Nacis v Minister of Immigration
[2016] NZHC 2627
•2 November 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2016-485-000489 [2016] NZHC 2627
UNDER Section 245 of the Immigration Act 2009 IN THE MATTER OF
an application for leave to appeal to the
High CourtBETWEEN
GEMMA JULATON NACIS Applicant
AND
MINISTER OF IMMIGRATION Respondent
Hearing: 28 October 2016 Counsel:
R Woods for Applicant
M G Coleman for RespondentJudgment:
2 November 2016
JUDGMENT OF ELLIS J
I direct that the delivery time of this judgment is
3 pm on the 2nd day of November 2016
NACIS v MINISTER OF IMMIGRATION [2016] NZHC 2627 [2 November 2016]
[1] Ms Nacis seeks leave to appeal against the decision of the Immigration and Protection Tribunal (the IPT) declining her appeal against the Minister’s decision to deport her.1 Her liability for deportation arose as a result of her conviction in 2010 for an offence under s 342 of the Immigration Act 2009 (the Act), namely providing false and misleading information to an immigration officer. The maximum penalty for such offending is seven years’ imprisonment or a $100,000 fine.2
Facts
[2] Ms Nacis was born in the Philippines in 1976. In 1994, she moved to Dubai, where she met and formed a relationship with Kassam Merchant. They travelled together to Mumbai and married. Their two sons were born in 1997 and 2000. The marriage subsequently began to deteriorate.
[3] In June 2002, Mr Merchant applied for New Zealand residency for himself and his family. He travelled to New Zealand by himself in October that year. Ms Nacis’ name was removed from the application because she had not provided the required documentation.
[4] Mr Merchant and the children were granted residency in March 2005. Prior to that the boys had continued to live in Mumbai with Ms Nacis. In 2003 Ms Nacis formed a relationship with another man, Mr Al Sakkaf. Mr Merchant was also in a new relationship with a woman in New Zealand.
[5] In May 2005 Ms Nacis came to New Zealand on a visitor visa. She and the two boys joined Mr Merchant. Ms Nacis and Mr Merchant attempted to reunite. They lived together in Queenstown and later in Blenheim for a total of eight months. But the relationship failed and Mr Merchant left Blenheim to live in Wellington in February 2006. Ms Nacis and her sons remained in Blenheim. All the while she maintained contact with Mr Al Sakkaf, who remained overseas.
[6] On 26 March 2006, Ms Nacis made an application for New Zealand residency. Part of her motivation was to help Mr Al Sakkaf obtain residence. The
1 Nacis v Minister of Immigration [2016] NZIPT 600211 [decision under appeal].
2 Section 355 of the Act.
application was, however, based on her marriage to Mr Merchant; she stated in the application that she was living in a genuine and stable relationship with him. Her application was granted on 2 June 2006.
[7] On 9 September 2007 Ms Nacis returned to Mumbai and reunited with Mr Al Sakkaf. She married him three weeks later, notwithstanding that she was still legally married to Mr Merchant. During her absence in India, the boys stayed with their father.
[8] Ms Nacis returned to New Zealand on 15 October 2007. On 20 December, her marriage to Mr Merchant was dissolved by the Family Court.
[9] In March 2008, Mr Al Sakkaf applied for a visitor’s visa to enter New Zealand, but this was declined. In April 2009, he applied again, this time sponsored by Ms Nacis as his wife. That application claimed that Ms Nacis and Mr Al Sakkaf had been in a de facto relationship since 2004. This, of course, called into question the truthfulness of the statements made on Ms Nacis’ original application for residence.
[10] In the result, both Ms Nacis and Mr Merchant were charged under s 342 with supplying false and misleading information to an immigration officer. In 2010 they pleaded guilty and were sentenced to seven and five months’ home detention respectively. The sentencing Judge said:3
Both of you need to understand that New Zealand is a highly desirable place to live. Both of you also need to understand that you are part of a not insignificant group of people who, recognising that, try to bend the rules, manipulate the system and lie in order to move from places where you reside to live here. I have no doubt that you were motivated to move to New Zealand for the right reasons. I have no doubt that you were motivated to improve your position in life, to leave the countries that you called home and to move to this place. However, in the process you went about that totally the wrong way and essentially committed fraud and the Court must come down hard on that so as to send a message to people contemplating approaching living here in the same way that that is not going to be accepted and that there will be consequences for it.
The saving grace for both of you is that you are considered by those who have written reports to be otherwise decent people. The saving grace for both
3 Quoted at [15] of the decision under appeal.
of you appears to be that you were misguided as opposed to being part of some more insidious industry involved in immigration fraud that the Court is acutely aware of.
It is for that reason I think the Crown accurately describes your offending at the lower end of the scale but in the context of what you have done as against the need to send the message that our immigration laws are there for a purpose and must be adhered to, I believe a starting point is that of a sentence of imprisonment and a starting point is in the vicinity, I believe, of where the Crown pitches it. It is pitched at an appropriate level to give teeth to the legislation and is a real deterrent sentence so given the seriousness of the offending and the need to deter, I agree with the suggested starting points. I agree that Miss Nacis' culpability is greater than that of Mr Merchant and that she should therefore attract a higher sentence.
[11] In May 2011 the two boys were granted New Zealand citizenship.
[12] Ms Nacis’ conviction rendered her liable for deportation.4 She was, however, entitled to appeal that liability to the IPT under s 207 of the Act, and she did so. Section 207 requires the IPT to allow an appeal against a determination that an appellant is liable for deportation where it is satisfied that:
(1) 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
(2) it would not in the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
[13] In its decision dated 12 December 2014 the IPT accepted that Ms Nacis’ case involved exceptional circumstances of a humanitarian nature.5 Those circumstances principally involved the effect her deportation would have on her two boys, and the family unit. But the IPT also concluded that:
(a) it would not be unjust or unduly harsh for Ms Nacis to be deported;
and
(b)the seriousness of her offending meant it was in the public interest for her to be deported.
4 Section 158 of the Act.
5 Nacis v Minister of Immigration [2014] NZIPT 600016.
[14] The IPT nonetheless suspended the deportation order for 12 months to allow her to get her affairs in order.
[15] Ms Nacis applied to this Court for leave to appeal that decision. Such appeals are brought under s 245 of the Act which relevantly provides:
(1) Where any party to an appeal to, or matter before, the Tribunal … 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 … appeal to the High Court on that question of law.
…
(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.
(4) On the appeal, the High Court must determine the question or questions of law arising in the proceedings, and may then—
(a) confirm the decision in respect of which the appeal has been brought; or
(b) remit the matter to the Tribunal with the opinion of the High Court, together with any directions as to how the matter should be dealt with; or
(c) make such other orders in relation to the matter as it thinks fit.
[16] On 14 April 2015 Collins J both granted Ms Nacis leave to appeal and allowed the appeal, on the grounds that the IPT decision involved two material errors of law, namely that:6
(1) It allowed itself to take into account its intention to suspend deportation of Ms Nacis when considering s 207(1)(a) of the Act. This was an irrelevant consideration.
(2) It placed disproportionate weight on its concern for the significance of the impact of Ms Nacis’ offending on the integrity of New Zealand’s immigration system as sufficient in itself to demonstrate that it would be contrary to the public interest for an appellant in Ms Nacis’ circumstances to remain in New Zealand when weighing public interest considerations under s 207(1)(b) of the Act.
6 Nacis v Minister of Immigration [2015] NZHC 691 at [76], quoted in second tribunal decision at
[19].
[17] In the context of a subsequent application by the Minister for leave to appeal that decision Collins J confirmed that (in his view) the second finding was obiter.7
On that basis the Minister did not pursue his appeal and the matter was referred back to the IPT for rehearing.
The second IPT decision
[18] By the time of the second IPT hearing, Ms Nacis and the boys were living in a rented house in Blenheim together with Mr Merchant. Mr Merchant was contributing to their rent and expenses. Ms Nacis was working seasonally at a mussel factory and in vineyards and orchards. Mr Merchant was working at a factory. The older boy had finished school and had been working part time but had a scholarship to study for a certificate in aeronautical maintenance engineering at an institute of technology. The younger boy was in his penultimate year of school, and intends to go to University.
[19] In the decision which is now the subject of this judgment, the IPT found (as it had previously) that the relationship between Ms Nacis and (in particular) her younger son constituted exceptional circumstances of a humanitarian nature. The decision therefore focused on whether those circumstances were such as to render her deportation unjust or unduly harsh, when measured against the reasons for her
liability to deportation.8
[20] In terms of the reasons for Ms Nacis deportation, the Judge said:
[72] The appellant is liable for deportation because the Minister of Immigration had determined that she held a residence class visa granted on the basis of a visa procured through fraud, forgery, false or misleading representation, or concealment of relevant information. The Deportation Liability Notice stated that her procurement of her visa in this way had been established by her conviction and sentence in July 2010 in the District Court.
[73] The Tribunal notes that the appellant has stated that she did not appreciate the seriousness of the crime that she was committing when she lodged her fraudulent immigration document. She said that she was emotionally stressed at the time of her separation and divorce. The Tribunal
7 Minister of Immigration v Nacis [2015] NZHC 2890 at [13].
8 This is the approach set out in Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR
248 at [9].
also acknowledges that, other than her conviction for immigration fraud, she has no other recorded convictions.
[74] The Tribunal notes that the appellant’s application for residence (on
27 March 2006) was on the express basis of her relationship with her husband, Mr Merchant. However, at the time the application was lodged,
this relationship had failed and she and her husband had been living in
different towns since one month earlier. Furthermore, two years earlier, she had established a new relationship with another man and was in regular
contact with him through electronic exchanges and telephone calls. One of
the reasons the appellant applied for residence was to provide a means whereby her new partner could obtain residence status in New Zealand. Yet, when asked in her residence application form as to whether she was living with her husband in a genuine and stable relationship, she replied "yes". In the next part of the form, she was given the chance to explain if she was not living together with her husband, and she left this section blank.
[75] The situation of the appellant not being in a genuine and stable relationship with Mr Merchant continued from the time of her lodging her residence application until she was granted residence on 2 June 2006, and well beyond this. She married her new partner 15 months after she obtained residence status. Some 19 months after this she sponsored a visa application for her new husband to come to New Zealand, and they stated that they had been in a de facto relationship since 2004.
[76] From the above facts, the Tribunal concludes that the appellant consciously and deliberately manipulated the New Zealand immigration system through the provision of false and misleading representations and the concealment of relevant information. The seriousness of her actions was emphasised by the fact that, after her fraud was discovered, she was prosecuted, convicted and sentenced for supplying false and misleading information to an immigration officer (maximum penalty: seven years' imprisonment).
[77] The Judge who sentenced the appellant noted that she was part of a group of people who “try to bend the rules, manipulate the system and lie in order to move from places where you reside to live here”. The Judge said that the appellant had applied for residence in “totally the wrong way and essentially committed fraud”, and that the Court had to “come down hard on that so as to send a message to people contemplating approaching living here in the same way that that is not going to be accepted and that there will be consequences for it”. In order to send a message that immigration laws needed to be adhered to, his starting point was a term of 18 months’ imprisonment, which, when reduced for the guilty plea, was translated into seven months’ home detention.
(emphasis added)
[21] In terms of the competing exceptional humanitarian circumstances the Judge again noted that the best interests of her younger son lay in her remaining in New Zealand, and that it was also in the best interests of her older son and herself to stay here. He observed that they have lived together as a tight-knit family in New
Zealand for 11 years, and that the younger son is 16 and still at school. The Judge noted the right to family unity in art 23 of the ICCPR, but also that art 17 only protects against arbitrary or unlawful interference with family unity; difficulty, hardship and emotional upset caused by separation may not necessarily be arbitrary.9
The Judge noted again that Ms Nacis would be returning to her home of 18 years and to her family and that she was resourceful. Her older son was entering adult life already, and her younger son would soon be undertaking tertiary study which may well take him away from home. The Judge said:10
As noted above, the sons and their father may be able to sustain a family home together, at least until the younger son leaves home. The sons could maintain contact with the appellant in the future, through telephone and electronic means of communication, and the possibility may exist for future visits.
[22] Then, the IPT then went on to say:
[81] As noted above, the Tribunal must treat the best interests of a child (in this case, the appellant's younger son) as a primary consideration. However, also as noted above, these interests are neither the paramount nor the primary consideration, and they may be outweighed by countervailing considerations. Serious immigration fraud can be such a consideration. In Minister of Immigration v Al-Hosan [2008] NZCA 462 at [73(b)], the Court of Appeal stated:
“The position that [the] appellant starts from is that he or she has done or omitted to do something that calls into question the integrity of New Zealand's immigration laws. ... In that context that interests of the children will be a matter of importance, but those interests may be outweighed by the need to control the border and provide a disincentive for dishonest actions on the part of immigration applicants.”
[82] The Tribunal has sympathy for the appellant, an otherwise law- abiding person, whose natural wish is to live in New Zealand with her sons. The Tribunal acknowledges the humanitarian circumstances of her and her sons, particularly her younger son. However, weighed against these considerations is that fact that she deliberately misled the New Zealand immigration authorities and thereby gained residence status to which she was otherwise not entitled. In Jag Pal v Minister of Immigration [2013] NZHC 2070 at [62], the High Court observed:
“The integrity of the application process turns on the scrupulously honest and careful completion of forms. Applicants must realise that the consequence of failing to be honest and open in the application process is severe. Only then
9 Ministry of Immigration v Jooste [2014] NZHC 2882, [2015] 2 NZLR 765 at [47].
10 Decision under appeal, above n 1, at [80].
will the immigration system continue to work. If sympathy for the individual became the dominating concern it can be foreseen that the present application system would break down entirely.”
[23] The Judge concluded that it was not unjust or unduly harsh for Ms Nacis to be deported, noting a child’s best interests can be outweighed by other considerations, including serious immigration fraud.
[24] Because of the conclusion he had reached on the first limb of s 207, the Judge did not go on to consider the second, public interest, limb. He referred to statements by the Supreme Court that if the first limb of the test is not satisfied, then the inquiry ends there.11
Application for leave to appeal
[25] As noted earlier, s 245 provides that, in order to grant leave, the Court must be satisfied that the proposed appeal raises a question of law which ought to be decided by the High Court because of:
(a) their general or public importance; or
(b) “any other reason”.
[26] In Machida v Chief Executive of Immigration New Zealand the Court of Appeal held that the “any other reason” limb of s 245(3) would be engaged only in exceptional circumstances involving individual injustice to such an extent that the Court could not countenance the first instance decision standing.12
[27] Mr Woods submitted on Ms Nacis’ behalf that the IPT decision contained a number of potentially vitiating errors of law.
[28] First, he said that the finding that Mr Merchant “may” be able to sustain a family home until the younger boy leaves home was speculative and contrary to the
11 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [30], confirmed in Helu v
Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [157].
12 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] NZAR 662 at [8].
evidence, which was that Mr Merchant had poor mental health which had a negative impact on him and his ability to run a household.
[29] Secondly, Mr Woods said that the IPT had placed disproportionate weight on the impact of Ms Nacis’ offending on the integrity of the immigration system, which:
(a) ignored Collins J’s finding that the first decision had placed too much weight on this factor; and
(b) ignored the comment by the sentencing judge that Ms Nacis’
offending was at the “lower end of the scale”.
[30] Relatedly, Mr Woods submitted that the IPT wrongly took into account or adopted the Minister’s submission that the public interest in denouncing Ms Nacis’ conduct was relevant to the balancing exercise. He said that the IPT’s approach was contrary both to Collins J’s dicta and to a passage from the Supreme Court’s decision in Helu v Immigration and Protection Tribunal, to which I shall later return.
[31] Thirdly, Mr Woods said that that the IPT failed to take into account those international obligations which were relevant to the position of Ms Nacis’ older son. He submitted that had the IPT properly taken into account arts 23 and 24 of the ICCPR (which provide for the protection of the family) it would have strengthened the finding of exceptional circumstances which, in turn, may have altered the outcome of the weighing exercise.
[32] Fourthly, Mr Woods said that the IPT had failed to consider the second, public interest, limb of the test. He noted that the Tribunal had considered this limb in its first decision, despite its finding that deportation would not be unjust or unduly harsh. He submitted that there was nothing in the Helu decision to prevent the Tribunal from undertaking an assessment of public interest before completing its analysis of unjustness and undue harshness.
[33] Fifthly, he said that the IPT’s statement (at [79]) that
… The High Court has noted that family separation will often cause difficulty, hardship and emotional upset, but that this in itself may not be sufficient to prevent deportation - Minister of Immigration v Jooste [2014] NZHC 2882 at [47].
was a misstatement or misapplication of [47] of the decision in Jooste.
Discussion
[34] In my view, it is only the second of the five points outlined above which requires detailed consideration here. The rest can be disposed of fairly shortly and so I deal with them first.
Mr Merchant’s ability to provide a home for the boys
[35] I accept that for the reasons emphasised by Mr Woods, there was necessarily room for doubt about whether Mr Merchant will be able to provide a home for the boys. But the evidence was that his mental health had improved, he had a good relationship with his children, he was working, he was receiving support and he had cared for the children when Ms Nacis was overseas. In that context, the IPT’s use of the word “may” was entirely apt.
[36] The only ways in which Mr Woods’ submission might have any heft would be either if:
(a) it was clear that, on the one hand, the IPT had acknowledged the contingent nature of Mr Merchant’s home-making abilities but, on the other, proceeded on a different basis, namely that Mr Merchant was in fact able to care for his sons; or
(b) there was some mandatory requirement that the IPT be satisfied that
Mr Merchant could in fact care, and provide a home for his sons.
[37] As far as the first possibility is concerned, the decision makes it clear that that is not what happened. Rather, it seems to me that the IPT quite correctly recognised that there was some uncertainty on the issue. There is no foundation for the
submission that the Tribunal did not take that uncertainty into account when balancing the competing factors.
[38] As far as the second possibility is concerned the argument would have to be that, in the absence of Mr Merchant’s demonstrable ability to look after his sons, undue hardship would, by definition, exist. That is not the case either. Instead, as Ms Coleman submitted, the older boy is no longer legally a child and must be assumed to be capable of looking after himself and, to some extent, his younger brother. Given they are both New Zealand citizens there is the possibility of the provision of State assistance to the boys, and to Mr Merchant, if required. While the possibility that such may be required is not ideal, particularly when compared with their present circumstances, its existence cannot by itself be said to give rise to hardship which is inevitably undue. Rather, it is a matter to be weighed in the mix, which is precisely what the IPT did here. This is not a case where it could be said that an error in law has been made by reason either of an absence of evidential underpinning, or an evaluation on evidence that was not reasonably available to the Tribunal.13
Failure to have regard to relevant human rights instruments
[39] Under this proposed ground Mr Woods submitted that the IPT had failed to have regard to art 23 of the ICCPR and, in particular, the interests of Ms Nacis’ older son and the family unit as a whole. But a straightforward reading of the IPT’s decision supports the opposite conclusion. The Tribunal said:
[78] To be balanced against the appellant's offending are her exceptional humanitarian circumstances. As identified above, these are the best interests of her younger son, taken together with the circumstances of herself and her elder son. They have lived together as a tight-knit family unit for the past 11 years in New Zealand, and the younger son is only nearing the age of 16 years and is still at school. In the context of family separation, the Tribunal bears in mind the right to family unity protected by Article 23 of the ICCPR. Separation of family will often bring about anguish, sadness and upheaval, involving members (such as the appellant's two sons) who are not themselves implicated in any wrongdoing.
[79] However, Article 17 of ICCPR does not prohibit all interference with
family unity; it prohibits only interference that is arbitrary or unlawful. …
13 D’Arcy-Smith v Natural Habitats Ltd [2016] NZCA 20 at [13]–[15].
[40] Given the IPT’s express reference to the right to family unity, any challenge on this ground could only go to the issue of weight. In my view that cannot amount to an error of law.
Failure to undertake public interest limb
[41] It is true in its first decision the IPT did go on to assess the public interest despite finding against Ms Nacis under the first limb. It is worth recording that its analysis of the public interest limb also went against Ms Nacis.
[42] Be that as it may, however, the authorities make it quite clear that there is no obligation to consider the public interest limb of the test if it finds that the first (undue harshness) limb is not satisfied.14 There is no merit in this proposed ground of appeal.
Misapplying Jooste
[43] The relevant passage from the IPT’s decision reads as follows:15
The High Court has noted that family separation will often cause difficulty, hardship and emotional upset, but that this in itself may not be sufficient to prevent deportation - Minister of Immigration v Jooste [2014] NZHC 2882 at [47].
[44] Mr Woods is correct that the IPT’s paraphrase of [47] of the Jooste decision was not repeated verbatim here. What Katz J actually said was that:
The primary humanitarian factor identified by the Tribunal in Mr Jooste’s case was his separation from his children if he were deported. Unfortunately, cases involving the separation of parent and child are not unusual in the deportation context. Family separation through deportation will often cause “difficulty, hardship and emotional and upset” – but that in itself is not sufficient. Although such difficulties, hardship and emotional upset will clearly be “compassionate circumstances” that may well be of “genuine concern” something more is required for a finding of exceptionality.
(emphasis added)
[45] But the difficulty is that this proposed ground of appeal involves a distinction without a difference. If (as Katz J observed) the “difficulties, hardship and
14 Helu, above n 11, and Ye, above n 11.
15 Decision under appeal, above n 1, at [79].
emotional upset” involved in separating a child from her parent may not suffice to constitute exceptional circumstances it necessarily follows that those matters may also not be sufficient to prevent deportation.
Weight given to the integrity of the immigration system
[46] I have set out the relevant passages from the IPT decision in full at [20] above. As I have said, Mr Woods’ submission was that these parts of the IPT’s decision evidenced that the Tribunal had:
(a) wrongly ignored Collins J’s conclusion that the first IPT decision had placed too much weight on the impact of Ms Nacis’ offending on the integrity of the immigration system; and
(b) wrongly ignored the comment by the sentencing judge that Ms Nacis’
offending was at the “lower end of the scale”.
[47] As regards the first matter, Mr Woods acknowledged that Collins J’s statement was made in relation to the second, public interest, limb of s 207. But, he said, the Tribunal was also obliged to take what the Judge said into account when considering the first, undue harshness, limb. He rejected the Minister’s submission that the Tribunal was entitled to ignore what Collins J had said because it was obiter, noting the comment in Ding v Minister of Immigration that “dicta are not to be disregarded as obiter when they are the result of careful consideration by an
appellant court”.16
[48] In my view a direct focus on what Collins J may or may not have said in his earlier judgment, and the related issues about whether the IPT was bound to apply it, is unhelpful. That is because regardless of whether his view about the weight placed on the integrity of the immigration system was obiter, it was plainly a view held in relation to the second rather than the first limb. It seems to me that the better focus
is simply whether the Judge can arguably be said to have erred when he took the
16 Ding v Minister of Immigration (2006) 25 FRNZ 568 (HC) at [252].
integrity of the immigration system into account when considering the question of injustice and undue hardship.17
[49] In Helu McGrath J analysed the injustice/undue hardship limb in the following way:18
[160] The first threshold that a person appealing against a deportation order must meet is that of satisfying the Tribunal that deportation would be unjust or unduly harsh. While they are separate concepts in this case the focus is on undue harshness.
[161] The Tribunal’s determination of this issue will focus on a number of matters relating specifically to an appellant. Factors indicating the effect of deportation on the appellant and the family of the appellant including the unity of the family are to be considered. This is evident from the nature of the mandatory statutory considerations in s 105(2). Under that subsection, regard must be had to certain personal and domestic circumstances of an appellant, including his or her work record. His or her age at the time of the Tribunal decision is important together with the length of the time during which he or she has been in New Zealand lawfully.
[162] As well, under s 105(2)(e) and (f), factors which go to an appellant’s culpability are also made relevant to whether deportation would be unduly harsh. The nature of the offences committed by an appellant that bring him or her within s 91 must be considered in the decision on the first question, along with any further offences of which he has been convicted. This requires the Tribunal to assess the gravity of the particular offending and its effects, not merely the kind of offence involved. The Tribunal must assess the degree of an appellant’s culpability in all the circumstances. As well, regard must be had to any submissions from a victim of such offences under s 105A.
[163] The Tribunal is also specifically required to have regard to the
interests of an appellant’s family under s 105(2)(g). Finally, under s
105(2)(h) it must have regard to such other matter as it considers relevant.
[164] This is a case of the kind explained above, where Parliament has sought to give effect to New Zealand’s international obligations by requiring the Tribunal to have regard to particular considerations emanating from those obligations. The statutory direction in s 105(2) that the Tribunal must consider the interests of an appellant’s family incorporates the protection of the family unit in arts 17 and 23(1) of the Covenant. Parliament has expressly provided that the Tribunal must take this into account in deciding whether deportation would be unjust or unduly harsh. As well, s 105(2) requires the Tribunal to consider matters such as the age, nature and
17 To the extent this proposed ground of appeal involves the contention that the Tribunal gave undue weight to the integrity of the system, I do not consider that it could amount to the requisite question of law.
18 While the Court was here considering the predecessor to s 207 (s 105 of the Immigration Act
1987) it was not contended that those matters do not continue to be relevant to the issue of undue harshness under s 207, notwithstanding that they are no longer expressly articulated. In Guo, above n 8, at [8]–[9] the Supreme Court supported continuity in application between the old and new regimes.
seriousness of the offence, and the length of the appellant’s stay in New Zealand, which have been seen as relevant to whether interference with family life will be arbitrary.
[165] Similarly, the mandatory considerations in s 105(2) incorporate matters of the kind that the Human Rights Committee has considered relevant to assessing the strength of a person’s ties to a country under art 12(4) of the Covenant. Long residence in New Zealand, as part of a family that continues to live here, the absence of ties elsewhere, and other factors that may lead an appellant to see New Zealand as his or her “own country” are brought within the scope of the inquiry into undue harshness. So far as relevant, they must be considered by the Tribunal and, in this way, will have bearing on when a non-citizen may be required to leave New Zealand.
[166] The structure of s 105(2) accordingly requires that final assessment of whether deportation would be unjust or unduly harsh to be made in light of both the interests and circumstances of an appellant and his or her family, and the appellant’s history of offending. The Tribunal’s assessment of this first limb of the s 105 test is not in issue in this appeal.
(emphases added, footnotes omitted)
[50] The fact that there will potentially be overlap between the first (injustice/undue harshness) inquiry and the second (public interest) inquiry was expressly recognised by McGrath J later where he said:
[170] … The terms of s 105(1) direct that the focus at this second stage of the Tribunal’s process will accordingly be on the community’s interests. While some of the same factors as have been considered in assessing whether deportation would be unjust or unduly harsh will fall for consideration, in this step they are to be viewed through a different lens. International obligations, or the interests they protect, fall to be considered to the extent that the language of s 105(1) permits: that is, to the extent that they affect the public interest.
(emphasis added)
[51] By way of a particular example of the different “lenses”, the Judge observed that something such as family unity may be recognised as incorporating both a private interest, possessed by individual family members, and a public interest (in maintaining the unity of families and thus contributing to the well-being and stability of the community). The former interest falls to be considered under the first limb and the latter under the second. Then, McGrath J went on to say:
[173] A key factor in the assessment of where the public interest lies is the risk of recidivism: future offending by an appellant. It is a factor which will count against an appellant. Further punishment of an appellant is not part of
the purpose of s 105 and is accordingly not relevant. The consideration of past offending in relation to the public interest is rather focused on the likelihood and likely gravity of offending in the future, including the likelihood of escalation of offending. While the nature of past offending and an appellant’s culpability will often helpfully inform assessment of the future risk, it should not be permitted to displace assessment of the risk of future offending or harm to the public.
[52] The italicised passage refers back to paragraph [159] of McGrath J’s judgment, which was particularly relied on by Mr Woods. There, McGrath J had said:
The policy considerations underlying this provision for deportation by Ministerial order are the maintenance of public safety and public confidence in the administration of the immigration system. The statutory scheme does not have a punitive or denunciative purpose. That is rather the function of the criminal justice process which has been completed with the conviction and sentence of an appellant that triggers the operation of s 91. The application of s 91 nevertheless has serious impacts on those to whom it applies and the purpose of the provision for appeal to a statutory tribunal is to enable those impacts to be assessed against the overall public interest of the case.
[53] Against these dicta I am unable to accept Mr Woods’ submission that there is anything in the passages from the IPT decision I have quoted at [20] above that suggests that Judge Spiller may have erred in his approach. When considering undue hardship/injustice he was required to assess and consider the gravity of Ms Nacis’ offending. Her offending was regarded by him as serious not simply because it involved dishonesty but because of the particular difficulties that such dishonesty causes for both the operation and integrity of the immigration system as a whole. So while the immigration system does not, itself, have a punitive and denunciative purpose, where the reason for deportation involves immigration fraud, the impact of such frauds on the system must be relevant. The “victim” here is, in a sense, that system.
[54] The proposition that the impact on the integrity of the system is relevant to the first limb of s 207 is further supported by the two decisions referred to by the IPT in this part of its decision.
[55] For similar reasons I can discern no arguable legal error in the IPT’s omission to refer to the sentencing judge’s comment that Ms Nacis’ offending was at the “lower end of the scale”. In fact the Tribunal did set out that comment in full earlier
in the decision. But in any event I am unable to see how that comment might have altered the Tribunal’s core assessment of the nature and gravity of Ms Nacis’ offending, namely that it involved deliberate dishonesty in an immigration context.
[56] It may well be that there are more elaborate, sophisticated or planned egregious cases of immigration fraud than that perpetrated by Ms Nacis and Mr Merchant. Comparison with more egregious cases necessarily forms part of the sentencing exercise. But it seems to me that for s 207 purposes the only issue is whether the IPT somehow mischaracterised the facts or nature of Ms Nacis’ offending or the extent of her culpability. I am unable to see that it even arguably did so here.
Result
[57] In my view none of the proposed grounds of appeal involves a seriously arguable question of law. The issue of whether the questions can be said to be of general or public importance, or for some other reason submitted to this Court for determination, does not therefore arise.
[58] The application for leave to appeal is declined accordingly.
Solicitors: Rowland Woods Legal Ltd, Wellington, for Applicant
Crown Law, Wellington, for Respondent
“Rebecca Ellis J”
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