Mutsamwira v Minister of Immigration
[2023] NZCA 623
•7 December 2023 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA367/2023 [2023] NZCA 623 |
| BETWEEN | SAYMORE MUTSAMWIRA |
| AND | MINISTER OF IMMIGRATION |
| Court: | Miller and Wylie JJ |
Counsel: | Applicant in person |
Judgment: | 7 December 2023 at 10 am |
JUDGMENT OF THE COURT
A The application for leave to appeal to the High Court is declined.
BThe applicant must pay costs to the respondent for a standard application on a band A basis with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wylie J)
Introduction
The applicant, Saymore Mutsamwira, came to New Zealand in 2009. He became a resident of this country in 2014. He has however been convicted of a number of offences committed whilst in New Zealand. As a result, in May 2022, he was served with a deportation liability notice.[1] He challenged his deportation liability before the Immigration and Protection Tribunal (the IPT),[2] but was unsuccessful.[3] He then sought leave to appeal the IPT’s decision on a point of law to the High Court under s 245 of the Immigration Act 2009 (the Act).[4] The High Court declined his application.[5]
[1]Immigration Act 2009, s 161(1)(a)(iii) and (1)(b).
[2]Section 206(1)(c).
[3]Mutsamwira v Minister of Immigration [2022] NZIPT 600726 [IPT decision].
[4]Immigration Act, s 245(1).
[5]Mutsamwira v Minister of Immigration [2023] NZHC 1471 [High Court leave decision].
Mr Mutsamwira now seeks leave from this Court to appeal the IPT’s decision to the High Court.[6] He is also seeking leave from this Court to bring judicial review proceedings in respect of the IPT’s decision.[7]
[6]Immigration Act, s 245.
[7]Section 249.
The respondent opposes Mr Mutsamwira’s applications.
Background
Mr Mutsamwira is a citizen of Zimbabwe.[8] He received his initial education and obtained a university qualification in that country.[9] He became a member of an opposition party.[10] He claims that he participated in protests against the Zimbabwean government and that he was, on occasion, detained for his involvement in the protests and harassed and assaulted by the police.[11]
[8]IPT decision, above n 3, at [1] and [91].
[9]At [25].
[10]At [26].
[11]At [26].
Mr Mutsamwira moved to the United States in 2003, where he completed a postgraduate university qualification.[12] In about 2006 he moved to the United Kingdom to work.[13] In about 2007 he moved to South Africa and he subsequently came to New Zealand in 2009.[14] By 2015, Mr Mutsamwira had obtained a doctoral degree in this country.[15] He later completed a postgraduate certificate in law.[16] He is now in his mid-40s.[17] He has worked in a variety of occupations but currently describes himself as a student.[18] He became a New Zealand resident in 2014, on the basis of his relationship with his former partner, who is a New Zealand citizen.[19] He has a child with this partner. The child has been in the mother’s care since she and Mr Mutsamwira separated.[20]
[12]At [28].
[13]At [29].
[14]At [30]–[31].
[15]At [35].
[16]At [41].
[17]At [1].
[18]At [35].
[19]At [34].
[20]At [36].
Mr Mutsamwira has been diagnosed with depression, anxiety and bipolar disorder.[21] He has at times abused alcohol, although not in recent years.[22]
[21]At [32].
[22]At [32] and [39]–[40].
Mr Mutsamwira has been convicted of a number of offences in this country.[23] He received two initial convictions for drink driving, a conviction for driving while disqualified, a conviction for common assault, a third conviction for drink driving, a conviction for careless driving and a conviction for sexual violation by rape. For this latter conviction Mr Mutsamwira was sentenced to a term of six years and one month’s imprisonment.[24] He unsuccessfully appealed the conviction to this Court,[25] and, subsequently, failed to obtain leave to appeal to the Supreme Court.[26] Mr Mutsamwira was held in custody for a period, but was released on parole in 2021.
[23]See IPT decision, above n 3, at [6] and [8]–[9]; and High Court leave decision, above n 5, at [4].
[24]R v Mutsamwira [2019] NZDC 9977.
[25]Mutsamwira v R [2021] NZCA 177.
[26]Mutsamwira v R [2021] NZSC 181.
The deportation liability notice served on Mr Mutsamwira was a consequence of his third drink-driving conviction and his conviction for rape.[27]
The IPT’s decision
[27]Immigration Act, s 161(1)(a)(iii) and (b); and see IPT Decision, above n 3, at [1].
The hearing before the IPT occurred on 25 and 26 October 2022. Mr Mutsamwira had sought to adjourn the hearing a number of times previously on health grounds. He tried to adjourn it again on that basis, but his application in this regard was declined.[28] Mr Mutsamwira’s challenge to the deportation liability notice was based on humanitarian grounds. He claimed that there were exceptional circumstances of a humanitarian nature that made it unjust or unduly harsh for him to be deported.[29] He put forward a number of reasons to support this assertion:[30]
a)He has strong ties with New Zealand but few connections in Zimbabwe. He is unlikely to be accepted in Zimbabwe now because he has spent so much time living in western countries.
b)He would be unable to contact his New Zealand child. The child would suffer emotional harm should he be required to leave this country.
c)He would be unable to access psychological support and would as a result suffer a mental health crisis in Zimbabwe. This would be grossly inhumane.
d)He would be at risk of persecution in Zimbabwe because of his previous protest activity in that country.
e)He has poor employment prospects in Zimbabwe.
f)He would be unable to access appropriate medical treatment in Zimbabwe.
[28]See IPT decision, above n 3, at [15]–[22].
[29]At [2].
[30]At [68].
The IPT referred to s 207(1) of the Act which sets out the circumstances in which it can allow an appeal against liability for deportation based on humanitarian grounds.[31] It referred to relevant Supreme Court authority and noted that three elements must be present before such an appeal can be allowed; first, there must be exceptional circumstances, secondly, the circumstances must be of a humanitarian nature and, thirdly, it must be unjust or unduly harsh if the appellant were to be removed from New Zealand.[32] The IPT noted that exceptional circumstances require circumstances well outside the normal run of circumstances found in deportation cases generally.[33]
[31]At [87].
[32]At [88] and [90] referring to Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].
[33]IPT decision, above n 3, at [90] quoting Ye v Minister of Immigration, above n 32, at [34].
The IPT rejected the grounds advanced by Mr Mutsamwira:
a)It accepted that Mr Mutsamwira has some nexus with New Zealand but did not consider that there was any evidence that Mr Mutsamwira would not be accepted in Zimbabwe because of the time he has spent living in western cultures.[34]
b)The IPT found that there was no reliable evidence to suggest that Mr Mutsamwira’s daughter would be adversely affected by his deportation.[35] It noted that Mr Mutsamwira has primarily maintained a long-distance relationship with his daughter.[36]
c)It rejected Mr Mutsamwira’s claim that his mental health would worsen in Zimbabwe.[37] The IPT considered that there was no evidence to support this claim or to show that Mr Mutsamwira could not access appropriate services in Zimbabwe.[38]
d)It rejected Mr Mutsamwira’s concerns for his safety.[39] The IPT considered that there was no reliable evidence to support his concerns that he would be persecuted.[40] It considered that much of the claim was “entirely speculative and so [could] be accorded limited weight”.[41]
e)It accepted that Mr Mutsamwira might have difficulty finding employment in Zimbabwe but noted that economic betterment was insufficient to establish exceptional humanitarian circumstances.[42]
f)It found that there was no evidence to suggest that Mr Mutsamwira would be unable to access appropriate medical treatment in Zimbabwe.[43]
[34]IPT decision, above n 3, at [92]–[98].
[35]At [117]–[122].
[36]At [120].
[37]At [104]–[109].
[38]At [107].
[39]At [110]–[116].
[40]At [112] and [115]–[116].
[41]At [116].
[42]At [99]–[103].
[43]At [104]–[109].
The IPT considered that, cumulatively, the matters raised did not constitute exceptional and humanitarian circumstances.[44] It observed that, even if qualifying circumstances had been established, it would not have been unjust or unduly harsh for Mr Mutsamwira to be deported.[45] It noted that his liability for deportation arose because of his serious offending, in particular the sexual violation by rape of a highly vulnerable woman.[46]
Subsequent steps
[44]At [124]–[125] and [129].
[45]At [130]. The IPT considered the unjust or unduly harsh inquiry at [131]–[143].
[46]At [143].
In December 2022, Mr Mutsamwira filed a notice of application seeking leave to appeal the IPT’s decision to the High Court under s 245 of the Act. Subsequently, it became apparent that Mr Mutsamwira also wished to seek leave under s 249(3) of the Act to pursue review proceedings under the Judicial Review Procedure Act 2016. In a minute dated 1 May 2023, Osborne J made directions requiring Mr Mutsamwira to file and serve an application for review by 8 May 2023. No application was made as directed and, as a result, the High Court did not address s 249 of the Act in its leave decision.
The High Court’s leave decision
Osborne J set out the relevant facts and the procedural history, before referring to the requirements for leave under s 245 of the Act.[47] He observed that the IPT had correctly applied the relevant test in accordance with applicable case law.[48] He emphasised that there were only two matters determined by the IPT which Mr Mutsamwira was seeking to challenge — first, whether the IPT erred in finding that his fears for his safety, if he is returned to Zimbabwe, did not constitute a humanitarian circumstance of an exceptional nature, and, secondly, whether the IPT erred in finding that his mental health issues were not a humanitarian circumstance of an exceptional nature.[49]
[47]High Court leave decision, above n 5, at [3]–[21].
[48]At [23]–[26] referring to Ye v Minister of Immigration, above n 32, at [34].
[49]High Court leave decision, above n 5, at [41].
The Judge did not consider that Mr Mutsamwira’s fears regarding his safety raised a question of law that met the statutory criteria for leave.[50] He observed that debate as to the evidential conclusion reached by the IPT was about the facts as determined and not the application of the law.[51] He commented that there were no relevant humanitarian circumstances to consider in relation to the risk to Mr Mutsamwira’s safety, because the evidence did not establish such risk.[52] Under the circumstances, the Judge considered that leave could not be granted in relation to this ground, because it related to the IPT’s underlying factual findings.[53]
[50]At [43].
[51]At [43].
[52]At [43].
[53]At [43].
In relation to Mr Mutsamwira’s mental health concerns, the Judge also concluded that there was no error of law for the same reasons.[54]
[54]At [44]–[45].
Overall, the Judge held that leave to appeal could not be granted in relation to the proposed grounds of appeal Mr Mutsamwira sought to raise, because the proposed grounds of appeal related to the IPT’s underlying factual findings.[55]
Submissions
[55]At [46].
Mr Mutsamwira filed his own submissions. He asserted that his application was made in reliance on both ss 245 and 249 of the Act. He raised the following issues:
a)that the IPT erred in finding that his fears for his safety, if he is returned to Zimbabwe, were not an exceptional circumstance of a humanitarian nature;
b)that the IPT erred in finding that his mental health issues were not an exceptional circumstance of a humanitarian nature; and
c)that the IPT erred procedurally by failing to hear oral evidence from his counsellor, Allistair Odgers.
Mr Mutsamwira also submitted that he was not granted sufficient time by the High Court to prepare an application for review and that, as a result, he did not receive a fair hearing in the High Court in relation to this issue.
Mr Mutsamwira identified the following questions of law he wishes the High Court to determine on appeal if leave is granted:
a)What constitutes genuine fear for one’s safety that can give rise to a finding of an exceptional humanitarian circumstance?
b)What constitutes mental health issues that are a humanitarian circumstance of an exceptional nature?
He submitted that both of these questions raise matters of general and public importance.
The respondent submitted that Mr Mutsamwira’s application reflects no more than his dissatisfaction with the IPT’s factual findings and that he seeks to relitigate those findings. It argued that neither of the questions of law asserted by Mr Mutsamwira are reasonably arguable, for the following reasons:
a)The IPT considered Mr Mutsamwira’s safety and mental health concerns and made factual findings that were reasonably open to it in relation to both, based on its assessment of the evidence before it, including country information and medical information.
b)The IPT did not err in not taking oral evidence from Mr Odgers. Mr Mutsamwira had the burden of establishing his case. He failed to ensure that Mr Odgers was available. In any event, Mr Odgers absence did not prejudice Mr Mutsamwira, as the IPT was able to and did consider Mr Odgers’ written evidence.
c)This Court is de novo considering whether or not to grant leave to appeal against the IPT’s decision. Procedural directions made in the High Court are irrelevant to that issue. In any event, there was no procedural impropriety in the High Court. Mr Mutsamwira failed to comply with case management directions and he did not provide any evidence to support his assertion that he was at the time unable to prepare and file an application for review.
Finally, the respondent submitted that the proposed grounds of appeal, even if they raise issues of law, are confined to Mr Mutsamwira’s personal circumstances. It argued that neither of the identified questions of law raises an issue of general or public importance.
Analysis
Relevantly s 245 of the Act provides as follows:
245 Appeal to High Court on point of law by leave
(1)Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.
(1A)A decision by the Court of Appeal to refuse leave to appeal to the High Court is final.
…
(3)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 High Court for its decision.
…
This Court has previously commented on this ambit of this section.[56] It said as follows:
[8] In its practical application, s 245 requires an applicant to identify a seriously arguable question of law which either:
(a) has importance extending beyond the particular case (which is what “general or public importance” entails); or
(b) for some other reason, warrants a decision from the High Court.
Although category (b) is open ended, we agree with a series of decisions in the High Court which have held that it would only be in an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing, that this alternative requirement could be met.
[56]Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 (footnote omitted).
In our view, Mr Mutsamwira’s application does not identify any seriously arguable question of law. We accept that what amounts to a genuine fear of persecution that could give rise to a finding of an exceptional humanitarian circumstance, or what constitutes mental health issues that are a humanitarian circumstance of an exceptional nature, could, in appropriate cases, raise matters of law. But, in the present case, there are no factual findings on which any such fears or issues can be based. We agree with the respondent that Mr Mutsamwira is seeking to do no more than relitigate the IPT’s factual findings. There is nothing to suggest that those factual findings give rise to any error of law; nor has Mr Mutsamwira put forward anything to suggest that the IPT misdirected itself or misapplied the correct legal tests.
The IPT’s decision was detailed and thorough; it considered the evidence put before it by Mr Mutsamwira and available from other sources. Based on that evidence it found that exceptional circumstances, outside the normal run of circumstances found in deportation cases, could not be established.[57] It went on to note that even if qualifying exceptional circumstances had been made out, it would not have been unjust or unduly harsh for Mr Mutsamwira to be deported.[58]
[57]IPT decision, above n 3, at [129].
[58]At [143].
Further there is nothing to suggest that the two questions identified by Mr Mutsamwira as warranting the grant of leave to appeal are seriously arguable in the circumstances of his case. Neither of the questions have any general or public importance beyond Mr Mutsamwira’s particular situation and there is no other reason advanced which could warrant a decision from the High Court.
The two asserted procedural errors, one by the IPT and the other by the High Court, are not questions of law. They do not qualify for leave under s 245 of the Act. Nor is either of them of general or public importance. When considering an application under s 245, this Court considers matters afresh, so process issues will not generally be relevant to the question of whether or not leave should be granted to appeal a decision of the IPT on a point of law to the High Court. There was, in any event, no clear error in the procedures followed by either the IPT or the High Court.
In relation to Mr Odgers’ evidence, it was for Mr Mutsamwira to ensure that Mr Odgers was available if he wanted him to give oral evidence. He failed to do so. Nonetheless, the IPT considered Mr Odgers’ written evidence. It was entitled to do so and there was no prejudice to Mr Mutsamwira.
For the sake of completeness, we record that this Court has no jurisdiction to grant leave to bring judicial review proceedings under s 249(3) of the Act unless the High Court has first refused to grant leave. As we noted above, Mr Mutsamwira failed to file an application for judicial review in the High Court, despite directions that he do so. As a result, the Judge did not deal with the issue in his leave judgment. This precludes this Court from now considering the application Mr Mutsamwira belatedly seeks to bring under s 249(3).
For the reasons we have set out, we decline to grant leave to Mr Mutsamwira to appeal to the High Court against the decision of the IPT.
Result
The application for leave to appeal to the High Court is declined.
The applicant must pay costs to the respondent for a standard application on a band A basis with usual disbursements.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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