Taylor v Minister of Immigration
[2023] NZHC 1586
•26 June 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-2148
[2023] NZHC 1586
UNDER Section 245 of the Immigration Act 2009 IN THE MATTER
of a decision of the Immigration and Protection Tribunal
BETWEEN
BRIAN FRANK TAYLOR
Applicant
AND
MINISTER OF IMMIGRATION
Respondent
Hearing: 19 April 2023 Appearances:
S G Graham for Applicant
E J R Dowse and R L Grierson for Second Respondent
Judgment:
26 June 2023
JUDGMENT OF JOHNSTONE J
This judgment was delivered by me on 26 June 2023 at 3pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Young Hunter, Christchurch Crown Law Office, Wellington
TAYLOR v MBIE [2023] NZHC 1586 [26 June 2023]
[1] Brian Taylor is a Canadian citizen, resident in New Zealand. On 5 August 2016, Mr Taylor was convicted of failing to protect a vulnerable adult, an offence under s 195A of the Crimes Act 1961.1 This rendered him liable for deportation, his offending being committed within 10 years of him first holding a (New Zealand) residence class visa.2
[2] Mr Taylor appealed to the Immigration and Protection Tribunal (the Tribunal) against his liability for deportation. On 5 October 2022, the Tribunal declined Mr Taylor’s appeal.3
[3] In this proceeding, Mr Taylor seeks leave under s 245(1) of the Immigration Act 2009 (the Act) to appeal the Tribunal’s Decision on the basis it made three errors of law. He submits with reference to s 245(3) that these errors involve questions of general or public importance or for another reason should be submitted to the High Court for its decision.
Background
[4] Mr Taylor is around 68 years old. He was born and lived in Canada until his early forties. He has a brother, two sisters, and two daughters aged in their mid-forties, all residing in Canada.
[5] In Canada in around 1990, Mr Taylor met and formed a relationship with Mrs Taylor. Mrs Taylor is a New Zealand citizen. She had moved to Canada from New Zealand in 1980. The couple moved to New Zealand in 1997, with Mrs Taylor’s son. They married in 1998.
Mr Taylor’s offending
[6] The offending that rendered Mr Taylor liable to deportation occurred in 2015. A jury found both Mr and Mrs Taylor to have offended against s 195A of the Crimes Act, by failing to take reasonable steps protect a vulnerable adult, a Ms Ena Lai Dung,
1 R v Taylor [2016] NZHC 2846.
2 Immigration Act 2009, s 161(1).
3 Taylor v Minister of Immigration [2022] NZIPT 600712 [the Decision].
knowing she was at risk of death, by means of an omission to discharge their legal duty to Ms Dung, the omission being a major departure from the standard of care expected of a reasonable person to whom that legal duty applied.
[7] On 28 November 2016, Wylie J sentenced Mr Taylor to six years’ imprisonment, and Mrs Taylor to six years and three months’ imprisonment.4 Cindy Taylor, the natural daughter of Ms Dung, was convicted of manslaughter for her role in Ms Dung’s death. Justice Wylie sentenced her to serve 12 years’ imprisonment.
[8] Ms Dung and Ms Taylor had lived with Mr and Mrs Taylor in their Manurewa home from 2013. On 16 January 2015, Mrs Taylor called for an ambulance, saying she believed Ms Dung had passed away. Ambulance officers found Ms Dung, lying on a green plastic sheet in her own urine and faeces. She was emaciated, and naked from the waist down. Her clothing had almost fused to her skin through open sores on her upper body. Her lower body displayed multiple pressure sores and at least one necrotic ulcer, with evidence of arthropod activity along both of her legs.
[9] Mr Taylor’s offending does not require detailed review. Suffice to say he and his co-defendants failed to provide Ms Dung the necessaries of life. Consequently, she suffered a prolonged, painful, degrading, and avoidable death.
[10] Justice Wylie observed that the offending was aggravated by Ms Dung’s death and the defendants’ callousness, referring to Mr Taylor’s purchase of air fresheners, insect sprays, and the green plastic sheet on which Ms Dung was found, and the extent of Mr Taylor’s indifference to Ms Dung’s suffering.5 In response to Mr Taylor’s claim he was preoccupied in caring for Mrs Taylor, Wylie J did not accept that was a proper excuse, or that Mrs Taylor needed the care Mr Taylor claimed to have lavished on her.
Basis of deportation liability
[11] Mr Taylor’s liability for deportation arose under s 161(1)(c) of the Act, which provides:
4 R v Taylor, above n 1.
5 At [111].
161Deportation liability of residence class visa holder convicted of criminal offence
(1)A residence class visa holder is liable for deportation if he or she is convicted, in New Zealand or elsewhere,—
…
(c) of an offence and sentenced to imprisonment for a term of 5 years or more (or for an indeterminate period capable of running for 5 years or more), if the offence was committed not later than 10 years after the person first held a residence class visa; or
[12] Although Mr Taylor had moved to New Zealand in 1997 and married a New Zealand citizen in 1998, he did not obtain a residence class visa until 25 May 2006. His offending occurred on or before 16 January 2015, within the 10-year liability limit established by s 161(1)(c).
Decision on appeal
[13] Mr Taylor received a deportation liability notice on 17 November 2021. He exercised his entitlement to appeal to the Tribunal against his liability under s 206(1) of the Act. The Tribunal was thus required to deal with Mr Taylor’s appeal (brought in reliance on s 206(1) of the Act) in accordance with s 207. Section 207 relevantly provides 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.
[14] The Tribunal determined the matter with reference to s 207(1)(a), identifying exceptional humanitarian circumstances, but finding that deportation would not be unjust or unduly harsh given the seriousness of Mr Taylor’s offending. The key finding of the Decision was:
[143] When the appellant’s exceptional humanitarian circumstances (his lengthy settlement in New Zealand, the connection he has here through his relationship with his New Zealand-citizen wife, his role in her care, and his limited connections to Canada) are weighed against the seriousness of his offending (having been found guilty of failing to protect a vulnerable adult, an elderly woman, who died a slow and painful death), the Tribunal finds that the appellant has not shown a level of harshness beyond that which “must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system” (Ye v Minister of Immigration at [35]). The Tribunal acknowledges that the appellant’s deportation will be deeply distressing to the appellant and his wife. However, while a return to Canada would be challenging for the appellant, he would be returning to a place where he has access to financial support and where he has family. While his wife would also face her own challenges in New Zealand, she would be able to access both financial and health-care support in New Zealand, as well as retain the emotional support network of her friend and son that she currently has. In light of the above, deportation is not a disproportionate response to the appellant’s serious offending. It is not unjust and nor is it unduly harsh for the appellant to be deported from New Zealand.
[15] As is apparent, the Tribunal referred to the following two aspects, amongst others, as “exceptional humanitarian circumstances”:
(a)Mr Taylor’s role in his wife’s care; and
(b)his limited connections to Canada.
[16]In connection with Mr Taylor’s role in his wife’s care, the Tribunal observed:6
… it is only recently (May 2022) that [the wife’s general medical practitioner (GP)] Dr Inder has referred the wife, at her request, to the local health provider to assess whether there was any other support available to the wife under the [Needs Assessment Service Co-ordination] framework. Before that, he was not aware of any significant issues that the couple had and thought they were managing quite well. This referral is still being processed.
[131] It is not necessary for the Tribunal to await the result of that assessment or for the Tribunal to make a final assessment of the wife’s health conditions and needs. Even acknowledging the limitations of the evidence before it, the Tribunal accepts that the wife is generally dependent on the appellant for practical support such as housework, some personal cares and medical needs, transport, and for emotional support.
[132] However, the Tribunal does not accept that, should the appellant be deported, the wife would be unable to manage. It has not been established that her practical needs would not be able to be met by care in the community. As explained by Dr Inder, the NASC services aim to keep people independent in their own home as much as possible by providing in-home assistance as
6 At [130].
dictated by the particular individual’s needs. Dr Inder considered that, even if the appellant was deported, the wife would be able to manage at home if there was a support network available to assist her through NASC, such as someone coming into the house to assist with housework and personal care, and someone to assist with the other roles that the appellant plays, such as shopping and transport. Alternatively, while at the moment Dr Inder did not consider that the wife would qualify for rest home care because of her age, he thought she might qualify for residential care. The wife and the appellant both also acknowledged that she could cope physically if she had to go into care, or have someone come into the house to look after her needs.
[17]And on his connections to Canada:
[116] One of the aspects of a return to Canada that concerns the appellant is his lack of support there. He has three siblings in Canada, although he stated that he was not close to his siblings and had not been in touch with them for many years. Because of his absence from Canada, the appellant has lost meaningful contact with people he was previously close to, including his two daughters and their families, and his former work colleagues.
[117] While it may be challenging for the appellant and will take some time and effort to re-establish relationships with this family, it has not been demonstrated that the appellant’s relationships with his Canadian family have irretrievably broken down. The appellant said in his statement that he had last been in touch with his daughters in 2013. However, his son indicated that he had set up a brief telephone call between the appellant and one of his daughters in 2019 to try to reconnect them. Further, the appellant has searched for his daughters on Facebook and “liked” pages in relation to one of the daughter’s account. He now has around eight grandchildren in Canada. The son has made concerted efforts to maintain a relationship and remain in contact with the daughters, and has talked with them by telephone and met with them on several occasions when he visited Canada over the years. There is therefore a basis upon which the appellant can begin to rebuild his relationships with his daughters, if he wishes to, however challenging and incremental that may be.
Applications for leave to appeal
[18]Section 245 of the Act 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 leave 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.
(Emphasis added).
[19] The practical application of s 245 requires that applicants identify a seriously arguable question of law which either:
(a)has importance extending beyond the particular case (and thus has general or public importance for the purposes of s 245(3)); or
(b)for some other reason, warrants a decision from the High Court.7
[20] The latter, “any other reason” limb requires “an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing”.8
[21] The issues raised need to go beyond the particular circumstances of the applicant, or suggest the existing law needs revisiting.9 The following generally do not qualify:
(a)misapplication of existing legal principles to the particular facts of a case;10
(b)poor prospects of success;11 and
(c)errors that were not material to the outcome.12
7 Singh (Shivdev) v Chief Executive of the Ministry of Business, Innovation and Employment [2018] NZHC 972, [2018] NZAR 1120 at [24].
8 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
9 LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [32].
10 JW v Chief Executive of the Ministry of Business, Innovation and Employment [2022] NZCA 286 at [19].
11 See Allada v Immigration and Protection Tribunal [2014] NZHC 953 at [36].
12 See for example Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [16].
[22] An appeal is not an opportunity to re-litigate factual findings, or the weight attached to those findings. But factual findings may be challenged where it is shown that there has been a fundamental error rendering the decision “legally flawed.”13 Only rarely will a Court find that the weight attributed to a consideration is an error of law.14 This Court in Taafi v Minister of Immigration devised a three-stage test (termed a “triple-hurdle”) for assessing factual errors that may amount to an error of law, as follows:15
(a)First, the applicant will need to show a seriously arguable case that factual findings by the Tribunal are actually incorrect. An appeal Court will not interfere where there is an available evidential basis for the Court’s finding.16
(b)Secondly, the applicant will need to show that the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law. That is, it is seriously arguable that:
(i)the Tribunal has made a finding of fact which is based on no evidence, based on evidence inconsistent with or contradictory of another finding of fact, or contradictory of the only reasonable conclusion of fact available on the evidence;17 and
(ii)the errors of fact are so significant and extensive that a properly-directed Tribunal may well have reached a different decision overall on the application to quash the deportation order.18
(c)Thirdly, the applicant must show that the question of law (here based on alleged fundamental errors of fact) is one of general or public importance, or for some other reason ought to be considered on appeal. The former is a hard ask in the case of factual errors, no matter how profound. (Here, the applicant does not seek to argue that the questions he presents meet the requirement of being of general or public importance. Thus he relies on the alternative limb that there is “other reason” why the question should be submitted to the High Court.) In my view it would only be in exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing, that this alternative requirement will be met.
13 X v Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 642, [2013] NZAR 513 at [18].
14 Guo v Immigration and Protection Tribunal [2014] NZHC 804 at [55], citing De Borja v Removal Review Authority [1999] NZAR 471 (HC); and Minister of Immigration v Zhang [2013] NZCA 487, [2014] NZAR 88.
15 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].
16 Faave v Minister of Immigration [1996] 2 NZLR 243 at 247 (HC).
17 Edwards v Bairstow [1956] AC 14, 36 (HL).
18 Faave v Minister of Immigration [1996] 2 NZLR 243 at 247 (HC).
Appellant submissions
[23] As mentioned above, Mr Taylor alleges three questions of law. They are described in his submissions as follows:
(a)Whether the Tribunal correctly applied the legal test under s 207(1)(a) of the Act in failing to consider the applicant’s “risk of reoffending” under the second step of the humanitarian assessment (that would make it unjust or unduly harsh for the appellant to be deported from New Zealand).
(b)Whether the Tribunal made incorrect or contradictory findings [of] fact regarding the appellant’s family support in Canada.
(c)Whether the Tribunal’s decision-making process was procedurally unfair.
Question One: failure to consider risk of re-offending at ‘unjust or unduly harsh’ stage of s 207(1)
[24]For Mr Taylor, Mr Graham submitted that:
(a)The Tribunal accepted evidence that Mr Taylor presents a low risk of future offending.
(b)The Tribunal did not refer to this evidence, nor discuss it when assessing whether the exceptional humanitarian circumstances it had found to exist would make it unjust or unduly harsh for Mr Taylor to be deported. It should have, in line with Elias CJ’s judgment in Helu.
(c)This failure amounts to an error of law, justifiably appealed on the basis of its general and public importance.
Question Two: incorrect or contradictory findings of fact re family support in Canada
[25] Mr Graham submitted that, notwithstanding evidence of Mr Taylor’s son (Mr Jackson-Taylor), the Tribunal determined there was no evidence Mr Taylor’s relationship with his family members had irretrievably broken down, and by inference that if Mr Taylor was to return to Canada he would have family support. This was said
to be a sufficiently significant omission to constitute an error of law, falling within the “some other reason” limb described in Taafi as justifying appeal.19
Question Three: procedural unfairness
[26] With reference to the passage cited at [16] above, Mr Graham submitted that the Tribunal required the Needs Assessment Service Co-ordination report20 before it could proceed on the basis21 that it did not accept Mrs Taylor would be unable to manage. This was also said to be a sufficiently significant omission to constitute an error of law, falling within the “some other reason” limb described in Taafi as justifying an appeal, whether on its own or in combination with the error relating to Mr Taylor’s Canadian family relationship (above).22
Respondent submissions
[27] For the Minister of Immigration, Ms Grierson submitted the Tribunal made no seriously arguable error, and its process was not unfair in all the circumstances.
Question One: failure to consider risk of re-offending at ‘unjust or unduly harsh’ stage of s 207(1)
[28] As noted above, the Tribunal was required to deal with Mr Taylor’s appeal in accordance with s 207. The issue raised under this head is whether it is seriously arguable the Tribunal should have, but did not, consider Mr Taylor’s low risk of re-offending at the stage at which it was considering whether there were exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for Mr Taylor to be deported. If there was clearly no requirement that Mr Taylor’s risk of re-offending be considered at that stage, the proposed question of law will not be seriously arguable.
[29] The appropriate staging or sequence of decision-making under s 207(1) of the 2009 Act is relevant. The issue was addressed by the Supreme Court in
19 Taafi v Minister of Immigration, above n 15.
20 Mentioned at [130] of the Decision.
21 Outlined at [132] of the Decision.
22 Taafi v Minister of Immigration, above n 15.
Ye v Minister of Immigration23 and Helu v Immigration and Protection Tribunal,24 judgments related to distinct predecessor provisions under the Immigration Act 1987 (the 1987 Act). The Supreme Court then sought to synthesise its prior observations when commenting upon s 207(1) itself, in Guo v Minister of Immigration.25 I will refer to each judgment in turn.
Ye v Minister of Immigration — s 47(3), Immigration Act 1987
[30] The Supreme Court’s judgment in Ye related to s 47(3) of the 1987 Act. Section 47(3) applied in situations where persons unlawfully in New Zealand were “appealing” to the Removal Review Authority against the requirement for them to leave New Zealand. It read:26
An appeal may be brought only on the grounds that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand.
[31] As can be seen, the only textual differences between the provisions are insubstantial, at least for present purposes. Punctuation aside, the only difference is that whereas s 47(3) of the 1986 Act addressed the lawful basis for an appeal, s 207(1) of the 2009 Act obliges the Tribunal to grant an appeal where an identical threshold is met.
[32]In Ye, the majority observed that s 47(3) was:27
… drafted on the basis of two sequential considerations. The first step is to determine whether there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person concerned to be removed from New Zealand. If that is not shown, the inquiry ends there and removal takes place. If it is shown that it would, on the statutory basis, be unjust or unduly harsh to remove the person from New Zealand, the decision maker must move to the second inquiry. This concerns whether, despite the injustice or undue harshness, it would in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand. A person seeking to avoid removal must demonstrate not only qualifying
23 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.
24 Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298.
25 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248.
26 Immigration Act 1987, s 47(3).
27 At [30].
injustice or undue harshness but also that it would not be contrary to the public interest for them to be allowed to remain in New Zealand.
(Emphasis added).
[33] The majority referred to the need for “sequential” consideration, and described two “steps” or “inquiries”. For the sake of clarity, I will refer to these distinct steps or inquiries as “stages”.
[34] The majority turned to query whether general concern about the integrity of New Zealand’s borders might justify deportation in the “public interest” in terms of the second stage, and found it would not. Then it returned to the first stage, as follows:28
That brings us back to the first criterion in s 47(3) which has the following ingredients: (i) exceptional circumstances; (ii) of a humanitarian nature;
(iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand.
[35] In discussing these “ingredients”, the majority preferred a reading of the linking words “that would make it” which would require the decision-maker to assess whether such exceptional humanitarian circumstances as are found to exist make it unjust or unduly harsh to remove the person; that is, injustice or undue harshness does not necessarily flow from the existence of exceptional circumstances of a humanitarian nature.29
Helu v Immigration and Protection Tribunal — s 105, Immigration Act 1987
[36] The Supreme Court’s judgment in Helu related to s 105 of the 1987 Act. Section 105 applied where a person had been convicted of a qualifying offence within a specified period of being granted a residence permit or first arriving in New Zealand, and had been made the subject of a deportation order of the Minister of Immigration.30 It read:
28 At [34].
29 At [38].
30 Depending on their circumstances as a residence permit holder or an exempt person; see ss 91, 92 and 104 of the 1987 Act.
105 Tribunal may quash deportation order
(1)On an appeal under section 104 of this Act, the Tribunal may, by order, quash the deportation order if it is satisfied that it would be unjust or unduly harsh to deport the appellant from New Zealand, and that it would not be contrary to the public interest to allow the appellant to remain in New Zealand.
(1A) Without limiting subsection (2), in deciding whether it would be unjust or unduly harsh to deport the appellant from New Zealand, and whether it would not be contrary to the public interest to allow the appellant to remain in New Zealand, the Tribunal must have regard to any submissions of a victim, in accordance with section 105A.
(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.
[37] As can be seen, s 105 of the Immigration Act differed from ss 43(3) of the 1987 Act and 207(1) of the 2009 Act in that s 105 set out a list of circumstances (including “such other matters as the Tribunal considers relevant”), to which regard was to be had in decision-making on injustice or undue harshness. Under ss 43(3) and 207(1), there was no such list. Under those provisions, the relevant authority was simply to consider “exceptional circumstances of a humanitarian nature” when deciding on injustice or undue harshness.
Justice McGrath’s judgment
[38] Justice McGrath’s judgment in Helu refers to this difference, and mentions that “(o)therwise the two provisions are essentially the same, although they operated in different contexts.”31 Justice McGrath then found:32
In interpreting s 105(1), there is no reason to depart from the sequential structure of the provision that was recognised by the Court in Ye, nor that aspect of its scheme which allows for the public interest consideration to prevail over a finding that deportation would be unduly harsh.
[156] The structure of s 105 also supports treating the unjust and unduly harsh limb and the public interest limb as involving two distinct considerations. Section 105(2) stipulates mandatory considerations the Tribunal must take into account “in deciding whether or not it would be unjust or unduly harsh to deport the appellant from New Zealand”. It does not, however, direct that the same considerations must be considered in assessing the public interest. By contrast, s 105(1A), inserted in 2002, stipulates that a victim’s submissions must be considered “in deciding whether it would be unjust or unduly harsh to deport the appellant from New Zealand, and whether it would not be contrary to the public interest to allow the appellant to remain”. Parliament contemplated that the two considerations in s 105(1) are separate, and the factors relevant at each stage may differ.
[157] Accordingly, in applying s 105, the Tribunal must first decide whether “it is satisfied that it would be unjust or unduly harsh to deport the appellant”. If the Tribunal is so satisfied, it must go on to consider “whether it would not be contrary to the public interest for the appellant to remain in New Zealand”. These decisions involve original inquiry by the Tribunal. While the two tests are distinct, and the outcome on neither limb is to be determinative of that on the other, the factors relevant to each overlap. Both tests must be met before the Tribunal may quash a deportation order. The standard of proof is the balance of probabilities.
(Footnote omitted).
[39] Justice McGrath went on to comment, in light of the statutory context of appeal against Ministerial deportation orders, and the policy considerations underlying that context, on the assessment of whether deportation would be unjust or unduly harsh, and on the assessment of the public interest, in accordance with this “sequential structure”. This comment appears at [160]–[176] of Helu. The “age, nature and seriousness” of an appellant’s offending, any further offences of which the appellant has been convicted, its gravity and effects, and the degree of the appellant’s culpability,
31 At [155].
32 At [155].
were described as matters for consideration at the first stage.33 On the other hand, the “likelihood of recidivism and the nature and seriousness of prospective future offending” were described as “important factors” at the second stage.34
[40] In these respects, McGrath J’s views formed a majority alongside those of William Young and Arnold JJ, who wrote, specifically citing [160]–[176]:
[216] We agree with the approach proposed by McGrath J in relation to s 105 of the Immigration Act 1987, in particular, his view that a sequential approach is required and as to the factors which are material in relation to the two questions which the Tribunal must address. We do, however, disagree with the conclusion he reaches as to the disposition of the appeal.
(Footnote omitted).
[41] On the latter issue — the merits — McGrath J’s view noted what the Immigration and Protection Tribunal had described as a “sliding scale approach” relating to recidivism, to the effect that “the more serious the crime, the lower the chance of reoffending that triggers an adverse public interest finding”.35 Justice McGrath found that this approach suggested the public interest test would turn solely on the risk of future offending.36 In this vein, McGrath J noted the Tribunal’s reference to “a person who, because of his violent offending, poses an unacceptable risk to public safety”,37 and found:
[196] The Tribunal was here, properly, seeking to balance the positive and negative public interest factors relevant to whether the appellant should be allowed to remain in New Zealand. But in its decision, the Tribunal had already concluded that the risk to public safety was “an unacceptable risk” because it was “moderate” rather than “a risk at the low end of the scale”. This finding precluded the Tribunal from giving due weight to both values in determining the overall public interest.
(Footnote omitted).
Chief Justice Elias’ judgment
[42] On the issue of the appropriate approach to s 105, Elias CJ referred to the Supreme Court’s “sequenced approach” in Ye, drawing particular attention to the
33 At [162], [164] and [166].
34 At [168].
35 At [190], quoting Helu v Minister of Immigration [2011] NZIPT 500056 at [63].
36 At [192].
37 At [195], quoting Helu v Minister of Immigration, above n 35, at [75].
description in Ye of the second stage as one “linked to the first stage” because it involves an inquiry whether “despite the injustice or undue harshness, it would in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand”.38
[43] In this respect, Elias CJ commented that “the approach adopted by McGrath J does not adhere to Ye”.39 In her Honour’s view, the approach of the majority in Helu (comprised, as noted above, of McGrath, William Young and Arnold JJ) was that:
… matters which have been taken into account by the Tribunal in concluding that deportation would be unjust and unduly harsh are simply matters which are “relevant” to the second stage of the inquiry and only if bearing on the public interest. The assessment that deportation would be unjust and unduly harsh is taken into account in determining the public interest in deportation only to the extent that there is a general public interest in avoiding results which are unjust and unduly harsh and only as one matter to be weighed, not as the datum against which the Tribunal is to consider whether it is not contrary to the public interest to permit the appellant to remain. In my view, the approach in Ye accords with the statute and ought not to be modified.
[44]Be this as it may, Elias CJ also addressed the topic of recidivism, observing:40
[92] The Tribunal treated the seriousness of the offending as the starting point in considering whether deportation would be unjust and unduly harsh but did not explicitly in that exercise consider risk of reoffending. For immigration purposes (as opposed to criminal justice purposes) however it seems to me that the seriousness of offending is difficult to disengage from the appropriateness of continued residency (against which what is unjust or unduly harsh treatment in this context is measured). If, as I think, some consideration of future behaviour is inescapably bound up with deciding that it would be unjust or unduly harsh to deport, there is a danger of double- counting of the risk of future offending in a second, public interest inquiry.
[93] That danger is greatly exacerbated if in the second inquiry the risk of reoffending is de-contextualised from the circumstances which led to the conclusion that deportation is unjust and unduly harsh and assumes a dominant significance because it is measured only against other public interest factors, themselves shorn of the personal circumstances of those most affected. In supporting the approach taken by the Tribunal, counsel for the Minister indeed submitted that the risk of reoffending was “as a matter of logic usually the most important factor in assessing public interest under s 105”.
[94] I consider there is no basis in the statutory scheme for predictions of risk of reoffending to be allowed to dominate the public interest control under s 105 in the way they have dominated the Tribunal’s decision in the present
38 At [86] and [88], citing Ye v Minister of Immigration, above n 23, at [30]. (Emphasis added).
39 At [89].
40 At [92].
case through removal of the context. The decision of the Tribunal was based almost entirely on assessment of risk of reoffending.
(Emphasis added).
[45] As can be seen, Elias CJ’s remarks do not mandate consideration of risk of re-offending at both stages of the analysis. The observation is merely to the effect that “some consideration of future behaviour is inescapably bound up with” the first stage, and that for that reason in order to avoid double-counting any substantial risk of re-offending should not “dominate” the second (public interest) stage. Even so, the reasoning:
(a)does not apply in cases of a low risk of re-offending, where plainly that factor will not dominate the second stage of analysis; and in any event
(b)is unlikely to apply except in the most nuanced of cases: in order for a risk of re-offending to be double-counted, an appellant would need to succeed at the first stage despite the risk, but fail at the second in light of that same risk.
[46] On the merits, and as indicated by the cited passage above, Elias CJ agreed with McGrath J that the Tribunal was wrong to permit risk of re-offending to dominate the second (public interest) stage of the analysis, so that relevant public interest factors favouring the appellant were not properly addressed.41
Justice Glazebrook’s judgment
[47] Justice Glazebrook’s approach confirmed the “sequenced approach” of Ye, her Honour disagreeing with that which had been suggested by the Crown of “isolating the factors that might have been considered in the first stage of the test and viewing them at the second stage of the test through a different public interest lens”.42 Instead, as Glazebrook J observed:
[213] The task of the Tribunal at the second stage of the inquiry was to evaluate whether, despite the factors that made it unduly harsh or unjust to deport, deportation was nevertheless a proportionate response. The Tribunal
41 At [104].
42 At [206] (footnote omitted).
did describe its task as being to undertake a proportionality analysis. However, it did not in fact do so.
[48] As indicated by the final sentence cited above, Glazebrook J agreed with Elias CJ and McGrath J on the merits. Her Honour’s comments here, and on the topic of risk of re-offending were as follows:
[213] I agree with the Chief Justice and McGrath J that, by treating the moderate risk of reoffending as “unacceptable”, the Tribunal distorted the evaluation process.
[214] This is not to suggest that the risk of recidivism is not relevant. Nor is it to suggest that the nature of the likely reoffending is irrelevant to the assessment. What is the problem is the rule of thumb used by the Tribunal in this case that, because of the violent nature of the offending, only a low risk of reoffending would suffice. This meant that deportation was inevitable, despite the strength of the humanitarian factors in this case and in particular the fact that Mr Helu has been in New Zealand since early childhood and also despite the fact that, as recognised by the Tribunal, the index offence and the other offending taken into account by the Tribunal were not at the higher end of the scale.
(Footnotes omitted).
Helu overall
[49] The above analysis demonstrates that in Helu a majority of the Supreme Court, explicitly comprised of McGrath, William Young, Arnold JJ, and implicitly including Glazebrook J, found risk of re-offending to be properly taken into account at the second (public interest) stage of the inquiry required under s 105 of the 1987 Act. And while Elias CJ observed that “some consideration of future behaviour is inescapably bound up with deciding [whether] it would be unjust or unduly harsh to deport”,43 the observation was not expressed in mandatory terms and its logical tidiness as a first- stage factor is questionable.
Guo v Minister of Immigration — s 207(1), Immigration Act 2009
[50] As mentioned above, the Supreme Court’s judgment in Guo related to s 207(1) of the Act. For the entire Court, William Young J addressed the extent of overlap between factors relevant at the first and second stages as follows:44
43 At [92].
44 At [9].
Whether deportation would be “unjust or unduly harsh” is to be assessed in light of the reasons why the appellant is liable for deportation and involves a balancing of those considerations against the consequences for the appellant of deportation. The public interest is not immaterial to the application of s 207(1)(a) but is primarily relevant to the application of s 207(1)(b). In determining whether deportation would be unjust or unduly harsh, the primary focus is on the personal circumstances of the person in respect of whom deportation is proposed and those of immediate family members who will be affected by that person’s deportation.
[51] It appears that the Supreme Court’s reference to “the reasons why the appellant is liable for deportation” should be understood as a reference to the essential basis of the appellant’s liability for deportation. For example, in cases of liability for deportation arising under s 161 of the Act upon conviction for offending within a particular timeframe of obtaining residency (as in the present case), the “reasons for liability” will include the fact and nature of that offending. And in cases of liability for deportation arising under s 158(1)(b) of the Act where the Minister has determined that the information provided in the appellant’s application for residence was founded on deceptive information (as in Guo itself), the “reasons for liability” will include the circumstances in which that information was provided, including the extent to which the appellant was involved in and/or aware of the deception.
[52] In this way, the Supreme Court’s approach does not mandate consideration at the first (unjust or unduly harsh) stage of factors more apt for consideration at the second (public interest) stage, such as risk of re-offending. To do otherwise would risk conflating and therefore undermining the “sequential approach” mandated in Ye and (by the majority) in Helu.
Finding on failure to consider risk of re-offending at ‘unjust or unduly harsh’ stage of s 207(1)
[53] In light of this analysis, I do not consider it seriously arguable that Mr Taylor’s low risk of re-offending was required to be taken into account at the first stage of inquiry under s 207(1)(a).
[54] Mr Graham is correct that the minority judgment of Elias CJ in Helu contemplates consideration of risk of re-offending at the first stage. However, the judgment is not framed expressly to require such consideration. Instead, the apparent
reason for Elias CJ mentioning that consideration of future behaviour is “bound up” with risk of re-offending at the first stage was to emphasise that when risk of re-offending is taken into account at the second stage it should not then overwhelm the decision-making task. As mentioned above, situations in which such reasoning might occur in practice may be difficult to identify.
[55] In any event, Elias CJ’s observation was made in the course of a dissenting judgment. The majority preferred a more structured two-stage approach to the relevant tribunal’s task, with risk of re-offending being an important factor at the second stage.
[56] Further, the logic of Mr Graham’s approach in cases of low risk of re-offending is elusive. The proposition he made was that as “a factor specific to the [appellant]”, the Tribunal should take risk of re-offending into account when making the “personal assessment as to whether it would make it unjust or unduly harsh to deport”. But in cases of low risk of re-offending, such risk cannot logically form part of the “reasons why [an] appellant is liable for deportation”. And a low risk of re-offending is not happily described as amongst the exceptional humanitarian considerations requiring to be “balanced against” the reasons for deportation liability under Guo. Instead, low risk of re-offending naturally falls for consideration at the second (public interest) stage.
Question Two: incorrect or contradictory findings of fact re family support in Canada
[57] I do not accept Mr Graham’s submission that the Tribunal was inferring, in light of its view of Mr Taylor’s family relationships, that if Mr Taylor was to return to Canada he would have family support. Instead, it simply noted that an irretrievable break down in the relationship had not been demonstrated.45 The Tribunal was entitled to take that view, notwithstanding Mr Jackson-Taylor’s evidence that Mr Taylor’s sisters are “pretty strong on having no contact with him whatsoever”.
[58] Further, the fact that the Tribunal did not quote that particular passage of Mr Jackson-Taylor’s evidence does not establish that the Tribunal did not have it in
45 Decision at [117].
mind. The Tribunal specifically referred to Mr Jackson-Taylor’s evidence of seeking to maintain contact with Mr Taylor’s daughters as the “basis upon which the appellant can begin to rebuild his relationships with his daughters, if he wishes to, however challenging and incremental that may be”.
[59] The proposition that the Tribunal made incorrect or contradictory findings in respect of this aspect of Mr Taylor’s family support in Canada does not amount to a seriously arguable error, let alone an error justifying leave to appeal under the “some other reason” head.
Question Three: procedural unfairness
[60] Section 222(1) of the Act required the Tribunal to “determine an appeal or matter with all reasonable speed”. And under s 228:
228 Information Tribunal may consider
(1)When considering an appeal or a matter, the Tribunal may seek information from any source.
(2)However, the Tribunal is not obliged to seek any information, evidence, or submissions further to those provided by the appellant or the affected person and the Minister, the chief executive, or a refugee and protection officer (as the case may be), and may determine the appeal or matter only on the basis of the information, evidence, and submissions provided by those persons.
[61] Mr Taylor’s appeal to the Tribunal was lodged on 22 December 2021, and not heard until late August 2022. As is apparent from the part of the Decision relied upon for him46, Mrs Taylor’s GP did not refer her for NASC assessment, at her request, until May 2022. The highest counsel before the Tribunal at the hearing in late August 2022 could put its pending availability was that it was likely to be available shortly, since the timeframe for such reports was understood to be 90 days.
[62] In these circumstances, it does not appear seriously arguable that the Tribunal was bound not to proceed without the NASC report. To the contrary, s 228 makes it “perfectly clear” the Tribunal may seek information from any source but is “expressly under no obligation to do so” and is “fully entitled to restrict its inquiry” to the
46 See [16] above.
information provided by the parties,47 at least in the absence of exceptional circumstances such as where a parent has plainly failed to discharge a duty to affected children where a positive duty might arise.48 No such exceptional circumstances arose here.
[63] Further, the content of any such report remains speculative. There was no application to adduce a completed NASC report in the course of this proceeding. The Tribunal’s view was that it had a sufficient evidential basis for its Decision, including the opinion of Mrs Taylor’s GP that she would be able to manage at home in the event of Mr Taylor’s deportation. On that basis, Mr Taylor cannot meet the threshold for raising “some other reason” (than a question of law of general or public importance) identified in Taafi, of demonstrating “individual injustice to such an extent that the Court simply could not countenance the first instance decision standing”.49 As far as the Court is aware, the evidence that is available even now is that relied on by the Tribunal in making its Decision.
Result
[64] None of Mr Taylor’s proposed issues for determination on appeal raise a seriously arguable question of law that has general or public importance or, for some other reason, warrants a decision from the High Court.
[65]Mr Taylor’s application for leave to appeal to this Court is dismissed.
Johnstone J
47 Minister of Immigration v Wu [2019] NZCA 237, [2019] NZAR 1217 at [42].
48 Singh v Chief Executive of Ministry of Business, Innovation and Employment [2022] NZHC 738 at [59]–[66].
49 Taafi v Minister of Immigration, above n 15, at [55].
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