Maddock v Immigration and Protection Tribunal
[2013] NZHC 585
•26 March 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-4388 [2013] NZHC 585
BETWEEN JACQUES MADDOCK Applicant
ANDIMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
ANDMINISTER OF IMMIGRATION Second Respondent
CIV-2012-404-4372
AND BETWEEN JACQUES MADDOCK Appellant
ANDMINISTER OF IMMIGRATION Respondent
Hearing: 28 February 2013
Counsel: J Sutton and M Clark for Applicant/Appellant
M Coleman and A Graham for Respondent
Judgment: 26 March 2013
JUDGMENT OF BREWER J
This judgment was delivered by me on 26 March 2013 at 4:00 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
SOLICITORS
Fleming Foster (Auckland) for Applicant/Appellant
Crown Law (Wellington) for Respondent
COUNSEL
Jeremy Sutton and Maria Clark
MADDOCK V IMMIGRATION AND PROTECTION TRIBUNAL HC AK CIV-2012-404-4388 [26 March
2013]
Introduction
[1] Mr Maddock is a citizen of South Africa. He has committed serious crimes in New Zealand. On 31 March 2009, the Minister of Immigration ordered that he be deported. Mr Maddock appealed that decision. His appeal was heard on 27 and
28 July 2011 by the Immigration and Protection Tribunal (the Tribunal). Eleven months later, on 29 June 2012, the Tribunal dismissed the appeal.
[2] Mr Maddock does not want to be deported. He now applies to this Court for an order that would have the effect of sending his case back to the Tribunal for reconsideration. The nub of his argument is that because the Tribunal took so long to decide his case, its decision was based on stale information. It might have taken a different view of Mr Maddock if it had looked at his behaviour since the appeal hearing.
Background
[3] The respondent in submissions dated 15 February 2013 sets out the background to this case succinctly as follows:
4.Mr Maddock arrived in New Zealand with his family as a visa-free visitor on 11 December 1996 (aged 12). On 14 July 1997, Mr Maddock and his family were granted residence permits.
5.On 22 August 2008, Mr Maddock was sentenced to nine years’ imprisonment on the charge of attempted murder and to four years’ imprisonment on the charge of wounding with intent to cause grievous bodily harm.
6.Mr Maddock’s case was referred to the Minister of Immigration (Hon Dr Jonathan Coleman) who ordered Mr Maddock’s deportation on 31 March 2009 on the basis that Mr Maddock had been convicted and sentenced to a term of imprisonment for five years or more, within 10 years of gaining residency, pursuant to s 91(1)(d) of the Immigration Act 1987. Mr Maddock subsequently lodged an appeal under s 104 of the Immigration Act 1987 with the Deportation Review Tribunal (DRT). Section 105(1) provides that the DRT may quash a deportation order:
... if it is satisfied that it would be unjust or unduly harsh to deport the applicant from New Zealand, and that it would not be contrary to the public interest to allow the applicant to remain in New Zealand.
7.The Immigration Act 2009 came into force on 29 November 2010 and, as a result, the DRT was disestablished and replaced by the IPT, which was required to determine Mr Maddock’s appeal in accordance with the relevant provisions of the Immigration Act
1987.
8. The IPT heard Mr Maddock’s appeal on 27 and 28 July 2011. In its
decision dated 29 June 2012, the IPT found:
8.1it would be unjust or unduly harsh for Mr Maddock to be deported;
8.2it was not satisfied that it would not be contrary to the public interest for him to remain in New Zealand.
The deportation order was confirmed.
Mr Maddock’s case
[4] Mr Maddock has both appealed the Tribunal’s decision and filed for judicial
review of it.
[5] The appeal is under s 245 of the Immigration Act 2009. It is limited to a question of law. Mr Maddock was granted leave to appeal to the High Court on the following question:1
Whether the delay between the hearing of Mr Maddock’s appeal by the IPT on 27 and 28 July 2011 and the IPT’s decision dismissing that appeal meant, in the particular circumstances of his case, that the IPT erred in law?
[6] The focus, therefore, is on the 11 months which passed between the hearing of Mr Maddock’s appeal and the delivering of the decision. This is also the focus of the application for judicial review.
[7] So far as the appeal is concerned, the contention is that the 11 months period breached the obligation in s 222(1) of the Immigration Act 2009 that the appeal be determined with all reasonable speed. The Tribunal erred in reaching a decision based on outdated evidence and the decision was unconscionable and contrary to the interests of justice.2
[8] Likewise, in the application for judicial review, the 11 months period is said to mean that the appeal decision is illegal and breached natural justice. The latter ground goes back to the contention that the evidence on which the Tribunal based its decision was outdated and no longer reliable. This is also seen to breach a right to substantive fairness and to be procedurally improper.
[9] At the heart of the arguments for Mr Maddock is the assessment by the Tribunal of Mr Maddock’s risk to the community. This was assessed at the hearing as being low to moderate. However, the submission is that by the time the Tribunal came to issue its decision, it might have come to a more favourable assessment of Mr Maddock if it had updated its information. So, being aware of the passage of time, the Tribunal should have re-opened the case and called for updated evidence of his degree of risk.
The Tribunal’s decision
[10] The Tribunal began its decision by identifying the primary issue as being “whether the risk of the appellant reoffending is such that it would be contrary to the public interest for him to be allowed to remain in New Zealand”.3
[11] The Tribunal stated this to be the primary issue because it had little difficulty in deciding that the first limb of the statutory test favoured the appellant. That is to say, that it would be unjust or unduly harsh for the appellant to be deported to South Africa.
[12] The Tribunal found that, given the seriousness of the offending, the appellant “would need to establish that the risk of recidivism is low in order for the public interest not to be engaged”.4
[13] In deciding this issue, the Tribunal gave particular weight to the analysis carried out by Dr Jane Freeman, a clinical psychologist engaged on behalf of the
appellant. Dr Freeman gave evidence before the Tribunal. Her assessment of the
risk posed by the appellant was “low-moderate”. The Tribunal held:
[137] Having undertaken a comprehensive review of the appellant’s circumstances, Dr Freeman did not regard the appellant’s risk of reoffending as low. In her view, the appropriate assessment of the risk of reoffending by the appellant in like manner (serious violent offending) is low-moderate.
[138] It is, of course, the Tribunal’s duty to assess the risk. In doing so we must not simply abdicate our decision to the expert witnesses whose evidence has been relied upon by the parties. However, after taking all of the evidence into account, the Tribunal is unable to find that the risk of reoffending posed by the appellant is low. It is, even following the assessment of the appellant’s own clinical psychologist, at best low- moderate.
[139] In the case of this appellant, the risk is too high to expect the
New Zealand public to tolerate it.
[14] It is important to note that the Tribunal’s decision is not challenged for error of law or process arising out of the hearing. It is accepted, at least implicitly, that the Tribunal’s decision was open to it on the material before it. The challenge is that the decision should not have been made on the material before it because of the passage of the 11 months.
Delay and the law
[15] All judicial bodies have an obligation to reach decisions with reasonable speed.5 The reason is obvious. Judicial bodies decide disputes. The sooner a decision is delivered, the sooner the people affected can get on with their lives. A systemic failure to deliver decisions without excessive delay would undermine the rule of law. People would lose confidence in a system of justice which failed to respond to disputes within periods appropriate to the natures of the disputes.
[16] If delay is sufficiently great that the decision is divorced from the evidence upon which it is based, then to give the decision can be an error of law.6
[17] In this case there is no evidence that the 11 months between the date of the hearing and the date of the delivery of the decision amounts to an unreasonable delay. I asked Mr Maddock’s counsel, Mr Sutton, to tell me at what point in time the delay became unreasonable. He was, of course, unable to tell me. There is no rule. Each case must be looked at on its circumstances. Mr Sutton submitted that perhaps six months would have been a reasonable period in this case and that by nine months the Tribunal would certainly be straying into the territory of unreasonable delay. There is no case law on point, although in other cases with other issues much longer
delays have not caused decisions to be invalid.7
[18] Ms Coleman for the respondent pointed out:8
(a) The Tribunal allowed an additional month post-hearing for the parties to file further evidence and submissions;
(b)The case occurred in the changeover from the Deportation Review Tribunal to the Tribunal. As at 14 February 2013 the Tribunal was considering deportation humanitarian appeals lodged with it in December 2011;
(c) The consideration time included the 2011-2012 Christmas/New Year holiday period.
[19] Taking into account the above, I have no basis for holding that the 11 months period between hearing and decision must be unreasonable.
[20] But that is not the end of the inquiry. Delay may be unreasonable if it causes or results in prejudice. Indeed, without prejudice it is hard to see how any delay in
delivering a decision can found an action for the decision to be put aside.
7 In Dayal v Refugee Status Appeals Authority HC Wellington CP50/97, 26 August 1997, it was suggested that a delay of 10 years between hearing and decision might give grounds for arguing that the decision was fatally flawed. And see Korengkeng v Removal Review Authority HC Auckland M1250/97, 30 January 1998, where the delay was nearly four years. In Salvador v Minister of Immigration [2000] NZAR 214 (HC) it was two years.
8 Respondent’s submissions dated 15 February 2013, at para 37.
[21] In this case, no prejudice relevant to the validity of the Tribunal’s decision has been identified. The decision clears the way for Mr Maddock to be deported. If the Tribunal had delivered its decision six months or nine months after the hearing then the present argument could not have been mounted and, without other intervention, Mr Maddock would have been deported. All that has occurred is that Mr Maddock has remained longer in a country which he does not wish to leave.
[22] In saying this, I do not mean to belittle the emotional effects of the threatened deportation on Mr Maddock and his family. Of course the 11 months was a period of anxiety and stress for them. But that is inherent in the process and the fact that it has taken several months longer than Mr Sutton submits is reasonable does not result in prejudice of a sort that is relevant legally to the validity of the Tribunal’s decision.9
Mr Maddock’s changing risk profile
[23] The Practice Note 1/2008 (Deportation Review Tribunal) applied to this case. It provides:
21 Post hearing evidence
[21.1] Leave may be sought for the filing of new evidence at any time prior to the date of publication of the Tribunal’s decision. A copy of the request should be sent to the other party.
[24] No leave was sought in this case. However, Mr Sutton did make a number of inquiries of the Tribunal as to when its decision might be expected. He did not anticipate that 11 months would be taken and did not take any steps to see if further evidence might assist Mr Maddock.
[25] Indeed, no steps were taken in this regard until three months after the
delivery of the Tribunal’s decision.10 In the affidavit of Teresa Kathleen Watson sworn on 18 January 2013 she deposes:11
9 Butler v Removal Review Authority [1998] NZAR 409 (HC).
10 I mean no criticism of Mr Sutton who was simply trying to gauge whether the passing of time
had improved his client’s chance of passing the statutory test.
11 Ms Watson is a registered clinical psychologist.
4.On 28 September 2012, Mr Maddock’s legal counsel requested that I prepare an updating affidavit, to assess any change in Mr Maddock’s risk of reoffending since the last assessment in 2011.
[26] Ms Watson is new to the case. She did not meet Mr Maddock but did talk to him on the telephone on 14 January 2013 for about 45 minutes. Ms Watson reviewed his file and issued her report on 15 January 2013.
[27] The thrust of Ms Watson’s report is that Mr Maddock has done well in the period since his release from prison on 27 June 2011. Having discussed Mr Maddock’s risk factors she concluded:12
Overall, it is considered Mr Maddock presents with a low to moderate risk of violent offending at the present time. It is considered most likely that this risk would present should Mr Maddock consider himself insulted in some way and react in an emotionally dysregulated manner. He would likely react impulsively and then justify his behaviour by placing himself in a position of being the victim of the insulting behaviour.
[28] Ms Watson, under the heading “Recommendations”, says:
Despite research showing that risk ratings reduce very slowly over time, it would be expected, based on the available information, with more time in the community Mr Maddock’s assessed risk would reduce further. For Mr Maddock more time in the community gives more certainty that the strategies he has learned are being used in a variety of situations that allows us to see genuine stable change.
[29] I accept the overarching submission of Mr Sutton that if the passage of time means that a decision of the Tribunal is rendered unsafe then that can be a basis for setting it aside. This is the same as saying that because of delay a decision can become divorced from the evidence upon which it is based.
[30] In my view, a decision of the Tribunal must be based on evidence and law current in their validity when it is delivered. That is so whether a decision is delivered on the day after the hearing or at a much later date.
[31] The Practice Note contemplates the Tribunal receiving applications for further evidence between the hearing and the delivery of the decision. Whether the
12 Page 5 of report.
Tribunal would accept such an application would depend upon how the evidence might bear on the decision under contemplation.
[32] I do not accept that delay imposes on the Tribunal an onus to re-open a proceeding. The Tribunal is entitled to rely on the evidence put before it at the hearing by the parties. It is for the parties to apply to the Tribunal if it is apprehended that the passage of time has rendered evidence invalid.13
[33] That does not, of course, mean that the Tribunal cannot re-open a case. There might be exceptional cases where the Tribunal is not satisfied that the information provided by the parties is sufficient for it to make a proper determination. It has the power to seek more information and should do so if it feels that would be in the interests of justice.14
[34] However, even if no application is made, it must be the case that if it can be shown that a decision has been made on invalid evidence then that may be a ground for setting the decision aside.
Discussion
[35] Against the foregoing, I turn now to the pleadings.
The appeal
[36] The appeal must fail because there is nothing in the particular circumstances of the case that make the decision to dismiss the appeal following the 11 months period an error in law.
[37] For the decision to amount to an error of law because of the 11 months period, the particular circumstances would have to reveal prejudice or demonstrate
that the decision had become divorced from the evidence. They do not.
13 Oto v Minister of Immigration HC Wellington CIV-2008-485-2183, 13 March 2009; Faavae v
Minister of Immigration [1996] 2 NZLR 243 (HC).
14 Minister of Immigration v Al-Hosan [2008] NZCA 462.
The application for judicial review
[38] The first ground for relief is breach of natural justice. The pleading is that the breach was failure to allow Mr Maddock the opportunity to properly present his case:
23.3Mr Maddock was not invited or requested to provide updating psychological evidence as to the risk of reoffending at any time between the conclusion of the hearing and date of decision.
[39] This ground for relief is not made out. It is based on a premise that the evidence of Dr Freeman was out of date and no longer reliable after the passage of
11 months. However, the only evidence that can be used to bear on this point is that of Ms Watson. Her evidence, relevant passages of which are quoted above, does not materially contradict Dr Freeman’s evidence. It shows an improvement in some risk factors but the conclusions are very similar to Dr Freeman’s.
[40] Further, as I have held, there is no onus on the Tribunal to re-open a proceeding if a certain amount of time passes. It is entitled to rely on the evidence put before it at the hearing. It is open to the parties to apply to put further evidence before the Tribunal and the Tribunal would have to consider, on usual principles of relevance and newness, whether to receive the evidence or not.
[41] A refusal to accept new evidence or further evidence might give rise to a claim of breach of natural justice. That is not the case here.
[42] The second ground of review pleaded is procedural impropriety. However, this relies on the allegations pleaded previously and raises nothing new. It cannot succeed.
[43] The third ground of review is unfairness. The particulars pleaded are:
27.1Mr Maddock has submitted himself to a litigation process and is entitled to a decision within a reasonable timeframe.
27.2A delay of 11 months is entirely unreasonable in a matter such as deportation which carries such significant potential consequences for Mr Maddock and his family.
27.3 The decision has been based upon outdated evidence as to
Mr Maddock’s risk of reoffending.
[44] This is a repetition of previous arguments advanced to see whether they will fit another legal pigeonhole. They do not. The 11 months period has not been demonstrated to be unreasonable. No relevant prejudice has been identified. It has not been shown that the decision has been based upon outdated evidence as to Mr Maddock’s risk of reoffending. This ground of review does not succeed.
[45] The final ground of review is illegality. It is pleaded that the Tribunal acted illegally in failing to determine the appeal with all reasonable speed.
[46] As is evident from the discussion above, this ground of review fails also.
Decision
[47] The appeal under s 245 of the Immigration Act 2009 on the question of law upon which leave to appeal was granted by Ellis J on 24 August 2012 is dismissed. The answer to the question of law is “No”.
[48] The application for judicial review of the decision is also dismissed.
[49] If issues of costs arise, the respondents are to file and serve a memorandum by 10 April 2013. The applicant may, in such event, file a memorandum in reply by
1 May 2013.
Brewer J
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