XX (European Union) v Minister of Immigration
[2019] NZHC 112
•11 February 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-1908
[2019] NZHC 112
BETWEEN XX (EUROPEAN UNION)
Applicant
AND
THE MINISTER OF IMMIGRATION
Respondent
Hearing: 10 and 13 December 2018, 1 February 2019 Appearances:
Applicant in person
S P Connolly and E G R Dowse for Respondent
Judgment:
11 February 2019
JUDGMENT OF LANG J
[on application for leave to appeal against a decision of the Immigration and Protection Tribunal]
This judgment was delivered by me on 11 February 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
XX (EUROPEAN UNION) v THE MINISTER OF IMMIGRATION [2019] NZHC 112 [11 February 2019]
[1] XX is a citizen of Finland. He arrived in New Zealand in February 2018 after having absconded whilst on leave from a mental hospital where he was receiving compulsory treatment. The following month the immigration authorities in New Zealand served him with a notice advising him that he was liable for deportation.
[2] XX appealed to the Immigration and Protection Tribunal (the Tribunal) against the notice based on humanitarian grounds. In a decision delivered on 10 August 2018, the Tribunal determined that XX could not establish exceptional circumstances of a humanitarian nature sufficient to permit him to remain in New Zealand.1 XX seeks leave to appeal to this Court against the Tribunal’s decision.
Background
[3] In 2014, a Finnish Court determined that XX was responsible for the aggravated assault and aggravated rape of an underage girl that occurred in 2012. The Court held that XX was not criminally responsible for his actions by reason of mental illness, and made an order committing him to a psychiatric hospital in Finland for compulsory treatment.
[4] In February 2018, XX was granted three days leave from the hospital. He took this opportunity to leave Finland and travel to New Zealand. He arrived in New Zealand on 26 February 2018 and promptly filed a claim seeking refugee and protection status. This application was declined by a refugee and protection officer, and a subsequent appeal against that decision was dismissed by the Tribunal on 10 July 2018.2
[5] On 2 March 2018, XX was served with a deportation liability notice under s 16 of the Immigration Act 2009 (the Act). This stated that there was sufficient reason to deport XX because the immigration authorities had reason to believe he posed or was likely to be a threat to public order and public interest. XX was then arrested and detained in custody under s 313 of the Act.
1 XX [(European Union)] v Refugee and Protection Officer [2018] NZIPT 503958.
2 XX v Refugee and Protection Officer [2018] NZIPT 801352.
[6] XX appealed to the Tribunal against his liability for deportation on humanitarian grounds.3 The grounds he advanced in support of that appeal were largely those he had earlier argued unsuccessfully in relation to his claim for refugee or protected status. In a decision dated 10 August 2018, the Tribunal found that XX had failed to establish exceptional circumstances of a humanitarian nature in terms of the statutory test.4 XX now seeks leave to appeal against that decision.
[7] XX has not been deported to date because of the issues arising out of his application for refugee and protection status, as well as the proceedings leading to the present appeal.
The test for leave to advance a second appeal
[8] The application for leave to appeal is governed by s 245 of the Act, which 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.
(1A) A decision by the Court of Appeal to refuse leave to appeal to the High Court is final.
(2)An application to the High Court under this section for leave to appeal must be made—
(a) not later than 28 days after the date on which the decision of the Tribunal to which the appeal relates was notified to the party appealing; or
(b) within such further time as the High Court may allow on application made before the expiry of that 28-day period.
(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 Immigration Act 2009, s 207(1).
4 XX [(European Union)] v Refugee and Protection Officer, above n 1.
(4) …
(5) Subject to subsection (2), every appeal under this section must be dealt with in accordance with the rules of the court, with any modifications necessary to reflect the provisions of this Act, including any ancillary general practices and procedures developed under section 260.
[9] As will be evident from the wording of the section, an applicant for leave to appeal must demonstrate that the proposed appeal involves a question of law that, by reason of its general public importance or for any other reason, ought to be submitted to this Court for its decision.5 The question of law must be capable of both bona fide and serious argument.6
[10] In Wu v Minister of Immigration, the Court of Appeal observed that the high threshold required for an appeal under s 245 mirrored the approach that then applied to second appeals in civil cases.7 Section 67 of the Judicature Act 1908 required a second appeal in a civil case to raise a question of bona fide and serious argument that involved an issue of sufficient importance to outweigh the resulting cost and delay.8 Section 60 of the Senior Courts Act 2016 has now replaced s 67 of the Judicature Act but the wording of the new section is virtually identical to that of s 67. This suggests the same approach will continue to be taken to appeals under s 245.
The test the Tribunal was required to apply
[11] The test the Tribunal was required to apply is contained in s 207(1) of the Act, which relevantly 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.
5 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
6 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
7 Wu v Minister of Immigration [2016] NZCA 511, [2016] NZAR 1667.
8 Waller v Hider, above n 6, at 413.
…
[12] As the majority of the Supreme Court confirmed in Ye v Minister of Immigration, s 207(1)(a) contains three requirements.9 The applicant must first establish the existence of exceptional circumstances. The term “exceptional circumstances” in this context means that the circumstances must be “well outside the normal run of circumstances” and must be “truly an exception rather than the rule”.10 The applicant must then show that the exceptional circumstances are of a humanitarian nature. Finally, the applicant must show that the exceptional circumstances would render it unjust or unduly harsh for him or her to be removed from New Zealand.
[13] Each of the three requirements must be established. It follows that a failure to establish any of them will be fatal to an appeal. It will obviously not be necessary to consider whether an applicant has satisfied the latter two requirements if he or she cannot first establish the existence of exceptional circumstances under s 207(1)(a).
Grounds of application for leave to appeal
[14] XX advances several arguments in support of his overall submission that the Tribunal erred in law in dismissing his appeal. He failed to provide particulars of these prior to the hearing despite being directed to do so in a Minute issued by Hinton J on
10 October 2018. Notwithstanding this failure I permitted him to raise these arguments orally at the hearing before me.
[15] XX seeks to raise for the first time an issue relating to information the New Zealand immigration authorities have apparently obtained from the Finnish authorities through requests or enquiries made of Interpol. He contends that this information, which relates to details of his offending and subsequent detention in Finland, was obtained in breach of his rights to privacy and confidentiality.
[16] In large part XX’s remaining arguments reflect the grounds he relied on before the Tribunal. These in turn largely mirrored those he had advanced unsuccessfully in
9 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34]-[38] per Blanchard, Tipping, McGrath and Anderson JJ (Elias CJ dissenting).
10 Ye v Minister of Immigration, above n 9, at [34].
relation to his application for refugee or protected person status. They are to the effect that it would breach XX’s human rights to require him to return to Finland because he will then be confined for a further significant period in the hospital from which he absconded. There he will be isolated from others and subjected against his will to injections designed to treat the mental disorders that led to him being ordered to undergo compulsory treatment. He considers such treatment to be unnecessary, inhumane and unduly harsh. All of this will occur despite the fact that XX has already spent a significant period in the mental hospital in Finland and in custody in New Zealand.
[17] In addition, XX contends that the hospital will be motivated to keep him incarcerated because it relies upon him for income. He says a significant portion of the monthly benefit he receives from the government will be paid to the hospital to meet the costs of his keep. XX says he has no option but to allow this to happen if he wishes to maintain a clean credit record. He contends, however, that it infringes his right to pursue economic interests of his own choice and unfairly deprives him of his means of subsistence.
[18] XX also says it would not be contrary to the public interest to allow him to stay in New Zealand because he is a skilled worker and is motivated to continue taking his medication orally until he no longer requires it.
Decision
[19] The argument based on an alleged breach of XX’s rights to privacy or confidentiality cannot succeed for several reasons. First, the evidential material on which XX relies for this argument has not been placed before the Court. Secondly, XX did not raise the argument before the Tribunal so the Tribunal cannot be criticised for not taking it into account.
[20] The argument would face considerable hurdles in any event. Most of the information allegedly obtained by the New Zealand immigration authorities would appear to be matters of public record and not subject to privacy or confidentiality considerations. Furthermore, the authorities in New Zealand had an obvious and legitimate interest in obtaining such information after XX sought refugee and
protection status upon his arrival in New Zealand. Once that occurred, the immigration authorities in this country would naturally wish to obtain full details about his background.
[21] XX also sought to argue in passing that the Tribunal erred in law by referring to its earlier decision relating to his claim for refugee or protected status. He points out that the Tribunal was not considering an appeal under the Convention and therefore erred by referring to the earlier appeal. This argument ignores the fact that the Tribunal referred to its earlier decision when it summarised its factual findings in that decision relating to XX’s continued involuntary hospitalisation and forced medical treatment. XX was advancing the same factual arguments in relation to his humanitarian appeal. It is therefore not surprising that the Tribunal referred to its earlier factual findings regarding the same issues. The Tribunal expressly acknowledged, however, that the statutory test in relation to an appeal based on humanitarian grounds was different to that relating to an appeal based on a claim to refugee or protected status.11 It then reached its decision by applying the test for the former and not the latter. The Tribunal’s observations in relation to its earlier decision did not therefore amount to an error of law.
[22] The remaining grounds that XX seeks to advance demonstrate that he views the proposed appeal as a further opportunity to advance the same arguments that he raised unsuccessfully before the Tribunal. That is a misconception because of the limited nature of appeal rights in the present context. He must instead show that the process by which the Tribunal reached its decision contained a bona fide and arguable error of law. An error of law in this context may include applying the wrong test, taking into account an irrelevant consideration and/or failing to take into account a relevant consideration.
[23] As Mr Connolly for the respondent points out, however, the Tribunal applied the correct test in relation to the threshold issue of exceptional circumstances because it referred expressly to the observations of the Supreme Court in Ye.12 It then applied
11 [XX (European Union)] v Refugee and Protection Officer, above n 1, at [39].
12 [XX (European Union)] v Refugee and Protection Officer, above n 1, at [22].
each of the three requirements identified in Ye to the facts of the case as advanced by XX.13
[24] Furthermore, all of the facts to which the Tribunal referred were plainly relevant to the decision it was required to make. They were also the facts on which XX relied. It would therefore be unrealistic for him to now argue they were irrelevant to the Tribunal’s decision. In addition, XX has not been able to point to any relevant factual matter that the Tribunal failed to take into account. I therefore see no basis for any bona fide or arguable claim that the Tribunal either took into account irrelevant considerations or failed to take into account relevant considerations. Viewed overall, the arguments appear to challenge the outcome of the Tribunal’s reasoning process rather than the validity of the process itself.
[25] This leads me to conclude that the proposed appeal does not raise any genuine and arguable question of law.
[26] In addition, all of XX’s arguments are restricted entirely to the facts of his case. There is nothing in any of the points he wishes to raise that could have application in a wider context. It follows that the proposed appeal does not raise a question of general or public importance sufficient to justify the resulting cost and delay of a further appeal.
Result
[27]The application for leave to appeal is dismissed.
Costs
[28] The respondent is entitled to costs on a category 2B basis together with disbursements as fixed by the Registrar.
Lang J
13 XX [(European Union)] v Refugee and Protection Officer, above n 1, at [25]-[44].
Solicitors:
Crown Law, Wellington Copy to Appellant
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