DAVIES v CE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2017] NZHC 503

DAVIES v CE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2017] NZHC 503 [20 March 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2016-409-001150[2017] NZHC 503IN THE MATTER OF An appeal against a decision of the Immigration and Protection TribunalBETWEEN CAITLYN DAVIES BY HER LITIGATION GUARDIAN CHARMAINE DAVIESApplicantAND CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENTRespondentHearing: 15 March 2017Appearances: A Riches and J Bensley for the Appellant Z Johnston for the RespondentJudgment: 20 March 2017JUDGMENT OF MANDER J[1] The applicant, Caitlyn Davies is a four year old child who was born in South Africa.1 She suffers from global development delay, impaired vision and chronic medical conditions. In July last year her application for a visitor visa was declined because she did not have an acceptable standard of health. Without being able to lawfully remain in New Zealand, Caitlyn became liable for deportation.[2] Caitlyn appealed the refusal to the Immigration and Protection Tribunal (the Tribunal) on humanitarian grounds. Her appeal was declined and it is against that decision which leave is sought to bring an appeal to this Court.1 Caitlyn was represented by her mother, Charmaine Davies, who was appointed as her litigationguardian pursuant to my direction of 16 February 2017.Background[3] Caitlyn's father arrived in New Zealand in February 2015 and in June of that year he was granted a one year work visa which authorised him to be employed as a sheep farm worker. Caitlyn and her mother and brother arrived in New Zealand in September 2015. They held concurrent work and visitor visas as the partner and dependent children of a worker.[4] In May last year applications to renew the family's visas were lodged. Thefather was granted a further one year work visa which allowed him to work as a tractor operator and the mother and brother were also granted concurrent work and visitor visas.[5] In June, Immigration New Zealand wrote to Caitlyn's parents noting thatCaitlyn may not be of an acceptable standard of health. Advice had been received from a medical assessor that Caitlyn was likely to impose significant demands on New Zealand's special education services. Specifically, that she had global development delay with several neurological conditions and was also legally blind.In response Caitlyn's parents filed a letter from a doctor who stated she would onlyneed two specialist assessments and two visits to a general practitioner over the next year.[6] In July Immigration New Zealand declined to grant Caitlyn a visitor visa because she was not of an acceptable standard of health. The information received on her behalf was noted but it was not considered that any new medical informationhad been provided. Caitlyn's global mental delay, blindness and chronic medicalcondition were considered as likely to impose significant costs on the New Zealand health system.[7] Caitlyn's interim visa expired in July 2016. As a result she became liable for deportation.The Tribunal's decision[8] Caitlyn's appeal was brought on humanitarian grounds under s 207(1) of the Immigration Act 2009 (The Act). This provides as follows:207 Grounds for determining humanitarian appeal(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.(2) [9] The Tribunal identified the primary issue for its determination as being whether the difficulties for Caitlyn's parents in re-establishing themselves back in South Africa, the potential separation of family members, and the limited education and medical services available to Caitlyn in South Africa cumulatively gave rise to exceptional humanitarian circumstances that would make it unjust and unduly harsh for Caitlyn to be deported from New Zealand.[10] The Tribunal identified the three ingredients required to be established under the first limb of s 207 as recognised by the Supreme Court in Ye v Ministry of Immigration, namely: (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person be removed from New Zealand.2[11] The Tribunal rejected the economic difficulties Caitlyn's family may face in having to relocate back to South Africa, temporary family separation should the parents decide to stage the family's return, and what it described as the speculative risk of Caitlyn becoming a victim of serious violence at school or elsewhere in South Africa, as establishing exceptional humanitarian circumstances. However the Tribunal acknowledged that Caitlyn as a young child with multiple disabilities faces2 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].huge challenges and that any loss in educational opportunities will impact on her development and ultimately reduce her capacity for independent living. The Tribunal therefore accepted that her reduced educational opportunities in her home country did give rise to exceptional humanitarian circumstances.[12] The Tribunal then turned to the question of whether those circumstances made it unjust or unduly harsh for Caitlyn to be deported. The Tribunal referred tothe Supreme Court's decision in Guo v Minister of Immigration and correctly noted that its assessment was to be made in light of the reasons why Caitlyn was liable for deportation and involved a balancing of those considerations against the consequences for Caitlyn of deportation.3[13] The Tribunal identified that Caitlyn was liable for deportation because she is unlawfully in New Zealand. She had been declined a visitor visa as the dependent child of a worker because she did not have an acceptable standard of health for temporary entry under the relevant immigration instructions.[14] The Tribunal reviewed the applicant's health issues and the extent of special support she requires to progress her education. It noted that Caitlyn has placed significant demands on special education services for the disabled and can beexpected to do so in the future. The Tribunal then observed that it is a "fundamentalrequirement of immigration instructions" that applicants for temporary and residents'visas be of an acceptable standard of health so as to minimise the burden or demand on public health and special education services that may result from migration. It was noted that such services are already in high demand from New Zealand citizen or resident children with disabilities and that this country is not obligated to provideunrestricted access to such services to any disabled child because the child's home country provides a lower standard of health care or educational support.[15] Balancing those considerations against Caitlyn's exceptional humanitariancircumstances, the Tribunal did not consider it unjust or unduly harsh for her to be deported from New Zealand. As part of its analysis the Tribunal observed:3 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [9].[54] The appellant's family are recent arrivals to this country and herparents hold only temporary work visas, valid until 23 May 2017. They have no family or other significant nexus to New Zealand. The father is working as a tractor driver and hopes to become registered as an electrician and the mother is employed as the secretary of a sports club. While the parents may be contributing through their employment to the rural community where they are living, their contribution is not exceptional.[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 New Zealand immigration system. It would not be unjust and unduly harsh for the appellant to be deported from New Zealand.[16] The Tribunal held that its finding under s 207(1)(a) that it would not be unjust or unduly harsh to deport Caitlyn from New Zealand meant it was unnecessary for itto consider the "public interest" element of the inquiry required under s 207(1)(b) of the statutory test.The appeal[17] An appeal from the Tribunal's decision can only be brought by leave and islimited to questions of law. Section 245 of the Act 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, chief executive, 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.[18] Further criteria governing the leave decision is provided by s 245(3) of the Act:(3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.[19] In Wu v Minister of Immigration the Court of Appeal noted that the high threshold for a second appeal under the Immigration Act must be guided by the general test for a second appeal to that Court under s 67 of the Judicature Act 1908.4This requires the identification of question of law capable of bona fide and serious argument involving an interest of sufficient importance to outweigh cost and delay.5Most recently the Court of Appeal in Machida v Chief Executive of Immigration New Zealand observed that s 245 requires an applicant to identify a seriously arguable question of law which either:6a) has importance extending beyond the particular case (which is what"general or public importance" entails); orb) for some other reason, warrants a decision from the High Court.[20] In reference to (b) the "other reason" limb, the Court of Appeal expressly approved the approach taken by this Court in a series of decisions which have held that it would only be in an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal's decision standing,that this alternative requirement could be met.7Proposed grounds of appeal[21] Seven alleged errors in the Tribunal's approach were identified by Caitlyn which she submitted warranted the granting of leave:a) The Tribunal erred in concluding that Caitlyn's reduced educationalopportunities give rise to exceptional humanitarian circumstances but finding it was not unjust or unduly harsh for Caitlyn to be deported in those circumstances;4 Wu v Minister of Immigration [2016] NZCA 511, [2016] NZAR 1667 at [12].5 Minister of Immigration v Jooste [2014] NZCA 23 at [5]; Waller v Hider [1998] 1 NZLR 412 (CA) at 413 – 414.6 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] NZLR 721 at [8].7 At [8].b) The Tribunal failed to consider that Caitlyn's liability for deportation arose through no fault of her own;c) The Tribunal erred in placing excessive weight on the public interest of deporting Caitlyn rather than primarily focusing on her personal circumstances as a primary consideration;d) The Tribunal failed to consider that it would be unjust or unduly harsh in the context of why Caitlyn is facing deportation;e) Undue weight was placed on Immigration instructions rather than the primary circumstances of Caitlyn;f) The Tribunal failed to consider New Zealand's internationalobligations as a matter of general and public importance;g) The Tribunal failed to consider "that the obligations of the Tribunal pertained to New Zealand's international obligations, in particular the United Nations Convention on the Rights of the Child 1989".[22] Caitlyn submitted that it was in the interests of justice that leave be granted inrespect of these seven "grounds of appeal". She relied on a decision of Palmer J inRM v Immigration and Protection Tribunal where the learned Judge held the test for granting leave to appeal under s 245 of the Act includes a judicial discretion to grant leave in the interests of justice.8 However as Palmer J acknowledged in a later decision, the Court of Appeal has, as I have already referred at [20], since held that the test in s 245(3) can only be met in an exceptional case involving individual injustice which could not be countenanced by this Court.9 That is the test I must apply if the second limb of s 245(3) is to be relied upon for the purpose of obtaining leave. Undeterred, Caitlyn submitted this was such an exceptional case.8 RM v Immigration and Protection Tribunal [2016] NZHC 735 at [2].9 Wu v Minister of immigration [2016] NZHC 1309 at [19], referring to Machida v Chief Executive of Immigration New Zealand, above n 6, at [8] adopting Kos J's test in Taafi v Minister of Immigration [2011] NZHC 1768, [2013] NZAR 1037 at [19].[23] The alternative basis upon which leave may be granted is when a seriously arguable question of law is identified which has importance extending beyond the particular case and thus is capable of being described as one of general or public importance. Caitlyn relied on two questions which she submitted met this threshold:a) Whether the Tribunal erred by placing substantial weight on immigration instructions rather than focusing on the primary circumstances of Caitlyn; andb) Having determined that it was in Caitlyn's best interests that sheremain in New Zealand whether the Tribunal erred by failing to have regard to New Zealand's international obligations under the United Nations Convention on the Rights of the Child 1989 (the Convention) in concluding that her deportation would not be unduly harsh.[24] Those questions which are an amalgam of the grounds set out at [21] encapsulate the points sought to be raised, including the contention that the Tribunalfailed to consider that Caitlyn's liability for deportation had arisen through no faultof her own, a factor upon which some emphasis was put.The balancing exercise[25] In approaching the question of whether it would be unjust or unduly harsh for Caitlyn to be deported, the Tribunal correctly observed that this assessment has to be made in light of the reasons why Caitlyn is liable for deportation and involves a balancing of those considerations against the consequences of her deportation.10 The issue raised on the application for leave is essentially whether the Tribunal correctly applied this balancing test. This involves consideration of two interrelated 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. Under s 207(1)(b) of the Act, before an appeal against liability for deportation on humanitarian grounds can be10 Guo v Minister of Immigration, above n 3, at [9].allowed, the Tribunal must be satisfied that it would not be contrary to the public interest to allow the appellant to remain in New Zealand. Caitlyn submitted the Tribunal illegitimately gave pre-eminence to the immigration instructions and considerations relating to the public interest when making its assessment under s 207(1)(a) as to whether it would be unjust or unduly harsh for Caitlyn to be deported.[27] Secondly, whether in approaching the balancing exercise required by s 207(1)(a) the Tribunal failed to primarily focus on Caitlyn's personalcircumstances as, it was submitted, was required at this stage of the enquiry. By so doing it was submitted the Tribunal failed to take into account the absence of faulton Caitlyn's part in being liable for deportation.[28] In support of her position Caitlyn referred to the observations of William Young J in Guo made immediately after the formulation of the balancing test to determine whether deportation would be unjust or unduly harsh:11The 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 who will be affected bythat person's deportation.[29] The need to give primary focus at the s 207(1)(a) stage to the personal circumstances of the person who is liable to deportation was emphasised later in thejudgment when the Supreme Court raised areas of concern about the Tribunal'sanalysis in that case. Relevantly, when Young J noted:12The Tribunal's focus on whether deportation would be unduly harsh was interms which suggested a comparison of the level of hardship which [the appellants] would suffer as against that of anyone who was required to go to another country as opposed to the proportionality of that hardship in respect of the basis upon which they were liable to deportation. Indeed, the only proportionality analysis explicitly carried out, at [162] of the decision, was in the context of the family as a whole and was not carried out by appellant by appellant.11 At [9].12 At [22].[30] There is an available argument that the level of hardship that Caitlyn would suffer as identified by the Tribunal was simply the concomitant of her being ineligible for a visa because of her unacceptable standard of health as required by immigration instructions. The Tribunal stated that New Zealand was not obligated to provide unrestricted access to its health and special education services to anydisabled child simply because the child's home country provides a lower standard ofhealth care or educational support. Arguably however that consideration, if it is appropriately a factor to be considered at the s 207(1)(a) stage of the analysis, is required to be assessed against the personal circumstances of individual hardship arising from the applicant's situation as a result of becoming liable for deportation. This, it would appear, is required to be the primary focus and, as recognised by the Supreme Court in Guo, would include the personal circumstances of immediate family members who will be affected by the person's deportation.13[31] In making those observations I do not overlook the Tribunal's analysis of the family's situation which I have set out at [15]. The key issue however is whether, atthis stage of the inquiry, the Tribunal was required to make the personal circumstances of Caitlyn and her family its primary focus, and if so, whether it did.[32] The Crown submitted the balancing exercise required to be undertaken by the Tribunal requires the exceptional circumstances of a humanitarian nature to be measured against something in order to determine whether those circumstances make it unjust or unduly harsh to remove the person. Where, as in the present casethe liability to deportation arises because of the person's unlawful status as a resultof not meeting an acceptable standard of health, it is inevitable that the policy rationale for the immigration instructions which render a person liable for deportation will be of some importance. Absent its introduction at this first stage of the analysis the balancing process required to be undertaken would be a redundant and empty exercise.[33] I accept that must be so and was recognised as such by the Supreme Court when it acknowledged that the public interest is not immaterial to the application of13 At [9].s 207(1)(a).14 However the question that arises on this leave application and for any appeal is the extent to which public interest considerations are to be taken into account at this stage of the s 207(1) analysis. As discussed above, the Supreme Court has held that the public interest is primarily relevant to the application of s 207(1)(b), and that the primary focus in determining whether it would be unjust or unduly harsh to deport a person must be on the personal circumstances of the person liable to deportation and his or her immediate family members.[34] In order for leave to be granted any question of law under s 245 must be capable of bona fide and serious argument. Because the Tribunal found the composite elements of the humanitarian test under s 207(1)(a) had not been established it expressly did not go on to consider the second inquiry under s 207(1)(b) regarding whether it would be contrary to the public interest to allow Caitlyn to remain in New Zealand. Lest it be thought inevitable that the public interest considerations accepted by the Tribunal under s 207(1)(a) would in anyevent be determinant of Caitlyn's appeal once considered under s 207(1)(b), it was submitted on her behalf that such a result would not necessarily follow.[35] In Ye v Minister of Immigration the Supreme Court, in considering the requirement under s 207(1)(b) that a person seeking to avoid removal must demonstrate that it would not be contrary to the public interest, held:15[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. Logically that would mean the general concern was capable of outweighingthe injustice or undue harshness on a generic basis[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.14 Guo v Minister of Immigration, above n 3, at [9].15 Ye v Minister of Immigration, above n 2.[36] Accordingly, once the first criterion is established under s 207(1)(a), something more than a general concern regarding the integrity of the immigration system will be required to demonstrate that it would be contrary to the public interest to allow a person who has fulfilled the requirements of s 207(1)(a) to remain in New Zealand.[37] In declining Caitlyn's appeal the Tribunal remarked that it did not find theexceptional circumstances of a humanitarian nature would make it unjust or unduly harsh for her to be deported. In support of that conclusion it found that any harshness involved in that outcome did not go beyond what was acceptable tomaintain the integrity of New Zealand's immigration system. The Tribunal inmaking that observation was addressing itself to a different point, namely the degree of harshness arising from any deportation for the purpose of making an assessment under s 207(1)(a). However, it is apparent that considerations of that type regarding the integrity or otherwise of the immigration system would be insufficient for the purposes of gauging the public interest under s 207(1)(b).[38] I am satisfied there is a seriously arguable question whether the Tribunal erred in law in concluding that it would not be unjust or unduly harsh to deport Caitlyn from New Zealand. In particular, whether the Tribunal erred in how it applied the balancing exercise required under s 207(1)(a) of the Act.[39] Because the identified issue of law raises questions regarding the approach to be taken when applying the statutory test under s 207(1) which extend beyond the individual circumstances of this case, I consider the issue raised is one of general or public importance that warrants leave being granted.[40] In reaching that decision I have not addressed Caitlyn's submissions insupport of the identification of an error based on a failure by the Tribunal to consider that her liability for deportation did not arise through any fault of her own. That issue is subsumed in the question of law framed above. However I am bound to observe that while the unsurprising absence of any contributory conduct on the part of a four year old child may be of some relevance to an assessment of her personalcircumstances and that of her immediate family, it does not appear to have any particular materiality in terms of how Caitlyn has come to be liable to deportation.[41] The analogy sought to be drawn with the circumstances in Guo appear to bemisplaced. The analysis by the Supreme Court in that case regarding the appellants' father's failure to disclose his criminal offending to the immigration authorities which gave rise to their liability for deportation, cannot be easily transposed to the present case. While eligibility for deportation is usually associated with fault, that is not always the situation as this case illustrates.[42] In Guo the applicants who were New Zealand residents had become liable fordeportation as a result of their father's criminal offending many years earlier and they were without fault. The Supreme Court held that made their circumstancesexceptional. In the present case Caitlyn's liability for deportation does not stemfrom anyone's "fault" and the assessment of her situation does not lend itself to such a consideration. Caitlyn's eligibility for deportation does not derive from anotherperson's fault being visited upon an innocent family member as it was in Guo, rather it is simply the result of a visa application having been declined.International obligations[43] I decline leave in relation to the second proposed question regarding theTribunal's consideration of New Zealand's international obligations under theConvention. I do not consider the issue raised is an arguable question of law nor one which raises an issue of general public importance. The approach to be taken to the application of the Convention in cases such as these is well settled, and any questions that arise do not extend beyond the circumstances of this case.[44] It is indisputable that New Zealand's obligations under the Convention are anecessary consideration required to be taken into account in determining Caitlyn'shumanitarian appeal. Article 3 of the Convention provides that in all actionsconcerning children "the best interests of the child shall be a primary consideration".The Act is to be interpreted in a way that is consistent with that obligation.1616 Ye v Minister of Immigration, above n 2, at [24].[45] Caitlyn submitted the Tribunal fell into error when, after having recognised it was not in her best interests to be returned to South Africa, it considered the harshness of deportation did not go beyond what was acceptable to maintain the integrity of the New Zealand immigration system.[46] The Crown acknowledged that the Tribunal had found that it was in Caitlyn'sbest interests to remain in New Zealand. However it submitted that only serves to illustrate that the Tribunal had specifically taken into account the best interests of the child. While the Tribunal did not specifically refer to the Convention as the sourceof New Zealand's international obligations, it was not required to do so as long as those obligations were considered in substance.17[47] Importantly, as recognised by the Supreme Court in Ye, the best interests ofthe child shall be "a primary consideration". That does not mean it will be "theprimary consideration" which would be inconsistent with the policy objectives which must be reconciled in cases of this type.18 I accept the Crown's submissionthat it is not realistically arguable that the Tribunal disregarded the Convention obligations but rather has concluded that the best interests of the child were outweighed by other considerations.[48] Having come to that conclusion I accept the Article 3 Convention obligation remains an element to be taken into account in considering the first questionregarding the Tribunal's approach to the balancing exercise under s 207(1)(a) of the Act in respect of which I have granted leave. In particular, the weighting to be given to the best interests of Caitlyn as a primary consideration under the Convention.Disposition[49] Leave is granted to appeal to this Court against the Tribunal's dismissal ofCaitlyn's appeal on the question of whether the Tribunal erred in law in its approach17 Ye v Minister of Immigration, above n 2, at [24]; Puli'uvea v Removal Review Authority [1996] 3 NZLR 538 (CA) at 541; and Singh v Chief Executive of The Ministry of Business, Innovation, and Employment [2016] NZHC 2337 at [29].18 At [24].to the application of the balancing exercise required to be undertaken to determine whether it would be unjust or unduly harsh to deport Caitlyn.[50] I reserve issues as to costs which if not agreed are likely best left until after determination of the substantive appeal.Solicitors:Saunders & Co, ChristchurchCrown Law, Wellington