Noa v Minister of Immigration HC Wellington CIV 2010-485-659 - [2010] NZHC 2049

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2010-485-000659

IN THE MATTER OF An appeal against s 117 Immigration Act
1987

BETWEEN TEVITA NOA Appellant

ANDTHE MINISTER OF IMMIGRATION Respondent

Hearing: 30 September 2010

Counsel: S Jefferson for the Appellant
G J Robins for the Respondent

Judgment: 30 September 2010

ORAL JUDGMENT OF WILD J

[1] This is an appeal, on a point of law, under s 117 Immigration Act 1987 against a decision of the Deportation Review Tribunal given on 11 March this year.

[2] The question of law is whether the Tribunal’s determination of the appeal without providing Mr Noa the opportunity to complete rehabilitative measures and obtain further reports about the risk of his re-offending following release amounted to a breach of natural justice.

[3] Some brief background is necessary. Mr Noa is a Tongan who was granted a resident’s permit on 1 August 2003. On 6 December 2006 a jury found him guilty of manslaughter. He had beaten his wife to death with a cricket bat after she had told him that she was leaving for Auckland to live with another man, and taking their
children.

NOA V THE MINISTER OF IMMIGRATION HC WN CIV 2010-485-000659 30 September 2010

[4] That offending, within five years of Mr Noa obtaining residence, made him eligible for deportation. On 31 October 2007 the Minister made a deportation order. Mr Noa appealed to the Tribunal. Following a hearing in Hastings on 1 December
2009 the Tribunal, in its 11 March decision, dismissed the appeal and confirmed the

Minister’s deportation order.

[5] In its decision, under the heading ‘Public Interest’, the Tribunal dealt with the risk of Mr Noa re-offending. Given the serious nature of Mr Noa’s conviction the Tribunal observed that anything higher than a “low” chance of re-offending (being the lowest risk category) would be an unacceptable risk to the public and would fail the Tribunal’s public interest test.

[6] The Tribunal relied primarily on two Prison Psychological Service reports on Mr Noa dated 19 November 2007 and 11 November 2008. Both reports were prepared by the same Department of Corrections psychologist. Both assessed Mr Noa’s risk of re-offending as moderate. The Tribunal accepted that assessment.

[7] The Tribunal then said this:

[61] In his closing submissions, counsel requested that the determination of this appeal be deferred until the appellant complete the Saili Matagi programme and be reassessed as to his risk of re-offending. He submitted that it was highly likely that the successful completion of the programme would see a lowering of the appellant’s risk and that it would be fair to defer an assessment of his risk to ensure its accuracy.

[62] Counsel’s submission is rejected. The appellant, at the date of this decision, remains wait-listed for the programme. There is no clear indication of when he will be able to attend it. The Tribunal cannot defer consideration of an appeal indefinitely. In any case, the proposition that the appellant’s risk of re-offending would be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Noa v Minister of Immigration HC Wellington CIV 2010-485-659

Details

AGLC: Noa v Minister of Immigration HC Wellington CIV 2010-485-659 [2010] NZHC 2049
Case: [2010] NZHC 2049
Decision Date: 30 September 2010

CaseChat Overview and Summary

In this appeal under section 117 of the Immigration Act 1987, the appellant, Tevita Noa, sought to overturn a decision by the Deportation Review Tribunal confirming a deportation order made by the Minister of Immigration. The Tribunal had dismissed Noa’s appeal, finding that the risk of re-offending following his release was too high to justify allowing him to remain in New Zealand. The appeal centred on whether the Tribunal had breached natural justice by not allowing Noa the opportunity to complete rehabilitative measures and obtain a fresh assessment of his risk of re-offending.

The primary legal issue before the court was whether the Tribunal's refusal to defer its decision until Noa completed the Saili Matagi programme and provided a new risk assessment report amounted to a breach of natural justice. The appellant argued that he should have been given a chance to complete the programme and be reassessed, as this might have lowered his risk of re-offending, making deportation unjust. The respondent contended that there was no legal requirement for the Tribunal to wait for Noa to complete the programme, and that the Tribunal had already heard sufficient evidence to make its decision.

The court found that while natural justice requires high standards of fairness in cases involving immigration status, it does not mandate that a decision-maker must wait indefinitely for potentially stronger evidence from a party. The Tribunal had already heard from Noa, his family, and had considered relevant reports. The court noted that while Noa had completed the programme after the Tribunal's decision, this new information could not affect the legality of the Tribunal's decision. The court concluded that the Tribunal had not breached natural justice by not deferring its decision and dismissed the appeal. The deportation order was upheld.

The court further clarified that if Noa could demonstrate a reduced risk of re-offending, he could apply to the Minister for a review of the deportation order under section 91(7) of the Immigration Act.

Orders