Pesamino v Minister of Immigration

[2012] NZHC 4

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2011-404-007892 [2012] NZHC 4

IN THE MATTER OF     an application for review of a decision of the Minister of Immigration not to exercise his discretion to cancel a deportation notice

BETWEEN  FALANIKO PESAMINO Plaintiff

ANDMINISTER OF IMMIGRATION Defendant

Hearing:         16 January 2012

Appearances: M B Meyrick and R McKelvin for the Plaintiff

A Longdill for Defendant

Reasons for

Judgment:      19 January 2012

JUDGMENT OF WOOLFORD J

The reasons for judgment was delivered by me on Wednesday, 19 January 2012 at 12:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Berman & Burton, DX CP 24009, Auckland

Crown Solicitor, Auckland.

PESAMINO V MINISTER OF IMMIGRATION HC AK CIV 2011-404-007892 [19 January 2012]

Introduction

[1]      Mr Pesamino seeks to review the decision of the Minister of Immigration dated 31 October 2011 declining to issue a special direction enabling him to remain in New Zealand.   Proceedings were filed on 7 December 2011.   The Court has allocated a date of first call as 23 February 2012 at 10:00 am.  No affidavit was filed with the statement of claim.   Nor was an application for interim orders filed to prevent his deportation before the Court was able to hear the plaintiff ’s claim.

[2]      The plaintiff is currently in custody serving a sentence of six years and six months imprisonment for wounding with intent to cause grievous bodily harm.  At

2:30 pm on 16 January 2012, his counsel received a facsimile from the New Zealand Police advising him that Mr Pesamino was to be deported the next morning.  He was to be collected from Mt Eden Prison at 9:00 am on 17 January 2012 and taken directly to the airport.  Plaintiff ’s counsel sought an urgent hearing in this Court.  At

4:00  pm  on  16  January  2012,  I heard  an  oral  application  for  an  interim  order restraining Immigration New Zealand from deporting the plaintiff pending a hearing of his substantive claim.  At the conclusion of the hearing, I declined to make an interim order restraining Immigration New Zealand from deporting the plaintiff and indicated that my reasons would follow. These are my reasons.

Background

[3]      Mr Pesamino first travelled to New Zealand on a visitor’s visa arriving on

3 November 1995.  He remained in New Zealand until 2 August 1996.  The applicant returned to New Zealand on 1 June 1997 when he was again granted a visitor’s permit valid to 31 August 1997.

[4]      On 16 September 1998, Mr Pesamino was served with a removal order by Immigration New Zealand as he was then in New Zealand without a valid permit. On 29 October 1998, Mr Pesamino lodged an appeal with the Removal Review Authority based on humanitarian grounds.  On 27 August 1999, the Removal Review Authority cancelled the removal order and directed Immigration New Zealand to grant Mr Pesamino a residence permit under s 63E(c) of the Immigration Act 1987.

A residence permit was issued to Mr Pesamino on 6 September 1999.  Mr Pesamino has not left New Zealand since then.

[5]      While in New Zealand the plaintiff married a New Zealand citizen.  He and his wife have seven children together.  As at October 2011 the eldest child was 16 years old and the youngest, twins, were aged five years.

[6]      On 30 March 2006 in the Manukau District Court, Mr Pesamino pleaded guilty to one charge of wounding with intent to cause grievous bodily harm committed on 17 July 2005.  He was convicted and sentenced to six years and six months imprisonment on 28 April 2006.

[7]      On 9 July 2007, the Minister of Immigration signed  a deportation order against Mr Pesamino.   It was served on him on 6 August 2007.   Mr Pesamino appealed  to  the  Deportation  Review  Tribunal.     On  2  September  2009,  the Deportation Review Tribunal dismissed Mr Pesamino’s appeal.[1]    Mr Pesamino did not lodge an appeal to the High Court against the Tribunal’s decision.

[1] Pesamino v The Minister of Immigration [2009] NZDRT 29.

[8]      The victim of Mr Pesamino’s violent assault was his wife, who he stabbed in the back with a kitchen knife.  This offence was only the last of many.  Amongst other offences, Mr Pesamino was convicted of male assaults female on 13 October

1999,  28  September  2000,  27  July  2001  and  25  May  2005.    According  to Mr Pesamino’s  evidence,  and  that  of  his  wife  before  the  Deportation  Review Tribunal, the victims were variously his mother-in-law, his wife, his girlfriend and his wife again.

[9]      Mr Pesamino has been denied parole on a number of occasions largely, it seems, because of the risk of reoffending.  He has been assessed by a psychologist while in prison.   Mr Pesamino’s risk of violent reoffending within a marital or de facto  relationship  with  a  woman  was  assessed  as  moderate  high  (a  category indicative of 50 percent to 69 percent risk of serious reoffending).  He has, therefore,

remained in custody until now.

[10]     On 31 August 2011, the plaintiff wrote to the Minister of Immigration and sought a special direction on the grounds that the separation from his children would cause undue hardship and that his risk of reoffending was significantly lower than at earlier times.

[11]     The Minister of Immigration was provided with a four-page briefing paper on Mr Pesamino’s circumstances.   Possible options set out for the Minister included requesting Immigration New Zealand to cancel Mr Pesamino’s deportation order. The Minister, however, declined to intervene, writing to Mr Pesamino as follows:

Thank you for your letter received on 31 August 2011.

I have carefully considered your submissions and personal circumstances. I advise I am not prepared to intervene in this case.

Deportation action will proceed at Immigration New Zealand’s discretion.

[12]     The plaintiff now challenges the Minister’s decision not to intervene.

The legal test

[13]     In Prasad v The Minister of Immigration[2] Venning J stated:

[12]     As recently confirmed by the Court of Appeal in Parmanadan v Minister of Immigration[3]a person in the position of the applicant cannot obtain relief from the Court unless they can establish they have at least a respectable chance of success in relation to the challenge to the proposed removal and that the making of an interim order is appropriately necessary to preserve the current status, an issue which must be considered in the context of the scheme and purpose of the legislation.

[2] Prasad v The Minister of Immigration HC Auckland CIV-2011-404-003958, 4 July 2011.

[3] Parmanadan v Minister of Immigration [2010] NZCA 136

[14]     Venning J also made reference to the decision of Yure v Bentley,[4] a judgment of Chambers J in which he concluded that the Court’s power to review a decision of the Minister of Immigration is extremely limited.  He referred to a number of High Court decisions to similar effect, including comments that the Minister’s decision was “very much a discretionary policy decision coming usually at the very end of, or

[4] Yure v Bentley HC Auckland M1530-PL01, 8 November 2001.

even outside, of any legal process, and to a large extent outside judicial review” and

that the Minister’s power was “virtually unreviewable” and that Courts would not intervene “in the absence of clear and cogent evidence that the exercise [of the power] has been unlawful”.

Applicant’s argument

[15]     The statement of claim alleges that in declining to issue a special direction the Minister failed to take into account relevant facts or to give proper weight to or take into account the fact that Mr Pesamino had been residing in New Zealand for more than 14 years and that his centre of gravity was in New Zealand.  His spouse was  a New  Zealand  citizen  and  the plaintiff  had  seven  children  living in  New Zealand aged between 16 years and five years.   The statement of claim further alleges that it was important for the emotional needs of the children for them to have regular contact with their father and should the plaintiff be deported he would lose contact with the children.   If he was deported he would not be able to visit his children in New Zealand and it was unlikely that his children would be able to visit him in Samoa as the family lacks the resources to enable them to travel to and from Samoa. Accordingly, the children would be deprived of a father.

[16]     The statement of claim also makes reference to New Zealand’s obligation to ensure that a family unit remains together.  It was also said that the decision of the Minister was unreasonable and that the plaintiff had a legitimate expectation that he would be able to remain in contact with his children and they would remain in contact with him.  The statement of claim notes that no reasons were advanced for the refusal to give a special direction and alleges that the Minister had predetermined the issue.  Finally, it is said that the failure of the Minister to give reasons for his decision prevented the plaintiff from being able to respond and made the decision an unfair one administratively.

Discussion

[17]     The Minister’s decision was made under s 172 of the Immigration Act 2009,

which provides:

172     Minister may cancel or suspend liability for deportation

(1)      The Minister may at any time, by written notice, cancel a person’s

liability for deportation.

(2)       The Minister may at any time, by written notice, suspend a residence class visa holder's liability for deportation—

(a)      for a period not exceeding 5 years; and

(b)       subject to the visa holder complying with any conditions stated in the notice (which take effect from the date specified in the notice, being a date not earlier than the date of notification).

(3)       Where a person fails to comply with the conditions stated in a notice under subsection (2),—

(a)       the   Minister   may   reactivate   the   person's   liability   for deportation by causing a deportation liability notice to be served on the person that sets out the grounds of the reactivation; and

(b)       subject to section 175(1)(e), the person has 28 days from the date the deportation liability notice is served to leave New Zealand.

(4)       In the case of a person who has appealed against his or her liability for deportation, the Minister must notify the Tribunal if the person’s liability for deportation is cancelled, suspended, or reactivated under subsection (1), (2), or (3)(a).

(5)       The  decision  to  cancel  or  suspend  a  person’s  liability  for deportation is in the absolute discretion of the Minister.

(6)       In the case of a person in imprisonment, the period referred to in subsection (2) commences on the date of the person’s release.

(7)       The cancellation or suspension of a person’s liability for deportation does not prevent the person from becoming liable for deportation on other grounds.

[emphasis added]

[18]     The Minister is said to have absolute discretion which is defined in s 11 as follows:

11       Meaning of absolute discretion of the decision maker

If a provision of this Act provides that a matter or decision is in the absolute discretion of the decision maker concerned, it means that—

(a)       the matter or decision may not be applied for; and

(b)      if a person purports to apply for the matter or decision, there is no obligation on the decision maker to—

(i)       consider the purported application; or

(ii)      inquire into the circumstances of the person or any other person; or

(iii)      make   any   further   inquiries   in   respect   of   any information provided by, or in respect of, the person or any other person; and

(c)       whether the purported application is considered or not,—

(i)        the decision maker is not obliged to give reasons for any decision relating to the purported application, other than the reason that this section applies; and

(ii)      section  27  of  this  Act  and  section  23  of  the  Official Information  Act  1982  do  not  apply  in  respect  of  the purported application.

[19]     In essence, the plaintiff’s case is that the Minister of Immigration did not take into account the interests of the children when he refused to grant the applicant a special direction or, alternatively, that his decision was unreasonable.  I have formed the view that both assertions are untenable.

[20]     There is no evidential foundation that the Minister did not take into account the interests of the children.   The  plaintiff’s  assertion  that  he did  not do  so is surprising as it was the only basis on which the plaintiff sought to remain in New Zealand.  This is noted several times in the briefing paper provided to the Minister including in the following passage:

Mr  Pesamino  writes  that  he  is  currently  in  prison  at  the  Springhill Corrections Facility and is due to have a parole hearing in September 2011. He expresses his concern that the Parole Board may decide to release him for deportation, which would separate him indefinitely from his wife and seven children.

Mr  Pesamino  writes  that  he  should  be  allowed  to  be  reunited  with  his children based on humanitarian grounds and the United Nations Convention on the Rights of the Child.  He adds that he has a greater chance to find work and support his family in New Zealand than in Samoa.

[21]   Again, the briefing paper noted that under New Zealand’s international obligations, the Minister had to consider the rights of the child and family in making a decision.  The paper noted that, in Immigration New Zealand’s submissions on the

issue of deportation in June 2007, Mrs Pesamino advised that she was still in a relationship with her husband despite him being imprisoned and that it was difficult for her to manage the children by herself.   She confirmed that the children had a close relationship with Mr Pesamino.  She also stated during the interview that she had forgiven her husband for his offending, of which she was a victim, and wanted him to come back to her and their family.

[22]     Again, the briefing paper noted Mr Pesamino’s request to consider his case on the grounds that he should not be separated from his children, which he claimed would be cruel and inhumane.   He stated that he had learnt his lesson and was regretful and remorseful for the offence and believed that he had changed.  He stated that  he  was  committed to  never  reoffend  or  do  anything  which  would  risk  his separation from his family.

[23]     The Minister did not give reasons for his decision.  He had no obligation to do so.  But it is clear that the interests of the children had been prominently placed before him and the only reasonable inference available is that the Minister did take the interests of the children into account, and yet came to the decision that he did.

[24]     As   to   the   plaintiff’s   submission   that   the   Minister’s   decision   was unreasonable, it is my view that, again, there are no grounds for impugning the Minister’s decision on the basis of unreasonableness.   The applicant’s personal circumstances  were  considered  fully  by  the  independent  Deportation  Review Tribunal in a two-day hearing at Auckland on 18 and 19 February 2009 at which his wife and children gave evidence.   The Tribunal confirmed the deportation order issued by the Minister.

[25]     The  Tribunal  concluded[5]   that  given  the  serious  nature  of  the  plaintiff ’s offending, his deportation was not unjust or unduly harsh.  It noted that although his children’s interests would be best served by him remaining in New Zealand, those interests were outweighed by the seriousness of his offending.  The Tribunal went on to consider whether the plaintiff had established that it would not be contrary to the public interest for him to remain in New Zealand.   On that issue, the Tribunal

concluded[6] that there was a legitimate public interest in preserving family unity but, in this case, this interest was considerably outweighed by the risk the appellant posed to public safety.  Given the risk of reoffending, the Tribunal was not satisfied that it would not be contrary to the public interest for him to remain in New Zealand.

[5] Pesamino v The Minister of Immigration at [57].

[6] Pesamino v The Minister of Immigration at [72].

[26]     As far as I am able to ascertain, nothing has changed since the decision of the Deportation Review Tribunal in 2009.  The plaintiff has remained in custody.  It is clear that the Parole Board was cognisant of his risk of reoffending.   In granting parole to Mr Pesamino it directed that he was to be released into the custody of Immigration New Zealand for the purposes of deportation from New Zealand.  The Parole Board also directed that his parole was to be revoked if he was not able to be released into the custody of Immigration New Zealand for the purposes of immediate deportation.

[27]     In all the circumstances, I am not satisfied that the plaintiff meets the test for an interim order restraining Immigration New Zealand from deporting the applicant to Samoa.  On the material before me, there is no real contest between the parties, let alone a respectable chance of success on the merits.

[28]     There  is  nothing  to  stop  the  plaintiff  from  continuing  the  substantive proceedings while he is in Samoa.   From there he is well able to continue to communicate with and instruct counsel.   He is also able to maintain some sort of relationship with his children if they so wish through post, email and perhaps social media such as Facebook.   More interactive communication may also be possible through means such as Skype.   He has had only the limited contact permitted by prison visits with them for a number of years now.

[29]     I am also not prepared to allow more time to the plaintiff to prepare affidavit evidence or provide written submissions.  The Minister advised the plaintiff in his letter  that  deportation  action  would  proceed  at  the  discretion  of  Immigration New Zealand.     His  counsel  also  acknowledges  being  advised  by  counsel  for Immigration  New  Zealand  on  22 December  2010  that  the  plaintiff  was  to  be

deported.  The plaintiff cannot come to Court at the last minute and seek further time in those circumstances.

[30]     The application for an interim order is dismissed.

……………………………..

Woolford J