TAAFI v THE MINISTER OF IMMIGRATION HC NAP CIV-2011-441-471

TAAFI v THE MINISTER OF IMMIGRATION HC NAP CIV-2011-441-471 28 November 2011IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYCIV-2011-441-471UNDER the Immigration Act 2009IN THE MATTER OF an application for leave to appeal pursuantto s 245 of the Immigration Act 2009BETWEEN AUTALAVOU TAAFIApplicantAND THE MINISTER OF IMMIGRATIONRespondentHearing: 23 November 2011Counsel: M Luscombe with A Harris for ApplicantL Fong for RespondentJudgment: 28 November 2011JUDGMENT OF THE HON JUSTICE KÓSIntroduction[1] The applicant raped a work colleague. After a defended trial he wassentenced to seven years' imprisonment. He remains in prison to this day, parolehaving been denied on two occasions. The Minister of Immigration has made an order deporting the applicant, as he is not a New Zealand citizen. He applied to the Immigration and Protection Tribunal for the deportation order to be quashed, on the basis that deportation would be unjust or unduly harsh.1 The Tribunal howeverconfirmed the Minister's order. Mr Taafi applies for leave to appeal to this Court.1 Section 105 of the Immigration Act 1987.Background[2] Mr Taafi is a citizen of Samoa. He is 47 years old. He has a grown up daughter by a former partner, and three children by his current wife (aged 16, 11 and 9). He also has two grandchildren. He came to New Zealand in 1987. Between 1988 and 1999 he was an illegal over-stayer. In 1999 he was granted residence. He has never become a New Zealand citizen. He has lived lawfully in New Zealand for 13 years. For the last four years, he has been in prison.[3] On 17 March 2006 the applicant was driving a work colleague home. He stopped the car in a car parking area. He raped his colleague. He later gave an account of events that (as the Judge noted) the jury plainly disbelieved. He insistedthere had been consent. The jury's verdict found otherwise. He expressed noremorse. A sentence of seven years' imprisonment was imposed.[4] Section 91(1)(d) of the Immigration Act 1987 (the Act) provides that a sentence of imprisonment of five years or more within ten years of the granting of a residence permit exposes the holder to liability for deportation, at the Minister ofImmigration's discretion. On 11 December 2007 a deportation order was served onMr Taafi.[5] Mr Taafi filed a notice of appeal against the notice of deportation under s 104 of the Act. His appeal was heard by the former Deportation Review Tribunal atWaipukurau in August 2009. That Tribunal upheld the Minister's deportation orderin April 2010. Mr Taafi appealed (then, as of right) to the High Court pursuant to s 117 of the Act. In September 2010 Dobson J quashed the decision of the Deportation Review Tribunal and ordered a rehearing. The rehearing was heard by the newly constituted Immigration and Protection Tribunal (the Tribunal) in March 2011. This application is to appeal from its decision, again confirming the deportation order, in June 2011. Throughout all these events, Mr Taafi has remained in prison.[6] Finally, by way of substantive background I note:(a) the Parole Board has twice declined Mr Taafi parole;2(b) as a result of programmes undertaken in prison, Mr Taafi now admits that he did indeed commit the rape of his colleague;(c) Mrs Taafi has ended the marriage. She is apparently resolute in that decision. The consequence is that Mr Taafi will not be able to return to the matrimonial home, once released from prison.Tribunal decision[7] The Tribunal's jurisdiction to quash a ministerial deportation order is found inss 104 and 105 of the Act. The latter provides:105 Tribunal may quash deportation order(1) On an appeal under section 104 of this Act, the Tribunal may, by order, 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.(1A) Without limiting subsection (2), in deciding whether it would be unjust or unduly harsh to deport the appellant from New Zealand, and whether it would not be contrary to the public interest to allow the appellant to remain in New Zealand, the Tribunal must have regard to any submissions of a victim, in accordance with section 105A.(2) In deciding whether or not it would be unjust or unduly harsh to deport the appellant from New Zealand, the Tribunal shall have regard to the following matters:(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:2 On 16 September 2009 and 17 September 2010.(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.[8] In Kumar v Minister of Immigration Ronald Young J observed:3The legislature saw this issue as a balancing one, requiring the seriousness of the offending to be balanced against the humanitarian or compassionate factors in favour of the appellant. The double hurdle which an appellant must overcome – showing that the proposed deportation is ―unjust or undulyharsh and that his or her remaining in New Zealand is not contrary to thepublic interests – means that this balancing exercise must be carried out even in a case where the public interest does not require deportation.And as to the first limb, or hurdle, in Srikhongyot v Minister of Immigration,4 Miller J said:The test sets a high threshold; it recognises that an element of harshness commonly attends deportation, but more than that is necessary.[9] The Tribunal has for present purposes the same functions and powers of theDeportation Review Tribunal. That body was described as ―a specialist Tribunalwith powers more suited than that of the High Court to examine the matters whichfall within its jurisdiction.5[10] Although the new Immigration Act 20096 has been enacted, s 446 of that Actrequired Mr Taafi's application before the Tribunal to be determined in accordancewith the provisions of the 1987 Act. The effect, however, of s 452 of the 2009 Act is that appeals from decisions of the Tribunal, even where made under the provisions of the 1987 Act, are to be determined in accordance with s 245 of the 2009 Act. I will say more about that later.[11] As Mr Mark Luscombe (who appeared for Mr Taafi) acknowledged, the Tribunal proceeded very carefully in its analysis. Doubtless it bore in mind the fact3 Kumar v Minister of Immigration HC Wellington AP 101/99, 14 June 2000 at [19].4 Scrikhongyot v Minister of Immigration HC Auckland CIV-2010-404-5998, 4 February 2011 at[4].5 Faavae v Minister of Immigration [1986] 2 NZLR 243 at 250 (HC).6 Referred to hereafter as ―the 2009 Act.that the earlier decision of the Deportation Review Tribunal had been quashed by Dobson J.[12] In assessing the first limb of s 105(1) – whether it is unjust or unduly harsh to deport – the Tribunal considered Mr Taafi's age, the length of period he had been in New Zealand lawfully, his personal and domestic circumstances (including the extended contact that he had had with his eldest child), and the fact that his wife hadended their relationship. That meant ―it is highly unlikely that the applicant will beable to return to the family home if he is not deported upon release. The Tribunal considered the applicant's good work record, the nature of his offending, the interests of his family and New Zealand's international obligations. The Tribunal then said:[42] In this case, the end sought to be achieved by the deportation notice are the denunciation of serious crime committed by those who have been granted residence in New Zealand, and the maintenance of the integrity of the immigration system. The more serious the crime committed by a non- citizen, the greater the denunciation. A deportation notice is a proportionateresponse to an offence punishable by more than five years' imprisonmentcommitted by a non-citizen. The reasons for serving the deportation notice are significant matters of public interest. The family has encounteredhardship, but this is primarily as a result of the appellant's imprisonment;they are without the income the husband used to earn, but the appellant'swife has discovered that she can provide for her family without herhusband's help; the wife has decided to leave her husband and he is unlikelyto return to the household; the children experienced shame and behavioural issues, and although they miss their father, they are doing better now; the appellant misses his family but has accepted that he will no longer be a partof his family's household. The appellant's imprisonment is the primary driver of the family's hardship; deportation would add to the hardship by making it more difficult, but not impossible, for the appellant to play a rolein this family's life. In this respect, the additional hardship resulting from deportation does not outweigh the significance of the Minister's reasons forwanting to deport the appellant.[13] The Tribunal noted that the children missed their father. However it appeared they seldom visited him in prison, despite the fact that it was only a ten minute car or bus trip away from their home. The Tribunal said:[45] The children have now lived a significant proportion of their lives without the appellant as a member of the household, and the family appears to be coping well. It is in the best interests of the children to have their father play a role in their lives, even as a non-custodial parent, but this is not the sole determinative factor in deciding whether or not it would be unjust or unduly harsh to deport the appellant. Other considerations must be balanced against what is in the best interests of the children, and this is what we now proceed to do.[14] In reaching its conclusion the Tribunal first weighed the offending (which itnoted was grave and had earned a penalty of seven years' imprisonment) and theprior lack of remorse (although noting the evidence indicated that the applicant now accepted responsibility for his actions). The Tribunal continued:[49] Against this, the Tribunal must weigh the humanitarian circumstances of the appellant and his family, reviewed in greater detail above. Deportation would deprive the appellant of the opportunity todirectly influence his children's lives. This is significant. Its significance isdiminished however by other intervening circumstances that have hadsimilar effect, namely his wife's decision to leave him, his incarceration for four years, and the unlikelihood that he will be able to return to the family home once released, regardless of whether or not he is deported. Deportation would add another hurdle to his direct participation in thechildren's lives, but with letters, phone calls, emails and occasional trips to Samoa, it is not an insurmountable hurdle, and not one that is much different from the hurdles raised by the intervening circumstances discussed above.[50] The humanitarian circumstances of the appellant and his family, which include consideration of his right to a family life and the best interests of the children, although important, are leavened to some extent by evidence that members of the family are adjusting to his absence and have taken decisions that make it less likely that he will have the same direct influence on family life that he had before going to prison, regardless of whether or nothe is deported. Seen in this light, the state's interest in condemningoffending of this gravity by deporting culpable non-citizens outweighs theappellant's and his family's humanitarian circumstances.[15] As a result the Tribunal found that it would not be unjust or unduly harsh for Mr Taafi to be deported.[16] Turning to the second limb, it assessed the risk of recidivist reoffending as low. Weighing all factors together, the Tribunal decided that it would not be contrary to the public interest to allow the applicant to stay in New Zealand. It followed that the applicant succeeded before the Tribunal on the second limb, but fell at the first.High Court appellate jurisdiction[17] The present appeal is governed by s 245 of the 2009 Act. That 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, chiefexecutive, 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.(2) Every appeal under this section must be brought—(a) not later than 28 days after the date on which thedecision of the Tribunal to which the appeal relates wasnotified to the party appealing; or(b) within such further time as the High Court may allowon application made before the expiry of that 28-dayperiod.(3) In determining whether to grant leave to appeal under thissection, the court to which the application for leave is mademust have regard to whether the question of law involved inthe appeal is one that by reason of its general or publicimportance or for any other reason ought to be submitted tothe High Court for its decision.(4) On the appeal, the High Court must determine the questionor questions of law arising in the proceedings, and maythen—(a) confirm the decision in respect of which the appeal hasbeen brought; or(b) remit the matter to the Tribunal with the opinion of theHigh Court, together with any directions as to how thematter should be dealt with; or(c) make such other orders in relation to the matter as itthinks fit.(5) Subject to subsection (2), every appeal under this sectionmust be dealt with in accordance with the rules of the court,with any modifications necessary to reflect the provisions ofthis Act, including any ancillary general practices andprocedures developed under section 260.[18] Prior to the introduction of this provision, there was an appeal as of right on a question of law from the Deportation Review Tribunal.7 I agree with the submissions of Ms Lisa Fong (who appeared for the Minister) that the introductionof a leave provision indicates Parliament's intent to limit appeals in immigrationdecisions.7 Section 117 of the Immigration Act 1987.[19] In the present case, which is based wholly upon criticisms of factual findings, the applicant faces a triple hurdle:(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 basis forthe Court's finding.8(b) Secondly, the applicant will need to show that 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;9 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.10(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 limb that there is―other reason why the question should be submitted to the HighCourt.) In my view it would only be in exceptional circumstances, involving individual injustice to such an extent that the Court simply8 Faave v Minister of Immigration [1996] 2 NZLR 243 at 247 (HC).9 Edwards v Bairstow [1956] AC 14, 36 (HL).10 Faave v Minister of Immigration [1996] 2 NZLR 243 at 247 (HC).could not countenance the first instance decision standing, that this alternative requirement will be met.Applicant's primary argument[20] The applicant's primary argument (which Mr Luscombe candidly describedas his ―only real entry point) concerns the final sentence of paragraph [49] of the Tribunal's decision (quoted at [14] above). Mr Luscombe contends that there is no evidential finding for the conclusion reached by the Tribunal. Alternatively, it was contrary to the available evidence. The Tribunal, he said, had no evidence as to theavailability of email contact with Mr Taafi's children (e.g. as to whether they evenhad internet access). Even more fundamentally, if deported Mr Taafi could not besaid to be engaged in ―direct participation in his children's lives at all.[21] Mr Luscombe submitted that the Tribunal may have erred in law by finding that the applicant's deportation would not be an insurmountable obstacle to his directparticipation in his children's lives was not one reasonably open to the Tribunal tomake on the evidence before it. He said that the only finding reasonably open to the Tribunal on the evidence before it was that while some contact by telephone mightbe possible, in the case of Mr Taafi's younger daughters this would depend entirely on the cooperation of the children's mother. Any such contact would be uncertain and irregular. It would thus fall well short of ―direct participation in the children'slives.Analysis[22] I do not accept that the Tribunal has misdirected itself factually in the passage complained of.[23] First, the Tribunal was clearly conscious that deportation would make it moredifficult for Mr Taafi to play a role in his family's life. It said exactly that at paragraph [42].11 But, the Tribunal concluded, deportation would not make his having a role impossible. What the Tribunal is saying in paragraph [49] is that11 Cited at [12] above.deportation would not have a much greater effect on Mr Taafi's participation in family life than incarceration presently does. Incarceration means Mr Taafi has to rely upon letters and occasional visits. There have not been many of the latter. Deportation means he will depend on the same means of communication, along also with phone calls and email access, when available.[24] Secondly, I cannot read the Tribunal decision as suggesting that that form of limited communication will enable him to participate in a very direct fashion in his family life. Quite the contrary. The second sentence of the passage complained of, paragraph [49], states:Deportation would deprive the appellant of the opportunity to directlyinfluence his children's lives.[25] The Tribunal did not therefore misdirect itself on the facts in paragraph [49].The ―entry point identified is, therefore, closed to the applicant. It follows that theapplicant cannot clear the first hurdle identified in paragraph [9], let alone the second or third.Subsidiary grounds[26] Mr Luscombe advanced two other potential grounds of appeal. The first wasthat the Tribunal's finding at paragraph [25] of its decision that:[Mr Taafi] acknowledged that he would have to restart his life in Samoa, settle in and look for work if he were to be deported. This acknowledgement indicates that he feels able to do so.involves a non sequitur: acknowledgment of need does not imply ability.[27] There is nothing in this point, however. The reality is that Mr Taafi will need to restart his life, settle and look for work whether he is deported or not. He acknowledged as much before the Tribunal, in giving evidence. If he has that capability and intention in New Zealand, then so he has in Samoa. He may or may not be successful in doing so in either country. And there may be a different probability of success as between the two countries. But the passage complained of is cogent in its own terms.[28] Secondly, Mr Luscombe complained of two passages in the decision wherethe Tribunal refers to the applicant's future involvement with his children being thatof a ―non-custodial parent. For Mr Taafi, he says that this is ―indicative of an attitude that is now outdated in New Zealand family law, namely that ―custodialparents are more significant in terms of their value to children than ―non-custodial parents. Mr Luscombe contrasts the new terminology used in the Care of Children Act 2004 of ―day to day care and ―contact.[29] Again, there is nothing in this point. The Tribunal's point is simply that withMrs Taafi having decided not to receive Mr Taafi back into the matrimonial home, and Mr Taafi having accepted that decision, he will not have day to day care, or―custody, of the three children of the couple. As a statement of fact, it cannot becriticised.Conclusion[30] Despite the careful and capable submissions made by Mr Luscombe on Mr Taafi's behalf, no error of law, let alone an error sufficient for the purposes ofgranting leave under s 245(3), can be found in this case.Disposition[31] The application for leave to appeal is dismissed.[32] I did not hear the parties on costs. If costs are in issue, parties are to seek to resolve those directly. If need be, I will consider memoranda.Stephen Kós JSolicitors:Luscombe Legal, Hastings. Email: Andrew@luscombelegal.co.nzCrown Law, Wellington. Email: lisa.fong@crownlaw.govt.nz