Mohebbi v Minister of Immigration

[2023] NZHC 3453

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-821

[2023] NZHC 3453

UNDER

Section 245 of the Immigration Act 2009

IN THE MATTER

of an application for leave to appeal against a decision of the Immigration and Protection Tribunal

BETWEEN

AMIR HOSHANG MOHEBBI

Applicant

AND

MINISTER OF IMMIGRATION

Respondent

Hearing:

On the papers

Counsel:

M Shabani and R Bhullar for the Applicant

B M McKenna and E Dowse for the Respondent

Judgment:

30 November 2023

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 30 November 2023 at 12:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Shabani Law, Auckland

Crown Law, Wellington

Counsel:            B McKenna, Auckland

MOHEBBI v MINISTER OF IMMIGRATION [2023] NZHC 3453 [30 November 2023]

[1]                 On 28 April 2022, the Immigration and Protection Tribunal (IPT) dismissed an appeal by Amir Hoshang Mohebbi against his liability for deportation on the basis that he did not have exceptional humanitarian circumstances. Mr Mohebbi applied to the High Court to judicially review and appeal against the IPT decision.

[2]                 On 11 October 2023, Fitzgerald J granted Mr Mohebbi leave to appeal in relation to the questions:1

(a)First, was the Tribunal’s finding that no exceptional circumstances of a humanitarian nature arose untenable in light of the evidence before the Tribunal of the length of time Mr Mohebbi has been in New Zealand and the impact of deportation on both Mr Mohebbi and his daughter’s mental health?

(b)Second, if the answer to (a) above is “yes”, should the proceeding be referred back to the Tribunal for rehearing?

[3]                 The application for leave to appeal was otherwise declined, as was the application for leave to commence judicial review proceedings.

[4]                 On 7 November 2023, the parties to the anticipated appeal (being Mr Mohebbi and the Minister of Immigration) filed a joint memorandum in which they advise the Court that they have conferred and agree the appeal can be dispensed of without the need for a hearing. They ask the Court, by consent, to allow the appeal, quash the IPT decision and remit it to the IPT for a full rehearing.

[5]                 Notwithstanding the parties’ consent and invitation to the Court to allow the appeal, the Court still needs to be satisfied that it is appropriate to quash the IPT’s decision.2

[6]                 In her decision granting leave to appeal, Fitzgerald J referred to six key facts which were (presumably) accepted by the IPT. It was on the basis of those key facts

1      Mohebbi v Minister of Immigration [2023] NZHC 2854.

2      Lin v Chief Executive of the Ministry of Business, Innovation and Employment [2022] NZHC 3175 at [4].

that the Judge was satisfied that it was seriously arguable that the IPT erred in concluding that no exceptional circumstances of a humanitarian nature arose.

[7]                 While the Court was only assessing whether the issue was seriously arguable, the Minister now accepts that the specific combination of key facts are, on balance, outside the normal run of circumstances one might see in deportation cases generally. Mr Mohebbi had lived in New Zealand for 25 years and there was expert evidence on the potential for serious mental health issues for both Mr Mohebbi and his daughter to arise out of deportation.

[8]                 In this case, with particular reference to the analysis undertaken by  Fitzgerald J, I am satisfied that there is a clear basis for the IPT decision to be set aside. In the circumstances therefore I agree it is appropriate to set aside the IPT decision as sought by the parties.

[9]I therefore make the orders as sought by consent as follows:

(a)The questions of law identified by Fitzgerald J at [98] of the High Court judgment are both answered “yes”.

(b)The appeal is allowed.

(c)As a result, the proceeding is to be remitted to the IPT for a full rehearing of Mr Mohebbi’s humanitarian appeal before a different member. The IPT is to take the High Court judgment into account.

(d)Costs lie where they fall in respect of all costs incurred in the proceeding to date.

Woolford J