Ochibulu v Immigration and Protection Tribunal
[2020] NZHC 792
•23 April 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-001102
[2020] NZHC 792
UNDER Judicial Review Procedure Act 2016 and
ss 247 and 249 of the Immigration Act 2009
IN THE MATTER
of an application for leave to commence judicial review of a decision of the
Immigration and Protection Tribunal
BETWEEN
HYACINTH DEMUS OCHIBULU
Applicant
AND
IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
MINISTER OF IMMIGRATION
Second Respondent
Hearing: 14 February 2020 Counsel:
RJ Hooker for Applicant
SP Jerebine and EGR Dowse for Second Respondent
Judgment:
23 April 2020
JUDGMENT OF FITZGERALD J
[As to application to apply out of time and for leave to bring judicial review proceedings]
This judgment was delivered by me on 23 April 2020 at 12 noon, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar…………………………. Date……………….…
Solicitors: Vallant Hooker & Partners, Auckland.
Crown Law, Wellington.
To: SP Jerebine, Auckland.
Ochibulu v Immigration and Protection Tribunal [2020] NZHC 792 [23 April 2020]
CONTENTS
Introduction [1]
Factual background – overview [7]
The s 247 application
Relevant factual background – more detail [16]
The applicant’s submissions [35]
The Minister’s submissions [44]
Discussion – length and reasons for delay [55]
Discussion – breach of natural justice [61]Discussion – failure to exercise discretion [67]
Discussion – other matters raised [80]
Section 247 application – conclusion [84]
The s 249 application
Factual background and the IPT decision [87]
The applicant’s submissions [104]
The Minister’s submissions [111]
Discussion – breach of natural justice [118]
Discussion – did the Tribunal fail to take into account ICCPR? [131]
Discussion – did the Tribunal fail to take into account the effect of
deportation? [139]
Section 249 application – conclusion [143]
Result [146]
Introduction
[1] The applicant is a citizen of Nigeria. He has lived in New Zealand since 2008. He is married to a New Zealand citizen and together they have four children, all of whom are also New Zealand citizens. In May 2009, the applicant was granted New Zealand residency.
[2] In 2010, the applicant was convicted and sentenced for driving a motor vehicle while disqualified for the third or subsequent time. As a result, he became liable for deportation.1 In July 2011, the second respondent (the Minister) suspended the applicant’s liability for deportation for a period of five years. This was on the condition the applicant not be convicted of any further offences committed during the suspension period.
[3] In August 2011, the applicant lodged an appeal with the first respondent (the Tribunal) against his deportation liability on humanitarian grounds. The hearing of the appeal was however deferred, given the suspension of the applicant’s deportation liability.
[4] In June 2015, the applicant was convicted in the High Court on two counts of importation of methamphetamine and two counts of possession of methamphetamine for supply.2 He was sentenced to 15 years and 10 months’ imprisonment.3 As a result of those convictions, in 2016, the Minister decided to reactivate the applicant’s liability for deportation (the Reactivation Decision).4 This in turn revived the applicant’s humanitarian appeal to the Tribunal. In May 2019, the Tribunal dismissed the applicant’s appeal (the IPT Decision).5
[5]Against that backdrop, there are two applications before the Court:
(a)First, the applicant wants to apply for judicial review of the Minister’s 2016 Reactivation Decision. Under s 247 of the Immigration Act 2009
1 Immigration Act 2009, s 161(1).
2 The offending occurred in 2013.
3 R v Iwu [2015] NZHC 1438.
4 Immigration Act 2009, s 172(3).
5 Ochibulu v Minister of Immigration [2019] NZIPT 500449.
(the Act), an application for judicial review must be filed within 28 days of the relevant decision, unless the High Court considers there are “special circumstances” justifying leave being granted to file out of time. The applicant accordingly applies for leave to commence judicial review proceedings some three and a half years out of time. I will refer to this as the “s 247 application”.
(b)Second, the applicant wants to apply for judicial review of the IPT Decision. Pursuant to s 249 of the Act, leave is required to apply for judicial review of any decision of the Tribunal. The applicant accordingly applies for such leave. I will refer to this application as “the s 249 application”.
[6] The Minister opposes both applications. The Tribunal abides the Court’s decision.
Factual background – overview
[7] The applicant lived in Nigeria until he was 30 years old. In 2003, he moved to South Korea where he worked as a machine operator. In 2004, he met his partner (now wife), a New Zealand citizen, whom he married in South Korea in 2007. The applicant’s wife returned to New Zealand in late 2007 and the applicant followed shortly thereafter in February 2008. As noted, in May 2009, the applicant was granted a New Zealand residence visa under the then Immigration Act 1987 (the 1987 Act).6
[8] In 2010, the applicant was convicted and sentenced for driving a motor vehicle while disqualified for the third or subsequent time. Because his convictions occurred within two years of being granted a residence visa, he became liable for deportation.
[9] Under the Act, the Minister has the power to cancel or suspend liability for deportation.7 In July 2011, the Minister decided to suspend the applicant’s liability for deportation for a period of five years (the Suspension Decision). As noted earlier,
6 Deemed to be a residence visa under the Immigration Act 2009 by virtue of s 415(1). See also s 434(1) of the Act.
7 Section 172(2).
one of the conditions of the suspension was that the applicant was not convicted, in New Zealand or elsewhere, of any offence committed during the suspension period.
[10] On 17 June 2011, a copy of the Minister’s Suspension Decision, together with the underlying Deportation Liability Notice (Deportation Notice), were served on the applicant. On 2 August 2011, the applicant lodged an appeal with the Tribunal against the Deportation Notice on humanitarian grounds. The Tribunal deferred the hearing of that appeal until the expiry of the suspension or the Deportation Notice was reactivated because of a breach of the Suspension Decision’s conditions.
[11] On 18 June 2015, the applicant was convicted in the High Court on two counts of importation of methamphetamine and two counts of possession of methamphetamine for supply. The offending took place between 20 November and 6 December 2013. The applicant was sentenced to 15 years and 10 months’ imprisonment, a sentence which he is presently serving.8
[12] The applicant’s convictions breached the Suspension Decision’s conditions, thus triggering the possibility of his liability for deportation being reactivated.9 In August 2015, the applicant was invited by Immigration New Zealand (INZ) to make submissions on why his liability for deportation ought not to be reactivated. The applicant and his wife provided information and made submissions in response to that request, and in February 2016, a report and accompanying materials (the Reactivation Report) was submitted by INZ officials to the Minister.
[13] On 10 February 2016, the Minister decided to reactivate the applicant’s liability for deportation (i.e. the Reactivation Decision) and signed a Deportation Liability – Reactivation Notice the same day (the Reactivation Notice). The notice was served on the applicant on 23 February 2016.
[14] On 11 March 2019, the Tribunal notified the applicant that the hearing of his humanitarian appeal would be held on 8 May 2019. Following the hearing, on 17 May 2019, the Tribunal issued the IPT Decision dismissing the applicant’s appeal. The
8 No minimum period of imprisonment was imposed.
9 Immigration Act 2009, s 172(3).
Tribunal removed the period of prohibition on the applicant entering New Zealand which would otherwise apply following his deportation from New Zealand.
[15]With that background in mind, I turn first to the s 247 application.
The s 247 application
Relevant factual background – more detail
[16] As noted above, the Minister made the Reactivation Decision on 10 February 2016 and the applicant was notified of the decision on 23 February 2016. Given the basis upon which the applicant now applies for leave to apply for review out of time, it is necessary to set out in a little more detail the lead up to the Reactivation Decision and the basis upon which it was made.
[17]Section 172(3) of the Act provides that:
…where a person fails to comply with the conditions stated in a suspension notice … the Minister may reactivate the person’s liability for deportation by causing a deportation liability (a reactivation notice) to be served on the person that sets out the grounds of the reactivation…
[18] By letter dated 4 August 2015, INZ invited the applicant to provide information and make submissions on why the Deportation Notice ought not to be reactivated under s 172(3). The letter relevantly stated:10
I am writing to you because on 17 June 2011, the Minister of Immigration suspended your liability for five years…The suspension was subject to the following conditions:
…
Immigration New Zealand has become aware that you were convicted and on 18 June 2015 sentenced in the Auckland High Court for two offences of importation of methamphetamine and two offences of possession of methamphetamine for supply. These offences were committed between 2 December 2013 and 6 December 2013 which is during the suspension period.
10 The emphasised aspects of the extract from INZ’s letter are relevant to arguments made by Mr Hooker, counsel for the applicant, on the merits of the proposed application for judicial review and are discussed later in this judgment.
The Minister of Immigration or a delegated decision maker now needs to determine whether you have failed to meet your substantive condition imposed on 12 July 2011.
Before a case is put to the Minister of Immigration or a delegated decision maker, I am inviting you to provide comments on your situation.
…
If the Minister of Immigration or delegated decision maker determines that you have breached your suspension conditions, he or she will sign a deportation liability reactivation notice which will be served on you. There are no appeal rights for deportation liability reactivation notices.
[Emphasis added]
[19] There was, understandably, no dispute that the applicant’s 2015 convictions breached the Suspension Decision’s conditions. In response to INZ’s letter, on 9 September 2015, the applicant and his wife provided INZ with information as to why the applicant’s liability for deportation nevertheless ought not to be reactivated. This included:
(a)A letter from the applicant’s wife noting that the applicant was “very sorry for his convictions” and providing information on the courses he was attending while in prison.
(b)A number of family photographs.
(c)References from family members and the couple’s local priest.
(d)A letter from the applicant in which he explained the circumstances leading to his 2015 convictions in the following way:
I maintain I’m not main offender on this offence committed. I only allowed my address to be used without knowing the person is using it for drug importation. He only told me is going to use it to bring in culture clothes to sell to Nigerians here in New Zealand. I didn’t realise I would breach my immigration condition. (sic).
[20] INZ officials then prepared the Reactivation Report for submission to the Minister. The report was dated 10 February 2016.
[21] The Reactivation Report set out the basis upon which the applicant had come to be liable to deportation in the first place, namely his conviction for driving while disqualified for the third or subsequent occasion. The report summarised the Minister’s (earlier) Suspension Decision and enclosed a copy of the underlying Deportation Notice and the Suspension Decision.
[22] The Reactivation Report then summarised the applicant’s 2015 convictions as set out at [11] above. The report enclosed the applicant’s full Conviction History Report and Thomas J’s sentencing notes dated 18 June 2015.11 The sentencing notes said the following about the circumstances in which the applicant (and his co- offenders) came to be arrested:12
As the Police entered [the applicant’s] home address, he had his hands in one of the bags [containing the drugs] and [his co-offender] was located trying to climb out of the window.
[23]As to the applicant’s role in the offending, Thomas J said the following:13
[65] You were involved in both importations because you provided those above you in the hierarchy with address details. That is more than a custodial role. Your role was vital because it was you who was entrusted with the delivery and pick-up of the drugs, which is a crucial part of the enterprise. Although I accept that you did not necessarily want to be actively involved, the reality is that you became actively involved.
[66] In any event, I agree that your role was something more than a catcher because not only did you get your “hands dirty” by performing the physical task of uplifting the parcel but you were also in the background involved in the organisational aspects as well. That is evidenced by the fact that you participated in some phone calls with the overseas syndicate, which demonstrates your role as part of a bigger and organised aspect of the offending.
[Emphasis in original]
[24] The sentencing notes also recorded that the applicant appeared to accept the verdicts and had “come to terms with [his] part in the offending.”14
[25] The Reactivation Report then set out how the convictions amounted to a breach of the Suspension Decision’s conditions and set out the relevant legislative provisions.
11 R v Iwu, above n 3.
12 At [21].
13 Footnotes omitted.
14 At [72].
[26]The report then stated:
If the you (sic) determine that [the applicant] has failed to comply with any of the suspension conditions, you may reactivate his liability for deportation by having a [Deportation Liability Notice] served on him that sets out the grounds of reactivation.
[Emphasis added]
[27] The Reactivation Report also referred to the applicant’s explanation for the offending as set out at [19(d)] above, namely that he thought his address was being used to import “culture clothes” for Nigerians living in New Zealand. The report also summarised the content of the applicant’s wife’s letter and accompanying materials, all of which were annexed to the report.
[28]The report then discussed New Zealand’s international obligations, stating:
In making this decision, you must consider New Zealand’s international obligations, for example those relating to the best interests of any child. You have been briefed on the role of international obligations in decision-making on immigration-related matters.
The first step is to consider the attached submissions and ask: what are the best interests of the child? The child’s best interests are a primary consideration. Secondly, you must weigh those best interests against any other relevant considerations, such as the public interest and the specific section(s) of the Act under which you are making your decision.
[29] At the conclusion of the report, there was a separate page headed “RECORD OF DECISION” which stated:
Possible options include:
A. Determine that a breach of suspension conditions has occurred and that deportation should proceed.
B. Determine that a breach of suspension conditions has occurred but that no action be taken on the breach as the suspension period is still active.
[30] Option A was circled by hand by the Minister, who also signed and dated the Record of Decision.
[31] The Minister who made the Reactivation Decision was the Honourable Michael Woodhouse. Mr Woodhouse has sworn an affidavit in response to the s 247 application in which he makes the following key points:
(a)In his time as Minister of Immigration, he estimates he considered hundreds of cases of deportation liability, including a small number of cases where deportation liability was reactivated under s 172(3) of the Act.
(b)That in “every single one of those cases I gave careful consideration to the choices available to me as Minister and carefully exercised any discretion available to me under the Act and with consideration of international obligations.”
(c)He was “particularly mindful” of New Zealand’s various international obligations including under the United Nations Convention on the Rights of the Child 1989 (UNCROC).
(d)Given each decision needed to be considered individually and on its merits, how he developed a “framework” (being a list of matters he routinely turned his mind to) for decision making, including:
(i)the seriousness of any criminal offending, with a particular focus on serious violent offending, sexual offences and drug importation and supply (noting that in such cases, holding a residence class visa is a privilege not a right);
(ii)the degree of remorse shown (noting that he would occasionally ask for sentencing transcripts if they were not already included with the report submitted to him);
(iii)evidence of the likelihood of reoffending;
(iv)the age of the individual;
(v)the degree of connection with the community, including stable employment, church, community and family links; and
(vi)the impact of deportation on the individual’s children, including the age of the children, the degree of influence by the individual in the children’s lives, the period of incarceration (and thus the ability to participate meaningfully in the children’s upbringing) and the extent to which the relevant offending harmed children, either directly or indirectly;
(e)That time would be set aside to consider each file, and each meeting was attended by his Immigration Private Secretary who would brief him on the file.
(f)Depending on the complexity of the file, he might make a decision at that initial meeting, though from time to time, he would request further information and/or retain the file to consider it further.
[32] Mr Woodhouse says he has no clear memory of making the Reactivation Decision in this case. But he says given his normal approach summarised above, it is “out of the question” he failed to exercise a discretion or to have regard to the best interests of the children. He says:
The very reason for the decision coming to me is to weigh up the breach of the suspension conditions against deportation. Therefore, the very matter I would have been considering is the effect of his breach. And, as I have set out above, one of the primary factors of which I was always aware is to consider the impact on any children if the individual is deported.
[33] Mr Woodhouse says he would have adopted his normal process in considering whether the applicant’s deportation liability should be reactivated, and “I made my decision on the basis of the grounds set out in my decision paper”. He concludes:
[The applicant] also appears to claim that I did not have regard to the international obligations. However, my decision paper directs that I consider the attached submissions and weigh up the best interests of the child. I would have done this, and in this case it is likely I considered that serving a sentence of at the very least 10 years in prison would already significantly remove the children’s access to their father, such that deportation would not have the same effect on the children if their father was living with them in the community.
[34] Having made the Reactivation Decision, the Minister signed the Reactivation Notice pursuant to s 172(3) of the Act. Two aspects of the notice are relevant to matters discussed later in this judgment:
(a)First, under the heading “Grounds for reactivation” the notice states:
I have now determined that you have failed to meet [the conditions of the Suspension Decision] on the grounds that you were convicted and on 18 June 2015 sentenced for two counts of importation of methamphetamine and two counts of methamphetamine for supply. These offences were committed between 20 November 2013 and 6 December 2013. Your deportation liability is therefore now reactivated.
[Emphasis added]
(b)Second, the Reactivation Notice sets out the statutory right of appeal against the Deportation Notice on humanitarian grounds pursuant to s 206(1)(c) of the Act.
The applicant’s submissions
[35] The Reactivation Decision and Notice were served on the applicant on 23 February 2016. The application for leave to apply for judicial review was filed on 10 October 2019. The applicant also filed a draft statement of claim setting out the grounds for judicial review if leave to apply out of time is granted. It alleges the Minister failed to exercise the discretion required of him when considering whether to reactivate deportation liability under to s 172(3) of the Act.15
[36] Mr Hooker, counsel for the applicant, submits there was “no value” in applying for judicial review of the Reactivation Decision prior to the hearing of the applicant’s humanitarian appeal, and had judicial review proceedings been filed in time, they would have inevitably been met with a submission that the appeal ought to proceed first. Mr Hooker also points to the contents of the Deportation Liability Notice, which refers to the right to appeal and not to the right to apply for review.16 Mr Hooker further says the IPT Decision was released in May 2019 and accordingly there was
15 Submissions made on the applicant’s behalf at the hearing before me couched the merits of the proposed application for judicial review in wider terms than only a failure to exercise a discretion.
16 See [34(b)] above.
only a short period of time between the applicant becoming aware of the outcome of his humanitarian appeal and applying for leave to apply for judicial review out of time.
[37] If the Court accepts there was a more than three-year delay in applying for judicial review, Mr Hooker says the Court ought to consider the merits of the proposed application for review (which he says are strong), that they are not the type of errors that could be remedied by a humanitarian appeal to the Tribunal, and the serious consequences of leave not being granted. In relation to the latter, Mr Hooker says the rights attaching to residency, and thus the consequences of deportation, are so significant that they ought to be a key consideration in determining whether to grant leave under s 247.
[38] As to the merits of the proposed application for review, the first ground advanced is breach of natural justice. Mr Hooker says the applicant was not told the Minister would have before him the applicant’s Criminal History Report or the 2015 sentencing notes when considering whether to reactivate deportation liability. Mr Hooker says both documents were prejudicial to the applicant and he was denied a proper opportunity to comment on them. Mr Hooker says the applicant was prejudiced in two ways as a result:
(a)First, had he known the Minister would have the full Conviction History Report, the applicant would have addressed all the offending recorded in it and not just the 2013 drug offending.
(b)Second, had the applicant known the sentencing notes would be before the Minister, he would not have suggested in his letter referred to at [19(d)] above that he did not know his address would be used in connection with drug importations. Mr Hooker notes that the inconsistency between the applicant’s explanation for the offending and the sentencing notes was expressly referred to in the Reactivation Report and thus can be assumed to have been a matter taken into account by the Minister.
[39] The second proposed ground for judicial review is that the Minister failed to exercise the discretion required of him when making the Reactivation Decision. Mr Hooker says this is clear from the face of the Reactivation Notice itself, given it refers to the applicant’s conviction and sentence and then says “your liability is therefore now reactivated”. Mr Hooker says the use of the word “therefore” is conclusive evidence that it was the mere fact of conviction and sentence which gave rise to the Reactivation Decision, rather than the separate exercise of discretion.17
[40] Mr Hooker also argues that given a reactivation notice is required to set out “the grounds” on which deportation liability has been reactivated,18 a recipient of such a notice is entitled to view the notice as containing all the reasons why the Minister has reactivated deportation liability. Mr Hooker draws support for this proposition from Wylie J’s judgment in K v Minister of Immigration,19 in which the applicant sought judicial review of a decision to reactivate deportation liability. The issue before the Court was whether such a decision was the exercise of an absolute discretion, as in the case of a decision to suspend deportation liability, or an exercise of general discretion. Wylie J concluded the latter. One of the reasons for reaching this conclusion was s 172(3)’s requirement that a reactivation notice set out “the grounds” of reactivation. Wylie J said this was inconsistent with s 11(1)(c) of the Act, which confirms that when exercising an absolute discretion, “the decision maker is not obliged to give reasons”. Mr Hooker relies in particular on the following passage from Wylie J’s decision:20
Further, a decision to reactivate a person’s deportation liability requires explanation. The grounds for reactivation may be succinctly stated, but I do not accept the submission advanced by Mr Auld that all that is required is that the decision maker record that the condition was imposed, and that it has not been complied with. Those matters are the jurisdictional prerequisites for the exercise of the discretion whether or not to reactivate a person’s liability for deportation. More is required than their mere recital. The grounds for reactivation must be set out.
17 At the hearing before me, this argument was referred to as “the leap frog argument”, i.e. the Minister “leap frogged” directly from conviction and sentence to reactivation of deportation liability, missing out the need to exercise a discretion on the way through.
18 Immigration Act 2009, ss 171(i) and s 172(3).
19 K v Minister of Immigration [2019] NZHC 1463.20 At [35].
[41] Mr Hooker says that given the Reactivation Notice was required to set out the reasons for reactivating deportation liability, it is not permissible to “look behind” the contents of the notice to determine whether the Minister exercised discretion. Mr Hooker relies in this context on Goulding v Chief Executive, Ministry of Fisheries (and later authorities which have followed it).21 In Goulding, the Court of Appeal confirmed that that once a decision has been communicated to the person affected by it, it is a final decision and cannot be revoked and substituted with a fresh decision. Mr Hooker also draws an analogy with judgments of the Court, namely that once delivered, they cannot be supplemented with additional or different reasons from those stated in the judgment itself. On the basis of these principles, Mr Hooker argues that once the Reactivation Decision and the reasons for it had been communicated to the applicant (by way of the Reactivation Notice), the notice is the only “evidence” of the decision and there cannot be “hidden” reasons not communicated in the notice itself.
[42] Because of this, Mr Hooker objected to the contents of Mr Woodhouse’s affidavit summarised at [31] above, which he characterised as an impermissible exercise seeking to “back fill” the decision-making process long after the events in question. Mr Hooker refers to various authorities critical of decision-makers filing affidavits proffering evidence as to what matters were taken into account by them when making the decision in question, when those matters are not apparent on the face of the decision itself.22 Further, Mr Hooker notes that Mr Woodhouse does not refer at all the contents of the Reactivation Notice, but rather seeks to persuade the Court that, there were in fact various processes sitting behind the notice which evidence the exercise of discretion.
[43] In summary, therefore, Mr Hooker says the delay in applying for leave to apply for judicial review is explicable by the fact the applicant’s appeal to the Tribunal had been deferred and was only heard and determined in 2019. Coupled with the nature of the rights interfered with and a strong case on the merits, Mr Hooker says special circumstances arise justifying leave being granted.
21 Goulding v Chief Executive, Ministry of Fisheries [2004] 3 NZLR 173 (CA).
22 Taylor v Chief Executive of Department of Corrections [2015] NZCA 477, [2015] NZAR 1648 at [33]–[35]; Smith v Chief Executive of the Department of Corrections [2019] NZHC 2472 at [29]– [32]; Gonzalez v Dental Council [2016] NZHC 2047, [2016] NZAR 1444 at [54]; and Mackenzie District Council v Electricity Corporation of New Zealand [1992] 3 NZLR 41 (CA) at 48.
The Minister’s submissions
[44] Counsel for the Minister, Ms Jerebine, notes that whether special circumstances exist involves consideration of whether there is something uncommon, not commonplace, out of the ordinary or abnormal justifying leave.23 Ms Jerebine refers to the Court of Appeal’s judgment in Rajan v Minister of Immigration, in which it referred to the legislative policy of a strict time limit and “that the discretion to extend time should not be exercised too readily and very rarely if the delay is long.”24 Also by reference to the Court of Appeal’s observations in Rajan v Minister of Immigration, Ms Jerebine says the approach to leave will be influenced by the length of the delay, the reason for the delay and in “marginal” cases only, a brief examination of the merits.25
[45] Ms Jerebine says the delay in this case is very long and in such cases, virtually no circumstances will be sufficiently “special” to warrant the grant of leave.26
[46] As to the reasons for the delay, Ms Jerebine says the fact the applicant chose first to pursue a humanitarian appeal (which was then deferred) was a litigation strategy choice which cannot amount to special circumstances.27 Ms Jerebine also refers to authorities which confirm that a lack of knowledge of the right to apply for judicial review also cannot give rise to special circumstances.28 Ms Jerebine also says there is a further lengthy and unexplained delay from the date of the IPT Decision (17 May 2019) and the first signalling of an application for leave to apply for judicial review of the Reactivation Decision (on 10 October 2019).
[47] Ms Jerebine accordingly submits this is not a “marginal case” in which the merits of the proposed application for judicial review might otherwise tip the balance.
23 Referring to the Court of Appeal’s decision in Rajan v The Minister of Immigration [2004] NZAR 615 (CA) at [24].
24 At [24].
25 At [25]–[30].
26 Referring to Kesonsung v Minister of Immigration HC Auckland CIV-2006-404-1597, 22 September 2006; Zanzoul v Removal Review Authority HC Wellington CIV-2007-485-1333, 9 June 2009; Bhasin v Immigration and Protection Tribunal [2018] NZHC 644; and Dennis v Chief Executive of the Ministry of Business, Innovation and Employment [2018] NZHC 2169.
27 Referring to Kesonsung v Minister of Immigration at [34] and MR v Refugee Status Appeals Authority [2008] NZAR 655 (HC) at [29]–[32].
28 Bhasin v Immigration and Protection Tribunal, above n 26, at [28]; and Xie v Minister of Immigration HC Auckland CIV-2008-404-2401, 25 July 2008 at [27].
But she says that in any event, the merits of the applicant’s proposed application for review are weak.
[48] Turning first to the suggested breach of natural justice, Ms Jerebine says that it must have been self-evident the Minister would have material before him as to the basis for the triggering of deportation liability in the first place. Ms Jerebine further submits that, in any event, the earlier driving-related convictions were simply referred to in the Reactivation Report as part of the background to the original deportation liability and there is no evidence they played any or any significant role in the Minister’s decision-making.
[49] Ms Jerebine further submits that INZ’s 4 August 2015 letter made it clear that the drug offending convictions and sentence would be matters to be considered by the Minister, and cannot be read as confining the matter to the mere fact of conviction and sentence. Ms Jerebine also submits that it cannot be the case that the Minister, or INZ, is obliged in a letter such as that of 4 August 2015 to list every item that might be put before the Minister in order for the applicant to comment on it. Ms Jerebine says this could have the adverse consequence of constraining the submissions the applicant may wish to make, as well as causing practical problems, when the invitation to comment is made some time prior to the report to the Minister being assembled. Rather, Ms Jerebine says it is appropriate the invitation to comment is framed in broad terms, though accepts it must not be misleading.
[50] As to the suggestion that the Minister did not exercise discretion when making the Reactivation Decision, Ms Jerebine says the contemporaneous record is clear discretion was in fact exercised. Ms Jerebine accepts the sole “ground” for reactivation was as stated in the Reactivation Notice, namely the applicant’s reoffending within the suspension period, but says there is no reason why the Court is constrained to look only at the Reactivation Notice when assessing whether discretion was in fact exercised. Indeed, she says the most relevant material is the Reactivation Report itself, and the “Record of Decision” contained in it.
[51] Ms Jerebine refers in this context to the Court of Appeal’s decision in Fang v The Ministry of Business, Innovation and Employment.29 That case concerned a decision by an immigration officer to cancel a deportation order, being the exercise of an absolute discretion.30 The Court of Appeal noted that no reasons are required to be given for such a decision, but there is an express obligation under s 177(5) of the Act for the immigration official to make a record of any international obligations taken into account.31 The Court said the purpose of the record keeping obligation is so the record is available for a court to consider in the event of a later application for judicial review based on an alleged failure to take into account the relevant international obligations.32 Ms Jerebine notes the record made in accordance with s 177(5) is not communicated to the individual concerned at the time of the decision, but the Court’s observations in Fang are consistent with a court being able to look behind what is notified to an individual and consider the contemporaneous record of the decision when determining what in fact was taken into account.
[52] In terms of the contemporaneous record in this case, Ms Jerebine points to Options A and B as recorded in the Record of Decision, both of which were premised on the threshold for deportation liability having been met and by definition, evidence the exercise of discretion. And rather than the mere fact of conviction and sentence being the only matters taken into account by the Minister, Ms Jerebine says the contents of the Reactivation Report confirm the range of matters before the Minister and taken into account by him, including the submissions made by the applicant and his wife, and the best interests of the children.
[53] In response to Mr Hooker’s criticisms of Mr Woodhouse’s affidavit, Ms Jerebine accepts that additional grounds and analysis cannot ordinarily be “added” after notice of the relevant decision has been given. But she says that is not what Mr Woodhouse’s affidavit purports to do. She says it simply explains the approach the Minister would normally take to deportation-related decisions, and is confirmatory of and consistent with the approach evident from the face of the Reactivation Report and Record of Decision in any event.
29 Fang v Ministry of Business, Innovation and Employment [2017] NZCA 190, [2017] 3 NZLR 316.
30 Immigration Act 2009, s 177.
31 Fang at [1].
32 At [58]–[60].
[54] Finally, Ms Jerebine submits that a different approach to extensions of time cannot be taken simply because the applicant in this case is a resident. Ms Jerebine notes the legislation adopts the same strict timeframe for judicial review of all decisions made under the Act, irrespective of the nature of the decision being made and the rights affected as a result. Further, Ms Jerebine says the consequences of deportation will always be harsh, and will often involve separation of families, irrespective of the basis upon which the individual concerned has previously been in New Zealand.
Discussion – length and reasons for delay
[55] There is no doubt the delay in applying for judicial review in this case is very lengthy. For example, in the leading decision on s 247’s predecessor,33 Rajan v Minister of Immigration, Glazebrook J (delivering the judgment of the Court of Appeal) noted that a one-month delay to the then three-month time period would have required an extension of one third of the time limit.34 She observed that “[i]n the context of the Immigration Act this cannot necessarily be seen as a short delay”.35 In Xie v Minister of Immigration, Priestly J described a five-year delay as “huge”.36 That is a relatively apt way to describe the delay in this case.
[56] There is also no real explanation for the delay. As noted the applicant says there was “no value” in bringing judicial review proceedings prior to the outcome of the humanitarian appeal. That submission suggests an active choice was made not to pursue judicial review of the Reactivation Decision at the time. But as Ms Jerebine notes, the authorities are clear that a litigation choice or strategy to pursue other forms of relief over judicial review does not amount to “special circumstances”.37
[57] It was also suggested in the applicant’s written submissions that the applicant only took advice on the validity of the Reactivation Decision after receiving the IPT
33 Immigration Act 1987, s 146A.
34 Above n 23, at [24].
35 At [24].
36 Above n 28, at [38].
37 See, for example, Kesonsung v Minister of Immigration, above n 26, at [34]; MR v Refugee Status Appeals Authority, above n 27, at [34]; and Xie v The Minister of Immigration, above n 28, at [30], referring to Yu v Chief Executive, Department of Labour HC Auckland CIV-2006-404-5702, 13 November 2006 at [28].
Decision. To the extent that suggests the applicant was unaware of the right to apply for judicial review within the 28-day period, the authorities are again clear that ignorance of the right to apply for review does not amount to special circumstances.38
[58] As noted, Mr Hooker also referred to the contents of the Reactivation Notice and its reference to the right of appeal, suggesting that this essentially “pointed” the applicant down the route of an appeal rather than judicial review. However, s 171 of the Act specifies what must be contained in a deportation liablity notice, which includes information on the right of appeal. A statutorily compliant notice cannot therefore “wrongly” point an individual down the track of the right of appeal.
[59] Given the above, this is not a marginal case in which an examination of the merits could “tip the balance”, in the sense discussed in Rajan. Rather, there is a very lengthy delay and no real reason for it. The Court of Appeal in Rajan stated that even very strong merits would rarely justify an extension in such a case.39
[60] Nevertheless, in order to determine whether the merits of a proposed application for judicial review are strong or weak, there must be at least some examination of them. I discuss the grounds for review advanced by the applicant in the following section of this judgment. It is important to record that the views expressed are preliminary views only, it being inappropriate for the judicial review proceedings to be fully argued (or obviously, determined) where a question of leave arises.40
Discussion – breach of natural justice
[61] As Ms Jerebine accepts, any communication sent to an individual seeking their views on a matter the subject of decision-making under the Act must not be misleading. But I do not consider there is an obligation for correspondence such as INZ’s letter of 4 August 2015 to, in effect, list every document or item of information
38 Bhasin v Immigration and Protection Tribunal, above n 26, at [28].
39 Rajan v The Minister of Immigration, above n 23, at [30].
40 Rajan at [28]; and Dennis v Chief Executive of the Ministry of Business, Innovation and Employment, above n 26, at [20].
that may be put before the Minister in making a decision whether to reactivate liability for deportation.
[62] In a case giving rise to similar issues and to which Mr Hooker referred, Ali v Deportation Review Tribunal, a breach of natural justice was alleged on the basis the plaintiff had not been made aware of certain allegations made in correspondence before the Minister, and that the plaintiff was not aware that a Family Court decision (concerning the plaintiff and his estranged wife) would also be before the Minister when considering whether the plaintiff ought to be deported.41 Elias J (as she then was) described the applicable principles as follows:42
Fundamental to the principles of natural justice is the requirement that where the circumstances of decision making require that someone affected by it be given an opportunity to be heard, that person must have reasonable opportunity to present his case and reasonable notice of the case he has to meet. The more significant the decision the higher the standards of disclosure and fair treatment. In cases involving immigration status, high standards of fairness are required by natural justice because of the profound implications for the lives of those affected. The underlying principle was described by Fisher J in Khalon v Attorney General [1996] 1 NZLR 458 at 466 in language which I adopt:
…a party should normally be given the opportunity to respond to an allegation which, with adequate notice, might be effectively refuted.
I also agree with his view that “the key elements are surprise and potential prejudice”. If, therefore, there is no surprise in an allegation or if, even if there is surprise, there could be no prejudice because further notice would not have assisted the person affected to meet the allegation, then there is no unfairness in process. It perhaps goes without saying that where surprise is established and especially where the decision is of great significance for the person affected, it will not be right to infer absence of prejudice easily.
[63] On the facts before her, Elias J found no breach of natural justice; the essence of the allegations made in the correspondence before the Minister had been put to the plaintiff in his interview with INZ officials, and the Family Court decision was not “in the manner of allegations or evidence, but was in itself a fact which was incontrovertible.”43 She therefore concluded:44
41 Ali v Deportation Review Tribunal [1997] NZAR 208 (HC).
42 At 220.
43 At 221.
44 At 221.
In those circumstances I am of the view that no possible prejudice could have been suffered by the plaintiff in the disclosure of the judgment. I do not regard as material the failure to disclose to the plaintiff that the [Immigration] Service had obtained a copy of the judgment.
[64] In this case, it seems self-evident the Minister would have before him the basis upon which deportation had arisen in the first place; in other words, there must have been an earlier conviction (or other ground for deportation liability) for the Minister to be making a decision under s 172(3). It is therefore difficult to see how the fact the Minister had before him the applicant’s Criminal History Report (which set out the applicant’s earlier driving offences) could be unforeseen or prejudicial. And even if the Criminal History Report had not been before the Minister, there is no doubt the original Deportation Notice would be. The notice set out on its face that deportation arose because of the applicant’s third or subsequent conviction for driving while disqualified. Further and in any event, those earlier convictions were a fact which was incontrovertible, in the sense described by Elias J in Ali.
[65] Turning to the sentencing notes, it was clear from the 4 August 2015 letter that the 2015 drug-related convictions and sentencing were to be key matters considered by the Minister. I consider it artificial to suggest the 4 August 2015 letter conveyed that only the fact of conviction and sentence would be before the Minister. Were that to be so, important and potentially supportive information about the applicant might have been missing from the Minister’s assessment, such as any expressions of remorse or prospects for rehabilitation recorded in the sentencing notes. Further and in any event, it is not clear the applicant was in fact prejudiced as a result; like the Family Court judgment in Ali, the contents of the sentencing notes are incontrovertible. Moreover, to the extent the suggested prejudice is that the lack of knowledge led the applicant to make misleading statements about his offending, I have some doubt this would amount to qualifying prejudice.
[66] Ultimately, the applicant was given a full opportunity to comment on the circumstances by which he came to be subject to having his deportation liability reactivated. The 4 August 2015 letter referred to the applicant’s original liability for deportation, its suspension for five years, the conditions of suspension and the 2013 drug offending and convictions. It invited comments on “your situation”. Applying
the principles set out in Ali v Minister of Immigration, I do not consider there to be a strong case for breach of natural justice.
Discussion – failure to exercise discretion
[67] This aspect of the applicant’s case rests on the decision-making process and the Reactivation Decision effectively “collapsing” into the Reactivation Notice, and whether as a consequence, the Court ought not to have regard to any other materials to determine whether the Minister exercised discretion.
[68]I am not persuaded the merits of this ground of review are strong.
[69] First, the authorities relied on by Mr Hooker and referred to at [40]–[41] above do not stand for the proposition that a court cannot take into account all relevant materials when considering the factual question of whether a decision-maker exercised discretion. Rather, decisions such as Goulding v Chief Executive, Ministry of Fisheries stand for the proposition that once a decision has been perfected (by being communicated to the individual or party affected by it), it cannot ordinarily be revoked or varied.45
[70] In this case, there is no suggestion that in looking to materials other than the Reactivation Notice itself, the Minister is seeking to revoke or vary the Reactivation Decision. Nor is the Minister seeking to revisit or vary the ground(s) upon which liability for deportation was reactivated. As Ms Jerebine accepts, the sole ground on which deportation liability was reactivated was the applicant’s further offending during the suspension period.
[71] Second, in most judicial review cases, the material to be considered as part of the “record” of the decision will extend beyond any document communicating the decision to the person or persons affected, and will also include, for example, any reports submitted to the decision-maker and other relevant contemporaneous materials which explain how the decision was arrived at.46
45 Above n 21, at [30].
46 See, for example, in Taylor v Chief Executive of the Department of Corrections, above n 22, at
[33] and [35]. See also Mackenzie District Council v Electricity Corporation of New Zealand,
[72] As noted, Mr Hooker’s argument rests on the “grounds” on which liability for deportation had been reactivated equating to the “reasons” for the Reactivation Decision being made, and therefore going beyond the Reactivation Notice would impermissibly expand on the stated reasons for the decision.
[73] At least to the point of concluding on the s 247 application that the merits of this argument are not strong, I do not agree that the “ground” or “grounds” on which liability for deportation has been reactivated necessarily equates to the “reasons” for that decision.
[74] There appears to be a distinction drawn in the Act between reasons and grounds.47 And in s 171 itself, sub-section (b) requires a deportation liability to state “the ground or grounds on which liability for deportation arose”. A more natural reading of these words in their context, as well as the same words used in s 171(i),48 is that the ground or grounds are the jurisdictional or threshold basis “on” which liability has arisen or has been reactivated – that is, rather than the reasons “for” making a particular decision. Or to put the point another way, “grounds” are the factual or legal basis upon which a proposition or result rests; “reasons” are the assessment or analysis of those grounds which supports the decision-making in question.
[75] Under the Act, there are a range of grounds, or jurisdictional thresholds, on which liability for deportation can arise.49 Further, under both ss 172(3) and 212(3), deportation liability can be reactivated in the case of failure to comply with a suspension notice’s conditions. A suspension decision may well be subject to more than one condition.50 Setting out the “grounds” on which liability for deportation has been reactivated would need to record the factual matters that are said to have occurred which have led to a breach of a condition of suspension.
above n 22, at 48; in assessing how the decision in that case was arrived at “[i]t is more helpful to focus on the minutes of meetings and other contemporaneous documentation”.
47 See, by way of example, s 27 (reasons) and ss 58 and 112(6) (ground/s).
48 “[T]he grounds on which liability for deportation has been reactivated under s 172(3) or 212(3)”.
49 Sections 154–169.
50 For example, there were two such conditions of the Suspension Notice in this case.
[76] The above means I do not necessarily agree with the observations in K v Minister of Immigration relied on by Mr Hooker, at least to the extent they equate “grounds” with “reasons”. That particular issue was not in fact before the Court in K v Minister of Immigration. But irrespective of any distinction between “grounds” and “reasons”, I return to the point that there does not appear to be any compelling reason why the Court cannot have regard to other aspects of the contemporaneous record in order to assess how the Reactivation Decision was made, and in particular, whether the Minister exercised discretion.
[77] Turning to the contemporaneous record, I accept Mr Hooker’s submission that the INZ letter of 4 August 2015 and Reactivation Notice are supportive of the “leapfrog argument”. The 4 August 2015 letter stated that if the Minister were satisfied the conditions of suspension had been breached, he “will” re-activate deportation. And as Mr Hooker emphasised, the Reactivation Notice states, under the heading “grounds for reactivation”, that the Minister was satisfied the applicant had breached the conditions of suspension and “therefore” deportation liability was reactivated.
[78] On the other hand, the Reactivation Report is clear that the Minister is to exercise a discretion. It uses words such as “you may” decide to re-activate deportation liability. Further, the overall thrust of the Reactivation Report was to put before the Minister the various factors he would need to consider and weigh in determining whether reactivation ought to occur. The report specifically referred to the applicant and his wife’s submissions, New Zealand’s international obligations, and directed the Minister to “weigh” the children’s bests interests as a primary consideration against any other relevant considerations. This is all consistent with the exercise of discretion. And as noted at [29] above, the section of the report headed “Record of Decision” contained two options, both of which were premised on the threshold requirement for reactivating deportation liability having been met. Again, the fact the Minister has chosen one of those two options is consistent with the exercise of discretion.
[79] In this context, I do not see the content of Mr Woodhouse’s affidavit as being particularly material. There is no “bright line” as to when affidavits sworn by decision makers will be taken into account or what weight ought to be given to them. At least
as a general proposition, contemporaneous documents are likely to be more persuasive. And the courts have been critical of “after the event” attempts to improve on the original decision, particularly in terms of the substantive matters considered by the decision maker at the time.51 But, as the Court of Appeal noted in Taylor v Chief Executive of Department of Corrections, affidavits explaining the relevant facts and circumstances at the time the decision were made are permissible.52 So too is evidence of facts or matters likely to have been known to the decision maker at the time.53 In the present case, Mr Woodhouse does not seek to improve on the substantive decision making in this case, or set out matters taken into account by him not evident from the contemporaneous record. Indeed, he could not do so, not now having any independent recollection of the Reactivation Decision. Rather, he explains his normal approach to decision-making of this kind, obviously a matter known to and understood by him at the time. And importantly, the approach described by Mr Woodhouse is consistent with the approach which can be discerned from the contemporaneous record. Accordingly, while I have focused predominantly on the contemporaneous record, I do not consider it objectionable per se to have regard to Mr Woodhouse’s affidavit.
Discussion – other matters raised
[80] While also not foreshadowed in the draft statement of claim, Mr Hooker said it was an error for the Minister not to have before him Minister Coleman’s decision to suspend the original Deportation Notice, and as such, Minister Woodhouse failed to take into account a mandatory relevant consideration.
[81] But the earlier decision to suspend the Deportation Notice, evidenced by Minister Coleman’s letter to the applicant in 2011, was before Minister Woodhouse.54 And while I do not consider it would have been an error had Minister Woodhouse taken into account any report or other material that had been before Minister Coleman when making the Suspension Decision, it is a different proposition to elevate those materials to mandatory relevant considerations, particularly given suspension
51 Taylor v Chief Executive of the Department of Corrections, above n 22, at [33] and [35]; Smith v Chief Executive of the Department of Corrections, above n 22, at [30]–[32]; and Gonzalez v Dental Council, above n 22, at [54].
52 Above n 22, at [33].
53 At [34].54 Being attached as item A to the Reactivation Report, together with the original Deportation Notice.
decisions are the exercise of an absolute discretion. Moreover, those materials would often be out of date and, importantly, irrelevant to the implications of the new, fresh grounds on which reactivation of deportation was subsequently being considered.
[82] Finally, and as noted at [37] above, Mr Hooker argues that, consistent with the right to apply for judicial review as protected by s 27(2) of the New Zealand Bill of Rights Act 1990 (NZBORA), the nature of the rights interfered with ought to be a key consideration in the decision to grant leave under s 247. And in the present case, those rights are the very substantive rights attaching to New Zealand residency.
[83] There is no doubt the rights in issue in deportation cases are substantive rights, and deportation can and often does have traumatic consequences for the individual and family members concerned. But the leading authorities on the proper approach to “special circumstances” do not suggest the nature and degree of the rights affected will be relevant to whether special circumstances exist. That deportation will interfere with substantive rights attaching to, in this case, residency cannot be said to be “uncommon, not commonplace, out of the ordinary or abnormal”. Rather, that will be so in every case where a New Zealand resident is subject to deportation liability. And differentiating between the basis upon which the individual concerned has previously been lawfully in New Zealand (and thus the rights they enjoyed as a result) is also inconsistent with the scheme of the Act. The 28-day time period and the need for “special circumstances” apply to all decisions under the Act. And while s 27(2) of NZBORA protects individuals’ rights to apply for judicial review,55 that right is to be exercised “in accordance with law”. As Miller J noted in Mangawhai Ratepayers and Residents Association Inc v Kaipara District Council, that limitation recognises “that the law may regulate access to judicial review through procedural mechanisms such as time limits.”56
55 The Supreme Court having recently emphasised that the courts will accordingly approach “privative” provisions which seek to restrict the right to apply for judicial review “cautiously and in particular will give anxious consideration to their interpretation and application”; H (Supreme Court 52/2018) v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433 at [63].
56 Mangawhai Ratepayers and Residents Association Inc v Kaipara District Council [2015] NZCA 612, [2016] 2 NZLR 437 at [77], referring to Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [6.9.2].
Section 247 application – conclusion
[84] In conclusion therefore, the length of the delay is great, there is no compelling reason for it and despite Mr Hooker’s careful and comprehensive submissions, the merits of the proposed application for review are not strong. No special circumstances exist justifying leave to apply out of time being granted.
[85]The s 247 application is accordingly dismissed.
[86]I turn now to the s 249 application.
The s 249 application
Factual background and the IPT decision
[87] On 11 March 2019, the IPT directed that the hearing of the applicant’s humanitarian appeal would be held on 8 May 2019. On 22 March 2019, the applicant made a request of INZ under the Official Information Act 1982 for a copy of his full immigration file (the Full File), said to be for the purpose of preparing for the appeal hearing. The Full File was not provided until 9 May 2019, that is, the day after the IPT hearing, and sections of it were redacted.
[88] The IPT Decision was issued on 17 May 2019. As noted, the applicant’s appeal was dismissed. The Tribunal nevertheless removed the period of prohibition on the applicant entering New Zealand which would otherwise apply following his deportation from New Zealand. This was to enable ongoing in person contact between the applicant and his wife and children (assuming they stayed in New Zealand).
[89]The following is a brief summary of the IPT Decision.57
[90] The Tribunal first set out the factual background to the applicant being in New Zealand and being granted residency in May 2009. It noted that the applicant left Nigeria in 2003 to move to South Korea. It recorded that his parents are both deceased, though his four surviving siblings live in Nigeria with their families. The Tribunal
57 Ochibulu v Minister of Immigration, above n 5.
noted the applicant’s work history in South Korea and in New Zealand, and the birth of the couple’s four children.
[91] The Tribunal then addressed the applicant’s various driving-related convictions leading to service of the Deportation Notice in June 2011, the Suspension Decision and the conditions on which it was made. The Tribunal then addressed the applicant’s 2013 drug offending, the subsequent trial and convictions and the Minister’s Reactivation Decision.
[92] The Tribunal then summarised the applicant’s submissions, including that he has been a very compliant and respectful prisoner, and that his wife and children visit him weekly and have regular telephone contact. The Tribunal recorded the submission that the applicant has a strong and loving relationship with his wife and children. It noted the applicant had not spoken with his brother in Nigeria since 2018, but that while he had been working, his family in Nigeria would contact him for financial support and he would sometimes send them money.
[93] The Tribunal then recorded the applicant’s submissions about the difficulty in him returning to Nigeria, including not having any place to work or go, having been away from the country for a long time. The Tribunal noted the applicant’s position that it would not be easy for his wife and children, (who do not speak the language) and that healthcare is not supported by the Nigerian government. The applicant also pointed to the risk of kidnapping of foreigners. The applicant noted that one of his children needs ongoing learning support which would not be available in Nigeria.
[94] The Tribunal then set out in some detail the applicant’s wife’s evidence. That recorded the children’s close relationship with their father, the difficulties while the applicant has been in prison and the children’s emotional distress at him not being a regular presence in their lives. The Tribunal referred to the support the applicant’s wife was receiving from her family while the applicant is in prison. The Tribunal noted the applicant’s wife’s evidence that she is very fearful of moving to Nigeria, such that if the applicant were to be deported, she and the children would stay in New Zealand. The cost of travel to visit Nigeria would be prohibitive, at least in the near future.
[95] The Tribunal then summarised the applicant’s legal submissions as to why exceptional circumstances of a humanitarian nature existed, and why it would be unjust and unduly harsh for him to be deported from New Zealand.
[96] The Tribunal recorded that pursuant to s 228(1) of the Act, it could seek any information from any source when considering an appeal. The Tribunal noted that it had sourced the High Court sentencing notes for the applicant’s 2013 drug offending, and that they had been provided to counsel for the applicant and Minister prior to the hearing. Of relevance to the applicant’s case on the present application that the Tribunal had the applicant’s Full File before it at the time of the appeal hearing, the Tribunal recorded that counsel for the Minister had lodged:58
A copy of the file prepared for the Minister of Immigration before the Deportation Liability Notice was issued.59
[97] The Tribunal then set out the relevant statutory provisions and the approach to be taken to a humanitarian appeal under s 207 of the Act (as discussed by the majority of the Supreme Court in Ye v Minister of Immigration).60 Again of some relevance to the applicant’s case for leave, the Tribunal then said the following:
[52] Because there are family interests at issue in this appeal, regard must be had to the entitlement of the family to protection as the fundamental group unit of society, exemplified by the right not to be subjected to arbitrary or unlawful interference with one’s family – see Articles 17 and (23(1) of the 1966 International Covenant on Civil and Political Rights (the ICCPR). Whether such rights would be breached depends on whether deportation is reasonable (proportionate and necessary in the circumstances) – see the United Nations’ Human Rights Committee’s General Comment 16 (8 April 1988) and the discussions in Toonen v Australia (Communication No. 488/1992, UN Doc CCPR/C/50/D/488/1992, 4 April 1994) and Madafferi v Australia (Communication No. 1011/2001, UN Doc CCPR/C/81/D/1011/2001, 26 August 2004 at [9.8]).
[98] The Tribunal then noted the procedural background to the hearing of the appeal, and in particular, that the applicant’s counsel has sought an adjournment on
58 At [46(a)].
59 The Deportation Liability Notice is referenced in the IPT Decision as being that notice originally served on the applicant on 17 June 2011 (see [10] above). I accordingly proceed on the basis that file referred to is the specific file/report (and accompanying documents) dated 16 May 2011 prepared for and submitted to Minister Coleman in 2011 when considering the Suspension Decision. It was not suggested otherwise by Mr Hooker or Ms Dowse, who addressed the Minister’s submissions on the s 249 application.
60 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.
the basis that the applicant had had limited access to the courses and programmes offered in prison for rehabilitation purposes. There is no suggestion recorded in the IPT Decision that an adjournment had been sought on the basis of the applicant’s then extant request for his full immigration file.
[99] The Tribunal then addressed whether exceptional circumstances of a humanitarian nature existed, and concluded that they did not. Under the heading “The appellant’s settlement in New Zealand and the interests of his wife”, the Tribunal addressed the applicant’s relationship with his wife and children and the “strong probability” that if the applicant were deported, he would be physically separated from his wife and children. Noting the applicant’s time in New Zealand and family ties here, the Tribunal stated that “[the applicant’s] departure from New Zealand and the resultant physical separation from his family will cause considerable sadness and loss for him.”61 The Tribunal noted, however, that family separation is not itself a sufficient ground to give rise to exceptional circumstances. The Tribunal noted the ongoing and regular telephone contact between the applicant and his wife, and that that could be expected to continue if the applicant were required to leave New Zealand. The Tribunal then stated:
[61] The Tribunal also acknowledges that the appellant’s wife is committed to her relationship with the appellant, and that she will face hardship, stress and difficulty in continuing to pursue her own life’s interests and care for her children, without her spouse. However, she has carried this burden admirably over the last years and can be expected to continue to do so. In that she and her children are New Zealand citizens, she has the support of the New Zealand social welfare, education and health system. She has a cousin who has provided invaluable support, two sisters who live in the same city, and a brother in Wellington. She believes that she is strong enough to carry on looking after the children, and she states that she knows that her family will be there for her if she needs them.
[100] The Tribunal then turned to the stated difficulties were the applicant to return to Nigeria, but concluded that while it may well be difficult, the applicant would nevertheless be returning to a country in which he had lived until he was 30 years old, where he still has family and that there was no evidence of any specific danger or threats to either the applicant or his broader family in Nigeria.
61 At [59].
[101] The Tribunal then addressed the position of the children, under the heading “The best interests of the appellant’s children”. Given the basis for the applicant’s proposed application for judicial review, it is helpful to set out that discussion out in full:
[64] The appellant’s children are now aged 11-and-a-half, 10-and-a-a-half, eight and five-and-a-half years. The 1989 Convention on the Rights of the Child provides at Article 3(1) that, in all actions concerning children, the best interests of the child shall be a primary consideration – see also Puli’uvea v Removal Review Authority (1996) 14 FRNZ 322 (CA). The High Court has stated that the best interests of the child are neither paramount nor the primary consideration, but they are to be given important and genuine assessment – see O’Brien v Immigration and Protection Tribunal [2012] NZHC 2599, [2012] NZAR 1033 at [32].
[65] All the children except the eldest child were born in New Zealand, and all are New Zealand citizens who have been raised and attended school in New Zealand. The Tribunal accepts that the children have had a close and loving relationship with the appellant and that they have missed his presence during the lengthy period of his detention. It may well be that their best interests will be served by the appellant being allowed to remain in New Zealand following his release from prison.
[66] However, all the children, with the exception of the second-eldest child, have, in the absence of the appellant, thrived and done well in their lives and school in New Zealand. The second-eldest child has shown behavioural problems and is below average in her schooling. However, she has received a reading support programme and other support, and is now improving and is happy in her school. The children have had the devoted and loving support, care and attention of their mother, assisted by her relatives in New Zealand and the New Zealand welfare, health and educational system. The children have, for several years now, lived separately from the appellant and had only limited (weekly) physical contact with him. Although they will miss this contact, the supports that they will undoubtedly continue to receive in New Zealand should ensure that their long-term development will not be seriously jeopardised.
[102] Taking all of the preceding sections of the IPT Decision into account, and under the heading “Conclusion on exceptional circumstances of a humanitarian nature”, the Tribunal stated:
[67] Looked at cumulatively, the applicant’s circumstances are such that deportation will cause him, his wife and his children disappointment and emotional upset… Taking into account the circumstances discussed, the Tribunal is not satisfied that there are exceptional circumstances of a humanitarian nature in the appellant’s case.
[103] The Tribunal went on to consider whether, even if exceptional circumstances of a humanitarian nature had been made out, it would be unjust or unduly harsh for
the applicant to be deported. Referring to the balancing exercise mandated by the Supreme Court in Guo v Minister of Immigration,62 the Tribunal noted the seriousness of the applicant’s drug offending, despite the opportunity presented to him by the Suspension Decision. The Tribunal recorded that the applicant’s humanitarian circumstances to be balanced against this were “his settlement in New Zealand, the interests of his wife, his perceived difficulties of returning to Nigeria, and the best interests of his New Zealand-citizen children.”63 In that context, the Tribunal concluded that it would not be unjust or unduly harsh for the applicant to be deported.
The applicant’s submissions
[104] The applicant points to a number of proposed grounds for judicial review, all of which are said to be seriously arguable and justifying leave to commence review proceedings being granted.
[105] First, the applicant says the Tribunal had a copy of the applicant’s Full File at the appeal hearing when the applicant did not. Mr Hooker says that given aspects of the file were redacted when supplied to the applicant, it can be inferred that those aspects of the file are prejudicial to the applicant. Mr Hooker says it must be a breach of natural justice for the Tribunal to be able to read and consider that material in the context of the appeal hearing, when the applicant had no opportunity to respond to it.
[106] Second, while the Tribunal correctly recorded that it was required to have regard to the International Covenant on Civil and Political Rights (ICCPR) and associated jurisprudence of the United Nations Human Rights Committee (UNHRC), the IPT Decision is “devoid of consideration of the ICCPR”. The relevant aspects of the ICCPR relied on by the applicant are:
(a)Article 17 (“no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation”);
62 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [9], namely that the assessment is to be made “in light of the reasons why the appellant is liable for deportation and involves a balancing of those considerations against the consequences for the appellant of deportation”.
63 At [73].
(b)Article 23 (“The family is the natural and fundamental group unit of society and is entitled to protection by society and the State”); and
(c)Article 24 (“every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State”).
[107] Mr Hooker also refers to certain UNHRC decisions, to the effect that where an individual’s connection to a country, including where they have family connections to that country, is so strong, lawful deportation can still be “arbitrary” and therefore a breach of the ICCPR.64 Mr Hooker says the Tribunal did not consider and apply this UNHRC jurisprudence.
[108] In this context, Mr Hooker notes that s 105(2) of the 1987 Act listed a number of mandatory considerations to be taken into account and which themselves gave effect to New Zealand’s international obligations (including under ICCPR).65 Mr Hooker notes that s 207 does not address the specific considerations to be taken into account on a humanitarian appeal, such that separate regard must be had to New Zealand’s international obligations. As noted, Mr Hooker submits that there is no evidence in the IPT Decision that these matters were in fact taken into account by the Tribunal, and its failure to do so amounts to an error of law.
[109] Third, Mr Hooker submits that in assessing the evidence before it, the Tribunal failed to analyse in any detail the effect of deportation on the applicant, his wife and their children, being a mandatory relevant consideration. The applicant’s written submissions state:
The IPT has failed to address itself to the direct question of what the effect is of deportation on the children and on the wife. What emotional harm will be caused to the wife and the children and how will they cope with the deportation of [the applicant]. The IPT misdirected itself by considering whether the wife and children would be “emotionally upset” and “disappointed”. The real issue is to examine the evidence and to consider
64 Referring to, for example, Budlakoti v Canada (Communication No. 2264/2013, UN Doc CCPR/C/122/D/2264/2013, 29 August 2018.
65 Referring to McGrath J’s observations to this effect in Helu v Immigration and Protection Tribunal
[2015] NZSC 28, [2016] 1 NZLR 298 at [164].
what the effect of deportation will have on the wife, the children and [the applicant].
The IPT treated the evidence with such a patronising finding as to show that it did not apply the correct evaluation of the evidence or address the issue.
[110] In his oral submissions, Mr Hooker developed this argument by submitting the Tribunal was superficial in its analysis of the effects of deportation on the family. He submitted the Tribunal should have asked, first, what are the best interests of the children, and then, if there were to be removal, what is the effect of that on the best interests of the children, and on the applicant and his wife? Mr Hooker says the Tribunal cannot simply “pass over” these important issues by saying the family will be disappointed and upset.
The Minister’s submissions
[111] Ms Dowse, delivering the Minister’s submissions on the s 249 application, reinforces the matters to be taken into account when considering whether to grant leave to commence judicial review of a Tribunal decision, namely:
(a)whether the issues involved could be adequately dealt with in an appeal against the IPT’s determination;66 and
(b)if so, whether the issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.67
[112] She frames the ultimate issue as being whether “a potential review raises a seriously arguable issue for review which is of general public importance or where for any other reason it should be considered by [the High] Court”.68
[113] Ms Dowse notes there is conflicting authority on what is encompassed by “any other reason”, and whether a narrow approach ought to be taken (involving individual injustice to such an extent that the Court could not countenance the first instance
66 Immigration Act 2009, s 249(6)(a).
67 Section 249(6)(b).
68 By reference to Muir J’s judgment in Sigh v Chief Executive of the Ministry of Business, Innovation and Employment [2018] NZHC 972, [2018] NZAR 1120 at [24].
decision standing),69 or a wider approach (taking into account the broader interests of justice).70 Ms Dowse says that even adopting the wider approach, leave ought not to be granted in this case. Other than the ground of review based on an alleged breach of natural justice, all grounds for review could have been adequately addressed in an appeal on a matter of law. She says that in any event, the grounds of proposed review are not seriously arguable, nor do they give rise to issues of importance broader than the applicant’s own case.
[114] As to the alleged breach of natural justice, Ms Dowse submits that the applicant has not made out that the Tribunal had a copy of the Full File before it at the time of the appeal, but rather this is a bare assertion only in the applicant’s wife’s affidavit. Ms Dowse also notes that the IPT Decision set out the materials the Tribunal did have before it, and there is no mention of having received the Full File.
[115] Ms Dowse further submits that even if the Tribunal had the Full File, no prejudice to the applicant has been made out. Other than reference to allegations in the Full File of fraud in the applicant obtaining a residence visa, Ms Dowse submits that no other prejudicial material has been identified. She notes that the IPT Decision makes no reference to the Full File or to any allegations of fraud, suggesting that these matters were not taken into account by the Tribunal in any event.
[116] Turning to the applicant’s case on the ICCPR and associated jurisprudence, Ms Dowse submits the Tribunal clearly did have regard to and take this into account in its decision. Ms Dowse says the substance of the IPT Decision, when read as a whole, clearly reflects those aspects of the ICCPR and UNHRC jurisprudence upon which the applicant relies.71
[117] Finally, Ms Dowse submits the Tribunal gave detailed consideration to the effect of deportation on the applicant, his wife and their children, and that the
69 LMN v Immigration and Protection Tribunal New Zealand [2013] NZHC 2077 at [27(c)]; and Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19(c)], considering the phrase as used in applications for leave to appeal under s 245 of the Act.
70 R M v Immigration and Protection Tribunal [2016] NZHC 735 at [2] and [36], considering the phrase as used in s 249 applications for leave to apply for review.
71 Referring to the Tribunal’s express reference to the ICCPR and relevant jurisprudence at [52] of the IPT Decision; the interests of the family (at [57]–[61] and [64]–[67]); consideration of whether deportation would be unjust or unduly harsh in light of those family circumstances (at [73]–[74]).
observation that deportation would cause “upset and disappointment” was simply a conclusion, having regard to the balance of the IPT Decision. Ms Dowse also notes the Tribunal expressly considered what the children’s best interests were, stating they may well be served by the applicant being allowed to remain in New Zealand.72
Discussion – breach of natural justice
[118] First, I accept that this aspect of the proposed application for review could not adequately be dealt with in an appeal on a question of law against the IPT Decision.
[119] Turning to the merits of the applicant’s case, it is unfortunate that, despite abiding the Court’s decision, the Tribunal did not provide affidavit evidence confirming precisely what INZ file or files it had before it when considering the applicant’s appeal. I say this as while the IPT Decision records that the Tribunal had received the file prepared for Minister Coleman when considering the Suspension Decision (i.e. that of May 2011 and referred to at [9]–[10] above), cl 11C.1 of the Tribunal’s practice note records that:73
Where an appeal is lodged, the chief executive must, in the time allowed by the Tribunal, lodge with the Tribunal any relevant files – (section 226(2)(b)). The relevant files include the file prepared for the Minister of Immigration and any relevant temporary visa file and/or residence file, and (where they are disclosable) records and electronic notes held by the respondent, concerning the appellant. …
[Emphasis added]
[120] This suggests that in addition to any “file prepared for the Minister”, the Tribunal will also receive a copy of any relevant “residence file”.74 In the absence of confirmation by the Tribunal that it did not have the Full File before it at the time of the appeal, I proceed on the basis that it is seriously arguable that it did.
[121] The question is, however, does this give rise to a seriously arguable breach of natural justice in this case? In my view, the answer to that question must be “no”, for the following reasons.
72 Ochibulu v Minister of Immigration, above n 5, at [65].
73 Immigration and Protection Tribunal Practice Note 1/2018 (Deportation – Resident) (16 May 2018).
74 I will refer to these collectively as the “relevant INZ files”.
[122] First, while the practice note appears to envisage the Full File being provided to the Tribunal, neither the practice note nor, importantly, the relevant legislative provisions, require the Full File also to be provided to an appellant.
[123] The practice note does not say anything about the Full File, or indeed any of the relevant INZ files, being provided to an appellant. And while cl 11C.1 of the practice note reflects what the chief executive must provide to the Tribunal when an appeal is lodged, cl 11C.2 states that “[t]he respondent may, also, in the time allowed by the Tribunal, lodge with the Tribunal any other evidence or submissions”. Clause
10.3 of the practice note addresses the respondent’s submissions and evidence, and states:
The Minister of Immigration, as respondent, may also make submissions and provide any evidence as the Minister sees fit. Copies must be sent to the appellant or representative and to any other party.
[Emphasis added]
[124] This reflects any submissions or evidence the Minister may file with the Tribunal in accordance with cl 11C.2, rather than the relevant INZ files which the chief executive must provide to the Tribunal under cl 11C.1.
[125] A similar scheme is seen in the statutory framework. Section 226 provides as follows:
226 Proceedings on appeal or matter
(1)It is the responsibility of an appellant or affected person to establish his or her case or claim, and the appellant or affected person must ensure that all information, evidence, and submissions that he or she wishes to have considered in support of the appeal or matter are provided to the Tribunal before it makes its decision on the appeal or matter.
(2)Where an appeal or matter is lodged,—
(a)subject to agreement between the Tribunal and the chief executive, the Tribunal must give the chief executive a copy of the notice of appeal or matter and any information, evidence, or submissions lodged by the appellant or affected person; and
(b)the chief executive must, in the time allowed by the Tribunal for the purpose, lodge with the Tribunal any file relevant to the appeal or matter that is held by the Department.
(3)The Minister, the chief executive, or a refugee and protection officer may also, in the time allowed by the Tribunal for the purpose, lodge with the Tribunal any other information, evidence, or submissions in relation to the appeal or matter as he or she thinks fit.
[126] Again, this does not require the INZ files provided to the Tribunal pursuant to s 226(2)(b) to also be provided to the appellant.
[127] At first blush, it might seem unusual for the Tribunal to have material before it which an appellant does not. But as the Court of Appeal observed in Daganayasi v Minister of Immigration, the requirements of natural justice and their applicability will be shaped by the relevant statutory framework and its proper interpretation.75 In the immigration context, the relevant statutory provisions envisage a somewhat inquisitorial approach by the Tribunal, at least in terms of the information provided to it and that it may itself gather for the purposes of an appeal.76 To protect an appellant’s rights in such circumstances, s 230 imposes certain disclosure obligations on the Tribunal:
230 Tribunal must disclose prejudicial information
(1)Except as provided in subsection (3), the Tribunal must disclose to the appellant or affected person, and give the appellant or affected person an opportunity to rebut or comment on, information or material that—
(a)is provided to the Tribunal by a source other than the appellant or affected person; and
(b)is or may be prejudicial to the appellant or affected person; and
(c)the Tribunal intends to take into account in determining the appeal or matter.
(2)The Tribunal must set a reasonable time within which the appellant or affected person may rebut or comment on the information or material.
(3)Subsection (1) does not require the Tribunal to disclose any information or material if—
(a)the disclosure would be likely to endanger the safety of any person; or
(b)it is classified information that the Tribunal must keep confidential and must not disclose under section 259.
75 Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141.
76 Section 228(1) of the Immigration Act 2009 provides that “[w]hen considering an appeal on a matter, the Tribunal may seek information from any source.”
(4)The Tribunal must, however, notify the appellant or affected person of the fact of any non-disclosure on the grounds specified in subsection (3).
[128] Accordingly, even if the Tribunal was in possession of the applicant’s Full File, it was also subject to an express statutory obligation of disclosure in accordance with s 230.
[129] There is no suggestion or hint in the IPT Decision that the Tribunal took into account any prejudicial information from the Full File which it did not disclose or give notice to the applicant in accordance with s 230(1) or (4). Mr Hooker says that in the absence of seeing the Full File without redactions, it cannot be determined whether it contains prejudicial information. But the scheme of s 230 is that it is the Tribunal’s assessment of whether the material is or may be prejudicial, and whether the Tribunal intends to take that information into account. Plainly if the Tribunal itself does not consider the material is or may be prejudicial, or intend to take that information into account on the appeal, it will not in fact influence the Tribunal in a manner prejudicial to the appellant.
[130] In the absence of any reason to suggest otherwise, I proceed on the basis the Tribunal is familiar with and complies with its s 230 obligations. If the applicant’s approach to breach of natural justice in this case were correct, and in the absence of any evidential foundation to suggest the Tribunal had failed to comply with its s 230 disclosure and/or notice obligations, a breach of natural justice would be made out in every case in which the chief executive had complied with his or her obligation to provide all relevant files to the Tribunal. Given the statutory framework just discussed, that cannot be right.
Discussion – did the Tribunal fail to take into account ICCPR?
[131] I accept Ms Dowse’s submission that this aspect of the proposed application for review could be adequately dealt with on an appeal against the IPT Decision. Mr Hooker did not suggest otherwise. But while whether the Tribunal in any given case took into account relevant aspects of the ICCPR is not a matter of general or public importance, I accept that how a Tribunal might go about doing so could be.
[132] As to the merits of this proposed ground of review, Mr Hooker relied in particular on McGrath J’s observations in Helu v Immigration and Protection Tribunal that the matters set out in s 105(2) of the 1987 Act emanated from New Zealand’s international obligations.77 On this basis, Mr Hooker accepts that if a Tribunal took into account the relevant s 105(2) considerations, it would thereby be giving effect to New Zealand’s relevant international obligations. As noted earlier, Mr Hooker says this approach does not apply under s 207, given it does not contain a list of mandatory relevant considerations emanating from New Zealand’s international obligations. As such, it must be evident from the face of the Tribunal’s decision that it has in fact taken into account New Zealand’s relevant international obligations.
[133] Whether a Tribunal has taken into account relevant international obligations can nevertheless be “tested” by having regard to those mandatory considerations that were set out in s 105(2) of the 1987 Act. Section 105(2) provided as follows:
(2)In deciding whether or not it would be unjust or unduly harsh to deport the appellant from New Zealand, the Tribunal shall have regard to the following matters:
(a)the appellant’s age:
(b)the length of the period during which the appellant has been in New Zealand lawfully:
(c)the appellant's personal and domestic circumstances:
(d)the appellant's work record:
(e)the nature of the offence or offences of which the appellant has been convicted and from which the liability for deportation arose:
(f)the nature of any other offences of which the appellant has been convicted:
(g)the interests of the appellant's family:
(h)such other matters as the Tribunal considers relevant.
[134]In Helu, McGrath J said the following about the s 105(2) considerations:
[164]This is a case of the kind explained above, where Parliament has sought to give effect to New Zealand’s international obligations by
77 Above n 65, at [164].
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 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.
[footnotes omitted]
[135]Thus:
(a)Consideration of “the interests of the appellant’s family” incorporates the ICCPR protection of the family unit in articles 17 and 23(1).
(b)Consideration of matters such as an appellant’s age, nature and seriousness of any relevant offending and the length of the appellant’s stay in New Zealand, will be relevant to whether interference with family life will be arbitrary (prohibited by article 17, and as discussed in the UNHRC jurisprudence to which Mr Hooker refers).
(c)Consideration of the appellant’s length of residence in New Zealand (as part of a family that continues to live in this country), the absence of ties elsewhere and any other factors that might lead an appellant to see New Zealand as his or her “own country”, will encompass those matters relevant to assessing a person’s ties to a country under art 12(4) of
ICCPR, and as addressed in the UNHRC materials relied on by the applicant, and in particular Budlakoti v Canada.78
[136] As noted, the Tribunal was plainly alive to these international obligations, expressly setting out the requirement to take them into account. And despite not expressly citing specific ICCPR articles or UNHRC decisions in the balance of the IPT Decision, I am not persuaded it is seriously arguable that the Tribunal did not, in substance, take them into account.
[137] The Tribunal considered the applicant’s wife’s position in some detail, including her relationship with the applicant and the implications for her if he were to be deported. The Tribunal also expressly considered the best interests of the children and noted they were likely to be served by the applicant being permitted to reside in New Zealand. The Tribunal again considered in some detail the children’s relationship with their father, how that has been managed while he has been in prison and the implications were he to be deported.
[138] The Tribunal was also aware of and took into account the applicant’s age, his work history (in both South Korea and New Zealand), the length of time he has spent in New Zealand and his remaining ties with Nigeria. The implications for the applicant were he to return to Nigeria were also considered, as were the reasons for the applicant’s liability for deportation, and the nature and seriousness of the offending in question. The Tribunal also took into account the applicant’s expression of remorse and positive reports of compliance while in prison, together with the constructive programmes he has undertaken. The Tribunal then went on to balance these factors against the applicant’s humanitarian considerations, stated to be “his settlement in New Zealand, the interests of his wife, his perceived difficulties of returning to Nigeria and the best interests of his New Zealand-citizen children.” I therefore do not consider it seriously arguable that the Tribunal did not in substance take into account those aspects of the ICCPR or UNHRC jurisprudence on which the applicant relies.
78 See footnote 64 above. Namely factors relevant to whether an individual considers a country is their “own country” and deportation from it would be arbitrary.
Discussion – did the Tribunal fail to take into account the effect of deportation?
[139] Again, this aspect of the proposed application for review could be adequately dealt with on an appeal. It is also specific to the appellant. Further and in any event, I do not consider this aspect of the proposed application for review to be seriously arguable either.
[140] Mr Hooker emphasises the Tribunal’s reference to deportation causing the applicant, his wife and his children “disappointment and emotional upset”. He says this evidences a superficial and inadequate assessment of the evidence. But I accept Ms Dowse’s submission that this aspect of the IPT Decision is a summary or concluding paragraph only, against the earlier and more detailed assessment of the evidence.
[141] Ultimately, I am satisfied the Tribunal did consider the effects of deportation on all parties involved, and in considerably more detail than the applicant suggests. As Ms Dowse submits, the IPT Decision as a whole, and those aspects in particular referred to in footnote 71 above, reflect a considered assessment by the Tribunal of the effect of deportation on the applicant, his wife and their children.
[142]This ground of proposed review also has low prospects of success.
Section 249 application – conclusion
[143] Other than the suggested breach of natural justice, the proposed grounds of judicial review could adequately be dealt with in an appeal against the IPT Decision. And while there are aspects of the applicant’s case on ICCPR and UNHRC jurisprudence that are of potentially wider application than the applicant’s case, the merits of the proposed grounds of review are not strong.
[144] The proposed application for review therefore does not give rise to seriously arguable issues which are of general public importance, or where for any other reason they should be considered by this Court.
[145]The s 249 application is accordingly also dismissed.
Result
[146]The ss 247 and 249 applications are dismissed.
[147] The parties are encouraged to agree costs. If they cannot do so, the Minister may submit a costs memorandum within 15 working days of the date of this judgment. The applicant may file a memorandum in response within a further 10 working days. I will thereafter determine costs on the papers. No memorandum is to be longer than five pages in length.
Fitzgerald J
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