tribunal mention that the decision would be made by officials. Counsel submitted, that in the context of the Act, where depending on the circumstances, many powers are routinely exercised both by officials (either as warranted immigration officers or on behalf of the Minister by delegation) and the Minister, such a distinction would be odd.
[24] Further, as a matter of public law, there is no distinction between decisions made by a Minister as opposed to those made by an official. Both the Minister of Immigration and Immigration New Zealand (as part of the Ministry of Business, Innovation and Employment) form part of the Crown aggregate.7 Central government departments are under the control of ministers responsible to Parliament, and public servants in the departments exercise powers in the name of and on behalf of ministers. Every decision made by Immigration New Zealand is one that the
Minister is ultimately responsible for.8 There is therefore no material difference
7 Town Investments Ltd v Department of the Environment [1978] AC 359 (HL).
between an immigration pathway that relies on an exercise of discretion by an official of Immigration New Zealand as opposed to the Minister.
[25] The Minister further submitted that, in this case, while the particular immigration power that would need to be exercised to allow Mr Kumar to return to New Zealand is one that is reposed in the Minister (the issuing of a special direction), in practice that decision could be one exercised by an official, as the Minister’s power to grant a special direction has been delegated in many common
circumstances.9
[26] In my view the Tribunal did err in identifying “Immigration New Zealand” as the relevant decision maker, rather than the Minister, at [85] of its decision. The fact that the Tribunal assumed that the relevant decision would be made by officials rather than the Minister is evidenced by the reference to the necessity for a character waiver. Such a waiver would not be necessary in the event of a Ministerial special direction, albeit it seems likely that both the Minister and officials would take into account similar character issues in making any discretionary decision. The key issue, therefore, is whether the error was material, when viewed in the context of the Tribunal’s decision as a whole. In particular, if the Tribunal had turned its mind to the fact that the relevant decision maker was the Minister, rather than departmental officials, might that have impacted on its decision to deport Mr Kumar? In my view the Tribunal’s error was not material, for the following reasons.
[27] First, the Tribunal accurately summarised the key factors that will likely be taken into account if and when Mr Kumar seeks to return to New Zealand, as set out at [20] above. Those factors are likely to be seen as relevant regardless of whether the decision maker is the Minister or departmental officials. The Tribunal did not proceed on the assumption that Mr Kumar would have any specific “right” to return. Rather, it correctly identified that reducing the period of prohibition would provide him with at least a “chance” to return. The Tribunal recognised, however, that any pathway to return would be discretionary and would be dependent on Mr Kumar
significantly changing his behaviour and lifestyle. Humanitarian factors, however,
9 These are detailed in the Immigration New Zealand Operational Manual at [A15].
would weigh in his favour if he was able to do so. The fundamental assessment that will need to be undertaken was correctly identified by the Tribunal and is unlikely to change significantly depending on the identity of the decision-maker.
[28] A further relevant consideration as to the materiality of any error (and whether any relief should be granted) is that the Tribunal’s error relates solely to the first limb of the two stage test under s 207(1) of the Act. That limb involves considering whether there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for an appellant to be deported. The Tribunal found that there were exceptional circumstances, but they did not make it unjust or unduly harsh to deport Mr Kumar.
[29] The Tribunal went on to also consider that second limb of the s 207(1) test. That limb requires the Tribunal to assess whether it is contrary to the public interest to allow an applicant to remain in New Zealand. The Tribunal’s view was that Mr Kumar’s persistent offending displayed entrenched contempt for the law and an endangerment of other road users. Weighing the need to protect the public against a recidivist drink-driver against the need to preserve family unity, the Tribunal found that it would be contrary to the public interest to allow Mr Kumar to remain in New Zealand.
[30] Accordingly, even if the Tribunal had taken the view that deportation was unjust or unduly harsh, because the pathway to return (requiring a Ministerial special direction) was too challenging, Mr Kumar would have been deported in any event. That is because it was the Tribunal’s view that it was contrary to the public interest to allow Mr Kumar to remain in New Zealand, given the nature of his offending and the risks he posed to the New Zealand public due to his recidivist drink-driving.
Conclusion
[31] For the reasons I have outlined, I have not been persuaded that the Tribunal made a material error of law that potentially impacted on its final decision to confirm Mr Kumar’s liability for deportation. The application for judicial review is accordingly dismissed.
[32] Leave is reserved to file memoranda on costs. Any memorandum on behalf of the Minister is to be filed by 23 October 2015, with any response on behalf of
Mr Kumar to be filed by 5 November 2015.
Katz J
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