DAVIES v IMMIGRATION NEW ZEALAND [2017] NZHC 2496

DAVIES v IMMIGRATION NEW ZEALAND [2017] NZHC 2496 [12 October 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2016-409-001150[2017] NZHC 2496BETWEEN CAITLYN DAVIESBY HER LITIGATION GUARDIANCHARMAIN DAVIESApplicantAND IMMIGRATION NEW ZEALANDRespondentHearing: 6 September 2017Counsel: A N Riches for the ApplicantZ R Johnston for the RespondentJudgment: 12 October 2017JUDGMENT OF NATION J[1] In a judgment of 8 June 2017, I held the Immigration and Protection Tribunalhad not made an error of law in the way it decided the applicant's appeal againstdeportation. The applicant has now applied for leave to appeal to the Court of Appeal.Jurisdiction[2] Pursuant to s 246(2) of the Immigration Act 2009: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 Court of Appeal for its decision.[3] Mr Riches, for the applicant, sought leave to appeal the two questions of law on which leave had originally been granted for the applicant to appeal the Tribunal'sdecision to the High Court: 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; secondly, whether, in approaching the balancing exercise required by s 207(1)(a), the Tribunalfailed to primarily focus on Caitlyn's personal circumstances.[4] Mr Riches suggested those questions could be further narrowed to the question: whether, in approaching the balancing exercise required by s 207(1)(a), the Tribunal erred in law by considering public interest considerations directly relevant to the applicant and her family.Discussion[5] Mr Riches referred to a statement from Palmer J in Wu v Minister of Immigration that the test for granting leave to appeal "includes a judicial discretion to grant leave in the interests of justice".1 However, he also noted the Court ofAppeal's statement in Wu v Minister of Immigration that on an application to seekleave to appeal to the Court of Appeal "[t]he applicants must identify a question of law for that purpose which is of such general or public importance as to justifyleave".2 That is what I must consider.[6] As Ms Johnston, counsel for the respondent, pointed out, in Machida v Chief Executive of Immigration New Zealand, the Court of Appeal affirmed that leave toappeal is justified under the "any other reason" limb of the leave test only if"exceptional circumstances" exist involving "individual injustice to such an extentthat the Court simply could not countenance the [first instance] decision standing".3[7] I accept the submission for the respondent that, here, the applicant is seekingleave on the basis of the "general or public importance" limb of the s 245(3) test, not the "any other reason" limb.1 Wu v Minister of Immigration [2016] NZHC 1309 at [18].2 Wu v Minister of Immigration [2016] NZCA 511, [2016] NZAR 1667 at [2].3 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].[8] The Court of Appeal, in Minister of Immigration v Jooste, considered what the test was for determining whether a question reached the threshold of "general or public importance".4 The Court found the "test is similar to that applying to second appeals to this Court under s 67 of the Judicature Act 1908",5 as was discussed by the Court of Appeal in Waller v Hider:6Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.Submissions[9] In seeking leave, Mr Riches argued that, in my earlier judgment, I had incorrectly applied the decision of Helu v Minister of Immigration7 in failing to treat the considerations under s 207(1)(a) and (b) as two distinct considerations. He argued that I and the Tribunal had balanced public interest considerations against the personal circumstances faced by the applicant to determine whether it would be unduly harsh to deport.[10] Mr Riches argued that existing authorities on determinations under s 207 relate to appeals against deportation where the person facing deportation is in that position due to their own default or that of a close family member. He submitted that a distinction should be made in situations where the person liable for deportation has not been guilty of criminal offending or some other wrong doing, and where inevitably the public interest will have some impact in deciding whether theconsequences of deportation would be "unduly harsh".[11] Consistent with this, Mr Riches argues that the Supreme Court said in Guo v Minister of Immigration the fact the applicant was facing deportation through no fault of their own, gave rise to the circumstances being exceptional.84 Minister of Immigration v Jooste [2014] NZCA 23.5 At [5].6 Waller v Hider [1998] 1 NZLR 412 (CA) at 412.7 Helu v Minister of Immigration [2015] NZSC 28, [2016] 1 NZLR 298.8 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [10].[12] Mr Riches argued that the issues which the applicant wishes to have considered by the Court of Appeal have not been dealt with authoritatively in the context of non-offending reasons for deportation.[13] Mr Riches argued that, in the present case, costs to the health and education system are standalone public consideration matters which should have been considered under just s 207(1)(b).[14] Mr Riches referred to how, in Helu and Guo, the Supreme Court had noted there was no substantive difference between the tests provided for under the 1987 and 2009 Immigration Acts. He submitted that ss 22 and 105 of the Immigration Act 1987 set out matters which the Tribunal was to consider if asked to confirm therevocation of a resident's permit, or the quashing of a deportation order on thegrounds that the decision made "would be unjust or unduly harsh for the appellant".He said those matters related to the personal circumstances of the applicant and her family, and that focus should continue with the present legislation.[15] Counsel argued these issues are matters of public importance because they go beyond merely the interests of the applicant, because clarification as to how the"unjust or unduly harsh" test is to be applied is of importance to all who are liablefor deportation, particularly those who are liable to deportation through no fault of their own.[16] For the respondent, Ms Johnston submitted that, for the reasons canvassed in my substantive judgment, it is now clear that all the relevant circumstances of the individual, including the reason for the deportation (or acts that have led to it), haveto be considered in deciding whether it is "unjust or unduly harsh" for the applicant to be deported.[17] Ms Johnston argued that, in essence, the argument which the applicant wishes to advance is that too much weight was placed on the reason and basis for deportation liability. She submitted matters of weight are for the Tribunal.99 Referring to Minister of Immigration v Al Hosan [2008] NZCA 462, [2009] NZAR 259.[18] Ms Johnston said deportation liability can arise for a variety of reasons,including "fault" on the part of the appellant such as breach of visa conditions,10fraud,11 or criminal convictions.12 She argued liability for deportation can also arise through the application of Immigration Policy/Instructions and a visa being declined so that the individual comes to be unlawfully in New Zealand,13 as was the case here.She argued the absence of "fault" for deportation liability that is not fault-based can be only of limited (if any) relevance.[19] Ms Johnston also argued that it cannot be suggested in this case the Tribunalfailed to consider the applicant's personal circumstances. She argued that it isapparent from the record that the personal circumstances of the applicant and her family were at the forefront of the Tribunal's consideration of whether deportationwould be unjust or unduly harsh.Discussion[20] On the hearing of the original appeal to this Court and on this application for leave to appeal to the Court of Appeal, it was not for the High Court to review themerits of the Tribunal's decision on the facts of the case. Parliament has left it to aspecialist tribunal, the Immigration and Protection Tribunal, to make those sorts of assessments. The issue for the High Court was whether the Tribunal had reached its determination on the proper legal basis.[21] I accept the respondent's submissions that the applicant's personal circumstances were at the forefront of the Tribunal's consideration of whetherdeportation would be unjust or unduly harsh.[22] Those matters were first outlined in the consideration of whether her circumstances were exceptional.14 The Tribunal went on to consider whether those circumstances would make it unjust or unduly harsh for her to be deported.15 The Tribunal considered the reduced educational opportunities for the applicant if she is10 Immigration Act 2009, s 159.11 Immigration Act 2009, s 158.12 Immigration Act 2009, s 161.13 Immigration Act 2009, s 154.14 See Tribunal's decision in Re BK (South Africa) [2016] NZIPT 502853 at [20]-[48].15 At [55].deported,16 her need for special services,17 her parents' status in New Zealand,18 the amount of time the family had been in New Zealand,19 and the degree of the family'sconnection to New Zealand.20[23] On this application, the issue for me to determine is whether there is a question of law of general or public importance which ought to be heard by the Court of Appeal.[24] In the conclusions to his submissions, Mr Riches referred to the applicant'shealth issues and the circumstances in which she had come to New Zealand, and saidthe Tribunal had "assessed her as liable for deportation on the basis that her circumstances do not go beyond the level of harshness required to maintain the integrity of the New Zealand immigration system". He argued the Tribunal had erred in making that determination in balancing the personal circumstances that make deportation unduly harsh against the maintenance of the integrity of the New Zealand immigration system, as part of the unduly harsh test. He argued that any assessment of the underlying policy and public interest in deporting must becompleted under the second "public interest" limb.[25] I do not consider that there is a serious question as to this submitted error which warrants further consideration of these issues by the Court of Appeal. As explained in my substantive judgment, the Supreme Court has clearly stated that, in deciding whether there are exceptional circumstances of a humanitarian nature, which would make it unjust or unduly harsh for an appellant to be deported fromNew Zealand, the harshness must go "beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand's immigration system".2116 At [55].17 At [51].18 At [53]-[54].19 At [54].20 At [36].21 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [35], but the statutory test is couched on the basis of undue harshness. Undue in this context means the harshness goes beyond the level of harshness that must be regarded as acceptable in order to preserve theintegrity of New Zealand's immigration system;Guo v Minister of Immigration, above n 8, at [9]: whether deportation would be "unjust or unduly harsh" is to be assessed in light of the reasons why the appellant is liable for deportation[26] The statements by the Supreme Court reflect the rationale for this approach, as explained by McGechan J in Prasad v Chief Executive of Department of Labourin respect of s 63B(2) of the 1987 Act:22The test [is] "exceptional circumstances of a humanitarian nature" because of which "it would be unjust or unduly harsh" to remove How does onesensibly determine whether it would be "unjust" or "unduly harsh" toremove without some reference, on the other side of the ledger, to the public policy considerations which point to such removal? Any inhumane treatment can be unjust or unduly harsh in the abstract: one needs to be able to at least consider policy in the process of balancing up whether it is so to such a degree that an exception to policy should be applied, and removal foregone.[27] There is nothing in those statements as to the test to be applied which suggests that is to be the test only in situations where the appellant has been at fault or guilty of some wrong which has rendered the appellant liable to deportation.[28] I do not consider there is anything in the legislative policy apparent in the 1987 Act which raises a question as to whether a different test should have been used in the circumstances of this case. In ss 22 and 105 of the Immigration Act 1987, in considering whether it should confirm the revocation of a resident's permit or toquash a deportation order, the Tribunal was directed to have regard to the following matters:(a) the appellant's age;(b) the length of time 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 grounds on which the permit was revoked;(f) the interests of the appellant's family; andand involves a balancing of those considerations against the consequences for the appellant of deportation.22 Prasad v Chief Executive of Department of Labour [2000] NZAR 10 (HC) at 22.(g) such other matters as the Tribunal considers relevant.[29] With its reference to "the grounds on which the permit was revoked" and "such other matters as the Tribunal considers relevant", the legislation contemplated,and in terms of (e), required the Tribunal to have regard to the reasons for the decision which had been made.[30] I accept that how the "unjust or unduly harsh" test is to be applied is relevantand important to all those who seek a humanitarian appeal to the Tribunal. It is also of considerable importance to the applicant and her family. Whether that test was applied appropriately by the Tribunal has now been considered by the High Court following judgments of the Supreme Court. Those judgments authoritatively state the Tribunal is to assess whether the deportation will be "unjust or unduly harsh",having regard to the circumstances which have rendered the applicant liable fordeportation and the need to "maintain the integrity of the New Zealand immigration system".[31] Because the Supreme Court has clarified how the test is to be applied, I have to conclude that there is no question of law here of such general or public importance that it should be submitted to the Court of Appeal for its decision. On that basis, the application for leave to appeal must be declined.Solicitors:Saunders & Co., ChristchurchCrown Law, Wellington.