Pelu v Minister of Immigration

[2014] NZHC 600

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003892 [2014] NZHC 600

BETWEEN  SAOLELE TAUIALO PELU Appellant

ANDTHE MINISTER OF IMMIGRATION Respondent

Hearing:                   14 November 2013 and 5 March 2014

Appearances:           D Allan for the Appellant

CIJ Fleming for the Respondent

Judgment:                28 March 2014

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 28 March 2014 at 11.00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:

D Allan, Barrister, Hamilton

CIJ Fleming, Crown Law, Wellington

PELU v THE MINISTER OF IMMIGRATION [2014] NZHC 600 [28 March 2014]

[1]      Ms Pelu seeks leave to appeal on questions of law arising from a decision of the Immigration and Protection Tribunal (IPT) dated 25 July 2013 in which the Tribunal  rejected  her  appeal  against  liability for  deportation  under  s 161  of  the Immigration Act 2009 (the 2009 Act).1

[2]      Leave to appeal in such cases is governed by s 245(3) of the Act, which provides:

(3)       In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its  general  or  public  importance  or  for  any  other  reason  ought  to  be submitted to the High Court for its decision.

[3]      Ms Pelu is a Samoan citizen but had been granted residency in New Zealand in August 2005.  She became liable for deportation under s 161(1)(b) of the 2009 Act because, within 5 years of her first holding a residence class visa, she was convicted of  sexual  offending  against  teenage  boys  and  the  offences  concerned  were punishable by imprisonment for a term of 2 years or more.

[4]      The statutory provision under which Ms Pelu’s appeal to the IPT fell to be

determined was s 207 of the 2009 Act.  It provides:

(1)       The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that –

(a)       there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and

(b)       it  would  not  in  all  the  circumstances  be  contrary  to  the public interest to allow the appellant to remain in New Zealand.

(2)       In determining whether it would be unjust or unduly harsh to deport from New Zealand an appellant who became liable for deportation under section 161, and whether it would be contrary to the public interest  to  allow  the  appellant  to  remain  in  New  Zealand,  the Tribunal must have regard to any submissions of a victim made in accordance with section 208.

[5]      I shall discuss s 207 in more detail later in this judgment.

1      Pelu v Minister of Immigration [2013] NZIPT 600011.

[6]      As the Tribunal noted at [2] of its decision, Ms Pelu’s appeal was primarily focused on the difficulties she would face in Samoa because of her transgender status.  She has been undergoing hormone treatment and wishes also to have gender re-assignment surgery, neither of which is readily accessible in Samoa.  There were related issues about the way in which some members of her family, and the community, would treat Ms Pelu on account of her status.

Procedural matters

[7]      Prior to the hearing of Ms Pelu’s appeal, the then Chair of the IPT made a direction  under  s 221(2)  of  the  2009  Act  that,  because  of  the  exceptional circumstances of her case, the appeal should be heard and determined by more than one member.  As I understand it, Judge Hastings also designated (as he was required by s 221 to do):

(a)       that the appeal would be heard and determined by a Tribunal that comprised himself and Ms Melissa Poole;  and

(b)that  he  would  be  the  presiding  member  for  the  purposes  of  that hearing and determination.

[8]      The hearing of Ms Pelu’s appeal took place over three days, on 29 and 30

August 2012 and, later, on 11 February 2013. As I have said, the determination itself was issued on 25 July 2013.   The adjournment from August 2012 until February

2013 was the result of a suggestion made by Judge Hastings during the August hearing  that  the  Tribunal  would  be  assisted  by  hearing  expert  evidence  about hormone therapy and transgender issues.  It seems that there was some difficulty in obtaining this evidence and then in scheduling the resumed hearing.

[9]      For reasons that are not entirely clear to me, Judge Hastings did not attend or participate in the resumed hearing on 11 February.2    Nor did anyone attend in his

stead. Similarly, the final determination was made by Ms Poole alone.

2      I suspect, but do not know for certain that by February 2013 Judge Hastings had left the IPT and

had been replaced as the Tribunal’s Chair.

[10]     I record at the outset that Ms Fleming for the Minister accepted that the circumstances I have just described give rise to a question of law in respect of which it is appropriate to grant leave.   In my view that concession was properly made. Accordingly leave to appeal is granted in relation to the following question:

Where a direction has been made under s 221(2) of the Immigration Act

2009 that a case is to be heard and determined by a Tribunal comprised of more than one member, does a Tribunal comprised of less than the number

so directed have jurisdiction to hear and determine that case?

[11]     Before  turning  to  consider  the  substantive  issues  raised  by  Ms  Pelu’s application for leave it is necessary to say a little more about the provision which governed her appeal to the IPT, namely s 207 of the 2009 Act.

Section 207

[12]     I have set out s 207 above.  Its effect has recently been summarised by the

Court of Appeal in the following way:3

... [section 207] provides that the Tribunal must allow an appeal on humanitarian grounds only where it is satisfied of two factors, namely:

(a)       there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and

(b)       it  would  not  in  all  the  circumstances  be  contrary  to  the public interest to allow the appellant to remain in New Zealand.

[13]     The Court of Appeal then went on to note:

[7]       The law applying before the coming into force of the 2009 Act, the Immigration Act  1987  (the  1987 Act),  provided  for  a  different  test  for appeals against deportation orders on humanitarian grounds.  Under s 105 of the 1987 Act, such an appeal could be allowed if the relevant tribunal was satisfied that it would be unjust or unduly harsh to deport the person from New Zealand, and that it would not be contrary to the public interest to allow that person to remain in New Zealand. There was no “exceptional circumstances” requirement for appeals against deportation orders on humanitarian grounds.  However, there was such a requirement for appeals on  humanitarian  grounds  against  orders  removing  persons  unlawfully  in New Zealand.  The test applied to those unlawfully in New Zealand under

3      Minister of Immigration v Jooste [2014] NZCA 23 at [6]. This decision was released after the filing of Ms Pelu’s application for leave and, in fact, just before the resumed hearing of that application earlier this month.

the 1987 Act was the same as that now applying to both residents and those unlawfully in New Zealand under the 2009 Act.

[8]       In summary, the change made in the 2009 Act is to extend the more stringent “exceptional circumstances” requirements for humanitarian appeals in relation to deportation orders so that the exceptional circumstances test applies to residents, in the same way as it applies to those unlawfully in New Zealand.

[14]     What was not recorded by the Court of Appeal in its decision in Jooste is that s 105 of the 1987 Act also listed a number of considerations that the Tribunal was required to take into account when determining whether it would be unjust or unduly harsh to deport someone such as Ms Pelu.   More specifically, s 105(2) stipulated that:

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.

[15]     As the Court in Jooste noted, s 105 was not concerned at all with exceptional circumstances of a humanitarian nature, which were (until 2009) relevant only in relation to appeals against removal by persons who were unlawfully in New Zealand under s 47(3), which was drafted in materially identical terms to s 207.   It was

s 47(3) that was considered by the Supreme Court in Ye v Minister of Immigration.4

There, the majority said:5

[34]     That brings us back to the first criterion in s 47(3) which has the following ingredients: (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand. The need for the circumstances of the case to be exceptional means that those circumstances must be well outside the normal run of circumstances found in overstayer cases generally. The circumstances do not have to be unique or very rare but they do have to be truly an exception rather than the rule.  It is unnecessary and undesirable to attempt to define the compass of the word “humanitarian”. It is unlikely to be difficult to decide whether the circumstances of a particular case fulfil that description. If there are exceptional circumstances of a humanitarian nature, it is then necessary to determine whether they make it unjust or unduly harsh to remove the person from New Zealand.

[35]     The  qualification  of  the  word  “harsh”,  by  the  word  “unduly”, recognises that there  may  be  some  degree  of  harshness in removing an overstayer from New Zealand. In particular some degree of harshness may be involved where the removal affects New Zealand citizen children. But the statutory test is couched on the basis of undue harshness. Undue in this context means that the harshness goes beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand's immigration system. That is why a generic concern on that account is not enough to outweigh fulfilment of the first criterion in s 47(3).

[36]      The flavour of the subsection as a whole, with its interweaving of the concepts of exceptional circumstances, injustice or undue harshness and the public interest suggests that Parliament, being mindful of humanitarian considerations, contemplated overstayers being allowed to remain in New Zealand if there were humanitarian circumstances of a sufficiently unusual kind that their remaining would not undermine the general importance of maintaining the integrity of the immigration system.6 The test was designed to be strict but was seen as representing an appropriate reconciliation of personal humanitarian concerns with relevant aspects of the public interest.

[37]     One   further   point   should   be   mentioned.   The   link   between “exceptional circumstances of a humanitarian nature” and “unjust or unduly harsh” provided by the words “that would make it” can be read in two ways. The   first   is   to   hold   that   the   presence   of   the   relevant   exceptional circumstances necessarily demonstrates injustice or undue harshness with no further assessment being required. On this basis the words “that would make

it” mean that the necessary injustice or undue harshness derives from the very  fact  of  there  being  exceptional  circumstances.  The  second  reading

involves an assessment of whether the exceptional circumstances found to

4      Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.

5      Elias CJ dissented on the issue here discussed. Her view was that it was the first, rather than the second, interpretation that was to be preferred.

6      It goes without saying that that aspect of the majority’s analysis does not apply directly to s 207 cases such as Ms Pelu’s, because she is not an overstayer. Subtly different interests and balances are necessarily at play in a case such as hers, including, for example, the integrity of the criminal justice system.

exist make it unjust or unduly harsh to remove the person. On this view that consequence does not necessarily flow from the existence of exceptional circumstances of a humanitarian nature.

[38]     We  consider  the  second  reading  is  to  be  preferred  as  more appropriately serving the statutory purpose. Whether the particular exceptional circumstances give rise to the necessary injustice or undue harshness is a matter for the assessment of the decision-maker. It will depend on how compelling or persuasive the exceptional circumstances are. Had the first meaning been intended there need only have been reference to exceptional circumstances of a humanitarian nature. The presence of such circumstances would have fulfilled the first criterion without reference to injustice or undue harshness. Those concepts must have been intended to contribute to the overall test and would effectively be written out if the first meaning were adopted.

The IPT’s determination in this case

[16]     After summarising the evidence, the IPT set out its approach under s 207 in the following way:

[58]     In relation to (the analogous) section 47(3) of the 1987 Act, the majority of the Supreme Court stated, in Ye v Minister of Immigration [2010]

1 NZLR 104, that three ingredients had to be established in the first limb:

(a)      exceptional circumstances; (b)     of a humanitarian nature;

(c)      that would make it unjust or unduly harsh for the person to be removed from New Zealand.

[59]     As to whether circumstances are exceptional, the Supreme Court noted, in Ye v Minister of Immigration, at [34] that they “must be well outside the normal run of circumstances” and, while they do not need to be unique or rare, they do have to be “truly an exception rather than the rule”.

[60]     In   determining   whether   the   exceptional   circumstances   of   a humanitarian nature would make it unjust or unduly harsh for the appellant to be deported, the Tribunal must weigh the gravity of the offending, and any other adverse considerations, against the compassionate factors favouring the appellant   remaining   in   New   Zealand;   see   Galanova   v   Minister   of Immigration [2012] NZIPT 500426, at [47]-[50].

[17]     In determining whether Ms Pelu’s case involved exceptional circumstances of

ahumanitarian nature the Tribunal considered: (a)     Her resident status;

(b)Her personal circumstances, including how she had come to live in New Zealand, her transgender status and her hormone treatment and the difficulties she was likely to experience if she were deported to Samoa;

(c)      Her family interests and support in New Zealand.

[18]     The Tribunal concluded:7

Weighing all those factors (notably, the challenges which would face the appellant  as  a  transgender  person  in  Samoa,  particularly  in  accessing hormone treatment and medical advice and support), the Tribunal finds that the appellant does have exceptional circumstances of a humanitarian nature.

[19]   The IPT then went on to find, however, that when these exceptional humanitarian circumstances were weighed against the seriousness of Ms Pelu’s offending (“both the index offending and her other convictions”)8  it would not be unjust or unduly harsh to deport her.

[20]     It  will  be  observed  that  the  three  factors  considered  by  the  IPT  when assessing the existence of exceptional humanitarian circumstances and the single factor considered in relation to whether it would be unjust or unduly harsh to deport Ms Pelu are all factors that were specifically listed in s 105(2) of the 1987 Act.  But as I have said, s 105(2) was not concerned at all with exceptional humanitarian circumstances.

[21]     There is support for the contention that there is a question of law arising from what is arguably the Tribunal’s wholesale incorporation of s 105(2) into s 207(1)(a) (evident in both Ms Pelu’s case and others) in the Court of Appeal’s decision in Jooste, to which I have referred above.   The particular concern raised by the Minister’s application for leave to appeal in that case was that the threshold adopted by the IPT when identifying “exceptional circumstances of a humanitarian nature” was too low. Without intending to comment in any way on the merits of that concern

(which have yet to be determined) it is possible to see how the incorporation of the

7      Pelu v Minister of Immigration, above n 1, at [75].

8 At [76].

old s 105 considerations into an exceptional circumstances analysis might lead the

Tribunal into error in that regard.

[22]     The  present  case,  however,  does  not  involve  an  application  for  leave  to appeal by the Minister and there has been no challenge to the Tribunal’s finding of exceptional humanitarian circumstances in relation to Ms Pelu.  Nor do I think there are grounds for such a challenge; the issues thrown up by Ms Pelu’s transgender status and the prospect of her return to Samoa seem to me to put her case “well outside the normal run of circumstances” found in other cases of this kind.

[23]     But the wider concern nonetheless does remain.   That is whether, in cases where deportation liability has arisen under s 161, the Tribunal is simply applying s 207(1)(a) as if it were the same as s 105(2).  If that were so, then there would be an obvious  risk  that  it  is  giving  no,  or  too  little,  weight  to  truly  exceptional humanitarian circumstances, in cases where they have properly been found to exist. This concern is, in a sense the obverse of that behind one of the specific questions of

law that had been formulated by the Minister in Jooste, namely:9

Did the Tribunal make an error of law by misdirecting itself that the test for exceptional circumstances of a humanitarian nature under s 207(1)(a) is:

(i)        but a threshold enquiry, with the engine room of the test being the question whether the circumstances are such as to make it unjust or unduly harsh to deport the person; and/or

(ii)       to  find  something  more  than  routine  circumstances,  but which  were  prima  facie,  genuinely  concerning circumstances?

[24]     In short, if the Tribunal has erred in the way contended by the Minister in

Jooste then it seems to me that there is a real risk that it has also erred in giving:

(a)       insufficient  weight  to  humanitarian  circumstances  which  are  truly exceptional; and

(b)too much weight to the (adverse) factors it regards as going to the injustice   and   undue   hardship   inquiry  (in   Ms   Pelu’s   case   the seriousness of her offending).

[25]     I consider that the matters I have discussed above do raise a question of law in respect of which leave should be given.  The precise formulation of that question is rather difficult, however.  It could be posed in the terms set out in the previous paragraph.  It could simply be asked whether and to what extent the s 105(2) factors should play a part in a s 207(1) analysis.

[26]     The decision in Jooste is again helpful, however.  Notwithstanding the fact that the Minister in that case had formulated four discrete questions of law which the Court of Appeal accepted were individually qualifying in terms of s 245(3), the Court chose not to grant leave in those terms.  It said:

[19]      We  are  also  concerned  that  the  questions  of  law  raised  by  the Minister may not allow for a proper focus on matters at issue in the case, and there may be some difficulty in amending those questions of law in the High Court in an appeal for which the decision to grant leave was made by this Court  if  such  amendment  becomes  necessary.  We  prefer,  therefore,  to express the points on appeal in a more generic format, which is reflected in the question of law for which we have granted leave.

[27]     The question for which leave was granted was simply:

Did the Immigration and Protection Tribunal correctly articulate and apply the  test  for  an  appeal  against  liability  for  deportation  on  humanitarian grounds set out in s 207 of the Immigration Act 2009?

[28]     In my view the same approach is warranted in Ms Pelu’s case, for the reasons

I have given.

[29]     It follows from that conclusion that the Tribunal’s approach to the second part of the s    207 analysis (the public interest) will also need to be considered in the appeal.   That is as it should be because, as the Supreme Court noted in Ye,10  the concepts of exceptional circumstances, injustice or undue harshness and the public interest are all interwoven within the section.  It follows that if the wrong approach

has been taken to one concept then the outcome in relation to the others may also be affected.

[30]     Accordingly leave to appeal is granted to Ms Pelu on the following two questions of law:

(a)      Where a direction has been made under s 221(2) of the Immigration Act 2009 that a case is to be heard and determined by a Tribunal comprised of more than one member, does a Tribunal comprised of less than the number so directed have jurisdiction to hear and determine that case?

(b)Did the Immigration and Protection Tribunal correctly articulate and apply the test for an appeal against liability for deportation on humanitarian grounds set out in s 207 of the Immigration Act 2009?

[31]     In light of what I regard as the overlap of issues between this case and Jooste, it seems to me that there may be considerable merit in Ms Pelu’s appeal being heard at the same time and by the same judge as that appeal.  My understanding is that that appeal is listed for its first call in this Registry on 15 April 2014, CIV-2014-404-632.

[32]     Lastly I record my thanks to both counsel for their assistance in this matter. In particular, I observe that Ms Pelu owes a debt of gratitude to Mr Allan for the

careful way in which he presented her case.

Rebecca Ellis J