Taliau v Minister of Immigration
[2024] NZHC 1803
•4 July 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-145
[2024] NZHC 1803
UNDER the Immigration Act 2009 IN THE MATTER
of an application for leave to appeal a
decision of the Immigration and Protection Tribunal 2023 NZIPR 600758
BETWEEN
MIKA TALIAU
Applicant
AND
MINISTER OF IMMIGRATION
Respondent
Hearing: 2 July 2024 Appearances:
K Ah Kuoi for the Applicant
M Davie and M Jones for the Respondent
Judgment:
4 July 2024
JUDGMENT OF GORDON J
This judgment was delivered by me on 4 July 2024 at 3 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors:
Crown Law, Wellington Ah Kuoi Law, Wellington
TALIAU v MINISTER OF IMMIGRATION [2024] NZHC 1803 [4 July 2024]
Introduction
[1] The applicant, Mika Taliau, seeks leave to appeal to this Court on a question of law1 from a decision of the Immigration and Protection Tribunal (Tribunal) dismissing his humanitarian appeal against deportation liability.2
[2] Mr Taliau is liable for deportation as a consequence of a conviction for indecent assault committed not later than two years after Mr Taliau first held a residence class visa.3
[3] In his application for leave to appeal Mr Taliau says the Tribunal did not give sufficient weight to the humanitarian grounds provided in his evidence and the evidence of his partner and his father.
[4] The respondent, the Minister of Immigration (Minister) opposes the appeal. Mr Davie, counsel for the Minister, says that the scope for the High Court to consider complaints against the Tribunal’s assessment of the evidence is limited. Mr Taliau’s argument that the Tribunal should have given more weight to the adverse consequences which will or may follow deportation falls outside that narrow compass. In any event, Mr Davie submits the Tribunal’s conclusion was plainly open to it.
Background
[5] Mr Taliau is a Samoan citizen. He was born in Samoa on 1 November 1997. He is now aged 26 years.
[6] His biological parents (parents) and younger brother live in Samoa. He has three older siblings: two sisters who live in New Zealand and another sibling who lives
1 Immigration Act 2009, s 245.
2 Taliau v Minister of Immigration [2023] NZIPT 600758. The Tribunal directed, pursuant to s 215(1) of the Immigration Act, the removal of the period of prohibition on entry to New Zealand that would otherwise apply under s 179 following Mr Taliau’s deportation from New Zealand. The Tribunal also ordered a nine month work visa for Mr Taliau from the date of its decision (1 December 2023) to enable him to support his partner during and for a short while after the birth of their child and to give them time to make plans for their future.
3 Immigration Act, s 161(1)(a)(iii). Indecent assault is an offence punishable by more than three months’ imprisonment: Crimes Act 1961, s 135.
in the United States of America. Mr Taliau remains close to his parents in Samoa and communicates with them on a regular basis.
[7] Mr Taliau was present in New Zealand between November 2017 and May 2018 under the Recognised Seasonal Employer (RSE) scheme. In October 2018, Mr Taliau’s maternal uncle, Tulaga Taliau (adoptive father), a New Zealand citizen and his wife adopted Mr Taliau. The aunt has since died.
[8] Mr Taliau made an application for residence under the Family (Dependent Child) category in April 2019. This was granted in August 2019 and Mr Taliau arrived in New Zealand on 14 September 2019 as a resident.
[9] Mr Taliau met his partner, Laura Tiatia, in around September 2019. They initially lived separately and started living together in September 2021.
[10] Ms Tiatia is 23 years old and was born in Samoa. She has been living in New Zealand since August 2018. She was adopted by her aunt so that she could come to New Zealand to work and support her biological family in Samoa. She gained residence under the Family (Dependent Child) category in June 2018 and is now a New Zealand citizen.
[11] Ms Tiatia’s parents remain living in Samoa with two of her younger siblings. She has another younger sister who was adopted by her aunt at the same time as she was adopted. Her younger sister is 14 years old and attends school in New Zealand.
[12]At the time of the Tribunal hearing Ms Tiatia was pregnant with their child.
She gave birth to a daughter, Lise, on 17 April 2024.4
[13] The events that gave rise to Mr Taliau’s conviction occurred on 15 February 2020. Mr Taliau and a friend were in Wellington standing beside his adoptive father’s car. Mr Taliau had access to the car but did not hold a driver licence. Mr Taliau was approached by a 24 year old woman who was intoxicated and asked for a ride home.
4 The Minister did not oppose the Court receiving a copy of the birth certificate.
Mr Taliau agreed to do so but said he needed to drop his friend off first. The victim got into the back seat of the car.
[14] After the friend had been dropped off, the victim realised they were not going towards her home. She protested and tried opening the doors to jump out of the moving car, but the doors were locked. Mr Taliau continued to drive and parked in a secluded parking spot. The victim was unable to find her phone to call 111.
[15] Mr Taliau got out of the car and got into the back with the victim. He lifted her dress and stroked her bare thigh, saying: “I want you here, I will protect you, I will look after you”. The victim yelled at him and pushed him away.
[16] Mr Taliau got back into the driver’s seat and drove away from the scene aggressively. He crashed the car causing it to flip onto its side and roll down a bank, stopping only when it hit some trees. Mr Taliau left the scene leaving the victim there.
[17] He then went back to retrieve his passport, only helping the victim when she requested his assistance to get out of the car. She eventually waved down a vehicle and the driver of that vehicle took her home.
[18] As a result of the crash the victim suffered multiple bruises to her body and limbs. She also sustained multiple grazes and cuts to her head, arms and legs, which required hospital treatment.
[19] The Police charged Mr Taliau with indecent assault,5 abduction,6 and careless driving causing injury.7 The abduction charge was later withdrawn.
[20] Following Mr Taliau’s guilty plea, on 11 June 2021 Judge Davidson sentenced him on both remaining charges to community work for 100 hours and 12 months of intensive supervision.8
5 Crimes Act, s 135. Maximum penalty: 7 years’ imprisonment.
6 Crimes Act, s 208. Maximum penalty: 14 years’ imprisonment.
7 Land Transport Act 1998, s 38. Maximum penalty: 3 months’ imprisonment or a fine not exceeding $4,500.
8 R v Taliau [2023] NZDC 17544. Mr Ah Kuoi, counsel for Mr Taliau, noted that Mr Taliau had served the sentence without incident.
[21] The Judge noted that the combination of charges was unusual reflecting, it seemed to him, the “unusual and highly concerning circumstances of what occurred”.9 He further said:10
Here you have agreed to drive a drunken female victim home. You have taken the opportunity to indecently assault her in a secluded area. Although it involves skin-on-skin contact, the indecent assault in and of itself would at best be described as moderately serious. There was a breach of trust and an associated detention in the way that I have described. Although your driving after the incident was bad it is not of the worst kind.
[22] As a consequence of the conviction for indecent assault, being an offence punishable by more than three months’ imprisonment committed not later than two years after Mr Taliau first held a residence class visa, he became liable to deportation.
[23] Immigration New Zealand served a deportation liability notice on Mr Taliau on 27 June 2023. Mr Taliau appealed his deportation liability to the Tribunal under s 206 of the Immigration Act 2009 (the Act).
Test on appeal to Tribunal
[24] The grounds for determining humanitarian appeals against deportation are set out in s 207 of the Act as follows:
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.
[25] The Supreme Court in Ye v Minister of Immigration discussed the “exceptional circumstances” test in the predecessor provision in the 1987 Act saying:11
[34] That brings us back to the first criterion in s 47(3) which has the following ingredients: (i) exceptional circumstances; (ii) of a humanitarian
9 At [7].
10 At [7].
11 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34]–[35].
nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand. The need for the circumstances of the case to be exceptional means that those circumstances must be well outside the normal run of circumstances found in overstayer cases generally. The circumstances do not have to be unique or very rare but they do have to be truly an exception rather than the rule. It is unnecessary and undesirable to attempt to define the compass of the word “humanitarian”. It is unlikely to be difficult to decide whether the circumstances of a particular case fulfil that description. If there are exceptional circumstances of a humanitarian nature, it is then necessary to determine whether they make it unjust or unduly harsh to remove the person from New Zealand.
[35] The qualification of the word “harsh”, by the word “unduly”, recognises that there may be some degree of harshness in removing an overstayer from New Zealand. In particular some degree of harshness may be involved where the removal affects New Zealand citizen children. But the statutory test is couched on the basis of undue harshness. Undue in this context means that the harshness goes beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system. That is why a generic concern on that account is not enough to outweigh fulfilment of the first criterion in s 47(3).
(footnote omitted)
[26] Then in Minister of Immigration v Jooste the High Court commented on statements made by the Tribunal in that case regarding the “exceptional circumstances” test saying:12
[45] In my view such comments reflect an erroneous view of the exceptional circumstances test. They effectively equate the stringent statutory test of “exceptional circumstances of a humanitarian nature” with “compassionate factors”, circumstances that are more than simply "routine", or "genuinely concerning circumstances". The latter phrases fail, by a significant margin, to adequately capture the high threshold for a finding of exceptional circumstances of a humanitarian nature, as articulated in Ye and the other cases I have referred to.
The Tribunal’s decision
[27] Mr Taliau filed a statement from himself and statements from his adoptive father and Ms Tiatia. Mr Taliau and his adoptive father gave evidence at the hearing on 21 November 2023. The Tribunal referred to and generally accepted the following evidence:
12 Minister of Immigration v Jooste [2014] NZHC 2882, [2015] 2 NZLR 765 at [45].
(a)Mr Taliau has supportive family members in New Zealand, namely his adoptive father and his children, as well as Mr Taliau’s two biological sisters and other extended family members.
(b)Mr Taliau left Samoa expressly for the purpose of financially assisting his parents and from time to time he sends his parents remittances as and when they have needed assistance, including for their day to day living costs and for their regular contributions to their church.
(c)While New Zealand provides greater employment opportunities than Samoa, Mr Taliau does not face any personal barriers to employment there that he does not face in New Zealand. Mr Taliau’s sisters in New Zealand would continue to support his parents financially should he return to Samoa.
(d)Mr Taliau is in a genuine and stable relationship with his partner, Ms Tiatia, and they have wanted to marry and begin a family since they first began a relationship with each other. They are expecting a baby which was due in April 2024 who, when born, will be a New Zealand citizen.
(e)While Ms Tiatia thinks her parents would understand if she wanted to return to Samoa with Mr Taliau, her parents would be sad if she went back. She came to New Zealand for her future and to support her family in Samoa.
(f)While Ms Tiatia has family in New Zealand, she thinks she would not be able to cope with the baby on her own in New Zealand. However, she feels she cannot return to Samoa with Mr Taliau for the reasons referred to in (e) above.
[28] The Tribunal noted it was mindful of art 23(1) of the International Covenant on Civil and Political Rights (ICCPR) which provides that as “the natural and fundamental group unit of society” the family is “entitled to protection by society and
the State”, and to art 17 of the ICCPR which articulates the right not to be subject to “arbitrary or unlawful” interference with the family.
[29] The Tribunal accepted that Mr Taliau and his pregnant partner were a family for the purposes of the ICCPR. The Tribunal, however, went on to say that this was not absolute but rather a factor to be weighed in the assessment.
[30] The Tribunal found that Ms Tiatia’s pregnancy was relevant to its assessment of Mr Taliau’s personal circumstances following Panchal v Minister of Immigration where this Court confirmed that where a child was not yet born, the assessment in the original Tribunal case was correctly limited to a consideration of the circumstances of the return of the family to their home country and a more direct assessment in respect of matters affecting the child alone was not necessary.13
[31] The Tribunal accordingly proceeded on the basis that the fact that Ms Tiatia was pregnant and was to give birth in April 2024 and the welfare of Mr Taliau’s unborn child, who will be a New Zealand citizen, were considerations for the Tribunal and relevant to the overall assessment of whether Mr Taliau had exceptional humanitarian circumstances.
[32] The Tribunal found there were no exceptional circumstances. Its conclusion on this issue is set out in the following paragraphs:
[71] The Tribunal has considered the settlement of the appellant in New Zealand and the loss of opportunities for him if he must leave, his relationship with his partner and the welfare of their unborn child, and the respective financial contributions that he and his partner make to their families in Samoa in line with the weight of expectation of those families. While these are humanitarian circumstances, they are not exceptional.
[72] The appellant has lived in New Zealand for only a relatively brief period. He came here as a young adult and retains strong ties to Samoa through his biological family, to whom he is still close, as well as his extended family members. The appellant’s parents remain supportive of him. He will have a place to live and practical support while he adjusts to a new way of life. The loss of opportunities he may have had in New Zealand is an inevitable consequence of deportation.
[73] The Tribunal acknowledges that both the appellant and his partner will be distressed at their potential separation, particularly in light of her
13 Panchal v Minister of Immigration [2017] NZHC 2080 at [48]–[54].
pregnancy. However, it is for the couple to consider their situation and to decide together the best way forward for them. His partner, who is a dual New Zealand and Samoan citizen, is able to return to Samoa, where she, too, has lived most of her life, and where they would be able to raise their child in proximity to their respective families. Alternatively, the couple may choose that she remain in New Zealand for the better opportunities it presents. Given her ability to return to Samoa, if the partner remains in New Zealand, their separation would be the result of their decisions, rather than the inevitable consequence of his deportation.
[74] The appellant’s deportation will cause him, his partner, and members of their respective families, both in New Zealand and Samoa, disappointment and some negative financial consequences. However, it has not been demonstrated that these will have an impact so detrimental as to be exceptional. Considered cumulatively, the Tribunal finds that those factors do not equate to exceptional circumstances of a humanitarian nature in the appellant’s case.
[33] Given the finding that there were no exceptional circumstances of a humanitarian nature, the Tribunal considered it was unnecessary to consider either the “unjust or unduly harsh” or “public interest” stages of the inquiry under the statutory test.
Test for leave
[34] Section 245 of the Act provides for an appeal to the High Court on a question of law with leave. In deciding whether to grant leave, the Court 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.14
[35] The first limb of s 245(3) requires an applicant to identify a “seriously arguable question of law” which has importance extending beyond the particular case.15 The existence of a leave requirement indicates an intention to limit appeals and judicial reviews to this Court.16
14 Immigration Act, s 245(3).
15 Chai v Minister of Immigration [2024] NZCA 183 at [4].
16 SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [5]; X v Chief Executive, Ministry of Business, Innovation and Employment [2013] NZHC 642, [2013] NZAR 513 at [3].
Is there an arguable question of law?
[36] As already noted, Mr Taliau’s Notice of Application for Leave says that the Tribunal did not give sufficient weight to the humanitarian grounds provided in his evidence and the evidence of his partner and father. Both by reference to the Notice of Application and the submissions filed by Mr Ah Kuoi, counsel for Mr Taliau, it is apparent that he is seeking a general review of the Tribunal’s finding and its ultimate decision. As Mr Davie submits, this is contrary to the scheme of the Act, which places a responsibility for determining an appeal under s 207 on the Tribunal and limits the role of this Court to correcting serious legal errors rather than simply being a second evaluation.17
[37] The following three judgments of this Court cited by Mr Davie underscore the point. First, in Guo v Immigration and Protection Tribunal this Court said:18
… it is clear that 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 … The weighting afforded to relevant considerations is clearly a matter for the decision-maker alone …
[38]And later:19
To suggest that inadequate weight was given to [factors favouring the children remaining in New Zealand] in my view is wrong. In addition this would seem to be a similar attack on the merits of the [Tribunal] decision. Those merits and the weighing of evidence were matters for the [Tribunal] and do not provide a basis for the grant of leave here …
[39]Then in Kumar v Minister of Immigration this Court said:20
The essence of Mr Kumar’s complaint under this heading, as under most of the other grounds for leave, is that the Tribunal was wrong in its findings of fact, in its adverse conclusions on Mr Kumar’s credibility, in assessing the reliability of the evidence presented by the other witnesses, on both sides, and in weighing that evidence. There is no question of law arising from any of this, and no bona fide and serious argument that might support an application for judicial review.
17 Hai v Minister of Immigration [2019] NZCA 55, [2019] NZAR 1867 at [36] citing Waller v Hider [1998] 1 NZLR 412 (CA) at 413 (CA). See also TRR v Refugee and Protection Officer [2016] NZHC 233 at [13].
18 Guo v Immigration and Protection Tribunal [2014] NZHC 804 at [55].
19 At [79].20 Kumar v Minister of Immigration [2016] NZHC 1593 at [51].
[40]And third, in Smith v Minister of Immigration the High Court said:21
… challenges to the weight which the Tribunal accords to aspects of the evidence, including where that is at the expense of other evidence, will seldom amount to an error of law. The Tribunal is entitled to make value judgments balancing and weighing the competing factors arising in a given case, being a matter “solely within the Tribunal’s statutory function.”
(footnotes omitted)
[41] For completeness I note that a question of law can arise where a court or tribunal makes a finding of fact which is based on no evidence, or which is based on evidence inconsistent with or contradictory of another finding of fact, or which is contradictory of the only reasonable conclusion of fact available on the evidence.22 But that is not Mr Taliau’s case. He simply asks the Court to give more weight to what he says are the humanitarian grounds in the evidence. That is not a question of law.
[42] Finally, there is the issue of Mr Taliau’s child, Lise, who was not yet born at the time of the Tribunal hearing. Although not raised as a question of law by Mr Ah Kuoi, Mr Davie properly addressed the issue as to whether the child’s birth subsequent to the Tribunal hearing raises a question of law.
[43] I have already mentioned the Tribunal’s reference to Panchal v Minister of Immigration at [30] above.23 In that case, Mr Panchal’s son was similarly born after the Tribunal hearing. This Court held:24
There is no question capable of bona fide and serious argument to the effect that the Tribunal made an error of law in its assessment of the interests of the child.
[44] In the instant case I consider that the Tribunal correctly discharged its responsibility by taking into account Ms Tiatia’s pregnancy and by proceeding on the assumption that a child would be born in the future. I refer to the Tribunal decision at
[73] and [74] (quoted in [32] above).
21 Smith v Minister of Immigration [2020] NZHC 1510 at [50].
22 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25]–[28] and applied in
Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].
23 Panchal v Minister of Immigration, above n 13.
24 At [54].
[45] Mr Davie also referred the Court to the Court of Appeal decision in Dhindsa v Secretary of Labour.25 Mr Dhindsa had brought judicial review proceedings against the Minister’s decision to decline to quash his deportation. Mr Dhindsa unsuccessfully sought interim orders and appealed that decision on an urgent basis to the Court of Appeal. His child had not yet been born at the time of the Court of Appeal hearing. Dismissing the appeal the Court said:
[16] The second and more important point is that both the immigration officials and the Minister knew that Mr Dhindsa has a wife who is about to have a child and considered New Zealand’s international obligations in relation to family life in exercising their discretion. In our view, at least in the circumstances of this case, the fact that the interests of the family were taken into account is what ultimately matters, not whether that was done in the context of the ICCPR or of UNCROC. These family interests were, presumably, what led the Minister to waive the usual requirement that Mr Dhindsa wait for five years after deportation before applying to return to New Zealand. We do not see that more explicit consideration under UNCROC could have produced a different outcome.
[46] In this case I also consider that a “more explicit consideration” of the (as yet unborn) child’s interests separate from the interests of Mr Taliau and his pregnant partner would not have “produced a different outcome”.
[47] In any event, the separation of a parent and child does not in and of itself satisfy the exceptional circumstances test. In Minister of Immigration v Jooste Katz J said:26
[47] The primary humanitarian factor identified by the Tribunal in Mr Jooste's case was his separation from his children if he were deported. Unfortunately, cases involving the separation of parent and child are not unusual in the deportation context. Family separation through deportation will often cause “difficulty, hardship and emotional and upset” – but that in itself is not sufficient. Although such difficulties, hardship and emotional upset will clearly be “compassionate circumstances” that may well be of "genuine concern" something more is required for a finding of exceptionality.
[48] As Simon France J observed in O'Brien v Immigration and Protection Tribunal, the focus must be on whether there is something in the child's particular circumstances that go beyond those inevitably involved in any forced separation. In O'Brien, psychological evidence established particular risks and significant developmental impairment to the child if the appellant (who acted as a “buffer” between his daughter and certain identified risks) was removed from family home. Similarly, if the impact of family separation is viewed from the parent's viewpoint (as opposed to the child’s) there must again be something that takes the case “well outside the normal run of
25 Dhindsa v Secretary of Labour [2012] NZCA 282.
26 Minister of Immigration v Jooste, above n 12.
deportation cases”. Obviously, in some cases it may be a combination of circumstances that result in an overall finding of exceptionality. In this case, however, the predominant humanitarian circumstance identified by the Tribunal was that of family separation.
(footnotes omitted)
[48] The instant case is not one of “forced separation”. It would be open to Ms Tiatia and their child to accompany Mr Taliau to Samoa. Second, while Mr Ah Kuoi submits there would be psychological and mental distress on the part of both parents, there was no expert evidence on this point.
[49] In conclusion Mr Taliau has not identified a question of law in terms of s 245 of the Act.
General or public importance
[50] The Court accepts this matter is of importance to Mr Taliau and his family but it is not of general or public importance. It raises matters that are specific to Mr Taliau.
[51] Finally, Mr Taliau does not argue that there are exceptional circumstances involving individual injustice to such an extent that the Court could not countenance the decision standing.27
Result
[52] The application for leave to appeal to the High Court on a question of law is refused.
Costs
[53] I award costs in favour of the Minister on a 2B basis together with standard disbursements. I invite counsel to confer as regards the items claimed. I would anticipate agreement should be able to be reached. In that case a joint memorandum is to be filed within 15 working days of the date of this judgment.
27 Taafi v Minister of Immigration, above n 22, at [19(c)].
[54] In the event that Mr Taliau disagrees with the items claimed by the Minister, counsel for the Minister is to file a memorandum within five working days of the date for the joint memorandum. Counsel for Mr Taliau is to file a memorandum in response within five working days of the date of service of the Minister’s memorandum.
[55] Memoranda should not exceed four pages. I will determine costs on the papers if a decision is required.
Gordon J
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