Minister of Immigration v Jooste
[2013] NZHC 2671
•14 October 2013
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-7728 [2013] NZHC 2671
BETWEEN MINISTER OF IMMIGRATION
Appellant
AND
HENDRIK PIETER JOOSTE
Respondent
| Hearing: | 5 June 2013 |
Counsel: | C Griffin for the Appellant Respondent in person |
Judgment: | 14 October 2013 |
JUDGMENT OF MALLON J
Contents
Introduction ....................................................................................................................................... [1]
Background........................................................................................................................................ [4]
The legislation.................................................................................................................................... [9]
The 2009 Act................................................................................................................................... [9]
The 1987 Act................................................................................................................................. [13]
Appeal provisions ............................................................................................................................ [17]
The Tribunal’s decision................................................................................................................... [19]
Section 207(1)(a) .......................................................................................................................... [19]
Section 207(1)(b) .......................................................................................................................... [26]
First alleged error of law: exceptional circumstances .................................................................. [30]
Proposed question of law ............................................................................................................. [30]
Submission.................................................................................................................................... [31]
My assessment .............................................................................................................................. [34]Second alleged error of law: suspension power ........................................................................... [45]
Proposed question of law ............................................................................................................. [45]
Submission.................................................................................................................................... [46]
My assessment .............................................................................................................................. [47]Third alleged error of law: public interest ................................................................................... [49]
Proposed question of law ............................................................................................................. [49]
Submission.................................................................................................................................... [50]
My assessment .............................................................................................................................. [53]Fourth alleged error of law: deportees ......................................................................................... [60]
Proposed question of law ............................................................................................................. [60]
Submission.................................................................................................................................... [61]
My assessment .............................................................................................................................. [63]
Result................................................................................................................................................ [64]
MINISTER OF IMMIGRATION v JOOSTE [2013] NZHC 2671 [14 October 2013]
Introduction
[1] Mr Jooste was the subject of a deportation notice as a consequence of criminal offending. The Immigration and Protection Tribunal allowed Mr Jooste’s appeal against deportation on humanitarian grounds.1 The Minister of Immigration applies for leave to appeal from the Tribunal’s decision.
[2] The Tribunal’s decision was made under the Immigration Act 2009. That Act replaced the Immigration Act 1987 and made a number of changes. The 2009 Act changed the test on which an appeal against deportation could be allowed on humanitarian grounds when the liability for deportation arose from criminal offending by the resident.2 It also included a requirement to obtain leave for appeals
to the High Court on points of law.3 This is the first time under the 2009 Act that the
Minister has sought such leave.4
[3] The statutory test under the 2009 Act has two parts. The Minister contends that the Tribunal erred in its approach to both parts of that test. The Minister also contends that the Tribunal erred in taking into account its power to suspend liability for deportation when applying the test and in holding that all deportees are permanently ineligible to return to New Zealand.
Background
[4] Mr Jooste is a citizen of South Africa. He, together with his wife and daughter, came to New Zealand on temporary visas in 2005. In October 2006 Mr Jooste and his wife had a son born here. In June 2007 the family were granted residence.
[5] A fraud investigation revealed that between June 2005 and December 2008 Mr Jooste stole $349,694.97 from his employer, the Auckland City Council. He was
1 Jooste v Minister of Immigration [2012] NZIPT 500453.
2 Immigration Act 2009, s 207(1).
3 Section 245(1).
4 There have been two applications for leave by persons subject to deportation and both applications were unsuccessful: Taafi v Minister of Immigration [2013] NZAR 1037 (HC) and Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155.
charged with obtaining a pecuniary advantage by deception5 to which he entered a prompt guilty plea. On 24 June 2010 he was sentenced to three years’ imprisonment. The sentence was upheld on appeal to the High Court.6 He was released on parole on 26 July 2011 after serving 13 months of the sentence.
[6] Mr Jooste repaid over $100,000 of the money he stole. However on 1 September 2011 he was declared bankrupt. He is currently in receipt of a benefit and is looking for employment. He lives with his parents, who remain here on temporary visas. He suffers from depression and is receiving treatment.
[7] Following his arrest Mr Jooste’s wife ended their relationship. Pursuant to a final parenting order dated March 2012 his former wife has the day-to-day care of the children. Under that order Mr Jooste has the children every second weekend, after school on Wednesdays and Thursdays for some hours, every second week of the school holidays and at Christmas every second year.
[8] Mr Jooste was served with a deportation liability notice because he was convicted of an offence for which the court had the power to impose a term of imprisonment of three months or more.7 Mr Jooste appealed to the Tribunal. The appeal was heard on 11 June 2012. The Tribunal’s decision allowing Mr Jooste’s appeal was given on 28 November 2012. The Tribunal made an order suspending
Mr Jooste’s deportation for four years. This was subject to a condition that Mr Jooste not reoffend in a similar way within that period. If that condition was met the deportation would be cancelled. Otherwise his liability for deportation could be reactivated.
The legislation
The 2009 Act
[9] Under the 2009 Act there are a number of ways that a person may be liable for deportation. They include where a person is unlawfully in New Zealand because
5 Crimes Act 1961, ss 240(1)(a) and 241(a).
6 Jooste v New Zealand Police HC Auckland CRI-2010-404-318, 16 November 2010.
7 Immigration Act 2009, s 161(1)(a).
they have overstayed the expiry date of a visa.8 They also include a person who holds a residence class visa holder and is convicted of an offence.9 As to the latter, the type of offending that will have this consequence depends on the term of imprisonment the Court can impose for the offence and the period of time between when the person first obtained a residence class visa and the offending.10
[10] If a person is deported then they cannot be granted a visa or entry permit (subject to some exceptions).11 The period for which a visa or entry permission is prohibited depends on the ground on which they were deported. For an overstayer the prohibition on re-entry is two or five years depending on other matters.12 For criminal offending by a residence class visa holder the prohibition on a visa or entry permission is permanent.13 Other grounds for deportation have prohibition periods of five years or permanent prohibitions.14
[11] Persons subject to deportation orders on the various grounds, including because of criminal offending, may appeal to the Tribunal on “humanitarian grounds”.15 The Tribunal must allow an appeal on such grounds as follows:
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.
8 Sections 9 and 154.
9 Section 161.
10 If the offence occurs within two years after the first person first held a residence class visa then liability for deportation will arise for an offence for which the court has power to impose
imprisonment for a term of three months or more (s 161(1)(a)); if the offending occurs within five years of holding a residence class visa the offence must be punishable by a term of imprisonment of two or more years (s 161(1)(b)); and if the offending occurs within ten years of holding a residence class visa the offence must be punishable by a term of imprisonment of five or more years (s 161(1)(c)).
11 Sections 15, 16 and 17.
12 Section 179.
13 Section 179.
14 Section 179.
15 Section 206(1).
...
[12] If the Tribunal allows an appeal on humanitarian grounds the Tribunal may make an order suspending the person’s liability for deportation for a period not exceeding five years, subject to any conditions the Tribunal determines.16
The 1987 Act
[13] The 1987 Act drew a distinction between residents who were liable for “deportation” for criminal offending and persons unlawfully in New Zealand (ie “overstayers”) who were liable for “removal.” In respect of the former, and although not in identical terms, the 1987 Act provision was similar to the 2009 Act provision in that the kind of offending that would render a holder of a residence permit liable
for deportation depended on the period of time between the grant of the residence permit and the offending.17 The holder could appeal to the Tribunal against a deportation order.18 The grounds on which a deportation order could be quashed were as follows:
105 Tribunal may quash deportation order
(1)On an appeal under section 104 of this Act, the Tribunal may, by order, 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.
...
(2)In deciding whether or not it would be unjust or unduly harsh to deport the appellant from New Zealand, the Tribunal shall have regard to the following matters:
(a)The appellant’s age;
(b)The length of the period during which the appellant has been in New Zealand lawfully;
(c)The appellant’s personal and domestic circumstances;
(d)The appellant’s work record;
16 Section 212.
17 Immigration Act 1987, s 91.
18 Section 104.
(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.
[14] The grounds on which a deportation order could be quashed therefore differed from the test under the 2009 Act (the test applicable to this case) in two ways. That is, the first part of the test did not require that there be “exceptional circumstances”, it only required that it be “unjust or unduly harsh” to deport a person. It also differed in that it set out relevant considerations in deciding whether it would be unjust or unduly harsh to deport the person.
[15] The same test as that in the 2009 Act applied, however, where a person was unlawfully in New Zealand and subject to a removal order. In that case an appeal to the Removal Review Authority could be brought as follows:
47 Appeal against requirement to leave New Zealand
(1) Aperson who is unlawfully in New Zealand may appeal to the Removal Review Authority against the requirement for that person to leave New Zealand.
...
(3)An appeal may be brought only on the grounds that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand.
[16] As under the 2009 Act, a person deported because of criminal offending was ineligible to return.19 However a person removed from New Zealand was ineligible to return for five years.20
19 Section 7(1)(d)(i).
20 Section 7(1)(c) and 57(1).
Appeal provisions
[17] Under the 1987 Act appeals to the High Court on a question of law were as of right.21 The 2009 Act introduced a requirement for leave.22 It also provides that, in determining whether to grant leave, the Court must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.23
[18] As was said in Nabou v Minister of Immigration:24
As this Court has previously affirmed, the introduction of a leave provision for High Court appeals indicates Parliament’s intent to further limit appeals from immigration decisions. Not every question of law will be granted leave. On a second appeal from the decision of the Minister to issue a deportation order, the proposed questions of law must be capable of bona fide and serious argument and raise either an issue of general or public importance or some other sufficient reason to warrant the grant of leave.
The Tribunal’s decision
Section 207(1)(a)
[19] On the first part of the statutory test (s 207(1)(a)) the Tribunal began by noting that it was the same as under s 47(3) of the 1987 Act and that, as per Ye v Minister of Immigration,25 there were three limbs under that test: exceptional circumstances; of a humanitarian nature; that would make it unjust or unduly harsh to remove the person from New Zealand.26 The Tribunal also noted that under that test the circumstances must be “well outside the normal run of circumstances” and “truly an exception rather than the rule.”27
[20] The Tribunal referred to the legislative changes which meant that all ejections were now under the “deportation” rubric. This has meant that residents now form a small part of all deportation appeals. An issue therefore was with whom an appellant
21 Immigration Act 1987, s 117(1).
22 Immigration Act 2009, s 245(1).
23 Section 245(3).
24 Nabou v Minister of Immigration, above n 4, at [6] (footnotes omitted).
25 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].
26 Jooste v Minister of Immigration, above n 1, at [21].
27 At [22] citing Ye v Minister of Immigration, above n 25, at [34].
was to be compared when determining whether the circumstances were outside the norm. The Tribunal considered that the measure of exceptionality was as against the total pool of deportation cases. It considered that being a resident of itself was not an exceptional circumstance of a humanitarian nature.28
[21] The Tribunal said that the exceptionality of the circumstance could arise from its intensity. It gave the example of a parent who is very closely bonded with a child as likely to be closer to establishing exceptional circumstances than one who is not. It said that it was the totality, that is the rarity and intensity of the circumstances, that established whether there were circumstances of a humanitarian nature.29
[22] The Tribunal then said:30
Finally, sight must not be lost of the fact that exceptionality is but a threshold enquiry, with the engine room of the test being the question whether the circumstances are such as to make it unjust or unduly harsh to deport the person. It is a [sic] clearly a threshold intended to prevent those with routine circumstances from arguing injustice or undue harshness. The bar is not, however, set so high as to prevent those who have, prima facie, genuinely concerning circumstances from having them help up against the backdrop of their offending, in order to determine whether deportation would be unjust or unduly harsh. Nor is it set so high that a finding of exceptional circumstances of a humanitarian nature would be tantamount to a finding of injustice or undue harshness. In extending the former ‘removal’ test to the deportation of residents for serious crime, Parliament must have contemplated that a finding of exceptional circumstances of a humanitarian nature might still, when held up against the offending (and any other adverse factors), not render deportation unjust or unduly harsh.
[23] The Tribunal considered that it was the interests of the children which raised the most significant issue on the appeal.31 It found that the exceptional circumstances arose from Mr Jooste’s separation from his children with whom he has a close relationship. This was in light of their age and stage of development and that, if Mr Jooste was deported, this relationship would be substantially severed. That would occur because Mr Jooste was unlikely to be able to afford to have them
visit more than a few times during their childhood and because it was unlikely that his former wife would facilitate or cooperate in such visits. The Tribunal concluded
28 At [28]-[45].
that it was satisfied there were exceptional circumstances of a humanitarian nature as follows:32
As a resident, the appellant currently has the right to remain in close contact with his children and to play a meaningful and valuable role in their development. They are at ages at which his long-term contribution to their well-being is likely to be significant. If the appellant is deported, the children (New Zealand residents) will remain in New Zealand and the child/parent relationship will be substantially severed. The children will lose, permanently, any close physical contact with their father (and he too, with them).
[24] The Tribunal went on to consider whether it would be unjust or unduly harsh to deport Mr Jooste. The Tribunal noted that the offending was not at the upper end of the scale of seriousness.33 It said that balanced against the offending were the
exceptional humanitarian circumstances.34 It said that it was required to have regard
to the best interests of the children as “a primary (albeit not paramount) consideration”.35 In balancing the relevant considerations it said:36
There are some crimes the opprobrium for which is so great that it would adversely affect an ongoing relationship between father and child. The offending here was not of that nature. There are some cases in which the interaction between father and child is so sporadic or lacklustre in quality that it is questionable whether the child’s well-being is truly promoted by contact. The contact here is not of that nature. There are some cases in which much of the relationship has already been destroyed by the separation of a long term of imprisonment. Here, the separation was short and the evidence indicates that it has not affected the closeness or quality of the relationship.
[25] It concluded:37
Weighing the offending (serious, but not at the upper end of the scale of seriousness) against the exceptional humanitarian circumstances (notably the detrimental effect on the appellant's children as a result of the permanent loss of close contact with him), the Tribunal is satisfied that it would be unjust or unduly harsh for the appellant to be deported from New Zealand. In reaching this conclusion, we have had regard to the suspension of deportation we intend to order at the conclusion of this decision.
32 At [63].
33 At [67].
34 At [68].
Section 207(1)(b)
[26] The Tribunal then turned to consider the second part of the statutory test (s 207(1)(b)). The Tribunal said that the degree of risk of future offending which the public can be expected to tolerate varies according to the severity of the offending. It rejected the Minister’s submission that even a low risk of reoffending was too great to allow Mr Jooste to remain because of the seriousness of the offending. It regarded the offending as “sufficiently serious that we would require any risk of
recidivism to be low.”38
[27] The Tribunal considered that, because of his conviction and bankruptcy, Mr Jooste was unlikely to secure employment which would give him access to an employer’s money and that this militated against him offending in a like manner again.39 It considered there was a degree of uncertainty about his risk because there had been no formal assessment by a psychologist trained in the criminogenic field. However this uncertainty could be addressed by an order suspending deportation. It considered that the real risk of being separated from his children was sufficient to render the risk of recidivism low.40
[28] The Tribunal considered there was public interest in the preservation of family unity and in New Zealand observing its international obligations. Those obligations required recognition that the family is the fundamental group unit of
society and that the family be free from arbitrary or unlawful interference. Regard was also to be had to the best interests of the children as a primary consideration.41
[29] The Tribunal’s conclusion on s 207(1(b) was as follows:42
Weighing the foregoing public interest considerations, notably the low risk of the appellant re-offending and the harm to his children the Tribunal is satisfied that it would not be contrary to the public interest to allow the appellant to remain in New Zealand.
38 At [82].
39 At [85].
40 At [86].
41 At [87]-[88].
First alleged error of law: exceptional circumstances
Proposed question of law
[30] The Minister’s proposed question of law in respect of the first part of the statutory test under s 207(1) of the 2009 Act is:
Did the Tribunal make an error of law by misdirecting itself that the test for exceptional circumstances of a humanitarian nature is:
a)but a threshold enquiry, with the engine room of the test being the question whether the circumstances are such as to make it unjust or unduly harsh to deport the person; and/or
b)to find something more than routine circumstances, but which were
prima facie, genuinely concerning circumstances?
Submission
[31] The Minister submits that the Tribunal misinterpreted and misapplied the statutory test in s 207(1)(a). He submits that, in the passage quoted at [22] above, the Tribunal essentially applied the former s 105 test and thereby failed to give meaning to the new “exceptional circumstances” component in the test. He submits that the addition of “exceptional circumstances” was intended to make it more difficult for a person to satisfy the humanitarian exception.
[32] The Minister submits that the Tribunal failed to apply the guidance in Ye v Minister of Immigration that the circumstances needed to be “of a sufficiently unusual kind”43 and twenty years of appellate case law on the meaning of “exceptional circumstances” under s 47 of the 1987 Act.44 He submits that the test
requires more than genuinely concerning circumstances. He submits that the statutory test required Mr Jooste to be able to show what was exceptional about that separation that differentiated it from the usual consequence of deportation.
[33] Counsel for the Minister advises that there have been 11 appeals concerning residents under the 2009 Act test. In nine of those appeals the Tribunal found that
43 Ye v Minister of Immigration, above n 25, at [36].
44 Patel v Removal Review Authority [2000] NZAR 200 (CA). In this case the Court of Appeal held at 204 that the statutory wording “exceptional circumstances of a humanitarian nature unjust or unduly harsh” imposes a stern test, and that in its natural usage “exceptional circumstances” sets a high threshold.
there were “exceptional circumstances”. The outcome of those appeals then fell to be determined on the basis of the “unjust or unduly harsh” and “public interest” elements of the test. This information is said to support the submission that the Tribunal is not giving the exceptional circumstances limb sufficient meaning.
My assessment
[34] There are two aspects to the proposed question of law. One concerns the interrelationship between the exceptional circumstances and unjust or unduly harsh limbs of s 207(1)(a). The other concerns the threshold of circumstances that qualify as exceptional. They are both questions of law. Both are of general importance given that the correct approach under s 207 and the threshold appellants must meet is relevant to future residents seeking to appeal liability for deportation. Therefore leave should be granted unless it is not capable of bona fide and serious argument that the Tribunal erred as to those questions.
[35] Turning then to the first aspect of the proposed question, prior to the Supreme Court decision in Ye v Minister of Immigration it had been held that the identical test in s 47(3) of the 1987 Act was a composite test. That is, are there exceptional circumstances of a humanitarian nature such that it would be unjust or unduly harsh to remove the person.45 That was also the view of Elias CJ in Ye v Minister of
Immigration. In disagreeing with the majority on this point, the Chief Justice said:46
I do not consider that s 47(3) describes a sequenced tripartite test in establishing the threshold against which the public interest is then to be balanced. I consider that the threshold (“that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand”) describes a composite standard. The circumstances which are relevant must be humanitarian circumstances, but the standard they are to reach (“exceptional”) is controlled by the defining clause: “that would make it unjust or unduly harsh for the person to be removed from New Zealand”. The clause is defining because “that” is used in its restrictive sense. If the humanitarian circumstances are such as to make it unjust or unduly harsh for a person to be removed, then the “exceptional” standard is reached.
[36] The majority view in Ye v Minister of Immigration was, however, that the test had three ingredients, namely (i) exceptional circumstances; (ii) of a humanitarian
45 At 204.
nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand.47 The majority went on to discuss how the three limbs interrelated as follows:48
One further point should be mentioned. The link between “exceptional circumstances of a humanitarian nature” and “unjust or unduly harsh” provided by the words “that would make it” can be read in two ways. The first is to hold that the presence of the relevant exceptional circumstances necessarily demonstrates injustice or undue harshness with no further assessment being required. On this basis the words “that would make it” mean that the necessary injustice or undue harshness derives from the very fact of there being exceptional circumstances. The second reading involves an assessment of whether the exceptional circumstances found to exist make it unjust or unduly harsh to remove the person. On this view that consequence does not necessarily flow from the existence of exceptional circumstances of a humanitarian nature.
We consider the second reading is to be preferred as more appropriately serving the statutory purpose. Whether the particular exceptional circumstances give rise to the necessary injustice or undue harshness is a matter for the assessment of the decision maker. It will depend on how compelling or persuasive the exceptional circumstances are. Had the first meaning been intended there need only have been reference to exceptional circumstances of a humanitarian nature. The presence of such circumstances would have fulfilled the first criterion without reference to injustice or undue harshness. Those concepts must have been intended to contribute to the overall test and would effectively be written out if the first meaning were adopted.
[37] The majority were therefore of the view that the existence of exceptional circumstances did not mean that removal (now deportation) would be unjust or unduly harsh. Rather exceptional circumstances needed to exist, and then it was to be considered whether they made it unjust or unduly harsh to remove the person.
[38] That was the approach the Tribunal took. It identified what it viewed as exceptional circumstances of a humanitarian nature (refer [23] above). It then asked whether those circumstances made it unjust or unduly harsh to deport Mr Jooste (refer [25] above). The Tribunal was not wrong to identify the first part (that is, whether there were exceptional circumstances of a humanitarian nature) as the
“threshold inquiry”.49 If there are no exceptional circumstances identified, the Tribunal need not proceed further. It is only if there are exceptional circumstances that the Tribunal then needs to ask whether those circumstances made deportation unjust or unduly harsh. Nor was the Tribunal wrong to describe the unjust or unduly harsh limb as the “engine room”. That is entirely consistent with the majority’s view in Ye v Minister of Immigration. That is because a finding that there are exceptional circumstances does not of itself demonstrate that deportation is unjust or unduly harsh. That is a separate question that will only be satisfied if the identified exceptional circumstances are sufficiently compelling or persuasive.
[39] In my view, therefore, the first part of the proposed question of law is not capable of serious argument. The Tribunal correctly directed itself on the interrelationship between the limbs of the s 207(1)(a) test. The starting point or threshold inquiry is whether there are exceptional circumstances. If so, it must then be considered whether the identified circumstances are such that deportation would be unjust or unduly harsh.
[40] The second part of the proposed question of law concerns the circumstances which may qualify as “exceptional”. As to that the majority in Ye v Minister of Immigration said the circumstances needed to be “well outside the normal run of
circumstances” and “do not have to be unique or very rare but they do have to be truly an exception rather than the rule”.50 When discussing s 207 as a whole, the majority said that the test contemplated that there could be humanitarian circumstances of a “sufficiently unusual kind” that allowing the person to remain would not undermine the integrity of the immigration system.51
[41] Once again, in my view the Tribunal correctly stated what was required to qualify as “exceptional circumstances” under s 207(1)(a). In referring to “genuinely concerning circumstances” the Tribunal was doing no more than making the point that the exceptional circumstances threshold was not set so high that it would be
49 This is the difference between the majority view in Ye v Minister of Immigration and that of the Chief Justice. In the Chief Justice’s view there is no threshold inquiry, the sole inquiry is whether the humanitarian circumstances are such that it is unjust or unduly harsh to deport the person.
tantamount to a finding of injustice or undue harshness. That was entirely consistent with the majority’s view in Ye v Minister of Immigration that all parts of the test needed to be given a meaning that contributed to the overall test. The Tribunal considered that the circumstances were exceptional here because of the age of the children, the closeness of the relationship with the father which had been maintained and that this relationship would be severed for the balance of their childhood. These factors distinguished the circumstances from other situations (refer [23] above).
[42] The statistics do not suggest that the Tribunal is misapplying the statutory test. Residents make up a small proportion of those liable for deportation. As recorded in the Tribunal’s decision, of the 2,293 appeals since July 2006 only 323 (or 14 per cent) have involved residents.52 As the Tribunal said, the exceptionality of the circumstances of a resident was to be measured against the total pool of deportation cases, and being a resident was a relevant consideration but would not itself qualify as an exceptional circumstance.
[43] Measured against the total pool of deportation, it may not be surprising that residents will more readily satisfy the exceptional circumstances limb than other deportees. That in and of itself does not mean that the threshold is set too low. The exceptional circumstances as found still need to satisfy the Tribunal that deportation would be unjust or unduly harsh (and the public interest component of the overall test). As it is said in Ye v Minister of Immigration that will depend upon how compelling or persuasive the exceptional circumstances are.
[44] In my view, therefore, the second part of the proposed question of law is also not capable of serious argument.
Second alleged error of law: suspension power
Proposed question of law
[45] The Minister’s next proposed question of law is as follows:
Did the Tribunal misdirect itself by taking into account its power to suspend liability for deportation, when determining the “unjust or unduly harsh” and “public interest” stages of the inquiry under s 207(1)?
Submission
[46] The Minister submits that the Tribunal’s power to suspend deportation only becomes relevant once the s 207(1) test has been satisfied. He says that this is because the power to make the orders arises “on determination of an appeal”. He says that this means that the “unjust or unduly harsh” inquiry and the “public interest” inquiry must be determined first and without reference to the suspension power. He says that the Tribunal erred because it considered its suspension power in deciding whether it would be unjust or unduly harsh to deport Mr Jooste and whether it would be contrary to the public interest for him to remain in New Zealand.
My assessment
[47] The proposed question is a question of law. It may have general importance. However in my view it is not a question that is capable of serious argument. It is the case that the power to suspend an order for deportation arises “[o]n allowing any humanitarian appeal”.53 However that does not mean the suspension power is irrelevant to whether the appeal should be allowed. The Tribunal was correct to consider whether the potential exercise of the suspension power would affect its assessment under s 207.
[48] While it is not clear how the Tribunal regarded the suspension power as relevant to its s 207(1)(a) assessment, it is clear in respect of s 207(1)(b). Its view was that the risk of Mr Jooste reoffending was low. To the extent that there was uncertainty about that because there was no expert report, it was relevant to consider whether the exercise of the suspension power would ameliorate that uncertainty.
Third alleged error of law: public interest
Proposed question of law
[49] The third proposed question of law is:
When considering the public interest limb of s 207(1) did the Tribunal make an error of law in:
a)failing to treat the offending of the kind for which Mr Jooste was convicted, as sufficiently serious, within the scheme of the 2009 Act, that even a low risk of reoffending would be insufficient for Mr Jooste to satisfy the public interest limb?
b)not directing itself that there is no right to family life in New Zealand or that the appellant’s right, as a resident, to remain in close contact with his children, is a qualified right subject to liability for deportation if a qualifying offence is committed within a specified period.
Submission
[50] The Minister submits that the 2009 Act indicates a legislative policy to lower the level of seriousness of qualifying offences giving rise to liability for deportation. He submits that this policy is evident from the following changes:
(a)under the 2009 Act a resident’s deportation liability occurs by operation of law once a qualifying offence is committed, whereas under the 1987 Act the Minister exercised a discretionary power to make (or not make) a deportation order; and
(b)the 2009 Act lowered the level of offending at the middle threshold at which residents become liable for deportation. That is, under the 2009 Act a person is liable for deportation in respect of an offence for which the court has power to impose imprisonment for a term of two years or more, if the offence was committed not later than five years after the person first held a residence class visa. In contrast under the 1987 Act such a person needed to be imprisoned for 12 months or more to fall within the section.
[51] The Minister submits that within this legislative context, conviction for an offence leading to a sentence of three years’ imprisonment is serious. He submits that this makes it contrary to the public interest to allow Mr Jooste to remain in New Zealand if there is even a low risk of him reoffending.
[52] The Minister also submits that, in discussing the preservation of the family unit and the best interests of children as a primary consideration, the Tribunal did not direct itself that there is no right to family life in New Zealand or that Mr Jooste’s right as a resident, to remain in close contact with his children, is a qualified right subject to liability for deportation if a qualifying offence is committed. The
Minister’s submissions refer to authorities in support of these points.54
My assessment
[53] The proposed question is in two parts. The first concerns the assessment of the seriousness of the offending in the context of legislative changes. The second concerns the relevance of Mr Jooste’s right to family life, as recognised in international conventions, to the application of our domestic immigration law.
[54] As to the first part, it is not at all clear that the two changes relied on by the Minister were intended to lower the level of seriousness of qualifying offences that would give rise to liability for deportation. But even if they do, it does not follow that in this case the offending was sufficiently serious that even a low risk of reoffending would make it contrary to the public interest to allow Mr Jooste to remain in New Zealand.
[55] The Tribunal took into account the maximum sentence for the offence (seven years) which it considered to be an indicator of seriousness, but noted that it was not as serious as other offences (for example those offences with maximum sentences of 10, 14 and 20 years or life imprisonment). It also took into account that Mr Jooste received a sentence of less than half the maximum. It considered that it would be impossible for any appellant to demonstrate a total absence of reoffending risk. It considered that the offending was sufficiently serious that Mr Jooste’s risk of reoffending would need to be low.
[56] It is not arguable that there was any error in the Tribunal’s approach. The Tribunal was correct to assess the seriousness of the offending in deciding what risk
54 Chief Executive of the Department of Labour v Taito [2006] NZAR 420 (CA); M v Minister of Immigration [2012] NZCA 489, [2013] 2 NZLR 1 at [20]; RL v The Chief Executive of the Ministry of Social Development [2009] NZCA 596.
of reoffending would be contrary to the public interest. There is nothing in the legislative changes referred to, to suggest that it will always be contrary to the public interest to allow an appellant to remain in New Zealand if they have been sentenced to a three year term of imprisonment and they cannot demonstrate a total absence of reoffending risk.
[57] It is also not arguable that the Tribunal erred in respect of the right to family life. The authorities establish that New Zealand domestic law does not recognise “a right to family life” as a stand-alone right. A right to family life is not a ground of
judicial review and nor is there jurisdiction to award compensation for breach of such a right.55 But that does not mean interference with the family unit is an irrelevant consideration. As is said in Ye v Minister of Immigration, it is appropriate in light of New Zealand’s obligations under the United Nations Convention on the Rights of the Child, “to interpret the relevant provisions of the Immigration Act so that the interests of New Zealand citizen children are always regarded as an important consideration”.56
[58] This was the approach taken by the Tribunal. As it said, “it is the interests of the appellant’s children which raise the most significant issue on this appeal”.57 The Tribunal considered it was relevant that it would be in the best interests of the children for Mr Jooste to remain in New Zealand. The Tribunal considered that as a New Zealand resident he would have the right to remain in close contact with his children and to play a meaningful role in their development. That is correct in that Mr Jooste has obtained contact rights pursuant to the parenting order which has been
made. The Tribunal was not saying that Mr Jooste must remain in New Zealand because of rights recognised in New Zealand’s international obligations. It was recognising relevant considerations and finding that they had weight in the particular circumstances of this case.
[59] Accordingly in my view the proposed third question of law does not raise a question capable of serious argument. The Tribunal made no error of law in its approach.
55 RL v The Chief Executive of the Ministry of Social Development [2009] NZCA 596.
56 Ye v Minister of Immigration, above n 25, at [25].
57 Jooste v Minister of Immigration, above n 1, at [57].
Fourth alleged error of law: deportees
Proposed question of law
[60] The proposed question is:
Did the Tribunal make an error of law in holding that all deportees are permanently ineligible to return to New Zealand?
Submission
[61] The submission for the Minister refers to a comment from the Tribunal that there is now intended to be no meaningful distinction between the test for deportation of overstayers and residents. In that context the Tribunal said that this
was evident from the fact that “all deportees are permanently ineligible to return to New Zealand.”58
[62] It is said that this overlooks s 15(3)(c) of the 2009 Act. That subsection provides that s 15(1)(d) does not apply to a person who was deported under the 2009 Act “if the relevant prohibition on entry under section 179 or 180 has expired”. Section 179 in turn provides that while some categories of persons are subject to indefinite prohibition (including residence class visa holders who are deported for criminal offending), persons unlawfully in New Zealand are prohibited only for a period of between two and five years. It is said that this error of law contributed to the Tribunal’s determination of a lower threshold for the “exceptional circumstances” test and its other errors.
My assessment
[63] It is correct that the Tribunal inaccurately stated that all deportees were now permanently ineligible to return to New Zealand. However that error was made only in the context of noting the legislative changes that meant that deportees for criminal offending were now to be subject to the same test as other deportees. There is no link between that error and the test which the Tribunal then went on to apply. In particular it is not capable of serious argument that this error led to the Tribunal
58 At [33].
applying a lower threshold for deportation for criminal offending than was required by the statutory test.
Result
[64] The Tribunal correctly stated and approached the questions before it. It was not contended that the Tribunal erred because the assessments it made on the basis of the correct legal tests and approach were not open to it. The application for leave to appeal is dismissed. As Mr Jooste represented himself no question of costs arises.
Mallon J
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