Minister of Immigration v Nacis

[2015] NZHC 2890

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-000014 [2015] NZHC 2890

UNDER	Section 245 of the Immigration Act 2009
IN THE MATTER OF	an application for leave to appeal to the Court of Appeal
BETWEEN	MINISTER OF IMMIGRATION Applicant
AND	GEMMA JULATON NACIS Respondent

Hearing:	9 November 2015
Counsel:	M G Coleman for Applicant M S Smith and N R Woods for Respondent
Judgment:	19 November 2015

JUDGMENT OF COLLINS J

Introduction

[1]      I am granting the Minister’s application for leave to appeal to the Court of Appeal from my decision of 14 April 2015.  The ground for appeal is whether I erred in law when I assessed Ms Nacis had passed the second limb of the threshold for leave to appeal to the High Court under s 245(3) of the Immigration Act 2009 (the Act).  That threshold provides that before leave can be granted to appeal to the High Court an applicant must show his or her case raises a question of law of general or public importance or for some other reason ought to be considered by the High Court.  I held Ms Nacis’ case justified leave on the “other reason” limb of s 245(3) of

the Act.

MINISTER OF IMMIGRATION v NACIS [2015] NZHC 2890 [19 November 2015]

Background

[2]      On  12  December  2014  the  Immigration  and  Protection  Tribunal  (the Tribunal) concluded Ms Nacis was liable to be deported.  The Tribunal reached this conclusion on the basis of Ms Nacis having been convicted of providing misleading information to immigration officers when she applied for residence in New Zealand.

[3]      I concluded the Tribunal had made two material errors of law:

(1)First,  it  had  taken  into  account  its  intention  to  defer  Ms  Nacis’ deportation when deciding it would “not be unjustly or unduly harsh” to deport Ms Nacis.1 (First ground).

(2)Second, it placed disproportionate weight on its concern for the significance of the impact of Ms Nacis’ offending on the integrity of New Zealand’s immigration system as sufficient in itself to demonstrate that it would be contrary to the public interest for an appellant in Ms Nacis’ circumstances to remain in New Zealand when weighing public interest considerations under s 207(1)(b) of the Act. (Second ground).

[4]      In explaining the second ground, I referred to the Supreme Court judgment in

Helu v Immigration and Protection Tribunal.2

[5]      In relation to the first ground, I concluded the Tribunal’s error was not one which by reason of its “general or public importance” ought to be submitted to the High Court for determination because the issues raised by the first  ground  had already  been  determined  in  Minister  of  Immigration  v  Jooste.3    I  concluded, however, that leave should nevertheless be granted because this aspect of Ms Nacis’ case justified leave being granted under the “for any other reason” limb of s 245(3)

of the Act.

1      Immigration Act 2009, s 207.

2      Helu v Immigration and Protection Tribunal [2015] NZSC 28.

3      Minister of Immigration v Jooste [2014] NZHC 2882, [2015] 2 NZLR 765.

[6]      In applying the “other reason” limb of s 245(3) of the Act, I reasoned the

errors of the Tribunal meant:4

… Ms Nacis was not dealt with in a just manner by the Tribunal, particularly as the consequences of the Tribunal’s decision for Ms Nacis and her children are very severe.

[7]      Having concluded leave should be granted, I proceeded to allow Ms Nacis’ appeal on both grounds summarised in paragraph [3] of this judgment and remitted the case back to the Tribunal for reconsideration.

Proposed grounds of appeal

[8]      The Minister has identified three broad grounds upon which he seeks leave to appeal my judgment to the Court of Appeal. Those grounds are that:

(1)I  erred  by  determining  the  substantive  appeal,  not  just  the  leave question, on a ground not advanced by the applicant and without providing the respondent with an opportunity to be heard;

(2)I erred in finding the leave requirement in s 245(3) of the Act had been met, including by:

(i)wrongly  stating  and  applying  the  “for  any  other reason” test; and

(ii)       wrongly finding Helu was material;

(3)       Wrongly stated and applied the test under s 207 of the Act, including by:

(i)        wrongly stating and applying the decision in Helu;

(ii)wrongly finding the immigration offending was at the lower end of the spectrum of culpability contrary to the

unchallenged finding of the Tribunal; and

4      Nacis v Minister of Immigration [2015] NZHC 691 at [47].

(iii)      wrongly holding that a low risk of reoffending is a

positive factor weighing in favour of non-deportation.

Analysis

[9]      The proposed grounds of appeal identified in paragraphs [8](1), [8](2)(ii) and

[8](3) can be conveniently analysed together.

[10]     As is apparent from my judgment, I proceeded on the belief that parties anticipated and expected I would determine in the leave and substantive aspects of Ms Nacis’ application for leave to appeal to the High Court in the one hearing.

[11]     The Minister takes issue with that approach and submits that had I simply confined my judgment to granting Ms Nacis’ leave to appeal, then the Minister could have made submissions on the meaning and effect of Helu.

[12]     The insurmountable difficulty the Minister faces with the first and second proposed grounds of appeal is that there were two distinct grounds upon which I allowed Ms Nacis’ appeal. The Minister’s approach conflates those two grounds.

[13]     In my assessment, Mr Smith is entirely correct when he says that even if there were merit in the Minister’s dispute concerning the second ground upon which I granted Ms Nacis’ appeal, that ground was clearly obiter, and the Court of Appeal should not be troubled by having to consider appeals in relation to those parts of a judgment that are obiter.  In making this submission, Mr Smith made it clear he does not accept the Minister’s criticism of the way I analysed and applied Helu.

[14]     It is clear, however, that the Minister has merged the two grounds upon which I allowed Ms Nacis’ appeal and has failed to appreciate that ground one was an independent and stand alone ground for allowing the appeal.   I therefore conclude the Minister’s application for leave to appeal on the grounds set out in paragraphs [8](1), [8](2)(ii) and [8](3) must be dismissed.

[15]     The Minister is  on  stronger  grounds  in  relation  to  the ground of appeal identified in paragraph [8](2)(i) of this judgment.

[16]     By way of context, in Taafi v Minister of Immigration, Kós J said that an applicant must show that the question of law upon which he or she advances his or her proposed appeal:5

… 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 … 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 standing, that this alternative requirement will be met.

[17]     The Minister says that the approach taken by Kós J is the correct approach when determining whether an applicant has satisfied the “other reason” limb for granting leave to appeal set out in s 245(3) of the Act.

[18]     The Minister says  I set  the bar  at  too  low  a  threshold  when  I assessed Ms Nacis’ application on the basis that the Tribunal had erred in a way which meant Ms Nacis was not dealt with in a just manner, particularly as the consequences of the Tribunal’s decision for Ms Nacis and her children were very severe.  In making this submission the Minister appears to accept I had the benefit of full submissions on the first ground upon which I concluded the Tribunal had made a material error of law.

[19]     Mr Smith, without conceding that leave should be granted, acknowledged that of the grounds advanced by the Minister for leave to appeal to the Court of Appeal, this point might constitute a legitimate question of law for the Court of Appeal to consider,6  particularly as the Court of Appeal has not yet considered the “other reasons” limb of s 245(3) of the Act.

[20]     I agree.  The only proposed ground of appeal that justifies leave is whether I understated the test for determining whether or not Ms Nacis had demonstrated leave should be granted to appeal the Tribunal’s decision on the “other reason” limb.

5      Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].

6      See also JO v Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZCA 482 at [13]; citing JO v Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZHC 1136 at [47].

Proposed question of law

[21]     Did I err in law when I determined Ms Nacis had established leave should be granted  to  appeal  the  decision  of  the Tribunal  for  “any other  reasons”  when  I determined that the Tribunal’s errors “meant Ms Nacis was not dealt with in a just manner by the Tribunal, particularly as the consequences of the Tribunal’s decision for Ms Nacis and her children are very severe”.

[22]     The  parties  agree  no  order  for  costs  should  be  made  in  relation  to  this judgment.

D B Collins J

Solicitors:

Crown Law Office, Wellington for Applicant
Rowland Woods Legal, Wellington for Respondent