Tuitupou v New Zealand Immigration and Protection Tribunal
[2015] NZHC 3158
•10 December 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-000424
CIV-2015-404-000428 [2015] NZHC 3158
UNDER the Judicature Amendment Act 1972 and
the Immigration Act 2009
IN THE MATTER OF
applications for leave to appeal (against) and review a decision of the New Zealand Immigration and Protection Tribunal of
26 September 2013
BETWEEN
VILIAMI MOTI TUITUPOU Applicant
AND
THE NEW ZEALAND IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
THE MINISTER OF IMMIGRATION Second Respondent
Hearing: 28 October 2015 Counsel:
C Curtis and T G Zohs for the Applicant
No Appearance of, or for the First Respondent
D J Dufty and S A Wilson for the Second RespondentJudgment:
10 December 2015
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 10 December 2015 at 4.00 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors: Marshall Bird and Curtis, Auckland
Meredith Connell, Auckland
Copy To: Crown Law (D Perkins and M McKillop), Wellington
TUITUPOU v THE NZ IMMIGRATION AND PROTECTION TRIBUNAL [2015] NZHC 3158 [10 December
2015]
Introduction
[1] Mr Tuitupou is a 48 year old citizen of Tonga. He is married with three children in New Zealand, and two older children who live in the United States. He has lived in New Zealand since February 2005.
[2] Mr Tuitupou seeks leave to appeal and leave to review the decision of the Immigration and Protection Tribunal (Tribunal) confirming his deportation back to Tonga.1
[3] He says the Tribunal erred by taking into account his non-disclosure of prior convictions and the effect of deportation at the wrong stage of the sequential test required under s 207(1)(a) of the Immigration Act 2009 (Act). He also says that the Tribunal failed to take proper account of New Zealand’s international obligations in its assessment and that it failed to consider all the evidence before it in making its decision.
[4] The second respondent opposes both applications for leave on the grounds that the Tribunal did not err. But, even if it did, the second respondent says that the questions raised are not of general or public importance such that leave should be granted in this case.
Background
[5] Mr Tuitupou was born in Tonga but moved to American Samoa with his family at the age of 10. His mother died soon after and he and his family moved to Hawaii in 1978 where his father remarried. At the age of 12, Mr Tuitupou then moved to Utah and was cared for by an older sister.
[6] Mr Tuitupou married and had two children while living in the United States. Those children still live in the United States.
1 Tuitupou [2015] NZIPT 501601.
[7] From 13 May 1986 to 25 January 1999, Mr Tuitupou was convicted of seven offences in the United States including burglary, theft, possession of stolen property, possession of drugs, assault, sexual assault and domestic violence. Four of those convictions resulted in custodial sentences.
[8] On 1 February 2001, Mr Tuitupou was deported from the United States to
Tonga.
[9] Mr Tuitupou was granted a limited purposes visa in order to travel to New Zealand to attend a niece’s wedding on 9 December 2002. He returned to Tonga after the wedding. He was granted a further limited purposes visa on
23 March 2005 but on this occasion he remained in New Zealand after the visa had expired.
[10] Mr Tuitupou’s first marriage ended on 17 May 2007 and he remarried on
29 May 2007. His wife moved from Tonga when she was 20 years old and is now a New Zealand resident. They have three children who were aged five, six and seven years at the time of the Tribunal’s decision.
[11] On 15 August 2011, Mr Tuitupou was granted a two year work visa. Mr Tuitupou and his family moved to Christchurch where he worked as a carpenter and builder.
[12] On 1 March 2012, Mr Tuitupou applied for residence under the Family (Partnership) category. He did not disclose his prior convictions in the application, nor his subsequent deportation from the United States to Tonga. Those convictions had not been disclosed in any of the prior visa applications granted to him.
[13] In the course of its assessment of his application, Immigration New Zealand received advice from the FBI of Mr Tuitupou’s prior convictions and his deportation from the United States. In an exchange of correspondence about the non-disclosure, Mr Tuitupou contended that he did not disclose the prior convictions as he thought they had been expunged.
[14] Mr Tuitupou’s work visa expired on 15 August 2013 and from that time onwards he remained in New Zealand unlawfully. As a result, he became liable for deportation.
[15] His further request for a special direction pursuant to s 61 of the Act was refused on 9 September 2013.
[16] Mr Tuitupou filed an appeal against deportation on humanitarian grounds pursuant to s 207. The Tribunal declined that appeal, and it is from that decision that Mr Tuitupou now seeks leave to appeal or review.
Grounds for leave
[17] An application for leave to appeal is brought pursuant to s 245 of the Act. That section provides that a party to an appeal to the Tribunal who is dissatisfied with any decision of the Tribunal as being erroneous in point of law may, with the leave of the High Court, appeal to the High Court on that question of law.
[18] In deciding whether to grant leave to appeal, 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.
[19] Mr Tuitupou seeks leave to appeal on grounds which are summarised as follows:
(a) That the Tribunal has erred in law in applying the s 207 test by:
(i)Misdirecting itself in relation to the sequential application of the three ingredients of the test in s 207(1)(a); and
(ii)By referring to the gravity of historical offending and character issues to assist it to determine whether deportation would be either unjust or unduly harsh. As developed in submissions, the legal error raised by this ground was that the Tribunal had
considered the non-disclosure of the offending under the first limb (s 207(1)(a)), rather than the second limb (s 207(1)(b)); and
(iii)By failing to give reasons as to why public interest issues (the second limb) outweighs the exceptional circumstances of a humanitarian nature (the first limb) of the s 207 test.
(b)The Tribunal erred by failing to have regard to or erring in its application of the United Nations Convention on the Rights of the Child (UNCROC) and the International Covenant of Civil and Political Rights (ICCPR).
(c) That the Tribunal did not have regard to the evidence before it
concerning the rights of the applicant’s children and family.2
[20] Mr Tuitupou also seeks leave to review under s 249 of the Act.3 That section requires the Court to have regard to whether the review proceedings would involve issues that could not be adequately dealt with in an appeal against a final determination of the Tribunal.4 If that requirement is met, then the Court will go on to consider whether the issues are of general or public importance or for some other reason are issues that ought to be submitted to the High Court.5
[21] Mr Tuitupou seeks leave to review on essentially the same substantive grounds as leave to appeal is sought.
[22] As the appellant’s primary argument is that the Tribunal erred in its application of the s 207 test, I first consider the relevant test for appeals pursuant to s 207 and then go on to consider how the Tribunal applied it in this case. The three
substantive grounds raised in the leave applications are then considered separately.
2 This was included in the application as a ground supporting the general or public importance part of the s 245 test. I have nevertheless treated it as a further alleged error of law relevant to the first part of the s 245 test.
3 Section 249 was amended after the application for review was brought, but the relevant test remains substantially the same in the two sections.
4 Immigration Act 2009, s 249(1C)(a).
5 Section 249(1C)(b).
Section 207 test
[23] The first ground for leave involves a consideration of the legal test to be applied under s 207.
[24] Section 207 provides:
207 Grounds for determining humanitarian appeal
(1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—
(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
(2) In determining whether it would be unjust or unduly harsh to deport from New Zealand an appellant who became liable for deportation under section 161, and whether it would 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 made in accordance with section 208.
[25] There are two limbs to s 207(1). The first limb is contained in s 207(1)(a) (first limb or humanitarian limb). The second limb is contained in s 207(1)(b) (the second limb or public interest limb).
[26] The Supreme Court in Ye v Minister of Immigration considered the predecessor section to s 207 which was in nearly identical terms.6 The Supreme Court confirmed that the two limbs are to be considered sequentially:7
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 injustice or undue harshness but also that it would not be
6 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.
7 At [30].
contrary to the public interest for them to be allowed to remain in
New Zealand.
[27] In the recent case of Helu v Immigration and Protection Tribunal, the
Supreme Court confirmed the application of that sequential approach to s 105 of the
1987 Act.8 Although not in identical terms to s 207, the Supreme Court confirmed in Guo v Minister of Immigration, that the differences between the two sections are immaterial, and accordingly the sequential approach will apply to s 207 also.9
[28] The Supreme Court in Helu confirmed that while the two tests are distinct and the outcome on neither limb is to be determinative of that on the other, factors relevant to each overlap.10 The Supreme Court confirmed that while some of the same factors considered in assessing whether deportation would be unjust or unduly harsh will fall for consideration in assessing the public interest limb of the test, “in this step they are to be viewed through a different lens”.11
[29] In Ye, the Supreme Court held that the first limb had three “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.12 As to the
link between these three ingredients, the majority of the Court said:13
[37] One further point should be mentioned. The link between “exceptional circumstances of a humanitarian nature” and “unjust or unduly harsh” provided by the words “that would make it” can be read in two ways. The first is to hold that the presence of exceptional circumstances necessarily demonstrates injustice or undue harshness with no further assessment being required. On this basis the words “that would make it” mean that the necessary injustice or undue harshness derives from the very fact of there being exceptional circumstances. The second reading involves an assessment of whether the exceptional circumstances found to exist make it unjust or unduly harsh to remove the person. On this view that consequence does not necessarily flow from the existence of exceptional circumstances of a humanitarian nature.
[38] We consider the second reading is to be preferred as more appropriately serving the statutory purpose. Whether the particular exceptional circumstances give rise to the necessary injustice or undue
8 Helu v Immigration and Protection Tribunal [2015] NZSC 28 at [157].
9 Guo v Minister of Immigration [2015] NZSC 132 at [8].
10 Helu v Immigration and Protection Tribunal, above n 8 at [157].
11 At [169]-[170].
12 Ye v Minister of Immigration, above n 6 at [34].
13 The Chief Justice differed to the majority in this respect finding that s 47(3) required a composite approach rather than the approach favoured by the majority.
harshness is a matter for the assessment of the decision-maker. It will depend on how compelling or persuasive the exceptional circumstances are. Had the first meaning been intended there need only have been reference to exceptional circumstances of a humanitarian nature. The presence of such circumstances would have fulfilled the first criterion without reference to injustice or undue harshness. Those concepts must have been intended to contribute to the overall test and would effectively be written out if the first meaning were to be adopted.
[30] These passages in Ye have been interpreted as requiring a sequential approach to the ingredients in the first limb of s 207.14 That means the Tribunal must first assess whether there are “exceptional circumstances of a humanitarian nature” (the first two ingredients) and if there are, go on to assess whether deportation would be unjust or unduly harsh (the third ingredient).
[31] The issues involved in this appeal require an assessment of the Tribunal’s
approach to see whether it arguably erred in its application of s 207.
Tribunal’s decision
[32] After reviewing the relevant background and the appellant’s case, the Tribunal then set out the statutory grounds for the appeal pursuant to s 207. It referred to the Supreme Court’s decision in Ye and the sequential approach to the three ingredients of the first limb.
[33] The substantive part of the Tribunal’s decision is contained under a general heading: “Assessment” and a sub-heading: “Whether there are exceptional circumstances of a humanitarian nature”. The Tribunal considered a variety of factors in this section under further subheadings, namely: the impact of deportation on the wife and children; the children; the appellant’s wife; the appellant’s personal history; character issues; and support from the church.
[34] In assessing these various factors, it took into account the effects of
deportation both on the appellant, and on the appellant’s family. For example, the
Tribunal refers to the appellant’s argument that he should be allowed to remain in
14 See for example Minister of Immigration v Jooste [2014] NZHC 2882, [2015] 2 NZLR 765 at
[25].
New Zealand in order to keep the family unit intact.15 The Tribunal reviews the position of the children, expressing the view that:16
[T]hey are of an age where they could adapt to living in Tonga where there are adequate educational facilities, if their parents make the decision to relocate them to that country at some point.
[35] Similarly, the support structures in place for Mr Tuitupou’s wife and children
whether in New Zealand or Tonga were also considered by the Tribunal.17
[36] The Tribunal also reviewed Mr Tuitupou’s criminal history which he had failed to declare in his application and the sentences imposed under a “character issues” heading. The Tribunal canvassed the reasons proffered by Mr Tuitupou for his failure to declare these convictions and his deportation from the United States and expressed the following views:
[42] While his criminal convictions in the United States are now well in the past, the appellant demonstrated a willingness to mislead Immigration New Zealand in his application for residence, as recently as 2012, by failing to declare these. He was informed, as part of the processing of that application, that he was caught by section 15(1)(f) of the Act and was therefore not eligible for a visa in New Zealand, unless granted a special direction pursuant to section 17. Immigration New Zealand declined the appellant’s request for a special direction in September 2013.
[43] While the appellant deeply regrets his past mistakes and the situation he now finds himself in, he deliberately misled Immigration New Zealand in
2012 when he failed to declare his past criminal convictions and his deportation from the United States in 2001. The integrity of the application process turns on the scrupulously honest and careful completion of forms.
The Tribunal considers that any manner of immigration fraud is serious and something that is to be weighed against an appellant. The integrity of the
immigration system is a matter of some significance to both the
New Zealand government and the public.
[37] The Tribunal expressed its conclusion and determination as follows:
Conclusion
[47] The Tribunal has considered the appellant’s circumstances including the fact that his wife and three children are New Zealand citizens. While separation may be distressing, this does not amount to exceptional circumstances. It will be up to the appellant and his wife, with the support of
15 Tuitupou, above n 1 at [27].
16 At [28].
the wife’s sister who lives in their household, to make plans for their immediate future. While the appellant does not suffer from any health problems, his wife has been under a lot of stress because of his pending deportation. However, this is not uncommon among appellants and their families, who are anxious about the outcome of their appeals, and does not create exceptional circumstances. The appellant’s wife is not in paid employment and would be able to return to Tonga, taking their three children to settle them into primary school there. The appellant has useful skills as a carpenter which will improve his prospects of employment in Tonga, as will his senior status in his church. The children are young enough to make a successful transition to live in their parents’ homeland, if that is what the couple decide.
DETERMINATION
[48] Considered cumulatively, the Tribunal finds there are no exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand.
[49] As he has been unsuccessful on the first limb of the statutory test, it is unnecessary for the Tribunal to consider the public interest. If it did, his convictions would be an adverse factor which the Tribunal would have to weigh along with his non-disclosure of these on various visa applications.
[38] There is an issue between the parties as to the basis upon which the Tribunal determined the appeal. In my view, the conclusion and determination sections make it clear that the Tribunal disposed of the appeal under the first limb of the s 207 test. Having found that this first limb could not be met, the Tribunal did not go on and consider the second limb of the test.
[39] What is less clear from the Tribunal’s decision is the approach it took in assessing whether the three ingredients of the first limb had been met. I accept that the Tribunal’s determination in [48] above could be interpreted to mean that all three ingredients of the first limb were considered cumulatively as the applicant contends.
[40] However, viewed in the context of the decision as a whole, I consider the Tribunal’s determination was only in respect of the first two ingredients of the humanitarian limb. The Tribunal referred to the sequenced approach required by Ye in relation to the three ingredients in its decision so was aware of the accepted approach.18 The substance of the Tribunal’s analysis concerns matters relating to the personal circumstances of the appellant, as does the conclusion expressed at [47] of
the decision. That analysis is conducted under a heading (“whether there are
exceptional circumstances of a humanitarian nature”) which refers only to the first two ingredients of the first limb. I therefore agree with the second respondent’s submission that the reference to considering matters “cumulatively” in [48] of the decision relates to its consideration of the first two ingredients only.
[41] This means it is arguable that the Tribunal took into account the effects of deportation, and the non-disclosure of the prior convictions in making its assessment of the first two ingredients of the first limb of the s 207(1)(a) test. The first and key issue raised by the application is whether the Tribunal erred in law by taking this approach. If it did, the next issue is whether the question of law is one of general or public importance or which, for any other reason, leave should be granted.
Misapplication of the s 207 test?
Question of law
[42] Mr Tuitupou’s submissions that the Tribunal erred in its misapplication of the
s 207 test may be broadly summarised along the following lines:
(a) The Tribunal erred in law by not undertaking the analysis in the second limb of the test in accordance with the Supreme Court’s decision in Ye.
(b)The Tribunal erred in taking into account the non-disclosure of the criminal offences under the first limb, when it is only relevant to the second limb of the test under s 207(1)(b) (public interest).
(c) The Tribunal conflated the first and third ingredients of the first limb.
The focus in submissions was on the Tribunal’s assessment of the effects of deportation as establishing the first two ingredients when the applicant says they are only relevant to the third ingredient (unjust or undue hardship). Whether the Tribunal was right to consider the offending and its non-disclosure as part of its enquiry into the first
two ingredients rather than the third ingredient is also relevant in this context.
[43] The argument that the Tribunal erred by not undertaking the analysis required by the public interest limb at s 207 can be dealt with quite shortly. The sequential analysis to the first two limbs of s 207 means that an assessment of the public interest limb only occurs if the requirements of the humanitarian limb have been met. In this case the Tribunal found that the humanitarian limb of the s 207 test had not been established and so there was no need to go on and consider the public interest limb. That approach is consistent with the decision in Ye. It cannot be said that the Tribunal erred in law in this respect.
[44] Whether the Tribunal was wrong to take into account the non-disclosure of criminal history in the first limb of the test rather than the second limb was recently considered in Rameshi v Naghizadeh.19 That case involved a grant of refugee status to the appellants on grounds which were later discovered to be false. The issue was whether the Tribunal had erred in taking into account the false account under the first limb of the s 207 test rather than the second limb. Justice Hinton declined the appeal finding that the Tribunal was entitled, “in fact obliged”, to take account of the reasons for the deportation liability in determining whether deportation was unduly harsh under the first limb of the test.20 Her Honour found that the subsection is a “clear legislative direction that the nature of any criminal offending can be relevant to both limbs of the test”.21
[45] I consider the principles arising out of Rameshi apply in this case. The effect of non-disclosure of criminal offending is a factor which may be relevant to either limb of the s 207 test. That result is consistent with the Supreme Court’s decision in Helu. It follows that I do not consider the Tribunal erred by having regard to the non-disclosure of criminal offending in the first limb as opposed to the second limb
of s 207.
19 Rameshi v Naghizadeh [2015] NZHC 2803. This decision was released after the hearing in this case, but it was anticipated by the parties and I was referred to the decision of Woolford J granting leave to appeal and both parties addressed the relevant issues in submissions.
20 At [47].
21 At [46].
[46] However, Rameshi does not answer the applicant’s third argument which relates to an error in the application of the test by considering deportation and criminal history factors in the assessment of the first two ingredients rather than the third ingredient of the first limb.
[47] The Tribunal in Rameshi had considered the fraudulent account given in the appellant’s visa application as part of its assessment of whether deportation would be “unjust or unduly harsh”, that is, the third ingredient of the first limb. As I have found above, in this case, the Tribunal appears to have considered it as part of its assessment of the first two ingredients of the humanitarian limb.
[48] In Chan v Minister of Immigration, Brewer J dismissed an application for leave to appeal on the grounds that the Tribunal had erred by not taking into account the gravity of offending in its assessment of “exceptional circumstances of a humanitarian nature”.22 His Honour found that the gravity of offending was not relevant to the exceptional circumstances part of the first limb:
[12] In my view, the gravity of the offending which triggered liability to deportation is not relevant to the first step in the s 207(1)(a) analysis. It cannot be, or contribute to, an exceptional circumstance of a humanitarian nature. It will be relevant to the second stage of the analysis if it is reached. Obviously, when considering whether exceptional circumstances of a humanitarian nature would make it unjust or unduly harsh for an appellant to be deported, the gravity of the appellant’s offending must be taken into account. Similarly, although in a different context, gravity of offending – including likelihood of recidivism – would be one of the circumstances to be taken into account in determining the public interest in deporting the appellant.
(emphasis added)
[49] On the basis of this decision therefore, I accept that it is arguable that the Tribunal erred in taking into account the nature of the offending and its non- disclosure as part of its assessment of whether there are “exceptional circumstances of a humanitarian nature”.
[50] I stress however that whilst this may raise an arguable error of law, it is far from certain that the Tribunal did in fact err by having regard to these factors as part
22 Chan v Minister of Immigration [2015] NZHC 2036.
of its assessment. It is one thing to say that the Tribunal did not err by not taking these factors into account (as in Chan), but quite another to say that the Tribunal did err by taking them into account. The recent Supreme Court decision in Guo also suggests that the fact of the offending, at least in terms of fault for deportation, is relevant to the exceptional circumstances assessment.23 The issue is not clear-cut.
[51] The Tribunal is alleged to have erred in the same respect with regard to its consideration of the effects of deportation.
[52] There can be no real dispute that the impact of deportation will be considered as part of the “unjust or unduly harsh assessment” of the first limb. The Supreme Court’s decision in Guo exemplifies that point. That case concerned an application for leave to appeal on the question of whether the Tribunal had erred in concluding that it would not be unjust or unduly harsh to deport the appellants from New Zealand. The Court said: 24
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.
[53] Just because the effects of deportation are relevant to the third ingredient, does not necessarily mean they are irrelevant to the assessment of the first two ingredients. That was, at least implicitly, recognised in the following passage from the Guo decision:25
Eligibility for deportation is usually associated with fault on the part of the person to be deported, most obviously, the commission of offences or misrepresentations on applications for residency. In this context, the present appeals have the unusual feature that those to be deported (Jiaxi and Jiaming) are without any fault. For this reason, it could fairly be said that the circumstances in relation to them were “exceptional”.
[54] The applicant will therefore have some hurdles to overcome in establishing that the Tribunal erred in this respect also. Even if it can be established that there
23 Guo, above n 9 at [10].
24 At [9].
25 At [10].
was an error, it is far from clear that such an error had a material bearing on the decision reached by the Tribunal.
[55] Nevertheless, my role is not to determine the appeal, but to assess whether there are potential errors in the Tribunal’s decision which raise questions of law to be argued on appeal.
[56] I accept that the determination of the correct approach to an assessment of the three ingredients of the humanitarian limb is a question of law raised by the Tribunal’s consideration of Mr Tuitupou’s criminal history and the effects of deportation in this case. That part of s 245 is satisfied. The next issue is whether this question of law meets the general or public importance or “other reason” test set out in s 245.
General or public importance/other reason
[57] The issues raised by this argument relate to the correct application of the test in the first limb of the s 207 test.
[58] The issues raised by the appropriate approach to the three ingredients of the first limb have not been directly addressed in recent decisions on the Act. Although Chan determines that omitting to consider the gravity of offending as part of the exceptional circumstances requirement is not in error, it does not conclusively determine whether taking these factors into account are in fact an error of law. I accept that the correctness of that approach will have a bearing on other cases under s 207.
[59] My own view is that the principles in Helu are likely to apply so that factors relevant to one ingredient are not necessarily irrelevant to other ingredients of the first limb, but may be seen through a different lens. However, that is ultimately a matter for the Judge hearing the appeal to determine with the benefit of full argument from both parties.
[60] I am satisfied that the public and general importance requirements of s 245 are therefore met in respect of the question of law identified and I intend to grant leave to appeal on this basis.
Failure to have regard to international obligations
[61] Mr Tuitupou’s second ground in support of his leave application is that the Tribunal failed to take into account New Zealand’s obligations under UNCROC and the ICCPR.
[62] I am not persuaded that these matters were not taken into account by the Tribunal such that it could be said that the Tribunal had erred in law. The Tribunal expressly refers to article 3.1 of UNCROC26 and considers factors relevant to the rights in UNCROC and ICCPR even if there were no express references to these international obligations in its decision.27
[63] At most, the applicant’s complaint under this head is a challenge to the weight that the Tribunal put on this evidence. Errors relating to the weight of evidence do not allow a Court to interfere with the Tribunal’s decision.28
[64] But, even if I am wrong on that, I am not persuaded that any question of law raised under this head would be able to meet the public interest threshold in either s 245 or s 249. Whether the Tribunal took into account these obligations in this case is a matter particular to the facts of the case and does not raise any general questions of law about how those obligations should be taken into account generally.
Failure to take into account evidence
[65] Mr Tuitupou also says that the Tribunal did not take into account certain evidence before it in making its decision.
26 Tuitupo, above n 1 at [28].
27 At [24].
28 Poulter v Minister of Immigration [2013] NZHC 3287 at [36].
[66] That evidence relates to Mr Tuitupou’s children having integrated into the New Zealand education system; Mr Tuitupou having no family remaining in Tonga; Mr Tuitupou’s separation by way of deportation from a previous family consisting of two older children; and the Church’s “decisive role in Mr Tuitupou’s reformation”.
[67] I do not consider it seriously arguable that the Tribunal erred in this respect either. The Tribunal listed the documentation provided to it, including school reports and associated letters29 and noted that it had considered all submissions and documents provided by the appellant.30 The fact that Mr Tuitupou no longer had
family in Tonga was referred to in the decision,31 as was the fact that he had children
who remain in the United States.32 The effect of separation on his New Zealand based children was also considered by the Tribunal,33 as was his role with the Church.34
[68] I consider any complaint under this head can only be directed to the weight the Tribunal placed on these various factors, which does not give rise to an error of law in this case.
[69] In any respect, I do not consider the public interest threshold could be met even if it could be shown that there was a question of law which was seriously arguable. All these factors are specific to Mr Tuitupou and do not raise questions of general or public importance.
[70] I would therefore decline leave to appeal on this ground.
Leave to review
[71] I have indicated that I intend to grant leave to appeal on the correct approach to the three ingredients of the first limb. I consider that is an issue to be dealt with
on appeal rather than review.
29 Tuitupo, above n 1 at [24(l)].
30 At [25].
31 At [22].
32 At [17].
33 At [28].
34 At [37].
[72] The grounds upon which I have declined leave to appeal do not raise any issues which could be dealt with by way of review. In any respect, I do not consider those grounds meet the public interest requirement of s 249 for the reasons set out above.
[73] I therefore decline to grant the application for review.
Result
[74] The application for leave to appeal is granted on the following question of law:
Did the Tribunal err in law by considering the appellant’s criminal offending and the non-disclosure of that criminal offending and the effects of deportation as part of its assessment of “exceptional circumstances of a humanitarian nature” in s 207(1)(a) of the Act.
[75] The application for review is dismissed.
Edwards J
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