T (CA3/2016) v Minister of Immigration
[2023] NZHC 2504
•6 September 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2023-419-0028
[2023] NZHC 2504
UNDER Section 249 of the Immigration Act 2009 and the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for leave to review a
decision of the Immigration and Protection Tribunal
BETWEEN
T (CA3/2016)
Applicant
AND
THE MINISTER OF IMMIGRATION
First respondent
THE IMMIGRATION AND PROTECTION TRIBUNAL
Second respondent
Hearing: 29 August 2023 Appearances:
LIE Tothill for applicant
J L Schwarcz for first respondent Second respondent excused as abiding
Date of judgment:
6 September 2023
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 6 September 2023 at 4.00pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Solicitors:
Dixon and Co Lawyers, Auckland
Luke Cunningham Clere, Wellington Crown Law, Wellington
T (CA3/2016) v THE MINISTER OF IMMIGRATION [2023] NZHC 2504 [6 September 2023]
[1] T,1 an Indian citizen and New Zealand resident, seeks leave for judicial review of the Immigration and Protection Tribunal’s 18 January 2023 final determination to decline his appeal against liability for deportation.2
Background
[2] T’s liability for deportation arose under s 161(1)(a)(iii) of the Immigration Act 2009 as a consequence of his six convictions for sexual and other violent offending in 2014.3
[3] Section 206(1)(c) entitled T to appeal to the Tribunal on humanitarian grounds against his liability for deportation. Such appeal must be allowed “only where [the Tribunal] is satisfied”:4
(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.
[4]The Tribunal found:5
[T]here are exceptional humanitarian circumstances in the appellant’s case on account of his prospects in India, living in New Zealand for 12 years, and the best interests of his nine-year-old New Zealand-citizen son. However, in light of the seriousness of his offending, the Tribunal does not find that it is unjust or unduly harsh for the appellant to be deported nor that his continued presence meets the public interest aspect of the statutory test.
and declined his appeal.6
1 I have anonymised the applicant’s name — not in continuation of any status under s 151 of the Immigration Act 2009, as counsel agree is not available here — but to maintain the Court of Appeal’s anonymisation of his name as set out at n 3 below.
2 NR (India) v Minister of Immigration [2023] NZIPT 600718.
3 T (CA3/2016) v R [2017] NZCA 626; T (CA3/2016) v R [2018] NZCA 107.
4 Immigration Act 2009, s 207(1).
5 NR (India) v Minister of Immigration, above n 2, at [3] (and [128]).
6 At [129].
Approach to leave
[5] Under the Immigration Act, leave is required both to appeal against or to obtain judicial review of Tribunal decisions, to be sought within 28 days after their notification,7 and is available respectively if the question:8
… 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
or:9
… would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and … 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.
Appeal thus is the primary means for challenging Tribunal decisions, and presents a determinedly high threshold.10
[6] Review nonetheless remains available.11 The subject of judicial review is “the exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power”.12 ‘Statutory power’ is defined.13 On judicial review, this Court assesses if the power is exercised “in accordance with law, fairly and reasonably”.14 The latter words are terms of art in judicial review, respectively broadly meaning procedurally regular and substantively rational. If not, there only is limited relief the Court may grant, and it generally is discretionary.15
[7] But in either case, leave only is obtainable on “stringent” criteria: (a) qualifying subject matter; (b) of importance beyond the particular case; or (c) otherwise
7 Immigration Act 2009, ss 245(2) and 247(1).
8 Section 245(3).
9 Section 249(6).
10 See, for example, Smith v Minister of Immigration [2020] NZHC 1510 at [34]–[41] and the cases cited there.
11 H v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433 at [78].
12 Judicial Review Procedure Act 2016, s 4.
13 Section 5.
14 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552.
15 Judicial Review Procedure Act, ss 16–19.
warranting this Court’s decision on grounds of individual injustice.16 If granting leave for review, I “must state the issue or issues to be determined in the proceedings”.17
[8] As such leave may be thought at least to have a similar objective as elsewhere:18
… to limit the cases which may go on appeal in the interests of finality of litigation and the work load of the [appellate] Court, while preserving the integrity of the law and the interests of justice.
It is “well settled” that approach to leave is as a “filtering mechanism” for which “[t]he threshold is high”.19 If anything, given the particular statutory ‘reasons’ criteria,20 the threshold for leave here is higher still, for clarification of the law rather than general correction of error.21
Law on appeals against liability for deportation on humanitarian grounds
[9]Section 207(1) provides:
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.
Section 207(1)(a) requires singular consideration of the deportation’s exceptional humanitarian circumstances,22 making deportation either unjust or unduly harsh. Even
16 P v Minister of Immigration [2022] NZCA 188 at [16]–[18], citing Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
17 Immigration Act, s 249(7).
18 Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715.
19 Stockman v Health and Disability Commissioner [2022] NZCA 511 at [13], citing Greendrake v District Court of New Zealand [2020] NZCA 122 at [6] (citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13]); Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].
20 Immigration Act, ss 245(3) and 249(6)(b).
21 Minister of Immigration v Jooste [2014] NZCA 23 at [5], referring to Waller v Hider [1998] 1 NZLR 412 (CA) at 412.
22 Minister of Immigration v Q [2020] NZCA 288 at [29], referring to Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [30]. The Tribunal’s apparent template paragraph — here replicated at its [82], but evident in any number of its recent decisions: see, for example, Re CM (Samoa) [2023] NZIPT 505887-888 at [29], Re IA (Sri Lanka) [2023] NZIPT 505943-944 at [14]
so, appellants remain liable for deportation unless in all the circumstances their remaining in New Zealand is not contrary to the public interest. The reasons for deportation are relevant only once exceptional humanitarian circumstances are established.23
Discussion
[10] Brought then as an unrepresented litigant, T sought leave to contend on review the Tribunal’s decision was unreasonable, including as:
(a)erring in law in its interpretation and application of “unjust or unduly harsh” test by failing to take account of the impact of T’s deportation on his child;
(b)making factual findings not supported on the evidence before it, by relying on T’s dated psychometric testing for its assessment of his reoffending risk; and
(c)failing to take into account the relevant considerations T’s liability for deportation could be suspended and the impact of increase in risk of long-term psychological harm to his son by T’s deportation.
Fundamentally however, for T, Lucy Tothill would argue the Tribunal failed to have due regard for ‘mandatory’ considerations of family unity and best interests of the child as established under international conventions adopted by New Zealand.
[11] To the extent any of those contentions may be thought to establish adequate questions of law for appeal, thus disqualifying any application for review, T’s unrepresented status during the strictly limited time for challenging final determinations of the Tribunal may justify considering (if then represented) he would have sought leave also (if not instead) for appeal. In particular, although not expressly brought as an application for leave to appeal, the application’s identification of a
and Re Sio [2023] NZIPT 505892-893 at [8] — has yet to pick up on Q’s explanation. But its assessment here at [83] and following meets Q’s requirement.
23 Patel v Immigration and Protection Tribunal [2019] NZCA 607 at [14].
contended error of law in the Tribunal’s determination brings it sufficiently within any intended appeal’s scope.
[12] I will give T the benefit of that doubt, provisionally to hold his application for leave thus is at least in part to address qualifying subject matter — if a question of law, for determination on appeal — meaning leave should turn on if any of those issues are of importance beyond his particular case or otherwise warrants this Court’s decision.
[13] “[E]xceptional circumstances of a humanitarian nature” do not necessarily include or exclude entitlements claimed under international conventions. Rather there is to be a particular assessment of the appellant’s circumstances.24 The Tribunal found such circumstances to exist if T was to be deported from New Zealand, including in disruption to family unity and otherwise than in the best interests of the child.25 Those inferentially recognise international convention sources for such rights.
[14] Even if not expressly cited to those sources (and at least the latter was),26 Ms Tothill does not suggest any other exceptional circumstance of a humanitarian nature should have been found established. Rather she argues those circumstances should have been given greater, perhaps predominant, weight in assessing the injustice or undue harshness of T’s deportation. Such does not offer any general or public importance on appeal or for review.
[15] More significantly, the Tribunal found exceptional humanitarian circumstances in the impact of T’s deportation on the child.27 But the injustice or undue harshness of those circumstances was, and was to be, assessed in respect of T.28 The Tribunal was careful to separate out any question of T’s culpability from its identification of the requisite exceptional humanitarian circumstances.29 It precisely assessed T’s culpability — consistently with appellate authority, only “at the next two stages of the inquiry” 30 — to disqualify him from remaining in New Zealand.31
24 Ye v Minister of Immigration, above n 22, at [25].
25 NR (India) v Minister of Immigration, above n 2, at [88], [94] and [95]–[96].
26 At [89].
27 At [95]–[96].
28 At [97] and see Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [12].
29 At [114].
30 Minister of Immigration v Q, above n 22, at [33].
31 NR (India) v Minister of Immigration, above n 2, at [115] and [127].
[16] Last, because any injustice arising on that assessment is embedded in the s 207(1)(a) test, it is inappropriate to rely on that same injustice for leave. But no other ground for intervention is identified.
[17] I accordingly can identify nothing unlawful, unfair or unreasonable in the Tribunal’s decision, let alone of importance beyond T’s particular case or otherwise warranting this Court’s intervention.
Result
[18] T’s application for leave to review the Tribunal’s 18 January 2023 decision is declined.
—Jagose J
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