NM (Fiji) v Minister of Immigration
[2020] NZHC 2077
•17 August 2020
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT AND OF HIS CLAIM OR STATUS
MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009. SEE
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2020-419-000080
[2020] NZHC 2077
UNDER THE Immigration Act 2009 IN THE MATTER OF
An application for leave to appeal under s 245 of the Immigration Act 2009
BETWEEN
NM (Fiji) Applicant
AND
MINISTER OF IMMIGRATION
Respondent
Hearing: 6 August 2020 Appearances:
R Nandan for Applicant
M Davie and L Worthing for Respondent
Judgment:
17 August 2020
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 17 August 2020 at 4.30pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel:
Ronald Gordon Lawyers, Hamilton Crown Law, Wellington
NM (Fiji) v MINISTER OF IMMIGRATION [2020] NZHC 2077 [17 August 2020]
Introduction
[1] NM is subject to a deportation liability notice issued under s 161(1)(b) of the Immigration Act 2009 (the Act). He appealed to the Immigration and Protection Tribunal (the Tribunal) against his liability for deportation. The appeal was brought on humanitarian grounds under s 207. The Tribunal found that there were no exceptional circumstances of a humanitarian nature. NM’s appeal was dismissed.1
[2] NM now seeks leave from this Court to bring an appeal against the Tribunal’s decision to this Court. The application for leave to appeal is brought pursuant to s 245(1) of the Act. Leave can only be obtained in respect of a question of law. The question of law NM seeks to raise was not articulated in the papers filed by him nor in counsel’s written submissions. I raised this matter with Ms Nandan, appearing for NM. She advised that the question her client seeks to raise is as follows:
Did the Tribunal err in coming to its conclusion that there were no exceptional circumstances that would make it unduly harsh for NM to be deported to his home country?
[3] NM also seeks to adduce further evidence to support his challenge to the Tribunal’s decision. There has been no application for leave to file further evidence. However, an application for leave to appeal is an interlocutory application. As a consequence, an affidavit or affidavits in support can be filed.2 This does not however mean that fresh evidence can be produced on the substantive issue. Rather, any affidavit must be confined to matters relevant to the grant of leave.3
[4] The respondent, the Minister of Immigration, opposes both the application for leave to appeal and the filing of the further evidence.
Factual background
[5] NM is 40 years old. He arrived in New Zealand in October 2006, when he was 26 years old, on a visitor visa. At that stage, his mother and two sisters had already
1 NM v Minister of Immigration [2020] NZIPT 600627.
2 Immigration Act 2009, s 245; High Court Rules 2016, r 20.3.
3 Fresh Direct Ltd v J M Batten & Associates HC Auckland CIV-2008-404-4757, 3 December 2009 at [11].
been in New Zealand for some three years, and they had acquired permanent resident immigration status. When they left Fiji in 2003, NM lived with his two brothers in that country. One brother subsequently came to New Zealand. The other brother remains in Fiji. When NM came to this country, he initially stayed with his mother for a few months but then moved to another city.
[6] In April 2007, NM’s continued presence in New Zealand became unlawful. However, he applied for and was subsequently granted a two year work permit under the then applicable provisions in the Immigration Act 1987.
[7] NM also formed a relationship with a New Zealand resident in 2007. Based on this relationship, he was granted, first, a work visa on partnership grounds in August 2008 and then a resident visa under the Family (Partnership) category on 13 July 2009.
[8] On 31 August 2009, NM assaulted his partner. He was convicted of male assaults female and ordered to come up for sentence if called upon.
[9] In September 2009, NM and his partner had a son. That son is a New Zealand citizen.
[10]In September 2012, NM was granted permanent resident status.
[11] In December 2012, NM drove with excess breath alcohol (limit 400 micrograms of alcohol per litre of breath – NM’s reading was 566 micrograms of alcohol per litre of breath). He was convicted and sentenced to a fine of $450 together with Court costs and disqualified from driving for a period of six months.
[12] On 18 April 2013, NM assaulted his partner again. He pushed her, told her to shut up and then punched her in the face three times with a closed fist. He was convicted of male assaults female and sentenced to 75 hours’ community work and nine months supervision.
[13] NM separated from his partner in mid-2015. A protection order was made in the Family Court on 22 July 2015 in her favour. She moved to Auckland and became the primary carer of her and NM’s son. Over the ensuing two and a half years, NM
had supervised access to his son approximately six times per year, but otherwise he had no contact.
[14] In mid-2016, NM married a Fijian citizen but they quickly separated and have since divorced.
[15] On 21 January 2017, NM drove again with excess breath alcohol (limit 400 micrograms of alcohol per litre of breath – NM’s reading was 727 micrograms of alcohol per litre of breath). He was convicted and sentenced to 80 hours’ community work and disqualified from driving for seven months.
[16] In April/May 2017, NM returned to Fiji. He remained there with his brother and his family for over three weeks. In the course of the visit, he met a Fijian citizen who resides in that country.
[17] In January 2018, the protection order in favour of his New Zealand partner was discharged, on the basis of an undertaking from NM not to engage in further offensive behaviour. Since that time, NM has had supervised access as well as telephone contact with his son pursuant to a parenting order put in place by the Family Court.
[18] Between February and May 2019, NM visited his brother in Fiji for four weeks. During this time, he married again – this time to the Fijian citizen who he had met when he was in Fiji in April/May 2017. The relationship did not last and they are estranged.
[19] NM currently lives in New Zealand with his mother. His former New Zealand partner has the day-to-day care of their son and he continues to have rights of supervised access and telephone contact with his son. He also maintains contact with his brother in Fiji.
[20]NM is working as a line setter.
[21] Regrettably, NM’s conviction for assault in April 2013 only belatedly came to the attention of Immigration New Zealand.4 When it became aware of the conviction, on 15 August 2019, it served NM with a deportation liability notice under s 161(1)(b) of the Act on the basis of the 2013 conviction for male assaults female.
[22] On 4 September 2019, NM lodged an appeal with the Tribunal on humanitarian grounds under ss 161(2) and 206(1)(c) of the Act. The appeal was heard on 5 February 2020 and the decision declining the appeal was made on 11 February 2020.
The Tribunal’s decision
[23] The Tribunal recorded that it was required to allow the appeal only if it was satisfied that there were exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for NM to be deported from New Zealand and that it would not in all the circumstances be contrary to the public interest to allow him to remain in this country.5 The Tribunal referred to relevant Supreme Court authority,6 noting that there were three ingredients that had to be established:
(a)exceptional circumstances;
(b)of a humanitarian nature;
(c)that would make it unjust or unduly harsh for NM to be removed from New Zealand.
The Tribunal went on to record that because there were family interests at issue, it was required to have regard to the entitlement of the family to protection as the fundamental group unit of society, referring to the International Covenant on Civil and Political Rights, and various related documents.7
4 I was told from the bar that Immigration New Zealand does not receive details of convictions entered against persons who are not New Zealand citizens but who are in this country from the Department of Justice. I was also advised, again from the bar, that delays in the issue of deportation notices are, as a consequence, not uncommon.
5 NM v Minister of Immigration, above n 1, at [37], referring to Immigration Act 2009, s 207(1).
6 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.
7 NM v Minister of Immigration, above n 1, at [38].
[24] The Tribunal recorded the background facts, much as set out above, and the competing submissions advanced for NM and for the Minister. It then went on to consider whether there were exceptional circumstances of a humanitarian nature, noting that such circumstances had to be “well outside the normal run of circumstances” and that while they did not need to be unique or rare, they did have to be “truly an exception rather than the rule”.8
[25] The Tribunal referred to NM’s settlement in this country, acknowledging that he has developed strong ties to New Zealand, over a significant period of time, and that he sees New Zealand as his home. The Tribunal acknowledged that NM has a strong nexus to New Zealand through his mother, son, three siblings and wider family in this country. It also accepted that if he has to relocate to Fiji, he will face financial and other challenges of readjustment. Nevertheless, it considered that he also has a strong nexus to Fiji, because he has lived and worked there for much of his life; he is familiar with the language, culture and lifestyle in Fiji; he has visited Fiji regularly; and as recently as last year, he was in that country for seven weeks, when he married his current wife, who still lives in that country. It noted that NM and his wife are currently estranged, but that NM had expressed the hope that they can re-establish their relationship. It also noted that one of his brothers and his family continue to live in Fiji, and that NM stayed with them in 2017 and more recently in 2019. It noted that NM believed that his brother might be able to provide accommodation for him again. It noted his work experience in this country and considered that that experience might assist NM to find employment in Fiji.
[26] The Tribunal noted that financial loss and dislocation following deportation are not uncommon, and that mere economic betterment from living more comfortably in New Zealand, is not the type of humanitarian consideration in contemplation, and that it was not intended that “New Zealand house the world”.9
[27] The Tribunal went on to consider NM’s mother’s circumstances. It noted that she and NM share day-to-day living expenses and that he assists with her support. It
8 At [39] – citing from Ye v Minister of Immigration, above n 6, at [34].
9 At [43], referring to Romberg v Chief Executive of Department of Labour [1995] NZAR 509 (HC) at [529]-[530].
also noted that she has had health difficulties. The Tribunal recorded NM’s submission that his mother needed him to remain in New Zealand for her wellbeing. However, it noted that his mother has two daughters and another son who live in this country, and that they have been involved in her care. The Tribunal noted that there was no evidence to suggest that they were unable to continue assisting their mother, and that, as a New Zealand citizen, the mother has the financial, medical and social welfare support of the State. The Tribunal was not satisfied that the mother’s condition required NM to remain in this country.10
[28] The Tribunal then turned to the interests of NM’s son. At the time of the hearing, he was approximately 10 and a half year’s old. It referred to the Convention on the Rights of the Child, which records that the best interests of the child are to be given important and genuine assessment.11 The Tribunal then referred to the son’s circumstances, noting that in recent years, he has been in the primary care of his mother, and that NM has had only restricted access to him. It noted that the Family Court parenting order in place specifies that contact between NM and his son is to occur only during school holidays and the Diwali weekend, and otherwise by telephone, and that NM’s contact has to be supervised. It also noted that there are specific controls on NM’s behaviour. The Tribunal accepted that NM’s departure from this country will likely result in loss and sadness for the son, but observed that NM’s relationship with his son over the last four and a half years has been limited. It noted that NM and his son live in different centres, over 200 kilometres apart, and that their contact is for the most conducted by telephone. It also noted that, in 2019, notwithstanding that he had the right to have access to his son, NM instead was in Fiji. It noted that if NM is required to return to Fiji, he will retain the right to telephone the son and that, in time, the son may be allowed to visit NM in Fiji, subject to the agreement of his mother or a new Court order. The Tribunal was not satisfied that the best interests of the son would be seriously jeopardised by the absence of NM.12
[29] The Tribunal concluded by looking cumulatively at NM’s circumstances, his mother’s circumstances and the circumstances of his New Zealand-based siblings and
10 At [45].
11 At [46], referring to O’Brien v Immigration and Protection Tribunal [2012] NZHC 2599 at [32].
12 At [48].
son. It accepted that if NM was deported, there would be disappointment and emotional loss, but that this did not fall within the statutory test of exceptional circumstances of a humanitarian nature. The Tribunal was not satisfied that NM had met the high threshold required, and it held that the appeal must therefore fail. It recorded that, as a result of its finding that there were no exceptional circumstances of a humanitarian nature, it was unnecessary for it to go on and consider either the unjust or unduly harsh, or public interest, stages of the enquiry under the statutory test.13 The Tribunal did however remove, under s 215(1) of the Act, the period of prohibition on NM re-entering New Zealand following deportation that would otherwise apply under s 179.
Submissions
[30] Ms Nandan argued that the Tribunal did not properly apply the statutory test under s 207(1). She referred to Ye v Minister of Immigration, and accepted that the law in this area is well settled. She then went through the facts in some detail, arguing that there are exceptional circumstances applying to NM. She emphasised the length of time that he has been in New Zealand, his family relationships in this country, his brother’s situation in Fiji, his mother’s situation and the position that he is in with his son. She also discussed his employment in this country, arguing that were NM to be deported, New Zealand would lose a person with a skill set not readily replaceable. She did not suggest that the Tribunal had made any error in recording the facts. Rather, she challenged the Tribunal’s decision in relation to them.
[31] Ms Nandan then went on to consider the second limb of the s 207 test – whether it would be contrary to the public interest were NM to remain in New Zealand. She went through various factors in this regard, in particular referring to family unity and the minimal risk that NM might reoffend. She concluded by submitting that the Tribunal did not properly consider all of the facts placed before it and take into account all relevant considerations.
[32] Mr Davie, for the Minister, dealt with the requirements put in place by s 245 of the Act. He submitted that there is no question of law raised by NM, and that even
13 At [49]-[50].
if the question of law is raised, the question is of significance only to NM and his family, and is not a question that by reason of its general or public importance ought to be submitted to this Court for decision. He submitted that alleged errors as to the weight placed on evidence, or the application of settled law to particular facts, rarely give rise to questions of law sufficient to warrant a grant of leave. Finally, he argued that there is no other reason of sufficient importance to warrant the grant of leave.
Analysis
[33]Section 245 of the Act relevantly 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.
…
(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.
[34] The introduction of a leave requirement in the Act demonstrates a deliberate intention by Parliament to limit appeals from Tribunal decisions.14
[35] The section was considered by the Court of Appeal in Machida v Chief Executive of Immigration New Zealand.15 The Court noted that the section requires a prospective appellant to identify a seriously arguable question of law which either has importance extending beyond the particular case or for some other reason warrants a decision from a higher Court. The “general or public importance” test requires “a question capable of bonafide and serious argument involving an interest of sufficient
14 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [18].
15 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721.
importance to outweigh costs and delay”.16 The relevant issue must “go beyond the particular circumstances of the applicant”, or be one that “suggests the existing law should be revisited by the Court”.17 The application of the “any other reason” limb of the leave to appeal test is settled. The limb will be engaged in “exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing”.18
[36] Here, there is no suggestion that the Tribunal misconstrued the relevant law. The Tribunal referred to the decision of the Supreme Court in Ye v Minister of Immigration.19 Although it dealt with similar provisions in earlier legislation, there was no suggestion that the law has changed. Indeed, Ms Nandan expressly acknowledged that the law in this area is settled. Rather, it was asserted for NM that the Tribunal erred by declining to find that the adverse consequences resulting from his deportation amounted to exceptional circumstances of a humanitarian nature. That, however, is a factual finding. On the face of its decision, it appears that the Tribunal identified and applied the correct legal principles to the facts before it, and there is nothing in Ms Nandan’s critique of the Tribunal’s decision which suggests to the contrary. NM is simply asking for leave, so that he can come to this Court and ask it to take a different view of the facts. The question posed (noted above at [2]) is not a question of law.
[37] Even if there is a question of law (which I do not consider to be the case), it is not a question of general or public importance. NM’s case, at its highest, is that there are various matters personal to him and his family, which suggest that the Tribunal erred when it found that there were no exceptional circumstances of a humanitarian nature in his case. NM’s deportation is no doubt a matter of importance to him and his family but it does not raise any questions of general or public importance. The Tribunal has simply applied settled law to NM’s particular circumstances.
16 Wu v Minister of Immigration [2016] NZCA 511, [2016] NZAR 1667 at [12]; BC (Philippines) v Refugee and Protection Officer [2019] NZCA 180 at [9].
17 LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [32]; approved by Court of Appeal in BC (Philippines) v Refugee and Protection Officer, above n 16, at [9].
18 Taafi v Minister of Immigration, above n 14, at [19]; approved by Court of Appeal in Machida v Chief Executive of Immigration New Zealand, above n 15, at [8] and BC (Philippines) v Refugee and Protection Officer, above n 16, at [10].
19 Ye v Minister of Immigration, above n 6.
[38] To the extent that it was asserted that the Tribunal’s decision is unfair and unreasonable, this submission does not of itself disclose a question of law, and the arguments advanced for NM fell well short of demonstrating an arguable case that the Tribunal’s decision fell into this category. It is not a case which falls into the “for any other reason” limb of s 245(3). Nor was it asserted that the Tribunal’s decision has resulted in individual injustice to such an extent that the Court simply should not countenance the result.
[39] It was submitted that the Tribunal erred in its approach, by failing to consider the public interest test set out in the legislation, but this cannot disclose a qualifying question of law either. Once the Tribunal has declined to find exceptional circumstances of a humanitarian nature, it is settled law that it is not obliged to go on and consider the other parts of the test set out in s 207(1) of the Act.20 Ms Nandan did not suggest otherwise; nor did she argue that this aspect of the law needs reconsideration.
[40] Accordingly, I decline to grant NM’s application for leave to appeal the Tribunal’s decision to this Court. I am not persuaded that there is a question of law involved. If I am wrong in that regard and there is a question of law raised, I am not persuaded that the question of law is one that, by reason of its general or public importance, or for any other reason, should be submitted to this Court for its decision.
The further evidence
[41] NM filed an affidavit, which had annexed to it various exhibits. The respondent objected to the admission into evidence of this material. It was argued that the documents were irrelevant and that their admission into evidence would be contrary to the scheme of the Act. NM submitted that he was represented by a family member (his sister) at the Tribunal hearing, that his sister is not a lawyer, and that he should not be disadvantaged as a result. It was submitted that his affidavit does no more than outline his current situation in New Zealand, and changes in his situation since the Tribunal’s decision.
20 Wu v Minister of Immigration, above n 16, at [11].
[42] I accepted the evidence de bene esse at the hearing, indicating that I would deal with the matter in my substantive decision.
[43]The further evidence NM seeks to adduce comprises:
(a)an affidavit dated 18 June 2020, where NM gives detail of his employment in New Zealand, his brother’s situation in Fiji, his employment prospects in that country, and his fear that his former partner in this country may obstruct his ongoing contact with his son;
(b)an application for the dissolution of NM’s marriage; and
(c)a letter from NM’s employer dated 2 March 2020.
[44] As I have already noted, an application for leave to appeal proceeds as an interlocutory application and affidavits in support can be filed, as long as they are confined to matters relevant to the grant of leave. In the immigration context, the Court of Appeal has recently summarised the position as follows.21
[24]To be admitted in this Court, further evidence should be fresh (that is it could not, with reasonable diligence, have been produced at first instance), credible (that is reasonably capable of belief), and cogent (likely to have an important influence on the result).
[25]In the specific area of immigration appeals there is also the overlay of s 226 of the Act making it the responsibility of Mr Hai to establish his case and to ensure that all evidence is before the Tribunal. As this Court has noted in relation to applications for leave to bring judicial review under s 249 of the Act, the Court may reject or discount new evidence on the ground that its admission is contrary to the scheme of the legislation. We agree with counsel for the Minister that this principle applies equally to applications for leave to appeal under s 245 of the Act.
[45] Applying these principles, I am not persuaded that the further evidence NM seeks to adduce in evidence is admissible.
21 Hai v Minister of Immigration [2019] NZCA 55; And see CD v Immigration and Protection Tribunal [2015] NZCA 379, [2015] NZAR 1494 at [20]-[25].
(a)NM seeks to give further evidence about his employment in New Zealand. That evidence is not fresh; it could, with reasonable diligence, have been produced before the Tribunal. Further, it is not cogent, because evidence that NM was in skilled employment was before the Tribunal and it factored this evidence into its decision.
(b)Evidence that NM’s brother has lost his job in Fiji is fresh but it is not cogent because the Tribunal did not place any significant weight on NM’s brother’s employment status, or on his ability to provide a place for NM to live if he is deported to Fiji. It simply recorded that NM believes that his brother could accommodate him again. The Tribunal noted the relationship between NM and his brother, and considered that it (along with other matters) demonstrated a nexus with Fiji. It observed that NM would be able to readjust to living again in Fiji with the support of his brother and extended family.
(c)NM’s fears as to his employment prospects are neither credible nor cogent. He says that he will not be able to find a job in Fiji, but this assertion is unsubstantiated. There is, for example, no suggestion that he has tried to find a job in that country. Further, the assertion is, on the face of it, inconsistent with his earlier assertion that he is a skilled and valued employee, at least in New Zealand.
(d)Evidence of the application for the dissolution of his marriage is not cogent, because the Tribunal was aware that NM was estranged from his wife. It recorded this in its decision and it played no material part in its reasoning. Whether divorce proceedings have now been issued is immaterial.
(e)NM’s concern that his former New Zealand partner will obstruct contact with his son is not cogent, because there is no basis to assume the anticipated conduct on the part of NM’s former partner. Even if NM’s concern is borne out, he will be able to have recourse to the Family Court, as his former partner has the day-to-day custody of their
child pursuant to an order of that Court. That will be the case whether NM is in New Zealand or Fiji.
[46] Accordingly, I decline to allow NM to adduce the further evidence. I have not taken it into account in considering the application for leave to appeal.
Result
[47] For the reasons I have set out, NM’s application for leave to appeal to this Court is declined. Further, I decline to allow NM to adduce the further evidence submitted by him.
[48] The Minister is entitled to his reasonable costs and disbursements. Costs are sought on a 2B basis. It is my preliminary view that that categorisation is appropriate. If that is accepted by NM, then I expect that counsel will be able to resolve quantum. If there is disagreement, then I direct as follows:
(a)any application for costs and disbursements is to made by way of memorandum and is to be filed and served within 10 working days of release of this decision;
(b)any memorandum in reply is to be filed and served within a further 10 working days;
(c)memoranda are not to exceed five pages.
I will then deal with the issue of costs and disbursements on the papers, unless I require the assistance of counsel.
Wylie J
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