Singh (Shivdev) v Chief Executive of the Ministry of Business, Innovation and Employment
[2018] NZHC 972
•7 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-002782
[2018] NZHC 972
UNDER the Judicature Amendment Act 1972 IN THE MATTER
of ss 207(1) and 249(6) of the Immigration Act 2009 in a determination of the
Immigration and Protection Tribunal (IPT503572)
BETWEEN
SHIVDEV SINGH
Applicant
AND
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT
First RespondentTHE IMMIGRATION AND PROTECTION TRIBUNAL
Second RespondentAND Continued over…..
Hearing: 26 April 2018 Appearances:
R Chaudhry for the Applicant
M Mortimer for the Respondents
Judgment:
7 May 2018
JUDGMENT OF MUIR J
This judgment was delivered by me on Monday 7 May 2018 at 4.00 pm Pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:…………………………
Counsel/Solicitors:
R Chaudhry, Chaudhry Legal, Manukau M Mortimer, Meredith Connell, Auckland
SINGH v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2018] NZHC 972 [7 May 2018]
CIV -2017-404-002784
BETWEEN SHIVDEV SINGH
Applicant
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
Respondent
Introduction
[1] The applicant, Mr Singh, applies for leave to appeal and leave to commence judicial review proceedings in respect of a decision of the Immigration and Protection Tribunal (IPT)1 declining an appeal against liability for deportation on humanitarian grounds.2
[2] Mr Singh presents as a broadly sympathetic applicant who has been in New Zealand for approximately five years on, initially, a student visa and, latterly, an employer assisted work visa. His deportation liability arises out of significant changes made by his employer to the job description in respect of which his work visa was issued.
[3] At the forefront of his submissions is that, in declining to recognise exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for him to be deported, the IPT did not give adequate emphasis to Mr Singh’s innocence in terms of the circumstances he found himself in.
[4] The first respondent opposes the applications. The second respondent abides the decision of the Court.
Background
[5] The applicant is a 25-year-old Indian Sikh, born in Punjab where his parents and four siblings still reside. His father is an electrician.
[6] Mr Singh first arrived in New Zealand in November 2002 on a Student Visa. His family supported his studies and living and related expenses to the extent of
$25,000 from retirement savings and borrowings. He studied for a National Diploma in Business.
[7] In mid-2014 he secured an Open Work Post Study Visa in Auckland and in November 2015 was granted a two-year Employer Assisted Work Visa. The employer
1 [2017] NZIPT 503572. The “Tribunal decision”.
2 Immigration Act 2009. s 207.
concerned was Anchor Milk Canterbury Limited and in its terms the Visa provided that:
The holder may only work as Customer Relationship Co-ordinator for Anchor Milk Canterbury Limited in Christchurch.
[8] Employment was pursuant to an individual employment agreement dated 14 September 2015. Attached to the agreement as Appendix B is a job description. The role was described as “Customer Relationship Co-ordinator”, reporting to the Customer Service Manager. In its terms, it was a middle level office based job with a focus on account management of key customers. Specific duties included assisting the development of marketing plans and business development initiatives, assisting the development of the company’s customer relations policy, assistance in development of training modules and in provision of training to all staff with customer interfaces and assistance with development of customer feedback processes.
[9]The job description was referenced in cl 2.4 as follows:
A job description is attached (Appendix B). The company may, after consultation with you, amend your job description and the duties associated with your position. You will also be required to perform all other duties which are reasonably incidental to your position as directed by the company.
[10] For approximately a year Mr Singh’s duties with the company were as detailed in his job description. However, in or about December 2016, he was advised by his employer that, as a result of recent business acquisitions, there would be a need to, at least temporarily, restructure some of the administrative jobs within the company. He was told that it would be necessary for him to work as a driver for approximately three quarters of the time that he was employed. Accordingly, and from approximately January 2017, Mr Singh worked up to 28 hours per week as a driver with the balance of his time spent doing what the IPT described as “some administration work”.3
[11] Neither Mr Singh nor his employer informed Immigration New Zealand (INZ) of this change in job description.
3 Tribunal decision at [12].
[12] On 26 July 2017, Immigration Officers visited the premises of the applicant’s employer. They were investigating another work visa holder in the company, referred to in the IPT’s decision as Mr X, who held the position of Customer Service Manager, being the person to whom Mr Singh reported. The Officers identified that Mr X was working primarily as a driver delivering company product to dairies and service stations. Preliminary inquiries indicated that this was also likely to be the case with Mr Singh. An interview was arranged with Mr Singh on 15 August 2017. He was candid and forthright. He explained that since approximately January 2017 he had been driving trucks at his employer’s direction, that he was doing so between 24 and 28 hours per week, that he understood this to be temporary and that in due course he would be reinstated to his Customer Relationship Co-ordinator role.
[13] At the conclusion of the interview, Mr Singh was advised that INZ intended to serve him with a Deportation Liability Notice (DLN), based on breach of the conditions of his work visa. The DLN was then served.
Appeal to Immigration and Protection Tribunal
[14] The applicant appealed the DLN to the IPT. He did so on the grounds set out in s 207 of the Immigration Act 2009, which provides:
207 Grounds for determining humanitarian appeal
(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.
[15] In its decision dated 26 October 2017 the IPT set out the relevant statutory test and then referred to the Supreme Court’s discussion in Ye v Minister of Immigration.4 Relying on that decision it said that the circumstances identified in s 207(1)(a) must be “well outside the normal run of circumstances” and while they did not need to be unique or very rare did have to be “truly an exception rather than the rule”. It further
4 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].
said, again relying on Ye, that for such circumstances to make it unjust or unduly harsh for the appellant to be deported the appellant would need to show a level of harshness which represented more than a “generic concern” and was “beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system”.
[16] The IPT then identified the key components to the applicant’s case, namely, that he had been obliged to carry out the reassigned tasks directed by his employer, that he had been in New Zealand for five years, regarded it as his home, had not broken any laws and was a hard worker for whom deportation would mean that his entire future was “spoiled”.
[17] In its assessment, the IPT said the liability for deportation arose because the applicant was working in breach of his temporary work visa conditions. It said that it was ultimately Mr Singh’s responsibility to inform INZ of any changes and that he had not done so. It said, like all individuals who are granted temporary work visas, he had no guarantee of continued residency unless he complied with immigration instructions. It acknowledged that he was now settled in this country with friends and social connections but said that this was a circumstance shared by many individuals who come to New Zealand to study and work and did not raise exceptional humanitarian concerns. It said that, because his parents and siblings continued to live in India, it was reasonable to expect Mr Singh to be able to access help and support from his family to enable resettlement in that country and that he now had the benefit of completing two courses of study in New Zealand and gaining work experience and skills which would no doubt assist his future employment prospects.
[18] It concluded that while some disruption to his life was inevitable when he returned to India, the circumstances in which he found himself in could not be characterised as “exceptional”. Citing the High Court decision in Minister of Immigration v Jooste,5 it said that the high threshold for a finding of exceptional circumstances of a humanitarian nature was not satisfied by “circumstances that are
5 Minister of Immigration v Jooste [2014] NZHC 2882, [2015] 2 NZLR 765 at [45].
more than simply routine” or “generally concerning circumstances” and the test could not be equated with compassionate factors.
[19] Accordingly, the IPT found that there were no exceptional circumstances of a humanitarian nature and that it was, in that context, unnecessary for it to consider either the “unjust or unduly harsh” or “public interest” stages of the inquiry.
Statutory framework relating to current applications
[20] This is in familiar terms. The application for leave to appeal is governed by s 245, which relevantly provides:
245 Appeal to High Court on point of law by leave
(1)Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the lave of the Court of Appeal), appeal to the High Court on that question of law.
…
(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.
[21] Applications for leave to bring judicial review proceedings are governed by s 249. Relevantly, subsection (6) provides:
(6)In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to –
(a)whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and
(b)if paragraph (a) applies, whether those 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.
Mr Singh’s grounds
[22] In relation to the application for leave to appeal, Mr Singh alleges the following:
(a)The IPT erred in law in holding that his circumstances were not significant factors or unduly limited what can be considered exceptional circumstances of a humanitarian nature, including but not limited to “the highly prejudicial effect of the relocation to India of the applicant after residing five years in New Zealand”.
(b)The IPT erred in law when it failed to apply and/or misapplied the correct test of exceptional circumstances.
(c)The IPT applied a generic test for exceptional circumstances rather than considering the appellants particular circumstances and failed properly to consider the effects of deportation.
(d)The IPT failed to and/or did not properly consider all the circumstances of the appellant/applicant’s case.
[23] In relation to the application for leave to bring judicial review proceedings the grounds are that:
(a)The IPT failed to take into account significant factors which could be considered as exceptional circumstances of a humanitarian nature, including the highly prejudicial effect of relocation to India after five years in New Zealand.
(b)The IPT made findings about the applicant’s ability to relocate to Indica which were not supported by the evidence.
(c)It failed to and/or did not consider all the circumstances of his case.
Principles in relation to leave applications generally
[24] With one exception, these are relatively well settled. Leave will be granted where an appeal or review raises a seriously arguable question of law or issue for review which is of general public importance or where for any other reason it should be considered by the High Court. The exception relates to whether a more expansive approach is justified when assessing the “any other reason” category in applications for judicial review.
[25] In the appeal context this phrase has been interpreted as requiring “an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the IPT’s decision standing”.6 Several earlier High Court decisions took the same approach to construction of the phrase within the s 249(6)(b) context but this was questioned by Palmer J in R M v Immigration and Protection Tribunal, with his Honour indicating that constitutional and New Zealand Bill of Rights Act 1990 considerations justified a slightly more expansive position, which could tip the balance in marginal cases.7 A number of subsequent High Court decisions have endorsed that approach,8 including my own in BY (China) v Refugee and Probation Officer.9 I do not see that debate as material in the context of the present case.
[26] In respect of both applications under ss 245 and 249, this Court has previously emphasised that the introduction of a leave requirement indicates a deliberate intention by Parliament to limit appeals and reviews of IPT decisions.10 To that end, in assessing whether an issue is one of general or public importance or for any other reason should be submitted to the High Court, the question is similar to that applying to second appeals in respect of which the Court of Appeal observed in Waller v Hider:11
6 Machida v Chief Excecutive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721.
7 R M v Immigration and Protection Tribunal [2016] NZHC 735 at [51].
8 See Kumar v Minister of Immigration [2016] NZHC 1593 at [39]–[40]; Hu v Immigration and Protection Tribunal [2016] NZHC 1661 at [17]–[19]; AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at [32]–[35]; Kartseva v Immigration and Protection Tribunal [2017] NZHC 97 at [18]–[20].
9 BY (China) v Refugee and Protection Officer [2016] NZHC 2244 at [39]–[40].
10 Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [6]; SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [5]; Guo v Immigration and Protection Tribunal [2014] NZHC 802 at [52]; DO v Immigration and Protection Tribunal [2016] NZHC 3158 at [38].
11 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.
[27] If the application has little or no prospect of success it follows that the issues are of limited general or public importance. This militates against leave.12 Moreover, because leave is only available in respect of questions of law, factual findings will be immune from challenge unless of such magnitude that they constitute an error of law. In Taafi v Minister of Immigration Kos J (as he was then), identified the triple hurdle faced by applicants in that context, being a requirement to show, firstly, a seriously arguable case that the factual findings of the IPT were incorrect, secondly that the factual errors were so grave as to constitute errors of law and thirdly that the question of law was one of genuine public importance.13
[28] Challenges to the weight which the IPT accords to aspects of the evidence before it will seldom amount to an error of law. As Katz J said in Nabou v Minister of Immigration:14
Judges have repeatedly warned against minute and detailed analysis of the facts or separate parts of the decision in an attempt to expose defects or to identify some error or imperfection which can be elevated into an error of law. The decision must be looked at as a whole. Findings of fact themselves cannot be impugned unless the factual errors were of such significance, extent and nature that they would render the decision legally flawed. Value judgments made by the Tribunal in balancing and weighing the competing factors arising in any given case will seldom amount to an error of law.
12 Allada v Immigration and Protection Tribunal [2014] NZHC 953, [2014] NZAR 880 at [36] and
Rupal v Immigration and Protection Tribunal [2018] NZHC 422 at [33].
13 Taafi v Minister of Immigration [2013] NZAR 1037 at [19].
14 Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [9], cited in AB v Refugee and Protection Officer [2017] NZHC 1424 at [33]; AH v Immigration and Protection Tribunal [2017] NZHC 1880 at [29]. See also Guo v Immigration and Protection Tribunal [2014] NZHC 804 at [55], [79] and [105]; De Borja v Removal Review Authority [1999] NZAR 471 (HC) at 476; and Minister of Immigration v Zhang [2013] NZCA 487, [2014] NZAR 88 at [34], where Harrison J noted that “the weight to be given to particular factors was solely within the Tribunal’s statutory function”.
Discussion
Application for leave to appeal
[29] At the outset, it is necessary to emphasise that the Immigration Act does not provide for appeals in respect of the merits (or underlying reasons for) a DLN based on breach of conditions of a temporary work visa. The sole ground of appeal is the existence of exceptional circumstances of a humanitarian nature pursuant to s 207.
[30] In Li v Chief Executive of the Ministry of Business, Innovation and Employment, Palmer J reviewed the position in detail and concluded that “Humanitarian appeals do not fill the gap”.15 In doing so he followed three previous High Court decisions to like effect.16
[31] This position is of particular relevance given the prominence which Mr Chaudhry places on the fact that the breach of the temporary work visa occurred as a result of employer direction. He says this of itself makes Mr Singh’s position exceptional.
[32] I accept, as Palmer J did in Li, that the Supreme Court’s decision in Guo v Immigration and Protection Tribunal recognises that an assessment of whether a deportation is “unjust or unduly harsh is to be made in the light of the reasons why the appellant is liable for deportation”.17 I accept also that the Supreme Court recognised that eligibility for deportation is usually associated with fault on the part of the person to be deported, most often the commission of offences or misrepresentations on the application for residency, and that where the liability occurred “without any fault” it could “fairly be said that the circumstances in relation to them were “exceptional”.18
15 Li v Chief Executive of the Ministry of Business, Innovation and Employment [2017] NZHC 2977 at [19].
16 L v Removal Review Authority HC Wellington CIV 2005-485-1601, 7 December 2005; Kartseva v Chief Executive of the Ministry of Business, Innovation and Employment [2017] NZHC 97 at
[30] and Machida v Immigration and Protection Tribunal [2015] NZHC 2649 at [67].
17 Guo v Immigration and Protection Tribunal [2015] NZSC 132, [2016] 1 NZLR 248 at [9].
18 At [10].
[33] However, as the Supreme Court further said, the “primary focus” of humanitarian appeals is on the personal circumstances of the person liable to deportation and of his or her immediate family who may be affected as a result.19
[34] In the present case I would not go so far as to say that Mr Singh’s liability for deportation occurred without “any fault” on his part. Although the primary responsibility for the circumstances he found himself in must be laid at the foot of his employer, nevertheless Mr Singh was aware, as a result of the terms of his work visa, that he “may only work as a Customer Relationship Co-ordinator”. I agree with the IPT that it was ultimately his responsibility to inform INZ of the changes to his employment, particularly so when the suggested short-term reassignment was still in place many months later. Were it otherwise, the integrity of immigration processes could be substantially undermined by nominal job offers and subsequent re- assignment.
[35] Nor do I consider that position any different for the fact that Mr Singh’s employment contract permitted amendments to his job description, a point emphasised by Mr Chaudhry. The permit specifically authorised work as a “Customer Relationship Co-ordinator”. At the point Mr Singh’s duties were substantially redefined to be those of driver, he was non-compliant with conditions, even if on a broad reading of the contract, the re-assignment was not itself unlawful in an employment law sense. Moreover, the ability to alter the job description arose “after consultation with you”. There was no evidence, either before the IPT or on the current applications that, during the consultation process, Mr Singh identified that the proposed reassignment would likely place him in breach of his work visa.
[36] I come to a similar conclusion in respect of Mr Chaudhry’s further point that cl 2.4 of the Employment Agreement provided that Mr Singh was “required to perform all other duties which are reasonably incidental to your position, as directed by the Company”. The change from customer relationship co-ordinator to (substantially) driver went well beyond the addition or substitution of tasks “reasonably incidental”.
19 At [9].
[37] Although I do not wish to overstate the extent to which Mr Singh was at fault, particularly given his possible intention to pursue an application to the Minister under s 61 of the Act, nevertheless the case is in a different category to Guo where the applicants were children who were obviously in no way responsible for the misrepresentations of their drug dealing father. In summary, the case is not one where Mr Singh is “without any fault”, although as I have indicated I consider his employer to have significantly greater responsibility for the events that occurred than Mr Singh himself.
[38] Against that background, the circumstances in which the DLN came to be issued were (at most) one factor to be considered by the IPT within an overall context which focused primarily on the humanitarian consequences of Mr Singh’s deportation and in which the weight given to individual factors were for the IPT alone.20 And it is clear from the IPT decision that such circumstances were indeed considered by it. 21
[39] Nor can there be any criticism of the IPT in terms of how it articulated the relevant test under s 207. That test was authoritatively established in Ye v Minister of Immigration.22 It involves a sequential approach in terms of which:
(a)There must be:
(i)exceptional circumstances (a “high threshold involving questions of fact and degree”, well outside the normal run of circumstances);
(ii)of a humanitarian nature;
20 Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [9], cited in AB v Refugee and Protection Officer [2017] NZHC 1424 at [33]; AH v Immigration and Protection Tribunal [2017] NZHC 1880 at [29]. See also Guo v Immigration and Protection Tribunal [2014] NZHC 804 at [55], [79] and [105]; De Borja v Removal Review Authority [1999] NZAR 471 (HC) at 476; and Minister of Immigration v Zhang [2013] NZCA 487, [2014] NZAR 88 at [34], where Harrison J noted that “the weight to be given to particular factors was solely within the Tribunal’s statutory function”.
21 At [19] and [22].
22 Ye v Minister of Immigration [2009] NZSC 76; [2010] 1 NZLR 104 at [34].
(iii)that would make it unjust or unduly harsh for a person to be deported from New Zealand; and
(b)The IPT must then be satisfied that it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
[40] The test has been held to be a difficult one to meet,23 and “deliberately set at a high level”.24 It is fairly set out in paras [15] and [16] of the IPT’s decision.
[41] This then is a case where Mr Singh is obliged to argue that the IPT has misapplied existing legal principles to the particular facts. Although such an argument technically involves potential errors of law, the effect of s 245 is, as Duffy J observed in LMN v Immigration and Protection Tribunal, “… to grant the IPT authority to misapply settled law to the facts”.25 Just as with factual errors which are insufficiently grave to qualify as errors of law,26 no appeal is therefore available.
[42] However, for completeness I add that I do not consider there to be an error in the IPT’s application of the principles in Ye to the facts. The IPT noted:
(a)the length of time the applicant had been in New Zealand (five years);27
(b)that he had completed his courses of study in New Zealand;28
(c)that he was settled here, committed to the country as his future home, and had friends and social connections;29
23 Zanzoul v Removal Review Authority HC Wellington CIV-2007-485-1333, 9 June 2009 at [150].
24 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [32].
25 LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [2]. Cited with approval in
SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [6]–[7].
26 Both the applicant and first respondent’s submissions proceeded on a basis which assumed I would need to identify an error of fact with the necessary level of gravity. I do not see the case appropriately analysed in that way. The facts are uncontentious and were appropriately identified by the Tribunal. It is the application of the established test to the facts which is effectively challenged by Mr Singh.
27 Tribunal decision at [22].
28 Tribunal decision at [24].
29 Tribunal decision at [23].
(d)that he considered he would have fewer opportunities if he returned to India;30 and
(e)the circumstances in which the DLN came to be issued.31
[43]However, it also noted:
(a)The nature of temporary visas is that they do not offer a permanent guarantee of being able to remain in New Zealand.32
(b)The applicant had lived in India for the first 20 of his 25 years.
(c)He had family in India which it was reasonable to expect would assist him in his resettlement in India.33
(d)There was no evidence the applicant had family or dependents in New Zealand, or a health condition, or that there were any other considerations which raised “substantive humanitarian concerns”.34
[44] I agree with the first respondent’s submission that when all of these features of the applicant’s circumstances came to be considered “they simply did not rise to the requisite level of exceptionality”. I accept in that context that many people develop connections to New Zealand while studying or employed here. Many have studied with the support of their overseas families. Many who have worked on visas lose their job through no fault of their own (e.g. redundancies). Mr Singh’s case was simply not “well outside the normal run of circumstances” as the test in Ye required it to be.35
[45] In the result, I do not consider there to be any seriously arguable case that the IPT misapplied the relevant test to the facts of the case, even if, contrary to LMN,36
30 Tribunal decision at [23].
31 Tribunal decision at [22].
32 Tribunal decision at [23].
33 Tribunal decision at [24].
34 Tribunal decision at [23].
35 Ye v Minister of Immigration [2009] NZSC 76; [2010] 1 NZLR 104.
36 LMN v Immigration and Protection Tribunal [2013] NZHC 2077.
such is recognised as sufficient error of law to animate the jurisdiction under s 245. It follows that leave to appeal is unavailable.
Application for leave to bring Judicial Review
[46]This application must in my view likewise be declined.
[47] Mr Singh’s first difficulty is the mandate in s 249(6)(a) to advance his claims by way of appeal where possible.37 In CV v Immigration and Protection Tribunal it was observed that there will be few instances where a matter could be raised on judicial review but not on appeal.38 Certainly in my view both the first and third grounds of proposed review fall into this category.39
[48] Moreover, none of the three grounds in my view disclose a seriously arguable case.
[49] The first ground alleges that in assessing what are exceptional circumstances the IPT did not take into account the highly prejudicial effect of Mr Singh’s relocation to India after five years in New Zealand. This is essentially a challenge to the weight the IPT placed on the consequences of his return. A challenge to the weight a decision maker places on particular facts is not an available ground for judicial review unless the overall outcome was unreasonable. As Palmer J stated in AI (Somalia) v Immigration and Protection Tribunal:40
[49] Challenging the amount of weight placed on various factors by a decision maker is less than propitious of a successful judicial review. It is a tacit acknowledgment that the decision maker took a relevant consideration into account. It usually signals disagreement about the outcome of the decision without being able to impugn it.
[50] I accept the first respondent’s submission that the IPT took the consequences of relocation into account when it stated at para [23] that it acknowledged the applicant
37 The reason for this was summarised in Songmia v Minister of Immigration [2013] NZHC 3233 at [12]–[13].
38 CV v Immigration and Protection Tribunal [2015] NZHC 510, [2015] NZAR 594 at [38]. A similar observation was made in Allada v Immigration and Protection Tribunal [2014] NZHC 953, [2014] NZAR 880 at [32].
39 Refer to [22] above.
40 AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at [49].
had been in New Zealand for five years and now “feels somewhat settled here”, and in [25] where it said, “It is inevitable there will be some disruption to the appellant when he returns to India”.
[51] These issues were clearly relevant and appropriately considered. The IPT’s conclusion that they did not of themselves, or in combination with other factors, meet the requirement of exceptional circumstances of a humanitarian nature is not a reviewable error. Clearly also the decision was not unreasonable in an administrative law sense.
[52] Mr Singh’s second proposed ground of judicial review alleges that the IPT made unsupported factual findings about his family’s ability to support him if he returned to India. I accept, in that respect, the first respondent’s submissions in terms:
(a)the IPT did not state these as factual certainties but simply noted it was “reasonable to expect” support to help the applicant resettle;41
(b)such an expectation was reasonable in the context that the applicant had immediate family (parents and siblings) in India (as identified in his appeal);
(c)the IPT’s “expectation” was consistent with the applicant’s evidence in the present proceedings where he states that his tuition fees and living allowances in New Zealand were supported by his family to the extent of $25,000 and that his 23 year old brother and 20 year old sister continue to reside with his parents. To that extent criticism of the expectation was divorced from the reality of the applicant’s circumstances; and
(d)such expectation was one of many and not identified by the IPT as a key factor in finding that exceptional humanitarian circumstances did not exist.
41 Tribunal decision [24].
[53] Mr Singh’s third ground of proposed review is that there was a failure to consider properly all the circumstances of his case. Mr Chaudhry’s written submissions alleged that the IPT failed to take into account that he would earn lower wages in India and that this would affect his ability to repay his parents.
[54] It is not clear whether this claim was ever put to the IPT but it did note that Mr Singh considered his future would be “spoiled” if he had to return to India as the same opportunities would not be available to him there. 42 This must be taken as a reference to employment opportunities and income potential.
[55] I accept also the first respondent’s submission that, even if this matter was advanced before the IPT and overlooked by it, it is not something that could ultimately have affected the outcome as it will often be the case that persons returning to their countries of origin will face fewer or lower paid employment opportunities. Again, the situation was not one “well outside the normal run of circumstances”.
[56] Moreover, if I am wrong in any of these conclusions the grounds advanced are particular to Mr Singh and could not be said to raise matters of a general or public importance or be such as otherwise justifying a grant of leave.
Result
[57] I decline the applicant’s applications for leave to appeal and bring judicial review proceedings.
Costs
[58] The first respondent seeks costs. Should it maintain that position despite the observations in paras [2], [12], [32] and [35] of this judgment then costs may be settled by the Registrar on a 2B basis.
Muir J
42 Tribunal decision [23].
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20
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