MOHEBBI v MINISTER OF IMMIGRATION [2023] NZHC 3453

MOHEBBI v MINISTER OF IMMIGRATION [2023] NZHC 3453 [30 November 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-821[2023] NZHC 3453UNDER Section 245 of the Immigration Act 2009IN THE MATTER of an application for leave to appeal againsta decision of the Immigration and ProtectionTribunalBETWEEN AMIR HOSHANG MOHEBBIApplicantAND MINISTER OF IMMIGRATIONRespondentHearing: On the papersCounsel: M Shabani and R Bhullar for the ApplicantB M McKenna and E Dowse for the RespondentJudgment: 30 November 2023JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Thursday, 30 November 2023 at 12:30 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Shabani Law, AucklandCrown Law, WellingtonCounsel: B McKenna, Auckland[1] On 28 April 2022, the Immigration and Protection Tribunal (IPT) dismissed anappeal by Amir Hoshang Mohebbi against his liability for deportation on the basis thathe did not have exceptional humanitarian circumstances. Mr Mohebbi applied to theHigh Court to judicially review and appeal against the IPT decision.[2] On 11 October 2023, Fitzgerald J granted Mr Mohebbi leave to appeal inrelation to the questions:1(a) First, was the Tribunal's finding that no exceptional circumstances of ahumanitarian nature arose untenable in light of the evidence before theTribunal of the length of time Mr Mohebbi has been in New Zealandand the impact of deportation on both Mr Mohebbi and his daughter'smental health?(b) Second, if the answer to (a) above is "yes", should the proceeding bereferred back to the Tribunal for rehearing?[3] The application for leave to appeal was otherwise declined, as was theapplication for leave to commence judicial review proceedings.[4] On 7 November 2023, the parties to the anticipated appeal (being Mr Mohebbiand the Minister of Immigration) filed a joint memorandum in which they advise theCourt that they have conferred and agree the appeal can be dispensed of without theneed for a hearing. They ask the Court, by consent, to allow the appeal, quash the IPTdecision and remit it to the IPT for a full rehearing.[5] Notwithstanding the parties' consent and invitation to the Court to allow theappeal, the Court still needs to be satisfied that it is appropriate to quash the IPT'sdecision.2[6] In her decision granting leave to appeal, Fitzgerald J referred to six key factswhich were (presumably) accepted by the IPT. It was on the basis of those key facts1 Mohebbi v Minister of Immigration [2023] NZHC 2854.2 Lin v Chief Executive of the Ministry of Business, Innovation and Employment [2022] NZHC 3175at [4].that the Judge was satisfied that it was seriously arguable that the IPT erred inconcluding that no exceptional circumstances of a humanitarian nature arose.[7] While the Court was only assessing whether the issue was seriously arguable,the Minister now accepts that the specific combination of key facts are, on balance,outside the normal run of circumstances one might see in deportation cases generally.Mr Mohebbi had lived in New Zealand for 25 years and there was expert evidence onthe potential for serious mental health issues for both Mr Mohebbi and his daughter toarise out of deportation.[8] In this case, with particular reference to the analysis undertaken byFitzgerald J, I am satisfied that there is a clear basis for the IPT decision to be set aside.In the circumstances therefore I agree it is appropriate to set aside the IPT decision assought by the parties.[9] I therefore make the orders as sought by consent as follows:(a) The questions of law identified by Fitzgerald J at [98] of the High Courtjudgment are both answered "yes".(b) The appeal is allowed.(c) As a result, the proceeding is to be remitted to the IPT for a fullrehearing of Mr Mohebbi's humanitarian appeal before a differentmember. The IPT is to take the High Court judgment into account.(d) Costs lie where they fall in respect of all costs incurred in theproceeding to date.________________________________Woolford J