Wang v Deportation Review Tribunal HC Auckland CIV-2010-404-3096
[2011] NZHC 440
•2 May 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-3096
BETWEEN JINGLIN WANG Plaintiff
ANDTHE DEPORTATION REVIEW TRIBUNAL
First Defendant
ANDTHE MINISTER OF IMMIGRATION Second Defendant
Hearing: 16 March 2011
Counsel: R Zhao for Plaintiff
A Powell for Second Defendant
Judgment: 2 May 2011 at 3:00 PM
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 2 May 2011 at 3:00 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
SOLICITORS
Baker Law (Auckland) for Plaintiff
Crown Law Office (Wellington) for Second Defendant
COUNSEL R Zhao
WANG V THE DEPORTATION REVIEW TRIBUNAL HC AK CIV-2010-404-3096 2 May 2011
Introduction
[1] Jinglin Wang has applied to the Court to review a decision of the Deportation Review Tribunal dismissing his appeal against a deportation order made against him by the Minister of Immigration, under s 91(1)(a) of the Immigration Act 1987 (―the
1987 Act‖), on 3 September 2008. The order was made on the basis of Mr Wang‘s
conviction on a charge of receiving stolen property, for which he was sentenced to
14 months‘ imprisonment.
[2] Mr Wang lives in New Zealand pursuant to a residence permit and he wants to stay here. He has asked the Court to set aside the Tribunal‘s decision on the grounds of several alleged errors of law.
Background
[3] The plaintiff is a 32-year old Chinese national who came to New Zealand in
2003 on a student permit to undertake a one-year English language course, followed by a Bachelor of Business Studies degree. On 26 April 2006, he and his then-partner were granted permanent residence under the Skilled Migrant category of residence policy. Mr Wang continued with his studies but, in July 2007, he was arrested and charged with a number of criminal offences, namely:
(a) Four counts of receiving a total of $19,713.14 worth of stolen goods, being reckless as to whether or not they were stolen (ss 246 and 247
Crimes Act 1961);
(b) Accessing a computer and dishonestly obtaining 30 pirated movies
(s 249(1)(a) Crimes Act 1961); and
(c) Two counts of, without copyright licence, selling 11 and making for sale 75 pirated DVDs (ss 131(1)(e) and (5)(a) Copyright Act 1994).
[4] The plaintiff pleaded guilty to each charge. On 5 February 2008, he was convicted and sentenced to concurrent terms of 14 months‘ imprisonment on each charge. He was refused home detention.
[5] Having been convicted, within two years after first being granted a residence permit, of an offence for which the Court had power to impose imprisonment for a term of three months or more, the plaintiff became liable to deportation under to s 91(1)(a) of the 1987 Act. A deportation order was made on 3 September 2008 and served on the plaintiff on 18 November 2008. The plaintiff appealed to the Deportation Review Tribunal against the deportation order, under s 104 of the 1987
Act.
[6] Section 105 provides the basis upon which the Tribunal was required to determine the appeal. It reads:
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.
[7] Section 105A, so far as is relevant, reads:
105A Right of victims to make submissions on appeal
(1) In determining an appeal under section 104, the Tribunal must have regard to—
(a) any written submissions made to it by a victim of an offence or offences of which the appellant has been convicted and from which the deportation order arose; and
(b) any relevant written submissions made by a victim to the
Minister under section 93A.
(2) In addition to, or instead of, making written submissions under this section, the victim may, with leave of the Tribunal, make oral submissions to the Tribunal on the appeal at the hearing of it.
...
(7) In this section, victim means a victim of an offence of a kind referred to in section 29 of the Victims' Rights Act 2002.
[8] The appeal was heard by the Tribunal on 3 and 4 November 2009. On
17 February 2010, the Tribunal issued its decision declining to quash the deportation order.
[9] The plaintiff did not exercise his right, under s 117 of the 1987 Act, to appeal to this Court against the determination as being erroneous in point of law. He elected instead to make a further submission to the Minister of Immigration as to why he should not be deported.
[10] On being notified in April 2010 that the Minister refused to cancel the deportation order, the plaintiff applied to the Court under the Judicature Amendment Act 1972 for a review of the decision of the Deportation Review Tribunal not to quash the Minister‘s decision to issue a deportation order, and for a review of the Minister‘s refusal to cancel the deportation order following the further representations made by the plaintiff in March 2010.
[11] At the hearing of the application, Mr Zhao indicated that the plaintiff did not pursue the application so far as the Minister‘s decision was concerned. It is, therefore, solely the decision of the Deportation Review Tribunal which is at issue.
The grounds of challenge
[12] The statement of claim alleges three broad grounds for review of the Deportation Review Tribunal‘s decision. Each of these would, if successful, entitle, if not require, the Court to quash the Tribunal‘s decision. In the event of an order quashing the decision, the plaintiff seeks a direction that the Tribunal should rehear his appeal against the deportation order. He also asks the Court to grant an injunction to the effect that he is not to be deported from New Zealand pending further order of the Court.
[13] The first general ground, error of law, is alleged on three separate bases:
(a) That the Tribunal applied the wrong legal test, analysis and/or reasoning in ruling that a ―temporary and limited interference with the [Plaintiff and his wife‘s] family life ... is both necessary and proportionate to the ends sought (the maintenance and integrity of New Zealand‘s immigration system and the denunciation and deterrence of serious offending)‖;
(b)That the Tribunal wrongly considered, in direct contravention of s 105(2)(e) of the 1987 Act, that it did ―not have jurisdiction to go behind the appellant‘s conviction‖; and
(c) That the Tribunal wrongly applied a checklist approach to the considerations in s 105(2), instead of a holistic or universal consideration of the plaintiff‘s evidence and/or submissions.
[14] The second broad ground is that the Tribunal erred in failing to take relevant considerations into account in reaching its decision. It is said that, in particular:
(a) The Tribunal failed to properly give weight to a ―victim‘s‖ plea for leniency and/or the plaintiff‘s remorse and amends;
(b)The Tribunal failed to properly give weight to the contribution the plaintiff made to the community in helping the New Zealand Police and other authorities for the purpose of catching copyright thieves and
―clearing [the] stolen goods market‖;
(c) The Tribunal failed at all, or properly, to consider other relevant factors put forward by the plaintiff such as –
his inextricable assimilation into New Zealand society;
his educational background;
the lack of employment opportunities in China;
his partner‘s medical circumstances;
Chinese familial reliance on his remaining in New Zealand;
and
the consequences that have already befallen him as a result of
his convictions and sentence.
[15] The third ground alleges unreasonableness in that the Tribunal‘s decision will cause the breakup of the plaintiff ‘s family unit and will breach his fundamental international human rights to have a family, pursuant to:
(a) Articles 17 and 23 of the International Covenant on Civil and Political
Rights;
(b)Articles 10 and 11 of the International Covenant on Economic, Social and Cultural Rights; and/or
(c) Articles 12, 16, 23 and 25 of the Universal Declaration of Human
Rights.
[16] In argument before me, Mr Zhao focussed his energies under this head on alleged unreasonableness in that the Tribunal‘s decision was based on unreasonable conclusions. He referred specifically in this respect to findings that:
(a) Ms Che‘s stress is transient;
(b) NZFACT could replace Mr Wang in time; and
(c) That Mr Wang could eventually obtain employment in China.
The defences to this application
[17] As is usual in these cases, the Deportation Review Tribunal filed a notice indicating that it would abide the decision of the Court in respect of the application for review, but sought to appear in order to protect its rights.
[18] The second defendant filed and served a statement of defence to the allegations of error by the Tribunal and by the Minister himself. In essence, the Minister denied all of the allegations of error of law and said that both decisions were reasonable. The statement of defence also pleaded that the application for judicial review was ―an attempt to bypass the right of appeal created by Parliament and the strict 28-day appeal period provided for in s 117, was a collateral attack on the DRT‘s decision and an abuse of process‖.
[19] The second defendant further pleaded that, in the event that the Court accepted that the Tribunal made an error or errors of law in any of the respects alleged, the Court should exercise its discretion against granting relief.
[20] Pursuant to earlier timetabling orders, the parties filed and served written submissions and bundles of authorities. The submissions filed by the second defendant helpfully addressed the issues of law raised by the pleadings both in respect of the Tribunal‘s decision and the Minister‘s decision not to quash the earlier deportation order.
[21] In light of the plaintiff ‘s election not to proceed with his application in respect of the Minister‘s decision, Mr Powell may have been functus officio at the hearing. However, Mr Zhao did not object to Mr Powell‘s making oral submissions in support of the written material which had been filed on behalf of the second defendant, and which addressed the allegations related to the Tribunal‘s decision. That was a helpful approach for both counsel to take.
[22] Mr Powell had been brought in to the hearing as counsel at short notice. Although he did not feel he was sufficiently instructed to seek to amend the statement of defence, by withdrawing the pleading of abuse of process, he said fairly that he did not propose to address any oral argument on the issue. I indicated to him that I considered his attitude to be entirely proper, given that the pleading lacked any merit. The election to issue these proceedings, rather than to appeal on grounds of errors of law, was one which was open to the plaintiff.
[23] Mr Powell also conceded, again quite properly in my view, that if there were errors of law which ―vitiated‖ the Tribunal‘s decision, the only proper course for the Court to take would be to refer the decision back to the Tribunal for reconsideration, on the basis of such directions as the Court might consider appropriate. I took him to mean by that submission that there would have to be exceptional reasons for the Court to find that there were errors of law which justified the quashing of the Tribunal‘s decision, but nevertheless refuse the plaintiff the relief which he sought. I agree with that proposition.
[24] In its decision, the Tribunal referred to the provisions of ss 105(1) and (2) of the 1987 Act, and then reminded itself that the starting point for its consideration of the appeal was the offence which prompted the deportation order and the sentence imposed.[1] The Tribunal said that there then followed a balancing exercise which required weighing the seriousness of the offending giving rise to the deportation order and any other offending, with the compassionate factors favouring the
appellant remaining in New Zealand, having particular regard to the matters set out in s 105(2).[2] These observations are unexceptional.
[1] M v Minister of Immigration HC Wellington AP84/99, 17 August 2000 at [9].
[2] Ibid; Philpott v Chief Executive of the Department of Labour HC Wellington CIV-2005-485-713 21 October 2005 at [69]-[70].
[25] The Tribunal then reviewed the evidence which it had received from the plaintiff and his wife, and from a Mr Tony Eaton, who is a director of NZFACT, the New Zealand investigative arm of the United States Motion Picture Association. Reporting to six of the major movie companies, NZFACT‘s function is to investigate the sale and distribution of pirated movies and to compile reports for presentation to the New Zealand Police for prosecution. In that sense, Mr Eaton might be said to have been representing the interests of a victim of the plaintiff‘s offending. His
organisation, however, is not a victim to which s 105A applies,[3] and the Tribunal was
not obliged to have regard to its views. It chose to do so, however, under the ―other relevant matters‖ category in s 105(2)(h).
[3] See: Immigration Act 1987, s 105A(7) at [7] above.
[26] The Tribunal‘s review of the evidence is comprehensive and Mr Zhao did not challenge it as having been inaccurate or incomplete. On my assessment, it covers all of the relevant facts put before the Tribunal, particularly those upon which the plaintiff sought to rely in pursuing the appeal.
[27] The Tribunal acknowledged that the circumstances of the plaintiff‘s family
were an important consideration. At [57]-[59] the Tribunal said:
[57] As to the appellant‘s wife, we are satisfied that we must treat her as normally resident in China but temporarily in New Zealand. She currently
has no right to remain indefinitely in New Zealand. She holds a student permit, sufficient to the end of her current studies. Whether she would then be eligible for a grant of permanent residence would require a decision by Immigration New Zealand and would involve many issues including qualifications, health, character and language ability. It is, on the evidence before us, no more than speculative.
[58] Ms Che says that she does not want to return to China where it is difficult to find work and where she was unable to qualify as a doctor. She would prefer to live in New Zealand with her husband but states that she will return to China if he is forced to leave. It might be, however, that she will remain here to complete her studies, before returning to China to join him. Thus, the couple might be apart for some years.
[59] We do not consider that the temporary separation of the appellant and Ms Che, should she choose to complete her studies in New Zealand, would give rise to a breach of the right to family unity or constitute arbitrary interference with the family in terms of Articles 17 and 23 of the International Covenant on Civil and Political Rights. As noted earlier, she has no right to remain in New Zealand indefinitely. Even if she elects to remain here to study it will be for a few years only and, in any event, the evidence does not establish that she could not undertake her studies in China.
[28] The Tribunal also acknowledged the stress caused to the plaintiff ‘s wife by her husband‘s predicament. The Tribunal members had the benefit of seeing and hearing Ms Che under careful questioning. They concluded that the stress was transient and would dissipate once the uncertainty of the deportation proceedings was over.
[29] The Tribunal noted that, as the plaintiff‘s parents reside in Beijing, no question of family unity arose. They acknowledged the submission that the plaintiff‘s parents would benefit from his presence in New Zealand because of the hope that better employment opportunities would enable him to provide better financial support for them in later years.
[30] The Tribunal also noted the value Mr Eaton placed on the plaintiff‘s services to NZFACT and the view that he would be difficult to replace.
[31] The Tribunal then assessed whether it would be unjust or unduly harsh to deport the appellant, having regard to the factors specified in s 105(2). There then followed five paragraphs in which the Tribunal discussed the relevant issues and expressed its views. The relevant findings made by the Tribunal were:
(1)The offending was not at the high end of the scale of seriousness, but nor was it trivial. The District Court Judge had described both operations (the stolen goods and the pirated movies) as commercial operations and professional crimes. The Tribunal said they were
―insidious and clandestine. They are difficult to detect and can have significant downstream consequences.‖
(2)The Tribunal accepted that, to a small degree, the plaintiff had ameliorated the harm caused by his copyright infringements by virtue of work undertaken for NZFACT which had been attested to by Mr Eaton. The Tribunal had earlier recorded the evidence given by the plaintiff of his post-conviction co-operation and noted that Mr Eaton, somewhat unusually, supported the taking of a lenient approach which reflected Mr Eaton‘s view that the plaintiff was genuinely remorseful and contrite.
(3)The Tribunal concluded that, while the appellant was reasonably well settled in New Zealand, he was not out of touch with Chinese life and customs. It expressed the view that he would be able to readjust to life in that country, despite a degree of difficulty in finding work.
(4)The Tribunal noted that deportation might require separation of the appellant from his wife for a short time while she completed her studies, but observed that that was a matter of choice, not compulsion.
(5)As to the submission for the plaintiff that his parents relied on his working in New Zealand so that he could support them, the Tribunal came to the view that he would be able to provide such support while working in China.
(6)Finally, the Tribunal noted that while Mr Eaton and NZFACT valued the particular qualities which the plaintiff had in relation to his undercover assistance in detecting other offending, he was not impossible to replace.
[32] Before issuing its decision, the Tribunal members questioned the plaintiff and his wife, and Mr Eaton, closely during the two-day hearing. In my view, the findings referred to were open to them on the evidence.
[33] The Tribunal then concluded as follows:
[72] We have weighed the concerns, notably the interests of the appellant‘s wife and his own circumstances, and find that the offending is such that deportation would not be unjust or unduly harsh.
Discussion of findings under first limb of s 105(2)
Error of law
[34] In challenging the Tribunal‘s approach to the nature of the offending giving rise to the making of the deportation order, Mr Zhao criticised the Tribunal for its treatment of the plaintiff ‘s offending and the circumstances of his convictions. In its decision, the Tribunal said, in relation to the conviction for receiving stolen property:
[50] The appellant says (to the Tribunal) that he did not know the goods were stolen and cared only whether or not they were genuine. He foolishly believed his supplier, he says, that their cheapness was because they were imported. The Police Summary of Facts records him as having met his supplier in car parks, where he would exchange cash for goods. He agrees this happened sometimes, but says that it was only because it happened to be convenient to his supplier.
[51] The appellant attempts to blame his culture and lack of knowledge of
New Zealand business practices for his naivety, stating:
―I never knew that selling goods in the market I will need to keep receipt of products that I bought. You know how Chinese people always do business in an informal way.‖
[52] Such an explanation, from a person who had just completed a Bachelor of Business Studies degree in New Zealand, defies belief. The legal requirement to retain receipts for tax purposes and the very basics of business ethics cannot have been unknown to him.
[53] Counsel for the appellant also urged us to accept that the appellant had acted out of naivety and that he was ‗completely unaware of the source of the goods‘. We do not have jurisdiction to go behind the appellant‘s conviction and, in any event, we do not accept that he did not know the goods were stolen. At the very least, he was wilfully ignorant of the fact that they were stolen. We note that his early plea of guilty acknowledged culpability.
[35] Mr Zhao‘s submissions on this issue focused upon the Tribunal‘s statement that it did ―not have jurisdiction to go behind the appellant‘s conviction‖. He suggested that that amounted to an error of law. He argued that the Tribunal was required to turn its mind to, and reach its own conclusion on, the nature of the offences of which the plaintiff had been convicted and from which the liability for deportation arose, and the nature of any other offences of which the plaintiff had
been convicted.[4]
[4] Immigration Act 1987, s 105(2)(e) and (f).
[36] The Tribunal‘s point, however, was that it appeared to it that the plaintiff had attempted in his evidence before the Tribunal to go further than mitigating his offending to making statements inconsistent with his guilty pleas and convictions on the receiving charges. It was entitled to say that it rejected such an approach, particularly in the context of a full discussion of the sentencing Judge‘s views and its own characterisation of the nature of the offending.
[37] Mr Zhao also criticised the Tribunal‘s approach to the factors in s 105(2) as being a ―tick box‖ approach, rather than being the more ―holistic and universal‖ approach which the scheme of the legislation calls for and which was encouraged in cases such as Kumar v Minister of Immigration[5] and Tau’ili’ili v Chief Executive of the Department of Labour.[6]
[5] Kumar v Minister of Immigration HC Auckland M184/99, 25 March 1999.
[6] Tau’ili’ili v Chief Executive of the Department of Labour HC Wellington CIV-2009-285-75, 10 July 2009 at [55].
[38] While it was undoubtedly necessary for the Tribunal to give genuine consideration to the mandatory factors prescribed in paragraphs (a)-(h) of subs (2), the fact that the Tribunal listed the matters under subheadings, and dealt with each in sequence, does not demonstrate a failure to give each matter proper consideration. That device provided a convenient reminder of the factors to be taken into account. The discussion showed that it weighed each factor and properly directed itself, at [66], as follows:
The Tribunal is required to balance the offending which led to the deportation order, together with any other offending, against the humanitarian factors which favour quashing the order. The nature of the offence alone does not determine the outcome of this issue. There must be a
proper consideration of the specific circumstances and gravity of the appellant‘s offending – see Leiataua v Minister of Immigration (HC Wellington, CIV-2003-485-742, 26 November 2003) per Durie J, at [23]-[24].
[39] Mr Zhao further challenged the approach which the Tribunal had taken in considering the submission that the deportation of the plaintiff would give rise to a breach of the rights of the appellant and his wife to family unity, or otherwise constitute arbitrary interference with the family in terms of Articles 17 and 23 of the International Covenant on Civil and Political Rights. Mr Zhao submitted that the Tribunal‘s approach was inconsistent with a requirement to consider, first, proportionality and then, necessity, in ensuring that deportation did not amount to an arbitrary interference in the rights guaranteed by Articles 17 and 23. He argued that a two-step sequential approach was called for, with the Tribunal first considering whether deportation was proportionate to the end sought (i.e. the maintenance and integrity of New Zealand‘s immigration system, and the denunciation and deterrence of serious offending), and then to consider necessity.
[40] The Tribunal accepted that the requirement of reasonableness, as opposed to arbitrariness, implies that any interference with the rights protected by the Covenant
“must be proportional to the end sought and be necessary in the circumstances of any given case”.[7] The decision of the Tribunal demonstrates that it weighed the mandatory factors in s 105(2), both in terms of the proportionality of the consequences of deportation to the interference with family rights, and in terms of the necessity of deportation as maintaining the integrity of the New Zealand immigration system. To the extent that Mr Zhao‘s submission to the contrary was based on an asserted misunderstanding by the Tribunal of the decision in Nofoaiga v Minister of Immigration[8], it is noteworthy that the members of the Tribunal who comprised the panel in this case were also the members who comprised the Tribunal in Nofoaiga.
[7] Toonen v Australia (Communication No.488/192, UN Doc CCPR/C/50/D/488/1992, 4 April
1994), referred to in Nofoaiga v Minister of Immigration [2009] NZDRT 11 at [78].
[8] Nofoaiga v Minister of Immigration [2009] NZDRT 11.
[41] In my view, there was nothing in the Tribunal‘s response to consideration of
the International Covenant which indicated any error of law. The Tribunal was
required to consider both proportionality and necessity; it did so, and the conclusions which the Tribunal reached in carrying out the weighing exercise were within the Tribunal‘s jurisdiction.
Failure to take account of relevant considerations
[42] In arguing that the Tribunal had failed to take account of relevant considerations, it was submitted that the Tribunal had failed to mention, and had overlooked, letters from the Police and the Film and Video Labelling Body Incorporated which went to the important question of his character and should have been taken into account in assessing the reasonableness of deportation.
[43] While the Tribunal had a duty to give reasons, it was not necessary for it to refer to every piece of evidence received by it.[9] Having regard to the length of the questioning of Mr Eaton on the plaintiff ‘s co-operation with his organisation, I am satisfied that the Tribunal would have had co-operation with the Police and FVLB in mind as mitigating factors in relation to the offending. To the extent that that evidence may have been relevant, the Tribunal can be taken to have considered it in coming to its conclusion that the risk of reoffending by the plaintiff was low.
[9] Butler v Removal Review Authority [1998] NZAR 409 at 420-421.
[44] In any event, even if the Tribunal overlooked the evidence of the Police and FVLB, such evidence would be highly unlikely to tip the balance in favour of the plaintiff, having regard to the view the Tribunal took as to the nature of the offending and to its recognition of the co-operation with Mr Eaton and NZFACT.
Unreasonableness
[45] Under the heading of unreasonableness, Mr Zhao also criticised the Tribunal‘s finding that Ms Che‘s stress was transient as being without any foundation on the evidence. He pointed out, correctly, that the conclusion reached by the Tribunal was not expressed by the psychotherapist in the report which appeared
amongst the documents provided to the Court in these proceedings.
[46] But the report is dated 12 March 2010, 23 days after the Tribunal‘s decision. The report described the physical and emotional symptoms of stress exhibited by the plaintiff‘s wife. It then concluded:
Apparently, [Ms Che] has deteriorated since her husband received the court’s decision of deportation about two weeks ago. She was fully committed to establishing a new life in New Zealand with her husband, and had been working had for it. With her husband‘s impending deportation, [Ms Che] feels that all her hopes and dreams have been shattered. According to her account, there are no possible ways that [Ms Che] and her husband could live together if they could not stay in New Zealand. This is extremely distressing for her, perhaps to the extent that her psyche cannot really cope with it. As a psychotherapist, I am concerned about her mental health. (Emphasis added)
[47] The psychotherapist did not recommend medication or treatment, although the report contained a report that pharmacological treatment in 2009 had gradually alleviated his depression.
[48] Mr Zhao was not counsel for Mr Wang before the Tribunal; it would appear he was unaware that, although the Tribunal had said it would receive late evidence, a medical report was not provided to it. The report may have been provided to the Minister when the plaintiff elected to make further submissions rather than appeal the Tribunal‘s decision.
[49] Since the report was never presented to the Tribunal, this ground of challenge must fail in review proceedings. In any event, the conclusion reached by the Tribunal as to Ms Che‘s state of health, after questioning Ms Che closely, was one which was open to it.
[50] Further criticism of the Tribunal‘s decision was focussed on its assessment of, first, Mr Wang‘s importance to NZFACT operations and, second, the hardships Mr Wang would face in China. Both of those findings were assessments of fact made by the Tribunal. The weight which the Tribunal accorded the evidence offered, Mr Eaton‘s letter regarding Mr Wang‘s work for NZFACT, and Mr Wang‘s letter regarding employment opportunities in China, was a matter for the Tribunal to decide. This Court should not usurp that function on review.
The second limb under s 105(2)
[51] Having come to the view, bearing in mind the factors it considered in accordance with s 105(2), that it was not satisfied that it would be unjust or unduly harsh to deport the appellant from New Zealand, the Tribunal turned to consider whether the plaintiff had satisfied it that it would not be contrary to the public
interest to allow the plaintiff to remain in New Zealand.[10]
[10] Immigration Act 1987, s 105(1).
[52] The Tribunal considered, in this regard, the risk of the plaintiff‘s reoffending and concluded that while the offending was serious, it was not at the upper end of the scale. It accepted that the plaintiff had not offended before or after the offences for which he was imprisoned. The Tribunal accepted also that the plaintiff was remorseful, and that he had attempted to repair some of the harm he had caused by working for NZFACT. It concluded that it would not be contrary to the public interest for the appellant to remain in New Zealand, but nevertheless confirmed the deportation order.
[53] It was entitled to take this view. The discretion to quash the deportation order is open to the Tribunal only if both limbs under s 105(1) are established. Having concluded that the plaintiff had failed under the first limb (unjust or unduly harsh to deport), the Tribunal was not required to address the question of whether the public interest would suffer if the plaintiff remained in the country.
[54] As Dobson J noted in Taafi v Minister of Immigration, while it may be the practice of the Tribunal to address both limbs of the test, irrespective of its conclusion on the first limb, such a course is not strictly required.[11] Where the Tribunal expresses a view on the second limb, notwithstanding the failure of the appellant to make out the first limb, care should be taken to acknowledge the different context in which the public interest falls to be considered, and to avoid
apparent confusion in its reasoning.
[11] Taafi v Minister of Immigration HC Wellington CIV-2010-485-939, 28 September 2010 at [58]
[55] In this case, however, I do not consider the Tribunal reached inconsistent views under the two limbs. Its views as to the seriousness of the offending and Mr Wang‘s contrition were consistent and, importantly, properly considered by the Tribunal under the first limb.
Decision
[56] As will be apparent from the preceding discussion, I am not satisfied that the Tribunal erred in its approach. It comprehensively considered and weighed the evidence before it.
[57] Mr Zhao accepted at the outset that in review proceedings such as these, the Court is not permitted, under the guise of a question of law, to concern itself with whether the Tribunal was right or wrong in its conclusions on the merits of the case, and that the weight to be given to the assessment of relevant considerations is for the
Tribunal alone and not for the Court.[12]
[12] Mohamud v Minister of Immigration HC Wellington AP21/98, 5 October 1998. See also:
Minister of Immigration v Al Hosan [2008] NZCA 462, [2009] NZAR 259 at [66].
[58] In this case, the manner in which the Tribunal approached the issues and evidence was entirely in accordance with its responsibilities. None of the grounds of review are made out.
[59] The application is dismissed.
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Toogood J
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