TAAFI V THE MINISTER OF IMMIGRATION HC WN CIV-2010-485-939

TAAFI V THE MINISTER OF IMMIGRATION HC WN CIV-2010-485-939 28 September 2010IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2010-485-939BETWEEN AUTALAVOU TAAFI Appellant AND THE MINISTER OF IMMIGRATION Respondent Hearing: 17 September 2010 Counsel: M T Luscombe & A D Harris for appellant A M Powell & P D McCarthy for respondent Judgment: 28 September 2010RESERVED JUDGMENT OF DOBSON JIntroduction ....................................................................................................................................... [1]Factual background ........................................................................................................................... [3]DRT decision .................................................................................................................................... [12]Approach on appeal ......................................................................................................................... [29]Grounds of appeal............................................................................................................................ [33]Ground 1: Misapplication of statutory formulae in s 105............................................................. [34]Ground 2: Failing to complete balancing test prescribed by s 105 .............................................. [41]Grounds 3 and 4: Improper considerations of public interest and irreconcilable finding that Mr Taafi's remaining in New Zealand not contrary to public interest ......................................... [49]Ground 5: Attributing inordinate weight to the seriousness of the appellant's offending ............ [59]Ground 6: Introducing assumptions of fact not supported by the evidence .................................. [63]Summary on grounds, and disposition of the appeal .................................................................... [73]Costs .................................................................................................................................................. [75]Introduction[1] Part 4 of the Immigration Act 1987 (the Act) reflects a well-established aspect of New Zealand's immigration law, providing the jurisdiction to deport holders of a residence permit in New Zealand in the event of a conviction for certainlevels of criminal offending. 1 Section 91 of the Act provides a sliding scale of times since a person was first granted a residence permit, relative to the seriousness of a particular conviction. In the least serious category, for up to two years since receiving a residence permit, the holder of a residence permit will be vulnerable to a deportation order by the Minister of Immigration (the Minister) where the conviction is for an offence for which the maximum penalty is imprisonment for a term of three months or more. The most serious category relates to the holder of a residence permit who is convicted of an offence and sentenced to a term of imprisonment of five years or more, then he or she will be vulnerable to a s 91 order for 10 years from the date of the residence permit first being granted. [2] The present appellant (Mr Taafi) comes within that most serious category of criminal conviction. The Minister has ordered Mr Taafi's deportation due to a sentence of imprisonment of seven years being imposed on him, and his appeal to the Deportation Review Tribunal (DRT) seeking an order quashing the deportation order was unsuccessful. Mr Taafi has subsequently pursued this appeal under s 117 of the Act, alleging a range of errors of law.Factual background[3] Mr Taafi is 46 years old. He was born in Samoa and remains a Samoan citizen. He arrived in New Zealand in 1987. He was granted a visitor's permit in September 1988. After the expiry of that permit, he remained here unlawfully until being granted residence in May 1999. Mr Taafi has therefore lived in New Zealand for more than 22 years. Of those 22 years, 11 years have been lawful and three of those lawful years have been spent in custody. [4] Mr Taafi and his Samoan wife have three children (aged 15, 10 and 8) who are New Zealand citizens. Mr Taafi also has another daughter (18 years old) to another partner. That daughter now has a baby, Mr Taafi's first grandchild. He has1 A provision to this effect first appeared in the Immigration Restriction Act 1908 in 1959, by the Immigration Restriction Amendment Act 1959.maintained contact with that daughter and saw her periodically until he was imprisoned. [5] Mr Taafi has two brothers living in New Zealand. In Samoa, Mr Taafi has three sisters and a brother. Both of his parents are dead. Prior to his imprisonment, Mr Taafi regularly sent money to his family in Samoa as well as his wife's parents. His family's land is used to cultivate bananas and taro, but is not big enough to grow surplus crops for sale. [6] Since arriving in New Zealand, Mr Taafi has worked largely as a fruit picker. At the time he was imprisoned, he was working in a sheepskin factory. [7] On 7 May 2007, Mr Taafi was convicted for unlawful sexual connection with a female aged over 16 years. He was sentenced to seven years' imprisonment. The complainant was a work colleague who Mr Taafi was giving a ride home from work. On the way home, Mr Taafi drove into a car parking area. According to the complainant, Mr Taafi grabbed her while outside the car, pulled off her pants and forcibly had anal sex with her. She told him to stop and positioned her body to make it difficult for him. After the incident Mr Taafi took her home. At trial, Mr Taafi maintained that the sexual connection was consensual. [8] Apart from that conviction, Mr Taafi has three convictions for traffic offences – two for driving with excess breath or blood alcohol and one for failing to give a name and address. [9] All three of his children of his current marriage have regularly visited him in prison and he has had daily telephone contact with his family. According to Mr Taafi's wife, Mr Taafi is a very good husband and father. Mrs Taafi also states that she has forgiven him and would welcome him back into the family home. [10] According to Mrs Taafi and Mr Taafi's older brother, since Mr Taafi was imprisoned, Mr Taafi's son's behaviour is deteriorating and he has been doingpoorly at school. Previously, he was showing promise and apparently enjoyed a positive relationship with his father. [11] If Mr Taafi is deported, his wife will stay in New Zealand with the children. In Samoa he would be unable to provide for them financially or to support them emotionally. Mr Taafi has stayed in touch with his siblings in Samoa who are supportive of him. However, it is uncertain whether there would be enough room for him in one of the houses on the family land.DRT decision[12] The majority decision identified the essential issue for determination as whether separation of Mr Taafi from his partner of 16 years and his children, when weighed against his offending, would make his deportation unjust or unduly harsh. [13] The majority began by identifying that under s 105(1) of the Act, the DRT may 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.[14] Section 105(2) sets out the matters that the DRT must consider in determining whether or not it would be unjust or unduly harsh to deport the appellant:(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.[15] The majority then directed itself to the starting point for its consideration: the offence which prompted the deportation order and the sentence imposed. The majority then identified the balancing exercise which required the weighing of the seriousness of the offending giving rise to the deportation order and any other offending against the compassionate factors favouring the appellant remaining in New Zealand. This required particular regard to the s 105(2) matters. [16] After reviewing Mr Taafi's background as summarised in [3] to [11] above, the majority went on to determine whether it would be unjust or unduly harsh to deport Mr Taafi from New Zealand by going through the s 105(2) criteria. [17] It was acknowledged that Mr Taafi's deportation would deprive his family of the financial support that he can provide, with its associated advantages. However, the majority also considered the availability of government welfare benefits to be relevant, together with the prospect of financial support from his brother and, on occasion, others within their extended families. Therefore, the family's loss of potential income was treated as a relevant, but not a major, consideration. [18] The majority considered that the interest of Mr Taafi's eldest daughter and grandchild are not material as there is no present communication between Mr Taafi and that daughter. [19] The majority also considered several human rights issues. First, the application of art 23.1 of the International Covenant on Civil and Political Rights (ICCPR): 2The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.[20] Second, art 17.1 of the ICCPR:No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.2 DRT decision at [59].[21] The majority considered the ends sought by the State in deporting Mr Taafi were the denunciation of serious crime and enhancing the integrity of, and public confidence in, the immigration system. The majority concluded: 3In weighing the serious offending of the appellant, involving violence of a penetrative sexual nature, against the separation of the family, the Tribunal finds that his deportation is proportional and necessary in the circumstances. Accordingly, it is reasonable and there is no breach of family unity rights.[22] The majority also considered, under art 3.1 of the Convention on the Rights of the Child 1989, that the best interests of the child are a primary factor, but not the paramount consideration nor a trump card. 4 The majority found that Mr Taafi's continued presence in New Zealand is in the children's best interests as his ability to offer paternal encouragement, guidance and love would end if he were deported.5[23] The majority then went on to weigh the seriousness of the offending against the humanitarian factors favouring Mr Taafi's remaining in New Zealand. [24] The majority considered that the offending was very serious, particularly considering that it was reflected in seven years' imprisonment. Deportation would not breach any human rights instrument concerning family unity. [25] Supporting Mr Taafi's remaining in New Zealand was the best interests of his children, the fact that he has lived in New Zealand for an extended period of time and the distress that separation from his wife and children and also his older brother would cause. However, Mr Taafi would not be without family in Samoa. Further, given the seriousness of Mr Taafi's offending, the majority concluded that it would not be unduly harsh for Mr Taafi to be deported. [26] The majority referred to Mr Taafi as representing a low risk of re-offending, leading it to the conclusion that it would not be contrary to the public interest for him to remain in New Zealand. 63 At [65].4 Ye & ors v Minister of Immigration [2009] NZSC 76; [2010] 1 NZLR 104 at [24]-[25], [52];Minister of Immigration v Al Hosan [2008] NZCA 462; [2009] NZAR 259 at [73]b).5 At [68].6 At [96].[27] In a minority decision that reached the opposite conclusion, Member Clayton considered that, with regard to the seriousness of the offending, two points need to be made: 7First, the High Court has, on two occasions, overturned decisions of this Tribunal confirming deportation orders against appellants convicted of rape. Section 105(2)(e) requires the Tribunal to have regard to the nature of the qualifying offence, not just its type. In Leiataua v Minister of Immigration(CIV-2003-485-472, High Court Wellington, 26 November 2003) Durie J reversed a decision of this Tribunal because it had given "an overwhelming primacy to the offence of rape itself" [41]. The Tribunal reminds itself that its consideration of the offence must include the circumstances in which it was committed and the circumstances of the offender and the victim. The second matter of which the Tribunal must remind itself is that while the starting point for its consideration of the section 105(1) test is the qualifying offence and the sentence imposed, as directed in M [v Minister of Immigration HC Wellington AP84/99, 17 August 2000], as with the type of offence, the length of prison sentence cannot be determinative.[28] In undertaking the balancing exercise, Member Clayton considered: 8The removal of the provider and stable father figure from a long-established New Zealand family whose welfare and ability to function is compromised by his absence is a serious matter. Given the serious consequences his wife and children have experienced and can be expected to continue to experience, I am not convinced that in this case the deportation of the appellant, who has a low risk of re-offending, is necessary or that the family's, in particular the children's interests are outweighed by either the offending or the need to maintain public confidence in immigration institutions.Approach on appeal[29] Section 117 of the Act confines such appeals to questions of law. As noted by Wild J (and adopted by Ronald Young J in Fisiipeau v Minister of Immigration)97 At [117]-[120].8 At [142]-[144].9 Fisiipeau v Minister of Immigration HC Wellington CIV-2010-485-179, 15 May 2010 at [9].in Mohamud v Minister of Immigration at 5: 10Error of lawQuintessentially, error of law involves the application of an incorrect legal test or a wrong answer to a legal question upon unchallenged facts. Here, an obvious example would be Tribunal misinterpreting or mis-applying relevant provisions of the Immigration Act. Under the label "question of law" a limited incursion is now permitted into the factual area where either the Tribunal has: 1. Come to a conclusion without any evidence or upon evidence which could not reasonably support its conclusion, or 2. Failed to draw from unchallenged primary facts an inference favourable to the appellant, when such inference is the only one reasonably open. What the Court may not do under guise of a question of law is concern itself with whether the Tribunal was right or wrong in its conclusion i.e. with the merits of the case. Further, the weight to be given to the assessment of relevant considerations is for the Tribunal alone and not for consideration by the Court as a point of law. Recent authorities include Nicholls v District Council of Papakura [1998] NZRMA 233 at 235 and Auckland City Council v Wotherspoon [1991] NZLR 76 at 85–86. Specifically in the immigration area, there is the judgment of Giles J in Butler v Removal Review Authority[1998] NZAR 409.[30] More recently, the Supreme Court noted in Bryson v Three Foot Six that: 11An appeal cannot however be said to be on a question of law where the fact- finding court has merely applied law which it has correctly understood to the facts of an individual case. It is for the court to weigh the relevant facts in the light of the applicable law. Provided that the court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact- finding court, unless it is clearly insupportable. An ultimate conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law; proper application of the law requires a different answer. That will be the position only in the rare case in which there has been a state of affairs "in which there is no evidence to support the determination" or "one in which the evidence is inconsistent with and contradictory of the determination" or "one in which the true and only reasonable conclusion contradicts the determination".10 Mohamud v Minister of Immigration HC Wellington AP21/98, 5 October 1998.11 Bryson v Three Foot Six [2005] NZSC 34; [2005] 3 NZLR 721 at [25]-[26] (footnotes omitted).[31] Ordinarily complaints regarding sufficiency of weight are not generally appeals on an error of law. Issues of weight are a matter for the Tribunal. 12[32] As noted by Potter J in Patel v Deportation Review Tribunal, this is not a general appeal to which the principles laid down by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar13 apply. 14Grounds of appeal[33] Mr Taafi raised six grounds in support of his appeal. A number of them deal with criticisms more of fact than of law. The following observation of Gendall J remains valid: 15By way of preliminary remarks I note that it is becoming increasingly common for appeals from decisions of the Removal Review Authority, or the Deportation Review Tribunal, for appellants' counsel to engage in a minute and detailed analysis of the facts and, often, a sentence by sentence semantic scrutiny of decisions of the respective Tribunal. It is often difficult for this Court to discern exactly what is the point or points of law upon which the appellant relies. I suspect that is because, in truth, the challenges relate to factual findings and conclusions that the Tribunal draws from the evidence, rather than to points of law.Ground 1: Misapplication of statutory formulae in s 105[34] For Mr Taafi, Mr Luscombe argued that the majority failed to consider the collective weight of those s 105(2) factors that weighed against deportation. For instance, the majority dismissed the significance of Mr Taafi's age and work record when considering those factors in isolation, but then did not consider whether they might have an ancillary relevance so as to add some weight when considered collectively with all the other relevant factors.12 Minister of Immigration v Al Hosan [2008] NZCA 462; [2009] NZAR 259 at [66].13 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.14 Patel v Deportation Review Tribunal HC Auckland CIV-2008-404-8225, 16 June 2009 at [10].15 Amosa v Chief Executive of the Department of Labour HC Wellington AP208/98, 3 April 2000 at [15].[35] Mr Luscombe contrasted the absence of any explicit acknowledgement of different weight attributable to all the factors cumulatively in the decision of the majority with the approach in the minority's decision: 16There is a unique combination of humanitarian factors in this case: the length of time the appellant has spent away from his home country; the long standing (sixteen year) establishment of his family in New Zealand, and his real contribution to its successful functioning and welfare, particularly in respect of his children. In this case I found the evidence as to the importance of the appellant to the previously successful family unit, the questionable ability of the wife to cope alone, and the measurably negative effects on at least two of the children in their father's absence, to be striking. When those factors are considered cumulatively, against a background of there being no public safety rationale for deportation, in my view the balance tips in favour of the deportation being unduly harsh.[36] It was argued for Mr Taafi that these references to a "combination of humanitarian factors" and the consideration of the factors "cumulatively", demonstrated that the minority had undertaken the evaluation correctly, whereas the majority had stopped short of the final step, and thereby fell into error. [37] Durie J noted in Leiataua v Minister of Immigration: 17In similar vein I must reject emphatically the suggestion made in submissions in this case that a matter may be deemed to have been considered and appropriately weighed simply because the matter has been mentioned in the recitation of arguments and facts. It is one thing to note a fact and another to assess its significance or to determine whether weight should be given to it or not. Where an assessment is called for, as here, then the assessment must be given, and it must be given openly and transparently. I adopt in this respect the approach of Williams J in Lee v Deportation Review Tribunal (High Court, Auckland, M 1993/98, 16 April 1999).[38] This is to be compared with the approach of Gendall J in Ogosi v Minister of Immigration: 18A semantic analysis, or an intricate word by word dissection, of a Tribunal's decision, in cases as this, does not help when determining appeals which must be based only on points of law. The decision has to be viewed in its16 At [151]-[153].17 Leiataua v Minister of Immigration HC Wellington CIV-2003-485-742, 26 November 2003 at [31].18 Ogosi v Minister of Immigration HC Wellington CIV-2006-485-673, 27 April 2007 at [23].entirety, bearing in mind the established expertise of a Tribunal empowered especially to review a Minister's deportation order. As Giles J in Butler v Removal Review Authority [1998] NZAR 409 noted, a decision of the Authority must be considered as a whole. The Authority has a duty to give reasons but not every piece of evidence must be traversed in detail, provided the party affected can understand the basis for the decision. In that decision, it was implicit that documents in evidence referred to by the Authority had been carefully reviewed and assessed. The Authority's expertise must be recognised so that if a decision can be supported by evidence, it is not for the Court to substitute its own view.[39] For the Minister, Mr Powell argued that after the individual comments on each of the factors in s 105(2), the majority of the DRT undertook a review that is in terms reflecting all the relevant factors. 19 He argued that it was apparent that the majority weighed all of the relevant factors both individually and collectively. [40] While the majority did not make explicit reference again to Mr Taafi's age or work history in its conclusions in [72] to [84], by its statement in [76] "the Tribunal must weigh the humanitarian circumstances of the appellant and his family, reviewed in greater detail above", the majority reflected a consideration of the factors in the round. It is by no means inevitable that all members of the DRT, properly directed on the law, will agree on the weight to be given to various components of the humanitarian factors that the DRT has to weigh up. The explicit reference to cumulative impact in the minority decision, when contrasted against the absence of any similar acknowledgement by the majority, does not mean that the majority overlooked that step. On a consideration of the majority decision as a whole, this first ground of challenge cannot be made out.Ground 2: Failing to complete balancing test prescribed by s 105[41] Mr Luscombe submitted that the Tribunal was correct to consider the relevant application of the international rights instruments cited, but the majority erred in applying, in particular, art 17 of the ICCPR. Mr Luscombe argued that art 17 should be considered at the balancing stage, as that article separately requires a balancing approach.19 At [72]-[84].[42] Section 105(2)(g) requires the Tribunal to have regard to "the interests of the appellant's family". In its consideration of this factor when moving through the sequence of factors set out in s 105(2), the DRT included a review of international law provisions addressing human rights that were seen as potentially relevant to its evaluation of the interests of Mr Taafi's family. As outlined at [19]-[20] above, the DRT's decision cited first from what amounts to an aspirational statement in art 23.1 of ICCPR and then acknowledged art 17 of ICCPR as expressing a "right". [43] The DRT then reflected on United Nations pronouncements on the effect of art 17, recognising that the notion of arbitrariness is to be measured by what is reasonable and proportional to the end sought by a government in interfering in family relationships. That led the DRT majority to assess the end attributed to the New Zealand government being that of denouncing serious crime and enhancing the integrity of, and public confidence in, its immigration system. The recognition of that end was treated as sufficient to warrant deportation in circumstances such as Mr Taafi's so as not to constitute arbitrary or unlawful interference with his family. This led to the conclusion set out in [21] above. [44] Mr Powell argued for the Minister that the submissions for Mr Taafi overstated the effect of that conclusion. He characterised the passage of the DRT decision culminating in that finding as reflecting whether deportation from New Zealand, in circumstances such as criminal offending as serious as Mr Taafi's, could constitute a response by the State that was arbitrary or unlawful interference with his family. Mr Powell argued that the DRT's reasoning at this point in its decision was no more than an acknowledgement that the enforcement of the provisions of Part 4 of the Act, potentially leading to deportation in such circumstances, would not breach any basic family unity rights, such as those provided for in ICCPR. Mr Powell described such standards as the minimum, or "the floor" of rights, and that the balancing act required under s 105 actually affords protection for those vulnerable to deportation to a higher standard than is required by those international provisions. [45] Although the sequence of the majority's subsequent reasoning is not entirely clear, I am inclined to accept that the discrete consideration of whether theapplication of the provisions of Part 4 of the Act to Mr Taafi involves any breach of such international standards has not inappropriately intruded on the subsequent evaluation of whether, in his circumstances, it would be unjust or unduly harsh to deport Mr Taafi. Put at its highest, this part of Mr Luscombe's argument is that the DRT erred when it reasoned that because deportation did not infringe any international standards, then it followed that it was not unjust or unduly harsh to deport him. The point here is that compliance with international expectations (which Mr Powell accepted set a lower standard than the Act provides for) is not a basis for a finding that deportation would not be unjust or unduly harsh. [46] The majority later refers to the absence of breach of the human rights instruments:20We have already found that there is no breach of any human rights instrument concerning family unity, in the event of deportation. A primary (but not the paramount) consideration is the best interests of the children, which favour his presence in New Zealand.[47] The majority then records its balancing of his serious offending against the hardship to him and his family: 21When the majority of the Tribunal balances the appellant's serious violent offending against the hardship to him and his family that separation would bring about, we find that it would not be unjust or unduly harsh for the appellant to be deported. The family's interests, including those of the children, are outweighed by the circumstances of his offending.[48] These passages do suggest that the majority correctly approached these as discrete inquiries. By a narrow margin, I am not satisfied that there was any inappropriate reliance on the former finding, when arriving at the latter one. Having said that, I acknowledge the grounds for unease expressed on behalf of Mr Taafi that the sequence of reasoning of the majority leaves scope for concern that its finding that international human rights instruments have not been breached has inappropriately influenced the subsequent decision on whether deportation is unjust or unduly harsh.20 At [77].21 At [84].Grounds 3 and 4: Improper considerations of public interest and irreconcilable finding that Mr Taafi's remaining in New Zealand not contrary to public interest[49] The sequence contemplated for a DRT assessment under s 105(1) is, first, for it to decide whether it can be satisfied that it would be unjust or unduly harsh to deport an appellant from New Zealand. If the DRT in any case is so satisfied, then, but only then, is it necessary to go on to the second limb which is whether or not it would be contrary to the public interest to allow the appellant to remain in New Zealand. 22 The evident legislative intent is that there may be appellants who could make out that deportation would, in their particular circumstances, be unjust or unduly harsh but some overriding reflection of the public interest would nonetheless make it contrary to the public interest to allow the appellant to remain in New Zealand. [50] On this sequence, it is unnecessary for the DRT to embark on the second limb, unless the appellant has succeeded on the first. It also raises the prospect that different considerations will be applied to the sequential decisions on the first, and then the second limb. [51] In running together his third and fourth grounds of challenge, Mr Taafi's present appeal focuses, first, on whether the public interest can have relevance to the weighing exercise required under the first limb of s 105(1). Second, whether, in this case, a finding that it would not be contrary to the public interest to allow him to remain is irreconcilable with the outcome of the weighing exercise under the first limb, on which the DRT reached the view that it would not be unjust or unduly harsh to require his deportation. [52] The assessment under the first limb of whether there is injustice or undue harshness in deporting an appellant is not an absolute analysis. Rather, it is a relative one weighing the extent of any harshness or injustice against the considerations supporting the deportation from New Zealand of the holder of a resident's permit who has been convicted of a relevantly serious crime. Although the considerations22 Phillpott v The Chief Executive of the Department of Labour HC Wellington CIV-2005-485-713, 21 October 2005 at [35].supporting deportation, against which the relative injustice or harshness of deportation are to be measured are not explicit, the international recognition of notions such as the ends of the State are one legitimate proxy for those countervailing considerations, and that is effectively a synonym for the public interest in the context of the present decision. [53] I would therefore not accept that the considerations under s 105 have to be applied by the DRT in a way that scrupulously excludes any public interest consideration on the first limb. By the same token, that is not to acknowledge that there is an entirely duplicated consideration of public interest matters under the first and second limbs. It simply means that if the DRT has regard under the first limb to considerations favouring deportation that might be labelled as matters of public interest, that does not render such an evaluation inconsistent with the section. [54] Accordingly, the fourth ground of appeal is to be considered in the context where the DRT is not precluded from having regard to public interest matters under both limbs, but in the circumstances of this case has produced an outcome that reflects irreconcilable inconsistency on the findings relating to matters of public interest. The essence of Mr Taafi's fourth ground is that the majority reasoned there were harsh and potentially unjust adverse consequences for Mr Taafi and his family flowing from his deportation, but they were not sufficiently unjust or unduly harsh when weighed against the State's interest in upholding the integrity of the immigration system, and deterring other migrants from offending. Those countervailing considerations are a reflection of the relevant public interest. It follows that, on the first limb, such countervailing public interest factors are said to deprive the relative extent of injustice or harshness of sufficient standing to weigh against deportation, whereas under the second limb, the DRT has found that it would not be contrary to the public interest to allow Mr Taafi to remain. Stated in these terms, the two findings certainly appear to be inconsistent. [55] Mr Powell does not accept there is a material inconsistency, characterising the finding in [65] as being confined to an evaluation of whether deportation in circumstances such as Mr Taafi's breaches family unit rights as recognised in the ICCPR. Mr Powell then contrasts the narrow scope of that finding against thesubsequent discrete observation that it would not be contrary to the public interest for the appellant to be allowed to remain in New Zealand. 23 Mr Powell suggests that the second finding is likely to have reflected the more conventional assessment of public interest factors on the second limb, in particular the prospect of re-offending. Logically, a high prospect of serious re-offending is likely to be treated as justifying deportation because it would be contrary to the public interest for such an offender to remain in New Zealand. [56] That is a credible rationale, in that the two findings reflect different public interest considerations, in different contexts. However, the gloss necessary to understand the two observations in a way that enables them to be reconciled in that way involves a generous extent of implication that an appellant should not be required to undertake on a decision against him or her. This is not a matter of descending into the minutiae; the inconsistency goes to the core of the DRT decision. There is little explanation in the majority's decision for its conclusion on the second limb. It can be inferred that the low risk of re-offending was a substantial influence. The finding appears consistent with the recent comment of the Supreme Court, as reflected in the following observations: 24We do not, however, consider it can have been intended, consistently with relevant international obligations, that a general concern about the integrity of New Zealand's borders and its immigration system will be enough in itself to demonstrate that it would be contrary to the public interest to allow a person fulfilling the first criterion to remain in New Zealand. Logically that would mean the general concern was capable of outweighing the injustice or undue harshness on a generic basis. The only escape from the logical and policy difficulties inherent in that proposition would be to introduce the concept of degrees of injustice or undue harshness and to say that a high degree of injustice or undue harshness was necessary to outweigh the general public interest concerned. But that approach would add a difficult and uncertain additional matter of degree and a further layer of assessment on top of what is already a difficult test to administer. Once qualifying injustice or undue harshness is shown, there must be something in the circumstances of the particular case which would make it contrary to the public interest to allow the person to remain in New Zealand. Something more than a general concern for the integrity of the immigration system is necessary to outweigh the fulfilment of the first criterion, which is deliberately set at a high level. This construction gives effect to the principle that Parliament has legislated consistently with international obligations23 At [85].24 Ye & ors v Minister of Immigration [2009] NZSC 76; [2010] 1 NZLR 104 at [31]-[32].unless the contrary is clearly shown or unless the language used does not allow that outcome.[57] In the jurisdictional sense, concerns to protect the integrity of New Zealand's borders and its immigration system may be sufficient to justify the prospect of deportation such as is provided by s 91 of the Act. Therefore, that manifestation of the public interest justifies the existence of the jurisdiction to deport ("at the floor" of human rights expectations as Mr Powell described it). Further, that the case specific considerations of the public interest, when reflecting on the severity of Mr Taafi's offending and the modest prospects of his re-offending, would not justify deporting him if he had made out the first limb of the two separate considerations under s 105(1). Again, that rationale requires generous implication of the reasoning behind the majority's decision, but not articulated in it. [58] I therefore find that the decision of the majority contains an error of law in its failure to acknowledge and explain the inconsistency otherwise apparent on its reasoning, as between the findings in [65] and [85]. Although it is a matter for the DRT, it may be that it should not consider itself obliged to express an opinion on the second limb of s 105, unless it has found in favour of an appellant on the first ground. 25 Alternatively, if it considers it appropriate to express a view on the second limb notwithstanding an appellant's failure to make out the first limb, then the DRT ought to acknowledge the different context in which public interest has been evaluated if, as here, public interest considerations are relevant in a finding against an appellant on the first limb, notwithstanding a finding that under the second limb the public interest would not have required the appellant's deportation.Ground 5: Attributing inordinate weight to the seriousness of the appellant's offending[59] Mr Luscombe submitted that the inordinate weight given to a relevant consideration (in this case the nature of the offending) can amount to an error of law. Mr Luscombe argued that the majority was preoccupied by the fact that Mr Taafi25 I acknowledge that it may be the practice of the DRT to address both limbs, irrespective of its conclusion on the first limb. For instance, that appears to have occurred in Fisiipeau v Minister of Immigration HC Wellington CIV-2010-485-179 at [3].was convicted of anal rape and placed such inordinate weight on this fact in its assessment that its conclusion, in distinguishing his offending from that in Toomata v The Minister of Immigration, 26 was not reasonably open to it. Toomata was a case in which the DRT had accepted that a rape conviction was not, of itself, sufficiently serious to eliminate the prospect that deportation could be unjust or unduly harsh. It was argued for Mr Taafi that the Toomata decision ought to be applied in his case. On appeal, Mr Taafi argued that the conclusion of Member Clayton in the minority was correct in analogising the offending of Messrs Taafi and Toomata. [60] Given the well-settled proposition that matters of weight are inarguably for the decision-maker, this proposition hangs by a very slender thread and is not one which could sustain a finding of error of law in the context of appeals such as the present. Mr Luscombe's submissions relied upon the decision in Leiataua v Minister of Immigration.27 He characterised, as a criticism of inordinate weight being given to one factor, reasoning in that decision which criticised overwhelming primacy having been given to the offence of rape itself, when the Court found the DRT did so to an extent that precluded consideration of the justice of the particular case. Even if that finding can accurately be characterised as the DRT attributing inordinate weight to that factor, which with respect I doubt, then it is not an analogy which can avail the appellant in the present case. Arguments regarding the weight attributed to the seriousness of the offending of Mr Taafi are not questions of law. 28[61] In response, Mr Powell argued that it was not so much that the DRT distinguished this case from that of Mr Toomata, but that the DRT rejected the approach of comparing offences as unsound because the circumstances of each case are unique. In support of that proposition, the Tribunal cited Ogosi v Minister of Immigration.29 I agree. While like cases should be treated alike where possible, each case must be determined on its merits. While I agree that the distinction the DRT has drawn between Mr Taafi's offending and that of Mr Toomata is perhaps tenuous, that is not the test.26 Toomata v The Minister of Immigration [2008] NZDRT 2.27 Leiataua v Minister of Immigration HC Wellington CIV-2003-485-742, 26 November 2003.28 Fisiipeau v MOIHC Wellington CIV-2010-485-179, 15 May 2010 at [33].29 Ogosi v Minister of Immigration HC Wellington CIV-485-713, 21 October 2005.[62] I accept that appeals under s 117 of the Act may succeed where a decision was unreasonable in the Wednesbury sense. 30 To constitute an error of law, the conclusion must be one that was not reasonably open to the Tribunal. That cannot be made out here.Ground 6: Introducing assumptions of fact not supported by the evidence[63] With regard to Mr Taafi's ability to find work, at [45] the DRT concluded:He is a strong, healthy man with an excellent work ethic, who would find employment in New Zealand or Samoa. In Samoa, his village is a short distance from the main town of Apia. His experience as a forklift driver would assist him to gain employment in both countries.[64] This followed a finding in the following terms: 31We would expect him to find work in Samoa in due course[65] The DRT noted that, on Mr Taafi's evidence, he does not know what employment would be available in Samoa in the current job market. Given the absence of other evidence, Mr Luscombe submits that the DRT's conclusion that hewould find employment was one that was not open to it on the facts. [66] Mr Powell could not point to any evidence that would support a finding that Mr Taafi could find work on his return to Samoa. Mr Luscombe did acknowledge in reply that there was a tangential reference in questioning from a DRT member where Mr Taafi responded: 32Depending on the availability of work in Samoa. If there is no jobs, there is no job.[67] Mr Luscombe coupled this unjustified assumption with a criticism that Mr Taafi would have the support of his siblings if returned to Samoa, which Mr Taafi took to imply financial support when the evidence demonstrated that his family in Samoa would not be in any position to assist him financially. Indeed,30 Zafirov v Minister of Immigration [2009] NZAR 457 at [21].31 At [42].32 Transcript of DRT hearing at 40.during his period in New Zealand, Mr Taafi has periodically sent money to his family in Samoa to help them. Mr Powell accepted that there was no evidence justifying a finding that any of Mr Taafi's family in Samoa could contribute to his financial well-being, but deflected this criticism advanced on behalf of Mr Taafi by characterising the finding about support from his siblings as being limited to moral support for him, which is justified on the evidence. That may be so, but confining that finding to just moral support adds a further level of importance to the finding made without evidence that Mr Taafi would be able to support himself financially in Samoa. I am satisfied there was no basis on the evidence for that, which in the reasoning of the majority was a material consideration seen as ameliorating the seriousness of adverse consequences of his deportation. [68] Ronald Young J commented in Phillpott v Chief Executive of the Department of Labour on the inadequate basis for a finding of the Tribunal on the appellant's ability to renew a relationship with his father upon the appellant's forced return to the United Kingdom: 33This factual analysis did not seem to be undertaken by the Tribunal. While I would not have allowed the appeal on this ground alone, the Tribunal's factual conclusion does not seem justified by the facts. It was, it seems to me, essentially an attempt by the Tribunal to ameliorate the harshness of loss of New Zealand family by saying Mr Phillpott could resume contact with his United Kingdom family. The evidence to support that proposition is extremely thin. While not by itself sufficient to constitute an error of law it was a factual error by the Tribunal.[69] In characterising this error in the present case, there is a relatively fine line between the approach in Phillpott, where it was treated simply as a factual error, and the more general recognition that a Tribunal's finding made without any evidence, or upon evidence which could not reasonably support its conclusion, constitutes an error of law (see [29] above). [70] Mr Powell argued that any error identified on this point could only result from drilling down into the minutiae of the decision at a level that was not warranted33 Phillpott v The Chief Executive of the Department of Labour HC Wellington CIV-2005-485-713, 21 October 2005 at [37].when the appeal to this Court should be dealing with the outcome overall. He also submitted that if the DRT ought to have found that the appellant would struggle to support himself financially in Samoa, that would not constitute a major consideration in the circumstances of this case because the effect of his conviction will be a dampener on any employment, irrespective of where he continues his life. [71] I am unable to accept that relegation of the importance of this error. It reflects one of the more stark differences between the majority and the minority decision. The majority has relied upon the view that Mr Taafi would be able to support himself in Samoa without any factual justification for that view. The minority focused on the impact on his family in New Zealand of the absence of his earning power which, until his imprisonment, had been more than enough to support them without any government assistance (in addition to periodic contributions to the finances of his own and his wife's families in Samoa). The stark reality is as noted by the majority at [57] that if he is deported, his family here will become dependent on State benefits. [72] Seen in this light, the error as to his financial predicament in Samoa assumes a measure of importance. I am not prepared to treat it as being on the same side of the line as the error in Phillpott, and rather I am satisfied that it constitutes a finding for which there was no evidence that could reasonably support the conclusion, and is accordingly an error of law.Summary on grounds, and disposition of the appeal[73] I accordingly find that material errors of law are made out on the final, sixth, ground argued for Mr Taafi, and on the inconsistency established under ground 4 as to the considerations of the public interest. [74] Mr Luscombe urged that if any of these errors were made out, then the appropriate remedy was for the Court to exercise its power to reverse the decision. That is not a remedy that will often be appropriate and is certainly not so here. I am far from satisfied that, if the DRT reconsidered Mr Taafi's case in light of thisjudgment, it is inevitable that his deportation order would be quashed. For that reason, and to preserve the rights of appeal in respect of the next decision about him, the appropriate outcome is to quash the DRT decision and direct that the matter be re-heard before the DRT, and I so order.Costs[75] Counsel are invited to file Memoranda.Dobson JSolicitors: Luscombe Legal, Hastings for appellant Crown Law, Wellington for respondent