X v Chief Executive of the Ministry of Business, Innovation and Employment

[2013] NZHC 642

ANONYMISATION OF NAME OF APPLICANT TO COMPLY WITH SECTION 151 OF THE IMMIGRATION ACT 2009.

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2013-488-87 [2013] NZHC 642

BETWEEN  X Applicant

ANDCHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT

Respondent

Hearing:         26 March 2013

Counsel:         X, in person, Applicant

L Inverarity for Respondent

Judgment:      28 March 2013

JUDGMENT OF HEATH J

This judgment was delivered by me on 28 March 2013 at 9.30am pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Crown Law, PO Box 2858, Wellington

Applicant in person

X V CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT HC WHA CIV 2013-488-87 [28 March 2013]

The application

[1]      Ms  X  seeks  leave  to  appeal  to  this  Court  against  a  decision  of  the

Immigration and Protection Tribunal (the Tribunal) of 15 January 2013.1

[2]      The circumstances in which an appeal may be brought, with leave, are circumscribed by s 245(1) and (3) of the Immigration Act 2009 (the Act):

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.

....

[3]      Prior to enactment of s 245 there was a right of appeal to this Court on questions of law.  The introduction of a “leave” provision indicates that Parliament intended to limit appeals in immigration cases.2

[4]      To obtain leave, Ms X must point to a qualifying question of law.  Generally, no appeal may be brought to this Court on a matter of fact or evaluation.3

1      Re X [2013] NZIPT 500,950 (A M Clayton).

2      See Taafi v Minister of Immigration HC Napier CIV 2011-441-471, 28 November 2011 (Kós J), at para [18] and Nabou v Minister of Immigration [2012] NZHC 3365 (Katz J) at para [6].

3      Immigration Act 2009, s 245(1) and (3).  See also, para [18] below.

Background

[5]      Ms X is 70 years old.  She was born in Poland, under a different name.  She has lived in a number of countries, including England, Greece and Canada.  Sadly, it appears that she has been the victim of domestic violence for much of her life.

[6]      Ms X arrived in New Zealand on 28 October 2009.  She obtained a visitor’s permit for a period of six months.  On expiry of that permit she was required to leave New Zealand.  She appealed against that decision to the Removal Review Authority. Her appeal was dismissed.4

[7]      Following dismissal of that appeal, Ms X applied for refugee or protected persons status.  That application was declined.  She appealed to the Tribunal against that decision.  The Tribunal concluded that she was not a refugee or protected person within the meanings ascribed to those terms in relevant international instruments.5

The appeal was dismissed.

[8]      Next, Ms X applied to remain in New Zealand on humanitarian grounds.6

Her application was declined.  It is the dismissal of her appeal against that decision7

that is in issue on the present application for leave to appeal to this Court.

The Tribunal’s decision

[9]      Before the Tribunal, Ms X’s contention was that the “cumulative effect of her past experiences means that it would be inhumane to return her to either of the countries in which she has previously suffered”, the United Kingdom or Poland.

[10]     Ms X produced a psychiatric report which identified that she suffered from chronic post-traumatic stress  disorder,  recurrent  major depressive episodes  (to  a

moderate degree) and chronic adjustment disorder, with anxiety and depression.8   Ms

4      Re X (Removal Review Authority, Appeal No. 47455), 20 August 2010 ( V J Shaw).

5      AB (United Kingdom) [2012] NZIPT 800, 632 (B A Dingle).

6      Immigration Act 2009, s 207, set out at para [15] below.

7      Re X [2013] NZIPT 500,950.

X said that she had been “adopted” as a “grandmother” into a New Zealand family and had been in a relationship with a New Zealand man for the previous 14 months.9

[11]     The Tribunal was not prepared to rely on the psychiatrist’s evidence to justify allowing an appeal.  There were plainly some credibility concerns given that, at the humanitarian interview, Ms X had stated that “she may commit suicide on the aeroplane if she was deported to the United Kingdom” whereas she had told the psychiatrist  that  she  would  “never  commit  suicide”.10     In  that  context,  the

psychiatrist reported that Ms X had “no suicidal ideation”.11

[12]     The Tribunal accepted that Ms X’s “personal happiness” was “closely linked” to the success or otherwise of her relationships.  It also acknowledged the nature and length of Ms X’s relationship with (what it termed) “her male companion of 14 months”.  Nevertheless, it concluded that “relationships of this nature, developed in the three years [Ms X] has spent in New Zealand, are not out of the ordinary or of a nature that [the humanitarian jurisdiction] was intended to preserve”.

[13]     In dismissing the appeal, the Tribunal said:

[34]      [Ms X] will be disappointed if she cannot remain permanently in New Zealand.   However, other than the normal, friendly and loving, relationships she has developed since she has been in this country, she has no nexus to New Zealand.  Making friends and falling in love, per se, do not create exceptional circumstances of a humanitarian nature.  Just as she has connected with people in this country, she has the personality and energy to do so again in the United Kingdom.

[35]      It is not accepted that leaving New Zealand will necessarily make [Ms X’s] diagnosed conditions worse.  Her own psychiatric report does not support this contention.  Certainly, leaving may be unsettling but [she] is in receipt of a United Kingdom pension and, as a United Kingdom citizen, will be able to access medical and psychological assistance there if necessary.

[36]     The Tribunal has considered all aspects of [Ms X’s] circumstances, past and present, and her concerns for the future.  While it understands that [she] has a heartfelt desire to live in New Zealand rather than in the United Kingdom,  this  does  not  meet  the  threshold  of  the  statutory  test  as  the Tribunal must apply it.

9 Ibid, at para [17].

10 Ibid, at para [28].

[37]      The  Tribunal   finds   that   [Ms   X]   does   not   have   exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for her to be deported from New Zealand.

Legal principles

[14]     To determine whether the Tribunal may have made the type of error that would justify granting leave to appeal, it is necessary to review the legal principles on which the humanitarian exception to deportation is based.

[15]     Section 207(1) of the Act states:

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.

....

[16]     The  predecessor  to  s 207  was  s 47(3)  of  the  Immigration Act  1987.    It provided:

(3) 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.

[17]     In reaching its decision, the Tribunal applied the Supreme Court’s judgment in Ye v Minister of Immigration.12   In relation to s 47(3), Tipping J, for a plurality of four,13 said:

[34] That brings us back to the first criterion in s 47(3) which has the following ingredients: (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be

12     Ye v Minister of Immigration [2010] 1 NZLR 104 (SC).

13     Blanchard, Tipping, McGrath and Anderson JJ.

removed from New Zealand. The need for the circumstances of the case to be exceptional means that those circumstances must be well outside the normal run of circumstances found in overstayer cases generally. The circumstances do not have to be unique or very rare but they do have to be truly an exception rather than the rule. It is unnecessary and undesirable to attempt to define the compass of the word “humanitarian”. It is unlikely to be difficult to decide whether the circumstances of a particular case fulfil that description. If there are exceptional circumstances of a humanitarian nature, it is then necessary to determine whether they make it unjust or unduly harsh to remove the person from New Zealand.

[35]  The  qualification  of  the  word  “harsh”,  by  the  word  “unduly”, recognises that there may be some degree of harshness in removing an overstayer from New Zealand. In particular some degree of harshness may be involved where the removal affects New Zealand citizen children. But the statutory test is couched on the basis of undue harshness. Undue in this context means that the harshness goes beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system. That is why a generic concern on that account is not enough to outweigh fulfilment of the first criterion in s 47(3).

[36] The flavour of the subsection as a whole, with its interweaving of the concepts of exceptional circumstances, injustice or undue harshness and the public interest suggests that Parliament, being mindful of humanitarian considerations, contemplated overstayers being allowed to remain in New Zealand if there were humanitarian circumstances of a sufficiently unusual kind that their remaining would not undermine the general importance of maintaining the integrity of the immigration system. The test was designed to be strict but was seen as representing an appropriate reconciliation of personal humanitarian concerns with relevant aspects of the public interest.

(emphasis added; footnotes omitted)

[18]     The first question is whether any point of law fit for an appeal to this Court arises out of the Tribunal’s dismissal of Ms X’s challenge to deportation on humanitarian grounds.  I remind myself that:14

(a)      A detailed analysis of the facts, or separate parts of the decision, in an attempt to expose defects or to identify some error or imperfection which can be elevated into an error of law must be eschewed.15   The Court’s focus is on matter of substance, as opposed to minutiae.  This proposition  is  directly  referable  to  Ms  X’s  complaints  that  the

Tribunal  failed  to  consider  all  relevant  evidence  and  applicable

14     This summary is adapted from Katz J’s judgment in Nabou v Minister of Immigration [2012] NZHC 3365, at para [9].

15     For example, Butler v Removal Review Authority [1998] NZAR 409 (HC) at 419–420 (Giles J).

international instruments, such as the Universal Declaration of Human

Rights.

(b)Findings of fact cannot be impugned unless the factual errors were of such  significance,  extent  and  nature  that  they  would  render  the decision legally flawed.16

(c)      Value judgments made by the Tribunal, in balancing and weighing competing factors arising in any given case, will seldom amount to an error of law.17

[19]     In order to grant leave to appeal, I must be satisfied that Ms X can point to a question of law that ought to be considered by this Court, either because it is one of general or public importance or for some other reason.18    I have carefully reviewed the Tribunal’s decision to ascertain whether there are any arguable points of law likely to be determinative of an appeal which meet the standard required by s 245(3) of the Act.

[20]     It is clear that the Tribunal was mindful of the test set out in Ye v Minister of

Immigration.19   It said:

[19]      The Supreme Court stated that three ingredients ha to be established in the first limb of section 47(3) of the Immigration Act 1987, the almost identical predecessor to section 207(1) of the Immigration Act 2009: (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.   The circumstances “must be well outside the normal run of circumstances” and while they do not need to be unique or very rare, they do have to be “truly an exception rather than the rule”, Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].

[21]     Measuring the Tribunal’s decision by reference to the relevant passages of the

majority judgment in Ye, I am satisfied that the Tribunal posed and answered the correct legal questions.

16     Ogosi v Minister of Immigration HC Wellington CIV 2006-485-673, 27 April 2007 (GendallJ) at paras [22]–[23].

17     De Borja v Removal Review Authority [1999] NZAR 471 (HC) at 476 (Gendall J).

18     Immigration Act 2009, s 245(3).

19     Ye v Minister of Immigration [2010] 1 NZLR 104 (SC); relevant passages are set out at para [17]

above.

[22]     The Tribunal made its own assessment of the evidence before it.   The fact that it did not refer to all relevant evidence and international instruments does not mean that it erred in law.  It emphasised those matters on which it relied to reach its decision. That was sufficient for the purposes of the appeal.

[23]     The Tribunal was aware of the difficult circumstances faced by Ms X when she lived overseas, the psychiatric evidence and the likelihood that Ms X’s wellbeing would be enhanced if she were to stay in New Zealand.  Yet, as the Tribunal said: “Making friends and falling in love, per se, do not create exceptional circumstances of a humanitarian nature”.20

[24]     Ms   X,   understandably,   placed   much   emphasis   on   the   need   for   a compassionate  response  to  her  appeal,  an  approach  which  she  believed  was consistent with the “humanitarian” test to be applied.   But, the nature of the humanitarian exception to the general rule that those people who remain in New Zealand after their permit or visa has expired should be deported is not as wide as that.  Applying Ye, it was open to the Tribunal to find that Ms X’s “humanitarian circumstances [were not] of a sufficiently unusual kind that [her] remaining [in New Zealand] would not undermine the general importance of maintaining the integrity of

the immigration system”.21  That being so, the application for leave must fail.

Result

[25]     For the reasons  I have  given, Ms  X’s  application  for leave to  appeal  is

dismissed.

[26]     I make no order as to costs.

P R Heath J

Delivered at 9.30am on 28 March 2013

20     Re X [2013] NZIPT 500 950, at para [34].

21     Ye v Minister of Immigration [2010] 1 NZLR 104 (SC) at para [36].