Pulu v The Minister of Immigration HC WN CIV 2007-485-1836

[2008] NZHC 2310

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2007-485-1836

IN THE MATTER OF     Section 117 of the Immigration Act 1987

BETWEEN  OFA PULU Plaintiff

ANDTHE MINISTER OF IMMIGRATION Respondent

Hearing:         12 May 2008

Appearances: O Pulu in person

P G Scott for respondent

Judgment:      12 May 2008 at Oral

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an appeal under s 117 of the Immigration Act 1987 against a decision of the Deportation Review Tribunal on an appeal under s 104 of the Act.

[2]      The  background  is  that  the  appellant  was  granted  a  residence  permit  in August 2000.  In March 2002 he was convicted on a charge of wounding with intent to cause grievous bodily harm.  That conviction rendered him liable to deportation under s 91 of the Act.  A deportation order was made by the Minister of Immigration on 5 December 2004.   The appeal to the Deportation Review Tribunal was then lodged and the deportation order was upheld in a decision delivered on 17 July 2007.

[3]      This appeal was lodged in August 2007.  It was set down for hearing on 12

December 2007.   The appellant had been represented by counsel both before the

Tribunal and in the lodging of the appeal.  In November counsel applied for and was granted leave to withdraw.  The fixture date of 12 December was confirmed.

PULU V MINISTER OF IMMIGRATION HC WN CIV 2007-485-1836  12 May 2008

[4]      At  a  teleconference  before  Associate  Judge  Gendall  on  4  December  it appeared that the appellant had been unable to instruct alternative counsel and the hearing was vacated.  The need to make progress with the appeal was stressed.

[5]      At a further telephone conference on 5 February 2008 the appellant was given a strong caution by the Associate Judge to obtain legal representation and timetable directions were given.  Subsequently a date of today’s date was fixed.  The appellant has not been able to obtain legal representation and has appeared today in person in support of the appeal.  He has produced a number of support letters which I will come back to later in the course of this judgment.

[6]      I first describe the Deportation Review Tribunal’s decision.  That noted the test which is to be applied which is set out in s 105 of the Act, which the Tribunal set out and specifically noted the matters which it must consider in applying that test. The Tribunal noted that it requires a balancing exercise weighing the seriousness of the offending giving rise to the deportation order and any other offending with the compassionate factors favouring the appellant remaining in New Zealand having regard in particular to the s 105(2) matters.  The Tribunal described the facts and the evidence which was adduced for the appellant both from himself, from his wife, from his sister-in-law and from two psychologists.  The Tribunal specifically noted that it accepted the credibility of the appellant and his witnesses.  The Tribunal then went on to consider each of the factors in s 105(2) in detail.  It concluded that the separation from his wife and in particular his son which the appellant would suffer on deportation would be unjust or unduly harsh on his wife and child.

[7]      The Tribunal went on to consider the public interest, and in particular the risk of re-offending in relation to the nature of the offending.  The Tribunal discussed at length the test which is to be applied in determining the relationship between the offending and risk of re-offending and in particular it discussed the English approach in cases of this sort and compared that with the principles applicable here.  It noted that the factors relied upon in English cases of social cohesion and public confidence and deterrence and repugnance should be relevant also to the assessment of the public interest in New Zealand.

[8]      It  considered  in  some  length  the  risk  of  the  appellant  re-offending  and reached the conclusion which it set out in paragraph 139 of its decision which said:

[139]    We would regard a risk of re-offending of a similar nature (serious violence) at the low to moderate level (when influenced by alcohol) as too high for the public to bear. The appellant, while alcohol-free at present, is an alcoholic with a long history of alcohol abuse.  At this stage, we cannot be confident  that  he  will  forsake  alcohol  in  the  longer  term.    Indeed,  the evidence before us is that, at present, the risk of resorting to alcohol is relatively high.

And it concluded at paragraph 141:

[141]   The formulation of the appropriate level of risk of re-offending advanced by his own counsel, is that of a “well-founded confidence” he will not re-offend.  He fails on this test.  We have no well-founded confidence he will not re-offend.

[9]      It then considered other public interest factors which it did not consider of particular   significance   and   said   that   the   most   compelling   public   interest consideration in this case is the risk of re-offending which overrides family unity and favourable character assessment from members of the public who know him.  It then said at paragraph 145:

[145]    The Tribunal is not satisfied that it would not be contrary to the public interest for him to remain in New Zealand.  Indeed, we find it would be contrary to the public interest for him to reside in New Zealand.  This is because the risk of re-offending of a similar (and therefore serious violent) nature is higher than low.

It confirmed the deportation order.

[10]     The grounds of appeal set out in the notice of appeal originally filed were that the  English  jurisprudence  in  respect  of  deportation  to  which  the  Tribunal  had referred involves  a statutory environment  similar  to  New  Zealand  but  there  are significant differences between the two legal systems in particular the English jurisprudence is overlaid with European community human rights law.  The grounds of appeal also state that the Tribunal limits the consideration of public interest to the risk of re-offending and “social cohesion and public confidence” which are equated with deterrence and repugnance, which the appellant submits is not the correct focus in New Zealand.   It also submits that the public interest factors included a wider range of matters than were taken into account by the Tribunal including the public

interest in having the appellant’s son raised in a manner most conducive to his becoming the most valuable member of society it is possible for him to be.

[11]     The  respondent  has  lodged  a  cross  appeal  in  which  it  submits  that  the Tribunal erred in law in recognising the public’s interest in the appellant’s family remaining together and positive character references other than in the context of the risk of re-offending were relevant to the public interest under s 105 of the Act.

[12]     This appeal is limited to a question of law.  The ability of the appellant to appeal against a decision of the Tribunal is limited to a consideration of whether the determination is erroneous in point of law.  I have carefully considered the grounds of the appeal which were prepared when Mr Pulu was legally represented and have considered closely the decision of the Tribunal in the light of those grounds to determine whether there is a question of law underlying this appeal.  In particular I have carefully considered the Tribunal’s discussion, in paragraphs [111] to [114] of its decision, of the English authorities and the approach which they adopt.  I consider that no error of law is demonstrated in the Tribunal’s treatment of that aspect.

[13]     The other grounds of appeal essentially relate to the weighing exercise which was undertaken by the Tribunal.  Those do not involve a question of law.  The Court cannot interfere with the weighting given by the Tribunal to the various factors which it took into account, unless that is so plainly wrong as to amount to an error of law.   That cannot be said to be the case here.   I consider that the Tribunal was properly able to reach, as a matter of law, on the material before it, the decision which it reached.

[14]     As to the material which has been advanced before me this morning I have given careful consideration to the support letters from members of Mr Pulu’s family and also from his employer.   Those indicate a degree of support and in particular family support for Mr Pulu.  It is apparent that his family situation has changed from the situation which was considered by the Tribunal in that Mr Pulu is now apparently separated from his wife and has established another relationship and his present partner has written one of the letters of support.

[15]     The effect which deportation will have on Mr Pulu’s son is clear from the material which was before the Tribunal and is reinforced by the support letters which I  have  considered.    The  Tribunal,  as  Mr Scott  points  out,  reached  a  decision favourable to the appellant on that aspect in that it found that the separation would be unjust or unduly harsh on his son.   That situation is regrettable but it does not outweigh the public interest as the Tribunal has found.  Mr Pulu has in the support letters asked for a second chance.  It is not within the function of this Court to give a second chance.   I am limited by the factors which I can take into account, which involve questions of law.  The matters which are now raised do not give rise to a basis  of  challenge  in  law  to  the  Tribunal’s  decision.    For  that  reason  the  only decision which I can properly reach on the law is that the decision of the Tribunal must be upheld and the appeal must be dismissed.

[16]     The appeal is accordingly dismissed.  I add to the oral decision given by me in Court that that makes it unnecessary for me to address the cross-appeal.

“A D MacKenzie J”

Solicitors:         Crown Law, Wellington for respondent