NABOU V MINISTER OF IMMIGRATION HC AK CIV-2012-404-4215

NABOU V MINISTER OF IMMIGRATION HC AK CIV-2012-404-4215 [17 December 2012]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2012-404-4215[2012] NZHC 3365UNDER Immigration Act 2009IN THE MATTER OF an application for leave to appeal a decisionof the Immigration and Protection Tribunalpursuant to s 245 of the Immigration Act2009BETWEEN ALIPATE JORRIS LOLOMA NABOUApplicantAND MINISTER OF IMMIGRATIONRespondentHearing: 1 November 2012Counsel: T M Saseve for ApplicantC Griffin for RespondentJudgment: 17 December 2012JUDGMENT OF KATZ JIn accordance with r 11.5 High Court RulesI direct the Registrar to endorse this judgmentwith a delivery time of 11 a.m. on 17 December 2012.Solicitors: Crown Solicitor, Wellington – charlotte.griffin@crownlaw.govt.nzSaseve, Auckland – tua@sasevelawyers.co.nzIntroduction[1] Mr Nabou is an immigrant from Fiji who held a New Zealand residence permit. On 17 August 2010 the Minister of Immigration ordered that Mr Nabou be deported,1 as a result of his having been convicted of criminal offences involving violence or threats of violence, on two separate occasions, against a woman he was in a relationship with. Mr Nabou was sentenced to 12 months imprisonment on three of the charges.[2] The Immigration and Protection Tribunal ("Tribunal") dismissed his appeal from the Minister's decision. It found that it was not unjust or unduly harsh todeport Mr Nabou, and confirmed the deportation order.2[3] Mr Nabou now applies for leave to appeal the Tribunal's decision on questions of law, pursuant to s 245 of the Immigration Act 2009 ("Act").Section 245(3) – the test for leave to appeal immigration decisions[4] Appeals to the High Court are limited to questions of law. Section 245(3) of the Act3 sets the criteria for leave to appeal a decision of the Tribunal:(3) In determining whether to grant leave 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.[5] This provision may be contrasted with its predecessor, s 117 of the Immigration Act 1987, which established an appeal to the High Court as of right on a question of law arising from a decision of the Deportation Review Tribunal.1 Issued by the Minister of Immigration on 17 August 2010 pursuant to s 91(1)(b) of theImmigration Act 1987 (now repealed).2 Nabou v Minister of Immigration [2012] NZIPT 500093, 25 June 2012.3 Section 245 applies to this application despite the Tribunal having exercised the jurisdiction ofthe former Deportation Review Tribunal ("DRT") under ss 104 and 105 of the Immigration Act1987. Pursuant to s 452 of the Immigration Act 2009, an appeal from a decision of the Tribunalmade under s 446 exercising the jurisdiction of the former DRT must be considered inaccordance with Part 7 of the IA 2009, including s 245.[6] As this Court has previously affirmed, the introduction of a leave provision for High Court appeals indicates Parliament's intent to further limit appeals fromimmigration decisions.4 Not every question of law will be granted leave. On a second appeal from the decision of the Minister to issue a deportation order, the proposed questions of law must be capable of bona fide and serious argument and raise either an issue of general or public importance or some other sufficient reason to warrant the grant of leave.5[7] A conventional error of law would arise in this case if the Tribunal had misdirected itself on the statutory test under s 105(2).6 Beyond that, only very limited incursion into the factual area is permissible, namely:7(a) where a conclusion is reached without any evidence to support it or upon evidence that could not reasonably support the conclusion; or(b) where on the unchallenged primary facts an inference favourable to one party is the only inference reasonably open.8[8] In Taafi v Minister of Immigration, Kos J considered the standards that should apply to applications for leave to appeal based wholly on criticisms of factualfindings. His Honour outlined the "triple hurdle" facing an applicant attempting toestablish error of law on this basis in the immigration context:9(a) First, the applicant will need to show a seriously arguable case that factual findings by the Tribunal are actually incorrect. An appeal Court will not interfere where there is an available evidential basisfor the Court's finding.4 Taafi v Minister of Immigration HC Napier CIV-2011-441-417, 28 November 2011 at [18].5 Snee v Snee (1999) 3 PRNZ 609; Waller v Hider [1998] 1 NZLR 412. These well establishedauthorities setting out the test for leave to appeal on questions of law were applied byWoodhouse J in Tong v The Chief Executive Department of Labour HC Auckland CIV-2011-404-3513, 4 November 2011 at [10].6 See Bryson v Three Foot Six Ltd [2005] NZSC 34; [2005] 3 NZLR 721 at [24].7 As summarised and applied in the immigration context in V v Minister of Immigration HCWellington AP246/97, 18 September 1998 at 2-3 and Mohamud v Minister of Immigration HCWellington AP21/98, 5 October 1998 at 5.8 In this context, any party asserting that only one true and reasonable conclusion was open to thedecision maker, or that the ultimate conclusion was so insupportable, so clearly untenable as toamount to an error of law, faces a very high hurdle: Bryson v Three Foot Six Ltd at [26]-[27].9 At [19].(b) Secondly, the applicant will need to show the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law. That is, it is seriously arguable that:(i) the Tribunal has made a finding of fact which is based on no evidence, based on evidence inconsistent with or contradictory of another finding of fact, or contradictory of the only reasonable conclusion of fact available on the evidence; and(ii) the errors of fact are so significant and extensive that a properly-directed Tribunal may well have reached a different decision overall on the application to quash the deportation order.(c) Thirdly, the applicant must show that the question of law (here based on alleged fundamental errors of fact) is one of general or public importance, or for some other reason ought to be considered on appeal. The former is a hard ask in the case of factual errors, no matter how profound. (Here, the applicant does not seek to argue that the questions he presents meet the requirement of being of general or public importance. Thus he relies on the alternative limbthat there is 'other reasons' why the question should be submitted to the High Court). In my view it would only be in exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing, that this alternative requirement will be met.[9] Kos J's approach is consistent with the approach taken in a number ofprevious cases involving immigration appeals on questions of law. Judges have repeatedly warned against minute and 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. The decision must be looked at as a whole.10 Findings of fact themselves cannot be impugned unless the factual errors were of such significance, extent and nature that they would render the10 Eg, Butler v Removal Review Authority [1998] NZAR 409 at 419-420; Fa'atafa v ChiefExecutive of Department of Labour HC Wellington AP120/97, 26 April 1999 at [7]; Amosa vChief Executive of the Department of Labour HC Wellington AP208/98, 3 April 2000 at 9-10,20; Ogosi v Minister of Immigration HC Wellington CIV-2006-485-673, 27 April 2007 at [22]-[23]; Mistry v Minister of Immigration HC Wellington CIV-2009-485-1610, 17 November 2009at [50]; Voratanamatanitu v Chief Executive Department of Labour HC Wellington AP124/96,11 August 1997 at 11: "a technical and semantic analysis of the decision does not aid theappellant in endeavouring to create a 'point of law'."decision legally flawed.11 Value judgments made by the Tribunal in balancing and weighing the competing factors arising in any given case will seldom amount to an error of law.12Does Mr Nabou's application for leave raise an arguable question of law?[10] Mr Nabou's submissions described the question of law raised in this appeal inthe following terms:Whether the Tribunal correctly considered the matters set out in s 105(2) of the Immigration Act 1987 in determining whether or not it would be unjust or unduly harsh to deport the appellant.[11] Mr Nabou submitted that the Tribunal erred by not taking into account or giving negligible weight to the various mandatory factors of s 105(2) of the Immigration Act 1987.[12] However, it is clear from the Tribunal's decision that it evaluated, based on the evidence before it, the various factual matters raised in Mr Nabou's writtensubmissions. This included his age, the length of period lawfully in New Zealand, his domestic personal circumstances, his work record, his rehabilitative efforts and desire to complete his tertiary education, the impact on his future professional prospects of deportation to Fiji and his offending.[13] In relation to the latter issue the Tribunal expressly recorded Mr Nabou'sviews about his role in the domestic incident which led to his convictions, including why he thought his partner was partly responsible. The Tribunal concluded that theoffending was "serious", but "not the most serious of its kind".13[14] In oral submissions counsel for Mr Nabou focused on three specific alleged errors by the Tribunal, namely:11 Taafi at 7; Faavae v Minister of Immigration [1996] 2 NZLR 243 at 246-247; Ogosi at [22]-[23].12 De Borja v Removal Review Authority [1999] NZAR 471 at 476. See also Butler v RemovalReview Authority at 412.13 At [76].(a) The Tribunal stated that Mr Nabou was convicted by a jury. This was incorrect. He was tried by a Judge alone.(b) The Tribunal elevated the seriousness of Mr Nabou's offending byreferring to the fact that he had been sentenced to 12 months imprisonment while overlooking that this was, in essence, a pragmatic decision by the Judge to reflect time already served.(c) The Tribunal overlooked inconsistencies between the Judge's Sentencing Notes and Mr Nabou's certified copy of Criminal Recordwhich suggested that one of the four charges may have been reducedat trial from "assault with intent to injure" to the lesser charge of"male assaults female".[15] I will address each of these issues in turn.Trial was Judge alone[16] The Tribunal did err in stating that Mr Nabou was convicted by a jury rather than by a Judge alone. However, this was not a material error and would not have impacted on the outcome. A finding of guilt and the entering of convictions following a Judge alone trial is no less serious than following a jury trial. This factual error cannot amount to an error of law in the circumstances of this case.Sentence of imprisonment[17] Mr Nabou submitted that the Tribunal erroneously elevated the seriousness of his offending. In particular, it was submitted that the Tribunal was unduly influenced by the fact that Mr Nabou had been sentenced to 12 months imprisonment. However, the Tribunal allegedly failed to consider how that 12 months sentence was arrived at.[18] In particular, Mr Nabou submitted that, as he had been in custody for approximately six months pending trial, the sentence was essentially a pragmaticone. He had already spent more than half of his proposed sentence in custody by the time of sentencing and accordingly was effectively sentenced to time already served.[19] It was submitted that the "normal" sentence, taking into account the gravity of Mr Nabou's offending, would have been supervision or community work. Because a sentence of imprisonment had been imposed, the Tribunal wrongly assumed the offending was more serious than it actually was.[20] This analysis is inconsistent, however, with the first sentence of the Judge'sSentencing Notes which records that he did not consider the matter was suitable for home detention.[21] Having considered the suitability of home detention, the Judge rejected that option. If he did not see home detention as a suitable option it necessarily follows that he would not have seen supervision or community work as options which suitably reflected the overall gravity of the offending. Ultimately the Judge imposed a sentence of imprisonment. The Tribunal was entitled to take this into account as a relevant factor.Alleged inaccuracy in certified copy of criminal record[22] The final specific error relied on by Mr Nabou was that the Tribunal hadrelied on Mr Nabou's certified copy of entry of criminal record as being an accuraterecord of his convictions. That document lists the following four convictions, all relating to the same complainant: assault with intent to injure (s 193 Crimes Act 1961); threatening to kill (s 306 Crimes Act); assault with a weapon (s 202C Crimes Act); and common assault (s 9 Summary Offences Act 1981).[23] The Judge's Sentencing Notes, however, state that Mr Nabou was sentenced to imprisonment on the charges of "male assaults female and threatening to kill and assault with a weapon". In relation to the summary offences assault charge Mr Nabou was convicted and discharged.[24] Counsel for Mr Nabou submitted that the fact the Sentencing Notes referredto a charge of "male assaults female" rather than the more serious charge of "assault with intent to injure" suggests that the charge may have been reduced prior to or at trial.[25] There is no evidence to support such a submission. The more likely explanation is simply that the Judge erred in his Sentencing Notes. I note that the pre-sentence report provided to the Judge, which he refers to in his Sentencing Notes, is consistent with the certified criminal record.[26] Further, this issue was raised with the Tribunal by counsel for Mr Nabou at the time of the Tribunal hearing. The Tribunal advised counsel for Mr Nabou that it intended to rely on the certified copy of convictions as an accurate record, but advised that:If you have any further issues around that you can clarify and raise it with us.[27] There is no evidence that the issue was taken any further. In such circumstances the Tribunal did not err in relying on the certified copy of convictionsas being an accurate record of Mr Nabou's criminal convictions.Conclusion on alleged factual errors[28] With the exception of the factual error regarding the jury trial, Mr Nabou has not shown that the Tribunal erred.[29] In respect of the Tribunal's error in stating that Mr Nabou was convicted by a jury, the applicant faces "the triple hurdle" described by Kos J in Taafi.14 While he might satisfy the first hurdle, he fails to establish that:15(a) the errors of fact are so significant and extensive that a properly- directed Tribunal may well have reached a different decision overall on the application to quash the deportation order; or14 Taafi at [19].15 Ibid at [19](b)(i) and [19](c).(b) the question of law (namely the alleged "fundamental error of fact") isone of general or public importance or for any other reason ought to be considered on appeal.[30] The Tribunal's error was a minor one which would not have affected itsdecision, for the reason outlined at [16] above.Public interest limb[31] Mr Nabou also submitted that the Tribunal erred by placing reliance on his continued denial of responsibility for his offending when assessing whether his risk of reoffending was low. This cannot, however, amount to an error of law. The evidence before the Tribunal revealed Mr Nabou's denial of full responsibility. Itwas entitled to ascribe weight to this factor and make an assessment of future risk on the material before it, as has been upheld by the High Court in other deportation decisions.16Conclusion[32] The Tribunal was entitled to conclude that Mr Nabou's circumstances did notmeet the threshold of unjust and undue harshness.[33] Mr Nabou's application for leave to appeal is based almost entirely onalleged factual errors or criticisms of inferences the Tribunal drew from the evidencebefore it. None of Mr Nabou's criticisms is capable of amounting to an error of law.No matters of general or public importance support leave to appeal being granted in this case. The reality is that Mr Nabou seeks a full merits appeal of the Tribunal'sdecision, which he is not entitled to.16 Oto v Minister of Immigration HC Wellington CIV-2008-485-2183, 13 March 2009 at [78]-[79];Ogosi v Minister of Immigration at [46].Result[34] Leave to appeal under s 245 of the Act is declined._______________________Katz J