Minister of Immigration v Q

[2018] NZHC 3173

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000848

[2018] NZHC 3173

BETWEEN

MINISTER OF IMMIGRATION

Appellant

AND

Q

Respondent

Hearing:

20 November 2018

Appearances:

I C Carter for Appellant

No Appearance for Respondent
D M Lester – Contradictor – Counsel to Assist the Court

Judgment:

4 December 2018

JUDGMENT OF GENDALL J

MINISTER OF IMMIGRATION v Q [2018] NZHC 3173 [4 December 2018]

Introduction

[1]    This is an appeal by the Minister of Immigration (the Minister) against a decision of the Immigration and Protection Tribunal (the Tribunal). The basis for this appeal is the contention that the Tribunal materially misinterpreted and misapplied the “exceptional circumstances of a humanitarian nature” test in s 207(1)(a) of the Immigration Act 2009 (the Act) in treating the respondent’s absence of fault as a relevant factor, and thereby overturning her Deportation Liability Notice.

[2]    The respondent is not defending the Tribunal’s decision. As I understand it, she has decided her husband will likely be deported from New Zealand and she will leave with him. However, the Minister wished to proceed with the appeal because it is said there is a live legal issue of public importance. Davidson J in this Court accepted that the appeal should be heard despite being moot for that reason and he appointed a contradictor, Mr Lester, who appeared before me. There was no appearance on this appeal by anyone on behalf of the respondent.

Background

[3]    The respondent became liable for deportation 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. This false evidence stemmed from passport and immigration fraud committed by her husband, of which she had no knowledge.

[4]    The respondent has lived in New Zealand for seven years. She and her husband have a son born in 2013 who is a New Zealand citizen by birth.

[5]    The respondent’s husband supported her application for residence under the Family (Partnership) category and she was granted residence on 16 August 2012.

[6]    It was later discovered that her husband (and his mother) had relied on false passports to obtain their residence at an earlier time. These passports contained different names and dates of birth. Her husband was charged with five counts of fraud. Subsequently, both the respondent and her husband were served with Deportation Liability Notices.

[7]    The respondent asserts she had no knowledge of her husband’s fraud and due to her limited English language ability relied on him to complete her residence application. The husband (who admits his fraud) supported this assertion.

[8]    The husband did not have any right of appeal to the Tribunal to seek a humanitarian exception to deportation liability at the same time as his wife. He did, however, apply for refugee or protected person status. His application was declined at first instance by the Refugee Status Branch on 15 December 2017 and his subsequent de novo appeal to the Tribunal was dismissed on 25 July 2018.

[9]    The respondent appealed her deportation liability to the Tribunal on humanitarian and factual grounds, although she abandoned the latter.

[10]   The Tribunal allowed the humanitarian appeal under s 207(1) of the Act finding that:

(a)There were exceptional humanitarian circumstances due to first, the respondent’s complete innocence in respect of the fraud which led to her deportation liability, secondly, her connection to New Zealand (having lived in this country for approximately seven years) and, thirdly, her young son’s interests in remaining here and the effects dislocation would have on him as a pre-school age child;

(b)It would be unjust or unduly harsh for her to be deported due to her lack of culpability (which was said to be “at the lowest level”); and

(c)It would be in the public interest to allow her to remain for the above reasons, but also because her innocence means the immigration system is not undermined and the family unit ought to be kept together.

The grounds for determining a humanitarian appeal

[11]Section 207 of the Act 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.

[12]   As set out by the Supreme Court in Ye v Minister of Immigration, the section has two limbs, with the first limb having three ingredients or elements.1 Therefore, to meet the very high threshold test required in the section, the first limb set out at        s 207(1)(a) requires that there must be:

(a)Exceptional circumstances;

(b)Of a humanitarian nature;

(c)That would make it unjust or unduly harsh for the individual to be deported.

Once this is satisfied, the second limb outlined in s 207(1)(b) requires, in addition, that it must not be contrary to the public interest to allow the individual to remain in  New Zealand.

This appeal

[13]   The question of law for which leave was granted and that is now before this Court is:

1      Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34] - [36]. This case dealt with the virtually identical predecessor to s 207.

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?

[14]   The Tribunal considered the respondent’s absence of fault in its discussion of all three ingredients of the first limb and in its second limb inquiry. The Minister maintains that the Tribunal erred here in that it improperly used the respondent’s absence of fault in her husband’s fraud because:

(a)This factor is neither a humanitarian circumstance nor is it exceptional; and

(b)It is contrary to the statutory scheme and legislative history of the Act to consider this factor at the “exceptional circumstances of a humanitarian nature” stage.

[15]   The Minister does accept that this factor may be relevant at the “unjust or unduly harsh” stage or when considering the “public interest” limb.

[16]   In response, the contradictor submitted that absence of fault is a relevant humanitarian circumstance. Mr Lester noted that the Supreme Court has said that defining humanitarian circumstances is neither desirable nor necessary.2 He submitted that the Tribunal should not be restricted from taking into account whatever factors it finds relevant.

[17]   The contradictor contended that the elements of s 207 should not be treated as mutually exclusive, but as overlapping so the Tribunal did not err here.3

Legislative history

[18]   The Minister submitted that the legislative history of the Act shows a consistent exclusion of absence of fault circumstances as a basis for resisting liability for

2      Ye v Minister of Immigration, above n 1, at [24].

3      Doug Tennet Immigration and Refugee Law (3rd ed, Lexis Nexis, Wellington, 2017) at 522, referencing Zanzoul v Removal Authority HC Wellington CIV-2007-485-13335, 9 June 2009 at [152].

deportation. Thus, the Minister argued here that it is impermissible for that to be taken into account under s 207 because it has been expressly excluded from the Minister’s determination, particularly under s 158(1A), which gives rise to deportation liability.

[19]   However, the contradictor endeavoured to argue that this does not really impact upon the considerations under s 207. Mr Lester says the strict liability basis for issuing a deportation notice is separate from matters to be considered under s 207. As in other strict liability contexts, such as prosecutions under the Health and Safety at Work Act 2015, absence of fault is considered at the penalty/relief stage. Many factors may be considered under s 207 that are not relevant to the initial determination under s 158 or otherwise to issue a deportation notice. That is a strict liability provision. Mr Lester suggested that to limit s 207 on those lines would make it completely ineffective.

Guo v Ministry of Immigration

[20]   The Tribunal made reference to Guo v Minister of Immigration in support of its decision.4 The Supreme Court in that case, however, dealt with only one issue. This was whether the appellants should have leave to appeal a decision of the Tribunal to the High Court. In explaining its decision to grant leave the Supreme Court observed as obiter that:5

Eligibility for deportation is usually associated with fault on the part of the person to be deported, most obviously, the commission of offences or misrepresentations on applications for residency. In this context, the present appeals have the unusual feature that those to be deported (Jiaxi and Jiaming) are without any fault. For this reason, it could fairly be said that the circumstances in relation to them were “exceptional”. This was accepted by the Tribunal.

(emphasis added)

[21]   This statement has been accepted as correct by the High Court on a number of occasions, although some of the cases in which this occurred may be seen as not particularly on point given that they did not concern a person with a total lack of fault.6

4      Guo v Minister of Immigration [2015] NZSC 132.

5 At [10].

6      For example, Singh v Chief Executive, Ministry of Business, Innovation and Employment [2018] NZHC 972 at [32]-[37]; Patel v Minister of Immigration [2018] NZHC 577 at [43]-[57] and Tuitupou v Minister of Immigration [2016] NZHC 2002 at [43]-[44].

[22]   The Minister, in his submissions before me, criticised the Tribunal’s extensive reference to Guo. He suggested that Guo is not authority for the proposition that the respondent’s absence of fault here is relevant to determining whether there are exceptional humanitarian circumstances. Rather, he said the Supreme Court’s obiter comment on the relevance of an absence of fault relates only to the unjust or unduly harsh test and the public interest test. Moreover, as I have noted, this decision only dealt with whether leave should be given to appeal to the High Court. It did not address a substantive application.

[23]   The Minister also contended that Guo and the cases after it do not establish any binding authority that is directly on point, so this court is free to adopt a position that is correct as a matter of principle.

[24]   In response, the contradictor said that the Supreme Court’s decision in Guo proceeds on the basis that it was a “given” that the absence of dishonesty by the appellants in that case was seen as a qualifying humanitarian circumstance. Had the Court not considered it so, there would have been no point granting leave to appeal.

[25]   The contradictor noted that the Supreme Court expressly recorded without demur that:7

…the Tribunal concluded that there were exceptional circumstances of a humanitarian nature in that neither had been a party to Mr Guo's deceit in relation to the residency application…

[26]   Mr Lester submitted that the plain reading of these obiter comments in Guo gives support to the proposition that, in an appropriate situation, an appellant’s complete absence of fault can be an exceptional circumstance of a humanitarian nature.

7 At [16].

Exceptional humanitarian circumstances

[27]   In considering what might constitute a “humanitarian” circumstance, it is helpful to note the Concise Oxford English Dictionary definition of “humanitarian” as “concerned with or seeking to promote human welfare.”8

[28]   While the Supreme Court in Ye has opined that the courts should not attempt to define humanitarian circumstances, other cases have made some attempts to do so.9 Humanitarian circumstances have been suggested at one level as those that relate to the individual’s welfare, safety or happiness, that is, the focus is on the impact on the individual.10 The High Court in Sale v Removal Review Authority set out the following comments on what is an exceptional humanitarian concern (the previous wording):11

1.… A humanitarian concern is a concern for the well-being of others and a respect for their particular circumstances.

2.The categories of humanitarian response could not ever be closed.

3.A reviewing authority or court will always have to commence with a fact-based enquiry.

4.Ultimately however, it has to be acknowledged that the term “humanitarian” does involve a normative judgment: how ought one group of human beings behave towards another human being or beings?

5.The use of the word “exceptional” suggests that the particular humanitarian concern must be something more than an ordinary concern.

6.A humanitarian concern might be actual or prospective.

7.It might include physical, emotional or economic harm.

8.The relevant humanitarian concern need not necessarily arise out of the particular circumstances of the applicant. It might also extend to considerations of the impact of the removal on other parties.

8      Concise Oxford English Dictionary, 11th Ed, Oxford University Press, 2004.

9 At [24].

10     Zanzoul v Removal Authority, above n 3, at [157] and O'Brien v Immigration and Protection Tribunal

[2012] NZHC 2599 at [43].

11     Sale v Removal Review Authority HC Auckland M1471/93, 26 October 1993 at [9].

[29]   Exceptionality requires a factor to be “well outside the normal run of circumstances found in overstayer cases generally” and while they “do not have to be unique or very rare… they do have to be truly an exception rather than the rule.”12

[30]   The Minister submitted that the absence of fault does not fit into this category of a consequence or effect of deportation on the respondent. Moreover, he contended that the absence of fault is not exceptional as many people become liable for deportation notwithstanding an absence of fault or knowledge of fraud.

[31]   In response, the contradictor argued that a particular circumstance can be found to be unusual despite appearing in a large number of immigration appeals. This is because many people liable for deportation, Mr Lester suggested, do not appeal.13 He noted, too, that fraud can involve different degrees of culpability, so some circumstances may not reach the level of “exceptional circumstances”.

[32]   Mr Lester submitted that s 207 is deliberately broadly expressed. In the infinite variety of circumstances individual situations can present, he said, there may well be a case where the absence of fault makes for a compelling case. Therefore, Mr Lester maintained that that there is no reason to think Parliament intended to cut back the scope of circumstances the specialist Tribunal could consider.

[33]   In my view, however, there is another factor of importance in this case. This is the point advanced on behalf of the Minister relating to the deportation liability grounds set out in s 158 of the Act.

[34]In this regard, s 158 relevantly provides:

158Deportation liability of residence class visa holder due to fraud, forgery, etc

(1)A residence class visa holder is liable for deportation if—

(a)the person is convicted of an offence where it is established that—

12     Ye v Minister of Immigration, above n 1, at [34].

13     As noted in Exceptional Circumstances: Minister of Immigration v Jooste [2015] NZLJ at 146.

(i)any of the information provided in relation to the person’s application, or purported application, for a residence class visa or entry permission was fraudulent, forged, false, or misleading, or any relevant information was concealed; or

(ii)any of the information provided in relation to the person’s, or any other person’s, application, or purported application, for a visa on the basis of which the residence class visa was granted was fraudulent, forged, false, or misleading, or any relevant information was concealed; or

(b)the Minister determines that—

(i)any of the information provided in relation to the person’s application, or purported application, for a residence class visa or entry permission was fraudulent, forged, false, or misleading, or any relevant information was concealed; or

(ii)any of the information provided in relation to the person’s, or any other person’s, application, or purported application, for a visa on the basis of which the residence class visa was granted was fraudulent, forged, false, or misleading, or any relevant information was concealed.

(1A)     Subsection (1) applies—

(a)whether or not the person holding the residence class visa is the person who—

(i)provided the information that is established or determined to be fraudulent, forged, false, or misleading; or

(ii)concealed the relevant information that is established or determined to have been concealed; and

(b)whether the visa was granted before or after this subsection came into force.

…

[35]   In the present case, as I have noted, the respondent’s deportation liability was determined in accordance with s 158(1)(b) of the Act relating to the fraud of the respondent’s husband.

[36]   With this in mind, and turning to s 207 of the Act, to take into account only an absence of fault on the part of an applicant at the first limb stage of determining whether humanitarian circumstances existed would seem to me to be quite inappropriate. To do this, as the Minister suggested, would be tantamount to factoring in a consideration that has been expressly excluded from the Minister’s determination, in terms of s 158(1A) of the Act, that gave rise to the deportation liability.

[37]   I am satisfied that the Act cannot have intended that every person who can point to an absence of fault on their part in the way that deportation has arisen may then count that absence of fault on its own as a sufficient humanitarian circumstance for the purposes of s 207. The Act is clear in s 158(1A) that an absence of fault does not prevent a person from becoming liable for deportation on the basis of fraud or false information provided. It would be odd in this context if that absence of fault alone could then constitute a humanitarian circumstance sufficient to trigger s 207.

[38]   In my view, something more is required to constitute a humanitarian circumstance and that needs generally to be something which focuses on the impact of deportation on the individual concerned.

[39]   However, I am satisfied that once it is established that humanitarian circumstances exist (for example reasons relating to the health of the applicant, or, family reunification, or security issues) absence of fault considerations can then be factored in.   This will be when consideration is given to  the further limbs under      s 207(1)(a) of exceptional circumstances (relating to humanitarian issues), and whether it would be unjust or unduly harsh to deport the individual. Absence of fault is also relevant under s 207(1)(b), relating to the public interest.

[40]   On these aspects, Mr Carter for the Minister, in closing argument before me, appeared to accept first, that the categories of humanitarian circumstances here are not closed but secondly, that issues of innocence are relevant only to those limbs other than this first limb. Mr Carter, too, was at pains to emphasise that the appellant was not arguing here that any other conclusion would constitute a floodgates argument.

[41]   While I consider that the absence of fault is generally an exceptional circumstance that can be taken into account (essentially as an exacerbating feature) under s 207(1)(a), I agree with the Minister that it should not be analysed as itself constituting a humanitarian circumstance. As the courts have consistently defined the term, a humanitarian circumstance is a human welfare impact on the individual, or related parties, that will arise from that individual being deported. The individual’s absence of fault in relation to the event that caused the deportation does not fit within that definition.

[42]   However, I do note also that an absence of fault may be an ancillary factor that is considered under the third limb, the unjust or unduly harsh stage of s 207(1)(a). I consider that there is possible merit to the argument that a particularly strong factor at this stage, such as a complete absence of fault, could lower the level of exceptional humanitarian circumstances needed. Thus, in one situation where an individual was at fault, certain humanitarian circumstances may not make out the test, while the same circumstances may be sufficiently exceptional in a different case where the individual was innocent of wrongdoing.

[43]   Therefore, I do not agree with the Minister’s submission that the Tribunal should not have taken into account the respondent’s absence of fault when determining whether there were “exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported…”. The Tribunal must assess the total picture of the factual circumstances  in making its decision under      s 207(1)(a).14 While all three stages must be made out for an appeal to be successful, these three stages are not so demarcated that they do not influence each other.

Conclusion

[44]   It would be an error of law to count absence of fault alone as a justifiable humanitarian circumstance here. However, I find that it is not an error of law to consider the respondent’s absence of fault in this case as a general additional factor relevant to the assessment of whether the other humanitarian circumstances present are sufficiently exceptional overall to make out the very high threshold test in

14     See Nikoo v Removal Review Authority [1994] NZAR 509 at 15-16.

s 207(1)(a) of the Act. This includes a consideration too of whether, in all the circumstances, deportation would be unjust or unduly harsh and whether it would be contrary to the public interest to allow the applicant to remain in this country. I therefore find that the Tribunal did not err in law by doing so here.

[45]The answer to the question framed at [13] is therefore “No”.

[46]This appeal is dismissed.

[47]As to costs, they are to lie where they fall.

...................................................

Gendall J

Solicitors:

Crown Law, Wellington

Ian Carter, Barrister, Wellington Dale Lester, Barrister, Christchurch

Copy to Respondent