DAVIES v IMMIGRATION NEW ZEALAND [2017] NZHC 1238

DAVIES v IMMIGRATION NEW ZEALAND [2017] NZHC 1238 [8 June 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH] REGISTRYCIV-2016-409-001150[2017] NZHC 1238IN THE MATTER OF An appeal against a decision of theImmigration and Protection TribunalBETWEEN CAITLYN DAVIESBY HER LITIGATION GUARDIANCHARMAINE DAVIESAppellantAND IMMIGRATION NEW ZEALANDRespondentHearing: 19 May 2017Appearances: A N Riches and J Bensley for the AppellantZ R Johnston for the RespondentJudgment: 8 June 2017JUDGMENT OF NATION J[1] In 2015, the father of the appellant (Caitlyn) arrived in New Zealand from South Africa and was granted a one year work visa. A few months later, Caitlyn, her mother and nearly two year old brother arrived in New Zealand with concurrent work and visitor visas, as the partner and dependent children of a worker. Caitlyn was aged three. In May 2016, the father was granted a further one year work visa. The mother and brother were granted concurrent work and visitor visas. Immigration New Zealand declined to grant Caitlyn a visitor visa because she was not considered to be of an acceptable standard of health. Caitlyn's global development delay, blindness and chronic medical conditions were deemed likely to impose significant costs and/or demands on the New Zealand health system.[2] Caitlyn's interim visa expired on 11 July 2016 so that she was thenunlawfully in New Zealand.[3] On 25 October 2016, the Immigration and Protection Tribunal of New Zealand (the Tribunal) issued a decision declining her appeal against deportation but ordered she be granted a visitor visa for three months effective from 25 October2016 to enable her parents to plan for and better finance the family's return to SouthAfrica.[4] In a judgment of 15 March 2017, Mander J granted leave to appeal to thisCourt against the Tribunal's dismissal of the appeal:1 on the question of whether the Tribunal erred in law in its approach to the application of the balancing exercise required to be undertaken to determine whether it would be unjust or unduly harsh to deport Caitlyn.[5] In granting leave, Mander J stated the question of law involved two inter- related questions:[26] Firstly, whether the Tribunal prematurely took into account policy considerations that sit behind the immigration instructions in determining whether it would be unjust or unduly harsh to deport Caitlyn [27] Secondly, whether in approaching the balancing exercise required by s 207(1)(a) the Tribunal failed to primarily focus on Caitlyn's personalcircumstances The Tribunal's decision[6] The Tribunal set out the basis on which it had to consider the matter under theheading "Statutory Grounds":[14] The grounds for determining a humanitarian appeal are set out in section 207 of the Immigration Act 2009 (the Act):(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.1 Davies v Chief Executive of the Ministry of Business, Innovation and Employment [2017] NZHC 503 at [49].[15] The Supreme Court stated that three ingredients had to be established in the first limb of section 47(3) of the former Immigration Act 1987, the almost identical predecessor to section 207(1): (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand. Thecircumstances "must be well outside the normal run of circumstances" and while they do not need to be unique or very rare, they do have to be "truly an exception rather than the rule", Ye v Minister of Immigration.[16] To determine whether it would be unjust or unduly harsh for an appellant to be deported from New Zealand, the Supreme Court in Ye statedthat an appellant must show a level of harshness more than a "generic concern" and "beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand's immigrationsystem.(citations omitted)[7] The Tribunal then referred to the appellant's case and the information whichsupported it. In its assessment of the submissions, the Tribunal considered, first, whether there were exceptional circumstances of a humanitarian nature. It noted thatthe girl's parents were asking that she be allowed to stay in New Zealand because it would be economically difficult to re-establish the family in South Africa. This was because there were poor employment opportunities and limited educational and medical facilities for children with disabilities, and a high incidence of violent crime, including in schools.[8] The Tribunal then referred to the evidence before it as to the appellant's health issues and the New Zealand medical assessor's conclusion that she wouldlikely impose significant demands on special education services. They referred to the particular support that was in place for Caitlyn at kindergarten and to her being due to start primary school in May 2017. The Tribunal considered that the "same very high level of support in her education would have to continue indefinitely". It then considered the best interests of the appellant and, in that regard, considered in some detail the environment she would likely be in on a return to South Africa. It concluded:Given the serious deficiencies in the provision of education for the disabled in South Africa, the appellant's developmental progress, acquisition of lifeskills and life chances generally, will be far better assured if she is able to remain in the New Zealand education system. It is therefore in her best interests that she is able to remain in this country.[9] The Tribunal then considered submissions that had been made as to theeconomic difficulties the appellant's parents would face on returning to South Africa and the limited assistance that would be available from their family who remained in South Africa. The Tribunal concluded that, even if there would be some financial hardship in re-establishing the family in South Africa, it should be within the parents'capability to achieve that. The Tribunal also noted that the desire for families to stay in New Zealand, so as to take advantage of better employment opportunities and a higher standard of living, was common to many others who seek to stay in New Zealand. The Tribunal said that disparities in economic opportunities and standards of living do not, of themselves, amount to exceptional humanitarian circumstances.2The Tribunal said the family was not destitute before coming to New Zealand, and had not established that they would become so if they returned to South Africa.[10] The Tribunal then considered the potential impact of separation of family members. They referred to the possibility that the father might remain in New Zealand so as to earn a higher income, with the mother and younger brother accompanying the appellant back to South Africa, if that were ultimately necessary. The Tribunal noted that, if this eventuated, the family would be separated which would not be in the best interests of the appellant or her brother. However, that was tempered by the fact that, initially, the father had come to New Zealand on his own, at a time when a temporary separation was considered acceptable to the family. The Tribunal noted a similar strategy might again be adopted to facilitate the family'sreturn to South Africa.[11] The Tribunal then, in relation to "exceptional humanitarian circumstances", explained why it held a number of matters relied on by the appellant did not establish exceptional humanitarian circumstances, whether considered individually or collectively. It did, however, note the appellant was a young child with multiple disabilities who faced huge challenges. They accepted that her reduced educational opportunities in her home country did give rise to exceptional humanitarian circumstances.2 Referring to Ronberg v Chief Executive of Department of Labour [1995] NZAR 509 (HC) at 526-527.[12] The Tribunal then went on to consider "whether it would be unjust or unduly harsh for the appellant to be deported". They stated, according to the Supreme Court's guidance in Guo v Minister of Immigration, that:3 this assessment is to be made "in light of the reasons why the appellant isliable for deportation and involves a balancing of those considerationsagainst the consequences for the appellant of deportation".[50] The appellant is liable for deportation because she is unlawfully here. This is because Immigration New Zealand declined to grant her a visitor visa as the dependent child of a worker because she does not meet the requirement that she be of an acceptable standard of health for a temporary entry in terms of A4.15.b of immigration instructions.[52] It has long been a fundamental requirement of immigration instructions that applicants for both temporary and residence visas be of an acceptable standard of health so as to minimise the burden and/or demands on public health and special education services that flow from migration[13] The Tribunal concluded:[55] It is unfortunate that in South Africa the appellant will not have access to the same level of support in her education that is available to disabled children in New Zealand. Against this lost opportunity to maximise her educational development, the Tribunal must weigh the reasons why the appellant is liable for deportation. It finds that any harshness involved in theappellant's deportation does not go beyond what is acceptable to maintainthe integrity of [sic] New Zealand immigration system. It would not be unjust and unduly harsh for the appellant to be deported from New Zealand.[14] For those reasons, the Tribunal found the appellant did not have exceptional circumstances of a humanitarian nature which would make it unjust or unduly harsh for her to be deported from New Zealand. That finding made it unnecessary to consider the "public interest" stage of the enquiry under the statutory test. The appellant thus failed to meet the requirements of s 207(1) of the Act and so her appeal was declined.Submissions[15] Mr Riches, for the appellant, submitted the Tribunal had made an error of law in failing to primarily consider the personal circumstances of the appellant and3 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248, 2 September 2015.instead focusing on public importance matters in considering s 207(1)(a) – whether there were exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand. He argued this was contrary to the approach which the Supreme Court, in Guo v Minister of Immigration, had said should be taken:4The public interest is not immaterial to the application of s 207(1)(a) but is primarily relevant to the application of s 207(b). In determining whether deportation would be unjust or unduly harsh, the primary focus is on the personal circumstances of the person in respect of whom deportation is proposed and those of immediate family members who will be affected bythat person's deportation.[16] Mr Riches argued that, rather than placing primary focus on the personal circumstances detriment faced by the appellant, the Tribunal simply balanced herdifficulties against what was acceptable to "maintain the integrity of the New Zealand immigration system". He argued that, in doing so, the Tribunal was placing the "integrity of New Zealand's immigration system" at a level of higher importancethan the personal circumstances of Caitlyn.[17] For the respondent, Ms Johnston submitted the Tribunal's approach wasconsistent with Supreme Court authority. She contended the public interest may be taken into account as part of the consideration of whether deportation would be unjust or unduly harsh. She argued it was necessary for the Tribunal to take account of the policy reason the appellant became liable for deportation. The integrity of the immigration system was relevant to that assessment. She argued that the Tribunaldid not fail to give primary consideration to the appellant's personal circumstances nor give inappropriate weight to immigration policy. She said that, ultimately, theTribunal's decision rested on its assessment as to the weight to be given to theappellant's circumstances. The Tribunal's decision as to that went to the merits of its decision and the ultimate conclusion it came to was not amenable to appeal as an argued error of law.4 Guo v Minister of Immigration, above n 3, at [9].Discussion[18] There are three cases where there have been judgments of the Supreme Court relevant to the present issue.[19] Ye v Minister of Immigration5 concerned judicial review proceedings but relevant to that was s 47(3) Immigration Act 19876. It provided:An appeal may be brought only on the grounds that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand.[20] For himself, Blanchard, McGrath and Anderson JJ, Tipping J said:[30] The subsection is drafted on the basis of two sequential considerations. The first step is to determine whether there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person concerned to be removed from New Zealand. If that is not shown, the inquiry ends there and removal takes place. If it is shown that it would, on the statutory basis, be unjust or unduly harsh to remove the person from New Zealand, the decision-maker must move to the second inquiry. This concerns whether, despite the injustice or undue harshness, it would in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand. A person seeking to avoid removal must demonstrate not only qualifying injustice or undue harshness but also that it would not be contrary to the public interest for them to be allowed to remain in New Zealand.[31] We do not, however, consider it can have been intended, consistently with relevant international obligations, that a general concern about theintegrity of New Zealand's borders and its immigration system will beenough 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...[32] 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 obligations unless the contrary is clearly shown or unless the language used does not allow that outcome....5 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.6 This provision set out the basis on which the then-deportation review authority could permit a person, otherwise unlawfully in New Zealand, to remain.[34] That brings us back to the first criterion in s 47(3) which has the following ingredients: (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand. The need for the circumstances of the case to be exceptional means that those circumstances must be well outside the normal run of circumstances found in overstayer cases generally. The circumstances do not have to be unique or very rare but they do have to be truly an exception rather than the rule. It is unnecessary and undesirable toattempt to define the compass of the word "humanitarian". It is unlikely tobe difficult to decide whether the circumstances of a particular case fulfil that description. If there are exceptional circumstances of a humanitarian nature, it is then necessary to determine whether they make it unjust or unduly harsh to remove the person from New Zealand.[35] The qualification of the word "harsh", by the word "unduly",recognises that there may be some degree of harshness in removing an overstayer from New Zealand. In particular some degree of harshness may be involved where the removal affects New Zealand citizen children. But the statutory test is couched on the basis of undue harshness. Undue in this context means that the harshness goes beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of NewZealand's immigration system. That is why a generic concern on thataccount is not enough to outweigh fulfilment of the first criterion in s 47(3).[21] In accordance with that judgment, it was appropriate for the Tribunal to have regard to the public interest in maintaining the integrity of the immigration system in determining whether the hardship Caitlyn would suffer with deportation would be"unjust or unduly harsh". Consistent with that judgment, it was also appropriate forthe Tribunal to take that into account at the first stage of their enquiry because the public interest aspect at the second stage of the enquiry was to require the Tribunal toconsider whether there was "something in the circumstances of the particular casewhich would make it contrary to the public interest to allow the person to remain inNew Zealand". The concern for the integrity of the immigration system generally was not going to be a significant consideration at that second stage, hence theCourt's direction that such a general concern would not, of itself, outweigh a fulfilment of the first criterion.[22] In Helu v Immigration and Protection Tribunal, the Supreme Court wasconcerned with a Tribunal's decision involving the deportation of a Tongan who hadbeen in New Zealand since he was six, had been involved in criminal offending after he was 17 and was liable to deportation because of his offending within five years ofthe grant of residency.7 The Court was concerned with the approach to be taken in relation to s 105 Immigration Act 1987.[23] McGrath J considered there was no substantive difference between the approaches to s 105(1) and s 47(3), which was at issue in Ye.[24] McGrath J held that s 105 contemplated two considerations: whether deportation would be unduly harsh to an appellant, and whether allowing him to remain would not be contrary to the public interest. He held the issues were to be considered sequentially so that public interest considerations could prevail over a finding that deportation would be unduly harsh.8 He also said the structure of s 105supported treating the two tests as involving "two distinct considerations".9 But, while he said the two tests were distinct and the outcome on neither limb was determinative of that on the other, factors relevant to each could overlap.10[25] McGrath J said the Tribunal's determination at the first stage would focus ona number of matters relating specifically to an appellant but he did not say that the Tribunal must focus solely on matters relating specifically to an appellant at that first stage of the enquiry. He said the focus at the second stage of the Tribunal's process would be on the community's interest. He then discussed certain matters that might fall for consideration at that stage, including some of the factors that would also have been considered with regard to the first limb, although he noted that, at this stage, they would be viewed "through a different lens".11[26] In the context of the second stage of the enquiry, McGrath J held:[176] Another factor which in some cases will be relevant to the assessment of whether it would be contrary to the public interest for an appellant to remain in New Zealand is the effect of allowing him to remain on the credibility of the immigration system in the eyes of reasonable members of the public. A general concern about the integrity of NewZealand's immigration system and the policy that deportation will followserious criminal offending will not, however, be itself sufficient to7 Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298, 26 March 2015.8 Helu v Immigration and Protection Tribunal, above n 7, at [155].9 At [156].10 At [157].11 At [170].demonstrate that it would be contrary to the public interest for an appellant to stay. Otherwise, this would undermine the overall role of s 105 as the humanitarian restriction that Parliament has set on the operation of the policyin s 91, in order to give effect to New Zealand's international human rightsobligations.[27] McGrath J thus spoke of the general concern about the integrity of NewZealand's immigration system as being a matter that would be considered at thesecond stage of the enquiry but, consistent with Ye, of itself, such a general concern would not be sufficient to override a finding in favour of an appellant at the first stage of the enquiry.[28] In Helu, William Young and Arnold JJ said they agreed with the approach proposed by McGrath J in relation to s 105, in particular, his view that a sequential approach was required and as to the factors which were material in relation to the two questions which the Tribunal had to address. Their disagreement was confinedto McGrath J's conclusion as to disposition of the appeal.[29] The Supreme Court considered s 207(1) Immigration Act 2009 in Guo v Minister of Immigration.12 William Young J, for the full Court, including Elias CJ, Glazebrook, Arnold and Blanchard JJ, stated:[9] The language of s 207(1) (and similar language in other provisions relating to deportation and removal) has received considerable attention inthe courts. It has been held that the expression "unjust or unduly harsh" iscomposite in nature and that the Tribunal need not inquire separately as to whether deportation would be (a) unjust or (b) unduly harsh. Whetherdeportation would be "unjust or unduly harsh" is to be assessed in light ofthe reasons why the appellant is liable for deportation and involves a balancing of those considerations against the consequences for the appellant of deportation. The public interest is not immaterial to the application of s 207(1)(a) but is primarily relevant to the application of s 207(1)(b). In determining whether deportation would be unjust or unduly harsh, the primary focus is on the personal circumstances of the person in respect of whom deportation is proposed and those of immediate family members whowill be affected by that person's deportation.[30] In Guo, the Tribunal had decided that, the impact of deportation "while harsh is neither unduly harsh nor unjust". In relation to two of his children, theTribunal had decided that, while there were exceptional circumstances of ahumanitarian nature relating to them, "deportation would not be unjust or unduly12 Guo v Minister of Immigration, above n 3.harsh". The Supreme Court noted that, in reaching that view, the Tribunal had saidone of the factors which it had considered was that "the integrity of the immigrationsystem was important".[31] The Supreme Court referred to the particular circumstances of the Guo family, the length of time they had been in New Zealand and the consequences of a forced removal to China, particularly for the children. It considered it was arguable, at least to the extent that would justify allowing granting of leave for an appeal to the High Court, that the Tribunal had erred in the way it had assessed, for each of thefamily, whether the consequences of deportation would be "unjust or unduly harsh".There was, however, no criticism of the Tribunal for the way it had said the integrity of the immigration system was important in reaching its conclusion. Indeed, the Supreme Court was concerned that the Tribunal had considered whether deportation would be unduly harsh on the basis of a comparison of the level of hardship the children would suffer as against that of anyone who was required to go to anothercountry, "as opposed to the proportionality of that hardship in respect of the basis upon which they were liable to deportation".13[32] I consider the Supreme Court's judgment as to how s 207(1) is to be applied, as set out by William Young J in Guo, is consistent with the judgment of the majority in Ye and is the basis on which the Tribunal had to apply s 207(1) in this case. It wasconsistent with William Young J's judgment that, in assessing whether there were"exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand", undue meant harshness that "went beyond the level of harshness that must be regarded asacceptable in order to preserve the integrity of New Zealand's immigration system".Conclusion[33] Given the Supreme Court judgments in Ye and Guo, I do not consider there was any error of law in the way the Tribunal said that, at the first stage of its enquiry, it had to weigh the hardship the appellant would suffer against the reasons why she was liable for deportation. The Tribunal was not in error in considering the degree of13 At [22(b)].harshness she would suffer against what was "acceptable to maintain the integrity ofNew Zealand immigration system".[34] Nor do I consider the Tribunal made any error of law in considering, at the first stage of its enquiry, the extent to which the appellant's particular needs imposed a burden and/or demands on public health and special education services that would flow from her being permitted to remain in New Zealand. The Tribunal's discussion and decision as to this was consistent with the Supreme Court's statement in Guo,that the Tribunal's assessment as to whether the appellant's exceptional humanitarian circumstances would render deportation unjust or unduly harsh was to be made "inlight of the reasons why the appellant is liable for deportation and involves a balancing of those considerations against the consequences for the appellant ofdeportation".[35] I must therefore conclude that, on the question on which the appellant was given leave to appeal, the Tribunal did not err in law in its approach to the application of the balancing exercise required to be undertaken to determine whether it would be unjust or unduly harsh to deport the appellant.[36] The appeal is dismissed. If there is any need for me to consider costs further, a memorandum for the respondent is to be filed within 21 days. A memorandum for the appellant is to be filed within 14 days of their receiving the respondent'smemorandum. The memoranda are to be no longer than three pages.Solicitors:Saunders & Co., ChristchurchCrown Law, Wellington.