Srikhongyot v Minister of Immigration HC Auckland CIV 2010-404-5998

[2011] NZHC 26

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-5998

IN THE MATTER OF     an appeal under s 104 of the Immigration

Act 1987

BETWEEN  KANOK SRIKHONGYOT Appellant

ANDMINISTER OF IMMIGRATION Respondent

Hearing:         4 February 2011 (Heard at Wellington)

Counsel:         R Brown for Appellant

R Kirkness for Respondent

Judgment:      4 February 2011

ORAL JUDGMENT OF MILLER J

[1]      Kanok Srikhongyot came to New Zealand in 2001, at the age of 12, because his mother had moved to this country and married a New Zealander after his father died.  He arrived on a visitor’s permit.  When his mother applied for residence under the Family Marriage category in 2002 she included him as a dependent.  He held a series of student permits until granted residence on 20 April 2004.

[2]      Regrettably, Mr Srikhongyot has numerous driving convictions, beginning in

2006.  For his fifth, sixth and seventh offences of driving whilst disqualified he was convicted on 6 April 2009 and sentenced to nine months imprisonment.

[3]      These offences put Mr Srikhongyot in peril of losing his residency.  Under s 91(1)(b) of the Immigration Act 1987 the Minister of Immigration might issue a

deportation order for a person convicted of two offences which attract a maximum

KANOK SRIKHONGYOT v MINISTER OF IMMIGRATION HC WN CIV 2010-404-5998 4 February 2011

sentence of imprisonment of 12 months or more within five years of being granted a residence permit. The Minister did so on 2 July 2009.

[4]      The Deportation Review Tribunal may quash a deportation order if satisfied that it would be unjust or unduly harsh to deport the applicant and, further, that it would not be contrary to the public interest to allow him to stay in New Zealand.[1]

The test sets a high threshold;  it recognises that an element of harshness commonly attends deportation, but more than that is necessary.

[1] Immigration Act 1987, s 105(1).

[5]      Under s 105(2) of the 1987 Act, which governs this appeal, the Tribunal considers the following factors:

105         Tribunal may quash deportation order

...

(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.

[6]      It is not in dispute that the Tribunal did consider the relevant factors and undertook the balancing exercise required of it.  Mr Srikhongyot was aged 22 at the

time of the Tribunal hearing on 23 August 2010.  It recognised in his favour that he

was the product of a marriage in which his father abused his mother.  He had been in New Zealand for his entire adolescence and early adulthood.   He had difficulty adjusting to New Zealand, but that was partly due to the trauma of his father’s death, his lack of friends, and his limited ability to speak English.  He left school after three years without qualifications and began working, but he has now become fluent and he has a good work ethic.   He has been in employment since he was 15.   He is socially isolated,  however,  with  no  relationships  apart  from  his  mother in  New Zealand and grandmother in Thailand.  Returning to Thailand would be difficult, as he would have limited work and study opportunities.   His knowledge of English would help, but he can no longer write Thai properly.

[7]      A psychologist’s report indicated that Mr Srikhongyot experiences stress and episodes of anxiety, is likely to display maladaptive behaviours  and  phobias,  is socially withdrawn, indecisive about major life issues and depressed, and has fragile self-esteem and limited social support.   He has difficulty managing anger, avoids taking responsibility and finds it difficult to empathise.  His belief system is one of entitlement and he is self-focused.  Separating him from his mother would contribute to his psychological difficulties.   The psychologist found his risk of reoffending moderate to high.

[8]      The Tribunal regarded the qualifying offending as serious, particularly when combined with his other offending, almost all of which involved driving or was connected to it.  It held:

We start with the offending of the appellant.  The three offences which gave rise to the deportation order warranted a nine-month custodial sentence.  The offending is less serious than the majority of offending considered by this Tribunal in appeals against deportation.  However, it can still be properly be viewed as serious when considered together with the other driving-related offences which include one offence of dangerous driving and another of careless driving both of which by their nature involve issues of public safety.

[9]      The Tribunal acknowledged that his mother would be adversely affected by his deportation.  She is very reliant on him since her New Zealand husband died in

2008.  She has diabetes, a stomach ulcer and intermittent pain in her hip.  He helps her around the house, does the shopping and communicates in English for her.  She is on the widow’s benefit but hopes to gain employment.  However, she has few links

in  New Zealand  and  prefers to  live in  New  Zealand for material  reasons  only. Accordingly, the Tribunal attached little weight to her dependence on her son in New Zealand and the impact of separation, should she choose to remain without him.

[10]   The Tribunal was satisfied that Mr Srikhongyot would be able to find employment in Thailand, although he would have some difficulty re-establishing himself.   His mother could accompany him.   His psychological conditions do not indicate  that  he  should  remain  in  New  Zealand,  where  he  is  socially  isolated; indeed, returning to Thailand may improve matters.  The Tribunal was satisfied that it would not be unduly harsh or unjust to deport him.

[11]     Turning to the public interest, the Tribunal differed from the psychologist’s assessment that the risk of reoffending was relatively moderate to high.   He no longer has a car, which reduces his risk, and his mother is now aware that he cannot drive so is unlikely to place pressure on him to do so.   He did not previously understand the seriousness of the Court orders, but having spent time in prison and facing deportation, he now does.   The Tribunal was satisfied that his risk of reoffending was small.  That being so, the risk was a reasonable one for the public to bear.   It would not be contrary to the public interest for him to remain in New Zealand.

[12]     On appeal Mr Srikhongyot’s essential complaint is that his offending was not especially serious but the impact of deportation on him and his mother is.  In short, the Tribunal erred when balancing the considerations in s 105(2).  The decision is a stern one.  But an appeal to this Court under s 117 of the 1987 Act may be brought only on a point of law. Those framed by counsel are:

1)That  the  Tribunal  gave  insufficient  regard  to  the  nature  of  the offences.      The   finding   that   the   offending   was   serious   was incompatible with the finding that it would not be contrary to the public interest for him to remain in New Zealand;

2)That the Tribunal failed to acknowledge the impact that separation of mother  and  son  would  have  on  both  of  them;    in  particular,  the

Tribunal’s  order  effectively  requires  that  his  mother  return  to

Thailand.

[13]     While acknowledging that the factual findings of the Tribunal are not open to challenge, Mr Brown correctly submits that the Court may engage in  a limited incursion  into  the  facts  where  the  Tribunal  has  come  to  a  conclusion  without evidence or failed to draw from primary facts the only inference that was reasonably open.  He submits that there was no reasonable basis in evidence for the conclusion that the offending was serious, since the Tribunal also found that the appellant does not pose an undue risk to society.

[14]     In Bryson v Three Foot Six Ltd the Supreme Court held:[2]

[2] Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25]-[26].

An appeal cannot however be said to be on a question of law where the fact- finding court has merely applied law which it has correctly understood to the facts of an individual case. It is for the court to weigh the relevant facts in the light of the applicable law. Provided that the court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact- finding court, unless it is clearly insupportable.

An ultimate conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law; proper application of the law requires a different answer. That will be the position only in the rare case in which there has been … a state of affairs “in which there is no evidence to support the determination” or “one in which the evidence is inconsistent with and contradictory of the determination” or “one in which the true and only reasonable conclusion contradicts the determination”. (Footnotes removed)

[15]     The respondent maintains that the points raised by Mr Brown are not really points of law at all. The appellant’s case falls far short of showing that the Tribunal’s findings were insupportable.  The appeal is in substance a challenge to the Tribunal’s factual findings.

[16]     Mr Brown’s first point is that the Tribunal’s finding that it is not contrary to the public interest that Mr Srikhongyot remain in New Zealand demonstrates that the Tribunal was wrong to characterise his offending as serious.  The latter conclusion,

counsel would have it, is illogical and insupportable in light of the former.

[17]     I do not agree.  To begin with, the central question is not whether the two conclusions are inconsistent but whether one of them, the finding that the offending was serious, is clearly insupportable on the evidence.  Manifestly, it was available to the Tribunal.   The qualifying offences were his fifth, sixth and seventh of driving while disqualified, an offence affecting public safety.   The history of offending exhibited antisocial attitudes.  The offences were also committed over a period of six months and the last two were committed while he was on bail. The sentencing Judge had found that the appellant minimised his offending and could give no real reason for ignoring his disqualification.  These facts collectively establish that the nature of the offences was serious.  It is true that, as the Tribunal said, many deportation cases stem from worse offending, but the short answer is that Mr Srikhongyot was eligible for deportation under the legislation.  The Tribunal recognised that he is not a violent person or a drug user.

[18]     In addition, the Tribunal correctly took into account his other offending.  He has 12 previous convictions.  They began with failure to comply with a prohibition on  driving  and  include  one  conviction  for  dangerous  driving.    There  is  one conviction for being in a yard unlawfully, but it seems he was trying to escape apprehension for another driving offence at the time.

[19]     It is true that one of the reasons why offending of this kind is regarded as serious is that it is often associated with a high risk of reoffending.   That is one reason why the sentencing Judge dwelt on the history of offending.  (The other is the antisocial attitude that Mr Srikhongyot’s determined recidivism demonstrated.)  To that limited extent, the Tribunal’s conclusion that the risk of reoffending is low does mitigate the seriousness of the offending.  I add in the appellant’s favour that it was open to the Tribunal to recognise his response to imprisonment when assessing the qualifying offending for which he earned that sentence.  Its perspective is not that of the sentencer;  it assesses the offending later, and for a different purpose.  Even so, the conclusion that the offending was serious was amply supported on the evidence.

[20]     Further, there is no inconsistency between the two conclusions.   A person who has committed serious offences in the past may nonetheless pose a low risk of reoffending in the future.  That is what the Tribunal found.  If there were any scope

to  challenge  that  conclusion,  it  would  lie  in  the  Tribunal’s  decision  to  accept Mr Srikhongyot’s  evidence  in  preference  to   the  psychological  report,  which plausibly pointed to a significantly greater risk of reoffending.

[21]     For  these  reasons,  the  Tribunal’s  conclusions  were  available.    The  first ground of appeal accordingly raises no question of law.

[22]     Turning to the second ground, the Tribunal took into account the effect of deportation on his mother.   She is very dependent on him, given her very limited English, her health, and her lack of social connection in New Zealand.   It also recognised that she had no compelling reason to remain in New Zealand should be be deported other than the material advantages of the New Zealand lifestyle.   Its factual findings were open to it on the evidence.

[23]     Accordingly, Mr Brown argued that the Tribunal failed to consider the effect of Mr Srikhongyot’s deportation on his mother’s status as a permanent resident.  Its decision was tantamount to forcing her to leave New Zealand permanently, although she is an innocent party.  Counsel argued that this case is closely analogous to Al- Hosan v Deportation Review Tribunal.[3]    That case was an appeal on humanitarian grounds under s 22 of the Act against revocation of a residence permit.  The High

[3] Al-Hosan v Deportation Review Tribunal HC Auckland CIV 2006-404-3923; Minister ofImmigration v Al Hosan [2008] NZCA 462, [2009] NZAR 259.

Court and Court of Appeal both held that the Tribunal applied the wrong test.  In the High Court, Harrison J also held that the Tribunal had not undertaken the correct balancing test, which included the interests of the family unit.  However, the Court of Appeal found that the weight to be attached to the interests of other family members was  for the Tribunal  notwithstanding that  they were  entitled  to  remain  in  New Zealand but as a practical matter might have to leave.   The Court adopted a description of the Tribunal’s task given by Baroness Hale in Naidike v Attorney-

General of Trinidad and Tobago:[4]

[4] Naidike v Attorney-General of Trinidad and Tobago [2005] 1 AC 538 (PC) at [75].

We found the description of the task to be performed given by Baroness Hale in Naidike v Attorney-General of Trinidad and Tobago [2005] 1 AC 538 (PC) very helpful. Having emphasised at [68] the importance that the rights and interests of children are taken seriously by parties to the Convention on the

Rights of the Child, she pointed to the substantial body of case law under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms dealing with the conflict between the right of the State to exclude or deport non-citizens and the right to respect for family life with citizen family members who have the right to remain. She described the task of the decision-maker in these circumstances in these terms (at [75]):

The decision-maker has to balance the reason for the expulsion against the impact upon the other family members, including any alternative means of preserving family ties. The reason for deporting may be comparatively weak, while the impact on the rest of the family, either of being left behind or of being forced to leave their own country, may be severe. On the other hand, the reason for deporting may be very strong or it may be entirely reasonable to expect the other family members to leave with the person deported.

[24]     In the present context the impact on family, including those entitled to remain in New Zealand, is a relevant consideration under s 105(2), but it is only one of a number.  The weight to be attached to it is for the Tribunal;  the legislation does not indicate that the interests of family members are to prevail over other considerations where they are entitled to residency.

[25]     That being so, the second ground of appeal also raises no question of law. [26]         The appeal is dismissed.

Miller J

Solicitors:

Crown Law, Wellington for Respondent