Kumar v Minister of Immigration
[2013] NZHC 546
•20 March 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-4306 [2013] NZHC 546
BETWEEN KAVIT KRISHNEEL KUMAR Plaintiff
ANDTHE MINISTER OF IMMIGRATION First Respondent
ANDTHE IMMIGRATION AND PROTECTION TRIBUNAL Second Respondent
Hearing: 13 December 2012
Counsel: DJ Ryken and G Wong for Plaintiff
D Perkins and RM Hogg for First Respondent
No appearance for Second Respondent
Judgment: 20 March 2013
JUDGMENT OF RODNEY HANSEN J
This judgment was delivered by me on 20 March 2013 at 11.00 a.m., pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Ryken and Associates, P O Box 501, Auckland 1140 (Email: [email protected] )
Crown Law, P O Box 2858, Wellington 6140. (Email: [email protected] )
KAVIT KRISHNEEL KUMAR V THE MINISTER OF IMMIGRATION HC AK CIV-2012-404-4306 [20 March
2013]
Introduction
[1] The plaintiff (Mr Kumar) applies to review a decision of the Immigration and Protection Tribunal (the Tribunal) confirming a deportation order made by the Minister of Immigration (the Minister).
[2] Mr Kumar came to New Zealand from Fiji in December 2004. He was granted a residence permit. The deportation order was made after he was convicted of serious criminal offending and sentenced to nine months imprisonment.
[3] Mr Kumar complains that the Tribunal denied him a fair hearing of his appeal against the Minister’s order when it declined to adjourn the hearing of his appeal. The Minister’s position is that the Tribunal was entitled to refuse Mr Kumar’s request for an adjournment and that the hearing of his appeal was substantively fair.
Relevant statutory provisions
[4] Mr Kumar’s deportation order was made under the Immigration Act 1987 (the 1987 Act)1. Section 91 of the 1987 Act permitted the Minister of Immigration to order deportation of the holder of a residence permit who committed criminal offences within specified periods after being granted a residence permit. For present purposes, the relevant provision is s 91(1) which gave the Minister power to deport a permitholder who had been convicted of two offences committed within five years of
being granted a resident permit, each of the offences carrying a maximum sentence of imprisonment of 12 months or more.
[5] Mr Kumar appealed against the deportation order under s 104 of the 1987
Act. Section 105 provides that the Tribunal may quash the deportation order:
... if it is satisfied that it would be unjust or unduly harsh to deport the appellant from New Zealand, and that it would not be contrary to the public interest to allow the appellant to remain in New Zealand.
1 The Immigration Act 1987 has since been superseded by the Immigration Act 2009.
[6] In deciding whether or not it would be unjust or unduly harsh to deport an appellant from New Zealand, the Tribunal is required by s 105(2) to have regard to the following matters:
(a) The appellant’s age:
(b) The length of the period duration which the appellant has been in
New Zealand lawfully:
(c) The appellant’s personal and domestic circumstances:
(d) The appellant’s work record:
(e) The nature of the offence or offences of which the appellant has been convicted and from which the liability for deportation arose:
(f) The nature of any other offences of which the appellant has been convicted:
(g) The interests of the appellant’s family:
(h) Such other matters as the Tribunal considers relevant.
Tribunal’s decision
Background
[7] Mr Kumar is now aged 23. He arrived in New Zealand in 2004 at the age of
15 and was granted residence on arrival. He joined his father and stepmother who have lived in New Zealand since 2001 and a sister who had come to New Zealand four months before him.
[8] Mr Kumar attended school for a short time and left without any formal qualifications. He was employed by a supermarket for approximately a year but it appears has worked only intermittently since. He has a daughter, born in April 2009. He was in a relationship with the child’s mother for two years. She has custody of the child.
[9] In September 2009, Mr Kumar was convicted of assaulting his then partner (when she was pregnant), contravening a protection order, and a third or subsequent offence of driving while disqualified. He was sentenced to nine months
imprisonment and the deportation order was made against him. Mr Kumar’s previous offending included three convictions for driving in excess of the breath/blood alcohol limit and two for male assaults female.
Procedural
[10] In February 2010, soon after his release from prison, Mr Kumar filed the appeal to the Tribunal. The appeal was supported by affidavits from him and his aunt and full submissions filed by his then counsel, Mr Evgeny Orlov.
[11] The appeal was given an appeal date for 7 November 2011. Notice was given to Mr Orlov who advised the Tribunal that because he was no longer contracted to the Legal Services Agency, he could no longer act for Mr Kumar. He advised the Tribunal that he had been unable to contact Mr Kumar to forward notice of the hearing or to obtain instructions.
[12] The Tribunal sent further notices of the hearing to Mr Kumar at an address he had provided for bail purposes. Mr Kumar said he had been obliged to leave this address and did not receive the notices. The hearing was adjourned.
[13] On 13 November 2011, Mr Kumar was arrested on further charges of assault, drink-driving and driving whilst disqualified. While in prison he was given notice of a further hearing of his appeal to commence on 13 December 2011. He immediately wrote requesting an adjournment because, he wrote, “Mr Orlov is not currently available to assist me ...”. He also said that, in view of his remand in custody, he would have difficulty preparing for a hearing. The Tribunal responded by rescheduling the hearing for 21 and 22 December 2011.
[14] Mr Kumar wrote to the Tribunal on 20 December, the day before the hearing, requesting a further adjournment. He said he had been trying to arrange legal representation and was to see a lawyer that day. His request was refused. The Tribunal advised Mr Kumar that he had been given sufficient time to seek legal advice. In his response, sent by email at 8:04 pm that day, Mr Kumar said he did not
have legal representation and that, due to the Christmas period, his family and support people would not be able to take the time off work to support him.
[15] The hearing duly proceeded on 21 December. Mr Kumar represented himself. He gave evidence under oath but did not call any further witnesses. At the conclusion of the hearing the Tribunal made orders requiring Mr Kumar to advise of the outcome of pending hearings in the District Court and gave him leave to make written submissions and provide further evidence, including letters of support from family and friends and a psychologist’s report in connection with his relationship with his daughter. Mr Kumar filed five letters of support.
Decision
[16] The Tribunal gave detailed consideration2 to the question of whether it would be unjust or unduly harsh to deport Mr Kumar. After reviewing his history of offending, it examined the interests of Mr Kumar’s family comprising his partner, his father and stepmother, his sister, stepbrother and his daughter. The Tribunal accepted that they would remain in New Zealand if he is deported.3 It questioned whether Mr Kumar was as close to family members as he claimed4 although it ultimately accepted that he maintains contact with them and that his deportation would cause distress to them and him.5 The Tribunal acknowledged also that the enforced breakup of his new relationship would cause distress.6
[17] The Tribunal identified the most significant issue in this context as being Mr Kumar’s separation from his young daughter.7 It said that would cause him anguish and distress but, as she is very young, has always lived with her mother and has had only intermittent contact with her father, the consequences for her would be
somewhat less.8
2 At [30] – [93] of its decision.
3 At [64].
4 At [65] – [67].
5 At [68].
6 At [70].
7 At [83].
8 At [84].
[18] The Tribunal concluded that the harsh consequences for Mr Kumar and family members would be an inevitable consequence of deportation but did not qualify as unjust or unduly harsh.9
[19] While the Tribunal’s finding on this issue was determinative of the appeal, the Tribunal nevertheless addressed the question of whether it would not be contrary to the public interest to allow Mr Kumar to remain in New Zealand. After reviewing his history of offending, the Tribunal said there was nothing which would cause it to deviate from an assessment made in September 2009 by a probation officer that Mr Kumar is at high risk of reoffending.10 It accepted that New Zealand’s international human rights obligations required it to have regard to the public interest in family units generally. However, it concluded that the risk of Mr Kumar reoffending is such that the public interest in family unity must give way.11
Discretion to adjourn
[20] The Tribunal had express power to adjourn the hearing under cl 8(2) of the Second Schedule to the 1987 Act which governed the proceedings of the Tribunal for the purpose of the hearing.12 Clause 8(2) provided:
(2) Any sitting of the Tribunal may be adjourned from time to time and from place to place by the Tribunal or the presiding member.
[21] The exercise of the discretion to grant an adjournment requires a court or tribunal to conduct a balancing exercise, with the ultimate issue being the need to do justice as between the parties.13 An appellate court will be slow to interfere with the
exercise of a discretion to refuse an adjournment.14 Procedural orders frequently
involve considerations upon which minds can differ and require the evaluation of multiple considerations to which differing weight may be readily attached.15 That
said, if the refusal of an adjournment has led to the applicant’s fair trial rights being
9 At [91] – [92].
10 At [103].
11 At [105].
12 Section 103(6).
13 West v Martin [2001] NZAR 49 (CA) at [16].
14 Sali v SPC Ltd (1993) 67 ALJR 841 (HCA) at 843 and 846.
15 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 (HCA) at 163–164.
irretrievably compromised, a decision to refuse an adjournment may be set aside on appeal.16
Was the hearing fair?
[22] Mr Kumar’s position is that in refusing to adjourn the hearing to enable him to obtain legal representation, the Tribunal denied him the right to a fair hearing. His case is that he was given insufficient time to instruct counsel and the absence of legal representation seriously disadvantaged him in presenting his case.
The availability of representation
[23] On Mr Kumar’s account (contained in an affidavit sworn in support of the application for review), the first he knew that the Tribunal had scheduled a hearing of the appeal was when he received notice of the 7 December 2011 hearing while in prison on remand. Because of the difficulties of instructing a lawyer while in custody, he took no steps to identify a replacement for Mr Orlov until he saw the lawyer who represented him on his criminal charges after he was released on bail on
5 or 6 December 2011. He claims not to have seen his lawyer and obtained a recommendation until about 13 December. He found the office of the recommended lawyer closed when he visited that day and a notice “closed for Christmas” when he returned on 20 December, the day before the hearing was scheduled to commence.
[24] A lawyer with a specialist practice in immigration law, Mr Simon Laurent, also swore an affidavit in support of the application for review. He doubted that a specialist immigration lawyer would have been available to assist Mr Kumar if instructed in late November or December 2011 and, if available, whether the lawyer would have had time to prepare for the hearing.
[25] Even on Mr Kumar’s account of events, his failure to arrange legal representation was, in my view, much more to do with want of endeavour than lack of time. He acknowledged receiving advice from the Legal Aid authority that
Mr Orlov could no longer act. He took no steps to arrange substitute representation
16 Bevan Smith v Reed Publishing (NZ) Ltd (2006) 18 PRNZ 310 (CA) at [27], [32] and [37].
during a period of at least a month before he went to prison. The notices he received from the Tribunal while in prison emphasised the importance of his being ready to proceed, one letter pointing out that he had been liable to deportation since
26 January 2010. Despite this, he did not make his first enquiry about substitute counsel until a week before the hearing. His approach could only be described as leisurely.
[26] Had he acted with reasonable diligence, I have little doubt Mr Kumar could have instructed counsel in time to prepare for the hearing. Much of the work had been done. Mr Orlov had filed supporting affidavits and written submissions. It would not have taken a competent lawyer long to get up to speed.
Right to legal representation
[27] It is not to be assumed, in any event, that Mr Kumar had an automatic right to representation. The question of whether natural justice17 requires representation depends on the importance of the issues at stake and the nature and potential complexity of the hearing. Procedural difficulties, specialist evidence and questions of law may give rise to a need for representation by legal counsel.18
[28] While the implications for an appellant of a hearing before the Tribunal are obviously important, the enquiry is essentially factual, inquisitorial in nature and unlikely to raise difficult or complex procedural or legal issues. Legal representation may advantage an appellant but it is by no means essential to a fair hearing.
[29] The 1987 Act emphasises the informality of the proceeding. The procedure of the Tribunal is “as the Tribunal thinks fit”.19 Proceedings before the Tribunal shall not be held bad for want of form.20 For the purposes of an appeal under s 104 the Tribunal may make such enquiries and obtain such reports as it considers necessary
and shall not be bound by any rules of evidence.21 The Third Schedule to the 1987
17 And s 27 of the New Zealand Bill of Rights Act 1990.
18 See in the context of prison disciplinary proceedings Drew v Attorney-General [2002] 1 NZLR
58.
19 Clause 10(1) Second Schedule.
20 Clause 10(3) Second Schedule.
21 Clause 11 Second Schedule.
Act lays down procedural provisions which make it clear that there is no expectation that an appellant will be represented by legal counsel. Clause 5(3) provides:
At the hearing the appellant, and the Minister, may call evidence and shall be given an opportunity to be heard either in person or by a person authorised by the appellant or the Minister in that behalf, whether or not that person is of counsel or a solicitor.
[30] The applicable Practice Note issued by the Tribunal reflects the legislative provisions. 22 It provides that appellants may represent themselves or be represented by a lawyer or other person authorised by the appellant.23 The Tribunal hearings are stipulated to be procedurally informal. Appellants, witnesses and representatives may remain seated during the taking of evidence and while addressing the
Tribunal.24 Hearings are conducted in an investigative or inquisitorial manner.25
The conduct of the hearing
[31] It is clear from the record that the Tribunal went to considerable lengths before and during the hearing to ensure that Mr Kumar was given every opportunity to present his case in the most favourable light and to ensure that all relevant information was before the Tribunal. Under headings “What you need to know” and “What you need to do” the letter giving notice of the hearing explained in simple terms what an appellant could do or was expected to do for the purpose of the hearing. At the commencement of the hearing the Chair of the Tribunal carefully explained the way in which the hearing would proceed. He made sure that Mr Kumar had all the relevant documents available to him. He identified the issues that would be central to the Tribunal’s enquiry. He was at pains to assure Mr Kumar that if at any stage he was confused or needed assistance, he should say so.
[32] Mr Kumar gave evidence. He was asked why members of his family and his partner were not present. He said an aunt who had sworn an affidavit when Mr Orlov was acting was “probably at work”. He said his father was similarly
unavailable because of work commitments. His sister had “stuff to do”. He had not
22 Practice Note 1/2008.
23 Clause [3.1].
24 Clause [14.1].
25 Clause [18.1]
asked his partner to be present. He was asked whether anyone had offered to write letters of support. His response was:
Letters support. OK. Firstly, I don’t know much about this. I haven’t
studied law or anything. I am totally unaware of how this system goes.
[33] At the conclusion of Mr Kumar’s evidence, he was asked if he wanted an opportunity to provide any further information. A drug and alcohol course he had attended was mentioned. He was advised that he could provide letters of support. As further criminal charges against him were pending, he was asked to provide updated information about forthcoming hearings. He had referred in evidence to employment prospects and was given an opportunity of tendering a letter from his prospective employer.
[34] The Tribunal issued a minute on 21 December giving Mr Kumar until
27 January 2012 to provide confirmation of the outcome of hearings before the
District Court on 16 and 24 January 2012 and, if he chose:
1 Any written submissions he wishes to make in respect of his appeal;
2 Letters of support from friends or family members;
3Certificates and reports relating to the CADs course he completed in early 2011;
4The police summary of facts for any charges to which he has either pleaded guilty or of which he is convicted after his defended hearing in January 2012;
5 Written confirmation of the proposed apprenticeship with Redwood
Auto electricians; and
6 A psychologist’s report in connection with Mr Kumar’s relationship
with his daughter.
The Minister was given until 3 February to file submissions in response.
[35] Mr Kumar responded by filing five letters of support. Significantly, having regard to his claim that he had been unable to do anything to prepare for the hearing, four of the letters bore dates of between 21 and 24 November 2011. The other was undated. He did not provide any further information to support his case.
Prejudice
[36] Mr Ryken was hard-pressed to identify prejudice arising from the Tribunal’s refusal to adjourn the hearing. He pointed out that it appeared from answers given by Mr Kumar in evidence that he may not have appreciated that deportation would mean that he could not return to New Zealand.26 Mr Ryken suggested this could have led Mr Kumar to understate the importance of the case to family and other potential witnesses and affected his whole approach to the appeal.
[37] I see this submission as highly conjectural and unlikely. The appeal was
Mr Kumar’s last chance. He already had every incentive to do the best he could.
[38] Mr Ryken argued that Mr Kumar was disadvantaged by not having witnesses present, something which he said would not have occurred if Mr Kumar had been represented. He urged me to accept that the Tribunal might have been moved to a different outcome by the emotional impact of family members present in person – what he referred to as “the tear in the eye” and “the quiver of the bottom lip”. He also contended that legal counsel would or might have obtained a child psychologist’s report which could have made a difference on the crucial issue of the impact of separation.
[39] In my view, neither the presence of witnesses (assuming they would have set aside their commitments to come) nor of a child psychologist’s report would have assisted Mr Kumar. As Mr Perkins submitted, there is nothing to suggest that the Tribunal placed less weight on the letters because the witnesses did not also give viva voce evidence. The Tribunal took at face value Mr Kumar’s claim that he maintained contact with family members and that his deportation would cause him and them distress.
[40] There is no reason to think that a psychologist’s report would have helped
Mr Kumar’s case. The Tribunal proceeded on the basis that it is generally in a
child’s best interests to grow up knowing, and having contact with, both of its
26 Immigration Act 1978, s 7(1)(d.
parents.27 It accepted that it would be in Mr Kumar’s daughter’s best interests if he were to remain in New Zealand, where she can maintain close contact with him as she grows up.28 As Mr Ryken acknowledged, this was a generous assumption on the Tribunal’s part, given Mr Kumar’s own evidence that he had little contact with his daughter. To be fair, a protection order obtained by the child’s mother had posed a major obstacle to regular contact, though Mr Kumar only had himself to blame for that.
[41] Mr Kumar needed to make out a compelling case to stay in New Zealand on compassionate grounds in order to outweigh the seriousness of his offending. He was given every opportunity to do so. He fell well short of showing either that it would be unjust or unduly harsh for him to be deported or that it would not be contrary to the public interest to allow him to remain in New Zealand.
[42] All of the indications are that he would have fared no better if assisted by counsel. Even if representation had improved the presentation of Mr Kumar’s case, it would not have changed the essential facts which told emphatically against a successful outcome. There is simply no room for a finding that the hearing was unfair. The Tribunal’s refusal to adjourn the case was fully justified and unimpeachable.
Result
[43] The application to review the Tribunal’s decision is refused.
27 At [73].
28 At [74].
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