Machida v Immigration and Protection Tribunal of New Zealand
[2015] NZHC 2649
•29 October 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-001305 [2015] NZHC 2649
BETWEEN KOJI MACHIDA
First Applicant
ERIKO MACHIDA Second Applicant
AND
IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND
First Respondent
CHIEF EXECUTIVE OF IMMIGRATION OF NEW ZEALAND Second Respondent
CIV-2015-404-001306
BETWEEN KOJI MACHIDA First Applicant
ERIKO MACHIDA Second Applicant
ANDCHIEF EXECUTIVE OF IMMIGRATION NEW ZEALAND Respondent
Hearing: 7 October 2015 Appearances:
G Aulakh for Applicants
N Small for RespondentsJudgment:
29 October 2015
JUDGMENT OF HINTON J
This judgment is delivered by me on 29 October 2015 at 4.00 pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors: G Bogiatto, Auckland
Meredith Connell, Auckland
MACHIDA & MACHIDA v IMMIGRATION & PROTECTION TRIBUNAL NEW ZEALAND [2015] NZHC
2649 [29 October 2015]
Introduction
[1] Mr and Mrs Machida are Japanese nationals. They have lived and worked in New Zealand for ten and seven years respectively. As matters stand, that time has come to an end.
[2] They are seeking leave to take two further High Court actions to try to extend their time in New Zealand.
[3] Mr Machida seeks leave to bring judicial review proceedings against the decision of Immigration New Zealand in October 2014 declining his work visa application, or alternatively he seeks an extension of time to bring the judicial review proceeding.
[4] Mr and Mrs Machida also apply for leave to appeal a decision of the Immigration and Protection Tribunal (“the Tribunal”) in May 2015, in which the Tribunal declined an appeal against liability for deportation.
Background
[5] Mr and Mrs Machida are husband and wife. Mr Machida’s parents and brother live in Japan. Mrs Machida’s parents also live in Japan and her sister lives in Australia.
[6] Mr Machida worked as a chef in Australia between 1997 and 2004. In 2004, his work visa expired. He overstayed his visa and was detained. He was released on the basis that he had to depart Australia on a bridging visa and he apparently incurred a three-year exclusion period from his date of departure. This last fact is disputed.
[7] In May 2005, Mr Machida came to New Zealand on a visitor visa that was valid until August 2005. Apart from three short visits overseas, he has remained in New Zealand since his first arrival. In October 2005, he was granted a work visa. This was renewed through to October 2014.
[8] Mrs Machida first visited New Zealand in November 2005 and held a work visa. After four months, she returned to Japan. She paid a brief visit to New Zealand in 2007. In November 2008, Mrs Machida returned to New Zealand and held a work visa which was repeatedly renewed to October 2014. In 2009, she established a Japanese restaurant and Mr Machida worked as a chef and manager of the business. Between 2009 and 2014, Mrs Machida made five return trips to Asia, three of which were to Japan.
[9] In March 2014, Mr and Mrs Machida applied for resident status under the skilled migrant category. The application did not state Mr Machida’s Australian immigration history. The application was declined on the basis of his not meeting the minimum requirements for English.
[10] In September 2014, Mr Machida applied for a work visa under the essential skills category.
[11] On 17 October 2014, Immigration New Zealand declined the application on two grounds. First, it considered Mr Machida did not meet the mandatory character requirements because he had provided Immigration New Zealand with false and misleading information in relation to his Australian immigration history. A character waiver was considered and declined. Secondly, the application was declined because Immigration New Zealand was not satisfied that no New Zealand citizens or residence class visa holders were available to do the work offered to Mr Machida.
[12] As an immediate consequence of the work visa being declined, Mr and Mrs Machida became unlawfully in New Zealand and therefore liable for deportation.
[13] The Immigration New Zealand letter of 17 October 2014 advised Mr Machida of his right to appeal against his liability for deportation on humanitarian grounds.
[14] Mr and Mrs Machida applied to Immigration New Zealand for the grant of a special visa under s 61 of the Immigration Act 2009 (“the Act”). That section gives
the Minister discretion to grant a visa of any type to a person who is unlawfully in New Zealand. On 20 November 2014, Immigration New Zealand refused the request for visas under s 61.
[15] On 27 November 2014, Mr and Mrs Machida appealed to the Tribunal against their liability for deportation, on humanitarian grounds under s 207(1) of the Act.
[16] On 15 May 2015 the Tribunal issued its decision declining the appeal.
Leave to bring and/or to extend time to bring judicial review proceedings
[17] The decision that is the subject of this application is the decision of Immigration New Zealand dated 17 October 2014 declining the work visa application.
[18] Section 186(1) of the Act makes it clear there is no right to appeal the decision of an Immigration Officer. There is a right of reconsideration under s 185 but that is limited to those who are lawfully in New Zealand at the time of application, which was not the case with Mr Machida. There is a right to bring review proceedings under s 186(3), without leave and that right is not limited to those who are lawfully in New Zealand, so Mr Machida had that right.
[19] The relevant time for bringing a judicial review proceeding is provided for under s 247:
247 Special provisions relating to judicial review
(1) Any review proceedings in respect of a statutory power of decision arising out of or under this Act must be commenced not later than 28 days after the date on which the person concerned is notified of the decision, unless—
(a) the High Court decides that, by reason of special circumstances, further time should be allowed; or
(b) leave is required, under section 249(3), before proceedings may be commenced (in which case section 249(4) applies).
(2) [Repealed]
(3) In this section, statutory power of decision has the same meaning as in section 3 of the Judicature Amendment Act 1972.
(4) Nothing in this section limits the time for bringing review proceedings challenging the vires of any regulations made under this Act.
[20] Section 247 was amended as from 7 May 2015. However, the 28 day timeframe has not changed.
[21] On the face of s 247 therefore, any judicial review proceeding had to be brought within 28 days of the challenged statutory power of decision. As the challenged decision (to decline the work visa) was made on 17 October 2014, the judicial review proceeding would have had to be filed by 15 November 2014. It was not filed until 12 June 2015 and is therefore seven months out of time.
[22] Mr Aulakh valiantly tried to circumvent the time limitation by arguing that s 249 applied and therefore he had to seek leave but was not subject to a limitation period.
[23] First I note that s 249 was replaced on 7 May 2015 by the Immigration
Amendment Act 2015. The provision now provides:
249 Restriction on judicial review of matters within Tribunal’s
jurisdiction
(1) No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.
(2) No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.
(3) Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.
(4) An application to the High Court for leave to bring review proceedings must be made—
(a) not later than 28 days after the date on which the Tribunal’s
determination in respect of the decision or matter to which
the review proceedings relate is notified to the person bringing the proceedings; or
(b) within such further time as the High Court may allow on application made before the expiry of that 28-day period.
(5) A decision by the Court of Appeal to refuse leave to bring review proceedings in the High Court is final.
(6) In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—
(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and
(b) if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.
(7) A court that grants leave under subsection (3) to bring review proceedings must state the issue or issues to be determined in the proceedings.
(8) Nothing in this section limits any other provision of this Act that affects or restricts the ability to bring review proceedings.
[24] If the current provision applies, as Mr Aulakh says it does, then Mr Machida cannot get around the 28 day time limit because s 249(4) similarly provides for a 28 day time period.
[25] If the old s 249 applies, then I recognise that there was no equivalent of subs (4). No time limit was provided.
[26] However, regardless of which version of s 249 applies, that section does not apply here.
[27] Mr Aulakh argued that s 249(1) is engaged because the effect of Immigration New Zealand’s decision was that Mr Machida became liable for deportation and that “effect” may be subject to an appeal to the Tribunal. However, s 249 clearly does not apply to Mr Machida as the section is concerned only with the judicial review of matters within the Tribunal’s jurisdiction. The relevant challenged decision for purposes of this application is the decision of Immigration New Zealand in relation
to the work visa. As noted earlier, that decision cannot be the subject of an appeal to the Tribunal to qualify under s 249(1). Under s 249(2), the decision declining the work visa is not a “matter” before the Tribunal.
[28] Mr Aulakh also argued extensively that Parliament intended to distinguish between the procedures to challenge a decision for those who are lawfully in New Zealand and those that are in New Zealand unlawfully which was in support of his point that s 249 should apply to Mr Machida. However, as I consider s 249 clearly does not apply, it is not open to me to delve into matters that might otherwise be relevant to statutory interpretation.
[29] I conclude that s 249 does not apply and that under s 247 Mr Machida is well out of time to bring judicial review proceedings.
[30] I therefore turn to consider Mr Aulakh’s alternative submission in terms of the judicial review proceedings, which is that further time should be allowed under s 247(1)(a) to commence proceedings “by reason of special circumstances”.
Are there special circumstances to extend time under s 247?
[31] Mr Aulakh submits the following are special circumstances that justify further time being granted:
(a) Immigration New Zealand had concluded that Mr Machida had provided false information and had been detained and excluded from Australia. These conclusions were incorrect and oppressive as he was not deported or excluded from Australia. As a result of the decision, Mr Machida has been stigmatised as a person of bad character and has been labelled as having committed fraud by Immigration New Zealand in its records.
(b) Mr Machida would be barred permanently from re-entry into New
Zealand.
(c) There was no requirement for Mr Machida to disclose detention in Australia in his visa applications. Mr Machida should not be held responsible for the failure of the department to ask a specific question.
(d)It was unreasonable for Immigration New Zealand to conclude that Mr Machida’s employer had not made genuine attempts to employ New Zealanders for the position. Mr Aulakh stresses that Mr Machida has 20 years of experience as a Kaiseki chef and that it is difficult to find a cook with those skills in New Zealand.
(e) The decision has curtailed Mr Machida’s liberty and freedom to travel to, or obtain visas to, any other country, even though he has no criminal history.
[32] The Court of Appeal decision in Rajan v Minister of Immigration, although decided under the 1987 Act, provides guidance on when time should be extended:1
The term “special circumstances” is a commonly used phrase in the New Zealand statute book. It requires circumstances that are uncommon, not commonplace, out of the ordinary, abnormal … Whether there are special circumstances justifying an extension of time must be assessed in the context of the legislation involved. The Immigration Act confers rights of appeal in respect of decisions relating to residence, revocation of residence, removal and deportation. However, strict time limits are placed on such appeals. The s 146A time limit for the filing of judicial review proceedings must be interpreted in that context. This means that the discretion to extend time should not be exercised too readily and very rarely if the delay is long. The Rajans' application was filed one month late and thus would require an extension of one third of the time limit. In the context of the Immigration Act this cannot necessarily be seen as a short delay. (emphasis added)
[33] The Court then explained that brief examination of the merits may in some cases be called for but these cases seem to be quite limited:2
Even with a strong excuse for the delay, however, if the review proceedings were hopeless, this would suggest that the s 146A discretion should not be exercised. An application for review would clearly be hopeless, for example, if filed in respect of matters that have already been the subject of an appeal.
…
1 Rajan v Minister of Immigration [2004] NZAR 615 (CA) at [24].
2 At [29]-[30].
Examination of the merits could tip the balance in a marginal case. For example where the delay is not long, there is some excuse for that delay and the merits apparently strong, an extension of time could be justified. We doubt, however, that even very strong merits could ever justify an extension if (as here) there is no proper excuse for the delay in filing.
[34] In the context of the current Act and leave to file judicial review proceedings, Rajan was applied by Whata J in Ly v Minister of Immigration.3 The Judge found that a 23 day delay was too long, the explanation for the delay was inadequate and there was no reviewable error.4
[35] In this case, the application to review has been commenced some seven months out of time. That would be hard to overcome on its own as it is a very long delay. Further, the points raised are all points that go to the merits of the judicial review application, but it is clear that “special circumstances” need to relate primarily to reasons for the delay. Mr Machida has not provided any reasons for the delay.
[36] When I raised the reason for the delay with Mr Aulakh he pointed to the fact that Mr Machida (who was then self-represented) had filed his appeal to the Tribunal (i.e. he had not done nothing) and to difficulties with English. Misunderstanding of the law and difficulties with English are unfortunately not abnormal in this context and would not on their own constitute special circumstances.5
[37] Based on Rajan, where the delay is long and there is no proper excuse for it, even very strong merits would seldom if ever justify an extension. I do note though that the work visa was declined on two grounds (character and non-essential skills) and although Mr Aulakh raised what could be good points in respect of both, the arguments do not presently appear to be so burning that they could overcome the very long delay and absence of excuse for it.
[38] I therefore find that there were no special circumstances in terms of s 247(1)(a) and no further time should be allowed for the filing of the judicial review
proceedings.
3 Ly v Minister of Immigration HC Auckland CIV-2011-404-1540, 5 May 2011.
4 At [52]-[55].
5 At [39]-[40].
Leave to appeal the Tribunal decision
[39] This application relates to the Tribunal’s decision of 15 May 2015. The Machidas appealed to the Tribunal against liability for deportation, on humanitarian grounds.
The Tribunal decision
[40] The Tribunal first referred to submissions put forward by Mr and Mrs
Machida.
[41] It was argued that they relied upon their immigration advisers to make the appropriate applications for visas to Immigration New Zealand which reduced their culpability in failing to disclose Mr Machida’s immigration history to Immigration New Zealand. They have invested a lot of money into their restaurant business and have used some of their parents’ money. They have served New Zealand customers and visitors for five years, have employed New Zealanders and have offered free lunch to low-income people.
[42] The Machidas also submitted that they have no home to go back to in Japan. It will be very hard to get jobs there and they do not have money to re-establish their lives there. They want to serve the New Zealand community. They have many New Zealand friends in the community and are well settled in this country.
[43] The Tribunal then recorded that their grounds of appeal, being similar to the submissions summarised above, are based upon:
(a) Their distress caused by Immigration New Zealand’s decision to decline Mr Machida’s work visa;
(b) Their wish to live and work in New Zealand; and
(c) The difficulty of returning to Japan.
[44] The Tribunal was not satisfied that there were exceptional circumstances of a humanitarian nature. It took into account the fact that Mr Machida had been living
in New Zealand for ten years and Mrs Machida, six and a half years. It recorded that a year before, Mr Machida unsuccessfully applied for residence and did not state his Australian immigration history.
[45] In relation to the first ground of appeal, the Tribunal recognised the disappointment that Mr and Mrs Machida must be feeling; however it noted that it cannot consider the merits of Immigration New Zealand’s decision to refuse a work visa.6
[46] In relation to the second and third grounds, it acknowledged that Mr and Mrs Machida have lived in New Zealand for many years, have invested time and money into their business and will face a period of readjustment which may be difficult for them if they return to Japan. However, the Tribunal took the view that the Machidas lived in Japan for most of their lives, have returned there on several occasions since first arriving in New Zealand and as they have some family there, they would not be alone. The Tribunal acknowledged that their removal to Japan may cause them hardship, distress and emotional upset, however, such circumstances or the
consequences are not exceptional.7
[47] The Tribunal found there were no “exceptional circumstances of a humanitarian nature”. There was therefore no need for the Tribunal to consider the “unjust or unduly harsh” or “public interest” stages of the statutory tests. The appeals were declined.
Relevant law
[48] Section 245 of the Act provides that any party to an appeal before the Tribunal can appeal to the High Court on a point of law with leave of the High Court and in deciding whether to grant leave, the Court must have regard to whether the point of law is of general or public importance or for any other reason ought to go on
appeal.
6 Citing L v Removal Review Authority HC Wellington CIV-2005-485-1601, 3 March 2006.
7 Citing Nikoo v Removal Review Authority [1994] NZAR 509 (HC); Minister of Immigration v
Jooste [2014] NZHC 2882, [2015] 2 NZLR 765.
[49] The ground on which the Machidas appealed against liability for deportation to the Tribunal (and the only appeal ground available) was under s 207 of the Act, which 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.
(2) In determining whether it would be unjust or unduly harsh to deport from New Zealand an appellant who became liable for deportation under section 161, and whether it would be contrary to the public interest to allow the appellant to remain in New Zealand, the Tribunal must have regard to any submissions of a victim made in accordance with section 208.
[50]
Mr
and Mrs Machida had to show exceptional circumstances
of a
humanitarian nature making it unjust for them to be deported. On the face of the section, it is a difficult test to overcome.
[51] Section 207(1)(a) is almost identically worded to s 47(3) of the Immigration Act 1987. It is common ground that previous case law on the correct interpretation of the humanitarian limb of s 47(3) of the 1987 Act still applies.8 Courts at all levels
have accepted that the s 47(3) test was a “difficult one to meet”9 and was
“deliberately set at a high level”.10
[52] The majority of the Supreme Court in Ye v Minister of Immigration held that the appropriate threshold for a finding of exceptional circumstances (being the first hurdle under s 207) was as follows:11
That brings us back to the first criterion in s 47(3) which has the following ingredients: (i) exceptional circumstances; (ii) of a humanitarian nature; (iii)
8 Minister of Immigration v Jooste [2014] NZHC 2882, [2015] 2 NZLR 765 at [23]–[24].
9 Zanzoul v Removal Review Authority HC Wellington CIV-2007-485-1333, 9 June 2009 at [150].
10 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [32].
11 At [34].
that would make it unjust or unduly harsh for the person to be removed from New Zealand. 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….If there are exceptional circumstances of a humanitarian nature, it is then necessary to determine whether they make it unjust or unduly harsh to remove the person from New Zealand.
[53] In Taafi v Minister of Immigration, Kós J held that leave to appeal applications based wholly upon criticisms of factual findings face a triple hurdle:12
(a) First, the applicant will need to show a seriously arguable case that factual findings by the Tribunal are actually incorrect. An appeal Court will not interfere where there is an available evidential basis for the Court's finding.
(b) Secondly, the applicant will need to show that the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law. That is, it is seriously arguable that:
(i) the Tribunal has made a finding of fact which is based on no evidence, based on evidence inconsistent with or contradictory of another finding of fact, or contradictory of the only reasonable conclusion of fact available on the evidence; and
(ii) the errors of fact are so significant and extensive that a properly-directed Tribunal may well have reached a different decision overall on the application to quash the deportation order.
(c) Thirdly, the applicant must show that the question of law (here based on alleged fundamental errors of fact) is one of general or public importance, or for some other reason ought to be considered on appeal. The former is a hard ask in the case of factual errors, no matter how profound. (Here, the applicant does not seek to argue that the questions he presents meet the requirement of being of general or public importance. Thus he relies on the alternative limb that there is “other reason” why the question should be submitted to the High Court.) In my view it would only be in exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision tanding, that this alternative requirement will be met.
12 Taafi v Minister of Immigration [2013] NZAR 1037 at [19].
Submissions
[54] Mr Aulakh submits that the Tribunal erred in finding that there were no exceptional circumstances of a humanitarian nature. He says that the Tribunal made the following errors:
(a) The Tribunal failed to consider the stigma of a finding of bad character by Immigration New Zealand and the severe and exceptional consequences of this finding.
(b)The Tribunal failed to consider that a permanent prohibition on re- entry to New Zealand is severe and exceptional.
(c) The Tribunal failed to consider that the applicants are curtailed in their liberty and freedom to travel to any other countries even though they have no criminal history. This is a severe consequence usually applicable to offenders who have been convicted for serious offences and not for routine over-stayers with no criminal history.
(d)The Tribunal made an incorrect finding that concealing information on a visa application form was a sufficient reason for deportation.
(e) The Tribunal failed to assess that Immigration New Zealand erred in concluding that the applicants were of bad character.
(f) The Tribunal’s finding that Mr Machida was excluded from Australia
is contrary to the facts.
(g)The Tribunal failed to consider that the applicants were not able to disclose Mr Machida’s detention from Australia on the visa application forms.
(h)The Tribunal made incorrect findings on the time spent by the applicants in Japan and whether the applicants had returned to Japan on several occasions.
[55] Mr Aulakh says and stresses that Mr Machida did not incur an exclusion period from Australia and was not deported. Instead, he was issued with a bridging e-visa on 31 December 2004 before his departure. He agreed with me that his clients’ case came down largely to disputing the finding of earlier exclusion from Australia and/or that the October 2014 letter from Immigration New Zealand created an unfair stigma.
[56] Ms Small for the respondent submits that the application for leave to appeal must be dismissed as there are no arguable errors of law that arise. Secondly, there is no seriously arguable case that the Tribunal’s factual findings are incorrect. Third, even if there were errors, they are not so grave as to constitute an error of law that is of general or public importance.
Discussion
[57] Mr Aulakh submits that there are fundamental errors of fact so grave as to constitute a question of law which is of general or public importance and so leave should be granted to appeal, based on Taafi.
[58] I address the factors that Mr Aulakh says the Tribunal made incorrect findings on or failed to take into account and whether those factors amount to a question of law of general or public importance.
[59] The first factor is the alleged failure to consider the stigma of bad character arising from the Immigration New Zealand decision. I note that Ms Small was at pains to emphasise that no finding was made as to character by either Immigration New Zealand or by the Tribunal, as opposed to failure to disclose. The Tribunal did in fact expressly acknowledge that removal to Japan would cause hardship, distress and emotional upset. But also, any stigma, even if correct, is a consequence of the decision of Immigration New Zealand. The Machidas need to show exceptional humanitarian circumstances outside of the consequences that flow to anyone in this situation.
[60] The second factor is failure to take into account an alleged permanent prohibition on re-entry. I agree with Ms Small that no permanent prohibition has
been imposed. The correct position is that if Mr and Mrs Machida leave New Zealand before they are served with deportation orders, they will not be subject to a period of prohibition on entry to New Zealand.13 If they do not leave New Zealand before service of a deportation order, they will become subject to a five year period of prohibition.14 Which applies is a matter within their control. Neither is a “permanent prohibition”.
[61] The reasons for deportation that attract permanent prohibition, as set out in the table in s 179, do not apply here. Mr and Mrs Machida’s liability for deportation arose under s 154 which provides that a person unlawfully in New Zealand is liable for deportation. This was referred to in the letter dated 17 October 2014, the letter dated 20 October 2014 declining a request under s 61 and in email correspondence with an immigration officer on 20 November 2014. That email said:
Deportation liability
Mr and Mrs Machida are liable for deportation on the grounds that they are in New Zealand unlawfully. They are obligated to leave New Zealand in line with Section 18 of the Immigration Act 2009. Mr and Mrs Machida could be served a Deportation Order after Friday the 28th November 2014.
[62] Mr Aulakh also raised s 157 in this connection and submitted that there was no “sufficient reason” for deportation liability to arise. That section provides that a temporary entry class visa holder is liable for deportation if the Minister determines that there is sufficient reason to deport the temporary entry class visa holder. However, as stated earlier, deportation liability arose under s 154 and not under s 157.
[63] I should add here that I have some sympathy with the confusion that does arise regarding application of the provisions of the Act. In the documents listed at [61] the specific section under which liability for deportation arose was not expressly set out.
[64] The third factor argued by Mr Aulakh is that the Tribunal did not take into account curtailment of liberty and freedom to travel. Ms Small acknowledges that
13 Section 179(2).
14 Sections 179(1) and 154.
Mr and Mrs Machida’s immigration history will curtail their liberty and freedom to travel to Australia, and potentially, to other countries that require disclosure of that history. Any restriction on freedom to travel will depend on the requirements of specific countries.
[65] However, as with the first point advanced, this is not an exceptional circumstance. Anyone who is declined a visa for similar reasons will face the same consequences. Contrary to Mr Aulakh’s submissions, I cannot see how s 28 of the New Zealand Bill of Rights Act 1990 is infringed15 nor how article 40 of the International Covenant on Civil and Political Rights is engaged.16 These are consequences of the decision made. Someone appealing to the Tribunal on
humanitarian grounds needs to persuade the Tribunal there are exceptional humanitarian circumstances beyond the normal consequences of the decision.
[66] The fourth to seventh factors are all variations on the theme that the Tribunal erred in finding Mr Machida had been excluded from Australia and that the form did not require Mr Machida to say whether he had been detained. Mr Machida seemed to accept he had been detained but argues he was not excluded.
[67] The Tribunal noted in the background section of its decision that Mr Machida incurred a three-year exclusion period from Australia. This is not a finding as such. This relies on the decision of Immigration New Zealand. The Tribunal’s role is not to engage with Immigration New Zealand’s findings but to assess the appeal on humanitarian grounds only. It was entitled, in fact not entitled to do otherwise, to rely on Immigration New Zealand’s findings that Mr Machida had been excluded from Australia. Both the Tribunal and this Court on an application for leave to appeal the Tribunal’s decision are inappropriate forums to canvass whether Mr Machida was indeed subject to an exclusion period from Australia. Any challenge to the department’s finding had to be brought by way of judicial review of the decision of Immigration New Zealand, in respect of which as I have already held,
judicial review proceedings were brought too late.
15 That section provides that rights and freedoms not included in the Act are not affected.
16 That article provides reporting obligations on state parties.
[68] The final argument is that the Tribunal erred in its findings as to connections with Japan. This was advanced, in fairness to Mr Aulakh, more in writing than in oral submissions.
[69] The Tribunal made the following conclusion in relation to
Mr and Mrs Machida’s connections with Japan:17
However, the husband and wife lived in Japan for most of their lives and have returned there on several occasions since their first arrival in New Zealand. The experience they have gained in New Zealand may assist them to re-establish themselves in Japan and find employment there.
[70] There was some suggestion that the Tribunal may have erred in stating that Mr Machida had made two trips to Japan since living in New Zealand and that although Mrs Machida has been back there, he has not.
[71] Beyond that, what the Tribunal said seems to be correct, though only just. Mr Machida was 31 when he arrived in New Zealand and had worked in Australia for eight years. He is now 41 years of age. Therefore, he had lived in Japan for just over half his life. The Tribunal worded that as “most of his life”.
[72] I do not view an error as to Mr Machida making trips to Japan as amounting to a factual error that is so grave as to constitute an error of law, under the test set out in Taafi.
[73] For all of the foregoing reasons, I therefore decline the application for leave to appeal under s 245 of the Act. I find there is no relevant point of law.
Conclusion
[74] Both applications are dismissed.
[75] Finally, I have to say I have some sympathy with Mr and Mrs Machida’s situation. On the information available it is difficult to see whether Mr Machida was indeed subject to an exclusion period from Australia. I immediately acknowledge
that Ms Small was under no obligation to provide that information on this hearing
17 Tribunal decision at [23].
but there did seem to be some room for doubt as to whether Mr Machida was just detained which the application form did not require him to report. That issue may or may not have impacted on the work visa application given it was declined also on the non-essential skills ground but it may well have impacted on the reasons for the visa being declined, which are of course of real concern to Mr and Mrs Machida. However, the exclusion issue is a matter that, if it were to be challenged, had to be challenged much earlier, in judicial review proceedings, whereas Mr and Mrs Machida instead appealed to the Tribunal.
[76] I note also that Immigration New Zealand informed the applicants of the right to appeal on humanitarian grounds in the letter dated 17 October 2014. However, it did not point out the right to file judicial review proceedings and the different nature of the two actions.
[77] Mr and Mrs Machida do seem to have contributed well to New Zealand society and there is no criticism of their conduct since they have been here, other than the non-disclosure(s) relied on by Immigration New Zealand.
[78] I did raise with Ms Small whether there was any other action the Machidas could take at this stage. She was good enough to subsequently report by memorandum dated 12 October 2015 the following options possibly still available to Mr and Mrs Machida:
(a) (Re)request visas under s 61 of the Act, although it is noted they have previously pursued this option, and circumstances are unlikely to be different.
(b) Request the Minister of Immigration’s intervention.
(c) Depart New Zealand before they are served with deportation orders (thereby avoiding any prohibition period), and apply for either work or residence visas once out of New Zealand.
[79] Mr Aulakh may wish to take up one or more of these options.
[80] Finally, I thank both counsel for their submissions, which I found very
helpful.
Hinton J
3