Mohebbi v Minister of Immigration
[2023] NZHC 2854
•11 October 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-816
[2023] NZHC 2854
UNDER Section 249 of the Immigration Act 2009 IN THE MATTER
of an application for leave to judicially review a decision of the Immigration and Protection Tribunal
BETWEEN
AMIR HOSHANG MOHEBBI
Applicant
AND
MINISTER OF IMMIGRATION
First Respondent
IMMIGRATION AND PROTECTION TRIBUNAL
Second Respondent
Continued …
Hearing: 20 June 2023 Appearances:
M Shabani and R Bhullar for the Applicant BM McKenna for the Respondent
Judgment:
11 October 2023
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 11 October 2023 at 4.00pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
MOHEBBI v MINISTER OF IMMIGRATION [2023] NZHC 2854 [11 October 2023]
CIV-2022-404-821
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
Appellant
AND MINISTER OF IMMIGRATION
Respondent
Introduction
[1] Amir Mohebbi is an Iranian citizen. He became a New Zealand resident in April 2010. He is 50 years old.
[2] Mr Mohebbi has been in New Zealand since July 1997. In August 2017, he pleaded guilty to and was convicted of importing methamphetamine (the offending having taken place in 2015), and other related drug offences. In March 2018, he pleaded guilty to and was convicted of a further charge of importing methamphetamine, that offending having taking place in 2010. He was sentenced to 10 years and five months’ imprisonment, with a minimum period of imprisonment of five years, later reduced on appeal to nine years’ imprisonment with no minimum period of imprisonment.
[3] Mr Mohebbi’s convictions made him liable for deportation under s 161 of the Immigration Act 2009 (the Act). He was served with a deportation liability notice on 8 July 2021.
[4] Mr Mohebbi appealed against his liability for deportation to the Immigration and Protection Tribunal (the Tribunal) on humanitarian grounds.1 The Tribunal declined the appeal in a decision delivered on 28 April 2022 (the Tribunal’s decision).2 The Tribunal concluded that there were no exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for Mr Mohebbi to be deported.
[5] Mr Mohebbi now applies under s 249 of the Act for leave to judicially review the Tribunal’s decision, and under s 245 for leave to appeal against the Tribunal’s decision. The Minister opposes leave being granted under either provision. As is customary, the Tribunal has played no active role in Mr Mohebbi’s applications.
[6]In the remainder of this judgment I will:
(a)first, set out the factual background in a little more detail;
1 Immigration Act 2009, s 206.
2 Mohebbi v Minister of Immigration [2022] NZIPT 600694 [Tribunal Decision].
(b)second, summarise the Tribunal’s decision;
(c)third, summarise the applicable legal principles (about which there is no real dispute);
(d)fourth, briefly summarise the parties’ submissions; and
(e)finally, set out my discussion of the issues arising and my reasons for the conclusions I reach.
Factual Background
[7] Mr Mohebbi was born in Iran in 1972. He married his first wife in Iran in 1994.
[8] In July 1997, Mr Mohebbi arrived alone in New Zealand with no documentation and claimed refugee status. That claim was declined by Immigration New Zealand (INZ) in April 1998. In August 1998, Mr Mohebbi’s appeal to the Refugee Status Appeal Authority was dismissed.
[9] In September 1998, Mr Mohebbi married his second wife and applied for a New Zealand work permit based on that marriage. In February 1999, after having refused to consider his application, INZ served him with an order for his removal from New Zealand. Mr Mohebbi appealed to the Removal Review Authority (the RRA).
[10] In September 1999, the RRA allowed Mr Mohebbi’s appeal and granted him a temporary permit to enable him to apply for residency. He did so in June 2000, supported by his second wife. The couple had a daughter who was born in October 2000.
[11] In November 2000, Mr Mohebbi was convicted of making a false oath on entry into New Zealand (regarding his first marriage) and of bigamy, given his first marriage in Iran had not been dissolved prior to his second marriage in New Zealand. He was sentenced to three months’ non-residential periodic detention.
[12] In March 2001, Mr Mohebbi’s work permit expired, consequently he was no longer lawfully in New Zealand. His application for a further work permit was declined on the basis that his second wife had withdrawn her support for the application. An appeal by Mr Mohebbi to the RRA was dismissed in January 2003. In the interim, in January 2002, Mr Mohebbi’s (then) new partner gave birth to their son.
[13] In March 2003, INZ served a further removal order on Mr Mohebbi and took him into custody given his ongoing unlawful status in New Zealand. However, INZ was unable to deport Mr Mohebbi because he refused to produce his Iranian passport or to apply for a new passport from Iran, and New Zealand had no agreement with Iran for the return of persons without passports. As a result, Mr Mohebbi was detained in custody on regular renewals of the warrant of commitment to keep him in custody, until he was released in August 2003 by order of the High Court (on an application for habeas corpus).3
[14] In January 2004, following an amendment to the Immigration Act 1987, Mr Mohebbi was again detained in custody. In April 2004, Mr Mohebbi’s partner gave birth to their daughter, Mr Mohebbi’s third child in New Zealand.
[15] In October 2004, Mr Mohebbi made a second claim for refugee status which was declined by INZ, and his subsequent appeal to the RRA was dismissed. Mr Mohebbi continued to be detained in custody under the amended provisions of the Immigration Act 1987, though was ultimately ordered to be released in November 2007 by the High Court on the basis there were exceptional circumstances for release pending an agreement between New Zealand and Iran for the return of Iranian nationals. Upon Mr Mohebbi’s release, INZ granted him a limited purpose permit and then a work permit. In March 2009, Mr Mohebbi applied for residence based on his partnership with his partner—a residence visa was granted in April 2010.
3 Mohebbi v Minister of Immigration [2003] NZAR 685 (HC). This was on the basis that the Immigration Act 1987 authorised Mr Mohebbi’s detention for the purpose of establishing his identity, but not for the purposes of persuading him to produce or to apply for a passport.
[16] There Mr Mohebbi’s troubles could, and should, have ended. However, in June 2010 he imported methamphetamine into New Zealand. Although the New Zealand Customs Service had intercepted the package in which Mr Mohebbi had hidden the methamphetamine and found it to contain 81.2 grams of the drug and had spoken to him about it at the time, no further action was taken. As noted earlier, Mr Mohebbi was not convicted in relation to this offending until some eight years later, in March 2018.
[17] In the meantime, in May 2012, INZ granted Mr Mohebbi a permanent resident visa. Again, despite this positive step, in 2015, Mr Mohebbi again imported methamphetamine into New Zealand. Upon detection of this offending he was arrested in January 2016 and remanded in custody.
[18] In August 2017, Mr Mohebbi pleaded guilty to charges of importing methamphetamine (in 2015); supplying methamphetamine (as a representative charge); offering to supply methamphetamine (again a representative charge); selling cannabis (again a representative charge); offering to sell cannabis; possession of cannabis; and possession of utensils for consuming cannabis. These are all offences under the Misuse of Drugs Act 1975. He was also convicted of one charge of unlawful possession of a restricted weapon (an offence under the Arms Act 1983). In March 2018, Mr Mohebbi pleaded guilty to a further charge of importing methamphetamine into New Zealand, in relation to the 2010 importation referred to at [16] above.
[19] A useful summary of Mr Mohebbi’s 2015 offending is set out in the Court of Appeal’s judgment on Mr Mohebbi’s appeal against sentence.4 The Court said:
[7] On January 2016, Mr Mohebbi attended at Customs’ service counter to uplift the second parcel. That same day, Customs searched a storage unit Mr Mohebbi had rented and located pepper spray, cannabis plant material, cannabis utensils, and electronic digital scales. When Customs officers interviewed Mr Mohebbi that day and obtained his cell phone, they discovered he had supplied methamphetamine on 10 occasions between 2012 and August 2016. No less than 9.1 grams was supplied. Cell phone data also revealed that in June 2015 Mr Mohebbi sold an unknown quantity of cannabis to two individuals. That month, Mr Mohebbi has also offered, to no avail, to sell half an ounce of cannabis to a third individual. In the interview, Mr Mohebbi admitted to importing the December 2015 parcel, but denied packing it or any knowledge of its contents.
4 Mohebbi v R [2020] NZCA 343.
[20] At the sentencing hearing, Mr Mohebbi sought a discount given his status as an Iranian national and the additional hardship foreign national prisoners experience in custody compared to New Zealand nationals.5 The Court of Appeal noted “the contention here is that Mr Mohebbi’s family largely remain in Iran such that his detention in this country will unfairly disadvantage him”.6 The Court did not consider a discount was warranted, noting that Mr Mohebbi’s long-term residence in New Zealand prior to his offending tempered the harshness of isolation from his family in Iran.
[21] As to the nature and scale of Mr Mohebbi’s offending, the Court described him as having a high-level role in the drug offending and a clear financial motivation.7 The Court described the offending in the following terms:8
… there is an available inference here that Mr Mohebbi was solely responsible for the importation of the drugs into New Zealand and expected to realise potentially significant financial benefits from the importation and subsequent supply, for himself. Mr Mohebbi was not a link in a wider supply chain, but rather more, the entrepreneur.
[22] The Court also said that the offending was not sophisticated, and indeed described it as “amateurish”. Nevertheless, the Court stated that “an offender who manages their own importation operation for financial advantage in the hope of profit is unlikely to fall, contrary to counsel’s submission, into the lower end of the ‘significant’ range in terms of role”.9 Finally, the Court referred to Mr Mohebbi having been addicted to methamphetamine at the time of the offending—though it seems no specific discount was adopted for this.
[23] In November 2020, the Parole Board recommended Mr Mohebbi’s release on parole. On 8 July 2021, Mr Mohebbi was served with deportation liability notices because of his convictions. This led to Mr Mohebbi’s humanitarian appeal to the Tribunal and the Tribunal’s decision of 28 April 2022.
5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [163].
6 At [27].
7 At [29].
8 At [21].
9 At [22], referring to the sentencing bands for drug offending set out in Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[24] Following the Tribunal dismissing his appeal, on 25 May 2022, Mr Mohebbi filed his applications for leave to appeal and judicially review the Tribunal’s decision. There was then a delay in the applications being heard. They were originally scheduled to be heard on 18 October 2022, though were rescheduled to 22 November 2022 to accommodate Mr Mohebbi’s counsel’s availability. However on 1 November 2022, Mr Mohebbi’s then counsel filed an application for leave to withdraw, which was granted by Gordon J on 7 November 2022. Following some delay in Mr Mohebbi securing the services of a new lawyer, a hearing date was eventually allocated for 20 June 2023.
[25]I turn now to the Tribunal’s decision.
The Tribunal’s decision
[26] After setting out the background which is summarised at [7] to [25] above, the Tribunal summarised the evidence given in support of Mr Mohebbi’s appeal.10 This comprised evidence from Mr Mohebbi, his son, one of his daughters and expert evidence from a clinical psychologist, Mr Kirker.
[27] The Tribunal recorded Mr Mohebbi’s evidence that his second wife (who he had married in New Zealand in September 1998) had gone to live in Australia in April 2001 with their daughter. Mr Mohebbi said that he had had no contact with his daughter to his second wife until 2017, when she visited him in prison in New Zealand. The Tribunal noted that Mr Mohebbi and his oldest daughter remain in contact by social media and that his daughter is now employed in a professional position in Australia.
[28] The Tribunal recorded Mr Mohebbi’s evidence that he started living with his (then) new partner in June 2001, and other than when he was in Immigration custody they lived together until about October 2010. As noted earlier, the couple have two children, a son and daughter.
10 Tribunal Decision, above n 2.
[29] The Tribunal recorded Mr Mohebbi’s evidence that he had visited Iran in May 2010 (for around three months), August 2012 (for around five months), October 2013 (for around four months) and most recently in June 2015 (for approximately six months), accompanied on this trip by his partner and their two children. Mr Mohebbi said that on these occasions, he lived with his parents at their house or at a brother’s house.
[30] The Tribunal then summarised Mr Mohebbi’s evidence as to his incarceration for his drug offending, and what he has done since his release on parole in November 2020, including that he lived for a short time with his partner before moving to his own accommodation in April 2021, at which time he also obtained employment as a concrete truck driver.
[31] The Tribunal noted Mr Mohebbi’s evidence that he pays his living expenses and provides financial assistance to his youngest daughter, who has graduated from a tourism course and is now employed at Auckland Airport. On his days off or at weekends, the Tribunal recorded that Mr Mohebbi cooks for his children at his former partner’s home or sometimes they go out to eat. The Tribunal noted Mr Mohebbi’s evidence that he sees less of his son who works six days per week and has a girlfriend. The Tribunal also recorded his evidence that he maintains a good relationship with his former partner and he is invited to her family events such as Christmas Day.
[32] The Tribunal recorded Mr Mohebbi’s evidence that he had suffered from depression since he was in prison and has been prescribed medication for it, but that he tries not to take it because it can cause him to overeat and interferes with his ability to drive. The Tribunal recorded Mr Mohebbi’s remorse for his offending and his evidence that he learned a lot about himself while in prison and as a result of the various programmes he completed.
[33] In terms of Mr Mohebbi’s relationship with his children, the Tribunal recorded his evidence as follows:
[37] The appellant states that the most important thing in his life is now to play a meaningful part in his children’s lives. He was not there for them when he was in prison. This had a huge impact on them and is something that he will always deeply regret. He wants to make it up to them while they are still young and starting on their adult lives. He believes that he can have a positive
input into their lives by sharing experiences and talking to them openly about the consequences of actions.
[38] The appellant believes that his children would be devastated if he returned to Iran. It would be difficult to maintain a meaningful relationship with them from so far away. The appellant states that his life would be meaningless without his children and that he would struggle mentally if separated from them. He feels more like a New Zealander than an Iranian. He would have no life in Iran.
[34] The Tribunal then addressed Mr Mohebbi’s son’s evidence. He said that he did not have a recollection of his mother and father living together except for brief periods of time immediately upon his father’s release from prison in November 2020. He stated that he now sees his father on some Sundays for dinner and would like to celebrate his future achievements with his father in New Zealand, such as his pilot training. The Tribunal noted:
[41] If the appellant is deported to Iran, [Mr Mohebbi’s son] would remain in contact as much as he could. [Mr Mohebbi’s son] visited Iran with his father in 2015. He met his father’s family, although communication was difficult as they mostly did not speak English and he does not speak Farsi. However, he loved it there and would be happy to visit his father in Iran.
[35] Turning to Mr Mohebbi’s youngest daughter’s evidence, the Tribunal recorded that she presently sees Mr Mohebbi once per week at her home, usually on a Sunday when he cooks or brings food to eat. The Tribunal then addressed Mr Mohebbi’s daughter’s mental health struggles, summarising them as follows:
[43] In 2019 and 2020, [Mr Mohebbi’s daughter] struggled with her mental health, which she believes mostly concerned not knowing what would happen to her father and not having anyone to talk to about that. She received help from a counsellor arranged through her school. She is not perfect now, but she has improved. In November 2021, she completed a tourism course. In January 2022, she started full-time employment.
[44] If the appellant is deported to Iran, [Mr Mohebbi’s daughter] is concerned that her past mental health problems will repeat themselves. She does not think that the mental health services provided through her school would be available to her now. If the appellant is deported, she would stay in touch with him, for example, by telephone and she thinks that she may be able to visit him there.
[36] Finally, the Tribunal addressed Mr Kirker’s evidence. As noted, Mr Kirker is a clinical psychologist. He recorded the Department of Corrections’ assessment of Mr Mohebbi as presenting as a low risk of reoffending under one assessment tool, and a low to medium risk of reoffending under another tool. Mr Kirker assessed
Mr Mohebbi as having an overall risk of reoffending of low/moderate. The Tribunal recorded Mr Kirker’s observation in his report that “it seems [Mr Mohebbi] would be at greater risk of reoffending when he feels desperation and is not able to identify lawful solutions”.11
[37] The Tribunal went on to note that Mr Kirker’s report identified that Mr Mohebbi was developing a relationship with his two younger children and had stated that:12
…the level of attachment between [Mr Mohebbi] and his New Zealand based children is not entirely clear. It has clearly been affected by him being incarcerated for significant periods of their lives. [Mr Mohebbi’s daughter] described the relationship with her father as a ‘work in progress’ and that they need to catch up on lost time.
[38] Mr Kirker had also addressed Mr Mohebbi’s daughter’s mental health, noting her report to him that her incidents of self-harm were chronic, due to various stressors and pressures, including her father’s incarceration and his problematic relationship with her mother. Mr Kirker also noted Mr Mohebbi’s daughter’s recent improvements in her mental health, though the Tribunal noted Mr Kirker’s view that there was a risk of regression in her mental health if Mr Mohebbi were to be deported.
[39] Finally, the Tribunal addressed Mr Kirker’s evidence about Mr Mohebbi’s own mental health in the event he were to be deported. The Tribunal cited the following extracts from Mr Kirker’s report:13
[The appellant] stated to the writer that he would kill himself rather than be deported to Iran. This was indicative that he still had the wilfulness and defiance he showed in the mid-2000’s when he refused to cooperate with authorities seeking to arrange his return to Iran. … [The appellant] has lived in New Zealand for nearly 25 years and is determined to remain living in the country. He has fought very hard to stay here and appears to regret jeopardising his chances to remain a permanent resident of New Zealand. Further, [the appellant] seems to have a genuine desire to support his children and wants to have a closer relationship with them, which would be much harder to do from Iran.
It is the writer’s opinion that [the appellant’s] mental health would likely deteriorate to a significant extent should he be forced to leave New Zealand. It is possible that he will attempt self-harm, even though the would have a negative impact on the mental health of his children, especially
11 At [48].
12 At [49].
13 At [53].
[Mr Mohebbi’s daughter]. Even though he is a resourceful person without a psychiatric history, it is opined that [the appellant] will very much struggle with no longer being able to stay in New Zealand, and that the negative impact on his mental health will be greater tha[n] for the average deportee. A part of his potentially extreme reaction will be his wilful behavioural tendency alongside a distressed mental state.
[40] The Tribunal then summarised the documents and submissions produced and advanced on behalf of Mr Mohebbi. The Tribunal summarised those submissions as focussing on the lengthy period of time he has lived in New Zealand (since 1997) and that if deported to Iran, he would be separated from his children who would remain in New Zealand. This in turn would have serious negative impacts on his and his daughter’s mental health. In those circumstances, the Tribunal recorded counsel’s submission that it would be unjust and unduly harsh to deport Mr Mohebbi when weighing the exceptional circumstances against the seriousness of Mr Mohebbi’s offences. The Tribunal also noted counsel’s submission that it would not be contrary to the public interest for the appellant to remain in New Zealand given he had no other criminal convictions for drug offences, was assessed by the Department of Corrections as having a low risk of reoffending, and noting the Parole Board’s record that he had been a “model prisoner”. The Tribunal also recorded the submission that Mr Mohebbi was very remorseful for his offending and had taken all of the steps he could to rehabilitate himself. The Tribunal also took into account earlier written statements from Mr Mohebbi’s son and his former partner, photographs of the family, as well as letters in support of the appeal from three of Mr Mohebbi’s work colleagues.
[41] The Tribunal then noted the respondent’s submissions, that while Mr Mohebbi has been in New Zealand since 1997, after deducting his time spent in custody and the 22 months he spent overseas between 2010 and 2015, he has only spent 15 years in the New Zealand community—the respondent submits that this is not exceptional. The respondent noted that the appellant had spent the first approximately 24 years of his life in Iran and has travelled there for lengthy periods of times as an adult. The Tribunal recorded the respondent’s submission that Mr Mohebbi is therefore familiar with the culture, language, and life in Iran and he has family members there. The Tribunal noted the respondent’s position that Mr Mohebbi’s children in New Zealand are on the cusp of adulthood and live independently, and there would be a variety of means by which he could maintain contact with his children, including them travelling to Iran to visit him if desired.
[42] Balanced against this, the respondent submitted that Mr Mohebbi’s offending was serious such that in the context of any exceptional humanitarian considerations that were found to exist, deportation would not be unduly harsh or unjust. The Tribunal also recorded the respondent’s submissions on why Mr Mohebbi had not established that it would not be contrary to the public interest for him to remain in New Zealand, including that public confidence in the immigration system would be undermined if he were permitted to remain in New Zealand despite his drug offending.
[43] The Tribunal then summarised the relevant legal principles governing the appeal. It is not submitted on the present applications that there was any error by the Tribunal in doing.
[44] It is convenient to set out in full the Tribunal’s assessment of whether Mr Mohebbi had established exceptional circumstances, particularly in the context of some of the matters now raised on the present applications. The Tribunal said:
[69] The Tribunal acknowledges that deportation would separate the appellant from his son and younger daughter in New Zealand. If he remains here, he will be able to maintain a direct relationship with his children. However, to a significant degree, he is now rebuilding his relationship with his children in New Zealand after being absent from much of their childhoods. The children do not have any strong memories of living permanently with the appellant. After the appellant’s release from prison in November 2020, he lived with the children and their mother for a short period of time. Since then, he has lived in his own accommodation and has contact with the children not more than once per week on Sundays.
[70] The Tribunal acknowledges that the appellant’s son values his opportunities to socialise with his father. However, the son is an adult, who is making his own way and confirmed that he would happily make an effort to remain in contact with his father if he returned to Iran. It is possible that the son could visit the appellant in Iran in the future.
[71] The Tribunal acknowledges that the appellant’s daughter had serious mental health problems in 2019, at least in part related to her separation from her father. However, with support, she later completed a course and started full-time employment. It is reasonable to suppose that she will be able to access further effective support for her mental health, if needed, in the event that the appellant is deported to Iran.
[72] In summary, the Tribunal accepts that the appellant would miss his children if he had to return to Iran, and they would miss him. However, they are now young adults who are employed, financially independent and able to maintain a relationship with the appellant, if he returns to Iran.
[73] The Tribunal acknowledges that the appellant has lived in New Zealand since 1997, that is, nearly 25 years or half his life and almost all his adult life.
He has had relationships here, his children were born and raised here, and he will have formed other relationships that will add to his sense of loss if deported. As against that, he has spent long periods in immigration custody (over four years), overseas in Iran (nearly two years) and in prison (nearly five years from January 2016 to November 2020), which detract from his level of integration into the New Zealand community.
[74] In that context, the Tribunal accepts Mr Kirker’s opinion that, if the appellant is deported from New Zealand, his mental health is likely to deteriorate to a significant degree and perhaps to a greater extent than the “average” deportee. However, there is no evidence that the appellant could not obtain suitable psychological support in Iran. Further, the appellant can draw on his strong connection to Iran through his family, that is, his parents, four brothers and two sisters. He is familiar with life in Iran, where he grew up and held employment. The appellant has recent experience of life in Iran and contact with his family there, having made five visits for a total of about 22 months from 2010 and 2015, when he lived with his parents and a brother. This included a visit in 2015, with the appellant’s son (who states that he would be happy to visit the appellant there) and younger daughter.
Conclusion on exceptional circumstances of a humanitarian nature
[75] Assessing the appellant’s circumstances, on a cumulative basis, including his mental health, the interests of his son and daughter in New Zealand, the children’s ages and independence, the daughter’s mental health, the appellant’s connection to Iran through family and his familiarity with life there and his level of integration into New Zealand society, the Tribunal is not satisfied for the reasons stated above that he has met the high threshold required for exceptional circumstances of a humanitarian nature.
[45] Given that conclusion, the Tribunal did not go on to consider the remaining aspects of the humanitarian appeal test (set out below).
Legal principles
The principles to be applied to a humanitarian appeal
[46] Pursuant to s 161(2)(a) of the Act, a person liable for deportation under s 161 may, within 28 days of being served with a deportation liability notice, appeal to the Tribunal on humanitarian grounds. The Tribunal must allow an appeal on humanitarian grounds if 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 (s 207(1)(a)); and
(b)it would not in all circumstances be contrary to the public interest to allow the appellant to remain in New Zealand (s 207(1)(b)).
[47] In Ye v Minister of Immigration,14 the Supreme Court described s 207(1)(a) as having three “ingredients”, namely:
(a)exceptional circumstances;
(b)of a humanitarian nature;
(c)that would make it unjust or unduly harsh for the appellant to be removed from New Zealand.
[48] As to (a), the Court stated that an appellant’s circumstances must 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”.15 As to (b), the circumstances must be the consequence or effect of the deportation, and will relate to an appellant’s welfare, safety and happiness.16 In terms of (c) above, “unduly harsh” means that the harshness goes beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system.17
[49] In Minister of Immigration v Q, the Court of Appeal emphasised that “ingredients” (a) and (b) above are not to be considered separately, instead together they form the first consideration under s 207(1)(a).18
[50] If s 207(1)(a) is met, the Tribunal must then move on to the public interest inquiry. This requires the Tribunal to consider whether, “despite the injustice or undue harshness, it would in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand”.19
14 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34]–[38] per Blanchard, Tipping, McGrath and Anderson JJ, addressing s 207’s predecessor which is materially the same as s 207.
15 At [34].
16 Minister of Immigration v Q [2020] NZCA 288 at [31].
17 Ye v Minster of Immigration, above n 14, at [35].
18 Minister of Immigration v Q, above n 16, at [29]–[30].
19 Ye v Minister of Immigration, above n 14, at [30].
The principles applicable to an application for leave to appeal and to commence review proceedings
[51] The fact that leave is required from this Court in order to commence an appeal against or to judicially review a Tribunal decision plainly indicates Parliament’s intention to limit such appeals and reviews.20 Further, that appeals (with leave) are to be on questions of law only has been described as limiting the High Court’s role on an appeal to cases that would clarify the law and determine its proper construction.21 Not every alleged error of law is of such importance, either generally or to the parties, to justify leave being granted.22
[52] The approach taken to leave applications under s 245(3) (appeal) and s 249(6) (judicial review) is relatively well settled. In summary, what an applicant is required to show is a seriously arguable error of law (appeal) or a seriously arguable issue for review (review), in each case being one of general or public importance or one that for any other reason should be considered by the High Court.23 Under s 249(6)(a) of the Act, for leave to bring judicial review, the Court must have regard to whether the review proceedings involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal.
[53] It is well settled that the weight afforded by the Tribunal to relevant considerations is a matter for the Tribunal. The assessment and weighting of the evidence before it are matters for the Tribunal’s discretion.24 As a result, such balancing seldom amounts to an error of law.25
20 Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2018] NZHC 972, [2018] NZAR 1120 at [26].
21 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 20. See also Hai v Minister of Immigration [2019] NZCA 55, [2019] NZAR 1867 at [36], referring to Waller v Hider [1988] 1 NZLR 412 (CA) at 413.
22 Waller v Hider, above n 21, as cited in Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 20, at [26]; and Hai v Minister of Immigration, above n 21, at [36].
23 Singh, above n 20, at [24]; Wu v Minister of Immigration [2016] NZCA 511, [2016] NZAR 1667 at [12].
24 Minister of Immigration v Zhang [2013] NZCA 487, [2014] NZAR 88 at [34]; AI v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at [49]; AH v Immigration and Protection Tribunal [2017] NZHC 1880 at [29]; Smith v Minister of Immigration [2020] NZHC 1510 at [50].
25 Guo v Immigration and Protection Tribunal [2014] NZHC 804 at [55]; Minister of Immigration v Zhang, above n 24.
[54] It is accepted that “an ultimate conclusion of a fact-finding body can sometimes be so insupportable—so clearly untenable—as to amount to an error of law”.26 This will only be the case, however, where the conclusion is “clearly wrong or untenable”,27 being “unsupported by evidence or one that is inconsistent or in conflict with the evidence.”28 These thresholds involve a “high hurdle”.29
[55] As to alleged factual errors, this Court has recognised that challenges to factual findings are not properly matters for judicial review.30 In the context of an application for leave to appeal under s 245, any alleged factual errors must amount to an error of law. Kós J in Taafi v Minister of Immigration set out a “triple hurdle” which must be passed in order for an alleged factual error to justify leave, namely a seriously arguable case that the factual findings made by the Tribunal are in fact erroneous; that the alleged errors are in combination so grave as to constitute an error of law; and that the question of law is one of general or public importance, or for some other reason ought to be considered on appeal.31
[56] Kós J in Taafi said that the conclusion that an error of law based on alleged factual errors will be a matter of general or public importance will be a “hard ask”, no matter how profound the alleged error. He also went on to say, in relation to whether there was “some other reason” why the alleged error ought to be put before the High Court, that this would require exceptional circumstances, “involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing.”32 That approach was affirmed by the Court of Appeal in Machida v Chief Executive of Immigration New Zealand.33
26 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26].
27 Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [16].
28 JO v Chief Executive of the Ministry of Business, Innovation, and Employment [2015] NZCA 482 at [17].
29 Chorus Ltd v Commerce Commission [2014] NZCA 440 at [110]–[111].
30 See for example AP v Immigration and Protection Tribunal [2016] NZHC 1085 at [24].
31 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19]. The third “hurdle” is the statutory requirement set out in s 245(3).
32 At [19].
33 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
[57] A number of decisions of this Court have expressed doubt as to whether the “any other reason” test under s 249(6)(b) is to be interpreted in the same way. For example, in R M v Immigration and Protection Tribunal, Palmer J suggested constitutional and NZBORA considerations justified a slightly more expansive position under s 249, which could tip the balance in marginal cases.34 The point is yet to be clarified by the Court of Appeal.35 For the reasons stated at [96] below, any difference between the “any other reason” tests in ss 245 and 249 is not determinative in this case.
The proposed grounds of appeal/review
[58] Mr Mohebbi filed with his applications for leave a draft notice of appeal and a draft statement of claim in the proposed review proceedings. It is fair to say that in large part, the two documents are in general and high-level terms only, with a lack of proper particularisation. For example, the proposed notice of appeal states:
(a)that the Tribunal “erred in a point of law in failing to consider relevant matters in the humanitarian appeal against deportation”;
(b)that the Tribunal “did not consider all of the evidence provided by the witnesses, nor did it consider New Zealand’s obligations under the Convention of Civil and Political Rights” (ICCPR);
(c)that the Tribunal also took into account “irrelevant considerations regarding the availability of mental health/psychological treatment”; and
(d)had the Tribunal “considered the other evidence and not considered the irrelevant, it is likely to have found that it was unjust and unduly harsh to deport the applicant.”
34 R M v Immigration and Protection Tribunal [2016] NZHC 735 at [51]. See also those decisions referred to in Singh, above n 20, at [25].
35 See Hai v Minister of Immigration, above n 21, at [36]–[39]; though see the (obiter) comment in
P v Minister of Immigration [2022] NZCA 188 at [18].
[59] The notice of appeal suggests that the question of law for resolution, were leave to be granted, is “whether the [Tribunal] was wrong in law in failing to consider all witness evidence and taking into account irrelevant considerations.”
[60] The draft statement of claim in the review proceedings is of a similar flavour. It alleges that the Tribunal did not “properly consider” all of the evidence, and did not consider the effect of the decline in Mr Mohebbi or his daughter’s mental health should he be deported. It is also alleged that the Tribunal made factual findings as to the availability of mental health support for Mr Mohebbi in Iran and his daughter in New Zealand in the absence of any evidence for those findings. It is further alleged that there was no evidence to support the Tribunal’s conclusion that Mr Mohebbi would be supported by his family in a mental health context were he to be deported.
The submissions
Mr Mohebbi’s submissions
[61] Mr Shabani, counsel for Mr Mohebbi, made somewhat broad and wide ranging submissions on behalf of Mr Mohebbi. For example, despite not being raised in the applications for leave, Mr Shabani submits that Mr Mohebbi converted to Christianity when he came to New Zealand and was baptised along with his children, and that if he were deported to Iran he would be persecuted by the Iranian authorities. It is also submitted that given Mr Mohebbi has been away from Iran since he was around 24 years old, he does not have anywhere to live in Iran, and that he cannot rely on his siblings to support him due to his change in religion as “he is considered an infidel because of the change”.
[62] Mr Shabani also emphasises Mr Mohebbi’s genuine remorse for his offending and that he is in the process of becoming a peer support worker at Odyssey House in Auckland, to support people who are suffering from drug addiction.
[63] Mr Shabani submits that Mr Mohebbi shares “an incredibly close and profound bond with his children, including his step-children”. Mr Shabani firmly submits that it would be in the best interests of the children to maintain the deep and meaningful relationship with Mr Mohebbi. He submits that Mr Mohebbi’s daughter, son and Mr Kirker provided compelling evidence as to how their own lives would be
extremely impacted if Mr Mohebbi were to be deported. Mr Shabani also emphasises Mr Kirker’s evidence of the detrimental effects on Mr Mohebbi’s own mental health in the event of deportation.
[64] Mr Shabani also notes that while at present Mr Mohebbi is able to offer both emotional and financial support to his children, that is only if he is allowed to remain in New Zealand.
[65] In relation to Mr Mohebbi’s mental health needs, Mr Shabani notes that there is a real concern that Mr Mohebbi may resort to self-harm were he to be deported. Mr Shabani further submits that the Tribunal proceeded on the incorrect assumption that adequate professional and family support systems would be available to Mr Mohebbi, were he to be deported to Iran.
[66] Mr Shabani also criticises the Tribunal’s findings in terms of Mr Mohebbi’s daughter’s mental health, submitting the Tribunal again proceeded without any underlying evidential foundation that Mr Mohebbi’s daughter’s mental health could be adequately treated and her position supported were her father to be deported. Mr Shabani also submits that the Tribunal’s finding at [72] of its decision that Mr Mohebbi would “miss” his children and his children would “miss him” misrepresents the real mental health issues arising in this case.
[67] Finally, Mr Shabani also raised issues around practical difficulties in persons travelling to and from Iran on foreign passports, which Mr Mohebbi’s two children would need to do.
The Minister’s submissions
[68] In opposing the applications for leave, Ms McKenna, counsel for the Minister, submits that the issues raised in the applications do not give rise to any questions of law that are capable of serious and bona fide argument, and are in essence a challenge to the factual findings made by the Tribunal and the weight it gave to the matters before it. She submits that none of the issues raised meet the high bar for factual errors amounting to an error of law.
[69] Ms McKenna notes that the Tribunal took into account and referenced the evidence of all of the witnesses called on behalf of Mr Mohebbi, and plainly took that evidence into account in its assessment of exceptional circumstances. She submits that the weight to be given to the evidence is a matter for the Tribunal’s discretion and the factual findings were clearly available on the evidence before it. No error of law has accordingly been made out.
[70] Further, contrary to the submission that the Tribunal failed to take into account the effects of deportation on Mr Mohebbi and his daughter’s mental health, Ms McKenna submits that the content of the Tribunal’s decision plainly demonstrates that the Tribunal took this into account; Mr Mohebbi and his daughter’s mental health being a frequent matter identified and discussed in the Tribunal’s decision.
[71] In terms of the suggestion that the Tribunal was wrong to proceed on the basis that mental health support would be available to Mr Mohebbi were he deported to Iran, Ms McKenna notes that no evidence was presented by Mr Mohebbi that there would be any issues with mental health support were he deported to Iran, Ms McKenna emphasises that pursuant to s 226 of the Act, the onus is on an applicant/appellant to present evidence of the matters he or she submits give rise to humanitarian circumstances. In relation to Mr Mohebbi’s daughter, the Tribunal found it was reasonable to suppose she would be able to access further support in New Zealand, if needed, given her earlier support in relation to her mental health and there being no reason to suggest that would not remain available to her. Ms McKenna submits that these were reasonable conclusions for the Tribunal to come to.
[72] As to the allegation concerning the Tribunal’s failure to consider New Zealand’s obligations under the ICCPR, Ms McKenna notes that the obligations in question are not particularised, though notes that the applicant’s family, including adult family, is entitled to consideration in accordance with article 17 and 23(1) of the ICCPR. Ms McKenna again submits that these matters were given express consideration by the Tribunal, and to the extent the real argument is that insufficient weight was given to them, the assessment and weighing of relevant considerations are matters for the Tribunal.
[73] Finally, Ms McKenna submits that there is nothing to suggest that the matters raised are important and have significance beyond this particular case. She argues that the proposed judicial review does not involve issues that could not be adequately dealt with in an appeal, given Mr Mohebbi relies on the same alleged errors of law in both applications.
Discussion
[74] Given the somewhat amorphous way in which the applications were advanced on Mr Mohebbi’s behalf, it is a little difficult to distil the propositions made into the key issues for determination. However, taking into account the papers filed and the oral submissions made by Mr Shabani, I proceed on the basis that the following issues arise, namely whether it is seriously arguable that the Tribunal:
(a)erred in not taking into account Mr Mohebbi’s conversion to Christianity and the effects of that were he to be deported, together with the suggested difficulties in his children travelling to Iran;
(b)failed to take into account Mr Mohebbi and his daughter’s likely decline in mental health should Mr Mohebbi be deported;
(c)made factual findings as to the extent of mental health support for both Mr Mohebbi (in Iran) and his daughter (in New Zealand) when there was no evidence to support those findings;
(d)failed to consider any relevant aspects of the ICCPR;
(e)failed to “properly” consider the evidence; and
(f)erred as a matter of law in concluding that exceptional circumstances of a humanitarian nature were not made out.
[75] I remind myself that I am only determining an application for leave. Accordingly, the issue at this juncture is whether it is seriously arguable that the Tribunal erred in any of the ways suggested, not whether it actually did so. And even
if I am satisfied that any of the above alleged errors are seriously arguable, I must then determine whether either of the tests for leave in ss 245 or 249 are met.
Conversion to Christianity/difficulties in children travelling to Iran
[76] Much emphasis was put at the hearing on Mr Mohebbi’s conversion to Christianity and that the suggested difficulties this will cause him were he to be deported to Iran. As to the suggestion that this was not taken into account by the Tribunal, the short point is that there was no evidence put before the Tribunal of any such difficulties arising for Mr Mohebbi, nor was it argued before the Tribunal that any such difficulties would arise. On the contrary, Mr Mohebbi gave evidence of having converted to Christianity with his children, when answering a question put to him by his counsel about what effects deportation would have on him. Mr Mohebbi did not suggest that there would be any particular concerns for him were he to return to Iran arising out his faith, nor did he suggest that his religion had raised any concerns in relation to his relationship with his parents and siblings—with whom he has clearly spent significant time in relatively recent years. Further, in response to a question from counsel for Mr Mohebbi about the reasons why he did not want to go back to Iran, Mr Mohebbi did not raise any issues of persecution, from authorities or his family, given his change in religion.
[77] Accordingly, it cannot have been an error, let alone an error of law, for the Tribunal not to take into account the suggested risks arising from Mr Mohebbi’s conversion to Christianity when those risks were not the subject of evidence or argument before the Tribunal.
[78] Similar observations apply to the suggestion, made in oral submissions at the hearing of the applications for leave, that it will be difficult for Mr Mohebbi’s children to travel to Iran to visit him because they will need to travel on foreign (New Zealand) passports. There was no evidence to this effect before the Tribunal. Indeed, the only evidence was that the children had successfully travelled to Iran on New Zealand passports in 2015.
[79] These grounds of the proposed appeal are accordingly not seriously arguable, either as matters of fact or law.
Alleged failure to take into account Mr Mohebbi and/or his daughter’s mental health
[80] It is untenable in my view that the Tribunal did not take into account Mr Mohebbi and his daughter’s past and pre-existing mental health issues, or the potential effect on those issues were Mr Mohebbi to be deported. The Tribunal was well aware of the mental health issues raised in respect of both Mr Mohebbi and his daughter, of Mr Kirker’s evidence in that regard, and it is plain on the face of the decision that these matters were a focus of the Tribunal’s consideration of whether exceptional circumstances of a humanitarian nature arose. There is no seriously arguable error by the Tribunal in this regard.
Alleged absence of evidence to support Tribunal’s factual findings
[81] In relation to the suggestion that the Tribunal wrongly proceeded on the factual assumption that mental health services/support would be available to Mr Mohebbi in Iran, again, there was no evidence put before the Tribunal that there were any particular issues in this context. As Ms McKenna submits, pursuant to s 226 of the Act, the onus was on Mr Mohebbi to put evidence before the Tribunal to demonstrate any matters relied upon as giving rise to exceptional circumstances of a humanitarian nature. Further, the evidence before the Tribunal demonstrated that, at least up until his most recent period of incarceration, Mr Mohebbi retained good links and ties with his family, having spent considerable periods of time with them over the period from 2010 to 2015. There was nothing before the Tribunal to suggest that these relationships have changed in the interim, or that Mr Mohebbi’s family would not support him, including mentally, should he be deported to Iran.
[82] In relation to Mr Mohebbi’s daughter’s mental health, the evidence was that she considered her previous, and serious, mental health issues stemmed at least in part from not having had her father in her life, and that she was concerned that this state of affairs would repeat itself were he to be deported. However the evidence was also that she had obtained professional support in relation to her mental health in those circumstances, albeit through her (then) school. In my view, it is not arguable that the Tribunal erred in fact, let alone in law, by proceeding on the assumption that if Mr Mohebbi’s daughter were to experience a relapse in her mental health, suitable mental health services would be available to her in New Zealand. Again, these matters disclose no arguable error of law.
Failed to take into account New Zealand’s obligations under the ICCPR
[83] Again, it is not arguable that the Tribunal erred in the manner suggested. The Tribunal expressly took into account articles 17 and 23(1) of the ICCPR. It is not suggested that there are any other aspects of the ICCPR which the Tribunal was required but failed to take into account. The implications for Mr Mohebbi’s family unit were he to be deported was plainly the focus of the Tribunal’s decision-making. This ground is also not made out.
Suggestion the Tribunal failed to “properly” consider the evidence
[84] This aspect of Mr Mohebbi’s application reduces to a challenge to the weight the Tribunal ascribed to the evidence given before it. Indeed, Mr Shabani confirmed as much in his oral submissions at the hearing.
[85] As noted earlier, the weight the Tribunal gives to the evidence before it is properly a matter for the Tribunal. Questions of weight are not properly the territory of judicial review. Moreover, suggested errors about the weight ascribed to evidence would need to be so egregious to mean that the Tribunal’s conclusion was plainly wrong, in the sense discussed at [54] above. That is what I see Mr Mohebbi’s arguments ultimately reducing to, namely that the Tribunal’s conclusion that exceptional circumstances of a humanitarian nature did not arise was an untenable conclusion in light of the evidence before it. It is to that (final) issue that I now turn.
Did the Tribunal err as a matter of law in concluding that exceptional circumstances of a humanitarian nature were not made out?
[86] Mr Mohebbi does not suggest the Tribunal made any specific factual errors. Rather, and as just noted, the crux of his argument is that on the evidence before the Tribunal, it was not open to the Tribunal to conclude that exceptional circumstances did not arise.
[87] It is important to reiterate the factual findings that the Tribunal made. Relevantly for present purposes, these were that:
(a)Mr Mohebbi has lived in New Zealand for 25 years, or half his life, and almost all of his adult life. He has had relationships here, his children
were born and raised here, and he will have formed other relationships here. This is tempered somewhat by long periods of time spent in custody, which detract from his integration into New Zealand community.
(b)Mr Mohebbi has suffered from depression since being in prison, and has been prescribed medication for his condition (though tries not to take it given its side effects).36
(c)In 2019 and 2020, Mr Mohebbi’s daughter suffered “serious” mental health difficulties (that included self-harm), which stemmed at least in part from separation from her father. Those issues were serious enough for his daughter to require professional mental health support.
(d)There is a risk of regression in Mr Mohebbi’s daughter’s mental health (including self-harming) were Mr Mohebbi to be deported.37
(e)Mr Mohebbi’s own mental health would likely deteriorate “to a significant extent” should he be forced to leave New Zealand, greater than for the average deportee.
(f)There was a possibility that Mr Mohebbi would attempt self-harm were he to be deported, part of his “potentially extreme reaction [being] his wilful behavioural tendency alongside a distressed mental state.”38
[88] Against the backdrop of the above factual findings, I am satisfied that it is seriously arguable that the Tribunal erred in concluding that no exceptional circumstances of a humanitarian nature arose. To put the point another way, that it is seriously arguable that the only reasonable conclusion available on the evidence before the Tribunal was that exceptional circumstances of a humanitarian nature arose. In my view, it is seriously arguable that in light of the mental health issues experienced
36 This was Mr Mohebbi’s evidence, and there is no suggestion the Tribunal did not accept that evidence.
37 This was Mr Kirker’s evidence, but again there is no suggestion that the Tribunal did not accept his evidence.
38 The same comments made above apply.
by Mr Mohebbi and, in particular, his daughter (accepted as “serious”), the prospects of those mental health issues arising again were Mr Mohebbi to be deported fall well outside the normal run of circumstances. In particular, and bearing in mind the very long period of time that Mr Mohebbi has been in New Zealand, it is seriously arguable that these consequences extend beyond the normal emotional turmoil and distress experienced by the person to be deported and/or their New Zealand based children.
[89] I am accordingly satisfied that for the purposes of the application pursuant to s 245 of the Act, it is sufficiently seriously arguable that the Tribunal’s conclusion that no exceptional circumstances of a humanitarian nature arise in this case gives rise to an error of law in the sense described at [54] above.
[90] That is not the end of the inquiry however. I must also be satisfied that the suggested error of law is one of general or public importance, or there is any other reason why this Court should consider the suggested error.
[91] It is not tenable to suggest that the suggested error of law gives rise to matters of general or public importance. Whether or not the evidence in this case gives rise to exceptional circumstances of a humanitarian nature will not be of any practical or precedential significance to anyone other than Mr Mohebbi and his family.
[92] Accordingly, it must be the case that the error, if shown, should be corrected despite its narrow case-specific significance, because the potential impacts on Mr Mohebbi and his daughter in particular involve individual injustice to such an extent that the Court cannot countenance the Tribunal’s decision standing.
[93] While the position is finely balanced, I consider this aspect of the s 245 test is made out. Whether or not exceptional circumstances of a humanitarian nature will arise from deportation is a fundamental aspect of a humanitarian appeal. The exceptional circumstances in this case extend to both Mr Mohebbi and his daughter’s mental health, and in both cases there are genuine and serious concerns as to the potential impact of Mr Mohebbi’s deportation. In circumstances where I accept it is seriously arguable that these concerns extend well beyond what might be expected in other deportation cases, I consider a relatively cautious approach should be taken. This is particularly so when considering the impact of deportation on Mr Mohebbi’s
daughter. And while Mr Mohebbi carries the onus pursuant to s 226 of the Act, I have some concern that the Tribunal proceeded on an assumption that similar mental health care would be available to Mr Mohebbi were he to be deported to Iran, including in circumstances where the unchallenged expert evidence was that Mr Mohebbi’s pre- existing depression would deteriorate to a “significant degree”, including a potential risk of self-harm.
[94] I am conscious that even if it were to be found that the Tribunal erred in concluding that exceptional circumstances of a humanitarian nature were not made out (and I of course express no view on that, other than that it is sufficiently arguable), Mr Mohebbi would also need to demonstrate that it would be unjust or unduly harsh for him to be deported, and even if so, it would not in all the circumstances be contrary to the public interest to allow him to remain in New Zealand. The Tribunal did not consider any of these matters given its conclusion on exceptional circumstances. However, if the only proper outcome on the evidence before the Tribunal was that exceptional circumstances of a humanitarian nature did exist in this case, Mr Mohebbi ought to have the benefit of the remaining aspects of the s 207 test substantively considered by the Tribunal, including to preserve any appeal rights. In other words, it is neither necessary nor appropriate for me to say anything about those matters on the present application, which might otherwise fetter the Tribunal’s decision-making (if the matter were to find its way back to the Tribunal).
[95] I accordingly consider the suggested error of law discussed at [88] above to be sufficiently seriously arguable that leave ought to be granted under s 245 of the Act.
[96] I can be brief on whether leave also ought to be granted under s 249 of the Act. I do not consider that it should be. The matters raised by Mr Mohebbi are essentially the same under both applications for leave. No issues of process or legality are advanced that are more appropriately dealt with by way of review proceedings. Instead, the issues raised can properly and fully be ventilated on an appeal. There is accordingly no basis to grant leave under s 249 of the Act.
Result
[97]The application for leave to appeal pursuant to s 245 of the Act is granted.
[98] It is important, however, that the scope of the appeal is properly defined, given the manner in which the applications have been advanced on Mr Mohebbi’s behalf to date, and that I have found many of the arguments made to be without merit. I therefore grant leave to appeal in relation to the following questions:
(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?
[99] The application for leave to appeal is otherwise declined, as is the application for leave to commence review proceedings.
[100] Neither party addressed costs. If costs are sought and cannot be agreed, memoranda (no longer than three pages in length) are to be filed within 15 working days of the date of this judgment. I will thereafter determine costs on the papers.
Fitzgerald J
Solicitors: Crown Law, Wellington
Shabani Law, Auckland
To: B McKenna, Auckland
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