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 lowered as a consequence of him successfully completing the programme is speculative.  While this is a possibility, it is by no means established.  The Tribunal must determine the appeal on the basis of the evidence before it.

[8]      Mr  Jefferson  submitted  that  the  rules  of  natural  justice  applied  to  the Tribunal:  s 27(1) New Zealand Bill of Rights Act 1990.  That is obviously correct. Mr Jefferson contended that natural justice required that a person affected by a decision be given an opportunity to be heard, a reasonable opportunity to present their case and reasonable notice of the case they have to meet.  The more significant

the decision, the higher the standards of disclosure and fair treatment required.  In cases involving immigration status, natural justice requires high standards of fairness because of the profound implications on the lives of those affected.  Here, the impact would be on Mr Noa and his two young children because, if deported, he will not be able to re-enter New Zealand for five years.   There is nothing contentious about those submissions which I accept.

[9]      Mr Jefferson also submitted that the Saili Matagi report would have informed both limbs of the test posed for the Tribunal by s 105(1) of the Act, that is first whether it would be unjust or unduly harsh to deport Mr Noa, and secondly, whether it would not be contrary to the public interest to allow Mr Noa to remain in this country.

[10]     Mr Jefferson accepted that [61]-[62] of the Tribunal’s decision accurately record the position as it stood when the hearing ended.  He submitted that fairness required the Tribunal to defer its decision until the report following Mr Noa’s completion of the Saili Matagi programme was available together with a further assessment as to the risk of his re-offending following release from prison.

[11]     Mr Jefferson does not cite any authority for his proposition that fairness required the Tribunal to adopt this “wait and see” approach.  That is because there is no  authority.    There  is  no  rule  of  natural  justice  requiring a  decision-maker  to postpone a decision against the possibility that a party affected by the decision may be able to present a stronger case at some unknown time in the future.  Mr Jefferson protests that an indefinite deferral was not sought, pointing out that Mr Noa has now

- as of two days ago - completed the Saili Matagi programme.  I accept that, but Mr Jefferson in turn has accepted that paragraph [62] of the Tribunal’s decision correctly sets out the position at the time.  To reiterate, that was that Mr Noa was wait-listed for the programme, with no clear indication of when he might be able to attend it.

[12]     Mr  Robins  accepted  that  the  refusal  of  a  decision-maker  to  grant  an adjournment can amount to an error of law if the result is that a party’s case is irretrievably compromised:   Bevan-Smith v Reed Publishing (NZ) Ltd (2006) 18

PRNZ 310 (CA) at [26]-[27].  That case was applied by Gendall J in Oto v Minister

of  Immigration  HC  Wellington  CIV  2008-485-002183,  13  March  2009  at  [52], which was an appeal from a decision of the Deportation Review Tribunal.  Having ascertained that he did not meet the programme requirements, the Tribunal had refused an adjournment to enable Mr Oto to undertake a rehabilitation programme. Gendall J commented:

[53]     It cannot be the case that an adjournment of an appeal should be granted with open-ended delay, so that an appellant might later be in a position to present a better case.  I do not accept that the Tribunal acted on an improper basis in declining the adjournment.

[13]     In Oto, Gendall J commented (at [52] of his judgment) that Mr Oto’s case before the Tribunal had been very ably advanced.  I make the same comment.  Mr Noa was represented before the Tribunal by Mr Jefferson.  The Tribunal’s decision records that the Tribunal heard from Mr Noa, from his brother Mr Tana Noa and also from his cousin, Mr Viliami Fameitau.  It records also the documents the Tribunal received in evidence, and that it received written closing submissions.  As Mr Robins points out, the Tribunal’s task was to decide the appeal on the basis of the evidence and argument it heard, which is what it did.   In no sense of the phrase can it be contended that Mr Noa’s case was “irretrievably compromised” by the Tribunal’s refusal to defer making a decision until Mr Noa had completed the Saili Matagi programme, if indeed he was able to attend it.

[14]     A point arises about new information which Mr Jefferson asks me to receive. This information is a copy of a letter addressed to Mr Jefferson, dated 2 July 2010, which Mr Jefferson attached to his written submissions.  It reads:

Dear Sir

Re:  NOA Tevita

On behalf of Unit Manager Junior Ahyu, I am responding to your correspondence received today in reference to Tevita NOA’s appeal to the High Court.  I can confirm that Tevita NOA started the Saili Matagi program on 30 May 2010.  He will complete this program on 28 September 2010.

Tevita NOA arrived at Spring Hill Corrections Facility, Unit 14A on 20 May

2010.   He is quiet and compliant and currently employed as the Unit laundryman.  He interacts well with others and actively participates in unit and cultural activities.

He attends the Saiki Matagi on a regular basis.  He is making good progress. His tutor states he is confident and engaged as indicated by his contributions during group discussions and interacts positively with other group members.

I hope this information is sufficient to assist you in this matter. Yours faithfully

Penni Heu

Senior Corrections Officer

Unit 14A

[15]     For two reasons, this letter cannot affect the outcome of this appeal.  First, a letter of this sort attached to counsel’s submissions is not evidence, and indeed Mr Jefferson did not suggest it was.  It is not that I doubt the authenticity of the letter (although I note it is not on letterhead), but rather that the letter does not come to me in a properly authenticated form.

[16]     Secondly, even if that initial difficulty were overcome, rule 20.16 of the High Court Rules controls the admission of further evidence on appeals of law such as this is.  The rule provides that the Court may only grant leave to allow Mr Noa to adduce further evidence if there are special reasons for hearing the evidence.  I agree with Mr Robins that there can be no special reason here.  This appeal, on a question of law, turns on the legal adequacy of the Tribunal’s reasoning in declining to adjourn the appeal or defer its decision until Mr Noa (if able to undertake the Saili Matagi programme) could complete it:  Schier v Removal Review Authority [1999] 1 NZLR

703 at 706 (CA).  Information such as that contained in Mr Heu’s letter, relating as it does  to  developments  since  the  Tribunal’s  decision,  cannot  affect  the  legal correctness of that decision.  I reiterate that Mr Jefferson accepts that [61]-[62] of the Tribunal’s decision correctly state the position at the time.  Assuming (which I am prepared to do) that Mr Heu’s information is correct, that cannot establish an error of law by the Tribunal in its decision.

[17]     This does not leave Mr Noa with no avenue of redress.  Mr Robins submitted that if Mr Noa is able to demonstrate that his risk assessment has reduced to low, then he can apply under s 91(7) of the Immigration Act to the Minister, effectively for a review of the deportation order the Minister made.   The subsection actually

provides “... the Minister may at any time revoke a deportation order made under this section”.

[18]     In  the  result,  I  answer  the  question  of  law  raised  on  this  appeal  in  the following way:

Question:        Did  the  Tribunal’s  determination  of  the  appeal  without providing Mr Noa the opportunity to complete rehabilitative measures  and obtain further  reports, in  particular  a fresh assessment of the risk of his re-offending following release, amount to a breach of natural justice?

Answer:         No.

[19]     Accordingly, the appeal is dismissed.   The deportation order confirmed by the Tribunal stands.

Solicitors:

Crown Law Office, Wellington for the Respondent