Lepcha v Immigration and Protection Tribunal
[2013] NZHC 2501
•25 September 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2013-404-002113
[2013] NZHC 2501
UNDER the Judicature Amendment Act 1972 IN THE MATTER
of the Immigration Act 2009
BETWEEN
CHHEOGYAL JAH OM SANDYANG LEPCHA
Applicant
AND
IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
THE MINISTER OF IMMIGRATION
Second Respondent
| Hearing: | 19 September 2013 |
Appearances: | P Wicks, R P Chandra for Applicant N Walker for Respondents |
Judgment: | 25 September 2013 |
(RESERVED) JUDGMENT OF ANDREWS J
This judgment is delivered by me on 25 September 2013 at 2:30pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors/Counsel:
P F Wicks, Barrister, Auckland (Applicant)Cook Morris Quinn, Auckland - R P Chandra (Applicant) Meredith Connell, Auckland (Second Respondent)
LEPCHA v IMMIGRATION AND PROTECTION TRIBUNAL & ANOR [2013] NZHC 2501 [25 September 2013]
Introduction
[1] The issue raised in this application for judicial review is whether there has been a breach of natural justice in that, in considering Mr Lepcha’s appeal against a deportation liability notice (“the deportation notice”), the Immigration and Protection Tribunal (“the Tribunal”) did not consider material posted to the Tribunal, but not received by it.
Background
[2] Mr Lepcha, who is an Indian national, arrived in New Zealand in January 2008, originally on a student visa, then (as from 11 February 2009) on a graduate work visa. He became a licensed immigration adviser. Mr Lepcha’s wife is also an Indian national. She came to New Zealand in June 2009. The couple have a son who was born in New Zealand in March 2010.
[3] On 7 March 2011, Mr Lepcha appeared before Judge B A Gibson in the District Court at Auckland, having pleaded guilty to, and been convicted on, a charge laid under the Immigration Act 2009, of submitting an application form where the contents were not true and correct. He was sentenced to 300 hours community work and ordered to pay Court costs. Although copies of the relevant Informations and summary of facts were not in evidence, it was common ground that Mr Lepcha was initially charged with two offences, and a charge of providing false and misleading information was withdrawn.
[4] In two decisions issued on 22 and 23 March 2011, respectively, the Immigration Advisers Authority (“the IAA”) imposed sanctions against Mr Lepcha in respect of complaints made against him, which had previously been upheld. Mr Lepcha’s licence to practise as an immigration adviser was cancelled, and he was prohibited from obtaining a licence for two years.
[5] In two decisions, both dated 7 March 2012, the IAA censured Mr Lepcha in respect of two further complaints. In respect of all four complaints, Mr Lepcha was also ordered to pay compensation to the complainants, and to pay penalties.
[6] On 4 July 2012, Mr Lepcha received the deportation notice from Immigration New Zealand, giving him notice that he was liable for deportation. The notice set out the grounds for deportation as follows:
Grounds for deportation liability
The grounds for this are that: you are the holder of a temporary entry class visa; and I have determined that there is sufficient reason to deport you because on 7 March 2011 you were convicted and sentenced for Other Breaches Immigration Act 1987, namely breaches pursuant to section 142(2) of that Act. You were sentenced to 300 hours of community work and
$132.89 Court costs. On 22 March 2011, your licence to work as an immigration adviser was cancelled and you were required to pay a penalty of
$3,000 by the Immigration Advisers Authority (“IAA”) for supplying false and misleading information to [Immigration New Zealand] in an application for a Student Permit. On 20 June 2011, the IAA upheld a further complaint against you for breaches of section 44(2) of the Immigration Advisors Licensing Act 2007, namely matters including dishonest misrepresentation. You are therefore liable for deportation under section 157 of the Immigration Act 2009.
[7] The deportation notice advised Mr Lepcha that he could appeal to the Tribunal on humanitarian grounds against his liability for deportation. Mr Lepcha submitted an appeal on 31 July 2012.
[8] Pursuant to s 222(1) of the Immigration Act, the Tribunal “must determine an appeal or matter with all reasonable speed”. Pursuant to s 222(4), the Tribunal may regulate its procedures as it sees fit, subject to the Immigration Act and any regulations made under the Act.
[9] Regulation 4 of the Immigration and Protection Tribunal Regulations 2010, provides that a notice of appeal to the Tribunal must be in the approved form, completed in English, signed by the appellant, accompanied by the prescribed fee (if any) and lodged with the Tribunal in accordance with the applicable practice note. The Tribunal issued a practice note relating to deportation appeals, on 10 May 20121 (“the practice note”). Clause 12 of the practice note provides:
1 Immigration and Protection Tribunal Practice Note 1/2012 (Deportation), 10 May 2012.
12.Time for filing evidence and submissions for appeals by persons unlawful or temporary entry class visa holders
[12.1]A person appealing liability for deportation who is unlawfully in New Zealand or a temporary entry class visa holder must provide to the Tribunal all evidence, submissions and information in support of the appeal within the time period specified in the Act for filing an appeal.
[10] Mr Lepcha’s appeal was filed by an agent on his behalf and comprised the prescribed form (“Humanitarian Appeal against Deportation”), together with a covering note from the agent, a statement by Mr Lepcha, a statement by Mr Lepcha’s wife, copies of the four IAA decisions, and a number of references and other supporting documents.
[11] When Mr Lepcha was charged with offences under the Immigration Act, his employer, a Mr Han, was also charged. Mr Han was charged on the basis of evidence provided by two complainants, Ms Luo and Mr Nitin Kumar. It was common ground that Mr Kumar was the complainant in respect of the charge on which Mr Lepcha was convicted. While Mr Lepcha had pleaded guilty to the remaining charge against him, Mr Han entered not guilty pleas to both charges. Mr Lepcha gave evidence on behalf of the prosecution, against Mr Han. At the close of the Crown case, Mr Han applied for a discharge on count 1 (the charge concerning Mr Kumar) and a discharge or stay of proceedings on count 2 (the charge concerning Ms Luo).
[12] In respect of Count 1, Judge M E Perkins accepted that there was no evidence on which the Court could find that Mr Han had had any part in submitting an untrue or incorrect application form to Immigration New Zealand, and that the evidence was insufficient to convict Mr Han on count 1 and discharged him accordingly. In respect of Count 2, Judge Perkins accepted that a competitor immigration adviser had entrapped Mr Han and manipulated evidence by arranging for the complainant to visit the competitor’s own solicitors and prepare an affidavit. Judge Perkins was satisfied that it was appropriate to stay Count 2.
[13] Mr Lepcha’s evidence was that he became aware of Judge Perkins’ decision when reading a report in the New Zealand Herald on 7 September 2012. He considered the decision to be of critical relevance as to his own culpability.
[14] Further, on 11 January 2013, Mr Lepcha’s wife suffered a miscarriage. At the time, Mrs Lepcha was suffering from depression and anxiety, and was undergoing counselling. Mr Lepcha considered that this information was also directly relevant to his appeal against deportation.
[15] On 5 February 2013, Mr Lepcha’s agent posted a letter to the Tribunal, enclosing material relating to Mrs Lepcha, and a copy of the New Zealand Herald item of 7 September 2012 (“the additional material”). It was common ground that that letter was not received by the Tribunal.
[16] The Tribunal’s decision, declining Mr Lepcha’s appeal against deportation was issued on 26 March 2013 (“the Tribunal’s decision”)2
The Tribunal’s decision
[17] Section 207 of the Immigration Act sets out the grounds on which a humanitarian appeal against deportation may be allowed. Section 207 provides, as relevant:
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.
…
[18] In its decision, the Tribunal framed the primary issue as being whether the consequences for Mrs Lepcha, and their child, resulting from Mr Lepcha’s deportation from New Zealand, would give rise to exceptional humanitarian circumstances in terms of the statutory test. The Tribunal set out the facts of Mr
2 Sandyang Lepcha [2013] NZIPT 501020.
Lepcha’s criminal charges, and the Judge’s comments on sentencing, and referred to the statements by Mr and Mrs Lepcha, and other documents referred to. The Tribunal then referred to the judgment of the Supreme Court in Ye v Minister of Immigration, to the effect that three ingredients had to be established:3
(a)exceptional circumstances;
(b)of a humanitarian nature;
(c)that would make it unjust or unduly harsh for the person to be removed from New Zealand.
[19] The Tribunal also noted that the “circumstances” “must be well outside the normal run of circumstances”, and that while they did not need to be unique or very rare, they did have to be “truly an exception rather than the rule”.4
[20] The Tribunal noted that it had been provided with the Immigration New Zealand file in relation to Mr Lepcha, and had also considered the submissions and documents provided on appeal. The Tribunal referred to the position of Mr Lepcha’s wife, and their son, and noted that Mrs Lepcha would not return to India in the event that Mr Lepcha was deported. Mrs Lepcha was in the process of applying for
permanent residence in New Zealand (in respect of which Mr Lepcha is a secondary applicant).5 The Tribunal noted that Mr Lepcha’s role as a supportive husband and devoted father was apparent from the submissions on appeal, but concluded that the disruption to the family unit caused by his deportation was not sufficient of itself to create exceptional circumstances that would meet the statutory test.6
[21] The Tribunal went on to say that Mr Lepcha, his wife, and their child are all citizens of India, and could return there as a family if they so chose, and to note that there was no evidence before it that the child would be disadvantaged if he went to India, or that the family could not settle there. The Tribunal further noted that
3 Ye v Minister of Immigration [2009] NZSC 76 [2010] 1 NZLR 104, at [34]. (This judgment was in relation to section 47(3) of the Immigration Act 1987, which is in almost identical terms.)
neither Mr Lepcha’s wife, nor their child, had the right to remain in New Zealand permanently, and that, should Mr Lepcha’s wife succeed in her application for residence, it would be up to the family to make arrangements to ensure that the child had ongoing contact with his father.7
[22] The Tribunal concluded that Mr Lepcha had not established that there were exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for him to be deported from New Zealand.8
[23] The Tribunal discussed the question of public interest. In this context, the Tribunal referred to the IAA’s findings in respect of the four complaints against Mr Lepcha. The Tribunal acknowledged that Mr Lepcha’s two-year cancellation period
had elapsed, and that he had been given a “lenient sentence” in the District Court, but concluded that immigration fraud was, by its nature, serious.9 The Tribunal considered that Mr Lepcha’s “careless and wrongful conduct” had allowed him to be exploited by his employer and effectively used as a “rubber stamp” in processing immigration documents. He had breached the code of conduct required of licensed immigration advisers. The Tribunal accepted the finding of the IAA that it is
essential for the maintenance and integrity of the immigration system that “such fraudulent behaviour is found to be completely unacceptable”.10 The Tribunal was not convinced that, in all the circumstances, it would not be contrary to the public interest to allow Mr Lepcha to remain in New Zealand.11
The issues
[24] In his statement of claim, Mr Lepcha alleged that the Tribunal had failed to take into account the additional information relating to his wife that had been included with the additional material. He alleged that the Tribunal had thereby breached its obligation to act in accordance with the principles of natural justice. He also alleged a further breach of natural justice, that the Tribunal had taken irrelevant
7 At [29].
8 At [30].
considerations into account: namely, the sentencing Judge’s outline of Mr Lepcha’s offending rather than Judge Perkins’ judgment.
[25] Mr Wicks submitted that the breach of natural justice arose in two respects. The first was in the fact that there was in existence material which Mr Lepcha was entitled to have considered, but that material was not considered. The second was that the absence of Judge Perkins’ judgment from the material available to the Tribunal allowed the Tribunal to consider the appeal under a misapprehension as to the gravity of Mr Lepcha’s offending.
[26] Mr Wicks submitted that, notwithstanding the practice note requirement that all evidence, submissions, and information in support of an appeal were to be filed within the specified appeal period (in Mr Lepcha’s case, 28 days after the deportation notice), the provisions of the Immigration Act allowed Mr Lepcha to submit evidence, submissions, and information at any time up until the Tribunal issued its decision. He submitted that Mr Lepcha was entitled to have such material taken into account, and that a breach of natural justice had occurred when it was not taken into account.
[27] At the hearing, it was accepted by Mr Wicks, counsel for Mr Lepcha, that the Tribunal had not received the additional material. It follows that the Tribunal had no opportunity either to take it into account, or to reject it as being outside the time prescribed by the practice note. The Tribunal could not be said to have failed to consider material it did not have, nor could it be said to have taken an irrelevant consideration into account by referring to the comments of the sentencing Judge. Further, as Ms Walker submitted for the Minister, this is not a case of the Court being asked to rule on whether the practice note is ultra vires.
[28] The essence of the dispute is whether the additional material would have led to a different result, had it been before the Tribunal. If the answer to that question is no, then it is clear that there can have been no breach of natural justice.
Would the Tribunal have reached a different conclusion?
[29] As noted earlier, at [18] and [19], Mr Lepcha’s appeal to the Tribunal could succeed only if he established that there were exceptional circumstances of a humanitarian nature which make it unjust or unduly harsh for him to be removed from New Zealand. As the Supreme Court said in Ye v Minister of Immigration:12
[34] … The need for the circumstances of the case to be exceptional means that those circumstances must be well outside the normal run of circumstances found in overstayer cases generally. The circumstances do not have to be unique or very rare but they do have to be truly an exception rather than the rule. …
[35] The qualification of the word “harsh”, by the word “unduly”, recognises that there may be some degree of harshness in removing an overstayer from New Zealand. In particular some degree of harshness may be involved where the removal affects New Zealand citizen children. But the statutory test is couched on the basis of undue harshness. Undue in this context means that the harshness goes beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system. …
[30] In Huang v Minister of Immigration, the Supreme Court considered whether a humanitarian appeal should be remitted for reconsideration, when the appeal had been determined on an incorrect legal approach.13 In particular, the Court considered whether the fact that a particular matter had not been specifically addressed earlier meant that the appeal should be remitted for reconsideration. The Court said:14
… Because the officer did not apply the correct legal approach Ms Huang is prima facie entitled to a reconsideration on the correct legal basis. But the Court has a discretion in the matter. Relief should declined because the officer must inevitably have come to the same decision, that is, to allow removal to proceed, after applying the correct legal principles. …
[31] Mr Wicks said that before the Court could conclude that Mr Lepcha’s appeal should not be remitted back for reconsideration in the light of the additional material, it must be satisfied that it is patently clear that the same decision would be made, notwithstanding that material. He submitted that in this case, when the additional material relating to Mr Lepcha’s conviction, and his wife’s personal circumstances,
12 Above n 3 at [34] and [35].
13 Huang v Minister of Immigration [2009] NZSC 77, [2010] 1 NZLR 135.
14 At [8].
is considered with the other material already before the Tribunal, it is not patently clear that the same decision would be made.
[32] Regarding the conviction, Mr Wicks submitted that had the Tribunal had Judge Perkins’ judgment, it would have given the Tribunal the proper context of Mr Lepcha’s conviction. He submitted that having seen only the sentencing judgment, the Tribunal had concluded that Mr Lepcha’s offending was immigration fraud which is, by its nature, serious.15 Mr Wicks submission was, in essence, that had the Tribunal had Judge Perkins’ decision before it, it would have seen Mr Lepcha’s conduct in a different (and less serious) light.
[33] I cannot conclude that the Tribunal would have reached a different conclusion as to Mr Lepcha’s offending if it had had Judge Perkins’ judgment before it, for the following reasons. First, Mr Lepcha pleaded guilty to the charge on which he was convicted and sentenced. Whatever the outcome of the charges laid against Mr Han, the conviction of Mr Lepcha stood at the time the Tribunal considered Mr Lepcha’s appeal.16
[34] Secondly, the Tribunal had before it Mr Lepcha’s own statement in which he set out the facts and circumstances of his offending. Mr Lepcha also recorded that two charges had been laid against him initially, and the charge of providing false and misleading information had been withdrawn. With respect to the charge on which Mr Lepcha was convicted and sentenced, there is nothing in the additional material that would have added to the Tribunal’s understanding of his offending.
[35] Thirdly, Judge Perkins considered the two charges against Mr Han quite separately. The first charge (which related to the same events in respect of Mr Lepcha was convicted) was dismissed on the grounds that there was no evidence that Mr Han was involved. It was in respect of the second charge that questions of entrapment and manipulation by a competitor arose. It does not appear from Judge Perkins’ judgment that Mr Lepcha had any involvement in the events that led to the
15 Tribunal’s decision at [32].
16 Mr Wicks advised at the hearing that Mr Lepcha has now applied for leave to appeal against his conviction.
second charge. Accordingly, the Judge’s findings on that charge could not have assisted the Tribunal’s assessment of Mr Lepcha’s offending.
[36] Fourthly, the Tribunal also had before it the four decisions of the IAA on complaints against Mr Lepcha. The additional material could not have assisted the Tribunal’s assessment of these decisions.
[37] Turning, then, to the material concerning Mr Lepcha’s wife, the Tribunal had before it a lengthy statement from her, in which she set out in detail her relationship with Mr Lepcha, her own health issues, and her view that she would not be able to raise their son without Mr Lepcha’s involvement. She also stated that if Mr Lepcha were to return to India, she would not do so.
[38] I accept Ms Walker’s submission that information as to the miscarriage Mrs Lepcha suffered in January 2013 does not lead to the conclusion that it can now be said that there are circumstances which are well outside the normal run of those found in overstayer cases, or truly an exception rather than the rule. As Ms Walker submitted, there is no evidence that could be considered by the Tribunal that Mr and Mrs Lepcha’s son would be unduly disadvantaged, or that the family could not settle in India. Further, the present position is that none of the family has the right to remain permanently in New Zealand.
Conclusion
[39] I have concluded that, whether the additional material is considered alone or in combination with the material already before the Tribunal, it is inevitable that the Tribunal would reach the same conclusion that it reached earlier. This is not to make light of the very sad circumstances of Mrs Lepcha’s miscarriage, or indeed the grounds on which the charges against Mr Han were stayed. However, they do not take Mr Lepcha’s circumstances into the realm of exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for him to be deported from New Zealand. Nor do they establish that it would not be contrary to the public interest to allow Mr Lepcha to remain in New Zealand.
[40] Accordingly, the fact that the Tribunal did not have the opportunity to consider the additional information has not caused there to be a breach of natural justice. There is, therefore, no reason to remit Mr Lepcha’s appeal against deportation back to the Tribunal for reconsideration.
Result
[41] The application for judicial review is dismissed.
Andrews J
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