Minister of Immigration v Q
[2019] NZHC 1559
•4 July 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-000848
[2019] NZHC 1559
BETWEEN MINISTER OF IMMIGRATION
Applicant
AND
Q
Respondent
Hearing: 2 July 2019 Appearances:
I C Carter for Applicant
A M Toohey – Contradictor – Counsel to assist the Court
Judgment:
4 July 2019
JUDGMENT OF GENDALL J
Introduction
[1] The applicant, the Minister of Immigration, applies to this Court for leave to appeal to the Court of Appeal against a judgment I gave in this matter on 4 December 2018 (the judgment).1 The judgment dealt with an appeal from a decision of the Immigration and Protection Tribunal in CW (China) v Minister of Immigration.2
[2] Leave to appeal the judgment is required. Here the applicant applies for that leave to appeal under s 56 of the Senior Courts Act 2016 and s 246 of the Immigration Act 2009 (the Act).
[3] In the judgment I had determined that absence of fault could be taken into account as a factor when determining a humanitarian appeal against a deportation
1 Minister of Immigration v Q [2018] NZHC 3173.
2 CW (China) v Minister of Immigration [2017] NZIPT 600408.
MINISTER OF IMMIGRATION v Q [2019] NZHC 1559 [4 July 2019]
liability under the Act. In an earlier decision in this Court, Dunningham J had granted leave to the applicant to appeal to the High Court the earlier decision of the Immigration and Protection Tribunal on the grounds that this matter was one of public importance. In noting the question whether the Tribunal in this case had made humanitarian exceptions to liability for deportation correctly and according to law, Dunningham J held (at [40]):
... I consider that the Tribunal would be assisted if there was a clear statement of law on exactly how absence of fault is to be taken into account under s 207.
[4]The question of law on which the grant of leave to appeal is sought is therefore:
Did the Tribunal err in law by considering the respondent’s absence of fault as a factor relevant to its assessment of “exceptional circumstances of a humanitarian nature” in s 207(1)(a) of the Act?
[5]In the judgment I answered this question in the negative.
Background facts
[6] The background facts in this matter are summarised at paragraphs [3] – [10] inclusive of the judgment. Briefly, the respondent became liable for deportation from New Zealand pursuant to s 158(1)(b)(ii) of the Act because it was discovered that false evidence had been provided in support of her residence application in August 2012. Prior to their marriage, her husband had committed passport and immigration fraud, of which the respondent Q had no knowledge. Thus, she appealed her deportation liability to the Tribunal on humanitarian grounds.
Principles for grant of leave to appeal
[7] Section 246(2) of the Act which addresses the issue of when leave to appeal to the Court of Appeal ought to be granted states:
(2) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made 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 Court of Appeal for its decision.
[8]That question of law is outlined at para [4] above.
[9] The test noted in s 246(2) has been addressed by the Court of Appeal in Wu v Minister of Immigration3 where it is noted that the threshold requires:
…a question capable of bona fide and serious argument involving an interest of sufficient importance to outweigh cost and delay.
[10] As to the test for determining whether an issue is one of general or public importance or whether for any other reason it is one that should be submitted for consideration on appeal, it has been said in LMN v Immigration and Protection Tribunal4 that the issues raised must:
…go beyond the particular circumstances of the applicant…[or]…raise an issue that suggests the existing law should be revisited by the Court.
Discussion
[11] In the present leave application, the applicant contends that it is seriously arguable here that the judgment incorrectly interpreted s 207 of the Act including, in particular, issues relating to the following:
(a)In holding that the “exceptional circumstances of a humanitarian nature” language in s 207(1)(a) of the Act permits consideration, as a relevant factor, of the respondent’s absence of fault in her husband’s fraud leading to the respondent’s liability for deportation.
(b)Section 207 of the Act does not intend in every humanitarian appeal that the basis for deportation liability (the fraud of another) may become a reason for finding “exceptional circumstances of a humanitarian nature” have been established.
(c)This absence of fault factor is neither a humanitarian circumstance nor exceptional.
3 Wu v Minister of Immigration [2016] NZCA 511 at [12].
4 LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [32].
(d)Consideration of the absence of fault factor at the initial stage of the inquiry is contrary to the statutory scheme and legislative history of the Act.
(e)The judgment incorrectly disregards the sequenced three-stage steps contemplated by s 207 and incorrectly recognises and applies the variable standard of “exceptionality”, contrary to the principles established in the Supreme Court decision in Ye v Minister of Immigration.5
[12] It is the applicant’s contention that all of these paragraphs outlined in paragraph [11] above are “green fields” points that are open for decision here. In a sense they comprise a blank canvas situation and a decision on these issues it is said includes important matters of principle.
[13] In opposition to this application, Ms Toohey, counsel for the Contradictor, indicates that the Minister’s application for leave to appeal the judgment should not be granted and it is opposed on the following grounds:
(a)In the judgment, on the contrary, it is claimed that I held that it would be an error of law to take into account absence of fault alone as a justifiable humanitarian circumstance, that it should not be analysed itself as constituting a humanitarian circumstance, and that it could only be taken into account as a general additional factor to the assessment of the other humanitarian factors present, and that all this was entirely appropriate.
(b)The finding that the Immigration and Protection Tribunal must assess the total picture of the factual circumstances in making its decision under s 207(1)(a) of the Act including a total absence of fault, is consistent with existing dicta of the Supreme Court that some facts may be common to the consideration of more than one test pursuant to s 207(1)(a) and that a prescriptive approach to the considerations under s 207(1) should be resisted on the basis that it is unnecessary and undesirable.
5 Ye v Minister of Immigration [2009] NZSC 76.
[14] In considering all of these matters, I am of the view that the present application for leave should be granted. I am satisfied that leave to appeal the judgment to the Court of Appeal on the proposed question of law which I have outlined above involves a question of general or public importance. This relates to what may be the correct approach under s 207 of the Act to absence of fault and it is a matter I accept that needs to be clarified. A general consideration to ensure that a decision of whether or not to make a humanitarian exception in cases such as the present one is carried out correctly and according to law is an important one. Before me, it is suggested that there is conflicting authority on these issues. Clarification of this by the Court of Appeal I accept would assist in providing future guidance to the Immigration and Protection Tribunal and for parties to humanitarian appeals under s 207. It does seem likely that cases involving deportation liability under s 158(1)(b) will continue to come before the Tribunal in humanitarian appeals under s 207. Again, I repeat my earlier conclusion that some further appellate clarification here is desirable.
[15] For all these reasons, the present application for leave succeeds. Leave of this Court is granted to the applicant, the Minister of Immigration, to appeal to the Court of Appeal against the judgment.
[16]As I understand the position, no issue of costs arises here.
...................................................
Gendall J
Solicitors:
Crown Law Office, Wellington
Anne Toohey, Barrister, Christchurch
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