Mutsamwira v Minister of Immigration
[2023] NZHC 1471
•13 June 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2022-409-577
[2023] NZHC 1471
UNDER section 245 of the Immigration Act 2009 IN THE MATTER
of an intended appeal against a decision of the Immigration Protection Tribunal
BETWEEN
SAYMORE MUTSAMWIRA
Applicant
AND
MINISTER OF IMMIGRATION
Respondent
Hearing: 13 June 2023 Appearances:
Applicant in person
A W M Britton and N N A El Sanjak for Respondent
Judgment:
13 June 2023
JUDGMENT OF OSBORNE J
The application
[1] Saymore Mutsamwira seeks leave under s 245 Immigration Act 2009 (the Act) to appeal (on questions of law) a decision (the Decision)1 of the Immigration and Protection Tribunal (the Tribunal).
[2]The Minister of Immigration opposes the application.
1 Mutsamwira v Minister of Immigration [2022] NZIPT 600726 [Decision].
MUTSAMWIRA v MINISTER OF IMMIGRATION [2023] NZHC 1471 [13 June 2023]
Background
[3] Mr Mutsamwira is a 45-year-old citizen of Zimbabwe and a New Zealand resident. He came to New Zealand in 2009 on a student visa for study. In 2014 he became a New Zealand resident based on his relationship with his then-partner. With his then-partner he had one child, who has subsequently been in the care of his former partner.
[4]Since 2011, he has been convicted of a number of offences:
(a)drink-driving (twice);
(b)driving while disqualified;
(c)common assault (2011–2012);
(d)drink-driving (third) and careless driving (2017); and
(e)sexual violation by rape (2018).
[5] On the rape conviction he was sentenced to a term of six years and one months’ imprisonment.2 He was released on parole in 2021.
Proceedings under the Act
[6] As a result of Mr Mutsamwira’s 2017 and 2018 convictions, he was liable for deportation.3
[7] Mr Mutsamwira appealed his deportation liability. The hearing took place in October 2022. The grounds of Mr Mutsamwira’s appeal were:
(a)his nexus with New Zealand — life would be difficult for him in Zimbabwe as people will perceive him as “un-African”;4
2 R v Mutsamwira [2019] NZDC 9977.
3 Immigration Act 2009, ss 161(1)(a)(iii) and 161(1)(b).
4 Decision, above n 1, at [57](a) and [92]‒[98].
(b)he has poor employment prospects in Zimbabwe;5
(c)he would be unable to access psychological support and would suffer a “mental health crisis” in Zimbabwe that would be “grossly inhumane”;6
(d)he would be at risk of persecution by the Zimbabwe African Union — Patriotic Fund (ZANU-PF) because of previous protest activity and his lengthy domicile in Western countries;7
(e)his daughter would suffer emotional harm should he leave New Zealand
— her best interests require that he remain in New Zealand;8 and
(f)in Zimbabwe he would be unable to access appropriate medical treatment for his cubital compression syndrome.9
[8] In the Decision, the Tribunal Member identified Mr Mutsamwira’s right of appeal under s 206(1)(c) of the Act and identified the grounds on which a humanitarian appeal against deportation may be allowed under s 207(1) of the Act.10
[9] The Tribunal referred to the test set out in the Supreme Court’s judgment in Ye v Minister of Immigration (“Ye”).11 The Tribunal set out its assessment of the factual grounds said by Mr Mutsamwira to constitute exceptional circumstances of a humanitarian nature.12 The Tribunal then considered whether it would be unjust or unduly harsh for Mr Mutsamwira to be deported, and set out the test identified by the Supreme Court in Guo v Minister of Immigration.13
5 Decision, above n 1, at [57](b) and [99].
6 Decision, above n 1, at [57](c) and [104]‒[105].
7 Decision, above n 1, at [57](e) and [110]‒[111].
8 Decision, above n 1, at [57](d) and [117]‒[118].
9 Decision, above n 1, at [58] and [123].
10 Decision, above n 1, at [87].
11 Decision, above n 1, at [88]; Ye v Minister of Immigration [Ye] [2010] 1 NZLR 104 (SC) ‒ a decision in relation to s 47(3) Immigration Act 1987, but equally applicable to s 207(1)(a) Immigration Act 2009.
12 Decision, above n 1, at [90]‒[130].
13 Decision, above n 1, at [131]; Guo v Minister of Immigration [2015] NZSC 132 at [9].
[10] The Tribunal made its assessment and concluded it would not be unjust or unduly harsh for Mr Mutsamwira to be deported from New Zealand.14 The appeal was accordingly declined.15
The leave application
[11] Mr Mutsamwira’s application for leave was filed in reliance on s 245 of the Act.
[12] By his notice of application, Mr Mutsamwira identified two alleged errors in the Decision, namely the findings that:
(a)Mr Mutsamwira’s fear for his safety if returned to Zimbabwe did not constitute a humanitarian circumstance of an exceptional nature; and
(b)Mr Mutsamwira’s mental health issues was not a humanitarian circumstance of an exceptional nature.
Procedural matters
[13] During case management of the proposed appeal it became apparent Mr Mutsamwira had also intended to pursue an application for judicial review. Directions were made requiring Mr Mutsamwira to file a distinct review application if he wished to pursue review.16 Mr Mutsamwira did not file a review application. This hearing has accordingly proceeded only in relation to the application for leave to appeal.
[14] During the case management of the appeal, Mr Mutsamwira sought adjournment of the hearing on the basis he had had, or was having, medical operations in relation to his cubital tunnel syndrome. Those requests for adjournment were not supported by affidavit evidence and were declined.
14 Decision, above n 1, at [132]‒[143].
15 Decision, above n 1, at [144].
16 Minute dated 1 May 2023.
[15] Case management directions were also made for the filing and service of written submissions. Mr Mutsamwira failed to file and serve any written submissions for this hearing.
[16] When this hearing was called this morning at 10.00 am Mr Mutsamwira was not present in court. I waited for some five minutes before hearing from Mr Britton and then proceeded to commence a judgment.
[17] At approximately 10.20 am Mr Mutsamwira appeared in court and I heard from him. He asserted he is unable to proceed today because he has not been able to prepare on account of his continuing issues with cubital tunnel syndrome. He indicated that the pain is such in both hands (both hands suffer from the condition) that he has not been able to complete documents or preparation.
[18] I have indicated to Mr Mutsamwira I am not adjourning the hearing on that account, having refused previous applications. Mr Mutsamwira has been unable to provide any affidavit evidence to support the proposition that he has been unable to satisfactorily prepare for today, whether on his own or with the assistance of others in preparing submissions. The fact is he has filed no submissions whatsoever, despite an ability when necessary to provide email communications and the like to the Court. The nature of the proceeding is such that it has to be dealt with and there is no proper basis for its further adjournment.
[19] Notwithstanding Mr Mutsamwira’s failure to file submissions, I have taken into account the additional document he filed in this proceeding called “Addendum to application to seek leave to appeal”. The matters raised in that document are matters I will come to.
The legal frameworks
The test for leave
[20] The granting of leave to bring a second appeal (under s 245 of the Act) involves a high threshold which in practice requires the applicant to identify the question of law that:
(a)is capable of bona fide and serious argument; and
(b)ought to be submitted to the High Court because of its general and public importance or any other reason.17
[21] It has been recognised by this Court that the leave requirement indicates Parliament’s intention to limit second appeals to cases that would clarify the law and determine its proper construction.18
Humanitarian grounds under s 207 of the Act
[22] Section 207(1) of the Act identifies the limited circumstances in which the Tribunal may allow an appeal against liability for deportation based on humanitarian grounds, the provision being:
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.
…
[23] The Supreme Court in Ye v Minister of Immigration identified the three ingredients that an appellant must therefore establish.19 As correctly identified by the Tribunal in the Decision, the three ingredients are:20
(a)exceptional circumstances;
(b)of a humanitarian nature; and
17 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8]; Minister of Immigration v Jooste [2014] NZHC 2882, [2015] 2 NZLR 765 at [45].
18 Singh (Shivdev) v Chief Executive of the Ministry of Business, Innovation and Employment [2018] NZHC 972, [2018] NZAR 1120 at [26], citing Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
19 Ye v Minister of Immigration, above n 11, at [34].
20 Decision, above n 1, at [88].
(c)that would make it unjust or unduly harsh for the person to be removed from New Zealand.
[24] The requirement of “exceptional circumstances” under s 207(1)(a) means the circumstances must be well outside the normal run of circumstances found in deportation cases generally.21
[25] For exceptional humanitarian circumstances to render deportation “unduly harsh” more than the element of harshness that is common with deportation is required.22
[26] The determination of whether the circumstances render deportation “unjust” or “unduly harsh” is a matter for assessment by the decision-maker and will turn on how compelling or persuasive the exceptional circumstances are.23 The harshness must go beyond the level regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system.24
Mr Mutsamwira’s proposed grounds of appeal
Mr Mutsamwira’s fear of the risk of persecution in Zimbabwe
[27] By this ground, Mr Mutsamwira asserted the Tribunal erred in finding his fear for his safety if returned to Zimbabwe did not constitute a humanitarian circumstance of an exceptional nature as contemplated in Ye.25
[28]The Tribunal summarised this ground of Mr Mutsamwira’s appeal as follows:26
He would be at risk of persecution in Zimbabwe because of his previous protest act against ZANU-PF, while a member of the MDC, which had led to his being assaulted, threatened, and detained by the authorities. Further, “[a] person in [his] circumstances, who has attained professional qualifications abroad, [not] returned for a long time and shown little interest in the country, will be put [in] the spotlight…”. There is currently a particular crackdown on the political opposition and critics of the government given that the elections
21 Ye v Minister of Immigration, above n 11, at [34].
22 At [8].
23 At [38].
24 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [8].
25 Ye v Minister of Immigration, above n 11, at [34].
26 Decision, above n 1, at [68](e).
are next year. There are reports of ZANU-PF carrying out acts such as killings, torture, and abductions. He has no recognisable name and so, if harmed, this would attract no public attention.
[29] The Tribunal considered this ground of appeal under a heading “Risk of persecution” in the following passage:27
[110] The appellant is concerned that he may be persecuted by ZANU-PF and/or government-controlled security forces on returning to Zimbabwe for two reasons. First, due to his previous protest activity in Zimbabwe as a member of the MDC, which had led to his being assaulted, threatened and detained by the authorities. Second, Zimbabwean citizens who have lived in Western countries for a lengthy period of time, obtained professional qualifications outside Zimbabwe, and have demonstrated little interest in Zimbabwe, tend to be viewed with suspicion on their return.
[111] The appellant provided articles and news releases reflecting the volatile and unsafe political environment in Zimbabwe and human rights abuses. He submits that the government is increasingly cracking down on opponents and critics in the lead up to the 2023 national elections as confirmed by, for example: S Nyoka “Dozens Injured in Zimbabwe Political Skirmishes” BBC News (19 October 2022). In a more recent article produced by the appellant … it was reported that the chairperson of the MDC Alliance party opposes the forced return of Zimbabwean citizens who had left the country and have had their subsequent refugee claims denied because Zimbabwe is now perceived to be safe. The chairperson says that the country remains an unsafe place to live due to government abuses, including the silencing of critics and neutralisation of the opposition, and adds that “bloodshed” is anticipated at the time of the 2023 elections.
[112] The Tribunal finds that the appellant has not produced any reliable or objective evidence in support of his concern that people in circumstances similar to him, who have lived in a Western country for an extended period of time, obtained professional qualifications, and have demonstrated little interest in Zimbabwe, tend to attract adverse attention from the government and/or authorities on their return.
[113] With respect to the appellant’s claimed protest activity in Zimbabwe, the respondent questions whether this claim has been made out by the evidence and can be accepted as credible. The Tribunal is prepared to give the appellant the benefit of the doubt, for the purposes of this assessment only. It is not difficult to accept that, as a young person living in a large city in Zimbabwe who was opposed to the government, he may have attended protests in and around his time as a tertiary student.
[114] The Tribunal acknowledges that government-controlled security forces in Zimbabwe have a history of suppressing protests and committing atrocities against those who are actively or perceived to be opponents of the government, and that remains the case to this day (as per the country information provided by the appellant and see also the Australian Department of Foreign Affairs and Trade (DFAT) DFAT Country Information Report:
27 Decision, above n 1.
Zimbabwe (19 December 2019) at pp25–26 and the United States Department of State 2021 Country Reports on Human Rights Practices: Zimbabwe (12 April 2022) at pp1–2 and 21-22). The appellant’s account of how he was treated during protests is consistent with the heavy-handed tactics employed by security forces in Zimbabwe when responding to opposition protests.
[115] However, the Tribunal finds that there is no reliable evidence to suggest that ZANU-PF or the security forces have any enduring interest in the appellant because of his historic attendance at protests. He says that he was released without charge on both occasions that he was detained following protest activity. He has not suggested that, when he left Zimbabwe in 2003, he was wanted by the authorities for any particular reason. He reports that neither ZANU-PF nor the authorities have made any enquiries with his family as to his whereabouts over the approximately 19 years that he has been living outside Zimbabwe. He does not know if there would be anyone in Zimbabwe who would even remember that he had engaged in protests as a young man and notes that he is no longer a member of the MDC.
[116] The Tribunal accepts that ZANU-PF and the security forces under its control have persecuted opponents and critics and political violence is increasing as the 2023 elections approach. However, the appellant is not an active critic or political opponent of the government and his involvement in anti-government protests is now historic and there is no evidence of any lingering adverse interest in him. Based on the evidence as presented, the Tribunal finds that the risk of the appellant being specifically targeted by ZANU-PF and/or its security forces on returning to Zimbabwe is entirely speculative and so can be accorded limited weight.
[30] Accordingly, the Tribunal concluded the assertion that Mr Mutsamwira would be at risk of persecution in Zimbabwe was, on the basis of the evidence presented, entirely speculative and capable of being given limited weight.
Mental health issues
[31]The Tribunal summarised this ground of Mr Mutsamwira’s appeal as follows:28
He has benefited from the receipt of therapeutic input in New Zealand. If he returned to Zimbabwe, he may experience a “serious mental health crisis” and, if this progressed to suicidal ideation, this could carry severe consequences. Given mental health services have been shunned and are poorly understood in Zimbabwe, it would be difficult for him to access appropriate support there.
Given these mental health concerns, deportation to Zimbabwe would be “grossly inhumane” and would breach section 9 of the New Zealand Bill of Rights Act 1990, which states that “[e]veryone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment”. He also references the “equivalent” provisions in the International Covenant on Civil and Political Rights (ICCPR) (Article 7) and European Convention on Human Rights (ECHR) (Article 3). With respect to
28 Decision, above n 1, at [68](d).
the latter, he notes and provides a copy of the decision AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17, …
[32] The Tribunal considered this ground of appeal, under a heading “Concerns about accessing psychological support in Zimbabwe”, in the following passage:29
[104] The appellant wants to continue receiving counselling on a long-term basis and he is worried that, on returning to Zimbabwe, he may experience a “serious mental health crisis” which could put his safety at risk. While he would likely be able to access spiritual counselling, as he does in New Zealand, he is not certain about counselling with a trained counsellor. He notes that, when he lived in Zimbabwe, there was stigma attached to mental health issues and therapeutic interventions. He does not know the extent to which this stigma remains but, through conversations with his family, he knows that they continue to see no value in mental health treatment.
[105] The appellant believes that requiring him to return to Zimbabwe, when he holds concerns about his ability to access appropriate mental health support there, would be “grossly inhumane” and in breach of section 9 of the New Zealand Bill of Rights Act 1990 …
[106] The Tribunal notes that the appellant is having a relatively modest number of counselling sessions with his trained counsellor, Mr Odgers. They have had nine sessions from the time the appellant was released on parole (July 2021) to the date of the appeal hearing (October 2022) (or nine sessions over a period of 15 months). Mr Odgers has not indicated how long he believes the appellant would benefit from continuing to receive counselling.
[107] The Tribunal finds that there is no medical evidence to support the appellant’s claim that, on returning to Zimbabwe, he may experience a “serious mental health crisis”. To the extent that he wishes to receive counselling with a trained counsellor, it has not been demonstrated by any objective evidence that he would be unable to access professional therapeutic services in Zimbabwe.
[108] The Tribunal queried whether the appellant could continue to have sessions with Mr Odgers on a long-distance basis, given that they have previously had some sessions over the telephone, but the appellant was not certain whether Mr Odgers would agree or whether this would be an affordable option.
[109] There is no evidential basis to the appellant’s claim that deporting him to Zimbabwe, in the context of the above concerns that he has raised, would be “grossly inhumane” and in breach of his rights under section 9 of the New Zealand Bill of Rights Act 1990 or, indeed, the provision from which this section originated — Article 7 of the ICCPR.
[33] Accordingly, the Tribunal concluded there was no medical evidence to support the claim that Mr Mutsamwira would experience a serious mental health crisis if he
29 Decision, above n 1.
returns to Zimbabwe, and there was no evidential basis to support the suggestion that deportation would be in breach of s 9 New Zealand Bill of Rights Act or of Article 7 International Covenant on Civil and Political Rights (ICCPR), or that deportation would be “grossly inhumane”. Those conclusions were reached because:
(a)Mr Mutsamwira had not provided medical evidence to support his claims; and
(b)there was no objective evidence to show he would be unable to access professional therapeutic services in Zimbabwe or, on a long-distance basis, from his New Zealand counsellor.
Bringing together those considerations
[34] Having reviewed all the circumstances relied upon by Mr Mutsamwira in his appeal, the Tribunal then had regard to the cumulative impact of all those circumstances, including:30
(a)his health needs and worries about managing his mental health and accessing counselling services in Zimbabwe; and
(b)his fears of persecution in Zimbabwe.
[35] In relation to the grounds relied upon on this leave application, the Tribunal repeated that the evidence did not demonstrate Mr Mutsamwira would be unable to access medical, counselling or emotional support in Zimbabwe if he seeks such support.31 The Tribunal similarly repeated that the risk of Mr Mutsamwira being specifically targeted by ZANU-PF or Zimbabwe security forces was entirely speculative.
30 Decision, above n 1, at [125].
31 Decision, above n 1, at [127].
[36] Cumulatively, neither those two matters nor the other matters relied upon by Mr Mutsamwira in his appeal persuaded the Tribunal there were exceptional humanitarian circumstances.32
[37] The Tribunal also observed that, had exceptional humanitarian circumstances been established, it would not have been unjust or unduly harsh for Mr Mutsamwira to be deported.33
Mr Mutsamwira’s case
[38] Mr Mutsamwira, in his addendum which I have referred to, asserts that the Tribunal was in error in finding that neither Mr Mutsamwira’s fears for his safety nor his mental health issues were humanitarian circumstances of an exceptional nature in terms of the decision in Ye.34 He further asserts that the safety of persons in his position and his mental health are matters of general and public importance in New Zealand.
[39] In his addendum, in relation to the application to seek leave to appeal, Mr Mutsamwira also asserts the Tribunal committed a procedural error in relation to the availability of Mr Mutsamwira’s counsellor as a witness. That ground clearly related to the review application Mr Mutsamwira was contemplating but did not file so I take it no further here.
Submissions for the Minister
[40] Mr Britton filed, as timetabled, detailed submissions. I have taken those into account in the discussion I will now come to.
Discussion
[41] The decision reached by the Tribunal in relation to Mr Mutsamwira’s six identified bases of appeal, which I have set out above, concluded that none of the grounds were established and, in any event, there would be no injustice or undue hardship. Significantly, Mr Mutsamwira now implicitly accepts the Tribunal was
32 Decision, above n 1, at [129].
33 Decision, above n 1, at [131]-[143].
34 Ye v Minister of Immigration, above n 11.
entitled to reject four of those alleged bases. That leaves the focus on risk of persecution and mental health.
[42] I have set out the Tribunal’s reasoning and conclusions relating to the fear and safety ground. As I have noted, the Tribunal concluded Mr Mutsamwira’s fears in relation to persecution were entirely speculative as considered on the evidence presented. The reasoning by which the Tribunal reached that factual conclusion is clearly set out in the relevant passages of the Decision at [110] to [116].
[43] Debate as to the evidential conclusion reached by the Tribunal is about the facts as determined in the Decision, not the application of the law. There was no relevant humanitarian circumstance to consider in relation to the risk of persecution because the evidence did not establish such risk. Leave to appeal cannot be granted in relation to that ground because the ground relates to the Tribunal’s underlying factual findings.
[44] I have also set out above the Tribunal’s reasoning and conclusions relating to the mental health ground. As I have noted, the Tribunal concluded Mr Mutsamwira had not provided evidence to establish he might suffer a serious mental health crisis if returned to Zimbabwe. Similarly, there was no evidential basis to support Mr Mutsamwira’s claim that his deportation would, because of a mental health condition, be grossly inhumane.
[45] The reasoning by which the Tribunal reached those factual conclusions is clearly set out in the relevant passages of the Decision at [104] to [109]. As with the risk of persecution ground, debate as to the evidential conclusion reached by the Tribunal is about the facts as determined in the Decision, not the application of the law. There was no relevant humanitarian circumstance to consider in relation to mental health because the evidence did not establish Mr Mutsamwira’s assertion that his return to Zimbabwe would result in a mental health crisis.
[46] Leave to appeal cannot be granted in relation to these grounds because the grounds of appeal relate to the Tribunal’s underlying factual findings.
Outcome
[47]The application for leave to appeal is dismissed.
Costs
[48] Having delivered the foregoing judgment orally, I invited submissions on costs. Mr Britton seeks costs for the Minister on a 2B basis without a certificate for second counsel, together with disbursements.
[49] I explained to Mr Mutsamwira that costs normally follow the event in relation to an application such as this, and I have explained that 2B represents essentially a middle approach to the awarding of costs. Mr Mutsamwira indicates, understandably, that he had not prepared for submissions in relation to costs.
[50] I am satisfied the appropriate order is that Mr Mutsamwira pay costs on a 2B basis together with disbursements.
[51] I accordingly order Mr Mutsamwira to pay costs to the Minister on a 2B basis together with disbursements to be fixed by the Registrar.
Osborne J
Solicitors:
Crown Solicitor, Wellington
Copy to:
Saymore Mutsamwira
Copy to: A Lawson/N White
3
0